witnesses who could help us stablish his client's innocence and it is reasonably likely that that missing testimony would have changed the result of mr fidgets trial and this court has held that an attorney has a duty to investigate all witnesses who may have information about his client's innocence counsel here failed to investigate two witnesses mistah kins and mr oviedo and this is despite being told by his client that both witnesses could provide testimony helpful to the defense by me briefly talk about the facts of this case that were presented at trial this case was a he said he said case there were conflicting testimony the state's t and then left five or six separate holes in his coat not a single witness testified that they saw this alleged shooting or even heard a gunshot notwithstanding the fact that by all accounts this occurred in daylight in a populated area my client testified as he had from the beginning of this case that he did not shoot that he didn't even have a gun he testified that he got out of his truck because the men flagged him down they asked him for money then attempted to rob him and there was no visible wound on my client because by that time the wound when he was nicked with the screwdriver was healed and so at the time oscar or anything is correct and so that's why miss dawkins testimony was crucial here because she could establish that she was injured because she dressed his wound and if in fact the jury believed her they could not have found him guilty because according to mr s no screwdriver and my client was never injured of the case i gather is that there are two stories here and and then there's no third middle story that's at issue see their story one or story two yes so any evidence that that strongly supports your story correspondingly undermines the other story yes but let me ask you what my particular question is about this case because i can sort of see how a jury might have wanted to know if there had been a screw driver absolutely so we have to be very careful not to overturn state court decisions contrary to the difference that applies i'm looking at the  state court judgment that i guess is the judgment is the opinion that gets at the deference yes the decision on that's this trial court on collateral review decision yeah right and it says and i'm talking particularly about doc i'm ok so i think it's as it's it's it's the stronger if not the only thing that really are you believe would support one of the stories over the other day with me yes all right the defendant contends that his attorney should have called this fiance dock and he suggests that she had relevant testimony but it's vague and not specific as to what the testimony would have been since defendant has not adequately brief this point the court treats it as a band we know there's different products of it but as i take it simplified we just have to see whether that's reasonable right if that's reasonable you lose right even if all this other stuff might have persuaded someone else right that takes me back to what they are you they're basically saying you didn't provide us with anything except vegas right so what did they provide him with well it wasn't much it's just it's just this one little paragraph on page twenty five of their motion unless there's something else that you can point me to her and it just says she had firsthand knowledge could have could of cast a more favorable light she was the person who was present three sentences all right this is a state court saying three sentences in your brief are insufficient we have to say that their statement that these three sentences in their brief was insufficient was irrational that's you know off isn't it doesn't sound irrational it sounds like they looked at these three sentences and saw that they were very much and documents yes your honor and it's on the pages for sixty three and for sixty four page id ok and he and in that in that motion for hearing just pacifically referred to this claim he said in  paragraph one on page four sixty three trial attorney william whitefield to investigate and use exculpatory witnesses at trial now is one of the bases for him asking for a hearing the state court accepted his allegations denied his request for a hearing and then denied his claim and that decision was absolutely objectively unreasonable under at their own eyes the failure to investigate known witnesses could help establish your client's in a sense is a textbook case of ineffective assistance and that's what we have here mr fidgets attorney did not put on a single witness on defense all he had was his client get up there and tell his story and in this story of two witnesses saying one thing and a criminal defendant on trial seeing another the jury believed the two witnesses and if one or two other witnesses had corroborated mr fixit story it is reasonably likely that the jury would have believed him instead and you know i hate to parse stuff too closely but it doesn't really say in this paragraph that she would have said she dressed the wound its she had knowledge of the background and her testimony would have cast it in a more favorable light and then it just says who she is she's the but it does just says who she is doesn't say what she was your honor but it does say what she experienced and that she cleaned and dressed as women and with that information and the attorney had the duty to talk to and find out exactly what she would see decide whether she would be a credible witness and he i mean he may have decided not to put her on for strategic reasons but he had to at least talk to her and figure out if she could be helpful to this defen particularly when he didn't put anyone else on all you put on was this those it would seem like the collateral court the collateral state court is entitle to more explanation of what she would say than just she knew stuff right your honor she did not just you're saying that should have been done in a hearing yes your honor and and if this court is you know is concerned about more about what she would have testified to it me and the case at a minimum and asked the district court to conduct an evidentiary hearing once it gets passed over review and this court has the authority to do district court to make factual findings as to that point because up until this point into the litigation mr fisher has not had the opportunity to develop those facts and his allegations if true or not contradict in the record in any way would burden here first under ordinary strickland principles the burden is on him to prove his infective assistance of counsel claim in under strickland he has the burden to show both deficient performance and prejudice the supreme court has to made clear that the burden quote rests squarely on the defendant and in comes will strongly presumed to have rendered reasonable professional judgment such as a second burden in this case which of course is a deference because as the state adjudicated his claim on the merits and this court can only overturn the state ruling if it was so lacking in justification that there was an error beyond any possibility for fair minded degree and that's  richter and pinholes term made clear that again the petitioner carries the burden of proof under and but also and for strickland claims under and there is a double decker it's the question is not whether this court believes the state courts resolution of the strickland claim was correct but rather whether the determination was reasonable and despite the burden being entirely unfit to side he asked this court for something remarkable which is he asked this court to grant haiti as relief on his failure to investigate claim based on nothing but his bare assertion that his attorney failed to investigate this is remarkable if he's right that his bare assertions are enough it's hard to see how every prisoner would not get a new trial but he's not right and his attempts to put the burden on to the state fail the burden is and always has been on him to establish the factual basis for his clean and he never has not in state court and not now is this correct pointed out that the question here is whether the state court's decision was reasonable and it was mr fix it presented to the state court as support for his claim an affidavit of inadmissible material  allegation or no relation to his allegations in which he openly mis characterized to the stake or he gave the state court no affidavit from the other witness josie darkens regarding what her proposed testimony would be was that basically  didn't provide an affidavit from her that was one of the things that he did not provide to the state court i mean no we're trying to i gather you're agreeing that we are trying to figure out the reason why most of this paragraph in the in the state courts  respect to doctrine is stronger because i'm trying to think in terms of what a jury would think someone says one of the parties is not a is not a is is a liar that's one thing but when you have someone who personally can confirm some aspect of one of the two alternative stories that would be something the jury would want to know wouldn't you think it could well be however so that gets us to this paragraph which deals with that testimony and the state court says it's totally vague and nonspecific and you're posing council says that's just objective we not true it's not totally begun on specific it's they it's clear and specific she cleaned and dressed the wound after being stab during the questioning of mr pritchett's counsel he did not actually say what ms dawkins would testify in his and in his briefing nor did pretty close nor did he say what he told his attorney regarding what she would testify to a ege not only that this person would know but that he told attorney that this person knew that there were several things that he should have alleged but didn't and also as a second response to your question under this core confirm the stake or based on any reason that would support the decision because the deference goes to the decision of the court not necessarily its particular reason the in so even if this court were troubled by the state post convictions court's reasoning with respect to dock in which i would argue you should not be but if you were again the state court decision if there's any reasonable you know sort of a side point in your favor but i wonder if if a counterargument would be that that what the district what the trial what the collateral trial court did in this case was basically say that it had been defaulted if they say it's been defaulted and we say no it hasn't been defaulted then we could i'll go through the language that you're citing and then the place where it makes clear that there's a merits determination the part that you're looking at i think well there's the totally vague and nonspecific part which could be interpreted as a default but then the court says fish it fails to show the coun was ineffective in failing to present the two potential witnesses he mentions that's a merits finding and then at the end of its opinion you know if you fail to show it because you abandon your claim saying well that's necessarily a merits determination lies at  the i couldn't you failed to show it by by not by not showing it at the proper procedural time i mean that would be a procedural default right and still be a failure there is more language in the or in the state collateral court's opinion on the last page it says the court finds no merit in any of defendant's arguments so he advanced that argument with respect to doc and i mean add was a formidable barrier and the state court made clear that it was rejecting all of his arguments on the merits and even if this court thought there were no merits determination with respect to doc and i mean we would argue at best it's both merits and procedural default but even if this court thought it was just a default at no point has been shown cause or prejudice to excuse it and also note that mr fitch has never suggested that this was a procedural default it's his position too that there is a merits determination for his claim  he and his district court heaviest petition argued cause for his failure to raise the claim on direct review and state court in his argument isn't that there's cause for the procedural default the argument is that the in finding that it was procedurally defaulted because they based it on the fact that was totally big when it wasn't totally beg pardon pardon me could you repeat the question i thought you were saying that the that the independent argument with respect to procedural default would end would be sufficient to dispose of this case because it was actually procedurally procedurally defaulted because there was no cause and prejudice i thought that's what you were saying i believe  the point i'm trying to make is that even if this court looked at it as procedural deval he has never advanced any cause or prejudice to excuse the default i e argument is not that there's an excuse for the default but that no default occurred which is different from an excuse that you're saying that my argument is that when the argument that you're just making right now correct which you said there's no cause for prejudice correct would only say there's even only get to a cause or prejudice when there made i'm not trying to make their arguments for them but the argument that would be made is that this trial court said procedural default because of x and the answer and you say one they didn't say that and b if they did it's excused but if they did it doesn't matter whether it's excused because their argument if they did if the court did make that argument if that was the basis for the court's decision then there ar argument would be this is a decision in which the state collateral trial court said in effect this case is default because of a guinness and non specificity ok i can understand an answer to that which is to say they didn't say that they said something else but if they did say that you're saying it's excused i'm saying if they did say that it's we don't need to get to whether it's excused because their argument isn't that it's excuse their argument is that they're wrong it wasn't vague in spain and specific it was instead unveiled and specific right and if and that question if you argument is that he's never attempted to show cause for making an insufficient proper in other words if his insufficient proffer to the state court regarding ms doc in were viewed as a default you know the court said we treat this as abandoned because it's begun nonspecific that it was the fault and if it was objective leon reasonable to say that it was default in the first place then he would go to the merits of the merits issue or maybe the right ineffective assistance of counsel claim on this record this court couldn't find an effective assistance of counsel where we don't know what he told his attorney regarding the witnesses he mentions a letter that he gave his attorney allegedly in his reply brief i have never seen a copy of that letter to my knowledge it's not part of the record we don't know from the witnesses themselves what their testimony would have been and we have no idea what his attorney did or did not do to investigate these witnesses or what the attorney's reasons might have been for whatever action he pursued and fishes certainly made no statement of personal knowledge in his stake or briefing that his attorney failed to investigate what would keep him from arguing them you know he wanted to have a hearing in order to do that well mr all of those things i guess correct and mr fisher has no claim here that the state court unconstitutionally denied him an  evidentiary hearing first he forfeited any such argument because he's never argued that he never argued it in the appeals of the state collateral ruling he's never argued it to the district court and there is no certificate of appeal ability on that question and he's never advanced a federal claim based on a lack of an evidentiary hearing he cites no case let alone a supreme court case that he has a federal constitutional right to a hearing particularly under these circumstances where there's no clearly established law that a court must grant a hearing based on an inadequate and self contradictory proffer that the petitioner most openly mischaracterized courts have rejected arguments where petition evidentiary hearing and the district court below granted one and then granted the petition but this court reversed saying that the district court had violated calm versus pain holster and granting an evidentiary hearing and regardless the state courts denial of his a request for a hearing in the way you just said were raised during his he he did not ask for a hearing on state director view as he is required to pursuant to michigan law he had another ineffective assistance of counsel claim pertaining to things that he wanted his lawyer to ask of the prosecution witnesses that's a different claim than what is the issue here so that is one thing i wanted to correct from mr fitz reply is he did not ask for an evidentiary hearing pursuant to state law because he didn't even ask for one on this claim until his collateral proceedings and he's actually fortunate that the state court did not enforce his default there and the his proffer his collateral enough of a proffer to even warrant the district for granting him here in as i think some of your question suggested his proffer in his state court briefing didn't even say what he's told his attorney regarding the witnesses as evidence by the fact that he got affidavit from oviedo he could have gotten an affidavit from this dawkins he did not he could have submitted his own affidavit saying what he told his attorney what the witnesses told him he did not he could have tried to get an affidavit from his attorney he did not and he openly mischaracterized oviedo as affidavit to the state court and and he also presented no evidence other than his own speculation regarding what his attorney did or did not do and under those circumstances it was certainly not unreasonable for the state court not to think a hearing was warranted and on the topic of the hearing and one other correction to make is he certain his reply that pin holster does not preclude a hearing court in that case the state court had denied an evidentiary hearing on an ineffectiveness claim it was a failure to investigate claim the district court found the state courts denial of a hearing on reasonable and granted a federal hearing and then granted his petition but this court reversed and said the district court violated can holster and of of no this court said quote while allowing a petitioner to supplement and otherwise sparse trial court record may be appealing especially where he diligently sought to do so in state court the plain language of pinhole certain harrington precludes it so he is precluded from having even here even if what the district court is considered to have done is procedural to call it's if where there's a m default which we would argue it was a yes and i believe my time is up but if the court has other questions thank you thank  first step under twenty two fifty four do you want the question as to whether the state court's decision is on a reasonable that's when collin applies if this court finds that it was unreasonable for the state court to hold that mr conduct a dean over review and or dean over review this court is free to instruct a district court to grant an evidentiary hearing because twenty two fifty four d one no longer applies color and only applies when we're in twenty to fifty four  relief based on his allegations or it may order a hearing i just want to be clear that this court absolutely has the ability to grant an evidentiary hearing to mr fitz cullen does not apply if you're not in twenty two fifty four d one and twenty two fifty forty two does not bar this court's review because mr fitch it was a procedure prisoner made allegations requested a hearing in state court and the issue is not as my colleague phrase that whether mr fitch has a constitutional right to a hearing that is not the question the question is on de novo review if he has alleged facts that if true would entitle him to relief the district court has the discretion to grant a hearing and as a person a prisoner who alleged facts that petition made allegations and said at the beginning of that section of his brief the defendant in this case had given trial counsel to exculpatory witness says and goes on to say at no time the trial counsel investigate these witnesses he requested an eviden hearing in state court to prove those allegations through no fault of his own he was not granted one and at a minimum on data over review this court should instruct the district court to grant him a hearing and make those factual findings an opportunity he has never been