extremely wrong with the police procedure desiccation wasn't taking down the street doesn't exist and mona we have looked high and low for any possible individual with that name in that area and sure it a number of years later but i think it evidence sherry fearing would be entitled to question the police procedure that evening and the following morning what it was they had in mind there's speculation as to why he was released i just feel that i it's an unfair burden to put upon us at this point to prove what this person would have said in order to entitlement to an evidentiary hearing lot of times when a person has been in prison and they have an opportunity for has been standing think they've done something incredible that might be helpful to the judge especially given the fact that one of the priors that think  might have happened i mean if you it's a quite saying that we need to show prejudice by him not being there that's a different matter i think he had a right to be there and if you want there  prejudice is unfathomable hassle mr patches but we don't know what would have happened i know that he would be missing one leg prior and the judge we've only had to strike one and as i said if he didn't have a good prisoner hearing in this case be futile but not entitle to an evidentiary hearing fisher failed to present the factual basis of his claim in state court there was never any showing made in state court that trial counsel for failed to locate or interview harlow stand of all now it is true that here in this proceeding counsel's counsel for petitioner has put forth a declaration make very big in the record the reason that he did not order the presence of the petitioner is because the action that he took venice fitted the petitioner in the greatest extent that any action in that proceeding determination whether to impose or to strike the one year prior prison term and hand so you told me that the judge did not have the discretion to reduce the sentence under the three strikes law that is what i'm telling you your honor that is correct  word of the field remanded for multiple reasons one was to find out whether or not the people wanted to retry the strike allegation perceiving regarding the truth of prior conviction allegations anyone ever read trial not a retrial of the bank robbery itself your honor of course a retrial of the hearing on the prior conviction allegations twenty five year to life sentence that's correct your honor which which bolsters the court of appeals conclusion that it's not necessary to remain and for the purposes of imposed that one year and that was that was that was removed that was removed and pendants rights would have under those circumstances been violated the one year prior prison term announcement there's certainly no point in bringing the defendant into the courtroom to do that exact same thing when otherwise this of i thought well just person can have justice without having your honor justice occurs at a sensing hearing it occurs through an appeal in occurs through reading and proceedings if it occurs through all of the things that the law in braces and finds are violent civil war not of a defendant due process rights federal constitutional rights in the instance case there certainly is justice the one year prior prison term that was stated improperly under california law was stricken to the defendant's benefit whether he was present or not