where the court found a trial match your president alibi witnesses because their testimony would have actually to the defense's theory those cases are completely distinguishable if you look at people versus the loney of people versus jones that are cited in the brief and people versus below me the alibi witness testimony would place defendant at his grandmother's house at the time of the shooting whereas defendant statement that he relied on a trial was that he was driving a red lebaron at the time of offense and so those are two different locations those two versions do contradict each other and if people versus journalists the same thing the alibi witness testimony it was two brothers and their testimony would have placed defendant at their house with them and the affidavit places hemingway exactly where he says that he was in fact x her her parents house and trap a david provides a critical piece of evidence that i mean what i'm able to provide at trial did you substance of the claim and at the first stage of the petition the proceedings as people versus congress and recent supreme court case has said that the core should only look to the substance of virtue of the petition not procedural notarized and the concerns here are different everybody knew that if he still left her identity it was no the statement is signed she was a trial defense counsel was aware her defense counsel spoke to the judge about her everyone knew she was and they knew she was and counsel did not call her now my argument is that that's not to decision when defendant has no evidence to corroborate alibi she had testimony that would corroborate his alibi and there was nothing else so there's nothing on the record to indicate that this was a strategic decision you know counsel didn't say anything on the record to indicate that she would have been a bad witness or there were problems with her testimony or anything like that all we know is she was there and she with matt hall have been able to say that i'm hemingway did not leave until did not leave her parents house until eleven o three because that's the time where she received a text from her mother and then she came she left paris house to go home at eleven o three and she this hemingway at herrera's between ten twenty three and at least eleven ten twenty three and eleven o three so her testimony was critical but counsel did not call her and her testimony is i mean that the defendant's argument regarding her testimony is not but it anyway by the record in fact is supported by the record because she was listed as a defense witness so her claim  se client if something is not in the proper form it can easily be remedied at the second stage now the petition the affidavit itself has all the facts it has a signature it has no response but there is a defect and the case has said that technicalities like that don't go to the substance of the claims and so those are not proper basis to some airily dismiss a procedure client's petition based on a technicality that and shut case and if you look at the evidence that the jury asked to see a second time the two pieces of evidence that they asked see was the finance testimony and defendant statement so defend the statement was of importance to the jury and we don't know if the if the defendant say may have been corroborated by another witness's testimony how they would have tipped the scale in this case and the strength when all i mean what needs to show is that there is a reasonable probability of a different outcome here it doesn't have to show that it's likely that a different outcome would have occurred all you have to show is that this is a reasonable probability and the case i have to find that as it could be less than fifty percent and so here the first stage c where hemingway's just have to show that it's arguable that there's a reasonable probability of less than fifty percent that this could have affected that outcome we don't you that you made a arguable claim of ineffective assistance of counsel i'm sure the circumstances  granting we are presidential but to the extent that the supreme court's order indicates that this issue maybe before the supreme court again there are other issues in you know alan at the end of this decision  then that's that's worth knowing if this court decides to weigh in on the issue whereas the state would argue that it should rule in compliance with supreme court precedent and gardner the the affidavit to be considered other evidence supporting the allegations on not that i know your honor and i have looked at a lot of these cases and frankly there is a decision examples of what constitutes other evidence that would be permissible supporting evidence frankly i don't i'm not familiar with other cases that we construe that to find even if the sport were to somehow find a way of construing or looking at its considering steel statement it does not support sentence defense defendant told three different stories about what happened that day and when he testified he testified on both read in cross examination about what happened that morning he was asked many times on cross examination ok say it was in the morning that this happened defendant testified to it's also done a different from his first alibi that he gave to surgery brain where he said he was it williams did all sorts of other things it's also obviously contrary to his second and it was only after defendant exercised his right which is his right and can't be limited by counsel of course to testify so is soon as he made that decision that provided a fourth version of what happened that morning would have further undermine then it's already severely damaged credibility and it certainly would not have made a dent in the overwhelming evidence against the defendant i defended chose to rob this poor woman in the mcdonald's parking lot in broad daylight at lunchtime when a lot of people around you would identify by the victim's son who was working in the mcdonald's that day working the window and was very demonstrated how he gone and what he said during the events there were also witnesses who described activity by people before and after the events in the area that clearly the jury  bands just like the money from the mcdonald's deposit was bundled and it looted a hundred twenty three dollars in one dollar bills and pena testified that he was basically some of the evidence and not sure if it was in the testified and again it would have hurt them and certainly not help them if she had testified but even if somehow her testimony can be construed as being helpful it would have made a difference it's not arguable that counsel was ineffective it's not arguable that counsel conduct in not calling her was a very reasonable prejudicial and the record shows that it was a strategic decision there were other issues that were pending before the supreme court and allen while there was another issue that was pending before the appellate court and allen which will find that these issues that issue is not raise in the petition for leave to appeal to the supreme court  corroborated that he was at her rarest but she could have provided that missing weight the time frame and the time frame that she could have provided was the exact time frame during which the robbery was occurring so that makes her testimony even more critical in this situation and also on the state recounts you know all the evidence that was presented before the jury but we have to look at the jury here they were not overwhelmed they were not overwhelmed by this evidence they deliberated for hours and hours them in the i'm in a mist all this evidence but they were stuck with the fairness testimony and here defendant sesa money was uncorroborated i'm proud rated and we don't know had it been corroborated it would have given it enough weight to have made a difference to the jury and the situation in the jury already that his testimony was important and lastly i just want to remind the court that the threshold here is very low at the first stage of a post and diction petition the court has to look at the petition with the lenient i and even allow