claim of ineffective assistance of counsel on the rd party culpability issue and then if you no time permitting address the two interrelated fingerprint claims but if the court would like to go out of order please feel free to interrupt me as the court is aware of a cart of alaska's was found in hiding in a trash can with a gun that was a different caliber than the gun used in the shooting he told police when questioned that he purchased paid in the robberies he was the driver of the jeep that was his relatives car when the shooting occurred and that he was not the shooter he told trial counsel the same thing mere months later more than a year before trial and yet trial counsel inexplicably refused and failed to investigate the identity of the shooter which mr velazquez provided to counsel and if you had done so he would have discovered this evidence that the shooter had confessed to the shooting prior to his death and we know what do we know that he failed to investigate or do we know just what the file seems to perhaps indicate on the basis of even a lack of a declaration concerning with the file doesn't contain we we do not know with certainty your honor there is no declaration from trial counsel we what we do know is that mr velazquez has submitted a declaration which you know in the state court is to be taken as true at the stage where he says the trial counsel told him there was nothing to be done so this is not a silent record we're not you know but that doesn't mean that nothing was done the other evidence that nothing was done is that there was a failure to brought by the hague yes lawyer who had the file which indicates there was nothing in the file and the fact that these three witnesses were easily identified as the district court found by the heaviest investigator they were never contacted they were never interviewed by defense counsel which is strong evidence that nothing was done or that not enough was done in this case and as the district court found you know that could constitute deficient performance and i think that's the reasonable conclusion on these could you address the asked because there is a point that i want to make which isn't in the briefing and i apologize for that which is that even if the jury would have convicted him as an aider and abettor and i obviously dispute that they would have he got a twenty year consecutive sentencing hants meant for personal discharge of a firearm and so even if you were convicted as an aider and abettor but the jury thought that he was not the shooter which it would have thought if counsel performed effectively he would not have received that twenty year enhanced mint which is a big correct your honor so he could still be convicted of the offense but that enhancement which is the twenty year and handsome it requires the jury to find that he personally use the firearm so if the jury had a question about that they don't find that fact true and he doesn't receive that twenty year enha i mean i think if you look at the judgment and commitment order it's there's no question that and if you look at the verdict forms as well the jury found that true it's california penal code section twelve thousand and twenty two point five three jurors all the time look past what appeared to be sort of after the fact nobody gets hurt affidavits the the others the other person who might have been the shooter is dead so nobody gets hurt by them saying he was the shooter how do we know or how come at what level of confidence do we have the jury would have been influenced by these three declarations i think that's a very good question and if there were no evidence already on the record that he wasn't the shooter i would say maybe the jury is not inclined to look at this with any you know give this any weight but that's not the case here you know he's maintained from the time he was questioned that he wasn't the shooter he's found with a different gun than the one used in the shooting the only evidence you know pointing to him and as the shooter is this eyewitness identification which is really problematic in a lot of ways you know both the circumstances of the initial viewing where this panicked police officer is executed and you turn it claims that he's you know looking at the shooter the whole time and the fact that he sees him handcuffed being led from the police car into the police station prior to identifying him so that's the only evidence that he's the shooter and then there's this other evidence in addition to the three new witnesses you know he's found with a different gun and he maintains the whole time that he was the driver of a car that was his family's car so i think you know this is already a case where there is evidence on both sides and having this additional evidence which identifies the shooter would have been really critical to the jury and especially looking at it we only have to show a reasonable likelihood of a different outcome that's one juror having reasonable doubt i think we satisfied that standard where you are you have to show the state was on reasonable and thinking that there wouldn't have been a reasonable likelihood of a different outcome  additional deference from that that's correct and i think on these facts with the question being as close as it was with the new evidence to the to the extent that the state court found that there was no reasonable likelihood of a different result with these three witnesses coming forward with consistent accounts corroborated by other evidence in the case that is an unreasonable application of clearly established federal law and the court before these three declarations state other side and then you've got some time ok record was incredibly sparse as to what trial counsel actually did in his investigation there was no evidence presented to the state court from trial counsel's file from trial counsel and self establishing what investigation was or was not done it was pretty clear he didn't find these three to clarence it's clear he didn't call these three to clarence well it's pretty clear he didn't present it in from any competent lawyer if he had found them  would have presented these documents i would agree he didn't present them i would not agree that any competent lawyer would have presented these three witnesses on these facts given that we don't know much about these three witnesses know from the attorney and why you think it was a reasonable or might have been a reasonable thing for the attorney to have done would interfere as we know we know for sure is that these declarations were never presented at trial and it seems to me we can make a pretty clear inference that the lawyer did not have them in his possession tell me more about what we know about this about his lawyer we don't know what this attorney did we have two sentences from mr vaska as in his own declaration that's the extent and why do we know why we don't know more was this attorney did to me and what have we have a record is completely unknown about that point and that gets to the absence of evidence and it was velocity is his burden to make that evidentiary showing in the state court to marshal evidence detailing what he did deemed was council's failure to investigate judge progress and pointed out that doesn't mean anything wasn't done and it also doesn't say this was our only conversation about this issue it doesn't say counsel categorically said i'm not doing anything ever under any circumstance but what what what sort of evidence do you think it would have been sufficient for him to show that the lawyer had not investigated the issue st of all we know that the status council had the trial counsel's file so we could have seen what was in the file maybe there was a note in there saying not pursuing fernandez angle or something along those lines or a declaration from trial counsel himself saying yeah he told me about fernandez but i didn't want to go down that road or i mean those are the types of evidence you're showing is where we have affirmative evidence of counsel's investigation that's sorely lacking here and a fair minded jurist could agree with the state court that on this record that's speculation and it's insufficient overcome strickland's presumption of competence well we know this lawyer seems to have dropped the ball in every possible opportunity don't we i mean this is sort of an alibi case were you driving or not driving it's not rocket science and you know the fact that the file is so thin doesn't that tell us really everything that we need to know it's consistent  with the way this lawyer seemed behaved all the way through your i would disagree that we don't know the files then because we don't know what the file is it was not presented to the state court it was not weak evidence of two senses from velasquez while not presenting trial counsel's file and draw a reasonable inference that trial counsel's file probably would undermine velazquez his client because if it supported his claim why wouldn't they be as counsel put that in the state court record can i ask a question about brady how does that speak to that issue that's been raised yes you honor the brady claim fails because it's speculative there's no evidence that exculpatory fingerprint testing exists and as this goes in the record somewhat inconsistent in that regard aren't there statements about testing being done and reports cards is it that black and white it's a fair minded jurist could readily read it as being black and white there is there are fingerprint cards that are undisputedly in the police departments possession but the cards are taking the fingerprints of putting them on the cards is a much different thing than actually testing them and officer kaufman a trial specifically testified that had the cards met sufficiency criteria and he would have submitted them for testing but he didn't recall that that there was criteria were satisfied and he didn't recall submitting them for testing what were those criteria it was not described in the record the inference is of the quality of the fingerprints such that they could be accurately tested when he says he doesn't recall you know that's that's always a confusing word because it can mean two things well it's it's true it's not a definitive statement that they weren't tested but a fair minded jurors looking at the record could say they could infer that that means they weren't tested and then there's also the discovery communications from the prosecutor where the prosecutor expressly says there's no testing there we don't have any lab results we don't have any test results that's consistent with the officers testimony and the kurds i think were made available to the defense that that's correct and the defense could have tested them the defense could have tested them and the officer was like one more one more suggestion of in on the part of the lawyer well i would say a fair minded jurist would look at it differently and say that's consistent with the cards not being of sufficient testing quality that defends the presumption is counsel did the thing rather than the neglectful thing so that others had if we know that fingerprinting is imprecise we also know that when the issue is whether or not there my fingerprints or somebody else's fingerprints of actual fingerprint will very often exclude the possibility that they're mine so even if the quality of prints is very bad they could prove it prove very useful to this defendant if the printer prints are on the roof on the side of the car from which the shooter was and so on and none of the fingerprints or his a partial fingerprint will very often exclude so even if they're not a very good quality my guess is that they would have shown that well they would have to be of a quality to a link to some person so that they could be excluded well not necessarily linked to some person that is to say here i am the defendant i was driving i say fernandez got up he went through the sun roof stood up and shot and their fingerprints right around the sun roof on the roof they're not mine but that would be very helpful to the defendant if exclude it's possible but there's no evidence that that's the case here and there's no evidence that counsel didn't pursue and of those fingerprint cards still exist you know it appears that they're still what the police department based on the incompetence he's shown speculation and he has withheld evidence from for my purposes i'm not sure you need to show much more than that of alaska's as for amanda's did it the declarations of the friends and relatives of fernandez three of them say he repeatedly bragged that he did this those were easily found the defense did not present them for which i think we may infer w great confidence that he didn't have i'm not sure i need a lot more to show him albums well i think a fair minded jurors would require more but i'm almost out of time but if i can make two points thank you your honor the st is we don't know that these witnesses were easily find a bull contemporaneous with trial counsel we know hate his counsel found them several years later but he views counsel did not show the lack of candor in not telling us how he we found them and why is not a lack of candor because the how we found them is critical to assessing whether trial counsel at the time of trial reasonably should have found them we can't compare one dollar and two dollars of them one of them at least was a relative hard with that person had been defined living twenty miles away well there's two components to that why would reasonable counsel think that fernandez is running his mouth confessing to a crime that that's searching for it's not just somebody who shoots at a police officer doesn't automatically start telling his friends so why would a reasonable counsel started randomly interviewing friends and families in the hope of that this individual confessed when someone's dead you don't have a lot of options so you try to find out are there photographs of this guy with the gun are there other people that know where he was that might know something about him or his attitude i mean that seems like just sort of basic investigative work want to want well and that gets back to the lack of evidence of what trial counsel did we don't know the trial counsel didn't do that because we don't have anything from the file we don't have affirmative evidence to overcome what he said we know what he said in without context without detail and without reasonably available contemporaneous documentary evidence ok i'll try to be brief i have a lot that i want to say about a limited listen we took your adversary over time you'll get a chance to say everything you need to say ok thank you first i'd like to address counsel's point about the lack of a declaration from trial counsel and and i hear this all the time as a havey as lawyer and as i'm sure the court is aware trial counsel do not want to cooperate with a b s lawyers to to suggest that i hate this lawyer can always go and get a declaration trial counsel completely ignores reality the allegations if true entitle him to really if therefore if more is needed we need the court subpoena power and we need an evidentiary hearing because trial counsel do not cooperate with us  i was not the hippest lawyer below i don't know that to be the true in this case but just as a general matter to suggest that the absence of a declaration from trial counsel is fatal to an i c claim just cannot be true in this court should reject that suggestion with respect to whether trial counsel contacted these witnesses how he found them you know it's not actually a mystery these witnesses all three of them said no one from the defense team contacted them that that's in the record you know it's not it's family and that's what he did and that's how these people were located and as your honor suggested and as the district court found these these witnesses were not difficult to find a trial counsel just dropped the ball he believed there was nothing to be done and he did nothing  there's nothing from trial counsel's file which should not be a surprise if there was no investigation you know maybe there is a note that says failed to decided not to pursue it on fernandez's angle but probably not and in these failed to investigate case it would be surprised actually if you'd have been you're putting your own of our oh i have decided i'm not going to do an investigation i would be surprised as well if there's a lack of investigation is going to be a lack of documentary evidence and this is not sort of a hide the ball thing where we're not trying to suggest that there is something in the trial file that is not presented to the court if it were there it would have been presented i want to touch briefly upon the brady and i see claims because i just you know there's something really unfair about counsel suggesting that this is a speculative claim when the state refuses to grant counsel access to the fingerprint cards they exist we want them wasn't there a remedy to pursue that through dollars i mean at trial at trial defense counsel could have access them and although counsel suggest that maybe he did the officer testified that normally you know the defense counsel to make these requests and that one wasn't made in this case the defense counsel dropped the ball completely and but you said something about there was a request to get the courage there was a request from the police department to get the cards and the police department refused to run with it made to the police department during the state yes your honor and the state and the police department says no we're not going to give them they say this is still a pending investigation because there are other suspects out there we will not disclose this evidence or the reports us to have these fingerprint cards but two was that when the request was made to the court and yes well it wasn't denied it was never ruled upon by the state court but so this this is not yet ready is a continuing obligation it is a continuing obligation i don't know how to get around the speculative nature of a brady claim if we don't have discovery and they won't turn it over you know there's substantial reason to believe that these fingerprints could be  y this is an innocence case and you know to suggest that we somehow should have obtained these somehow through no discovery and the stonewalling of the state is to me you know incredibly unfair innocence of being the shooter yes not money innocence grossed more you know it was convicted of ten counts of robbery anyway you're not appealing no we're not challenging that in this in this case and that's a thirteen year sentence for the robbery counts so if he's not this is not  claim the state's court's decision was an unreasonable determination of the facts because it was a flaw in the fact finding process under section two thousand two hundred and fifty four d two because the allegations were sufficient if proven true to entitle mr alaska's to relief and the state court you know made credibility determinations made factual findings without permitting factual development and its determination was there for a reasonable get there without granting entry that's correct so you're saying that's correct and i think the case that's most close to this one where the state court you know rejected the petitioners declaration about the ineffective assistance of his counsel made credibility determinations without holding a hearing and this court lead on the record as you know exist to graham for the rd party culpability claim this court can and should grant relief on the current record for it and so i don't think the court needs needs to reach the issue of whether there's a remind all of that if the court finds that the record does not justify relief at this point i'm asking for the court to find section twenty two d satisfy for the i c or brady claim and remain for further factual development ok thank you thank