likelihood of success on the appeal or a substantial case on the merits and in fact it was not just on such a finding but no such demonstration had been made for that reason this court should remain the case to judge chen with instructions to release on appropriate conditions were alternatively to reconsider the whole matter do novo under the proper legal standard if you if you look at order which entered the the stay which is very brief he says that it's based upon the prosecution's representation that it would retry the case if it loses the appeal and also upon the primarily the public interest factor which is the only one of the factors that cited retrying the case simply opens the door to consideration of whether or not the prosecution has a substantial case on the merits of a retrial but judge chen never addressed any of that in her decision if you look to the order that she entered a couple of days before which appears is reprinted in the report my reply memorandum at the last page judge chen at that point indicated that she would decide to stay motion based either upon a prosecution's representation that would retry mr garner or part a balancing of the factors so it appears that judge channel one considered the prosecution's decision to retry mr garner as itself constituting a factor and to fail to address engage in the requisite the the presumption of release controls i can't speak for judge chen but it seems to me that she kind of analogize this to a situation in which well he's going to be retried again i'm going to consider this the way the district court would consider somebody who was awaiting trial to look to the fact that he acknowledged this defendant ignalina he had been involved in a drug transaction he had a prior conviction she did not she indicated that she can see consider the public interest factor there is no mention which the prosecution in its memorandum to the court on this motion concedes was a drug they said it's fifty fifty and you want to consider that although mr garner was prior incarceration in two thousand and two clearly engaged in criminal activity even if there was a problem in proof which resulted in this  five years he's been incarcerated since two thousand and two he's due to be released either in september twenty twenty three or possibly april twenty twenty three based upon some critic occur and well under the state's speedy is a state's speedy trial statute it would start running a new they'd have six months to try him with any exclusions that might be headed for further discovery further further proceedings and there knew or should have known that his alibi was going to because he had the reform records that establish that he was calling the place making phone calls to the place that he was allegedly at the time of the murder right single eye with an eye witness who still available to testify crack no no no because he gets the hate the writ of habeas corpus not on that but on the fact that the phone records were actually exculpatory because read in conjunction with the nine one one calls they show the murder that the shooting occurred within a ten minute window the victim said that mr got out is he going to offer an alibi defense again yes but but this time yes he's going to say that i didn't do it do it i wasn't there and this time the phone records actually bear that out and that's what judge chen wrote she said that simply based upon the fact that his alibi was that he testified to was betrayed by the phone records wouldn't be enough what what what led her to grant the hey b s was that the phone records show that at the time that he supposedly was shooting the victim he was using his phone continuously making after the other victim testified he wasn't on the phone hadn't used his phone in twenty minutes that is what tipped it for judge chen and that distinguishes me and what mean apparently he was he found what made it apparent from the phone records that it was  using the phone the prosecution proceeded on the basis that he was using the phone victim testified he was using the phone before following well the victim was lying on the street with a police officer  few not that many minutes after the shooting a phone call came in from mr garner it rang up melissy which was his nickname mr garner spoke to the police officer and of course he didn't identify himself by name but they had a brief conversation mr gardner the the victim told the police officer the time that was from the man who shot me don't answer which was a rather strange thing to say if indeed he had had shot him and mr garner himself testified he made that call so he had the phone before he had the phone after and there's no indication that anybody else had the phone he was using that phone i think it's a fair in actual innocence actual innocence of the shooting yes actual innocence of the attempted murder he admits that he was setting up a drug transaction but yes the defense is actual innocence all right well here from the this really isn't we disagree within hours or so the case that was put forward and we obviously disagree with you know a sense that the judge chen put forward in her consideration of the his corpus petition however when she did issue this stage she said that she weighed it well of the o'brien factors except especially the public interest factor or what counsel is suggesting that rather than saying she weighed the factors in reaching a decision she has to go through all of them and write a learned treatise on why a stay should be granted in this particular case i would maintain that that's not required here having said that she's considered those call quite honestly we believe that the timing of phone calls doesn't really amount to much in this case what it does show is that they say there was a twenty minute gap in the phone calls father were driving from n county that is reflected in the phone records oh you never looked at the phone records correct that's the ineffective assistance claim that is the ineffective assistance claim however the phone cut both ways he may have was so known that those records would have shown that there was a gap and there i don't know what he knew from his client you know it was a strategic decision i or i would argue alternately that it was a decision that was made with knowledge of the circumstances of the case that actually is not very unlike the decision that was made in harrington v rector with the attorney decided not to  whether it would look like defendants story would have been tailored to meet the scientific evidence that was found well that's what one of the things that they say that that that makes no sense in our case and that's one of the things that judge chan said well that that's ridiculous i mean but it's very similar to what the supreme court said in rector's so i don't think it is that ridiculous considering that that's the double standard of  strickland i don't think you can carefully say that there is no rational basis for the decision of the state court in this matter that's the first part whether the correct standard is used the second part  simply that mr lemke was not you know effective both because we don't believe the record those phone records are as important to show as much as the defense claims and second of all the victim in this case was at mr gone or his wedding had gone over to his house to paint the fence and was shot by mr gone and lived to tell about it some of that's pretty strong evidence to  having to do with the necessity of holding a hearing before the district court which we again believe is contrary to supreme court holding so we think we have a very viable case on appeal we believe the judge chan indicated that she considered the factors willow she did not write about in detail we intend to proceed with the appeal in a timely manner we hope to win that appeal on if not we're prepared