used and the prosecutor conceded that if a bat had really been used the press could have said then probably he would have been legally justified in his conduct and brandishing the gun and therefore wouldn't be guilty and the prosecutor made fun of the fact that this is a disappearing bat if there's really a back where is it the defense attorney's last words in closing argument were the threats from mr perez on with the ba justifies what mr miller did while there was a significant amount of agreement that there was agreement that the so called victim had blocked mr miller from exiting his own home there was agreement that the gun had never been pointed directly at the alleged victim there was agreement that the alleged victim took the gun away from mr miller without a problem but there was great disagreement about whether or not this bat really existed or not now are you saying that the district attorney argued that that was an issue fact that they should resolve against the defendant yeah the district attorney said the defendant's a liar this is the only available story you could possibly come up with at the last moment to explain why you did this with  gun and so he's come up with this complete lie that there was a bath if there was a bat why didn't the police produce this back they didn't see it he called officer griffey in rebuttal to say i never saw any such fat he told he cross examine the defendant and said if there was a back how come you didn't mention it in your statement mr miller said well in my statement i didn't actually use the word back but i did say that mr perez on threatened to cave my face in our crush my head and i just didn't mention the implement that he did it with  that the explanation which the trial attorney eventually came up with that's why he didn't present this bag of evidence was that well actually i was going to but mr miller told me that you know what i lied and made up this whole back story and it's a lie and the trial attorney has sworn in an affidavit that he went over with mr miller i have an ethical obligation i can't present perjured testimony he claims that he got mr miller to assure him he would never mention a bat he said i'll never question you about a bat that will never happen you understand we can't do that but as the district court pointed out the trial attorney did the exact opposite of what he claims he was go do he did deliberately asked a series of questions about a bat specifically and he did deliberately argue to the jury in the end that it's because of what mr perez on and did with the bat that mr miller requirements for having an evidentiary hearing he cited the correct rule the correct rule which this court has i think i cited five or six cases where this court has reversed the district court for failure to hold an eviden hearing when these two criteria are met the allegations made by the habeas petition are if true entitle him to relief efforts go to our initially said these allegations if true do entitle him to relief he meets that and there been the second criteria there hasn't been an evidentiary hearing in state court where the state court has not found the relevant facts from an hour said initially that criteria is met therefore he gets an evidentiary hearing his claim is not palpably frivolous the district court noted that the trial attorneys explanation for his not presenting the bat was totally inconsistent with his actual behavior at trial and he initially said i'm going to grant that evidence  then he reversed himself on a motion for reconsideration and on reconsideration he said i have to defer to the state courts finding of that but the state court never made any findings of fact and i'm a little you know i i submit that apparently he believed that the conclusion that the strickland criterion the second stricken criterion of prejudice wasn't met was a finding of fact and that somehow he had overlooked at the first time and now he just missed here i cited a few cases like williams versus taylor where the united states supreme court in this back type of situation said yes the virginia supreme court found that while there was deficient between a police officer and a defendant and the state court judge said i believe the police officer he said beyond reasonable doubt i don't believe the defendant the defendant is lying what evidence would have been presented to the judge who never know i think that this adventure thing one distinct possibility is that the trial attorney will claim the fifth amendment privilege and refused to answer any questions because because there's such a strong inference that he's committed perjury in federal court and if he  i thought about the kinds of things he could say in some respects the smartest thing he could say is you know what i got confused i confused mr miller's case with somebody else's case it was the somebody else he told me they made up the story wasn't mr miller and you're right and i getting to the hearing at this point would you get into the hearing yeah at this point i mean i think i mean i still have not i'm saying well that's the question has to have been fingerprinted and do we know that it made any difference in the trial the prosecutors that if there really was about this really happened then he would have the defense of self defense and so the prosecutor said it wasn't all bad so he wouldn't say we know he's lying there's no bat they could have believed mr miller and we only need to show a reasonable probability that they might have believed mr miller they might believe miss oxford or a reasonable probability that they would have had a reasonable doubt  judge said the first time he ruled thank  jury would have viewed the case differently particularly it might have the prosecutors argument that's not a factual finding incident i believe it is your honor the court of appeals makes factual findings all the time that's why this court entered its decision and williams versus rose conclusion as to whether that results in prejudice that's correct or are in the court asked me specifically for my best case i refer the court to this court's holding in lambert versus logic and where i was going to begin my analysis i think this would save the court's decision making as well not the state court decision in his case or objected leon reasonable unless he can do that he's not entitled to a federal court of hearing in this particular case i would expect to submit that the court of appeals did make determination that he was not prejudiced the court of appeals determines assuming again assuming argue wendel that even if counsel had admitted that that into evidence this wouldn't change the fact the thing or prints or something of that make those are facts they alleged to be holding that he was not prejudiced as a result make is that this notion that a determination that it wouldn't change the outcome is a finding of fact is the sort that is not a historical finding that's not historical fact that's not he was on the street he wasn't on the street it was dark it was that how many officers were there how many officers who had an opportunity to see this gun how many officers were say they saw the guy say anything about it those are underlying things but the united states supreme court s one of those two criteria which here would be unreasonable application of the u s supreme court law first you would have to know what the facts are you can't this time whether it's an unreasonable application of strickland when you don't know what the facts are appeals determination the state court of appeals determination that you don't need prejudice is not an unreasonable application so that's the correct e p a test but you can only do that if you know what the facts are and nobody is willing to give him an