this is a case in which the arbitrariness an unreasonable this is a california court of appeal decision is sufficiently clear cut the petitioners entitled to relief under twenty two fifty four d the crux of this case is the petitioner had available an unusually strong and well supported alibi for the entire time period during which the allege of improper touching could have conceivably occurred under any of the version of the prosecution evidence and alibi like this is a defense attorney's dream but it was wholly over looked at the trial level because defense counsel individual and jointly were asleep at the the first court to which this alibi evidence was presented was the california court of appeal and its ruling reflects a particularly arbitrary handling of these of the evidence ask you the petitioners declaration does not say that he told counsel about this what later became is as appeal alibi the alibi with miss kirby about an alibi failed to assist in this sort of an obvious question somebody is on trial and he knows he wasn't there because he was with his girlfriend during that whole time period is the lawyer really expected to have a question that puts far too much responsibility on a client under the circumstances of this case if a person it's a crime occurs on a friday night and a person's arrested on a sunday the person can be presumed to tell as lawyer were you was the previous friday night the circumstances in this case are very different the crime according to the prosecution occurred on some indeterminate night during the month of may two thousand and three as a last march march so i don't say that i helped you because look at ms currie's declaration she says between february and april of two thousand and three there wasn't a night they weren't together so he didn't have to know which particular night that it was the night before the football sign up she's busy saying that whole time we're together and that's what her mother says to your honor if she were busy saying that the trial attorneys we wouldn't be  have known that if your client was actually with her every night that he knew that he was in that the campout he was with her and he knew that she could corroborate that you know you're refuting that to the to it to a young guy who was not working for a law firm one hundred  once his supporters after a trial said corbett he recognized the they were talking about saturday march fifteenth during the trial we know you couldn't have been committing this offense and might have said march fifteenth because we were all in of trial counsel who sat through the trial has to be imputed to the other attorney who did the motion for a new trial that's flagrant ineffective assistance of counsel for failure to present the actual alibi plus all the witnesses good morning your honor is he long and we have responded it please the court since his conviction in this case and how it is set forth approximately three different variations of an alibi defense each different variation covering more days than the previous iteration of the defense the evidence presented by appellate in these different theories of defense are not new evidence and defense counsel is not an effective for failing to investigate  and look into these defenses and the reason for that your honour's is as you mentioned his alibi was solely within his knowledge soon as the complaint was filed in this case it clearly stated that the alledged the alleged every single every night of that particular month that was the very first thing he should have told his attorney in order to present an offense on his behalf we believe that there was no deficient performance therefore under strickland and under  must make every presumption in favor of competent representation here by defense counsel and we believe that they fully look at the defense evidence that was available and that there was no deficiency speaking briefly about the prejudice even if we report that the evidence that in fact truck council was deficient here the evidence that was presented only covered alibis for the night of march fifteenth and march fourteenth specifically and those dates as you know were not likely the dates of the incident based on the evidence produced produced at trial that showed that kevin lee testified that the three kevin lee the victim and the appellant's were all together several nights before the actual pop warner sign up which was on march fifteenth furthermore the evidence in competing apology in this case is overwhelming the victim testified to that year later she came forward with the information that she credibly testified kevin lee put defendant and the victim and himself camping a couple nights before the pop warner registration and so we believe that on the alibi evidence is pretty strong to his alibi evidence goes i mean if it got in you have a by then former girlfriend you have a former girlfriend's mother who had worked for some time for the district attorney's office you  evidence of employment someplace other than with the victim's father you know if i heard that kind of evidence as a juror i'd be pretty impressed the issue that without your honor is that at trial  i mean even with it with that information forward the father's testimony we do have to look at it said that the relationship between how it and his girlfriend at the time actually took place and that we were living together in late two thousand and three evidence or the alibi evidence now being offered up with the something of the former girlfriend and the girlfriend's mother and the other employment which would you choose it would depend  no prejudice and my take on that is gee you know there's alibis pretty good so how can we be confident there wouldn't have been a different result or a reasonable possibility of a different result if that evidence had been submitted to the jury well we should go back to what issue is actually certified for appeal here which was ineffective assistance of counsel for the most for a new trial and since that was the only issue actually certified here if we look at it from that perspective the judge w understand your honor so we're putting some we're putting some fault on this year for not being proactive at the same time the record indicates council did nothing to to investigate to assist him to work with him so we have  setting penalties going through the trial he's convicted we have a chance to remedy a miscarriage of justice because as you point out this is a very strong alibi at the motion for new trial