one picture on there that's the only thing that's worrying me is mr aram's here ninety eight the evidence that was never presented to the jury includes not only a weekend change which the district court characterized as casting doubt on the prosecution's most critical he's the didn't but also from a proof course it doesn't matter whether it's did noble review or not what matters is you know are you asking for the same thing and we've got all kind of case law that says if all you're doing is asking for the same thing i should nearest after a summary of them dismissed out of hand by a summary st theory of law by the lower courts where day the lower courts have and again you're not found by the lower courts review those alibi not allow mr adams to get his claims heard on the merits at this stage and either granted or deny if he does not get a shot if he gets relief all we're asking for is a hearing so that the schlub in crete can get a fair shake in the l that it's never been presented the jury even though it was a fail at the time of trial which speaks to the credibility and reliability and truthfulness of that evidence if it weren't for trial counsel that evidence would have made it to the jury and we ineffective assistance of counsel and you're really arguing about that what is my standard or a view in this particular situation is that if from your brief that's right on at the end and what's the standard or a view isn't the standard or a view given what happened on a pretty deal here i have to find were there any arguments or theories that could have supported the california supreme court's decision and i have to also say is there any room for a fair minded jurist to disagree with what the california supreme court decision you aren't those the main decisions i have to decide in other words it leaves me why i don't but i'm going to go find arguments of berries which would support this decision and i have to say there is not so it seems to me that the main issue on the i a c claim has to do with prejudice ok and one of the problems that i have with the district court's decision i guess it was the ministry judges are in are is that it seems to requires a determination of least at the threshold level of whether there's a substantial likelihood that it might affect the outcome of the case which seems to me to be a different question than the district court conflated those two and so does everybody else seem to in their briefs so am i now with respect to prejudice and analysis and your strict latins were arguing that this court ought to take a look at that issue to know because of how the state courts handled it and frankly the state fail to take into account substantial evidence in this case pointing to mr evans his innocence or at least the lack of much evidence at all pointing to his guilt and i think under the i see that the counsel failed to exclude marv's identification your honor under i see that and i see that before you now is limited to failure to object  on cross examination martin's confirmation martens and mention that he was a victim of confirmation bias martin says on the record and i think it's our team page four hundred  and twenty five where he says that my recollection of what happened at the shooting at nine hundred and ninety two is more clear today in one thousand nine hundred and five than it was two and a half years ago back in eighty two and that's clear evidence of confirmation bias and that's because of all the suggested by the suggestion procedures that went into place before that but then somehow trial counsel rehabilitate martin and get him to say well my my review unit they currently have in l a county if it's not you should you don't even have to answer your honor i was going to ask you one question because the thing that worries me about this i see graham on human love them had a different description the mark did of a have a and given that the jury because they put martin in front of me it was different had to reconcile  a martin's testimony was important your honor and if there's no further right answer to that the rate answer that question is peterson would have been without merton it's a single finger case and you have one the single finger you've got issues about him that good morning your honor is ma'am please the court i'm deputy attorney general can marrons appearing on behalf of the state with regard to petitioner has a bigger problem because he must file he must seek relief in a nd or successive petition before he can even get to shop to the extent he seeks to raise new claims or to broaden existing claims he he has to request that from the court down but i mean but it's the reason you have the hearing is because you've offered new evidence new evidence to overcome a timeliness bar and that if you want to then raise a new claim in to include that evidence that's a new claim where i think i think i understand that i mean that if you wanted to make a separate claim based on the recantation then that would be a new claim but i but i my sense of what's being asked here is that that's one of the items of evidence that's being that was offered as a basis to get through the it was offered as to the two claims that were raised and mr evans is motion to amend only right yes and that those two claims had nothing to do with the identification  a nd or successive petition challenging just the bond he's already challenge martin's identification so he would have to raise a claim challenging the vons identification that would be a new claim or he could request  not the not the one that's argued and the the sixty b motion yes well what was the ball strategic reason or other reason is there for the lawyer not to have moved to suppress martin's identification the there were really only two witnesses martin love on vons identification was very strong he was fearful for his safety so martin would be the only way for counsel to try to challenge  identification and martin was confused he emailed there's you're saying that there was no basis to attack love vans identification unless by showing some inconsistency with martin's you're really saying that yes i that i mean certainly he could challenge lavonne directly but in terms of us having another well of course he could but that because there was testimony that that the detectives pointed out evans as pictured to him in the st photo spreads saying look at the face on this guy is that the person he said there's a basis to attack if there are these then he's offered benefits expresses doubts about the id and then and then he's shown the same guys photo twice so there's plenty of bases that at vons identification on its own martin initially thought that lavonne was the shooter and he was confused he assumed that the direction of the ball at some point they were they were coming from a bond's car so he made the assumption that l he there were discrepancies in the description that's the same thing yes yes you know i i don't know of any other possible reason but the standard there is whether there is any reasonable argument to support the state court's decision that's why i'm asking this question plausible reasonable you know tomato d tomato and under strickland the the deferential standard is doubly deferential so not only does he have to meet the strickland standard but he also has to meet that standard articulated and richter and pen holster where this court must find error beyond any possibility for a fair minded disagreement and he can't meet that standard here because  even if even if mark martin st of all let me backtrack martin identified petitioner on three different occasions the st one was a photographic lineup he was shown thirty six different photographs there were sixty six packs the only photograph that he identified was the same photograph that lavonne identified it was the it was these six lined up it was lined up number after he said he was seventy five percent he filled out an identification card and it's only been about the photos yes the photos that looks a lot like the guy that i saw near the casual cashier's window on the night the shooting happened i did not see him with a gun but i saw him near the black and red car you know the cashier just went i'm about seventy five percent sure that the guy in photo number three on card off is the guy that i saw that night out of thirty six photos and if this court has had a chance to review the photographs some of them are very similar and not card f there are three individuals wearing beanies i believe petitioners on position number three the individual on position number two looks very similar so out of thirty six photographs he picked the one that happen to be really talks about the vagaries of my witness identification them how those are well known and the how of the annals of criminal law are rife with instances of mistaken identification identification doesn't need will within the range of what he should challenge because it is not in the wide range of professionals to not to challenge well the wade decision also said that it would permit the judicial system to continue to after he identified the testers photograph out of the thirty seconds so they're under the totality of the circumstances there is some end of reliability because nobody made any  suggestion the police didn't try to persuade him to select that one photograph they didn't tell him that the tester was at the scene he made out identification on his own well thing that worries me about this is because in my view we're looking at this record of vons description of evan was not very accurate and so the absence of martin's mooney it seems would have a reasonable probability of having a your yes the transcript where love on makes the identification is very clear when he viewed petitioner's photograph well let me backtrack he started out by expressing how afraid he was to testify which which gives him some credibility that transcript has eighty pages twenty eight pages about transcripts consist of his statements of fear about gang retaliation before he even made the identification he said the retaliate someone's always watching me he told the detective i want to hope you know what i've got to go home to and where i'm living now there is no defense he stated over and over i'm really afraid he had seen others other killings since that since the gas station shooting he said that several gang members came to visit him since the gas station shooting and he stated you couldn't pay them to come and see me before the events said that he didn't want to go to court so he was extremely reluctant to even make an identification when he viewed petitioner's card in the th lineup he said oh that's him right there that's him exclamation point this is him this is him that's the guy with the eight k card this is the guy right here and then he said this guy had a little mark or something by his eye and that that's him he looks right at me and shot me or shot at me so that's very persuasive that's a spontaneous statement where he became very excited he repeated it several times this is the guy and that was an unequivocal identification of petition our if he later made errors and his description about what petitioner might have been wearing he was being shot at he took cover under a car he was he described petitioner's face he noticed that there was a mark by his right  then there must be a clear rule so there's no clear rule precluding lineups including that can have two individuals two photographs of the defendant aside the state court wasn't found to apply that rule  but even so there were two photographs the st one was in the st line up and there was no i don't and neither of the witnesses identified but titian or conclusively from the st photograph they had identified him from the last one in the th lineup where he was wearing a beanie there's no rule that says that detectives can't show witnesses multiple line up so that they can't you know they can't show have multiple identifications so what's relevant here is a rule that the state court was bound to apply there is no other relevance of the court opinion on placed in a highly conspicuous position because he was the only one wearing a leather jacket and the witnesses had described the suspect as wearing a leather jacket at the time of the crime he was the only one wearing a leather jacket and he was six inches taller than the other two suspects when the witness couldn't identify him from that the witness was placed one on one with the defendant in that case in a room and they actually spoke and then there was then another lineup  where the witness identified the defendant that's not this case there were thirty six dollars photographs here so and then the live lineup included at least three that we know of lineups to speak with mr foster after seeing him in the lineup so that's why the one on one confrontation took place in contrast to that this mr evans was depicted twice in the same day out of the thirty six pictures he was the only person  seventy five percent sure of that and then says because i police actually tell martin the person you thought came closest was actually at the shooting so any any identification there after the in court identifications that came after that point are completely unreliable that didn't happen in foster the best that foster the worst that foster had was in effect police in effect telling the witness that the suspect was the person here police actually said it outright and so many words that the person that martin had identified was actually there on the day the nd thing that i'm quiet to rebut is the fact that no one no one suggested anything to martin i think that our previous make it very clear again that the only person shown twice and it's very it's very noteworthy that the st time martin picked out no one in the six pack without any suggestion he picked out no one not evid