presented an arguable claim in the first issue actually on actual innocence and second issue ineffective assistance of counsel for failing to investigate two witnesses and initially it should be noted that the trial court in  petition used the wrong standard and the court wrote a lengthy written order dismissing the petition and repeatedly referred to the defendant having not established elements of the claims as this court well aware on its case very clear on it the first stage the defendant isn't required to establish the claims it's whether or not he stated in our mobile basis of a claim such that it is not frivolous or pain without merit hodges is very clear on that hive's it's very clear that this is a mean beyond that there are you in the sense that this is not something that was before the court before and while the defendant exercise to get his due diligence in telling his counsel about some of these witnesses they weren't there was no nothing further done by counsel also i mean some of the witnesses that provided the seventy eight it's were people who work with the defendants not i think he's where there is an alibi and the defendant says later well these are newly discovered these are my alibi witnesses we would know if he were with mom and in this case so these witnesses say we were at the location where the shooting occurred and the defendant was there she wasn't the guy wasn't the shooter he wasn't there so i guess  this is the victim the surviving victim of the shooting the state didn't put this guy on a trial the defendant tried to have a favorable statement from him in advance of trial tried to call him the witness in the face of the state threatening talks about well the court offense there even if the defendant had exercised every amount of due diligence couldn't have forced them this defendant did exercise every possible ounce of due diligence in trying to present his testimony at trial in arguing to this under oath this is an  i'm solely responsible that could be interpreted multiple ways i guess here the surviving victim saying who has i guess no reason not to tell the truth and this is no different than what he said to the defense or at an evidentiary hearing presumably if the second stage appointed counsel would go out and clear up any indignities or questions about exactly what events actually what he was saying and the state would have an opportunity then to file a motion to d i says he was going to be with the girl and then i was also there later in the stairwell when the shooting happened and darren anderson wasn't the shooter counsel didn't investigate these witnesses they certainly weren't told the trial  phillips and there was in a particularly strong case the reasonable doubt was raised before this court on direct appeal and rejected but this court certainly didn't find it the evidence was overwhelming  you know there were problems with the evidence here are conflicting statements when this is a testify of him deals on exchange for testimony convicted felons witnesses were drunk witnesses who were high this is no physical evidence of that would be very credible obligation to go in and talk to these witnesses see what exactly happened see if they were talked to and when and what they would have said check their backgrounds you know whatever would weigh in on that but that's just not appropriate at the first stage what we merit and it's not based on fancy full factual allegations it's not been tested this isn't delusional it's it's very possible that these witnesses were there so what they say they saw i mean would testify that their epidemics certainly support that and for the jones analysis can also be applied here because you had a witness who in who we were not saying that they would have been available they were not available that that is clear w is your student putting the availability in question and you need to have a certainty of availability which is not what's coming through  in light of the fact that you have made statements from the left that is not necessarily we don't know what's based on his personal knowledge versus west based on someone else her like i'm not sure how it's pronounced where they had claims that were not directly raised or personally braze post trial motions and those were found to pass on to the post conviction these claims were directly raised in the post trial motion that counsel is in effect trial trials was ineffective for failing to investigate smith and johnson so there still needs to be an article basis your honor and this fall short because it all not pleasing to defining the party and placing him with a woman earlier in the night when you don't see that it's what he is or refuses to come forward w being be not as clear as the state would like it to be because he says it was based on personal knowledge and those who attended the party the state didn't have any problem with the kind of holes he testified that her  statements about what happened were based on personal personal knowledge and what others had told her that was testimony at trial this is no less clear than that this is testimony ineffective assistance of counsel and maybe as a possible in my argument i certainly meant probably i think it's very probable based on these affidavits that these witnesses would say what's in these affidavits which is darren wasn't the shooter he wasn't the