that the california supreme court did not unreasonably determine the facts without first holding an evidentiary hearing a district court order and of an attorney hearing where twenty two for twenty two fifty four deal satisfied this is one a case and the california supreme court supported by twelve declarations and documentary evidence developing his claims the california supreme court issued a summary denial without ordering eventual hearing and giving the petitioner an opportunity to further develop those claims none of the petitioners allegations were incredible and none of them were fundamentally refuted by the still court record this was an error for the state court to someone somewhere will deny the petition and was an unreasonable determination of facts under twenty two fifty four d two now in district the magistrate only assessed the case under twenty t expanded record and district court of trial counsel's declaration specifically prohibits a district court from finding a twenty to fifty four d argument based on evidence  hearing to resolve his i see claims on the record was unreasonable or are you asking us to determine whether the court's conclusion that percy out of those ineffective assistance of counsel claims built on the unreasonable determination of fact under twenty two fifty forty two and what was the unreasonable determination of fact you are sorry the state court has an obligation talked to the jurors there for the first trial and they didn't believe the other three witnesses so he's better off without them that is trial counsel disputed declaration because petitioner was never well i would i would go back to run that the magistrate actually used to say that petitioner had cleared twenty four d one ring in richter supports the argument that the east court made a recent unreasonable determination of just some early tonight because that's what you're saying yes because normally then reasonable determination of fact is finding that actual problem in the fact that the supreme court reviewed that was not accurate was not true and they relied on what in the back finding process and i'm trying to  open and trying to understand your argument here because i know this is novel seems like a novel approach when i do have language from rector itself when a state court shoes a summary of the district court must determine what arguments or theories could have supported the state court's decision and then it must consider either incredibly affirmatively refuted by the record and that's the issue here is neither one of those instances occur so we had reliable factual allegations that really evidence contesting that fact so why would it have been unreasonable why is that a basis that you claim that it was unreasonable for the state court on this record along to have decided t counsel a reasonable investigation that he would have turned up mr geller who was on the scene at the time of the shooting when he talked to the other witnesses who were also on the to the scene at the time i would hear how it would tell us how he would have found it was the trail that would lead up to it because he's claiming he  but that declaration was not before the state supreme court and i'd like to keep those separate because that's a that's a fair point but then the question is having nothing before the california court allegations that failure to investigate the failure to call witnesses i can see how they could deny on the face of the petition the failure to accept a guilty plea because jury so but how about the other point let me push back on that because it didn't have the truck out this declaration that came obviously later in federal court but it did have a declaration from the witnesses and it had the trial court record for both trials both the hung jury and the second case and the second trial when he was convicted so let me walk through that explorations and explain why the record before the state supreme court was sufficient to resolve the claims so we have declarations first from the witnesses that did testify and those were before the state supreme court i just want to make that clear we have a declaration from you a lopez and his accusation he says that he saw addition or driving this truck away from the scene of the crime shortly before the shooting however on cross examination if we look at the record from the first trial he admitted that it was possible for petitioner to come back to the shooting so as for each of these witnesses they simply did not perform well on the stand and they were successfully cross examined as far as margot's all is in his declaration he says something that the california court could determine from the face of the trial transcript from the declarations that were provided and from the for if they if the driving away in this truck if we look at the trial court record he was cross examined and he admitted that actually it was possible for him for petitioner to just turn around and drive back to the see other crime from our going solace and the declaration he says  petition and i left shortly before the shooting if we look at the trial transcript and if we assume that the states are supreme court reviews reviewed everything it actually on a cross examination he admitted that petitioner was still there when he had left when mr gonzales had left and finally for the last witness for the last witness at trial arash aga we don't have a declaration so we don't know whether he was willing to testify but even names to counsel so obviously counsel here is presumed to be competent and he's only required to conduct a reasonable investigation so there's no reason or there's no way for a truck council to have found mr again as far the other witnesses the other three witnesses that were not called in either trial there's evidence on the record again before the state supreme court that these witnesses were actually contacted and spoken with mr prescott which is petitioners brother he was call in the first trial and we know obviously that edition or that trial counsel had called the called hour at least spoke to both of them and put them on the call they were never called and mr pena nor his declaration is and declarations both talk about this being a gang shooting and they lose the fact that this was a gang should but there is simply no evidence in this case that gangs were involved the police reports never talked about gangs it was in charge  truck council made the reasonable tactical decision not to call these witnesses as far as the plea offer i couldn't speak to that a little bit before the first trial petitioner was offered eighteen years and he rejected that went novo and actually considers truck councils declaration this case becomes even easier because that declaration really core operates everything that the state court record really shows in this case which pass should we take of we believe twenty four fifty four it should defer to the state court's decision because we do have a summary denial that this court should defer to but we're in a weird situation that the where we have a trial counsel's declaration with which is even i think more helpful for the yes your honor i would just like to start by saying that there should be no deference to the state court summary denial and the reason for that is when a education is made on an incomplete record deference is not afford and that's what happened in this case is the state court had an incomplete record because they did not allow the petitioner to develop his claims and he has a twenty to fifty four day to threshold thank you thank you thank