file under my proposed seizure would be taken place in conjunction with the first stage seating because the the prejudiced prong of no look and whether or not the underlying is as just a matter of equity in fairness if his post conviction counsel deficient deficient performance is what prevented him from raising the issue that will allow  prejudice caused by the closing argument is a subsection of the prejudice that appellate counsel should have argued but it doesn't come to all of the problems caused by the improper opening statement prosecution has some evidence that someone identified mr smith is holding a gun in his right hand before the shooting so that's what they came to expect so they would have  my name is michelle graham all these stein i am an assistant state's attorney and i represent the people of the state of illinois the issue before this court today is what procedure did the legislature intend to provide when it enact it section one twenty two as this court has repeatedly recognized the intent of the legislature in an acting that section is very clear it was intended to limit the filing of success petitions because a section one twenty three dash three of the post conviction haring act demonstrates it was the legislature's intent that only one opportunity be generally provided for post to avail yourself of the rights under the post conviction hearing act this court determined that in very limited circumstances a fundamental fairness would require that a successive petition  entertained and it adopted the cause and prejudiced test as the analysis to be employed in determining whether a successive petition fell within those very limited circumstances so when the legislature and they acted section one twenty two one if it did two things it codified this court's crossing prejudice test but it also adopted a leave to file provision and that provision required that the cause and prejudice inquiry become a threshold in court so one twenty to one half provides that no successive petition may be filed without leave of court and the leave may be granted only if the success petitioner satisfies cause and prejudice section one twenty two one f specifically defines what is necessary to satisfy cause and residence the petitioner must identify an object a factor that impeded his ability to raise the claimant is an issue petition and he has to demonstrate that the claim that he now seeks to raise so infected his entire trial that his resulting conviction or sentence violates the pro of additional requirements defendants three stage piece meal satisfaction of cause and prejudice finds no support in the plain language of the act and it would wholly defeat the whole intent behind one twenty two one i have to limit the filing of these commissions the plain language of the act also defeats the suggestion that an arguable place a standard is the appropriate test by which to initially judge the success of petitioners attempt to comply with prejudice when this court rejected the same test as the appropriate test for successive claims of actual innocence it noted that section one twenty two one f makes no mention of the frivolous and patently without error standard and because the legislature was clearly aware of that standard when in the knackered one twenty two one hour that legislative silence had an implication they didn't intend and that's a legitimate thing for the legislature to do because the post conviction hearing act is not a constitutionally mandated statute it is a creation of the legislature it was not known at common law and the legislature is it has a right to define the parameters of relief where a defendant has had one meaningful opportunity to avail himself of rights under the post conviction hearing act it is not constitutionally inappropriate to require for him to meet a higher burden so as to show that his case is one of these very limited cases where the c d scarce judicial resources are supposed to be it would certainly violate the plain language of the act there is nothing in there and there is no reason for it would it violate the intent of limiting the filing of successive petitions to those petitioners who are truly qualified to obtain that review it is the same test that this court has applied since one thousand nine hundred ninety two when it first adopted the cause and prejudice test in florida as it has always required an actual demonstration of both cause and prejudice and this is not beyond the ken of a pro se petitioner as the mclusky court recognized clause is based on facts uniquely with in the petitioners knowledge it's the petitioners obligation to research his claims to bring out any claims and any grounds for relief in the initial petition to show cause he has to explain what he did to research his claims in the conditional petition when and how he discovered the factual predicate for the new claim and why he was unable to discover that previous one why back to the federal system why isn't going to be a public order mishal determination before sending correct but we don't have the we have the defendant wants to adopt one tiny aspect of the federal statute that he claims our legislature intended and so under the federal where you have a constitutional violation and newly discovered evidence which supports that constitutional violation which you could not have discovered earlier through the exercise of due diligence and when you consider this newly discovered evidence in light of the evidence introduced at trial it would be sufficient to establish by clear and convincing evidence the kitchener's legal innocence so you have rice with his discovery of the two thousand and six report of the special state's attorney it or you have a davis type of situation where the right that is being claimed in the success of petition is based on a new rule of law which has specifically been held to be retroactive to cases on collateral review so those are the only two under the federal statute and the a the court of appeals has to look at the claim the petition can quickly decide is it one or two of those and all the defendant has to do is make a prima fascia showing which is a lesser burden than proving but it is a showing generally as opposed to the arguable basis standard where he's saying my claim that my attorney was ineffective on my first p c that's an arguable basis showing of cause not that i told my attorney that i wanted to raise this issue not that my attorney discussed with me this issue just my conclusion reclaim that i was deprived of that reasonable assistance of post conviction counsel and that's an arguable basis of cause so in your justice thomas this is the same claim that he raised on direct appeal from the flip side it relies on the same facts it it is gus's the the impact on the jury it is the same claim and is this court recognized in tenor and in orange you can never resist abolition clause if you've already lead a gate in the issue and then there is no prejudice now recognize the focus of the prejudice is what was the impact that this error had was it the kind of error that by itself it's so infected the entire trial you don't look to the quantum of proof as much as you look to the nature of the error and the very not only does this court's cases in rice and in davis support that analysis the statute that he says our act was intended to emulate supports that because that's exactly the way the federal courts look at it was this a kind of an error an improper comment and indeed not even an in comic which the state's attorney honestly believed her evidence was going to show and then the witness flips between the time she last talked to him and the time that she puts him on the stand and he doesn't give the testimony that she thought he was going to give and the defense attorney has a heyday with that on closing argument and she stands up and says i'm sorry you're right i said i was going to present something and i didn't that is a small trial error in a multi day trial with numerous witnesses that was fully explained the judge gave cautionary instructions on opening arguments three times you can't possibly show prejudice under any circumstances and that so yes i would like to talk a few minutes though about how the application of this three stage multi tiered process is not only not in keeping with the plain language of the act it isn't in keeping with the legislative history the two comments which the defendant partially quotes and then omits what doesn't work for his argument clearly demonstrate that what the legislature was intending was a threshold inquiry but the the the defendant's whole argument is inconsistent with what this court has held because it has always found that the cause and prejudice test is a more exacting standard it has described the procedural hurdles to be necessary to be cleared before you before successive proceedings are warranted as amends it is indicated that they would be  they would be lowered in very limited circumstances all of those precepts are inconsistent with allowing a petition to be filed if he makes a very low threshold showing and then proving it all along the way and that is why this court has found that an application of an arguable showing standard with success of petition would contravene the well established policy that successive petitions  disfavored the defendant cannot point to a single case of this court where it is even intimated that an arguable showing would be sufficient but there are decisions where this court has the not affirmed the denial of leave to file where there was arguably an arguable showing most significantly however this court was very clear that actual innocence claims brought by way of a successive petition had to be subject to a lesser standard than causing prejudice because this court determined that it would violate both substantive and procedural due process and if an actual innocence claim brought in the successive petition did not get reviewed because could not meet the clause and prejudice standard adoption of the defendant's theory of how this analysis is to be employed would make it easier to find out a successive petition making a non actual innocence claim then it is to file an actual innocence quite so there is simply no support for the defendants that it petition position in the plain language of yet in the decisions of this case doesn't move to a third stage evidence cherry hearing it moves to second stage the interpretation of people's interpretation of the statute that you need to prove both cause and prejudice and that cause that prejudice is concerned with the nature of the error is the only logical way for this court to interpret the statute because otherwise any type of trial error as long as it's couched in terms of ineffective assistance of counsel will be grounds for success of proceedings if there is someone to line merit there is there would be no waiver claims that wouldn't have been reviewable under plan or on direct appeal would suddenly be resurrected for review in successive proceedings plain error provides for review into very limited circumstances under record people either where the evidence is mostly balance and the error might have affected the conviction or it's a  a systemic error that serves to erode the integrity of the judicial process and this language of second prong is very similar to the way the people are suggesting that this court interpret the prejudice component the focus of second prong plain error is on the nature of the error and the fairness of the defendant's trial now successive post conviction planes have an additional layer of procedural default so it plainer you've defaul error trial in successive proceedings you've defaulted the area error in your initial proceedings and here you've defaulted the error at direct appeal and there was no objection made at trial so we have multiple layers of procedural default and now they're going to be salvaged simply by for successive post conviction review simply by couching them in terms of ineffect narrowing the prejudice prong of the cause and prejudice test to something akin to structurally or then you've done the appropriate narrowing if it recognizes the state's legitimate it chivas the legislative go of limiting the filing of success the legislature knew the procedures that was in place and just as mad as a matter of stretching statutory interpretation a statute should not be interpreted as a statute should be interpreted as adopting the common law unless the and further if you know another thing area of cause is a new ruling from a higher court comes down an urge to argue that you have to argue that standard too because i'm prejudiced if prejudice is something separate from the underlying plains as the state party and there'd be no reason to skip over the first stage then you'd have to if showing a cause and prejudice you affectively are showing a you know an arguable basis for your underlying plane so you got to the second stage but you have not shown such a high as showing stage you recognize why are you in this was implicit and rice that it was certainly not explicit it was not an issue in rights cracked that's correct and in fact in the occult court case of deficiency there what was highlighted to the jury again i mean he was the defense not you but defense counsel so they they didn't present this prosecutor acknowledges it as i understand it and what i'm trying to understand in your argument is if the standard as the statute says that the air is so prejudicial to in fact you know so in fact errors made infection but then it's like the doctor shows up at closing argument i'm not trying to make light of this been trying to understand given the conflicts in the state of the dems that enough could have changed balance of the case and because of that appellate counsel was a