test percentage of people be pittsburgher and further declared that as a matter of procedure on substantive to process the post conviction hearing it must not be read in such a way that could quote theoretically could bar a petitioner from filing a freestanding actual innocence claim here an actual petitioner was barred from filing a freestanding actual innocence claim in this case while travelers alter edwards requested leave to file his third and fourth successive post conviction petitions both setting forth pre state in claims of actual innocence and supporting and supported with documentation corroborating those claims one of these affidavits was from a codefendant that he coleman who a participation in the fans and the defense and unequivocally states that walter was not present for you to the planning or commission of the offense the other two affidavits are from alibi witnesses together these allegations and supporting documentation constitute a well played claim of actual innocence the petition reports the state's evidence at trial which involve no physical evidence or eyewitness identifications despite the fact that walter clearly set forth a claim of actual claim is excused from showing cause and prejudice it never was upheld the circuit court's decision at the time we file over to the appellate court majority of valuated the merits of authors but titian using what essentially amounts to a third stage petitioner has a right to file that claim and it pursuant to this court's interpretation of the illinois due process clause specifically that procedural due process rights to be heard a meaningful opportunity to be heard  as this court explained and ortiz includes the right to file what what can reasonably became characterized as an actual innocence claim so if the put if the if the facts alleged in the petition could reasonably be interpreted as raising an actual innocence claim and the petition also complies with the remaining requirements of section one twenty today to including the cooperating documents requirement then that would constitute a well played claim of actual initial position so even have to meet it a standard to be filed and that's the distinction here here we're talking about can walter successive petitions even be filed without having to make some threshold showing that is for all intents and purposes equivalent to the very cause unprejudiced test that this court has specifically how that successive petitioners alleging actual innocence are excused from so i would be a lot it would be illogical to subject successive petitions raising actual innocence claims to a threshold showing on the merits when it when this court has been clear that there are excused from showing cause and prejudice and if you look at the threshold showing the  if there's a few points in response to that one or tease has already recognized that that there's a group to process right to file a claim of actual innocence fully aware of the state's finality arguments  secondly the the state's concern is overstated the defendant is still going had to have to attach supporting documentation to his petition and the reason i the reason i want to frame the the this this initial showing in terms of just standard is because the gist and it was disagree designed to determine what type of claim is being raised for most for an initial petition it's going to be whether that claim is arguably arguably constitutional sufficient it invoke the act and if we apply that same standard to actual innocence claims then defendant's not going to be able to raise other client other claims under the guise of actual innocence because this petition is still going to have to be supported by documentation that show that his his allegation that he's actually innocent can be corroborated and in most cases that find it won't be able to show that the but whatever standard this court does apply there's no there's no question that walter meets that standard and the other thing with regard to finality the state proposes a standard that would involve a heavily scrutinized leave to file stage during which the circuit court could could evaluate the petition on the merits take longer than ninety days read all of the pleadings the state envisions is what this would take more than ninety days because it would have the court would have to read off the pleadings read the allegations in light of those  make these types of legal determinations the purposes of finality the family's proposed standard is much more efficient once once this once the circuit court deems the the petition to be an actual innocence claim would go on go on the ninety day schedule and if the petition is frivolous it would be off the court's docket within ninety days now the other concern regard to regard to finale was mentioned in your tease the  of section one twenty two days two which requires not only factual allegations that clearly set forth the claim of actual innocence but supporting documentation that show that the claim is capable of crop aeration and that again will allow actually two separate and once those are met you have the gist of a claim that just is then analyzed under the legal standard frivolous apparently without merit and that that should take place at the first stage once that just of the claim has been filed so in walter's case that these under any standard these petitions should have been given the file what's are clearly set forth his his claim that he's actually innocent explaining why the state's only piece of evidence that put him at the scene of the crime which was custodial statement was not true it was given to pursuant to a promise of leniency it was given to when he was at the age of fifteen years old not being able to confer with his grandmother who was waiting at the station prior to his being interviewed by the system state's attorney it was given pursuant to threats from the officer that if he did not provide the statement he would be he would be given the harshest sentence of all the co defendants it was given after the officer had interviewed other other witnesses that have been or other suspects that have been arrested along with walter as the as the amicus brief exhaustive exhaustive we described walter's confession in light of these facts is unreliable and therefore can easily be overcome by the affidavits that he's supplied along with his his most conviction petition if we subscribe to the plea stand nothing would prevent successive pleadings basically alleging it the same way that each one would have to go onto the ninety day dr zachary it as long as those petitions stay clean of actual innocence  rated by independent supporting documentation then under ortiz which held that any sort of threshold showing that they would potentially bar a claim of actual innocence from being filed would violate procedur and substance it due process so i file the same one over the same not the same one if it's the same exact position it could be it could be it's it appears from ortiz subject to procedural bars such as race judicata or collateral estop were the standard then there was would automatically advance to the second stage is that correct correct and what's interesting is i propose as an alternative standard the hodges first stage standard which would be the frivolous and pant without merit standard the state also says it's proposing a frivolous and patently without merit standard but it wants to define that standard differently than how just towards the fight it wants to define it as a primal facial showing of a compelling claim of actual whether those are enough to state a claim but what the state's proposing is an actual evaluation of these claims on the merits and that it appears to be no different from what cause and prejudice requires so once again what it's illogical to excuse a defendant from having to show cause and prejudice only to then ask them to make a showing on the merits particularly where at that the pro se pleading stage this court has always found that defendants only need to present a credibility determinations that would be required under the state's standard that for instance the term and whether the petition would would be enough to warrant a different result and retrial can't be made  evidence of of walter's presence at the scene given when he was fifteen years old indicate that it's not reliable and the state's own evidence at trial substantiate this claim testified that she saw sam taylor who shot a person she knew several years standing outside of her window just before the shooting walter statement said and say that santillan was at the scene more importantly gregory curry archer the state's second eye witness testified that he saw one man firing from the street while according to walter statement four man worse were firing guns at the scene of the crime so the veracity of walter statement depends on the notion that gregory these types of factual discrepancies lend support so what the amicus describe is as the unreliability of this confession particularly in light of the fact that false confessions are occurring more frequently than commonly believed  and this is almost three times as true for juvenile defendants at one study studies are shown anywhere between forty two percent and fifty five percent of the juveniles who have been exonerated  the defendant did not have this evidence in his possession until he actually filed the petitions obviously he knew of his alibi at the time because he was with these these two people at the time of his offense the question is whether it still can be considered newly discovered evidence because it was unavailable to him all three of finance specifically said state in their affidavits they were not willing to come forward earlier and that's the standard this court should apply when it's going to terminate when their evidence is ne in terms of reliability those same factors come into play what's the what's the what's the thinking of a fifteen year old who is in isolation for seven eight nine hours arrested for an offense told by the police that he's he's suspected of the offense and told that other other co defendants are implicating him and that offense so again at the at this stage we're getting you know we're getting ahead of ourselves i of the question being what i walter can file his petition i think the ultimate credibility of those affidavits and whether they can overcome the circumstances of that confession will be made at the third stage as as this court did and in ortiz and washington and morgan all claims of actual innocence that were eventually resulted at the third stage it's somewhat important to get ahead of earth because if we do we go with a different standard other than you claim certainly it's not fanciful to claim that walter confessed falsely knowing what we know now about juvenile confessions it's not fantastical or delusional to claim that he would have been able to call his alibi witnesses at trial because as there is stating they refused to come forward earlier and it's not a wholly meritless legal theory to say he's completely innocent of this crime given that we now have three witnesses and facts and a second petition he gracious accommodation to me and i apologize for any inconvenience that may have raised turning to this case this case the question before this court is simple what is the proper threshold standard that must be met by individuals at the leave to file stage presenting a successive petition with a claim of actual innocence and has this petitioner met that standard such that the circuit court erred in not allowing him to file his third in four successive post convictions while the question seems simple finding the answer is more difficult than it seems because there are multiple competing factors which must be taken into consideration in order for there to be a fundamentally fair threshold standard and to be feasible any standard must offer the lower court's clear guidance on how to consider these types of claims at the leave to file stage provide them assistance in reviewing these claims officially and conscientiously recognize the importance of finale and criminal proceedings not only for the state but for the families of the victims and also to ensure that individuals who are presenting these important claims are given access to the courts as well as judicious consideration of their claims and it's in considering all of these factors that the state is presenting the threshold a suggestion that's in their brief which is a prime if a showing of a compelling claim of actual  and that in the context of showing that his claim is not frivolous and patently without merit and this is as petitioner points out a new standard it's a new definition of frivolous and patently without merit that's different from the one that this court set forth in hodges but there is a reason for this and that is that over the past few years and especially post ortiz claims of actual innocence have become more and more commonplace and there's nothing to suggest that this continued filing of these claims is going to change and so the people are bringing this standard forth because we truly believe that it is the best test moving forward that balances all of the interests that are necessary to be balanced in guiding the court in reviewing these claims the key to this standard is that it ensures that all individuals with potentially meritorious claims will be able to present their claims to the court the components of the threshold standard that we're setting forth are identical to those of a valid claim of innocence that this court set forth involves washington in ortiz so the only claims which would not be able to meet this threshold standard are those which do not fall within the definition of a free standing claim of actual innocence by applying the standard then this court would merely be ensuring that the gateway that you opened for petitioners in washington is not being closed is not being abused by petitioners attempting to either recycle claims that have already been prevent presented to try to circumvent causing prejudice or to present a claim under the rubric of actual innocence when it in fact presents no such claim such as the complaint about the effectiveness of trial counsel or something like that which is presented here a new alibi witness which is really a challenge to the sufficiency of the evidence absolutely not all that we're asking is a prime official showing of a compelling claim of innocence which would be that the petitioner pleads some evidence to demonstrate each of the elements of the claim which is some evidence that his claim has evidence well in order in order to ease this court define you as evidence that has been discovered since the trial and certainly that story discovered what since the trial and certainly that is the definition that has been used in the the fact that colin was the person who did the shooting is not a fact that's new to defendant that's a fact that defendant told the authorities prior to his trial in his confession where he identified eddie coleman or as he referred to in maine as the shooter evidence me i think the evidence is the fact that eddie coleman is the shooter which is information that defended already knew so i think the question as to whether the information is new to defendant absolutely not he knew that information long before t i would say it's different and in two ways both of which are very significant the first one is that unlike causen prejudice this standard is designed to look at the validity of the claim itself we're not looking at any external factors we're looking at whether this claim meets the definition of a valid claim of innocence it's also different in that it's a lesser standard than causing prejudice for instance if you look at the components of the standard when we're looking at for instance would this probably change the outcome of the trial that's a considerably lesser standard than what would be required for someone for a showing of prejudice under the cross and prejudice standard so by designing the standard in the way that traditional first stage high just standard that is used by this court i think the difference is best explained sort of from a procedural standpoint when you're looking at your traditional first stage post conviction there's a statutory right to file that conviction so the petitioner does not have an obligation to necessarily show that i should be able to file this petition so what just standard is a standard of exclusion so it looks at the petitions the ones that should be excluded from moving forward where we're at here is we're looking at a successive petition there's no statutory right to file successor petition so what we need to look at is is this a petition which falls going forward ok what we're looking at here is a standard of inclusion so which ones fall under the realm of those which meet the requirements in order to proceed to second sta at at the time that he gave his statement and went to trial yes at the time that he gave his statement and went to trial he detailed all of the events leading up to and including the shooting and in that statement that he gave he well i think that those concerns have been a alleviated because in this case we've had not only a pretrial motion to suppress his confession we've also had a direct appeal in wh challenged the voluntariness of his confession and it had appellate court review on the issue so in terms of of whether his statement was coerced or how the information came about i  think the issue of voluntariness has has been given a lot of review both pretrial and at the appellate court level so i think that we can be confident that the confession that is before this court is a valid voluntary confession  specifically in terms of the third and the fourth post conviction that are before this court under any standard the decision by both the trial court and the  defendant leave to file these was correct we've we've discussed the third position the only thing that i would add to that is the fact that it's clear that there was absolutely no diligence on the part of defendant in obtaining this affidavit this affidavit was obtained by another individual named lawrence coleman it would appear from the record that he obtained this after david seeking his own post conviction relief and while lawrence coleman may have been diligent in obtaining the affidavit his decision to pass it along to defendant does not translate due diligence on to the part of defendant in terms of  fourth post conviction that alibi evidence from dominic and kathleen coleman can in any way be considered newly discovered it can't possibly be argued that defendant was not aware of his own alibi at the time that he went to trial and while he claims that he was not able to get this information earlier there's no indication that he was diligent in any manner in trying to bring the colemans to court such as issuing a subpoena or doing anything other than and patently without merit means and then to redefine that phrase in the successive case where there was some penley without marriage now means the prime aphasia showing of a compelling claim would be the most confusing thing this court could do  with regards to finality the state offers without any evidence that actual innocence petitions are are now more commonplace and frankly i don't know what that to be true or not the state offers nothing in its brief to support that allegation and it doesn't even make that allegation and it's brief but i would say that under any standard the defendant is still going to have to n is again an in the overstated fear the defendant standard which which would require require affidavits well would result in no additional actual innocence petitions coming before the circuit courts than any other standard if it indeed is it indeed is presented as an actual innocence claim but is not supported or is not in reality an actual innocence claim is and is in fact for example a claim of in fact it was and is a council while the circuit court will be able to dispose of that claim with using the constant prejudiced past there is a question as to whether the state's burden is and even the state's proposed standard is any different than the second and third stage standards well your honour's it's not the second stant the second stage is whether is a purely legal question whether the petition states a substantial showing of the claim and there's no qualitative difference between a substantial showing and a compelling claim which that which would be the state's standard in fact it doesn't appear that there would be any purpose to either the first or second stage if if this if this court adopts the state standard  because the state the state in the case say well at the second stage we could present a police report that rebuts the defendant's claim but the second stage is is not an evidentiary hearing it could happen at present a police report it could only present legal arguments deficiency of the claim and if that's all done before the petitioner even has a chance to file his petition then that's a violation of due process clause and it turns the post conviction hearing act on its head with regard new trial and a claim of newly discovered evidence involving a witness that the defense attorney had attempted to contact at the time of trial that when this then disappeared when the witness came back an affidavit was presented the defendant obviously newly discovered is means was and was not known about before does not have a tradition in this court's definition in reality it's whether that whether that evidence is available before and that's really the only i could hold equitable definition of newly discovered whether the defendant can present that evidence it makes no sense to make the actually innocent prisoner remain in prison simply because factors outside of his control prevents him from from presenting to the court evidence which he knew well while allowing the actual innocence its mission or to go forward when that when that new evidence has been discovered since t a codefendant that codefendant think came and said provide an affidavit saying that defendant was not involved obviously the defendant knew about this witness at the time of the offense it did not present present the witness because she was not available to  nevertheless the williams court found that to be newly discovered evidence and finally with regard to do diligence the state argues that because lawrence coleman was the one who obtained any coalmines if a david walter failed to make a showing of due diligence once again or were at the initial pleading standards here i would argue he would only have to make a frivolous and then frivolous showing of due diligence but in any event there is no authority that says the defendant could not rely in intermediary particularly where he's in prison to obtain an affidavit on his behalf and that would not that mean that would not be presentable to a court because it wasn't the defendant's personal diligence that obtained that affidavit even if the defendant had been relying on the third party both investigators and lawyers to visit with them that they essentially close the door and in these representatives faces and that they refused to come for her earlier that perfectly aligns with  showing of due diligence so if there are no other questions i guess this court to reverse the majority of the appellate court and find that walters due process right allows him to file his claims of actual innocence thank you case number one eleven seven eleven people versus edwards is taken under advisement as agenda number six council we thank you for your arguments mr marshall the other way supreme court stands