thank you your honor may please the court mr clemens is entitled to an evidentiary hearing on his claim that he received ineffective assistance of trial counsel when his trial counsel failed to properly investigate and present the alibi testimony of andre smith mr clemens presented this claim accompanied with an affidavit from mr smith to the illinois trial courts in his post conviction a petition he raised it with yellow noir public courts when his attorney refused to raise it on his behalf and he raised it with the illinois supreme court in his petition for leave to appeal i think that's right we have motion to supplement counsel's brief with one of his own that would include the andre smith argument the alibi ledged alibi witness that was it was tonight adequate and independent ground it's clearly independent the question is whether it's adequate yet it's not your honor and it's not for this reason the whole point of the exhaustion requirement is to present the federal claim the operative facts and law to the state court so the state courts can consider them if they want to when they're not required to if they don't want to they can ignore them and that's fine but in this court this has held th petitioners maybe as petitioners can be held accountable for their lawyers actions under agency law principles but the key thing of agency law is that the principal gets to direct his agent not the other way around and so your coleman versus thompson supreme court case to the your petitioner you're on the hook for your lawyer missing the statute of limitations deadline because he's your agent but when what this court has client if you are not happy with your agent's actions you have to monitor what your actions what your agent is doing and if you don't like it you have to take it but take matters into your own hands and that's in this court's case johnson versus  right now and he had an opportunity to do that when the illinois public court told him twice that it would take that motion to supplement with the merits that was decision time for him but he well respect mr clemens prior to it rule to its ruling on the merits of this case whether they were going to consider his pro se brief or whether they were not going to consider right they didn't rule on his motion to supplement either the principle brief of his counsel or the reply everything his counsel but they did tell him that they would take that motion to supplement pro se right with the merits and as i said earlier it seems to me that was the decision point for him if he didn't want to take the risk that they were going to deny the motion which they later dead granted in a ruling after the merits were decided that he was on notice then that he needed to make a decision brief it's on the second page of his group who's rather late usually you have to make your choice exxon today you can't say well i didn't like what my lawyer did in his opening theory so let's start from scratch well if you don't we'll go on that we already know criminal defendants just to dismiss their lawyers free but we don't let them start over well first of all if the lawyer doesn't share the brief with the client first the client has no idea what actual claims are going to get raped and so it's not until after that brief gets file that they then the client say's sees you didn't raise the claims i want to raise so what can he do he's informs the court the lawyer is not raising what i want here's what i want to do if you won't let me supplement my lawyers brief i want to go pro se but he didn't do that when he filed this for supplement he says in the court said we're going to decide this issue with the merits so again that was the point for him to irony clemens asked this court to review the argument in this brief and allow them to be supplemented to the brief that seventy fisher is prepared for the defendant so that they will not be waived or allow petitioner to add them pro se right but he didn't he didn't ask to fire his counsel and have the court proceed based only on his pro se filing and disregard counsel's brief well i just what he would have to do then first of all the letter that he sent with his reply pro se brief makes clear that he was under the impression that the motion being taken with the case meant that that would get considered because he tells the he says it both in the letter to the clerk asking them to file it he said the brief was taken with the case the state's attorney just responded to this case and i prepared a reply brief and in the reply brief he talks about this is exhibit p that's page nine of exhibit b page six forty four he talks about that he was allowed to file the his pro se brief the state didn't respond to it so he should win now if the state wants to tell the petitioner you have to make the choice either go with your counsel or go pro se they need to tell the petitioner that the appellant in this state court that before they rule on the merits of this case because there's the supreme court ever said that there must be rule specific notice to somebody before the state can force its procedural rules while the supreme court has said that discretionary rules can be found independent now to address my question the the argument you were making is that there can't be a procedural default here because the rule against hybrid representation was never communicated to clements distinctly the question i ask you is has the supreme court required a distinct communication rule by rule about what rules the person must follow no but that was not my argument you honor my argument is this is a discretionary rule mr clemens doesn't know if his brief is going to be allowed to be considered or not because the state sometimes will consider them sometimes they will not the supreme court and walker versus martin and beard versus can learn has said discretionary rules can be adequate however if it's not if they're discretionary so you don't know how the court is going to rule on it the court needs to let the individual defendant rule on it or it know either yes under our discretion we're going to grant this or no under our discretion we are not so that he can then make the decision of whether to go pro se th same they have to actually decide to issue yes if the state in what i would a ports that instruction of the independent and adequate in water versus mark where the supreme court upheld the california supreme court's  ruling that they don't have it they didn't have a set satchel limitations it was more free floating this after they said that they were going to find that ad but they said they said in so ruling we stress that martin has not allege that california's time bar either by design or in operation discriminates against federal claims or claimants in operation what happened here is the state of illinois automatically appointed mr clemens a lawyer on appeal under screen court rule six fifteen illinois supreme court rule six fifty that lawyer filed mr clemens says it my lawyer who is supposed to be my agent who's supposed to i'm supposed to be able to direct did not raise the claim i wanted raised this is the claim i want to raise if you will let it be done in a supplement to my lawyers brief i want to go pro se the state of illinois says through the executive says don't consider that bridge if the state court say we're not going to tell you whether we're going to consider or not until after we decide on the merits that in operation discriminates against federal claims that petitioners want to raise because they know if they are not raised in the state courts they're going to face procedural default arguments in federal court so by operation the way they they're trying to use this rule in this case it actually just puts into a choice early on in the appeal if there's a dispute with counsel about what issues should be raised if they're going to be taken a chance the court is going to exercise its discretion and not accept a supplemental pro se brief so they have to decide early on whether they want to go it alone  automatically they get a lawyer whether they asked for it or not mr clemens never asked for a lawyer and the public were right that's not at all unusual you know what is unusual is allowing a criminal defendant to wait until the ruling goes against him to decide whether he wants to fire his lawyer and start all over you are i'd submit respectfully that is completely backwards the state of illinois cannot tell the person we'll think about it we'll think about whether we'll let you will consider these arguments it we're not going to tell you whether we are we are not till after we rule on your case and it's too late for you to make the choice that the state now wants to say that mr clemens should have had to make they pulled the rug out from or if they would have said no we're not considering it it's denied he then has the opportunity to say fine i'm going pro set i mean he already did that i submit in what he filed he said i either want this as a supplement or i want to go pro se i think that is clearly a pro se litigant saying hey if you won't consider this as a supplement i'm going pro se but even if you don't accept that they need to turn square corners with him to say we're not doing it instead of playing hide the ball say we're not going to let you know whether we're considering the circuit so that you don't make the decision so you don't say have the opportunity to say hey the heck with it i'm going pro se i don't want there to be any mistake about it and then wait till after they've ruled where it's too late for him to do anything to then say oh and by the way we're not considering the arguments that you raised we told you would think about it now we've decided it and now we're telling you that we're not going to consider if they want to make the choice then let him know one way or the other whether they're going to consider murder because otherwise you lead an unsophisticated person who's working as hard as they can doing exactly what this court said in johnson that said even incarcerated defendants have to keep track of what their lawyers are doing and if their lawyer doesn't do what they want them to do they have to take matters into their own hands and that is exactly what mr clemens did otherwise basically this court is saying and the message will go out to the folks in the state of illinois that are litigating appeals and post convictions first thing out of the gate fire your lawyer rip so you raise everything you can raise in everybody we go in process and i don't think that that has a particularly good resolution this resolution actually is strikes the best balance of all right  just you've got to tell them before you rule whether you're going to consider it so they can make the decision  please the court counsel i'm assistant attorney general matthew background behalf the respondent warden and i'll start with some of the arguments that have made made so far about the adequacy of the state law rules here  i think what might be opponent is saying about the nature of the motion that his client filed is that he's saying there is some of this language about adding claims pro se or supplementing them to councils and what he's saying is that the was obligated to liberally construe that filing as sort of a springing motion to fight fire counsel if leave to supplement and proceed sort of in hybrid fashion isn't granted and there are a number of problems with that argument one is that he wasn't actually pro se at the time he did submit this document on his own but if anyone is going to explain to him how this works and what taking with the case means it should have been  counsel this also not necessarily a clear right to liberal construal of everything you file in state court for all purposes and it just wasn't clear to us that that's what he was asking for we had just read his motion to me stated most of the other actors in this case up until this point as a motion to supplement the counsel's brief now there's also the suggestion afoot that perhaps the appellate court should have told  clemens what taking what the case means but of course in general even if you are pro se there isn't a right to legal advice from a quarter we know that from cases like mccaskill against wigan's from plyler against ford and from this court and of course again he wasn't pro se and then there's this idea that the public court needed to decide the motion faster one of the problems with that is that there's no federal law basis for that role and in fact taking motions with the case is a pretty common practice in both state and federal court i gather that the rule my opponent is asking for isn't really one that this court would necessarily except for itself right he's saying that that practice is sandbagging in this situation and it is not because among other things the lawyer who is still on the case for the defendant can explain this to him now there's also an issue of fairness to the state wrapped up in here he does have appointed counsel at this time counsel has put in some work counsels put together brief counsel has filed the brief and since there is no constitutional right to counsel at th stage we're in a post conviction appeal counsel as a matter of legislative greyson it makes sense that once counsel is done this work and put a brief on the record than the state and the state court also get the benefit of relatively streamlined proceedings obviously in an ideal world all motions would be decided a little quicker and few of them well i think it's not a question of speed it's a question of timing and sequence i think is what the argument is best i'm understanding it that the court of appeals needed to decide before it reached the merits that this whole practice of taking these motions with the merits or deciding that after the merits is on fair or somehow and results in  one of those freakish an arbitrary administrations of our applications of a procedural rule that becomes inadequate for procedural default purposes so it's really not how fast they got to it but the sequence that had to come before the merits so that he would know whether he needed to fire his counsel and go it alone well once counsel files the brief it may well be too late and in terms of looking at the overall fairness of this you could draw an analogy to trial proceedings where you can fire counsel right up to the eve of trial but then once the trial has begun then the court has great discretion to deny you leave to begin representing yourself so it's far from clear that there would be any problem with denying even a motion to proceed pro se once counsel's brief is on file now if you get in ahead of counsel's brief then that starts to look like a harder question and there isn't already a brief on file i certainly know you write that these disputes almost always unfold the way this one did which is that the defendant is unhappy with counsel's brief because there are omitted arguments that he wanted to raise which may or may not have been discussed ahead of time and so you get the pro se supplement to mean that's routinely how it happens in federal court that's routinely what happens in state court the illinois rule is that that kind of hybrid representation is strongly disfavored there's nothing wrong with that rule as an independent and adequate rule the question is whether it was arbitrarily enforced because it was taken with the merits and actually decided after the merits which is too late for him to do anything about it if  loses well both federal cases and state cases would put him on notice or rather put his defense team on notice really would be counsel should be looking at these cases once counsel's aware of this dispute in the illinois first district case of people against thomas and that we cited in our brief it's a two thousand and two case something very similar happened essentially initially the defendant filed a pro s supplement to counsel's brief the clerk seems to accept it for filing in the state moved to strike it on the ground there's no hybrid representation and the state's motion was taken with the case and everything was in limbo and the didn't signal in any way before hand to the defendant that he would have to make his choice faster that this was too much of a risk he was running so if you looked at the illinois precedent at the time his defense team was on notice that this kind said by the way we're not considering the pro se supplement it's not properly before us so if it is fine for this court then for purposes of this idea of three kishan s and unfair surprise under  this court's precedent it's illustrative it's it may be somewhat problematic in some cases but it's not unfair it's not totally unanticipated to reasonable lawyers in the state it's certainly not  freakish i would also note that in johnson the case my opponent is citing here where this court advised litigants to take matters into their own hands sometimes that was a reference to syfy to dealing with the statute of limitations and what happens if you're worried that counsel might not be diligent in putting together an initial hate vs a petition and so you need to file a protective petition in the federal court so that that's a very different issue here there's also a criticism running through my opponent's argument of the idea that clients can't control their lawyers but the truth is that the the state of unique agency relationship between client and lawyers in american criminal courts so for instance in jones against barnes the supreme court of the united states says you don't have a right to force appellate counsel even in a direct appeal to raise particular preferred issues in martina's against a court of appeal of california the supreme court said you don't necessarily have a right to proceed pro se on appeal in theory on a direct appeal even a state can force you to proceed with counsel and we know at the trial level there are all kinds of decisions that are really left to counsel's discretion and they're just a few that for autonomy reasons are reserved to defendants say the decision whether to clete a certain way so there's nothing particularly surprising about that aspect of our argument here so can you get to the issue that was raised because the state's witnesses all had issues them a release it was two people it was one there clemens did mention facial hair he was off by fourteen years on the age poll was bipolar at the time and jones gave a thing and heard a different kind of quote so isn't there a reasonable possibility the outcome would have been to for andris myth no there's some possibility but not a reasonable probability now one of the things to consider about these eye witnesses is of course there were inconsisten is between them that were what we consider warts or imperfections but anecdotally we also know this is incredibly common even with a solid eyewitness identifications and at the end of the day you have four of them they mutually support each other in that regard you have the additional circumstantial evidence like petitioners conduct with the victim's daughter and like his statement to say serious and then you have the overall weakness of the alibi this is not a case like rico's where there's a really really strong alibi this is one where it's a friend the friend was particularly village and about vigilant about keeping time we're not sure why and then you have the standard itself which we know from victor