friends thank you your honors may please the court the attorney client relationship is a very confidential special relationship and many of the protections are born under the law such relationships and our criminal system notice regardless of the crime should be allowed to be set by a judge who says previously stood in that relationship and roll with him whether we have read otherwise in jail vecchio didn't really there is one case that a draft that that case was significantly distinguish united states attorney's office for more than just route to illinois and there quite a few of them and the united states appears before them all the time and i take it that's a violet that's a good ethical violation in your view no i don't what i'm saying is that where ten days and state law you talk about illinois illinois you know correct correct your honor and this is the case here especially where the defendant mr king specifically requested immediately on the initial hearing that a change of judgment should be made been different because it's not at all clear to me in light of the evidence that was brought together in this case that it really made any difference whether judge branch or judge smith  just don't see why the substitution of judge a to judge be even though it's a right under state law at the federal level creates the kind of problem that would justify this it justifies it because the outcome would have been would have received a different judge but why would that different judge have presided over the trial differently it seems like judge brandt you know first grants the motion for the mistrial after the assault in the middle of the first case he you know he says he doesn't really even remember this when he cites details there from the appellate court's opinion so obviously not his i don't know why the ultimate result would there have been a different judge sitting on the bench absolutely that's wh i'm concerned to know why that's the right focus and our focus your honor is not on the fact that the trial would have been different our focus is on the fact that the sentencing when it been different he would have been sentenced by a judge to give him your shot you claim that the judge violated illinois law in conducting research beyond the materials that were presented you with sentencing and here's what i was wondering where the details of his one nine hundred eighty six arrests were they not available to the judge in a pre sentence report to who ever the judge would have been my understanding is the pre sent report would have listed the crime the conviction and the sentence not necessarily the details that this judge took it upon himself to go and dig out he just read the illinois appellate court opinion no did me i didn't have the impression from his record that he went out and interview people or dug through his old files or did anything like that where's the evidence of that well in your honor we still have to keep in mind that he was still in a confidential replace ship during that conviction so there may be information that he was privy to that any other judge would not have been privy to and although the judge said he only went to the appellate judge writerly fish which was a public record there's still that impartiality there and we're dealing with a case where a man has been deprived of his freedom and he's been given life without parole he's entitled to have an impartial judge rule on that sentencing and award that sentencing and i try to actually agree with that but what i'm struggling for is to find something in this record that would allow us to say that the illinois courts were on reasonable when they thought that judge brand was not an impartial and that if they thought he was impartial they reject the argument that he is  effect a for failing to file an automatic change of judge that would have automatically entitled to into a new judge but the one in the illinois court of appeals only addressed the motion for costs finding no actual prejudice which we disagree with  had he been effectively represented his counsel would have filed the motion for change of judge for cause and it would have had a supporting affidavit just a simple affidavit that would entitle him to a mother to a hearing before a record and the record shows that due to the complete lack of attention on the case this motion for substitution of judge for cause was not filed again this takes away the automatic change and that could you please answer my question yes your honor and with regard to the fraud case it's a public record that the allegations are that it was during this time frame in which trial counsel was representing my client mr king that he was conducting all sorts of inappropriate behaviors including theft and later on counsel testified at the sentencing hearing and trial counsel that it was due to him being under the effects of alcohol abuse and gambling so this was all happening at a time when the record is clear that my my client was trying to get his his trial attorneys attention on the case trying to get him to file a motion for some automatic change of judge th trying to get him to file a motion for a change of judge for cause he even wrote the letter in the a letter to the judge in this case twice to have him address the issue and then he ended up found his own pro se motion to substitute judge indicated in this case and when that was there when that happened that also gives us grounds to argue further ineffective assistance of counsel that that counsel should have stepped in and file that motion on his behalf should have a refiled it with a properly support affidavit that didn't have to lay out actual bias that affidavit would have entitle him to a hearing by a neutral judge to determine whether there was bias and that that there was a reasonable probability that the outcome would have been different that that a different judge would have been appointed and it would have been the one to sentence him not one that he had than an attorney client relationship on the very crimes that aggravate him twenty two years it was a very old case right the earlier representation by brand that's part of the one nine hundred eighty six kaixian or late in this trial was when the trial of believe was in two thousand and two or so two thousand and four i'm not mistaken save some buck correct your honor that's that's correct you know i think all defense lawyers and judges worry about setting someone free or aiding in that process and someone who will then go on to hurt or kill someone else when the judge stated that the similarities between the crime for which he had represented mr king and the current crime were chilling form of five years but do you think it's one that we should be concerned about in this case absolutely not your honor as a general proposition as a as a general proposition is entirely appropriate under both common sense and under explicit illinois law that a sensing judge consider all of defendant's past criminal history including the details of past crimes in this case the details that judge brandt found chillingly similar were all gleaned not from any independent recollection of judge bronx but from as your honor pointed out from inspired by petitioners pro se attempt to file a motion for substitution of judge when as the judge says in the transcript of the sentencing proceeding as he was reviewing the file in this case he came across petitioners abortive motion for substitution of judge as part of his due diligence he went back considered  honor i tried to track it down it is not published and i was not able to get it through but the electronic databases i actually don't hold me to this is several months ago i believe i called the clerk's office of  in question and they did not happen a copy i got i agree i agree i desperately wanted this opinion myself but fortunately judge brant read into the record verbatim not any independent recollection of his own of which there was hardly any he hardly as the judge explicitly stated he hardly resent remember even representing petitio much less does it does he indicate any sort of lingering by us and  don't have in front of me but it is directly after or surrounding the chillingly similar quote as we point out in our brief the judge explicitly states during the sentencing hearing case turning quickly if i'm if i may so just to wrap that up petitioner soul preserved claim is that attorney pickle was ineffective for failing to file a motion for substitution paused under one fourteen desh five d which requires a showing of actual bias the appellate court reasonably found given the record we've been discussing that there was no evidence at all  any kind of personal bias that might have existed is likely to wane it dissipate over time so because there was no evidence of bias the one fourteen dash five demotion would have been baseless and as this court has held numerous times and in keeping with common sense it cannot be a defendant cannot be prejudiced by his attorney's failure to raise a merit with this claim and while there's that principle there also on the other side of it it certainly violates due process fundamentally you have a biased decision maker we would all agree with that and so the other theory that has to go into this is the idea that even though the failure follow particular detail of state law doesn't automatically make something the fourteenth amendment violation or anything else it is also the case it in terms of effective assistance of counsel you're entitled to have your lawyer do all those things which are appropriate to do substantiate such a motion therefore the motion was baseless therefore his ineffective assistance claim fails and your honor referring to our brief we detail pickel zealous advocacy and page seven to ten of our brief distracting that he wasn't paying attention to his client's case he was missing important motions well i think that first of all your honor it's important to place a petition but petitioner has the burden under twenty  fifty four you want to present clear and convincing evidence to rebut the state courts factual finding that there was no evidence of pickles bias in this case he presents his own unsubstantiated affidavit cannot which let me interrupt you i want to know why that is not enough this court has held time and time again that we do king should have presented he could have presented as as this court held in underwood versus clerk such bare bones on substantiated self serving allegations are not sufficient to substantiate a stricken claim and the court noted prior relationship between petitioner and judge brandt in that within the ten day window after assignment of the case judge grant neither that allegation nor subsection a itself of section one fourteen desh five appears anywhere in the post conviction appellate brief therefore for that among many other reasons that argument is defaulted and with that your honors if there are no more questions we would ask the court to affirm the judgment he listed the controlling legal principles ineffective assistance of counsel for mailing for failing to move to quote disqualify the judge and he stated the operative facts those operative facts includes that can provide it immediate notice to  his trial counsel that judge grant had been his prior counsel and trial counsel had told king he would file the motions to substitute and that was within two days of the case being assigned a judge grant that there's no dispute that that case is that that issue has not been waived as far as my client is concerned and the king is not required to cite book and first of the state statute underlined the basis for his in effect of the substance of counsel and in fact he also o conviction relief stage at which time he wasn't represented by counsel it might have said earlier as i understand it when he filed the misnamed motion for change of venue the state court clerk accepted that motion put it in the record and then when judge brandt was reviewing everything before the sentencing he runs from growing stiff so on and he sees it and he exercises his discretion and he decides he'll take a look at it which is why you would see things on the record pretty sure that's what happened correct and that was improper because the neutral judge should be doing that that should not force this judge to now dig into the the prior case and review that appellate court case because just beyond that through the lens of been his prior counsel so it's not just a judge looking at a public record it's a judge that's looking at that pace which may have stirred up some the motions and memories of the case including the potential of putting a violent offender back on the street it's not permitted by statute the sentencing statute to look at this and had mr king then in front of a judge who had not represented him in the prior and the prior conviction of the crime used to now aggravate has sentenced to life without parole there's a reasonable