me please the court counsel i first want to thank you on behalf of my client john calvin who obviously can't be here today but he wanted to express his thanks for your time and interest in his case his case is an unusual one because he was originally granted an evidentiary hearing below and then receive an evidentiary hearing on his claims and talk most importantly about his claim of actual innocence because this is a case of innocence and it's the issue that's really driving his detention although there are obviously other claims made as well this is a case where there is not significant evidence of his guilt there's a confession there are factual issues with that confession and there's obviously the issue of misconduct which was raised in his post conviction the titian in the supplements to that to that petition and then there's evidence from one person testimony from one person saying that he saw mr galvin walking into the alley in the area where the fire occurred shortly before it occurred and that's really the evidence against him the post commission petition that was before the court and the evidence that mr gavin wants to present  he was with the witness who said that he saw galban walking into that alley that he knows that mr gavin was not one of those three people that was walking in the alley and that's that is critical evidence that's significant more importantly he also testifies that he was interviewed several times by members of the chicago police department by others and that he told them the same information that the shown in photographs that he was not he told them that he recognized the people most photographed that they were not the people that were walking through the alley this is important evidence which is some examination below some evidence or hearing to resolve you know the state has argued different parties is not new on the one hand because they say that this is information that counsel could have discovered but if that's true there's an ineffective assistance of counsel claim here that also needs to be presumably had the police certainly had based on those affidavits and yet this is information that was never disclosed to mr dallas counsel again this is a pretty clean issue that needs an evidentiary hearing below to resolve we made a lot of the case argument in our opening brief i'm happy to answer questions about that but i think it's pretty clear on its face there was an appeal in the middle of some of this discovery that occurred after judge epstein ordered there to be a hearing the state argued in its appeal up to the supreme court first supervisory order that there should be an evidentiary hearing i i think it applies whenever you have some final some final word of this being decided and here you have the making of very specific argument to the supreme court saying to the supreme court that they believe that nothing should go for and that there should be here any of the supreme court saying the exact opposite saying no we're not going to intervene at this point was i mean that's true there wasn't a direct ruling on the merits but there's an implied there's an implied decision by the supreme court they're declining to intervene and i only put the sub say that there's other courts that have looked at the process of this case of to see that we're not relying solely on that doctrine and we've argued on the could i think that we also are going as we have made in a brief that the post conviction statue really only allows for one opportunity to make a motion to dismiss and i know there's some dispute in this case about that because the state has argued that you know they asked for an opportunity first to brief the issue of the claims so you know his counsel as he should have continued to investigate and develop evidence but there was certainly nothing that was learned afterward that should have given the court a reason to think that somehow there was now less reason to grant a hearing only more of a reason to do so the state's argument is certainly going to be your honor that what he said was that he would hear those two issues at the same time and that is where their argument comes in about this being a collapsing of the second and third stage but given that he's directed at the second stage to determine if if mr gavin has made a substantial showing and that's what he's supposed to do in granting of an injury hearing i think we have to read his ruling that way there's no in there given that the records are clear there's no reason to say that oh he looked at this and he didn't make a decision all he said was i believe that there should be an evidentiary hearing and we should conclude that that he did so by finding that there were that mr galvin had made a substantial showing that he wasn't titled such a hearing there's no in other words your honor there's no evidence on the record to suggest that he was saying well i'm not determining if he's made a substantial showing what he said on the record was something to the effect of evidence that needs to then be resolved i don't think that you can reach epstein's ruling to say well i don't think i really have to make a second stage for nation i just think any time someone files you then go to the third stage he did some analysis and consideration at that second stage and said brosnahan had the legal authority to reconsider the justice epstein's ruling awarding in evidence here hearing and this is because this is the only issue for which the record in this case is complete the record is missing all of the trial record many of the pleadings filed below the documents relied on specifically the affidavit of sykora flores which counsel has discussed both in her brief and to this court and  as a result this court does not have the same documents before it that the circuit court had when it issued its ruling and when a court is faced with and complete record it indulges in every reasonable presumption that the  they specifically that's what was lost but what happened is when this case left judge justice epstein's courtroom and moved the boxes of volumes and volumes went followed first to then reconstructed and compiled and provided to the circuit court below and notably council mustafa singh from ation in writing her break but didn't provide it to the state and hasn't provided it to this court advocacy by ambush at this point in time in twelve hours that record to be supplemented moving on before this court can consider any of the merits of the claims presented in the variety of petitions filed b as as presented in the defendant's free the issue was whether or not judge brosnahan had the authority and their position was that the peoples motion for a supervisory order to the supreme court was honors the the concept is whether or not the justice just that justice the judge brosnahan reviewed the proceedings up to that date and determined that the  to make and the original determination whether there exists procedural barriers which preclude review of issues in the success of petition that is a mandatory requirement it is a requirement that justice epste did not conduct and about a better deal or inability to prove causing prejudice but then ruled simply that the president he wasn't going to consider a procedural matters that might bear our reconsideration of these issues so his murder was that i'm not really considering it and when we said your honor we'd like to find out a motion to dismiss he said oh you can file that on the date of the evidence sherry hearing so it's very clear that that step that's required by the post conviction hearing act was never complied with and because that step was never complied with because it's a necessary prerequisite to find the post conviction proceedings realized that that step had never been complied with she was wholly within her discretion to get more of those proceedings back to second stage and to require that mitigation of that motion t would argue that it was probably a mixed question of law in fact whether or not the defendant had made a substantial showing of have a constitutional violation wo yes your honor it is within the trial court's discretion circuit court's discretion based on the determination of whether or not a substantial showing a constitutional violation has been made which is then with the religion over the ultimate issue of whether or not a substantial showing is spend made there and then evidentiary hearing warranted it is real the review didn't over by this court even if this court finds that justice brosnahan should not have reconsidered that order the people in the case of people versus a bow in the supreme court abundantly demonstrates that this gets to consider everything itself this quote is for you to start from the beginning and determine whether or not the quote correctly allowed post conviction proceedings in this case to proceed and a review of the incomplete record as it is demonstrates that the defendant was not entitled to file successive post conviction proceedings first of all the recall of the claims the post conviction here yet explicitly is limited to issues which have not then and could not have been previously presented all of these issues are based on counsel's performance a trial witnesses or information known prior to trial or events which are matters of record therefore they could have been presented when post trial the defendant this trudged his trial attorney and hired private attorney mr frederick cohn to file a motion for a new trial and mr cohen filed numerous allegations of ineffective assistance he was allowed to supplement the record with evidence to horse the record all of these claims could have been presented there that means we don't know what was presented and what was  been raised in his in his initial petition once again the defendant retained very well respected very well qualified post conviction counsel kathleen zellner represented him on his first p c and prepared that  do the procedure of the failed that's a result of defendant's failure to raise them in the first petition is qualitatively different than the procedural default for mr cohen's failure to put them in the motion for a new trial because one twenty two dash three under which that procedure of the felt falls is a limitation by the legislature on the parameters of relief offended by the post conviction hearing act it is not just a waiver that this court raimi court can disregard one twenty two dash three says unless you establish unless you include it in your original or your amended petition it claim this wave and one twenty two ashwani f says the only way you can have a claim presented in a successive proceeding is if you show cause for your failure to presented earlier and you so show prejudice and the defendant has never ever established a cause of prejudice any clause or prejudice shown the only attempt that council has ever made to demonstrate cause is a very anemic argument that post conviction council should have recognized these issues and should have put it in  in first of all there is no actual innocence claim that was never raised in any petition and the post conviction hearing act explicitly requires that the petitions annunciation each clearly the claims the defendant had a pro se petition a first supplemental petition a second supplemental petition and they said supplemental petition actual innocence was never mentioned in any out for them never mention actual innocence was included in a six fifty one c certificate a state's motion to dismiss the defendant raised allegedly the claim we don't know because that reply isn't part of the record on appeal but the defendant raised the affirmative defense of actual innocence actual innocence isn't an affirmative defense and argued it that way in the motion to dismiss there simply would never was a claim of actual innocence when the defendant realized he couldn't get around causing prejudice when he realized that he was going to have to deal with the clearly discussing cause and prejudice as to why abby's claims that she's not raised in her first and second supplemental petition should be considered if this were an actual innocence claim she would have had to talk about causing prejudice so she didn't intend to raise an actual one instance claim secondly it wasn't a flu standing claim and that's what the illinois supreme court very limited an exception in washington as further discussed in her billion orange it requires a freestanding claim not a claim that's also being used to support another constitutional violation but even if this were to examined this information as an actual innocence claim  doesn't qualify as an actual innocence claim it is not in the justice freeman's rare reasoned opinion for a unanimous court in edwards it does this new at this evidence isn't new it isn't raises the probability that it is more likely than not that no reasonable juror would have convicted the defendant in light of the new evidence as justice freeman pointed out the supreme court cases on which accounts neither poteat is current after david murrell says says new claims that twenty two years later she could remember seeing faces that she couldn't remember seeing immediately after the offense provide the trustworthy new evidence which is spoken of in edward's the the defendant not only is this evidence not there when the defendant's argument as to why this evidence is new is well i can't be felt for not discovering this information sooner than poteat and slower as for willing to reveal what if that qualifies as new evidence the exception has just swallowed the rule in point effect both of these witnesses have claimed in their later affidavits that they told this information to the police so if they told it to the police at the time of the offense then clearly the defendant could have discovered it sooner this information saying he didn't get a good look at the young men and that because of the distance and the darkness in the alley that night he knows that closely with them you just could not have seen them either so therefore the only thing we appended to any document that the defendant properly had filed but even if this court does consider it it too is not new to question as testified at trial she was available to be interviewed prior to trial as the assistant public defender that rep represented the defendant barlow asserted what she said in her affidavit was basically the same as her trial testimony that said that information is cumulative the jury heard that information they even heard sequoyah for i say that john calvin wasn't one of the three boys in the alley they convicted the defendant anyway clearly this is not evidence which raises the probability that no reasonable juror would convict based on it the in practice evidence which the defendant claims as the supports his case of actual innocence is clearly not evidence of actual innocence is demonstrated by the supreme court's opinion in people vs rice where such evidence was considered the cause and prejudice analysis for successive petitions well for the reson no evidence assistant public defender jacobs stated that he intended to present numerous witnesses at the hearing he failed to provide a single affidavit of any of those witnesses the only information that existed were of o p s reports regarding two defendants in each of those o p s reports the claims that swisscom he had abused them either found not sustained unfounded and the cases that the defendant cited are not evidence because he never made the requisite showing to arise for the admission those cases are factually dissimilar to his none had independently documented evidence of abuse and the defendant was not diligent in discovering them additionally the court here properly found that the defendant failed to show any signs of injury at the time his confession was taken he did not report having been injured and he did not testify in his own motion to suppress that he had been beaten based on all of this information judge brosnahan properly found that the defendant had not presented a viable claim of actual innocence that could go forward in successive proceedings properly reversed that order would be whether she abused her discretion in going back and in determining whether she had the authority you know it's getting somewhat co but i believe that ultimately conclusion that the the people's motion to dismiss should be granted would be done over if you read those she rightfully went back and looked at just and we visited the ruling on a motion to dismiss with a failure to wear would be whether she abused her discretion i think that's how it would work but i'm always willing to do a graph and we can if there are no other questions here and i think i've pretty much covered that that is causing prejudice has not been established i'm happy to go through the ruling on the merits of all of the defendants issues i don't think this court should reach them because the defendant has never demonstrated that he isn't titled to success of post conviction proceedings and for all these reasons and the reason stated in the people's be brief we would respectfully request that you affirm the lower i didn't understand that these other documents were not actually included in the record and that's my error that's why we asked for an opportunity to supplement the record with the additional things that were missing and sense i learned that these documents have not been filed before the court in the record i've been diligently trying to get the circuit cook county to prepare the supplement because again as counsel discussed the original record on appeal has been lost which can be found and we've been working with them to try to get these other documents supplemented included and despite our diligence we have not been able to get them to complete that pro court to grant a motion second man and we're still trying to do that to make sure clear that this evidence is before the court and if this is an issue that is necessary for your honour's to rule on this issue which as you have actually discussed if you believe the judge epstein properly ruled in the first place i don't think that you need those records rule but if you feel that you do i'm asking for the opportunity again to continue to get these records supplemented from the circuit court of cook county because it's not mr gavin's fault that there are these problems at this point and shouldn't have to suffer for whatever problems there been in developing for and it makes sense to deal with these issues now rather than having this come back at some point in future to discuss the reasons that the record wasn't prepared but as your honour's have have raised potentially i don't think you need those other grease to rule on the issues and further well they that's the issue on the record then and i want to see today you know talked about this is being argument by ambush i mean the records although not certified have been provided to the state and i don't other than the issue about  affidavit being part of the record or not i don't hear counsel saying that anything that we've cited in our brief is actually factually incorrect although i understand that they may not feel they're in a position to say one way or another so it's not really an issue of not knowing what the facts are but it's about not having the official record in front of us to confirm i think is more the issue setting aside what your honor said about the half sheets i can discuss the cousin prejudice issue in more detail but as we've talked about i think judge epstein ruled on this and i think it and also your honour's looking at the record to the extent that there's some question in the record about whether or not cousin testify and ask him about what he would have said when and i think and also your honour's and i apologize for for keeping saying i think if you also look at what the state argued about the actual innocence issues and about mr galvin's opportunity to know sooner what mr partita was go say they themselves even used as evidence that he could have discovered this earlier the mr partita is saying that he provided this evidence to members of the police department he was interviewed well that means that there is a brain issue here potentially that needs to be resolved the evidence in this case appears to be one side or the corner or the other either its actual innocence evidence that couldn't have been discovered earlier in which case it fits into that actual innocence claim or there's an issue here with ineffective assistance of with brady and that's why we need an evidentiary hearing to uncover what the claim originally ordered it i don't have any other questions