hearing because it made a substantial showing with two pieces of newly discovered evidence of his actual innocence of the murder and kidnapping at issue in this case at trial only two of the state's witnesses identified mr sanders as being involved in the kidnapping only one of those witnesses identified him as the perpetrator of the murder in mr sanders new successive petition you it was wrong to deny mr sanders an evidentiary hearing for three reasons number one at the procedural stage where this petition was dismissed where the state filed a motion to dismiss credibility determinations were improper the state by filing a motion to dismiss essentially admitted the facts and the question before the court was to the facts alleged in the petition taken as true at that requirement of collateral stop it is it is the law illinois and around the country that findings from other proceedings are not adopted in a case unless there is mutuality of the party there is the fact through those proceedings and that though in those proceedings the testimony was not found to be credible however  well i'm not sure about having it both ways the the the question at the second stage is not whether the the testimony being brought forth is credible another question is taking that as  i'm sorry and the reason for the mutuality requirement for collateral estoppel is illustrated by the fact is present in the instant case certainly in any case one might speculate that an attorney for a different party might be able to more effectively examine the witness than than the the other attorney did but in this case it goes beyond speculation the record shows us that mr sanders as i mentioned earlier there were only two witnesses both of them co defendants who identified sanders as the involved area may in addition to those two witnesses was identified by a third witness at trial testimony and also indicates that she was an eye witness as well she indicates that she was the witness referred to at trial as d d but there was no way for said david she indicates that she was afraid to come forward and additionally he did not know her name had no way of discovering her name simply the letters d d did not provide him with information even identify who she was and even if he had been able to identify who she was rather david which must be taken as true at this point in the proceedings indicates that she was not going to come forward due to fear of having to after having been threatened by them when he returned to the stands there are more than twice as many witnesses who say it plain sanders was not involved in this offense than ever said that he wasn't in which a defendant can obtain a tactical advantage through clever strategy and deliberate legal maneuvering and box a court into having to have an evidentiary hearing and evidence that it has already considered and rejected yet that is exactly how the defendant is asking this court to interpret the act today in seeking disfavored success of post conviction proceedings the defendant attached very selected  recantation testimony which the defendant knew had been prevented in an identical collateral challenge by his codefendant and rejected as incredible in those proceedings but the defendant insisted that the court could not consider anything about those other proceedings other than the excerpts that he deliberately tailored to suit his purpose going so far as to i'd omit single pages of that testimony where the answers to questions about the claim sanders involvement in the drug dealings were to be found i think in their motion this most bring forward those contradiction kind in terms of the did they present the rest of the testimony no your honor they did not present the rest of the testimony but they indicated and the court recalled that it had his hearing and the court so that rather than in the motion to dismiss bringing forward contradictory evidence the state's only argument was judge you heard this case with the other defendant and you found him a criminal that was a position to say that was one of the positions of the state the state's position was also that the success of proceedings weren't appropriate in this case but the state isn't allowed to bring forth contrary evidence at second stage so it could not  that it knew to be false they correctly found that the court could look to the related proceedings of a codefendant to determine the legal sufficiency of the defendant's petition and accompany documentation and that is a very different thing than a credibility determination judge lynn made a credibility determination in aaron may's post conviction proceeding after seeing gary bingham testify to his recantation he determined that that evidence that testimony was not reliable in this case that finding operated as a legal finding that the very evidence that the defendant said he had that was new that demonstrated his innocence that evidence was on reliable it was not trustworthy to address the question  that at that other hearing this defendant's lawyer was not present and had no opportunity to in fact question be him in any way that's correct your honor but the defendant here is relying on that testimony as a thing it he is not saying that something that i have i might be able to get other evidence of my innocence if i get questioned he's saying this testimony is evidence of my innocence and this testimony is not evidence of his innocence because this testimony has been rejected it has been found on reliable so if the defendant had come forth with an affidavit from gary bingham explaining more if he had provided more credible evidence but first of all it shouldn't be considered evidence of actual innocence when this court created that very narrow new procedure in washington what it's said is this we need to create a new process because we have a situation which is not covered by the processes that we already have in place we have in washington a defendant who is not challenging the adjudicatory process by which he was convicted he is saying yes i was convicted after a fair trial but now i have evidence that the result of that trial wasn't reliable and this court when it created that actual innocence exception said that's not covered by two fourteen a one that's not covered by the post conviction hearing act it would be unconstitutional under our constitution to have an innocent person convicted we are going to create this new process but the uncorroborated and almost fanciful  this case goes to the heart of the adjudicatory process by which the defendant was convicted and the defense lawyer can estimate of the questions they want the judge will make a decision is not the whole purpose of of truth here that that would be the purpose of a third stage hearing if the defendant had made a reasonable showing but the defendant in this case has not shown anything that would establish that this evidence is newly discovered that it could not have been discovered through the exercise of due diligence or that it was so conclusive that it would probably change the result of trial d d s affidavit says that the defendant came one time to the being it came one time to donald garfield's house and purchased cocaine that he then left and he returned with a gun and white plastic baggies containing the cocaine but recantation talks about coming to times and that was what he also testified at trial and that's what donna barfield testified to and that's what william rance are testify to that they came once and purchased rock cocaine and then  this allegedly corroborating affidavit doesn't even really corroborate the recantation and gary bingham doesn't say anything about going back and threatening everybody so it really does not provide the type of corroboration that you would need at second stage to make a substantial showing of actual innocence but what the defendant here is doing by presenting this recantation testimony as evidence of actual innocence is he is attempting to present a second claim of perjured testimony through post conviction proceedings because he presented an initial claim that kerry being in perjured himself and he had an eviden hearing where gary bingham testified and now under the guise of this very limited actual innocence exception he's going to blow open the door get to present a second claim of recanted testimony without establishing cause and prejudice which is required for any procedurally defaulted claim and without having to make any argument as to the state's knowing use of that testimony which is required in post conviction proceedings he is abusing the very limited process that this court created in washington for a purpose that it was not intended to this should not be considered evidence that should listen in addition it is not new gary bing testified at the first successive post evidence here a hearing in the post conviction proceeding of this defendant and aaron may and at the time he testified he had no fifth amendment privilege he'd been convicted his conviction was final and he had waived any fifth amendment privilege by testifying against his two co defendants so all the defendant had to do was ask gary being him when he was on the stand testifying favorably for the defendant didn't you really commit this crime by yourself and gary being up would have been compelled to answer and yet the defendant didn't do that and now he wants to be relieved of his failure to do his diligence and he argues in his brief that he's shown diligence simply because there's no evidence of record that he could have obtained this evidence sooner where you don't get to turn your burden on its head and say because the state didn't prove that i could have found it earlier you have to assume that i'm diligent it's his job to show diligence it's his affirmative duty to show diligence and there is not one factual allegation anywhere in that petition or in that testimony or in the affidavits that shows that he made any efforts whatsoever to discover this witness or discovered this testimony nothing that's not diligence that is not what this court has expected of defendant trying to bring a third petition post conviction insufficient as a matter of law to make any showing and the court could properly consider that both because the defendant having asked the court to consider part of the proceed stopped from from blocking the court's consideration of other parts of the proceeding and the appellate court's holding was not predicated on collateral a stop and so the defendant's mutuality argument here is totally irrelevant the court's argument was her position was predicated on equitable principles of the stuff and the law is replete with examples of how this was proper whether the law works is how is proponent a party cannot put forth some evidence and then block consideration of other related and highly relevant evidence because it's not favorable to his position it wasn't fact by fac correct but there is a dispute as to whether or not this qualifies as new evidence there is this feud as to whether or not this is entitled to the presumption of truth there is a could you respond that many of the cases  recognizes and a court's the proper deference to facts found at trial and those facts have been filtered through a host of truth seeking measures designed to fund to help the trial achieve its main purpose which is to find the truth and so all of this trial evidence goes through discovery and investigation and confrontation through cross examination the presentation of alternative evidence observing the witnesses demeanor and at the end of that afterwards and survive the crucible of all those things the trier of fact determines what the facts are and having survived all of those truth seeking measures a presumption of reliability has to attach that is the fundamental principle of our criminal justice system so in coleman this court recognise that we are the record of the affirmatively rebuts the allegations of the petition it is not the court is not required to to put this new evidence on parity with evidence that has undergone all these truth seeking measures and so coleman said you don't have to well carry big knives absolutely fanciful recantation is a firm that if we rebut it by multiple facts of record not only the defendant's his own detailed testimony but the testimony but his can't written confession which contrary to the defendant's reply brief is part of the record and can be considered by this court and that confession does not say anything about him acting alone it is affirmatively rebutted by the testimony of donald barfield who whose house this drug transaction and the and the kidnapping occurred from and he specifically names the defendant aaron may and gary being a as having been present and it is contradicted by the testimony of william graham sir now william ramps or tried to move away from his identification of defendant as being involved he said he didn't recognize anybody in the courtroom but there was testimony right in that he had viewed a lineup and that he identified the defendant as because of the other kids it wasn't the basis of the trial court ruling his ruling was yes your honor before my time runs out i would just like to make one final point all of these same factors demonstrate that the  successive petition under the just standard which this court rejected in edwards and because it applied the just standard and because this evidence isn't new because it could have been discovered sooner because it isn't evidence of actual innocence and because it is not so conclusive that it probably would change the result on retrial then the there was not a color rope claim of actual innocence presented here and this court  held that even where something goes twenty evidence here here and it can go back and question whether successive proceedings were improvidently granted and that is also a basis so for all of these many reasons the people could have gone back and looked at you are transcript which would include the judge's finding of non credibility so that what are you claiming he's submitting non credible transcript  i believe that under this court's well established principles of judicial notice even a judge that did not hear the former proceeding would be entitled because to dish on notice allows a court to take notice of matters in other cases in the same court when those matters and tale is substantially the same parties and when the other proceeding is determinative of this proceeding and so it would be wholly proper the situation of co defendants right is having separate evidentiary hearings happens all the time and there is no or simplest i'm sorry simultaneous  conviction proceedings there is no reason for those things to be read by the gate if this is especially true in a case like this where this is the defendant's third post conviction petition and regardless of how his attorney cross examined shot twice so it contradicted everything i see that my time was up if the court would give me one minute of an indulgence i would like to say this will probably be my last argument before you and it has been an honor and a privilege to be here so thank you phone dunbar field indicated that plane sanderson come to the house early in the day and participated in these drug deals that preceded these events very big was testimony was that mclean sanders was not involved in these drug think that he might obtain it but in fact that was an evidentiary hearing not one that allegation but on the allegations of a affidavit that did not get into that at all so mr sanders said no way the affidavit pertained to  no way of knowing that the ramus would be willing to come forward and in fact reffer david which must be taken as true indicates that she would not be willing to come forward before due to the fear that she was living under having been threatened by we don't see you again the best