may please the court this reporter has presented an actual innocence claim based on the statement that completely exonerates him and this evidence whether it's considered an affidavit or not requires an evidentiary hearing to determine whether mr porter was wrongfully convicted and the alternative counsel rendered under reasonable assistance in failing to have the document notarized despite handling the case for fourteen years what it has presented a strong claim of innocence he's provided the statement of co the premise is that there was some violation of the standard of representation for not calling him not moving for severance right that was one of the claims in the petition it's not the one that were pressing in this particular appeal but there is a claim of tibet of that nature in the meditation well let's let me just focus on that for a few minutes  first of all what was the impediment to calling mr austin as a witness following his acquittal at the close of the state's case as in way there was no longer any fifth amendment not less double jeopardy as a race from the from the blackboard well i suppose that theoretically a possibility although we don't really know any of the circumstances of that because counsel never pursued that your burden on the circuit in a circumstance like this to to say even when you're claiming this is error or saying that this was newly discovered when you have someone who has absolutely you can sitting beside with his counsel sitting beside counsel and mr porter throughout and all the sudden the skies open up the sun shine down on mr austin and he is that he is able to testify and they let him walk out the door and then they claim newly discovered evidence afterwards when they chose not to call him as a witness when he was absolutely available to be called i think it's likely an instance of ineffective assistance of trial counsel if that's the case if he truly was available at that time and that is certainly implicated in the  o the claim regarding the failure to file a motion to sever up how can it be ineffective assistance of counsel when his own testimony if you call this an affidavit which is is another issue contradicts mr porter's own testimony that he was a block away at the time the shooting started well a period there are we already have some some trial evidence in favor of the defense certainly doherty's anything that adds to the nothing to what was already before the trial or fact is considered cumulative but here we have there are some differences that's true but that well i think his presence is a pretty big difference don't you that's true but i think that's a question for an evidentiary hearing there may be some differences in this evidence and there may be some contradictions but there were contradictions in the state's evidence too and this was very thin evidence here the state witnesses had a very thin grasp of who mr porter was some of them thought he was a completely different person named hodgy they couldn't seem to agree whether he participated in the offense itself or if you know that i think the high g issue is more what was this guy's name that it was somebody they hadn't seen before but let me get back to the issue of you reason here that there was a failure to meet the applicable standards for failing to saffron's can you enlighten me is what the grounds for severance would have been well that's part of the problem with that claim i don't think that the claim really gives any indication why there would have been severance necessarily now it's  isn't it true that there are really two grounds available for severance in illinois yes you want to tell me what they are well if you have and antagonistic the fact is raising antagonistic about the defenses of these individuals not that i can see but  the other one the other was case my memory rubin's oh that's that's correct or is that present in this case no i don't think there was any group mission to solely what would be the possible grounds that any competent lawyer could use to ask for the severance that you say he was ineffective for not asking well i know you're not pressing that claim right now i'm saying that to the extent that austin became available once he was directed out in this case counsel was ineffective in failing in any event then i don't think it would necessarily matter i mean you do have you do have counsel postcondition counsel representing mr porter for over fourteen years and accomplishing virtually nothing in fact the only thing he did over that time was and if no matter how deficient mr hayes is representation of the defendant in this post conviction might be no matter how dilatory he was in waiting an incredible fourteen years to bring this claim for we did ultimately there is no valid claim in the first place what can we do you could find that he was still on reasonable simply for taking as long as he did this is extremely i don't i don't think you get much argument there he didn't do anything you claim he was doing a lab you said he was interviewing he said that there was growth you know people recanting their testimony said there were people in india and he said he's go statements and he didn't do anything that's correct so he's given the problem there well there is that kelly case that indicates that a delay of this nature combined with the inability to accomplish anything is essentially of itself on reasonable assistance and i think that there could be an alternative argument to that effect that whether the record of bills or council just did nothing for that long of a period despite his certificate i think you could say that that was on reasonable assistance of counsel this is a long period of time the court was exhibiting growing impatience over the constant delay and the lack of progress i consider cases well used to that may be true are but i don't think it necessarily means that there was reasonable assistance in this particular case and i mean he did file a detailed rule six fifty one c certificate which indicated essentially every single thing that he did which was each portion of the record that he read the fact that he was looking for witnesses everything that he did and there was never anything there indicating that he was trying to do anything about mr austin statement to have a notarized or to correct the defect that the state had identified in its motion to dismiss but getting back to the statement itself it's a complete exonerat testimony of mr porter himself contradicts the content of the purported affidavit by placing him on the scene when mr porter testified clearly that he was a block away when the shooting happened again without a problem it's a potential problem but again i think it's a question for an evidentiary hearing i don't think it's a question for the dismissal straight on the pleadings here especially when the state evidence was so weak in addition of the problems in the state's tests testimony you have no incriminating statement on this report as we have there's no a physical evidence linking him to the offense and even the trial court sentencing told mr porter if you are in fact innocent i am doing a grave injustice here and that's a pretty remarkable statement another kind of thing would expect you know from a trial our value colleague now departed judge syria was justifi for his humility and his kindness to people who appeared before him and i read that as with a smile on my face because knowing and having tried cases in front of judge story over the years he was somebody who never ever said that anything that was done by you would be is infallible and it was just really an acknowledgement of that and i to say that he had a reasonable doubt at the time which is what you're really implying i think is is really not justified from that isolated town that well i don't think i don't think i would say that he was experiencing reasonable doubt at that particular moment because then of course he would have or turn his conviction at that point i think it's more a question of whether he was this is a close call this what you know the court may have found that he was proved guilty beyond a reasonable doubt but the evidence certainly wasn't overwhelming and there may have been some lingering doubts in his mind in this case and it makes sense based on the evidence and under these circumstances a complete exoneration of mr porter even if there are some some differences between the accounts of the defense witnesses and what mr austin says i think it's a matter  for an evidentiary hearing to determine whether mr austin is credible whether his testimony is convincing and whether it's enough to take this very you know on the fence kind of case the other way and i don't think that it's a it's not proper to dismiss it at this stage in light of the fact that it is a complete exoneration which is the hallmark of actual innocence and accordingly if there are no further questions we have this court reversed the dismissal of mr porter's petition and a man the cause for an eviden was that former codefendant james austin's purported witness statement and that's about as far as i'm willing to concede what that document is was evidence of ineffective assistance by trial coun quote is not free as this court is under its supervisory authority to excuse in the context of post conviction proceedings an appellate waiver caused by the failure of a defendant to include issues in his or her post conviction even if this claim was somehow implicit in the petition that wouldn't be sufficient under this court's holding in people persons called please if you were to get to the content of the of the statement gener went to the penitentiary were mr austin was or tracked it down there after it said oh by the way would you raise your right hand and swear to this statement that you say i don't have to be the reason that could then maybe there's an argument there but we can't do that because that's not that's not the rule and post conviction counsel how do you get around the kelly case people versus kelly where the court holds a there's a  there's a twelve year delayed to in the filing of the initial post conviction petition and the filing of any rules six fifty one c certificate if that is manifestly a reasonable systems here you've got not only have twelve the meantime i n has written to mr hayes said that he was out getting statements he was out getting recantations it was a really interesting investigation and then filed ultimately the six fifty one seat resting on what had been filed you know more than a decade before how was it reasonable and how was it of any assistance to anybody he said he was trying to get it i i have tried he didn't say i've gotten statements and and he said witnesses are going back and forth  think i find it difficult to defend the time lag and the good some of the statements no record right but i don't think that it's dispositive and he went in and said here's what i'm going to do and every time the judge what judges said that's a good  proudest stations of activity of mr hayes you could induce not collapsium just about any reader ok did nothing so i am just trying to figure out what's so different about this circumstance versus the kelly case well first of all i as i said i don't have cally from it i don't think it was raised so i'm not as familiar as i'd like to be that big happy to prepare something explaining why i think it  that she could have actually it's unclear as to why that statement wasn't perfected on her watch if it could be perfected in other words why that statement wasn't turned into a valid piece of evidence she sent an investigator out the not no indication at all as to why there was a problem getting it done that's true but the presumption that springs from that is that he was trying to get witnesses and that he sent investigators and if ever a presumption was rebutted reasonable assistance this seems like it was pretty well reviving eighteen years of saying i'm going to do something and i never did then he was not able to get the under suarez another rule sixty one serious cases there is no harmless error provision of unreasonable systems of counsel so if this court finds that counsel was unreasonable given what he did and it seems  for further proceedings as required under those circumstances let's let's compare this with the jurisprudence that's evolved over the years mr mcneil with the higher standard of and effective assistance of counsel under strickland even if you get to the point through the first stop part of strickland that there was representation rendered which didn't meet the standard  reasonable standard you then have to go to the second prong which would basically ask you whether it undermines the confidence you have in the outcome of the case and if you don't meet correct that is true yes i mean what will this true with regard to deficiency problem right now if you really doing is you're saying there is no second wrong on a post conviction even though the protections merit it doesn't matter if there's a violation of a rule six fifty one c you have to remand for further up proceedings and i understand what you're saying about the you know there's two prongs in effect of this claim in the sense that you're ripping out th prejudice prong for a postcondition counsel that might imply that you're applying a lesser standard overall if you're playing a lesser standard to be met by the petitioner than would occur if you had the so called broader protections in particular just have never got into that if if counsel is only reasonable through i e deficient as i think he was in this case i don't think you really get into the question of whether it could have mattered  your view that if you do find that the assistance was unreasonable even if you're able to establish to a certainty that it makes absolutely no difference hypothetically in my case you would still be required to reverse it might encourage a lot of negligent lawyers you know it's possible sort of a perverse thought that the more encampment negligent careless ineffective the lawyer is and the p c the better the chance that the  is one of the very few areas where the supreme court has actually stepped in and forced its rules at all costs i know from personal experience that they don't always do that but with regard to rule six if you want to see it they absolutely do say that they say if there's if there's unreasonable systems six fifty one c is violated and you need remand for the proceedings and distort well you have great self control not to blushes you make that argument