eleanor illinois courts have routinely helped this threshold for survival is low a petition must state only the gist of the constitutional claim it need not include citations to legal authority or legal arguments a trial court must read a pro se post conviction petition liberally and may council peel has no discretion to determine which issues he wishes to pursue can you say you know what i have no chance of winning on this issue i'm going to focus my attention on the other issue he do that without possibly having to self labeled as ineffective arguably effective appellate counsel raises all the issues that have arguable merit this is somewhat different than the circumstances when you're evaluating a claim judgment you fail to raise a claim that has arguable merit so peeved low standard a lower standard that you're indicating is the standard that applies to post conviction proceedings applies to appellate coun on direct appeal as to which of who knows maybe many issues that have been raised as to whether or not he i think i don't know if you're right if you're suggesting that he's constitutionally arguable merit and if this if this claim so the argue the merits standard applies and direct appeal stop i'm sure in fact saying that that really direct appellate counsel or direct appeal counsel has no discretion to determine which among many issues he can decide to pursue unlike the case where trial counsel is making strategic decisions to present what it perceives to be the best  decide which of the issues you want to raise and do you have the part in that process say well i'm going to raise every issue that has arguable me or that very low standard that we apply impose conviction the part of you thinks you one of your colleagues simply ignored the issue i or didn't i mean certainly we all we all acknowledge it was preserved right and it was certainly part of the record right as i was not the c what is your best case that says that the appellate counsel hence due to a constitutional duty to raise all possible arc of issues one says that if the underlying issue is arguable then it was arguably unreasonable for appellate counsel to fail to raise it and that is the ultimate decision of whether that was or was not in fact an reasonable assistance of appellate counsel is an inquiry on the merits  conviction how do we resolve that tension and because we can't evaluate argue homeric you know actually we have to look at what the and in fact i think that the cases talk about when it's  testimony in this case because the case concerned whether or not ceased items were tested was there testimony in this case that the seized items were available for testing the defense was freed as to suggest or request testing of these materials and did not that evidence had come out through the testimony of the forensic evidence technician the stake that of remind you to go too far the state created the impression that it was incumbent upon the defense if it wished to far what's wrong with that what the conclusion the state says if you're going to go back there and talk about the lack of evidence at least be fair about it which suggests that if it was error for the state and not just that it was error for the defense to not test it to that's the kind of argument that has been held in cases like these to be shifting the burden to the defendant to present some sort of affirmative proof of what that evidence would have shown and that's where the burden shifting goes too far it's not in your comment on the defense was free to seek testing of those materials which was  have those items tested just to make a substantial showing that his constitutional rights were violated during the course of the trial if you go back to the second stage if it would be appointed counsel who would have the opportunity to craft riffraff if need be present what arguments it felt were appropriate for a post a picture proceeding whether that would include the testing of a tested forensic materials is not something i'm able to comment on at this point me ask you this if you have limited resources here off the defendant is still entitle to the presentation of the case and  issue which could change the result isn't it true so this and that is wait wait let me give me a moment please your head all that stuff you're getting a little test how well you know i think that you're going down the wrong the wrong road a road that no one should ever go down defendants are entitled to a fair trial and a petition that should be heard if it's the gist of a constitutional claim at the first stage isn't that true yes that's not dependent on limited resources and not dependent on whether a lawyer just because he has a license we're here to address right whether or not it was wrong whether or not a wrong occurred whether or not the council was arguably ineffective and that's what we're trying to address here right now in your argument is that he was and we're going to hear second stage if there's an arguable basis evaluation on the merits of whether counsel was or was not ineffective the likelihood of success of the burden shifting argument had it been presented at trial those are merits evaluations that are inappropriate for  be specific facts and pursuant to how just there has to be expression for first stage ineffective assistance of counsel about that authority that you are relying on that says the precise issue or anything close to that that that has been raised on most conviction appeal i had to have been raised in the post conviction titian the pro se defend why i believe that people be john's that says if you you cannot raise an issue on direct appeal that was not in your post conviction titian you have recently said that's certainly true so how does that how do we get to that very narrow point that you're trying to establish that the issue itself must be in the post conviction petition that's what i think you're arguing is that what i guess and the reason i'm arguing that is because even if the trial court looks at the petition figures out they're supposed to go to the motion for a tryout looks at the motion for a new trial the claim there is that the prosecutor made a laboratory remarks a closing argument there's still no claim of it of a burden ship so the trial court now has to speculate as to what comments the defendant is referring to and what the claim actually is and the post conviction access that the claims do have to be although maybe there is a low burden there does have to be a specific claim the judge he certainly knew about he certainly was conversant in the trial itself and he had no he had no inclination to say you know i'm requiring more than that there be an arguable claim of ineffective assistance of counsel and that it be arguable that the defendant was prejudice and we don't have that here i there is no arguable claim of deficient representation let's right to this because that's all absolutely or it is a proper response it's not it's a proper response and it's based on evidence that was admitted trial up on objected to testimony by dennis foster and it is a proper response because the defense counsel's closing argument is basically saying you didn't test this she didn't test the pillowcase why didn't the state do that while they had their man the state didn't test fingernail clippings why they had their me and the inference there is that the state intentionally withheld testing and evidence because they were already going to pin it on the defendant that required a response by the prosecutor and when the prosecutor responded the prosecutor did so properly and they said we have the burden we know we have the burden but while the defendant sits here without burden he does not sit here examination the defense counsel asked her while she didn't test this she didn't test that she said no i was never asked to i'm direct examination the prosecutor says well a defense counsel would have asked you to test it would you have tested it yes did he ask you no no objection the prosecutor has every right to comment on properly admitted evidence and they have every right to respond to the type of closing argument the defense counsel made so getting into the simple language john are you saying that the appellate counsel on direct appeal was not wrong in not raising this issue i am saying that a public concert was not wrong and i'm also saying when you're looking at whether there is an arguable basis or deficient representation in a case like this you do actually have to look at the case because for a claim to have no merit in law the case law says that it if it is based on something that is contradicted by the record it has no basis in law this claim and this case is contradicted by the record so for that reason there was no our global basis in law and in addition to that the defendant is required to make an arguable claim of prejudice that is a burden that if any cannot meet the evidence in this case was overwhelming the defendant just go to jail the day before for the murder weapon is found in a dumpster behind the home of the defendant along with the victim's purse and the defendant confesses he gives a videotaped confession explaining how he went to dawn's house with an ice got the better of it laughed when he got a hammer came back beat her to death with that hammer and little house on fire in the stairwell knowing the children were home blocking any chance those children had  escaping fortunately one of the children woke up and was able to rescue all the kids on the roof he knew those children were in there he admitted it but they are but he also he also has a point of i'm not sure where what his point was but he did about whether shifting the burden to the defense is what do you think what do you think drives opposing decisions in those cases that you're referring to you think the facts drive those decisions and do you think the facts of this case even permit an arguable prejudice claim by your digits not just yet there was evidence a trial against the well we know that every conviction has some evidence we're talking about the nature of was it overwhelming i would submit that it was not so overwhelming that the defense's theory was impossible and thus that it wasn't arguably prejudicial to underpay to completely undermine the defense's theory the confession was contested the defendant testified at trial that he his what though those those things that judges often observed in the course of hearing testimony to determine the credibility of of  testimony of a with this and the jury saw that on the part of the defendant in the videotape but attempting to evaluate what effect it would have had on the jury to know to hear this purchasing argument and to have it undermined the defense's entire theory of the case and to with the confession that was given by mr means so this was not a case where it's impossible it's just impossible to tell what effect that would have had on the jury and because it requires an evaluation of these facts and of the merits it's inappropriate to say that there is you don't have to prove likelihood of success you couldn't purchase may be found even when the chance that minimally competent counsel would have won an acquittal is significantly less than fifty percent that's for people be much harder it's not that it's not a requirement that you prove that he wouldn't