and if i may reserve just a couple minutes for rebuttal may please the court in order for a post conviction counsel to provide a reasonable level of assistance in this case he had to amend this petition that is in order to comply with rule six fifty one performance at the second stage of the post conviction hearing what are we to look at i would ask this court to review whether counsel amended this petition and he did not amend this petition and that's best evidence by the fact that judge hines actually said i don't see anything in this petition regarding appellate counsel's ineffectiveness and then when judge high's issued his written ruling if on the claims to be procedurally defaulted ok well if it wasn't not appealing the substance of judge hines's order on the merits he's appealing the performance of counsel in the first place so the u s supreme court has set forth this sort of bright line rule of a policy considerations to ensure that a if a petitioner is appointed a second stage counsel he provides a reasonable level assistance which at a bare minimum or a minimum requires adequately presenting this petition to the circuit court  assistance defense counsel should provide how it's how you assess whether it was raised and i thought that section or rule six fifty one says that they have to  defense counsel has demanded titian years contention and to the extent that the pro se petition does not make an allegation of insufficient was the claim itself was so obvious based on the record that post conviction counsel reasonably should have added that claim in his amended petition and when he didn't he was a rea this post condition consul actually believe this to be a sufficient civvy evidence claim because he actually put that on the record after the state argued procedural default and its written motion and judge high's se going to respond to this he says no and petition and and post conviction appointed post conviction counsel understood that the pro se petition allege insufficiency the evidence is that the trial court got it wrong the trial court when he sat i don't see an insufficiency of of the evidence claim in this part in this process a petition upon which reading of the pro se petition when he to merely read the petition has not raising an insufficiency claim no justice course in this case i think joe johns got it completely correct because of the evidence claim and if it raised his efficiency of the evidence claim then i don't see how we can apply to that very clearly in order for that claim to be adequately fast and you would proceeding in stage two is to present the claim of the defendant in a proper form and that wasn't done here is that what happened this is clear and that is my position this case is is on all fours with turner in the sense that  whether or not this is a winning claim is not the issue is that we expect an adversarial proceeding at second stage we expect counsel to provide a routine amendment to say a man didn't have the shot because it was  get the right the what is given to him by statute isn't that what this is all about that's correct and in the terms live let me let me phrase it this way what i think you're saying is that counsel all he can see he been raised and the only means that claim could have been raised is by faulting appellate counsel in addressing it in the first instance in the direct appeal and when he didn't amend complaint to put it within the context of a constitutional violation which would appear ineffectiveness of appellate counsel he acted on reasonably in turn their stance for the proposition that when such a simple thing  when when postcondition council is is is has the duty to ensure that the door isn't closed on post conviction counsel for failure to properly ra that and if i could just make one point in terms of the bigger picture here but i find disconcerting about this case is that this post conviction counsel continually for the course of this representation told the court that he was going to stand on a procession that was clearly an adequate and i think it was sort of a nudge and a wink to the state and the circuit court that this is not the sort of petition that he's going to advocate for and if that's the case if he's not going to advocate on this petition he has to withdraw it's either you're going to withdraw because you don't feel like this is a petition it's adequately presented and i mean even in amendment when doing thing where you can advocate on your client's behalf because it has to be adversarial and this was not an adversarial proceeding it but also in the bigger picture this was this was a race war in the sense of the word the word unreasonable yeah that's withdraw it has to advocate but you can't fall into the sort of nether world where you're not going to do either one and then ultimately for the petition before which was a post conviction counsel post conviction petition he had that had to be an allegation of a constitutional violation and that had to be couched in terms of what happened during the trial itself or the direct appeal and he did neither he acted as if it was a direct appeal i could claim inefficiency insufficiency of the evidence and that's a sufficient constitutional claim in post conviction petition and yet it is not that's fairly clear that's morning again i just want to clarify something about there's an assumption going on in this case and that is that it is a simple routine amendment to allege that an appellate attorney engaged in ineffective assistance of counsel because he didn't make a sufficien quite understand the turner specifically found that it was routine amendment in that case but really the alleged routine amendment here is a claim that the post conviction attorney should have decided that your position in terms of the pro se petition as it stood before judge on was that it did raise a constitutional violation presumptive that counsel did everything that he could within the realm of his application under six fifty one so let me stacker for a moment this lawyer was so mixed up in his presentation that he made a have to totally disregard turner would weep that you know your honor i don't believe you but if this record and that's why i was about to say that turner is not an off or since you said before first off turner did not involve a scenario where the attorney files a certificate so there was no presumption of keep interest of your people before you finish your point but let's say turner is it on all fours for the very reasons you've already indicated but i think we really presented with the choice between ho are or are the certificate on the one hand by counsel under six fifty one and the presumption that flows from it and eight finding of the waiver by the circuit court that we can certainly consider and don't we decide between those two opposing positions whether they're that waiver could have been avoided had counsel post conviction counsel amended the petition it a reasonable eat it in a way that what we could say was reasonable in light of the pro se petition while you're on the net thank you brought me right to my next point just what i was trying to make alleging ineffective assistance of appellate counsel is not simply checking off a box it's not simply saying the attorney should it on that it requires investigation on behalf of the appointed post commission counsel to make a determination that the appellate attorney failed to engage in can't granted petition for rehearing because we were informed that the strickland standard is that the standard that we should apply on a second stage review of the post conviction promotion granted just to make a petition or alleging a claim of insufficient evidence on its face it's it's fairly obvious that his claim is is without merit because it's based upon a claim that he was convicted under with your seo so we all know that your say evidence is legitimate evidence back it would be a routine amendment only to stave off to to to allow the mirror its own or to allow whether or not the record adequately supports that claim of ineffectiveness of appellate counsel as opposed to say having the judge say you know what i don't even have to look at the record i don't have to examine what appellate counsel did it off i just have to say you know what this is not a claim that's properly before but if what you're saying then you're heard that if a claim makes it to second stage and counsels a point that the attorney is abrogated to make a claim of ineffective assistance of counsel to negate office all he's obligated to do is to to avoid ineffectiveness of appellate counsel without the need to to to lay out a complete petition supporting that claim while your honor i would say that it would be attorney could have raced it middle east now the best advocacy and that's saying that if in yes to the question is whether or not it meets the lower threshold the reasonable systems under six fifty one c and what we have here is we do have an attorney who files a certificate who is presume to know the law was faced with what nearly everyone will say and i believe in my post house will say the claim of insufficient evidence is clearly without merit because it's not based upon having so he was not given you have to accept the presumption record supports it and therefore i'm going to stand on the original petition but that's one reading of the record the other is pursuant to what justice gordon just asked you that counsel thought that the post conviction as it stood before the trial court raised up a claim that was not subject to waiver forfeiture and he was wrong it ran or what i would say is if if this court were to find that the record ripoffs the presumption of reasonable systems it's a very different holding and one which says that an attorney as a matter of course has an obligation to make an allegation of in effect snow i think we w saying is that an attorney has an affirmative obligation to a whole a b bar of waiver or forfeiture when and that amendment requires attempt i can just respond very briefly to the point and i believe that it really gets the heart of the rule one thirty seven we know from suarez and from other cases from greer specifically applies to the representation of counsel postcondition cases attorneys who were appointed under rule six if you won every allegation consistent with rule one three seven to only make claims which they are factually believe which are fit with they've investigated the claim and make a claim and so an allegation a separate claim  position to basically throw in the towel like kind of a commander situation and that's what we're says we're gives him the authority to do that and the question i have is whether the record in this case would support a conclusion by this court that at that is exactly what happened and if we say the record is insufficient it was the record is unclear as to whether that happened and all we do is send it back for a second stage of proceeding where and it meant that complaint could be filed and if if the postcondition counsel says i've looked at the record and have the opportunity in the gaudy withdraw nation here that the attorney thought the petition was frivolous they just didn't there's no indication attorney thought there was any amendment that could be made to make it any better either we're doesn't impose an obligation on the attorney to actually withdraw we're imposes or we'll see if you one poses navigation and the attorney speak with his client to investigate the claim read the record and make any mamet's necessary to to properly address it and in regards to the question is th very specific question it presses does the attorney under six fifty one have an obligation to raise new claims in the claim in their case was ineffective assistance of appellate hell for failing to challenge the foundation of the evidence as it was admitted relying lawyer which everyone admits he did that do have he made any sort of allegation against his lawyer then yes the attorney would have been allocated to amend it appropriately under to honor and to do that it was up there here's one of the problems with position is that the defendants generally don't know what's going on in the appellate court they know what trav what transpired in the trial court and this defendant police that he was convicted on insufficient evidence and and does he know that that fault really lies with appellate counsel who failed to raise that issue i'm not so sure that it does yeah right i can't actually can't speak to what's in the mind of this particular defen t i do know that that process a defendant's are becoming far more seats far more sophisticated than they used to be we are constantly as this court seeing pro se fictitious which have multiple claims of ineffective assistance at every level we're seeing claims of unreasonable assistance of postcondition counsel of previous post picture proceedings and so that while any one individual defendant might not have a full understanding they usually do have the ability to say my lawyer didn't do something i mean they do it at trial court and crank up proceedings they do it often as this defendant did and that's significant because what what the fended is arguing now is that even though this defendant didn't make any complaints against his attorney his new attorney was obligated to do that and that's a problem but i think you're right also wasn't obligated to bring this plan but if he's going to bring it it has to be adequately presented this tension between six fifty one and one thirty seven is resolved under people vs career because people versus real will maintain an adversarial  oral amendment i mean this counsel said twice over i'm standing on the petition frankly standing on the petition is the opposite of amending the petition and it's almost conceding it's going to be dismissed that's correct and i want to make one last point in terms of the