honorable has been convicted of murder and in a two thousand and four out section fourteen  decision in people be vincent was decided and at that point how this court entered a supervisory order asking the fourth just strict appellate court out to reconsider its original from ins in light of vincent sadly that is not what the appellate court actually did either by contrast dealt with a judgment on the pleadings out beyond the end vincent offer guidance to the lower courts of the state on what the trial court could do we end there was an insufficient pleading but vincent never answered the question of whether a trial court could just dismiss t suggested that the timing this factor is an element and in other instances out when this court has looked element it for instance in the constantly this court did use the term of limitation and not of element and if is actually a statute of limitation and not an element of of eight to fourteen or one petition that this court has stated in people v harvey that the law was developing in the terms of notice and opportunity to be heard which of course is quite stated in this interest was not to be the case but that you noticed an opportunity would have also convict they in post conviction really statute is a much larger statute it has many sections to it one section of which contain position i would disagree with that assessment the that that sat it heard the evidence and that is what the trial court is required to do to make a determination in vinson which dealt with the judgment pleading that the there was a legal determination made that relief could never be granted because it dealt with consecutive concurrent sentences and it was not it was a matter strictly a matter of law if the trial court's if if the trial court which to look at the facts the trial court might allow mr hines to amend the pleadings which the trial court could do deal with some of the forensics in a bad were done in the case and in this case mr hines husband was killed in a recliner out her defense was self defense the issue is there are some issues as to whether the recliner had been moved indicating maybe that there was a struggle there there is a neighbor who gave some damaging  that might have been a monetary motivation so it it's not but i would submit it's not the kind of pleading that we can just dismiss out of hand or that this court should used to know for a few to to look at but really it's the trial court's obligation and this case to look at those meetings with with a careful eye and then the trial court would have the ability to dismiss it he would have the ability to it to she could just mi trial court could ask her to amend these pleadings so i think it would be premature for this court to look at the pleadings for the first time hon should be able to take it to have her doing court however brief that may or may not be that the equitable powers of section two fourteen zero one should be  available to her to have her conviction be examined and i would ask court to allow her to do that if the good morning to please the court counsel i'm assistant attorney general captain some reason behalf of the people in this appeal are really three main points i wanted to highlight this morning the first is that petition did in fact forfeit the claim she presen one is this a little bit different since the only basis for vitro corps ruling was timeliness and can we get to the issue based on the fact that was their rule and i know the technical forfeit true that yes this court obviously took this case to reach this issue in the could court could excuse petitioners forfeiture but that brings me to my second point which is having failed to raise this issue in the  even if this court were to excuse that forfeiture the appellate court really you know because she didn't present the issue the appellate court's decision shouldn't be viewed as having passed upon that issue so we can we get over that forfeiture hurdle to still have to determine you know what the which was that a trial court may never dismiss a two fourteen zero one petition absent notice and an opportunity to respond so considered in the context again of that argument to the appellate court the health court's decision is really best read to hol court that's how we determine what the appellate court will in fact decide and having failed to raise it petitioner apparently did not believe that that was the issue that she wanted to address she really wanted to again this was brief prevent the issue th to how to reconcile majority opinion with the with the dissent the majority opinion simply how petitioner to the argument presented in her brief while the dissent went you know outside of the briefing and dress what judgment or not its reasoning and petitioners claims here and lie to the record and provide no basis for section two fourteen zero one relief and they simply can't be salvaged by amendment i first point out that she f support a factual assertions with any affidavit or other showing as to matters not of record as required by subsection b of the statute and so her factual factual assertions are lacking evidentiary support but even  overlooking that in taking those factual assertions as true her claims are simply insufficient as a matter of law you look at her first claim ineffective assistance of counsel counsel should have been ph the neighbor frank burnett regarding the like the time he had known the petition or didn't present this expert testimony was known to her by the time of trial one thousand nine hundred ninety six the issue whether the recliner was moved the underlying issue underlying ineffective assistance of counsel it was fully explored at trial and therefore again provides no basis for section two fourteen zero one really and further has the prosecutor stressed in closing argument position ever testified that the recliner was moved during the struggle so therefore the well obviously you're out of this court has not spoken directly to the matter but i would agree with petitioner that this court's strong precedent strongly suggests that such a dismissal would not be proper cons the canon harvey which in turn cited a first district decision in people versus ross all three of those decisions suggest that such a dismissal would be improper because the statute of limitations is in effect affirmative defense that can be waived by the state or if we decide to  turning back to petitioners claims her assertion that frank intelligent burnett the neighbors knew her a long time because they'd gone to the same high school that frankie falsely testified that he'd known her for a short period of time really even if that's true and petition had been impeached with this kind of in consequential information it wouldn't prevented entry of the judgement particularly in light of the fact that three other law enforcement officers gave the same testimony about petitioners demeanor and the fact that the pursued into fourteen on one and it fails on another basis as well because she raised this issue in her post trial motion and on post conviction the court rejected it on both occasions and finally the gist of her main remaining contentions are really fairly summarises a claim that she didn't intend to kill her husband i'm to the extent again that this is a sufficiency of the evidence a constitutional due process sort of a claim it would be a legal issue not a factual one not cognized it could possibly be construed as a claim of actual innocence which would be properly cognizable in a two fourteen zero one but it would fail because the issue of her intent was fully litigated at trial and the only evidence she offers in support of her claim that the state was willing to engage in plea bargaining and would have accepted a plea to second degree murder but again no diligence because petitioner would've known of this before trial it's not a valid defense because as this court's well aware it doesn't show the petitioner even his plea bargaining evidence doesn't show that petitioner lacked the intent for first degree murder because second degree murder of course is just a lesser mitigated offense of first degree murder they share the same intent don't mean the mitigating factor mitigates the crime to second degree murder but of course navigate negate intent  intended to kill the petitioner even provided direct evidence of her mental state when she testified in cross examination that she knew that when you shoot someone you could hurt them very badly or perhaps kill them so again here is  opposing counsel following this court supervisory order and i happened to recently be reading in another context this court's second decision in the case and i read this court's analysis of the case in light of the supreme court's of the united states supreme cour said this court issued it in the instance and then choose said for these reasons we have you know we are from the trial court the trial court in this case does not make any judgment on the policing it did not make any judgment on the facts it made a judgment on timeliness the appellate court case furthermore is in a different position then people be demeaning referred to in the states brief as chief forfeiture in jeanine the in this court and at the last minute it came up with an entirely new theory of defense in this court said that that was a forfeited issue because it came to  to be returned to the trial court for further proceedings and if there are no further questions i would ask for such relief thank you very much