thank you when he represented smith because boycie had also been retained by the chicago police department the state's trey's office to represent john birch and other members of those offices who were involved in the mistreatment of  wasn't required to make his other source i don't know if there was another source if you look at his affidavit he simply said i learned of boy keys represent taishan of those entities during the time he represented me at trial he i we don't know who the source was we don't know if it was in passing in geo if you was complaining about boy he's representation of him at trial because it didn't seem like he was reluctant at least at the motion to suppress hearing to put mr smith on the stand to challenge those officers testimony if another inmate maybe hit has said to him you know that name sounds familiar i think you may have been involved in those cases from that point then mr spirit according to his affidavit went directly to the source of where he could get this information he went directly to what mr boycie and he asked him directly answer at the point here the application to tell him whether or not his representation was conflict but he wouldn't boycie represented the state's attorney's office representing the police department is frankly fantastic i mean so i would think that you have to have some supporting documentation  contemporaneous do you agree that there is a requirement that mr boyd he has to represent the defendant contemporaneously with some other person that created the alleged you know but also that the statute requires some corroboration by way of the affidavit any kind of evidence to support some corroboration to support the and arguable factual basis are and the question of fact is exactly that when did mr yuki represent did his representation of the average police department or the state's attorney's office at the same time the way you just alluded to i'm sorry it isn't the state's attorney's office kind of like a dead issue i mean there's nothing in here that suggests that this your boy king was representing significantly different terms of a conflict analysis is is if you would say well if you would say well we have sufficiently shown that mr boyd you represented the state's attorney's office i representing one individual yes mr beveridge you're wrong are you saying that at any time a private defense attorney represents a police officer that therefore he's in a conflict position with you know any when he represents any other defendant is i mean is your point do we have to take your point all the way to the to the end where no defense attorney can have represented policemen and represent any other criminal defendant of the same time  defendant had with his attorney that's what mr smith provided here he provided an affidavit specific affidavit up in a conversation he had where he upon learning that his attorney may have been representing members of the chicago police department related to these torture allegations involving john birch at the time when he learned that he directly confronted according to  now we are really getting into the investigation of the facts here if he could assure mr smith no i there was absolutely not i didn't have a conflict i represented you conflict free and you know the fact that i didn't put you on the stand and then i thought your sworn allegations a motion would be good not promotion to suppress even though you asked me and asked me if you could testify and challenge those officers testimony and even the judge sachs actually had to tell me that you know i i have to put you on the stand because that's actual evidence and even though i waived closing all he has to show it is the fact that yeah ultimately he what he does find is documentation is that mr boyd he does represent mr birch so the in this case where the church is to theorize as in two thousand and three and the trial occurred in two thousand and six is that the time frame that is the time frame do you would you agree that the newspaper articles and what was the other thing from this in other words the affidavit says i asked him if he was representing birch and after track ok so there was no response or something like i thought he said he did respond to say he did  the fact that his claims are not contradicted by the record along with the fact that he does present what he can as a pro sale that ok incarcerated in prison he does and he says it as if they did that he's he tried to do a search and what he presents are these documents showing that in fact boycie did represent john birch again in matters concerning litigation that was occurring years before there so basically and that's that's something that subject to independent proof or any kind of the affidavit or something from somewhere that would show like an appearance for example and your honor just so they didn't get to the smith is incarcerated in our correctional center i mean i know we have trouble getting documents from this i i don't i think that is an unreasonable for hood and he has to present some  case on so what does it mean that every single person that's been represented by mr boykin because of some point in time he represented mr burrage that every single client that mr boyd he's head can now get to the second stage by just saying that you know absolutely that i'm with the defense every client you you would have to ask does every your argument every single client like he had in the last decade can go into court and get a second stage here no the century it's this is based on the court but the elevations in mr smith's titian and what happened to him i asked him what he was going to do about it and he said oh don't worry about it when it comes time to the hearing i'm going to put you on the stand your you can testify to those things and lo and behold when it came time to hear and he didn't he did and  challenging police officers testimony yes they had it bob i mean the challenge to the police officers testimony here is it's the sipek it's the fact is that by not putting by not petition because you have to look at it along with mr smith's affidavit saying that after i am confronted mr boycie about his representation for the to gather and and as i pointed out these examples in the record which at least support or it's you know somewhat support this idea that there was a reluctance to challenge police officer and i think that that is what really mr smith that started his concern of what was going on here why was there such a reluctance and the cases say that that that is exactly the type of conduct by counsel that can be affected by a person can elect and  morning your honour's counsel repeatedly discusses that we have a question of fact here that must be resolved by an evidentiary hearing in point of fact you don't get to second stage or an eviden hearing unless you meet certain pleading standards under the post conviction hearing act and as justice mcbride correctly pointed out early in the argument there are two criteria under the act and under supreme court precedent that a pro se post conviction petition must meet counsel has discussed mostly her the factual pleading requirement and under hodges she is absolutely correct you liberally construe the petition but delton makes clear that the high just liberal pleading standard does not mean that you don't have to plead any facts you have to plead something more than a conclusion reallocation and as delton makes clear if your claim is based on persons who could provide information pertinent to your argument or your alleged violation then you have to as justice taylor recognized you have to identify that person fine name you have to say what the substance of that testimony would be now the concept that mr smith just int without having another source that his attorney was contemporaneously representing somebody else is ridiculous there was a source how did you learn that information how did that person know that information and  couldn't he have provided an affidavit from that person now that's the second standard the second standard is is your petition legally sufficient doesn't have the required affidavits are perfectly record or other evidence and in this case the defendant's petition the circuit court properly found that the petition failed to meet either standard now the concept that first of all burch is the only person mentioned in this there is not a single active employee in the state's attorney's office or the chicago police department that is mentioned anywhere in the defendant's petition birch had been fired from the chicago police department thirteen years before the defendant's trial so he was not a member of the chicago police department at the time so now that the defendant contends that he's being made to prove at first stage if he's required to submit actual evidence that somebody from the chicago police department or the state's attorney's office was being represented by mr breaky at the same time the defendant had retained him but a claim is only proved if after the trial affected terminals that the evidence is both reliable and of a sufficient quantum to make the required show the state as we all know it first stage is precluded from challenging the legitimacy the credibility or the sufficiency of the defendant's evidence of first stage so the mere production of some corroborative evidence is not being required to prove its being required because the statute provides but only those claims that can have something to be demonstrated to have some factual basis in reality  i still think he needs to have some evidence of actual contemporaneous representation now if that source had said i rather was wrong of the defendants that was being was prosecuting under area two issues and were he was representing one of the detectives that was still employed by the yes but not just naming somebody there has to be factual allegations some nexus between his claim of contemporaneous representation and the facts and here we have none we have no facts that establish that the only facts that we have are that is that in two thousand and nine mr bork you represented john birch now as justice mcbride pointed out there are a number of other things that could have been provided the defendant named five different cases in which she argued in his petition mr boycie was actively involved and they were aaron patterson case carol cannon scase leroy orange is case  had been named in any one of those cases he would have had his proof problem is brachis name doesn't appear in any of those cases until two thousand and nine so there's just nothing no nexus here between his claim and the facts and under those situations both the act and the president of the illinois supreme court is that there is petitions don't deserve to go to second stage we are not going to waste and scrounger the limited resources of this state on something that is truly a fanciful allegation face than what the defendant has provide sorry not a little out of order here now the defendant also argues that he doesn't actually have to have evidence which truly corroborates his cla really which shows that the facts are capable of independent corroboration and that is an absolute misinterpretation of the act the defendant totally ignores the language that the supreme court uses when it talks about it says that the purpose of section one twenty two dash two is to establish there to show that the allegations are capable of objective or independent corroboration so it is not it does not mean as the defendant argues in has the capacity to be proved no the language of the act says these affidavits have to support your claims and the language of the supreme court decisions interpret in that division that provision say that it has to be a present ability to make this affirmative show none of the documents that the defendant appended actually made that show way and as a preliminary matter either counsel did not bring it up the small earning she does mention the two thousand and six report of the special states attorney and her briefs and says that this supports the claim that since the report was published the year of the defendants trial it's reasonable to assume that those accused in the report might have begun looking for a legal record representation at the time of the defendant's trial and could have retained boycie not only is such rank speculation legally insufficient to qualify as corroborative evidence but that report was never mentioned in the defendant's titian's so that isn't properly before this court as for the documents he actually appended none of them support his claim the two thousand and nine letter and the two two thousand and ten newspaper articles refer only to the federal perjury prosecution for which mr boycie did represent mr birch that happened three years after actually the trial started thirty years after the defendant struck this leaves only the defendant's self serving statement and counsel takes issue with the state referring the security council argues that we should consider those facts along with everything else they don't demonstrate in the heart of his claim he only a conflict assuming that this court finds that a former police officer who has not been a member of the police force for thirteen years qualifies as and entity assisting the prosecution which judge sacks found it didn't qualify and i would argue that is a reasonable conclusion but assuming that the court finds that the fact that mr boycie represented him four years later there's nothing  sharing by putting together all the bad decisions mr boykin may have made during the trial and his reluctance to to cross examine or challenge of police officers testimony in addition to the fact that he refused to answer the defendant's inquiry is enough to get him at least two investigative stage first of all trying to litigate a motion to suppress without having your client testify i suppress attacked the police officers conduct it accuse the police officers of never mirandizing the defendant and over the course of the first five different investigations or odd interrogations it afraid of challenging the propriety of police conduct he was clear and there is no evidence of record that he did not cross examine the police officers during that testimony this is he didn't put his client on i think that's and that's that this court did not find that to be a deficiency but if a defendant's self serving and as i started to say self serving that is not as the defendant  up making a credibility determination that it's a recognition that you can't qualify as independent or objective evidence because the party it comes from the same party who's seeking to benefit from it that's why it's self serving if the defendants aren't at test stations are sufficient to provide the corroboration required by one twenty two point two they asked to you defeat the purpose of the statute because the purpose of the statute is independent or objective evidence that corroborates it and why did the legislature in pass this section because they wanted to filter out these claims this is not a case where the defendant the only other corroboration come could come from the lawyer this is this is not a private conversation like there wasn't collins like there was in edwards this is not one of those situations statement from himself that is so devoid of fact doesn't talk about when he learned of this information from whom he learned it doesn't state when he talked to mr boyd and the concept that you can now say a trial means fall between when i was found guilty and when i was sentenced that is ludicrous the defendant even as a pro so defended was clever enough to put in the claim that mr boycie had been representing the state and the police department since two thousand and three but simply didn't understand the importance of putting in the date that he obtained this information the statement of the defendant is legally insufficient in and of itself to provide the corroboration and even if you could under some theoretical argument make a claim that that was a fish that it could be sufficient this affidavit wasn't sufficient and because the defendant's factual pleading standard was below that required by hodges because he failed to provide appropriate independent and objective evidence for his petition it was properly deemed insufficient to warrant further post conviction proceedings and the people respectfully request that this court affirmed that r in terms of what the collaboration of section one twenty two days to requires you can't have the illinois supreme court setting such a low threshold for indigent pro se in cursory the defendants and then set a high threshold in the evidence evidentiary requirement of that pleading it makes the supreme court that decided that doma case all right that's right and actually when i asked you about case which i should i should be intimately familiar with but how do you get around the supreme court and dog and i like how they dealt with the the petitioners effort there the petition didn't have affidavit in that case the only thing attached to the petition were transcripts from the trial which did not at all show that he had a prior conversation with his attorney before trial and informed him of harassment allegations by the police officer he only alleged that he had a private conversation with his attorney and he attached the verification and the david he said his wife was present so the court went on to find that she was there she could have easily gotten her affidavit but he did not attach a separate affidavit detailing the private conversation that he had with his he allegedly had with his attorney that's how this case is different and in delta and also documents in the limited time he has to file his timely petition and doesn't support either allegations of the he doesn't have to he has his source his source is mr porky and he's readily identifiable   of the of the proceeds pleading that there was contemporaneous representation does it best that's the question that's the question of fact that's by his response of a non response in for it from a question from a client that demands a response as to were you conflicted when you represented me there is the question and that is the question that is so easily resolved at the next stage where  does exactly what the state is asking right now that the petition be put in proper legal for that's what the state wants right now but this isn't the forum for doing that but the first question i asked you was can you just say anything don't you have to have something to back it up yeah well you just can you find the fish and save the the sky is green well wakey provided an affidavit at this stage and said i didn't have that conversation would we be saying  just saying anything i mean how do i know he's he's i don't know what that proves my question to you is is it is it just because your client says that boy he didn't respond to me is that enough for us to say that says he sufficiently raised the gist of it after some claim that there was contemporaneous representation where's the worst the substance that there were does it show that there was contemporaneous representation that they make you know attorney about these false statements that were being made by police officers and he alleges in the petition that mr boies his response to him was don't worry about it you'll get to testify you'll get to rebut those claims and are those questions that we can resolve here as to why he did it you know but all saying is it doesn't necessarily show it doesn't follow that the fact that he tried to get away with not putting mr smith understand the motion hearing it doesn't feel that because of that he must have been contemporaneously representing mr birch it doesn't it maybe doesn't prove that but that it doesn't even suggest that ok i i have to respectfully disagree that it supports it it supports his allegation and if you look at the case law that's exactly the type of behavior that you're looking at if an attorney has conflicting loyalties that's exactly the type of behavior is this supplemental reluctance to challenge p put i mean again we're getting into these factual questions about his strategy that they're just at this first stage we're all i mean the purpose of this first stage the reason they have the first stage and then he gets an attorney is because they thought you know what a poor indigent dependent with no legal training who could who has no a doesn't know that facts to put in and doesn't know the law should be able to make out at least the jest the very lowest threshold should be able to make out at least suggest support it with some facts that are capable of down the road proving that they're capable of preparation to get him an a because he doesn't have an attorney and he doesn't know what is supposed to be necessarily be in this petition and it but he's going to try he feels that his constitutional right to the effective assistance of con has been violated and he has these facts that support but also claim some facts that support those claims and those some facts that can be proven per their proceedings one way or the other the truth or falsity that's not at issue here that issue down the road not here just to get him to the next stage in frankly all the law supports at the end sing mister smith's petition to the second state he presents an article basis in the wa and to say that based on these what he has presented there's nothing fantastic there's nothing delusional for him to think that perhaps his attorney had conflicting lawyer or not really i think we've kind of passed step that the state isn't challenging the defendant's affidavit that suggests that there was a conflict regarding his representation at the time that he proceeded to trial they're not their nerve at picking this apart on the basis of fantastic or delusional based on what he's provided you that it moves on nothing in the record contradicts his claim the facts of support hit but you know the the waiver of the closing argument supports under delton he only is required to present some facts capable of independent and objective corroboration he does he presents facts which down the road can be proven true or false and therefore because all the law supports advancing his petition to the second season all we are asking here is for the appointment of counsel to help him shape this petition into a legal form that's it this this is an effect the conviction just the appointment of counsel this petition