well the record shows that that affidavit the motion to supplement was docketed so it was before the court when they made their ruling and nothing prevents you from considering the pike affidavit because the review is don't know  was properly supplemented to the record not me which is currently on appeal and that is in line with people versus cleveland where in that case post conviction petition affidavits which just added additional facts and did not have additional claims and that's what we have here the pike affidavit is just another first person account of the incident which states that i'm not firing merryweather but troy affidavit was newly discovered because that f e n s was unavailable at his affidavit discusses that he witnessed the event and then immediately left bloomington where he was visiting family and went back to still even if the court didn't consider the pick affidavit because it's properly in the record i would ask you to review it to know though and still find that it met all the requirements to them prove up a claim of actual numerous courts have looked at this this very same set of where someone that was tensions going to juvenile raises this issue under miller for the first time on appeal from a collateral proceeding and found that the issue is not forfeited and that's exact same set up and where it's being raise for the first time on appeal and in both of those cases the court found that those individuals were not barred from going forward on their claim they used the case of thompson which the state's rights to in its brief to really draw a distinction thompson specifically said that that individual who is nineteen years old when they were sentenced was not entitle to the same relief from a collateral heal as they cited to do people versus davis people versus more than people versus luciana each of those cases was an appeal from a collateral perceiving raising raising number and more f development apply equally to a nineteen year old in here we have numerous pronouncement from the u s supreme court that says children are different and those differences must be incorporated so we don't know those  work well we do have the record which says simply that the court said byron was seventeen years old the court did not say anything to show that it reflected  out his youth and immaturity and rehabilitation related to his age and that's what miller requires and when the supreme court and said in montgomery that this was to be applied retroactively that is extremely unique  to announce a new rule and then make it retroactive i think that's why many of the courts that have looked at this issue have relaxed forfeiture it also goes along with the purposes of the act and fundamental fairness that someone has constitutional rights that have been violated can bring these issues in a post conviction petition iran has already had to wait four years from when his position was initially filed and now having his having it fully briefed in front of this court i referenced in my reply brief that he would have to wait an equally long time if he grazed of a mill or under postcondition proceedings and i found out that he actually has done that it has been office doesn't yet have the record it's still with the appellate court but you will still if if you decide that the issue is forfeited if you will still have to wait eighteen months to two years to have it to have that issue it would allow him to know that he has some hope to not die in prison and that is ultimately what byron was sentenced to he was sentenced to die in prison his life expectancy is seventy years they'll have to outlive his life expectancy by nineteen years just to make it to parole i'm ten and people versus sanders the first district acknowledges that a person suffers a chewie year decline in life mckinley versus up there have said that a life sentence that is discretionary versus mandolin mandatorily imposed but that does not make a difference if the sentence was imposed without the guiding considerations of the age relevant factors don and bahrain sanctions wasn't posed without those considerations it was unconstitutional imposed on him and i think that this is akin to if a person was sentenced with an improper sentencing factor even though the trial court could have sentenced that person to forty years let's say if they considered an improper factor in their sentence was reversed when it was remanded he could receive a new sentence also  forty years but the trout owner would not be allowed to consider that improper factor and here what miller sets out is requiring based on someone age it's an expansion of that mitigating factor they have to consider the individual's youth their immaturity and potential for rehabilitation all through the lens of the fact that they were a child and children are different the the question that the supreme court has eventual sort of framed t just term nation it simply mentions that byron was very young that he was seventeen years old it mention nothing further on what his use means or what his ability to be rehabilitated w and therefore byron deserves a sentencing hearing that comports with the requirements of the eighth amendment comports with miller but the trial judge say anything about why he was posing a forty five year sentence on the firm he said just based on the nature of the crime because he seemed to indicate that total silence was really part correct and really incorporated this u s supreme court precedent into the illinois statue and if someone under the age of eighteen when they're sentenced they have to be considered their age has to be considered their impetuousness level of maturity no it's specifically that the firearm enhanced meant the twenty five year firearm in hansen is no longer mandatory it's not even married five that is my understanding yes but the fact that the illinois yes yes it just further goes to show that someone like iran does deserve a new sentencing hearing does deserve to have his sentence implemented under that lens of miller which looks not just at a person's chronological hearing on behalf of the people they have placed the court with respect to the eighth amendment argument defendant in his brief specifically says that his constitutional claim is as applied to him on page thirteen this isn't as if i'd claim it's not official and constitutional claim and it's there's no complaint that the trial court lacks personal subject matter jurisdiction to impose a seven year sentence and after castle rry the boy's sentence rule is no longer valid so this is really a simple issue under jones the poet court is not free to excuse the way for when an issue is not included in the post conviction seating it's true and also he says the trial court needs to determine if his crime reflected transit immaturity which is another fact that has to be considered if that is true or if he is the rare child whose crimes reflect irreparable corruption again that's another those issues were not necessarily specifically litigated at the sentencing hearing which is why there would need to be an evidentiary hearing if the defendant has a meritorious claim that is properly present been proven an evidentiary hearing but also other facts that have been proven in every country hearing that is that his sentence is actually unconstitutional as applied to him just simply skip over the procedure ignore his forfeiture ignore the pursuit bars and a new rule as having been existence and applying to the perceiving as if it were at the time of trial so in other words the suit is not relying on the finance department to say the defendant is barred from pursuing his miller claim because and that's why we have this issue here because the claim has not been properly presented properly presented means it has and is in special illinois here because we have a requirement that issues have to be presented in a post commission to ship and furthermore another thing to titian claim causing prejudice and then this passed to a chance to review whether he in fact that show cause of prejudice and should be granted the file that petition has been to not lie in this appeal when he did not raise this claim and thompson implied imply that this was not subject to forfeiture but if they read paragraphs thirty one and thirty two thirty four they would have seen that as applying challenges are subject to forfeiture because they do not in time crime but that's simply the easiest way to distinguish those cases because defendants age and then just simply say that that's all we really need to say is one time soon you're eighteen you were nineteen at the time so we don't we don't need to give you that sort of were we can just simply distinguish those other cases on that basis alone i said doesn't even talk about forfeiture so it's not like those cases are really good precedent to rely on but this court and the other as they said sort of like mistakenly says that thompson somehow implies that for  that is a question that has to be decided as evidence you're hearing it under eleanor way like arizona we stated the points you case we have a procedure and procedure is the defendant makes an allegation that he's been deprived of constitutional rights to pretend a post conviction petition if it passes the motion to dismiss assuming you know put aside successive and causing prejudice then he has the burden to should prove his claim a constitution violation make a substantial showing and he has that burden to do so  and by showing these other elements that are required under people be santa and illinois can constitutionally put that burden on him to do so i'm so he should receive i mean this court should not follow the other cases that grants re sensing as the remedy unless of only procedure and require an evidentiary hearing if further post conviction proceedings would be ordered but again this case is not even a situation where that can really be done because ordering further proceedings on a post victim petition didn't even raise this before it takes the defendants to to go through these proceedings again including this latest appeal that he mentions so it doesn't seem like the constitutional into the eighth amendment this this court must grant him a new sensing hearing because obviously urging people on and also saying other things like squad up which is telling other people to fight and she also i think was impeaching punching somebody named nickname money with the gang these are parts of his trial evidence somewhere else during the trial the crime says that they that they were not there they were not just being a crime and so this is more like the cases like rivera were even the williams case gang in alter cation involving electrocution on train tracks does it really the key point is actual innocence is total dedication it doesn't mean the defendant should have been guilty of something last or it should have been guilty only of something that was not enhanced by the the person discharge that does not qualify for the due process right raise actual innocence in this excessive post conviction petition without meeting the cause of prejudice says that exception is very narrow and it has to be total vindication or exoneration and that is completely absent from from these facts and so for that reason even would have been allowed just as a matter of law to to find that that was a reason to deny he leave to file successive p c on the basis of actual innocence i'm so i've entertained other questions thank you  from just a few points on the claim of actual innocence he was only charged with first degree murder he was not charged with murder and felony murder mob action or accountability series and when looking at whether or not if the verdict is unreliable here he was he was only charged with and convicted of first degree murder the fact that he might have been present while someone else did the shooting certainly plays into and you don't even look here and there he was in there right on i am not aware of those cases i am aware people versus puffery that found that it could be applied because it was a whole new sentencing hearing to this case we are not arguing that iran sentences for it or that he could not be sentenced seven years simply arguing that the procedure by which he was sentenced was unconstitutional