when the court has decided a case only a couple of months ago which adopts in large part my argument about what kind of petition should advance to the first  basis in law or in fact and i think if we were to take a survey of the cases which deal with this issue of just of claims and we had to express what they all meant in just lay terms i think we would say that the successful petition the one that advances is the one in which the the court feels as though the petitioner is on to something and i know that's not a very lawyer like way of saying it but it's expressed in some of the law for instance in the edwards decision where in the court said that it up petition it can advance and there's not necessarily state a complete clay and that it may lack detail and in some areas in other words the court deals not with actuality but to some degree of potentiality the concurrence and edwards talks about how there's a real possibility that there's a constitutional claim in the my client's claim innocence is not just a fourth amendment claim and it's not just a sixth amendment clay there's a little more here it's kind of like a due process claim and he's making an allegation that there's some type of a deception involved in the process that led to his conviction mail a key with the tip broken off the trial court was informed that after the murder the police discovered a broken piece of metal stuck in the lock of the back door of the victim's house isn't taken together this additional evidence even without the fingerprint evidence on there isn't then sufficient to establish probable cause in this case well might be a lengthy answer i there are very few judges in the state government not going to issue a warrant very quickly if the police come to them and say we found the offenders fingerprint at the mercy and there's this tendency psychologically to like anchor your of impact and secondly in another part of my client's petition just kind of it's totally divorced from the from the from the franks part of it he says that the gloves didn't match that they actually didn't ma and in addition to that some of the evidence at the trial was there was evidence at the trial that there was another fingerprint found on the mug and i think the police were aware of that and it was not my client's fingerprint and i the presence of defendants fingerprint on this victims an empty money or takes a substantial weight doesn't whether or not the defendant ever been in the victim's home apartment lawfully there are still some weight to the fact when you put that together some yeah even that time if he was told that he had been in the apartment crime the fact that there are still fingerprints empty money you're taken  said that well number not going to attach a lot of significance to that to that point but i wonder if he's i want to say is that i do kind of i feel is i'm kind of being drawn off sides with this kind of argument about materiality trying you know a maximum security prison and i don't think he graduated from high school and he's called upon to write this pleading which he gets over this hurdle and we're calling upon him to file a pleading innocence that well in this case the second prong of strickland is really kind of a surrogate or a proxy for the materiality under frames if he doesn't sure materiality and assuming he doesn't have prejudice i mean i there's another prejudice element to this and that is whether the material that was seized pursuant to the warrant played a role in his conviction and that is undisputed it did it very much did because they knew there were some shoes that were seized him some d n a evidence in it  that's not really in play so you're saying he does you know believe he should have to show the second prong strickland in order to get it over the just home no i just i don't think he should because that's a little bit like the the the standard that was rejected in edwards and that was whether he had to make a substantial showing of a constitutional violation that like the all the facts of the case and what impact this could have had and that's kind of were a lawyer comes in in my view it wouldn't one of the things that might be profitable to it to illustrate what i'm talking about in this case is right in the context this case mike my client makes another claim in this case and that is his lawyer was ineffective because his lawyer didn't seek suppression of his statement under miranda versus arizona and that's the sum and substance of the argument now that i will readily concede is just a conclusion reclaim it's not arguable and it's arguable the law course because of course there is this decision known as miranda versus arizona but there's no facts there and the only facts we do have are bad that my client made a statement to a police officer in the kitchen of his home mother was there there was no showing of you know that th is a lot different than materiality and or franks but they have one thing in common and that is there's no real set mathematical formula for determining when you have those elements i don't think you would have just in this hypothetical my understanding i don't think you would dismissed out of hand if you had made those allegations because again he's kind of on something he's got he's got some facts to support this claim there under armor but it on the record at you know at that point i mean we have to take a position is true and we also have this element that someone was deceiving the court as to the basis of this claim and someone who is trying to like play fast and loose with the facts is going to make sure that he kind of cover sustran do you deny counsel that there were enough fair suffered a perk from all this that was there was probable cause and that you know of itself would make the petition frivolous even assuming everything that you've talked about i mean bring nature of a stage system where you have one step and another step is that you have to accept that at the first stage there is going to be this in court with quality to what the man sells then and it's and it's not going to it's indicating that assuming everything in that petition is true assuming it's true that it would've made any difference and therefore it makes it bearable is because there's other things there number of other things that would indicate probable  because he's a pro se petitioner and that's what that's that's the standard we would hold to a lawyer of the trial judge would say you know the let's say the let's say a lawyer filed my client's petition yes at the trial judge could say to that lawyer this let him file with something as good as a lawyer could file i hope i answered that question and not be granting wouldn't if we accepted your argument wouldn't that leave far greater number post conviction it seems to me that your argument that you know it's a fair argument is that a lawyer is going to do this much rob of course they would but if that was the standard at this point very few petitions would be discharged going to open floodgates because i work that if the lawyer is appointed he can amend it state files a motion to dismiss and if it's if it's really that clear that it's a loser and the state wins at the second stage you don't go  and have an injury hearing i mean the state in this kind of suggesting that we're just going to dance this evidence or hearing well wait a second we've got to walk before we can run how do we get around that the post conviction period is to be strictly construed under your nails how how are we doing in justice to what the courts are to look at at the various stages of review with respect to a post conviction and how do we get  mention that the mail was found in your client's trash was several months old that mail recalled yes i remember that was that argument raised in the petition that was filed in the trone order no yes it was i think it's in there yeah he mentions that the mail is run its course and it's not retroactive and i just don't think that's going to yield modification of the sentence and of course the other bases that would by which it would could be modified is use executive clemency but that's a ra sets what penalties are to be imposed for violation of those provisions if the general assembly should come around and say look this is natural life sentence should be something else then that's the general assembly's job and not court was no i don't know much time i have but there was a proposal of the general assembly which died and it was it was referred to an elder since adjustment kind of created a rule of seventy five and if you were at least fifty years old you didn't these twenty five years in prison then you could adjust your sentence never became law but let's say it did and my client might have been eligible for that in about twenty thirty want to thank but if that had become law when he applied for the sentence adjustment relevant authorities i think it probably would've been the prisoner review board could have taken into consideration that the guy had this consecutive ten year sentence for residential burglary so i i i think the residential burglary really has only symbolic meaning because you can only do one life and he's got an extra life sentence and i just don't think we should you know modified palmer or the code and least i don't have the briefs in front of me in that case but palmer started with the assumption that the parties agree that we can reach this issue even those forfeited because it's a void but it's an issue avoidance we're not conceding that it's  and i'll get to that in a moment but to answer your question it is distinguishable because in palmer you had a case where defendants were sentenced to five life terms and one of the arguments in palmer was that well something could happen in the future that might change the sentencing or one of the parties one of the branches of government might act in a way that reduces one of the sentences and this court argued that no matter what happens he's going to have at least a life sentence remaining that's what the majority said homer here if something happens say to that statute that made the sentence something from the minimum murder sentenced to a life sentence then he would term was removed by something like an upright he decision in the future or by a single subject rule ruling by this court he would be left with a term of years and that possibility might seem remo but it's not speculative it's important remember that this court's decisions apply not just to this defendant but the reasoning and holding will fly in future cases as well and it's not unreasonable to think that a case like a priority or another single subject decision would come out in the future that would remove the life term unhandsome and make his sentence a term of years and if that happens in the future what the journalists somebody have said is that they want the following sentence to be served consecutively  it's a decision that doesn't raise any constitutional prejudice to the defendant if everything remains the status quo the defendant's going to serve a life term the only possible party that can be prejudiced by th holding of applying this course william palmer to this case would be to people and it would be a situation like i mentioned like an appendage case so since there's only one party that can be prejudiced and there's no constitutional values in place i think it's important to just  distinguished as i just said based on the fact that it's rationale was at least in part based on the fact that there were five life terms in that case and that no matter what happened to even four of those of fifty remaining life term would be in place here there's only one life term and if something happens to the enhanced meant that makes that a life term it would just be a term of your sentence so but if this court disagrees and feels that it cannot distinguish palmer then yes palmer should be overruled because palmer was improperly grounded on the notion that just as a matter of natural law a person cannot serve more than one life term but that's a policy argument and there's no constitutional flaw that palmer identified in the sentencing structure of imposing consecutive sentences and the general assembly said expressly that consecutive sentences should be imposed in this case this court never argued in palmer as it had in death penalty cases  term is something other than a term a term sentence so again i think policy arguments like that should be left to the general assembly if this court feels that palmer cannot be distinguished but unless analysis here the record contradicts preditions frank's claim and thus refutes his claim that there was ineffective assistance of counsel for failing to make it this court did recently hold in people the hodges that where an ineffective assistance claim need not discuss or overcome the hurdle of the strickland prejudice problem on page seven of the west law citation the hodges this court expressly holds that you have to have an arguable basis in law both for the performance prong and strickland and that's consistent as we discussed in our opening brief with cases like people v robinson which had previously held that the first stage dismissal is proper where there's no showing of prejudice and here it's not arguable that there is prejudice titian or fails in his reply brief and failed here in his opening argument to answer the fundamental question underlying francs which is even taking away the contested information out of that search warrant affidavit is the remaining information sufficient to support probable cause and it is here there was a right hand of glove found in a trash can that had red white and blue paint on it and a broken off key and the search warrant stated that the victim's door had it the door lock had a piece of metal broken off in it that there was a lot of blood spatter at the murder scene and that there is a left handed glove found of the murder scene with red white and blue paint on it those facts have not been challenged by petitioner and he has never addressed how those facts would not support probable cause and i think he's not addressed that because he s cannot make that argument and that shows that there's no argument that walker that there's a frank's claim here and since there's no argument a lot of there's a frank claim he can't possibly sort of show strickland prejudice so even under the recent holding  petitioner talked a lot a little bit about that his contention was well he characterized our attention as being that his legal pleadings lacked some sort of detail but our argument is not that his legal pleadings didn't specifically state the full franks test or deal with it it's rather that even assuming all these facts are true he can't succeed under friends so it's not that he didn't state bid just of a stricken claim i mean he definitely stated you know my lawyer didn't call for frank's hearing the problem is that he has no no colorable claim of law and no arguable basis of law to support a frank's hearing  call for something that would require an attorney's investigation and that a frank's hearing says ok let's take away all the contested information and just look at what's left over and since that's all that court's required to do there's no need to go beyond the four corners of the search warrant affidavit straight out the information that's contested and read about it and indeed trial courts do that kind of thing every day every time they're handed a search warrant application the trial court takes a look at it and makes a prob determination and so it's completely reasonable to think that a trial court could look at the four corners of the search warrant application and all apply to frank sesno say well his claim is just simply frivolous and patently without merit because there is probable cause here with the remaining information the gloves and the key to keeps trying to change his test and his answers by focusing on the fingerprints and that's that's not the franks touched the franks test doesn't say well you know just how persuasive was this omitted information what frank says is ok let's take away the contested information and look at what's remaining and that's what this court did in people we saw that on which we cited in our briefs as well and the answer here is that that remaining information supports probable cause i think admits that he could not win in frank's hearing and finally he talked a little bit in the briefing and touched here in a miranda example about the fact that there may be some hypothetical cases where  petitioner makes a postcondition petition that just doesn't have any facts and on it's completely vacant of facts and somehow suggests them that makes our argument improper but hodges deals with that eventuality as well in the post conviction act more specifically deals with that eventuality because under hodges you have to have either a colorable claim of law or you have to have both a colorable claim of law and the colorable claim a fact and it can be dismissed as frivolous and probably without merit if either of those  missing so sr makes a very specific miranda claim and has no facts to back it up under hodges there would be no arguable claim of fact and it would be properly dismissed under his hypothetical under that r address or they could have they could have modified the code to validate sentences consecutive natural life sentences and i do in the past have never been very bashful about things like that so i if it's really that offensive as policy we there hasn't been any follow through by the people who enunciate the policy and i don't think this homer type quite recent isn't it there's another species of this in law as like the one act one crime doctrine which this court upheld in artists that is there's a redundancy here and the courts of limited these redundant judgments and if i can just proceed to the frank's issue here the evidence about the door knob i think the door knob was almost a red herring here because yeah that there's a recital that there's this door knob looked like it was tampered with but no one ever made took the position that the the rear door and it was just and it was just locked it was totally intact and there's an expert who says that the gloves have white paint on it which could come from the same source but the expert doesn't say anything about the nature of that red paint and the blue paint and if i would really like to take a look at those gloves and my my my client says that the gloves really don't  that would could have been another an element in a fit in the anna frank's analysis but with regard to the expert testifying concerning the glove this came long after police officer who took his statement was had been convicted of various felonies and was you know taken off the force and such and that he knew the officer lied about the offender statement and that claim was allowed to advance to this to you know to the lawyer appointed lawyer stagey it was you know it was he was allowed to go forward to claim but in a large part that type of claim was made that petition was was handled was real sketchy on the facts because we really don't know how big of but the interplay was of the of the officers felony involvement in his dismissal from the  forces but it was a lot it was certainly more than speculative and it had that quality to it that it convinced the court that there might be something here that would state a concept a real possibility of a constitutional violation