did kelly because lacy told her chip so the real issue is the reliability of lacey's pretrial statement there are three things we didn't know a trial about lacy statement about circumstances surrounding leniency agreement with the federal government and received payment and third he believed that by helping police he could benefit himself in evidentiary hearing that in what way but the t charges and that he was concerned he would have to do and did not want to do a lot of time in federal prison and that he thought the system worked in a way that if he gave police something they wanted they would be able opening arguments saying that laid out lacey was in custody and implicated calley to get out of that situation but he didn't specifically introduce evidence that he was not in state custody for a domestic and had counsel questioned him about that that would have come into evidence but the jury lesson is the titian the counsel did not step or that evidence and there's no nothing in the record contradicting that allegation so counsel's theory was that lacy statement was unreliable and if he didn't look into evidence that the that lace was paid he would have been in effect for that situation was if counsel made an effort to discover this and the state refused to disclose information because it did not make any effort to discover this information or even if they also did discover this information filter presented all these things benefit kelly because stilly was that lacy statement was unreliable and none of this evidence was presented even know counsel told the court he was going to present evidence showing that the statement was made in circumstances that undermine its reliability and to make it on and that was the theory of the case i mean it's inconceivable that counsel would not have made any effort to discover evidence supporting the defense theory and that he wouldn't resolved we you know nothing about the terms of the agreement and we had statements from lacy that kelley tatts just addition so that he did not believe the case had been resolved that he thought he could still be charged with this and that's relevant what with the but two federal cases and lacy was in prison in one nine hundred ninety eight on some state drug charges his approach by federal agents he said hey you sold two instances in which he benefited possibly from implicating kelly how did hampton's attorney find out about all this stuff is in the record it's not in the record your honor and maybe that's something that would be beneficial to learn about  well and he was sentenced to twenty years way he had a written statement saying two men had guns which is inconsistent with places prior statement then at the grand jury she said only one of the people had guns so her statements are also internally consistent that the bottom line is that macy's pretrial statements were the strongest evidence against kelly and had the judge learned about the circumstances regarding this trial well i think that needs to be decided a never measure hearing i think the state will say that at the co dependence trial lacy said he did not have be he could still be prosecuted for the federal charges and that he needed to do something to make sure he wasn't charged for those cases and so my saying is no agreement he's also saying if the if the statement was relevant that he was a federal form and the terms of the agreement would be relevant and i think the issue here is that we just questions about how much counsel investigated that and if you ever asked the state's list case there's nothing that shows that the state has to do anything well with what shows that or what supports the allegations in the petition is that none of this was presented to trial there's nothing indicating that counsel had no relation to this case but the state disclosed that he was a federal informant so the state must have felt that it did have a relation to this case they did they just lose that on their own so i think it's a hard line to say well we can tell you he's an informant but county the second stage dismissal of defendants post conviction petition in the case was correct and it can be affirmed by this court for three separate reason s the first one being that the the death of the defendant clearly demonstrate demonstrated an intent to abandon the brady claim at the hearing on his motion to dismiss second because the defendant has failed to properly for fill the one twenty two dash to requirement which is of particular significance in this case and number three because he simply has failed to set forth a substantial showing of any of the claims that he's presented to the sport either the brady or the ineffective assistance of trial or tell accounts of in terms of the abandonment your honour's the put the defendant in this case filed a pro se post conviction include what would be could be referred to as a brady allegations in response the state filed a motion to dismiss which i'm sorry for the state file its motion to dismiss counsel was appointed at second stage and file an amended motion and amended post conviction petition the method motion incorporated proceed with the there was a line which stated that he was incorporating the allegations of the procedure petition and the correct how can we find to be beyond because your honor at the subsequent hearing on the motion on the motion to dismiss there was a full blown hearing prior to the beginning of the hearing the court's the civically went through the issues which were laid out in the motion to dismiss and ask defense counsel does this address all of the issues that you are presenting he explicitly told the court that it did the court then listen to argument made its ruling during the argument and during the ruling there was no discussion of the brady allegations after the court completed its ruling he again asked defense counsel have we address all of the issues that you are presenting to court and defense counsel explicitly against that yes your honor we have addressed all of the issues this clearly demonstrates that the defendant meant to abandon the brady claim which was in the cross if attention and meant to proceed only on the allegations of in effect of assistance of counsel which are also the allegations of ineffective assistance that are presented here as far as the one twenty two requirement the affidavit in this case or particular importance because all that the defendant has presented to you in support of each of his claims is a portion of testimony that was given by christopher lacy at the co defendant's trial and it's correct that in that testimony it does establish that christopher lacy was a federal informant that he was paid six hundred dollars and all of the other information that the defendant has talked to you about which is in that testimony however what is not in that testimony and what is not in the information that the defendant has attached with his post conviction is anything which would suffice to present really either a brady claim or ineffective assistance of counsel claim the defendant has presented nothing to this court which shows that the information that received was not risky he has not presented anything to this court which would show that the information which was originally given to him about christopher lacy being a federal you have any documentation that the information was given to know that in the other than the answer that said he was an informant do you have anything that shows that you told him that he was paid six hundred dollars if anything that shows that he was told that he had pending cases the time that he gave his testimony the grand jury you have anything in writing well i would answer that in two separate ways your honor first of all the state is not the person who has the burden at the second stage of his conviction the defendant has the burden of making a substantial showing of a constitutional allegation and he also is required by statute one twenty two dash two to provide sufficient affidavits which would support the claim that he's making and he's a lawyer in answer to this coverage which that so i mean wouldn't you expect that there would be in your answer discovery well you know how you explain it it's not i would say because he did he did not happen in cases at which brings me to the other part of my argument the specifically the question which is on page fifty four of the common law record where the question is asked of him and you were still hoping that you wouldn't have to go to a federal penitentiary for a long time for that weren't you and that's what they're relying on to show that christopher lacy still had these house standing federal cases but if you take a careful look at the excerpts of the transcripts that are in there you'll see that the transcript jumps from page one hundred eighty five to one hundred eighty eight so we have absolutely no idea when in time christopher lacy was hoping that he wouldn't have to go to federal penitentiary when in time christopher lacy was hoping to cooperate with federal authorities we don't know if the question th precedes this is asking christopher lacy why he became a federal informant in the first place and if you look at that question coupled with other parts of the transcript it becomes clear that by the time that this murder took authorities came and talked to him and told him if you cooperate with us we'll help you on those drug cases he testifies i never went before i never had to go to a judge before that i was never satins i was never arrested on those these were not pending cases these were cases that were resolved when he became federal informant so there was no reason for us to tender information about these cases because they didn't exist by the time this murder took place and as as far but they didn't christopher lacy received three years and served seven months on these federal cases that's incorrect if you look at the transcript very carefully it's very clear that these three year sentence which he served was on his two state cases in one nine hundred ninety seven the defendant engaged in for drug transactions two of them were with undercover informants working with the federal authorities two of them were with undercover informants working with state authorities and the transcripts make very clear that he was arrested on the state charges in one thousand nine hundred seven and with and the three year sentence that he was serving that he refers term flips on the state and he rescinds his pretrial statements so at that point defense counsel makes the strategic decision the smart decision instead of going after the fact that he was a federal an informant years ago prior to this murder even taking taking place he jumps on that he jumps on the fact that christopher lacy is no longer identifying his client and he makes the decision which he is that the six hundred dollars and that it was for future but again we there is nothing in the record which would support that and certainly it would seem that if this was part of the future work that instead of going to talk to a detective at the robbins police department that he would have gone and talked to whatever federal agent he was working with he doesn't do that instead as any eyewitness would do he goes to the police station and tells them what he saw there's and again it's it's sort of similar to all of the other allegations that are in here it's it's an allegation that's made without anything to support it and i understand justice palmer's position but position as far as does it raise a question where there's nothing in the record but the fact remains it is his burden he has to make a substantial showing of the allegations that he presents to the court and he has not done that  at the time that this was all going out and he was uncertain as to the status of the struggle case earth's federal let's say transactions and   he's uncertain has the status of whether or not he's going to be charged federally and that may have affected his and the nature of his cooperation and it leads if again i would say that if you i guess just because there's two ways of you one is how are you supposed to know you mean to try out this the state's trial attorneys are how are you supposed to know what lacy is uncertain about with regard the entire premise that christopher lacy thought these federal cases were still hanging on over his head are based on one line the transcript at demetrius hampton trial it's not like christopher lac comes out during that that trial and testify i thought these federal cases were still hanging over my head he never says i thought these federal cases were open and i thought i could still be charged with those federal cases there's nothing like that in the transcri defendant extrapolating the one question that i read to you from a portion of the transcript that we have no idea what came before it because we have three pages missing where he talks about the fact that he doesn't want to serve a long time in the car with a century if there was something that the rest of the straps if they would help you i'm sure we would assume so but i'm saying his interpretation is that the federal cases were still hanging over the that support that so if you're looking at that that is not a substantial showing that christopher lacy had a concern that these federal cases were still hanging over his head he specifically testified was in the transcript that was in the trans  that they told him that they would take care of the two one ounce cases if he would work for them that they gave him help on the two one ounce cases he never had to face trial or sentencing or i can't answer that question oh maybe never the tree would instead which certainly it would at least suggest when they say we'll take care of these cases for you if you work for us and four years so but you know again i would say there has to be more than a speculation or an interpretation or a reading a favorable reading of something that's not what the but is there anything is there anything in the record that shows us that the state was aware of the potentiality of these two federal cases that the state knew about those two transactions that were out there the only thing that we knew would be reflected in the questions that we asked which i mean there's nothing that indicates that we knew something that we did not  these two cases that lacey talked about in the hampton you know and i mean if you look at what we tendered to the defendant you know we tendered the fact that he was a federal informant there certainly an referenced in the record is our motion to dismiss which i i readily admit that is what i reference because the actual fact he meant was not included i defend it with his post conviction in our motion to dismiss we refer to this discovery receipt case is resolved because lacy wasn't charged and as you're on to point out we just don't know the terms of the agreement was it for future work was it not were those cases dismissed with prejudice or are they still out there we just don't we don't should discover the terms of the federal agreement and introduce evidence that there are these outstanding cases where the state should have disclosed the terms of the agreement and you're under arrest there's anything in the record indicating state knew about the terms and counsel admitted that the state supposedly has a discovery or receipt showing that they tendered information related to the agreement nobody has seen this receipt but that would sure that they had information that could have been discovered by counsel or should have been disclosed by the state  i think that's again lacey's testimony was the only evidence supporting kelly's conviction and he's made a substantial showing that trial counsel did not introduce relevant evidence that lacy was released from custody of the state charge before implicating kelly and that he had a federal agreement to receive payment to work with the federal government and therefore gave the judge no reason to discredit the