this case is very troubling and very unusual because you know that whatever happened in the state courts happened and i am not actually right now thinking about that but what happened at the district court level it seems to me was badly distorted by the position the state of illinois took so in the district court under the ineffective assistance of direct appeal justice require so now of course you're saying oops you know we made a mistake we didn't really mean to say that but that seems to me terribly prejudicial to mr winfield in that if he had known all along in the district court that this was an epic case it means that you develop the case differently litigate the case differently we all believe me by you know one thousand nine hundred six is a long time  ago and we're very familiar with so it seems to me that for the state just to get off scot free saying oh well in any case we're going to change our mind whenever we want to is is a very minimum they would have to be remain and i respect that position a presuming that that twenty to fifty four didn't matters and i sort of first i'll respond by saying that i don't think there is any prejudice and here's the reason if any doesn't matter than we then you continue to weigh the want to go ahead and decided on the same standard as the district we will present as an alternative argument that twenty two but you know that there is no constitutional violation here however we fifty four d where the statute says the court shall not grant and that may be right that but i'm my problem is really more of a litigation management problem when the state comes in and it takes an issue off the table there are a lot of legal issues that people take off the table so sometimes for example in civil litigation there might be a dispute about whether the law of illinois or the law of wisconsin applies to a matter that's an issue for the cour a legal issue but the parties can say well we're not going to contest the law of wisconsin we all agree applies and so no one let it get it's you know maybe the law of illinois is different and maybe they would have put different evidence in had they known that this issue on the table so just calling it a legal issue doesn't get me as far as i need to go to have to feel comfortable that this proceeding was a fair proceeding for mr winfield correct and as noted we're not relying heavily on this however i would like to say one more thing that if anything additional got extra process in the district court because we were proceeding under the assumption that it was to know when the district court granted them relief that's the thing you know register in court there's a lot that's bizarre about this case how the same man you know can be standing there and completely innocent of killing person a and guilty of attempting to kill person b is more than a little weird especially since there's no witness to say that that's what happened and we've got all of  this the the contested circumstances of the so called confession which is a pretty weak confession anyway i mean looking at the transcript of this thing it's it's very troublesome so so i'm not sure you want to get to plainer and review but if you do you're welcome to argue it yes and first of all address that the point about the acquittal on murder and the conviction on attempted murder and the explanation there i agree that it's weird in the explanation there is very simple there was her i'm sorry the trial court found that that was enough to create reasonable doubt as to whether that was one of the signal caller witnesses also saw two persons well but that that witness was discredited and correct so in any event there was there was there was doubt about whether there petitioner was the only shooter or whether there was another shooter and that is pretty precisely why the trial court acquitted petitioner of murder because the trial court first couldn't find whether petitioners bullet or the potential other shooters bullet was the one that but i tried just how does a trial court resolve that it are there two shooters under the trial court's view or is there one shooter there is reasonable doubt about whether there is that's ridiculous i mean if there are two shooters then you have the problem that maybe it was somebody else if there's one shooter how can he be shooting one person and not killing the other person so that's a little good satisfactory in the  holding it against the state the trial court did exactly what it should in a criminal prosperous eating by holding it against the state in the murder it presumed even though i think the trolls who were skeptical of the two shooters it presumed that there might have been two shooters and therefore said listen state you haven't proven that he was the one that fired the fatal bullet you haven't proven accountability which again is a weird thing given the circumstances but that is what the truth the trucker said and and we're not asking this work to to reverse that and find him guilty of murder which i think is the more sensible option but barebones confession to get out of this what he testified was all over the place but what he what he testified was they made this up whole cloth without my input forced me to sign it without and it was all read to him by the system state's attorney i mean it's not the craziest thing that i've ever heard you know he according to his testimony it was not even read to him and they physically put a hand over the confession well that's what happened to unfortunately have all sorts of bad stories and if the police were going to do that you would think they would make up a better confession providing motive perhaps but the second shooter but well there's some fear of his life so i mean if in an actual law no it's not it's going to towards that from the from the perspective of someone who's been accused of this crime maybe he thinks that it and first of all there's there's no evidence of that and there's no switch like two weeks later and three weeks later at and by that point they had already interviewed the eyewitness and correct the so called i wouldn't  the cooperate ing information is fairly limited cooperate in specific to the confession and all of it could have easily come from those interviews  and the examination of the scene that is correct however so so yes but that's not that's neither here nor there i mean while it is somewhere if it's neither here nor there then it's in the third place because it's it shows that he doesn't confess to anything that he only can furnish all he's done is repeat everything they already know and it was not a show that it does not show that your honor and what is in there that th dice game he didn't he didn't acknowledge the shooting in testimony and additionally if petitioner's testimony so what we have to look at is whether the reviewing court that there is any reasonable probability of the reviewing court to discredit this too to find that no reasonable jurist could believe this confession and there is no such basis for that in illinois walk under the jackson standard which illinois follows or any other standard of sufficiency review we  issue and he said a factual proposition i mean i know you argue that it's a question of fact but it sounded to me just even reading your briefs it's much more a question of law you know you look it's a construing a contract  you construe you know the state court record you make a decision about what was actually litigated what wasn't these are all legal questions that may not matter in the end but i think we need to be clear what we're dealing with  i would submit your honor that in light of the the supreme court to case that the state relays and the name of which escapes me about what you do with harrington versus richter problems when they when they say there's a courts litigated were or didn't they or did not there's some room for development i guess i'm still quibbling about the word factual because one could certainly look at the state court record and see if there was some procedural bar to addressing an issue or to see if you know just reading the opinion you just don't see a particular issue acknowledged or they say they actually say something there that the court suggested is going to be hard r about this presumption but that it's rebuttable i agree with you that far but i'm not sure that it's a factual point well let me go back a moment i think the i mean again it may not matter because the thing to do as i told your opponent the thing that concerns me about this is a i proceed from the proposition that there are real teeth in the standard of review for twenty to fifty fo i don't know who could doubt that harrington if you look at whatever case you want to look at and so it makes a big difference if this is a twenty two fifty four d case or if it's not if it's in this little group that johnson  opens up so if the state comes in and tells you yes we know there's this legal issue here but we believe that that this is not a twenty to fifty four d situation it wasn't raised i would have that it would affect the way the case is presented the kinds of arguments you're going to make what you're looking for in the record and all the rest of it in x what bothers me about this get it certainly would affect in the end if this court is willing to let the state reverse positions we fully expect to get a chance to litigate the case under what was subsequently determined to be that the standard of yes you're correct to mean actually i think probably the states the state was mistaken at first it looks to me under particularly under johnson under the supreme court's law about what do you do with issues that aren't discussed the court is pushing very hard in the direction of saying give the state level the argument that was made was sufficient to the evidence but never raised expressly never raised the corpus collecting argument that you now want to make understandably and you were given the benefit of the illinois presumption that by raising sufficient to the other dence corpus to let the argument came along with it so i don't know as a matter of law there's anything to read but you've got the post conviction appeal said there was ineffective assistance in the direct appeal because sufficiency of the evidence was was not raised but it also made the claim in conjunction with the claim that the word didn't go about getting the alibi witnesses that there was that error followed through to the failure to do something on the direct appeal about the alibi witnesses so those two  and direct appeal were set forth in winfield's post conviction review brief the state i'm not sure that changes the fact that all that was presented to the court doesn't that strongly support the notion that in rejecting it the state c rejected exactly that argument well don't let me finish up yet what happened is that in the post conviction review that the state did know that even answer the sufficiency of the evidence issue and then when the state court enters its rule twenty three order it focuses on trial counsel is deficient performance and when it focuses on the direct appeal it doesn't talk about sufficiency it talks about the failure to follow up on finding the the alibi witnesses as part of the direct appeal so i think you could consistent with chance and versus william say here was a case where the state court was presented johnson would admit well but if if if presented and not particularly commented on white why would we conclude that it was a resolved in the state's favor beat because of the fact that the  state did not even answer it so are we to presume that the state court ruled on an issue that was presented by the defendant but yet the government made no answer to it at all isn't it equally possible that it it just it got lost in the oh i in the next i can't preclude that and you know the only appellate court handles hundreds if not thousands of these appeals every year and i'm not trying to fault them or cast aspersions on them but  it would be really easy to to miss that if the fact that they didn't talk about it doesn't mean they thought about it and rejected it because it was so insignificant they didn't resolve it because it well not  they just made an assessment but we can say it's reasonable or unreasonable but if you if you raise this alibi issue which is all which speaks directly to sufficiency right because the argument is if i d i guess i don't want to put words in your mouth if we were to decide that you know as you said the illinois appellate court he briefs efficiency you know one part he briefs alibi in another part they talk about alibi they don't they've decided the sufficiency evidence if they put that sentence in there so if we infer that sentence is there then that's not the end of the case it just means that the task on hey be as corpus is to decide whether that  recognize and i saw that letter and i understood we have to deal with i mean it would be unprecedented in this circuit for the state to say oh we made a mistake we want to take it to god and less and less for a confronted with a  standard of review and therefore it cannot be waived i'd like to quickly address that forms point that on post conviction appellate review that the court did a harmless error analysis and in fact addressed the strength of the state's evidence in this case and found that any potential alibi witnesses wouldn't have overcome that and so there we do have a state court decision on the sufficiency of the evidence you would never if the shoe were on the other foot be arguing to us that a discussion of alibi witnesses