dismissal of his post conviction petition he was originally convicted in two thousand and four of the first degree murder of cassandra mole and the attempted murder of charles howard following a bench trial before judge robert le this court affirmed the defendant's convictions on direct appeal in two thousand and six and almost immediately after the defendant's petition for leave to appeal was denied he filed a pro se post conviction petition back in two thousand and seven on the judge's finding that the defendant was not entitled to any relief because he had already found him guilty at the bench trial so we're now coming up almost ten years since mr woods first filed his pro se petition and we're still in the midst of the postcondition process and we're asking that the defendant be given an evidentiary hearing in this case on three separate claims the first is a claim of actual innocence based on the affidavit provided by the second is a claim that his due process rights were violated based on the affidavit of the attempted murder victim charles howard and the third based on a claim of an effective assistance of trial console based on trial counsel's failure to undertake a connection to the parties and who would have directly undercut the testimony of stephen smith claiming that he was present in the area at the time of the shooting and they're sorry just once there with respect to all of these claims i think it's important keep in mind first there was no physical evidence in this case kindly just words to these crimes second mr woods has consistently throughout the proceedings protested his innocence and  no motive that was ever shown in this case as to why he would have wanted to harm either cassandra mowen or charles howard so i think that's important in determining whether an evidentiary hearing is warranted with respect to  the claim of actual innocence based on augustus fermions affidavit i think it's also important to keep in mind that in this court's decision from the first stage dismissal the court recognized that the information from m was new it could not have been discovered earlier through the exercise of due diligence he first met up with mr spearman when they were both incarcerated at menard found this conviction it was material because it refuted the eyewitness testimony of charles howard and it was not cumulative because no one else had ever testified to seen another person commit the offense and perhaps most significant the court recognizes that it could likely change the outcome at a trial because if spearman were found a credible witness this court said his statement support was a search and he was not the shooter and could tip the balance in a case where no physical evidence could was the scene of the crime well assessing the credibility of these assertions is exactly what the evidence rehearing is designed for so on that basis we would ask for evidence regarding their claim with respect to charles howard charles howard was the key witness at this trial it's well established with in his identification of the defendant well we now know from his affidavit that the reason he was so positive and insistent on his ability to identify the defendant was because he was told by the police and the prosecutors in this case that if he didn't stick was the key witness he said he recognized stephen smith who claimed to be near the scene that he had some credibility problems because he had some pending armed robbery charges and he said it all keeps coming back to charles howard well we now know from the affidavit which must be presumed to be true that howard wasn't really sure of his identification of the defendant that he was testifying to that fact falsely because of what he says was yes yes and no parole i believe he did yeah that and i would also point out that there is also evidence other evidence from our trial court record that corroborate other claims he made in his affidavit which was that i kept telling him i wasn't sure i didn't want to testify that i was sure and i try to avoid testifying by just not showing up at trial and in fact there were several occasions when they were ready for  trial they came to trial charles howard wasn't there so that corroborates his claim that i only did this because a threat at one point they actually took him in on a warrant and they put him on a short leash there's some information in the trial about trial record about mr howard having to report to the one of the prosecutors on a daily basis so there certainly have an incident here of constant contact between charles howard and the prosecuting team  no no but it does corroborate his claim that he was being pressured by the prosecutors and the police to  he says i just kept naturally up at trial hoping they would just not call me and then they finally brought me and a warrant and i'm not sure i have some vague recollection they may be going to help him in the county jail for a period of time but certainly he showed himself to be a reluctant witness until he testified and he was very insistent at trial about his ability and said i don't have a problem with my eyesight it got a good look at him and now he's saying i was not sure and i only testified because of these threats from the prosecuting officials with respect to the third plane and  so over a miller street he was very specific about where he was located and who was there and what he was doing he said he was parked on seven miller street there was a van kirk directly behind him he was engaging in a dry to a drug transaction with the person in the van he said at that time he saw a power with the engine running parker back in and then parked in a driveway at eight miller street directly across from also said that the person sitting in the how waiting in the driveway at a miller was david woods cousin of the defendant and he then said that he saw the defendant pop up in front of them with a gun going into the car sitting in that driveway and drive off patricia sharp is a witness who had lived it eight miller street for about two decades at the time of the shooting she was still living at eight miller shooting that she pulled into her driveway and as she got out of her car and immediately as she entered her home she heard shots and that at the time she pulled into her driveway and entered her home she saw no one in the area s transactions taking place you saw no vehicles there was no car in her driveway which would be hard to miss if it was sitting in her driveway with the engine running and she said that no one had ever contacted her from the defense during the entire time this case was pending and i have to agree with trial post conviction counsel that this kind of information is really investigation want to know one that you know of a specific address where a witness who is a critical one of the critical witnesses claims to be and you know there's a home there and that there's most of the car parked there who would not make an attempt to go and speak to the witness at that address to find out of that witness has and you probably information there's no indication that she said no one ever contacted me until and she was readily available she's now been living there more than three decades she also said that if she were called to testify she would fact understood that stephen smith was also an important witness and the judge himself said steve stephen smith corroborated charles howard's testimony and what they tried to do was impeach his ability to observe what was happening they presented some photographs they also brought in jonathan davis who said i was not with stephen smith but they didn't present any evidence to style i think is also an only supreme court case that's relevant which says that with respect to defense attorneys applications that defense counsel have a professional obligation legal and ethical to explore and invest a defendant's case and determine whether defense attorney is ineffective for failing to investigate and uncovered scope of terry evidence by looking at the value of the evidence that was not presented and the closeness of the evidence that was presented and this person was wearing different clothing than the two shooters dead by the hour so spearman observed a different shooting in a different day the people know that trial stephen smith testified that he was at miller washington streets at the time  trial and better defendant could not have discovered through diligence defense counsel at that time could have discovered his alleged coercion prior to trial simply by asking howard if anyone had threatened him to get him to testify against he or she presented or presided rather over the defendant's trial early in the first district in jones and twenty twelve he stated recantation evidence standing alone does not rise to the level of the constitution while asian that would entitle a convicted anyone regarding the shootings and she does not say she would have testified at trial sharp does not state the defense counsel did not attempt to contact her prior to trial at best had sharp testified it thrown her testimony but only  and includes charges of painting that no one could have seen flashes from a gunshot through the trees on cross examining mr smith the trial defense counsel introduced photographs of the location that is you including a lot full of trees at the corner of miller washington based on her knowledge that no one had been shot at that location from inside her house there's no way the mole in could have determined the specific location where the shots had been fired and  did not even really state that the holding because in that case the trial judge was not the same judge as the post convention judge but people being hernandez relied on an abuse of discretion standard the onus supreme court has made clear and in fact the facts and coleman involved a recanting witness and the stated argued in that case when you have a recant the witness that's an unreliable piece of evidence and the tation without an evidentiary hearing in this particular case judge leave us heard judge leave his heard charles howard's testimony at trial he didn't hear charles howard's testimony as to why he recanted or as to what pressures were placed on him trial judge was the same as the post conviction judge and it had actually heard the recant teen witnesses testimony at another evidentiary hearing and had already assess the credibility of that witness's testimony at another evidentiary hearing in the post conviction petition the court said that doesn't matter if you look at whether the facts as stated taken as true show make a substantial showing a constitutional violation you don't assess credibility being incarcerated for he says i became aware of that the instant he was being in prison for i actually witnessed the shooting that took place he also says i syria clearly saw a man wearing a red jacket so when he does say he saw the the correct record that only that was new evidence that could have been discovered through do due diligence and that basically if he's found to be a credible witness it could change the outcome of the case so that's what we're asking for a hearing where he can determine whether he's entitled to to a new hearing charles howard's affidavit as not being newly discovered evidence and i find it really just someone incredible lead we're talking about credibility to believe that his defense counsel had asked a witness who was being threatened with going back to prison and being charged with crimes that all the fans gonzlez to do was ask prior to trial and charles howard would have admitted this to right right with respect to patricia shar she says in her affidavit called to testify i could testify as follows these these allegations first of all have to be liberally construed and as people b smith makes clear you have to you have to show that you have to know the source of the information and that that source is available ok i think she's saying in fact