a complete and well pleaded post conviction petition because his initial pleading was treated like a post conviction petition against his wishes after he tried to convert it into a motion for a new trial the  that the first lady looked in class like a ducks what was a duck but the only reason that first pleading was considered a post conviction petition was because mr ms simon mistakenly began its title with the words post picture petition he did not state that he was filing it under the first conviction hearing act he did not attach any affidavits to support his very cursory claims and seven days after filing it he realized he'd made a mistake he didn't want to file a close connection petition then so he tried to convert it into a motion for a new trial but the trial court refused this request and dismissed it as a frivolous p c and then of course from there it was appealed and it was an appeal that was doomed to fail because it was such a cursory it no will clearly it's thirty days thirty eight days after sentencing and if he had filed this pleading eight days sooner it could have been considered a motion for a new trial pro se or a crank of motion but he didn't he didn't it was eight days late for that basis he did file it at the same time as his present motion to reconsider so clearly he intended this as he says in his new affidavit to be a motion for a new trial press a because he thought his trial attorney done such a poor job but must same time it doesn't the court lose your restriction to consider a motion for a new trial or a motion for reconsideration that are filed after thirty days there is no jurisdiction correct as opposed that the court had wanted to consider it and convert it that he would have dismissed it just like he did with the motion to reconsider sentence that was filed too late you know the opposing counsel says that it's a convoluted sleight of hand to say that shall stream applies but the principle of shel stream is that before something is treated as a plus conviction petition against a pro se litigants wishes he needs to be given the chance to withdraw it or amend it to include all of his claims and this case it's a solid argument that he was he has lost that opportunity because he was not notified that he should withdraw this petition or amended to include all those of us plans so it's a lost opportunity to have an initial fully can be situations in which the proceedings on a first petition are so deficient that a successive pleading does not even have to be held to the cause and pressure to stand it i don't believe there is a case in which that has happened  external to the defense he did not want that treated as a post and action petition that's closet sternal he tried to convert it into something else being a pro se litigant he didn't understand the consequences of this proceeding going forward and that he was going to be to even formulate this claim to any degree and understand how to get these affidavits or what he needs to do by the time he files this new pleading which i would like to note which i did note in the briefs would be considered a timely filed first petition if it was his first petition which you have made maybe neither here nor there but it's an interesting point he finally has affidavits from witnesses who were said they were prepared to that indicate some of the it occasions that we're talking about perhaps he has no criminal background whatsoever well but we also have to think about the fact that the sentence here was five years above the minimum and he had advanced three forty five year had me the second prong the prejudice on that there would really be a likelihood that the sentence would be any different i think you can beat that prejudiced chrono mean as i say to a case in the opening brief talks about any are that that someone's liberty is affected could make a difference here we have a case which is not a premeditated first degree murder case by any means there's clearly a history going on between the defendant and the see that he was prejudiced by a chinese failure not to investigate or present medicating up and it's something we also have this jury waiver issue which is also you know prejudiced being in the in the light of the success of you see when would be like a due process violation of not considered here he's saying that his attorney promised him that he would when if he went with a bench trial if that was true a kind of a squishy witness in the past he's kind of gone back and forth i think but at this stage assuming that the stage of close connection with pleadings proceedings that that the truth in his affidavit he actually sees had to testify in accordance with how he's testified at trial so that was being the reason he was testifying as he did the trial was he didn't feel fairly comfortable he wasn't custody as i recall at the time of trial he's not feeling that he has a complete liberty to testify as he wants to testify i would also note that in the person that you petition mr simon makes reference to another witness real crews who allegedly also sock the gun at the the opening brief and also noted that he did not respond to parts in which a self defense claim was considered actual innocence claim so actually it can be considered an actual innocence claim if there's a lot of obstacles in a case like this to show actual actual innocence when there's no dispute about who was the shooter it's similar to maybe an accountability case about someone being actually innocent or if he actually was self defense or second degree murder perhaps as an unreasonable even self defense but what about all the other witnesses that testified at trial that really ever here yep the grocery store owner who said that no one was near the body he watched think when the person fell or defendant pushed him out of the way that the fellow that was there to maybe buy some marijuana right mr aaron jackson yes he really never appeared from his test no i was trying to point out an opening brief how we can't necessarily grant these witnesses the best perception of what was going on mr jackson is trying to flee the scene as is mr claiborne in the car ok now that's the other so there is a third green is the third person freeness the thirty years and right we have our aaron to the food markets the most unfortunate situation in fact all against this backdrop how does the how does the conviction post conviction petition proceed even if we consider it the first stage when you really can't show number one hundred the the prejudice fraud in effect and under the actual innocence you have this multitude of other witnesses apart from three who have already said no gun and green originally said it was green or it was that no gun he said that he was told how to testify and how to make a understand even the rules of evidence frankly about hearsay coming in and that's in that mr simon testifies to his background tries to get in that the victim actually shot him several years earlier and now to this  the the first the main point here we have the actual innocence claim which is i argue in the briefs is enough to make it for further present victim proceedings because we have as we must assume at this stage what mr green  withdraw that first the seating and was not given the chance will you try to convert it was not given the chance to withdraw it or amend it did not have any affidavit attached to it didn't file it under the post conviction here in act it's so soon when the pope when the direct appeal is pending there's clearly a problem here the issues that post conviction appellate counsel raises are doomed to fail because there is no affidavits attached to this initial pleading and in fact the issues he does raise are basically the same issues he raises on the direct appeal as as your honour's pointed out in the rule twenty three order for the post conviction appeal so there is it's it's just so deficient he's these claims the ones that i've raised here on appeal that the sentencing issue is well pleaded with affidavits the jury waiver issue is something that would be a complete due process violation if in fact th the trial attorney promised him if you took a bench trial he would be going home the the lynch evidence failure to present he says in his own affidavit that robbie hill was the one that shot him could this made a difference of the been presented at trial by an effect of attorney perhaps and then we have this gist of the claim about the trial counsel showing up for trial intoxicated for all of these testified about the circumstances of the shooting as to defend it other than defend it all four of the witnesses testify that they saw the victim's hands in the victim's not only weapon he was green solo play born jackson was actually four people or jackson trial date a name date drunk and well that condoning that if it did happen i guess we have to take it as true there's no allegation as to what error was committed on this three trial date or what prejudices the defendant and that has to be an error plus some sort of prejudice and nothing like that is alleged so in this particular case this defendant filed post trial as such just right points out  anthony green who testified at trial that i was there the defendant had a gun the defendant shot the victim i don't know whether the victim had a gun or not i couldn't see the state then introduced by way of one fifteen ten prior inconsistent statements in those prior inconsistent statements anthony green said i didn't see him i saw his hands he didn't have a gun that substantive evidence that comes  more out the law doesn't favor recantations to begin with but this is a man who did recant and his claim that i was afraid the state would get mad at me or do something to me if i didn't tell what the state wanted me to evidence moreover that you know the judge made credibility of the terminations the defendant himself testified at trial the judge did not believe the defendant he said he didn't believe the defendant so i get this this actual innocence claim really is is is going nowhere  in terms of the other issues raised in the successive post conviction and you know the defendant recognizes that he had filed something called the post conviction and he claims that i was a visit by by a jailhouse lawyer  i think that's a dangerous slope to go down because everybody's going to be saying things like that the other thing it's important if you look at the claims that he makes in his original post and diction titian they're almost identical to the claims he makes in this excessive post fiction for instance in this first petition he says my lawyer was ineffective for failing to put on mitigation evidence but you can read the record you know that he didn't put on mitigation evidence that claim first of all could have been made on direct appeal it was made in the first post conviction and the only thing different in the second in this excessive posting directions now he's come in with f a davis from his mom and other relatives saying he's a nice relative and all this in a case where the minimum was forty five and he got fifty the there's nothing in those affidavits other than he's a nice relative nothing specific that would cause any reasonable trial just say this is this is mitigation in the p s i have clearly indicated that he had family i'm ever going to sue me you have family members who will say nice things about you that's not much of a shock and really doesn't affect very many way but there's no way the basically in shock from what the court was looking for was has he been deprived of being able to present these claims somehow is it fair that he can't make these claims is he out of the box due to some technicality well he did make these claims he made all the same claims that he's making now and very little difference if for instance the claim that my lawyer promised a get out of jail free card or something along those lines well if you look at what he says  in his original post conviction he says my lawyer said don't worry about it you're going home you don't have to file motions so there's nothing that would have prevented him from making the same claim concerning the you don't have to take a bench trial because you're going home it's the same it's the same just so there's nothing out there that would prevent him no external factors that would prevent any he had all the information he needed at the time he filed his first post conviction to make like that he needs to be given the chance to withdraw it or amend it to be to include all of this claims when counsel says that everybody's going to say they want to second bite of the apple cause they're mis lawyer at that is not exactly what's going on here he realized very soon that he did not want that treated as a post and victim petition and he tried to withdraw before the judge even ruled on it and the act is clear that someone can withdraw their petition before the judge rules on it so he was not given that opportunity that is the principle of shall strong with a pro se litigant who doesn't understand the correct procedural via a call to be filing this is not something  conviction actually yes your honor i do not know that attorney the attorney has left the office in my opinion that was unreasonable not to at least include that as an alternative argument that this was should not have been treated as opposed to action petition being raised first time here that we're not placed into is what we're calling the success of bush just prefer dark until he does say and his successor petition might have to go pull it up and get the exact and i said it was unreasonable when there's really a conflict developing here because he's basically precluding mr simon from raising a public counsel's with he does both appeals a effectiveness on a future success a petition without me in the  young people versus family rice but they took a successor post induction petition and remaindered it for a second stage proceedings so that seems to be the procedure that would be followed here if i could make one final point in rebuttal to about the starts case that was a post conviction case with a claim of actual with a self defense so respectfully counsel is incorrect that self defense cannot serve as the next on this list or fish you can see significance if my final point would be your honor that this is not where everybody's been open the door and say oh i was misled by is about the first lady and i filed because this is a unique case in which she doesn't file it under the act he tries to convert it right away he just mistakenly