colleague be able to make that argument  may please the court i would like to begin by focusing on the first issue in the brief the actual innocence claim it's necessary to begin by going back to the facts of may twenty fourth in may twenty fifth one thousand nine hundred now on may twenty fourth  mr mcneil completed his ged exam this is not a disputed fact the test results show that this is in fact the day when he finished taking the test after the test his father picked him up and took him to the macon's home and job to mark that evening song was friends with david macon who was we all make in sign and oftentimes he would go over there for the evening for dinner and sometimes to spend the night and that is what he was doing that evening after dinner mr mcneill along with mr m hearing that he went to indiana for a trial at first there was some confusion because he seemed to have mistaken that for another trip he may have taken to indiana on another case there was a little bit of ambiguity with regards to which case that may lead to later  case he is ever represented as a public defender certainly is a very large caseload i mean several interceding cases in the interim between one thousand nine hundred two and he defended mr mcneil two when he testified more importantly none of those notes could be recovered he said he didn't have them the state i believe before the evidentiary hearing is did make an effort to locate the case file for his one thousand nine hundred two case and that couldn't be located with the public defender office so it's really if there is an absence of certainty mr mcneill however says think right now we're talking about innocence well then if we go back to the actual innocence it is that basically three prongs have to be not the evidence has to be newly available right which really just means that it was not available at the trial it has to be material and non cumulative and it has to be evidence that if presented on retrial would create a lake we hope that there'd be a different result and all of those problems are not here because this i just said our right it is against the man if that weight manifest weight of the evidence the finding that in fact this evidence was not newly available now i understand that i mean but my concern is would we have to say that the judge was let his attorney know that these are the people you need to contact he did not have their contact information any more he admitted lee was bad with numbers didn't remember the telephone off the top of his head didn't give a street name so here's a tip for his attorney to go and pursue that investigation which clearly didn't happen but it wasn't until after the conviction that everything sort of fell in place there's no reason for the may construct independently known that the date we happen to have him over because he finished his ged was also the da this crime when they weren't privy to the details of that crime before he was tried so that that would be the argument that it wasn't information that he had before you went to trial or that any of these witnesses independently would have had enough information to come forward on their own and to assist him at a prior trial we your interpretation certainly has some credence to it but i guess what i think we're all through as you're saying is if you're the boy his testimony he did not give her testimony a lot of weight ok and in fact her testimony really cements the date of when this gathering took place and the fact that she was with her with mr mcneill the evening into the early miscarry greatest testimony in fact she there were several pieces of her testimony that lend itself to the fact that this party did occur on may twenty fourth one she said that the day after she recalls going to dayton ohio visit one of her sisters and then coming back from that weekend and still having to choose a half weeks left of school that's the first thing the second thing she also said that she recalled having relatives come from into indiana for a june graduation and that she remembers this in several weeks after this gathering had happened and she does testify to the fact that she went to atlanta for the summer but well i'm not familiar with the school schedule in the nation ninety and i'm presuming that like now it probably ended early to mid june and mr mcneil in this way grady did not see each other that often so for either mr mcneil or miss or grady to say you know this was the last time we'd see each other and then a couple weeks later she went away for the summer in me twenty four so given that information and given the fact that none of that was referenced in the judge's order it seems as though it wasn't taken into consideration and i think that is the evidence that would lend weight to the fact that his his conclusion was against the manifest weight of the evidence that you have once in and out of it was well miss corey grady's testimony and reading his order which one would presume lays out his thinking for deciding the way he dead was pretty short rows about ten pages and it does then some time talking about both the megan's testimony but really glosses over or i'm not even sure that it does mention her testimony and to have three witnesses all say i know we were together the state and really the only witness that the state put on mr struck off most of his answers as you pointed out before judge he it's hard to recall events that took place seventeen years prior but in the answers were quite honest i can't say with certainty whether he told me the names of the witnesses i can't say with certainty whether there was an investigation so most of his answers were i don't know whereas everyone else has answers where i know and i remember it being this day and we know it was  realistic or on realistic it would have been to find that file certainly it could have been very helpful but i think the fact that there is nothing of record to say that he didn't tell failed well in fact he did file was in the you know in the courtroom i hope he did file to motions for a new attorney in april and may of one thousand nine hundred one now these were boilerplate motions that i'm sure he got from the prison law library or something like that and he testified to that so it doesn't lay out any specifics more than just sort of a a boilerplate a motion however he testified that he filed these motions and this is so he met mr stoke on march she filed his first motion april the second one in may they both were denied they testified that he felt as though mr straw was not pursuing the investigation as she would have liked in not getting in touch of these alibi witnesses and that was the impetus for him filing these motions for a new attorney i didn't s hearings he could not say with any certainty whether or not he knew of this alibi witness and the court was told that not investigating the alibi not presenting alibi witnesses at trial specifically when they have exonerated testimony meets the first prong of strickland's and it is certainly no leap to also assume that had this been presented at trial that there was there is a reasonable probability that the outcome of the trial would have been different from what we have here because it was it was very clear from those records that there were alibi witnesses was a failure to investigate and there was no reason given i think there was a bit of a disconnect here in terms we had the transcripts from the hearings on the motions for a new attorney where maybe he said you know my attorney isn't conducting an investigation then we have something to support the fact that in fact he gave his attorney that information but we just have two people who disagree about whether or not they received the informational granted the judge said i'm not sir but he didn't tell me about the alibi witnesses but we just have a disagreement between  a dilemma however i think one can't just look at what is not in the record but you need to look at what is in the record and what is in the record is mr mcneil saying he told his attorney his attorney stated i can't say for sure one way or another and three other people saying yes we were with them so there was an alibi and then we were other people testifying under oath and obviously for some deals but they said no we were with them and he was  so you're you're you're you're putting one thing on one side of the scale and there's a lot more to go on the scale so that that's what the judge was from that's cracks but i think if we looked at what the state's evidence was at his trial it was far from overwhelming they put in fifteen w address at the time of the crime she said she was terrified of tony after that but then testified she kept going over their house to hang out with them so i usually had this this evidence also been put on being there was no physical evidence  story that they were all together they're going to rob the victim well that mystery about her being you know soliciting him for a sex act and then getting in the car with a woman would come from her hand on the car why would she have her him in the car a perfect morning your honour's again may please the court my name is michelle from all this time i mean this is the state's attorney in answer to your questions and your honour's about the transcripts of the motions for the new attorneys they appear at june fourth of one thousand nine hundred one i do not have the volume here but because the defendant took apart the record and put it back together on his own i believe that that would be in vol investigating his alibi witnesses now as this court has clearly recognized and this counsel has routinely ignored the procedural posture of this case is not a review of the entire evidence presented at the evidence cherry hearing the facts of this case have been determined by judge coghlan who is in the superior position to determine those facts because he saw those witnesses testify he saw the defendant testify he saw the defendant's witnesses testify he side judge strout to testify he wed the investigators reports from the state's attorney's office involving interviews with the defendant's witnesses he read all the various affidavits where this alibi morphed and evolved and that the end got better as the case went on and hew the tremont but the defendant fabricated this alibi he determined that there was no alibi that it was a lie that the defendant perjured himself that he never told judge the names of these witnesses the judge struck of therefore could not possibly have been ineffective in not investigating and presenting those witnesses because he didn't know about them at the time of the trial the court explicitly found that the defendant presenting this claim and that the defendant's witnesses were incredible and if the only issue before this court today is whether the record supports those findings if it does this quickly must bring into deference to the trial court's findings and affirmed with denial of relief and it is clear from the review of the record that there is ample evidence supporting those findings as an initial matter it should be noted that the defendant can't simply proceed in this court on a theory of no one discovered evidence the the with certainty that i don't recall but the defendant conveniently omits the last part of that but it was my plan this if i were told about alibi witnesses to name them in the answer to discovery and we have an answer  discovery in the record a supplemental answer discovery where the judge threw out they did that and you know what did he have a proper name or an address no only knew is that there was somebody named indio out there a very icy date where my caller skidded on the ice looking for indio clearly where is the judge going to say absolutely definitively without my notes in front of me i can tell you one question to billy no he didn't say that but he did say i don't have any memory of it it isn't in keeping with what how i would have conducted my case if it happened and based on valid evidence the trial court was absolutely within its bounds to say never happy now alibi the reason why the defendant can now pick and choose his legal theories is because his legal theories i legally and logically inconsistent with each other don't know you got to be the source of that alibi evidence you miss the defendant knew where you were on the date of the crime so alibi evidence can't be legally newly discovered evidence it cannot meet the definition of them that's number one number two you can't have new evidence that's really your level he got to choose run the other now it's clear why the defendant tried to proceed under these two theories he needed the legal i'm a regal theory which is a valid legal basis for dismissal but allowed this case to go forward in order for the court to observe the defendant's witnesses to make those credibility findings that doesn't change the fact that in the final analysis the defendant's argument can be seen on itself he can't have it both ways and he can't meet either legal theory the fact the defendant's whole argument here against the manifestly irania standard is when we have four witnesses and the say they only had one so the judge should have believed us that's not the law conviction relief now if you look at the various reasons the record which support the trial court's findings you will find that there is no choice here but to affront the trial court's ruling the implausibility as justice for side recognized of the wrong rost alibi that people but consider would you like a member of their family would do nothing to find out when first that they found out that you were arrested and assumed that it was for a minor offense then they find out that it wasn't from minor offense that it was murder that they they didn't find out what the murder was occurred this is somebody who's supposed to be at your house so much of the time maybe you could have provided an alibi for him but you didn't do anything is improbable that the defendant knew he had an alibi knew he had witnesses knew he had an opportunity at least enough information where somebody could go out looking for them knew he had an attorney that would investigate told the attorney and that that defendant who was so new savvy so clever that he was able to get a new attorney appointed in this post conviction private counsel that defendant wouldn't and who was standing up before the trial could even at nineteen and saying i need a new attorney this one is not representing me that that defendant we're going to say i told him about my alibi witnesses and he's not doing anything it's imp came into that sentencing hearing to testify for him the defendant didn't stand up and say that's truth that's the woman that can provide me with an alibi and i told my attorney about it two years ago it's favor failure to investigate the alibi itself is equally improbable it's improbable that a proctor is going to look at a test that's a standardized test but that a key card to say oh yeah let's think think peste it's improbable that a party would be held on the date that an exam was completed and not the date that they pushed the examinee was notified of his passing it's improbable that that party would also mark the brisk they have a child who's not there party until five years later when the defendant's attorney tells her what does that tell you about the alibi she knew he was with her but she didn't know what they were doing but now five years later with so memorable she remembers because it was this big party in two thousand and one after stephanie boyd gradient as she had her contact with the defendant was a good dinner no was there a party  stephanie boyd grady's first affidavit says i was with the defendant all night from ten until two we were catching up and talking before i left for the summer what does that tell you was it may twenty fifth no it was june sixth when the defendant might have passed when school was almost over her brother in law and sister were in town in early june when she saw anthony for it to attend  graduation high school graduation more likely june sixth lots of facts in the record to support the complete the court's conclusion that if there was a party it wasn't may twenty fourth it was june six it's only when the defense attorneys get involved in two thousand and five that this alibi becomes this big fancy in very detailed alibi and when you look at how all of these witnesses not only conflict with each other but their conflict with their own you know the two thousand affidavit or the two thousand and five affidavit or the two thousand and seven  interview with the state attorney's office and their testimony at the evidentiary hearing there are reams of contradictions and all of those contradictions provide sound reason why the judge  again i'm allison trades and with miss sharon represent anthony neal i like to begin by addressing the state's argument that it's not appropriate to raise an actual innocence claim involving an alibi based on newly available evidence in fact the state misconstrues the standard the standard is that the evidence to be newly available the evidence must not have been available at trial and that in fact is the case here as in the share mention the evidence that proves mr macneill's alibi it is these three  victim's well separate setting aside the ineffective assistance of counsel mr meek mr mcneil did not have the resources or the ability to of find those alibi witnesses through any exercise of his own diligence there was nothing that he could have done to get that he didn't have his contact information for him he testifies that while he was extra during the time that he was extradited or at the time he was extradited from indiana to illinois he lost his phone book which was his only source of their phone numbers and he also testifies that he wasn't very good with with numbers and he just didn't have their high tech information he had no resources at his disposal to find that contact information now the state also asserts that it's improbable that there's no explanation for why the mak not know the date of the murder for which mr mcneill had been charged and was being tried the macon's had no reason to know that the that that crime had been committed on may twenty fourth and they had no reason to independently cannot the twenty fourth to the celebration so it wasn't until after the sentencing hearing until after mr macneill's conviction that leland did make and became aware for the first at the sentencing hearing and testified and even then during her testimony she didn't know that the date of the crime was the same day as the g d exam it was until after that that she understood ok thank you i'd also like to address the state's assertion that the that the alibi that mr mcneil provides is improbable the state begins by saying that it's not possible for the proctor to look down at an exam that had a scan time sheet and say that it looked good but in fact mr mcneil testified that he took the exam over a long period of time in several parts so at the end the day that mr mcneill on may twenty fourth the day that mr you know took the final part of the exam he had already known that he'd taken for other parts of the exam i believe it was so it's probable that after taking the fifth part after this long period of studying for these exams and doing these ged courses mr mcneil would want to celebrate that and may have a feeling as to the fact that he passed exam the state emphasizes all of these minor discrepancies in the testimonies of the alibi witnesses they have and that that emphasis on these these small details is simply an effort to distract from the key point which is that all three witnesses say that mr mcneill was with them on may twenty fourth and may twenty fourth the night that william gonzales was murdered and the state also says that the details of the alibi only come forth in two thousand and five after the attorneys are involved that is in fact not true and it's inconsistent with what's in the record mr mcneill testified at the evidentiary hearing that he told his trial counsel that he took his exam on may twenty fourth and we we in fact have a record of him having taken it on that day so these five he does not mention those details and i think that's it's important to point out that in one thousand nine hundred five mr mcneil found out for the first time that his three year period for filing the post the post conviction petition was set to expire only thirty days before that deadline so mr mcneil that with no real resources no legal sophistication i put together whatever he could find using the resources that were available in the prison library and he essentially put together what what was in a pleading that was based on boilerplate language that he found in the prison library and didn't he didn't have enough time to get the affidavits susan correct correct and at that time he decides he just didn't have the time or the he didn't have the ability to get there affidavits in time was to celebrate the results of the ga game seven his testimony refutes that conclusion she testified that she remembers traveling to dayton ohio the day after the party at the macon's home she testified that after returning from dayton ohio she still had two two and a half weeks left of school and she actually testified that the school year ended in early june now since mr mcneil did not receive the results of his ged exam until sometime after june sex and the school year and in early june the only reasonable conclusion from the evidence is that mr boyd grady correctly recalled the date of the party as may twenty fourth the date that mr mcneill completed the ged exam and again it's important to emphasize misplay grady's that she is a mental care provider with a master's degree in school counseling she has an associates degree in organizational leadership and supervision and she had not been in contact with mr mcneil for well over a decade when she came forward her testimony she had completely extricated herself from her upbringing in gary indiana she had nothing to gain by testifying and there is no valid reason to discredit her testimony mr stoke actually did testify that mr mcneil may have said that he had an alibi or that he wasn't there he further admitted that he couldn't say with certainty that mr mcneill didn't mention the names of the macon's or mis again when judge problem with making this credibility determination and deciding whether this evidence would have made a difference on retrial he's balancing these four witnesses testimony that mr mcneil was not in the state of illinois at the time of the murder against   as we discussed miss nevers received a dramatically reduced sentence she couldn't remember her home address at the time of trial she provided conflicting accounts of where she lived at the time of the murder there was no other witness that connected mr mcneill with the crime there was no physical evidence in light of the strength of the three alibi witnesses testimony and mr macneill's testimony and as balanced against judge struck was uncertainty and ever any of us in credibility judge struck his conclusion that the alibi witnesses were not credible is against the