post conviction petition williams made a substantial showing of actual innocence through newly discovered evidence that would have undermined the state's entire case against him now to obtain relief on a claim of actual innocence the petitioner must include supporting evidence that is material none cumulative and of such conclusive character that it probably would have changed the result on trial and the evidence has to be unavailable at trial and also it could not have been discovered sooner or through due diligence there's there's the rub what  many many times before and that doesn't happen just because an individual's listed on the state's answer discovery doesn't obligate the state to actually cause the individual and the defendant is never never should never rely on the mere presence of a name to it as assurances that the individual will show up in court the defendant has an obligation to track down witnesses of his own and if he doesn't exercise  screw the police is unable to find and i think it's unfair to put more onerous burden on the defendant to go out and find him all i'm saying is that if he was really unavailable we should have something before us that said you know all these efforts were make much of an effort at all because they really didn't you know you know let's say they knocked on the door once and that was it nobody answered they go away but the defendant to the extent that he has a claim of actual innocence that this individual will testify contrary to news to them that he wasn't the shooter he wasn't even present it seems to me that the burden is on the defendant to exercise due diligence and make sure he brings in the trial not the prosecution didn't only say that the state couldn't find him the at the hearing the prosecutor said neither the state nor the defense were able to find him and the really big question before is this is is the showing that made on the record before ahead and move this to a third state sharing isn't a whole object of this thing on a post conviction petition is when when somebody claims actual innocence like in or tense and we have evidence here in an that somebody else was the shooter certainly they should get a hearing to prove that they're actually in this should we put a roadblock in front of them and say well you know there was another nuff here to show so maybe he was a little negligent or should we really give a hearing to determine when people are actually innocent that they should be released from prison yes i mean this state is no laughing stock for having it isn't people in prison and sending them to the gallows is your you're absolutely correct your honor we should move this forward to a third stage hearing again i would point out people versus hernandez and other seconds to each case where a witness recanted eight years after the fact through the recantation was only seven years later and in hernandez what's of particular interest is  findings because didn't hear the witnesses testify originally that's exactly what we have here the post conviction judge was not the same as the trial judge and so it should move forward to a third state sharing i just want to point out that with respect to nash williams did meet the due diligence standard with wasn't until post conviction counsel's appointed that he was able to go out and get that that get that affidavit also besides that you diligence williams has shown that the outcome of the trial would have changed with these two new affidavits but there  other evidence physical evidence that links him to the scene he wasn't arrested near the scene there was no gun recover and again now she was the only witness at trial to identify him as a shooter and i think it's important to note that smith was the intended target here and if smith is now we know that it wasn't the defendant if he can really say who it was because he says he was familiar with the defendant before this time said he knew the defendant from the neighborhood and when he saw the two shooters he was able to recognize that that wasn't the defendant and even though he doesn't know the shooters he is willing to but we don't know first of all it's only admitted for police course of investigation it can't be admitted for the substantive truth and we also don't know what it is that smith said smith could've said like or that my friend said that williams was involved not necessarily that williams was the shooter but it she's case but your honor before i go into that i don't want to answer just the slam ins question as to whether or not due diligence is the third stage inquiry due diligence is a second stage inquiry that is that that mistreated unequivocally b trial courts dismiss or circuit court's dismissal of his petition that second stage was not improper now that being said case is that the shoulder to shoulder one i think that there was significantly more than that there was evidence that he was there but he sat there was evidence that the defendant in or tease had presented that claim of innocen several times that he was diligent in trying to obtain that information but in this case the defendant has even though it's his burden to show diligence he has failed to show any diligence at all because well might opposing counsel says that both sides were looking for this the mr smith that statement was made by the public defender at the hearing below and it was not supported with any  smith named the defendant and one of the best evidence of records is the fact if you look at the p s i i out of the defendant's own statement about this crime that's listed in the p s i i is that smith named him as somebody being involved in the shooting and i can tell you where in the record that is so that you can  i will find the man and i will tell you what it was out of the defendant's own mouth and more importantly the documents which the trial court here relied on in finding that that smith named the defendant those were police reports which the defendant had appended to his pro se petition which miraculously didn't find their way into the record in this appeal but  documents and it's clear based on the court's order in detail discuss exactly what eric smith told the police right he was in custody right he said and it was very clear that he identified the defendant bernard williams as being one of the perpetrators now that we have is we have evidence that the defendant didn't look for what for smith at the time of trial didn't want and they are in fact he said in the p he hasn't come to court one time he didn't want him there he didn't look for him and he's seeking to rely on the state's efforts to keep you give him due diligence he's provided no authority that he's entitled to rely on anything that the state did to show his due diligence and bringing forth evidence the point of the matter was judges that the trial has to put me under our system of jurisprudence is the primary venue in i want to raise this claim but they can't find the witnesses to support it this wasn't even raised until two thousand and five when his attorney filed a supplemental petition that's not due affidavit of names which in itself should not be considered substantial enough to make any shopping whatsoever and this case is not like the capital case of sanchez on which the defendant relied but there are just absolutely no facts that that render account suggested who i should identify i made a deal with the state in return for money and a good sentence and i lied on bernard williams try he never said i wasn't present at the shooting  nothing to corroborate that one person's identification you think that the enough to get the case to a third stage hearing because you have one witness saying he is this shoot even if he testified in accordance with his affidavit he would be impeached by ready he told the detectives immediately after the shooting that he may not have been i would williams so he would be reached with that he would also be impeached with his claim in his affidavit that nobody was looking for him nobody ever asked him because that's simply not true and it's clear from the evidence of record that it isn't true it's clear that he invaded because opposing counsel says that they had a similar vantage point so nash couldn't have seen what he's seen now the testimony at trial from name which was that smith turned and ran as soon as the defendant up their guns from their waistbands and that nation issue we ran but when he realized his ten year old rose the deer in the headlights looking at the shooter's coming he turned around he ran back and went this way  he grabbed that ten year old and went to pull him out he was only fifteen to twenty feet from the shooters he had a clear look at their faces so what he saw was significantly different than anything that th hit and what is this in the birmingham testify i was broken down the street i wasn't paying any attention because i was scratching off rather retake it and realized that ben shot now nash testified that he saw the two shooters between the ages of nineteen and twenty one years braids in his hair the last corroboration of nash's testimony now the most damning piece of evidence that we have are going to go over all the evidence of this is a legal question defendant's confession the defendant did confess he he made an oral confession he's now trying to distance himself from that as he didn't file but we had two different witnesses other than the original detective who took that confession that subscriber did that wrong and the other detective who was in the room when the defendant made those confessions and his assistant state's attorney on felony review who said the defendant said to me i've already tried the detective route my involvement in this crime was i'm a conviction that was a pain you during a fair trial with what the supreme court d'angelo johnson's case not closely balanced evidence the defendant has failed to meet the required showing of a substantial showing  constitutional violation to warrant a third stage hearing in this case the circuit court properly dismissed this petition and the people of the state of illinois i respectfully request that you affirm that decision than what was made before the court for not hearing that that they did not have it no side was able to find him and detective kiddo's testimony that the police were unable to find him there isn't any any further evidence but but again after trial he's incarcerated and doesn't really have the resources to go out and look for that witness another question was asked that even if we only had smith affidavit with back enough for third stage hearing and yes it would look at people versus morgan there was a lot more evidence in that case there were several witnesses and only one witness recant defendant after trial to continually harass witnesses asking when are you going to recant when are you going to recant there's no way that a defendant has control over when a witness is going to recant and again it wasn't until he had a post conviction counsel appointed that he was able to have resources to go out hearing a centrist does doesn't only limited to two fourteen or one opinions but also said this there are other circumstances such as motions dismiss where that kind of evidence can come in and i'd also like to point out concerning the defendant's statements he  did testify that he did give an oral statement but there was a lot of suspicion concerning that statement right after he supposedly confessed or so that he was involved the state's attorney was called in and he tells the state's attorney no i'm not talking i want to lawyer and that's exactly what williams continued to maintain a