and that he shouted the deceit and only because he believed that the cd was armed and shooting at him and accordingly the jury was given a self defense instruction as well as a second degree murder struction however no other witness cooperated mr prison he's talked to the emmys office twice they've told him they have a report going to him they told me that they have a report in the case there's no self casings but court and he's requested a court order for that report but that was denied so  one thing that could happen prior to second stage review which again would be a higher burden for mr hodges to hurdle but at that point his you know that allegation could be further fleshed out higher today so that the one thing  so that allegation while within the acts you know while he's done what the act requires which is explaining why he hasn't shown that support he would still need to eventually show that support at the second stage but by either getting that document in again kind of dovetailing off of was just as fitzgerald said is that the facts of this case that we're interested in are we interested in the fact that the prejudice prong of strickland even with what's been cannot be looked at well we would thank you i know i would like to clarify we're not saying that you cannot look at the prejudice problems directly one thing we know he's obviously the petitioner one of the actors and he's instructed to argue i prejudice because that you know that is the standard second stage with you so you're making the broader argument because if the summary stays the court is allowed to review the record right absolutely here and if they review the record and and find that the evidence is so overwhelming that no contrary verdict could stand hence no prejudice you're saying that really the court can't consider princes at the at the first  again if they if they don't have to show facts that would would prove prejudice in an ineffective assistance claim i mean it seems to be that you're saying that they you know that they can't look at birds as well or can't look at bites and i am absolutely not saying that what i'm saying i say what i'm saying is that to look at prejudice though is you look at it in the context of whether the allegation is frivolous or patent without merit that's the the ethical standard it at first stage so in your example to trial court look at practice and say well i think in my view this would not have changed the outcome of the of the trial that's not just looking at prejudice that's actually reaching evidence of guilt is overwhelming i don't care what this pro se defendant comes up with with respect to the prejudice promised rick when he's got an ineffective assistance argument here no contrary verdict can stand out here what he says it's over time than mentally to go it allows the trial court to look at the record to indicate whether there is a just right correct and whether that just standard has been met correct ok we wouldn't be having this discussion if it was something outside of ineffective assistance of counsel but since we're talking about ineffective assistance of counsel and that's why i have to go back to i believe you're arguing specifically as to haul in effect this of  mean without merit and i don't i don't see how that's consistent with the legislature's language there's must be i must mean something else and i think here's an example of it doesn't mean that the petition doesn't have to put some facts and here's why here's how that would have affected here's how he is alleged facts that impact the jury's verdict the prosecutor argued here to reject self defense and second degree murder and he repeatedly insisted in arguing that that the seat it was saying murder because how just has to see a gun he didn't see it don he saw nothing now as a proceed petitioner first age he's come up and said hey these three affianced would have put a gun into the scenes hand and so he's alleged facts that are directly hair is like so to minimize that it couldn't possibly top possibly have affected a trial how is the case with the attorney's error was about the core issues of the heart of the defense case and uncorroborated what are we looking at them as court are we looking at the trial judge as to whether the trial judge made a mistake in looking at the total record comparing it with the first stage petition that was filed by the defendant and indicating that even taking all the facts is true as alleged by the defendant there is still not the just been ineffective assistance of counsel claim because i still think taking all that is true that the looking at the record but that doesn't mean he can decide are we looking at whether the trial judge abused his discretion in finding this strickland couldn't be met are we looking at whether the tro discretion in dismissing at the first stage just based on these the fact that you're saying to just been ineffective assistance claim was was put together refused and although we're saying he erred in saying hearsay exception so there's no where an old air so that's a case where it's plain obvious that there's no merit in this case however it's far from obvious that this evidence wouldn't have impacted the jury's deliberations out i'd like to point out that the jury in this case two hours and was deliberations asked to receive permission to watch the videotape of defendants post arrest statements and given the evidence a trial where his point he will have head and attorneys assistance to meeting that higher threshold here at the first stage just just for a moment back to justice justice thomas has concerns about doing this overwhelming with that i mean the trial judge in this case he said it didn't support the tenants alibi i'm not sure i'm not sure what the trial judge he actually was with this was doing exactly what the assistance but also prejudice yes alleged facts that you could possibly find prejudice and because there is no just of a constitutional claim unless the prejudice as a lives is a right he doesn't have to demonstrate different but for the other systems and that allegation is here repeatedly in his position we just object to having to prove that allegation first stage but then taking it the next step if you allege that in the trial judge looks at the entire record and says there is no prejudice there no there's no just but he says there is no i just use the term in the merits of the question he's gone beyond just asian he's at the second four points now counsel just stood here and said that he needed to plead prejudice at the first stage that's not what his brief said that's not what the defense bar has been arguing all throughout this state for several years now since edwards came out the first premise in his brief is that you don't need a pro se petitioner does not need to plead prejudice at the first stage the second premise is that the merits aren't considered until second stage the third premise is that the court cannot conduct a detailed examination of the record but can only dismiss and i quote from the defendant's reply brief if there is no possibility that his claims can prevail and in doing that the defendant has a sub part of sub issue is he has redefined the term frivolous and patently without merit he has merged the two and says the error has to be obvious if the claim has to be obviously frivolous now i'd like to address that part first the statute provides that summary dismissal is appropriate if a claim is frivolous or disjunctive not come jocked of patently without merit and this court has defined all three of those terms frivolous patently and merit and certainly any allegation that is patently is defined as obviously any allegation that is obviously plainly and clearly without merit i robinson involved a claim of ineffective assistance of appellate counsel for counsel's failure to raise on appeal whether or not the hearsay statement was improperly admitted to trial and so this court whether or not this statement might have been admissible as a spontaneous declaration and it stated robinson that in order to determine that it was nature it was necessary to examine the circumstances under which that statement was made to look to the mindset the mental on the physical condition of the declarant to look at the nature under watch though sir that statement had been made and to consider all the facts now after it conducted that detailed review of the evidence and the law the court said well plainly this statement was admissible under the spontaneous declaration exception but it wasn't something that was obvious the court had to conduct a detailed examination but it was a frivolous claim the claim of ineffective assistance of appellate counsel was frivolous because the underlying claim had no merit so we clearly know that the defendant's definition that he uses in this court now of frivolous or patently without merit is not the definition that this court uses that's number one we also know that the united states supreme court has defined the parameters of a post convict of a constitutional claim of the deprivation of counsel to include two components prejudice and deficient deficiency and prejudice and they have said that both must be pled in order for there to be a constitutional violation so the defendant's claim that he does not need to plead any facts demonstrating prejudice which is what the defense bar has been saying in illinois for several years now al did see those affidavits the trial court saw those affidavits if they were appended to the defendant's petition the jury did not hear such testimony and there was no evidentiary hearing where those witness witnesses testified but let's look at what those a in that van that brought the victim to the gas station ok marcie scales was provided a statement to the police shortly after the murder and did not provide any of the information which his of what marquis scales and dante sanders yes they say the case first of all no one placed in the victim's hands but there was a gun taken from nearby the victim after the shooting but first of all both marquis scales who was clearly in the van and dante sanders who claims he was in the van but there's no evidence supporting that both said that they were in the fan evidence is that correct but they were in the van when the shooting started they couldn't see what was happening they ducked down to georgia to say your honor if if i might your yes it isn't for a jury decide because the substance of what they say is that the driver jumped back in the van and left the friend says there's a report to that effect was he made it to secure that report he claims that he tried to get it from the medical examiner's office and he and that was it but it was a police report so why would the medical examiner's office the defendant made no efforts to get it from the police officers and from the police department he did make an effort he said to get it from his attorney who said the attorney said i don't have a report like that and the defendant co defendants if the attorneys had been given this report as a part of discovery because that's what the defendant said my attorney showed me that report on numerous occasions i know he had it so if that attorney had it the defendant could have tried to get it testified that even if the evidence of these other shell casings had been presented there was nothing that was going to change the fact that the defendant by his own admission was part of the instigator he instigated that attack with his cousin with his nephew tony that he joined in the chase of the victim when there was no threat to him or his nephews what he said is the author cation starts because tony and throws a bottle at the victim and he's a little worried he says at trial he's worried that the defendant's companion or victim's companions might do something so he fires a warning shot into the air and what effect does that have exactly what he wants the victim takes off running one way the two other people take off running the other way and the van pulls out of the the the station that's what his two of finance have said the van pulled out of the station when that when the shooting started and now you have a defendant that in could could he reasonably believe that it was necessary for him now to take his gun and to join in the pursuit of the victim that's trying to get away his cousin is never he was firing shots for shell casings found along the north side of that gas station the defendant there's one on the north side from the defendant's gun the victim is now running on the east side of the gas station and there's another ten millimeter shell casing from tony x gun on that side there are three nine millimeter shell casings from the defendant's gun along the southeast side of the station and the victim is found one half to three quarters of a block away this court can look at the photographs that have been supplemented that the record it's been supplemented with he's lying face down in the gutter he's got six bullet holes in his body all the entry wounds are to the back the medical examiner testified that three of those wounds would have rendered the the victim unconscious and were fatal so they had to be inflicted upon diff this victim at that point where she fell and the shell casings the seventy nine millimeter shell casings just like the defendant's nine millimeter gun are found all around the back of the victim's body so what does it show that the defendant after the victim fell stood over this victim and unloaded the gun into his head and upper back there's no way that that could possibly be either self defense well on reasonable belief that from making the determination that what you're saying there is nowhere namely a review of the record to determine whether there is right isn't that really the heart of the if you are i think the way they've done it your honor is they've taken this court's opinion  and they say edwards defines the gist of the claim as something less than a fully pledged claim that means i don't have to plead that the person defendant doesn't have to plead prejudice so any time a court they what they try to do  hamstring the courts ability to examine prejudice by inserting this this theory that i don't even need to read it at this point if i don't need to plead it you certainly can't examine the record for it so but that's not what the edwards court held the edwards court talked about that prejudice was presumed in that specific case because of the magnitude of the right that  edwards the edwards court found that councils actions had deprived the defendant of an appeal altogether and because an entire appeal had been deprived prejudice was presumed now the confusion has arisen because of the part of the edwards opinion in the beginning of this opinion when the court rejected blankly the sufficient facts test and that's on this basis that the defense far now is saying i don't need to plead prejudice you can't consider prejudice at the first stage and the court should not be concerned with the merits of a petition until second stage now there are  number of problems with that proposition and i would like to get into them briefly first of all the very language of the act is that first stage is when the merits of a petition are to be examined the court is required by statute to determine if that pleading states a valid cause of action under the act in order to state a valid cause of action under the act you have to state a constitutional violation in order to state a constitutional violation you have to when claiming ineffective assistance of trial counsel plead both facts demonstrating both deficiency and prejudice now contrary to the defendant's claim this does not mean that a defendant has petitioner than any other post conviction petitioner all the defendant has to do is tell a story a story that says this is what happened when we were preparing for my trial this is what happened during my trial this is why this went wrong at my trial and if he hadn't done this this would what would have happened so clearly he is required to plead facts demonstrating prejudice the court is not required to allow a petition which simply just lists a laundry list he made this mistake he made this mistake he made this mistake and here i have people who are willing to attest to that that doesn't state the gist of a constitutional plan if this board accepted that it would attorney made these mistakes you not only don't have a strong presumption presumption of counsel's competence you don't have any presumption of counsel's competence and if a court can only dismiss if there is absolutely no way that counsel's errors had any impact on the outcome of the trial which is the standard on page seven of the defendants reply he's asking for this court to totally eviscerate that presumption this court's opinion in people versus lawyer addresses each and every one of these points and demonstrates the problems in each of want to defend its premises the defense argued that it first stage of court should only examined the petition to see if it states the gist of a claim it should only ask like this playing have merit it should review the record to see whether the defendants claim was forfeited or barred by restrict in belayer the defendant asserted that the act doesn't mention race through to cut or forfeiture so it wasn't within the parameters of summary dismissal that it was beyond the ken of a pro se defendant to adequately address that and that with proper legal assistance in returning might be able to demonstrate that you should relax the bar a forfeiture or that the issue should be considered despite the fact it had been previously litigated so the defining argued these were not proper considerations the first stage this court recognized that first stage is designed to judge a petition's substantive merit that the legislature intended summary dismissal to weed of law a court can make to restrict it just to whether or not the petition states it just changes what the legislators intention was forces a court to proceed with a claim cannot prevail and wastes judicial resources now stuff so that's what we're arguing we're not harming anybody that you can just put forth a laundry list of arabs and goes straight to second or are you arguing that the trial judge has to take that allegation is true that look for the legal or factual basis or enough legal significance is in this saying that the court can't look at the record to determine that ineffective assistance claim legal claim is not valid because prejudices are met even in light of these that's that's a point of trying to make there that i'm going off of