later reduced to fifty years the state court and the district court both said that mr lee's defense at trial was consent but that's not true at trial mr lee did not dispute that l m was sure we need to move to what matters here for me at least the principle thing that matters which whether an evidentiary hearing was requested in the state court and if it was requested and refused why the state refused sure there are a evidentiary hearing was indeed requested in state court on numerous occasions and the state that's what worries me but on numerous occasions are there clear citations in the you'll think about this before you get off for revival but pointing to a specific place in the record where we can see the request and exactly what the state court said in response would help to the briefs both very let's just say steam skimpy and i think if your you have requested an evidentiary hearing in federal court that depends on under is easy to says roughly no evidentiary hearing if the applicant has failed to develop the factual basis in state court proceedings unless one of two things is true and neither of those two things is being assert so the question is whether the applicant has failed to develop the factual basis of the claim in state court proceedings if he's asked for a hearing and the state has refused to give him one then he's done everything he needs to do under he to if he hasn't asked for a hearing or if he has asked but the state court said no because for example you haven't made it kind of showing a need for a hearing then he flunks the introductory clause to the two that's why i the devil is in the details that's why i'm asking for precise citations and not just a generic claim this was done numerous times right you can see my problem ok certainly on  identified what it believed were problems with the affidavits they were actually factual ambiguities and rather than holding the of adventure hearing that mr lee had requested to resolve this actual problems with actual questions say court made assumptions would like an evidentiary hearing to develop what the witness would have said if a call right so we can find out whether it be just what he said what was in the affidavit or said something more complete or helpful and the state judge said i don't care what the witness would have said if call then you've got a very good situation if instead he said i would like an evidentiary hearing and come the day of the hearing i will tell you what i would present but i'm not telling you no and by the way we see that kind of request all the time if that's what he said then it's perfectly understandable why the state court didn't overly hearing and why later it you're in great shape but you need to demonstrate in this record that it's the for help me out on one part of this that may relate to a judge easterbrook saskin in the june thirtieth two thousand and sixteen opinion from the first district appellate court in illinois yes and my i may be wrong on and if i am you can you'll you'll tell me but isn't there some discussion in here about an evidentiary hearing or the need to look at facts more yes that that's that mean that was precisely that that the basis of the post was conviction petition instance in the and then at the state program and they didn't the appellate court of illinois didn't say we did and i know you disagree but we don't need to look we don't need to look at the facts because we're just going to take him as their proffer and we conclude there's just no no possible prejudice here ye don't i don't know worried about how you got there next when it was requested was it requested for the purpose of showing here's what these people would have said if actually call yes so the way the show you think lee has actually gotten to that stage and the judge and the state judge then said no i'm not willing to have that shown on the record you know that is not what happens so i'll start briefly with the post conviction hearing x in illinois when a prisoner or a defendant files a post conviction petition that's like filing a civil complaint in as much as the end the end his post conviction because at that stage the state has no role at all the state trial court will simply review the petition to see whether it is so frivolous doesn't require any response dawn can be disposed of at that stage if the court determines that it's not so frivolous that it orders that the state to respond in the state can final motion to dismiss or answer or whatever it feels appropriate if at that stage the state trial court determines that the petition ha survived the state argument that it fails to make the necessary showing of constitutional violation then it would proceed to the third stage which is an evidentiary hearing in cases where that there's actually evidence present and as you can imagine there are cases where the third stage is not actually involved the presentation of evidence claims of prosecutorial statements prejudicing to snare and closing argument that sort of thing so in this case plantation are filed his post conviction petition or the more specific the amended successive well if if there's a follow up question and i'd have to do my best to answer it it's the follow up question i've already asked you are are you agreeing that he provides the state court with this affidavit with these five affidavits and then says what we need to do is develop in a fury what these people actually would have said well you need to develop more than that you need to develop whether he actually told the lawyer about these people you need to develop whether the lawyer interviewed them right we don't have any record on any of those things then you need to develop what they would have said if call did he alerted the district court sorry the state court to at least the third of these things which would be shown in an evidentiary here  picks them apart and says well it wouldn't be all that useful and in fact bare bones affidavits are not very useful is testimony and that's that's what the trial court did he so he did not ask for and i'm not help in the trial court did i'm asking what he did in the did not ask specifically to present further testimony from these witnesses to flesh out these affidavits and establish the credibility that sort of thing ok we we really need to know whether he asked for that he's asking for that in federal court yes he did not ask if he never asked for that in state court he has the problem the data five in the first clause of twenty to fifty forty two which is that the failure to develop the record in state court is on his head rather than the state's if he did ask then it's on the state's head rather than is this is what twenty to fifty four to requires us to decide and i must say i was violently sexually assaulted and that testimony after leaving the parking lot of the hands a bar and liquor store at that testimony was cropped rated by the photographs of her injuries showing bruising to her face her jaw her ears two black eyes split lip bruises on  where she ended where she lived and where she first encountered petitioner she was naked she was badly beaten and she was crying that she'd been raped there is no reasonable probability that had the affidavits with further affidavits from as in those clearing up this failure and it was a weakness he was aware of because of september two thousand and thirteen the state appellate court when it originally addressed his successive post conviction appeal before being remanded by that her old man he presumably that was roman manly had called from jail and said the petitioner was nor around when he had sex with a white woman and that he she was going down for it that petitioner would go down with him  particular there's a difference between being nearby and the testimony that the defendant forced the sexual act to be performed on manly you're referring to forcing your head into it yes rather than the subsequent rape