please the court counsel there are two issues before this court today whether the first is whether appellate counsel was ineffective for failing to raise a meritorious counsel choice issue and the second is whether this court can really can reach the merits of the claim because it's been procedurally defaulted with the respect to the first issue upheld council should have realized that a council of choice error occurred when the trial court denied privately retain counsel request for funding of expert on the basis that oakes was not represented by the public defender private counsel was forced to withdraw so that oakes could access experts that he believed were necessary to the defense of the case his household choice had oakes raised this issue and direct appeal he would have received a new trial because illinois law had a long history of protecting a defendant's right to counsel of choice as an absolute investigators at the time of trial i do not think there was any illinois case law directly on point however the american bar association standards in effect at that time provided guidance and cited case law that established just because a indigent defendant was receiving privately retained counsel that was funded by another party it did not affect his right to expert p and that's and that's a respectable view was controlling state law or constitutional law at the time well there was constitutional law that a defendant had the right to call experts in general yes but i'm talking about the meeting to bring together these different threads to say i get it if i care about resources available to me as a defendant i can decide how much i want to pay the lawyer and how much of the and and  just because a criminal defendant is indigent for one purpose doesn't necessarily mean that he is not just because he has plans for one service it doesn't mean he necessarily has found a crown other services which and had issued case law explaining that a criminal defendant a criminal defendants right to expert witness fees that he was and as it was not affected by the fact he had a third party paying his attorney fees and it makes we recognize that when a council of choice violation occurs this court looks to an adverse effect standard to determine whether or not the defendant has been affected in some negative way by the violation let's suppose just get bear with me for a minute suppose you got the defendant who is indigent has a rich uncle who is willing to spend half a million dollars for the finest defense counsel available ok  and makes that money available to counsel the counsel then comes into court and says my client is indigent we want to the taxpayers to pay for experts and investigators this is and the judge says no you're obviously or we're not going to stick the taxpayers with us because resources are available is that the defendant's choice as to your theory i think would say that a judge who says no use either violating the indigent defendants right to taxpayer supported experts or is forcing  choice of the change of counsel instance for every time i think that the answer is yes but it would depend on the amount of resources available there wasn't a dispute here that there wasn't enough resources for both counsel and for witnesses so it really in this situation was in the court's best interest to allow the experts and several requiring the attorney to withdraw because the court or the county ended up having to pay for both the public defender and the that he would need a mitigation expert an investigator a psychiatrist who he planned to utilize during the guilt innocence phase of proceedings and a forensic scientist or a pathologist to help with all the medical  me put the question this way the state has told us that we could agree with your position on the merits if we reach the merits only by creating a new constitutional rule that we cannot do on collateral review i don't see much my way of clear guidance from the supreme court for the situation either either the situation or the hypothetical i gave you where there's even more mo correct although the state's argument that there is a new rule applies to situations where a defendant is asking the court to appoint counsel he has no right in that situation to his counsel of choice if he's asking for the beneficiary of other resources i get to choose how that's allocated and each and draw on public funds to the extent i choose i think that would be for the court to determine based on the hearing available that sounds to me like a new rule of constitutional law it is not a new rule of constitutional law because there is no request that the court appoint counsel of choice here the defendant had retained his counsel of choice and that counsel is being paid for privately if for example what if what if an attorney was agreeing to represent him pro bono that doesn't mean that he would be denied  the question the judge hamilton asked concerns me as well maybe i can try to put it in statutory language twenty two fifty four d c says that to grant federal collateral relief in a state conviction the right in question must be clearly established by the supreme court of the united states what do you point to to show that the supreme court itself by the time of the conviction here had clearly establish status vote the right to witnesses and the right to counsel of choice you know that as i'm sure you know the supreme court has said you know it's always possible to boost the level of generality me one one might as well say the because he was in the general staff and what if in a different kind of case the funding comes from the mexican supplier of the wholesale goods that are being sold in the black market in chicago well that any different i think that it would depend on the circumstances every case here this was a family friend their interest it's a difficult and interesting problem i did and i've i've dealt with it as a trial judge where in the sort of situation where the lawyer looked family runs out of money and the lawyer says gee i really can't continue that's privately retained counsel judge will you appoint me now to pay me that with public funds the rest of the way those kinds of problems arise it's not clear to me that the constitutional constraints on the judge are very it's undisputed though that the defendant does have a right to expert witnesses and if there are enough funds for both an attorney and experts it doesn't seem right that he should be denied experts because he has he has good luck to have a family member supporting what a can of his private attorney we are actually in a circumstance where twenty two fifty four d is not going to govern the court's analysis because the state courts were never presented with an opportunity to do to kate the merits of petitioners claim that's why we're lying in the general principles of tea versus lane as opposed to twenty t right of course we are we are going through the layers of procedural default each procedural default and she started to be justified by ineffective assistance of counsel which you keep going through until we reach one would suppose against davis which is now under advisement you know i guess it's not it's it's going to be argued later this month in the supreme court and part of that question for us is should we be trying top of that he also needs to show assuming even that martinez were to apply to this circumstance and the circuit have come out strongly in favor of a rule that says that it is not even if that applies  to be able to decide whether that is right correct but even assuming that the court were to hold in petitioners favor on that issue it's clear that under martinez he has to show that p c counsel was deficient under the strickland standard so he has to go through two layers of showing that he received deficient performance of both his appellate and his post conviction counsel and the court could easily deny relief on the basis that his default should not be fused because a pellate counsel was not effective under strickland the merits of this claim are clear i think the court should look at the brief that counsel filed which is in the record document one thousand dash fourteen counts did raise thirteen claims it was sixty nine pages which at the time would have been an oversized brief and he would have a team lead to file that oversized three but it's clear from looking at the claims not just the ones that deal clearly with the death penalty and the constitutionality of the death penalty but demonstrate a clear focus by appellate counsel on issues that pertain to petitioners eligibility for the death penalty even claims that were not so specific so petitioner was sentenced to death on a claim that he can committed knowing murder counsel in one of the claims said that the evidence was insufficient to show knowing murder if he had prevailed on that claim and then he wouldn't have been eligible for the death penalty a second finding that was necessary for the gas penalty was that the murder was brutal or hannah's and he had a number of claims that were directed at the sufficiency of the evidence on that point the procedures that were used by the port  make its finding of eligibility so we can see a coherent strategy adopted by appellate counsel in this case that was plainly reasonable and that was to show that two days because that was the period in which he was present along with the mother in the apartment with the child they couldn't the medical examiner for example couldn't date each of the injuries in terms of how recently it had occurred other than to say that it furthermore fail to account for the myriad injuries that he had suffered due to different parts of his body i think a lot of the tests three years old are correct and so he admitted and this came out through his statements where he was challenged on each point he would come up with an explanation as to how that injury might have occurred he was unable at any point to explain how the child had broken his clavicle snapped it in half for example he was unable to account for a lot of the child bruises so his explanations were incomplete and they were furthermore completely implausible there were a number of expert witnesses in the case who were unanimous in their testimony that for a child the suffer the type of head injury that he did would require a tremendous amount of force be applied to that to the child's head causing it to hit a hard object and for there to be some shaking involved petitioner really has to this day not given a coherent accounting of how all of these injuries could have occurred even taking as true his own story in which he became angered that the child  what is parents and therefore he threw the child the cross the room that it was only an accident that he missed the mattress that was across the room conviction counsel was deficient he still to make that showing as well like in direct appeal his post conviction counsel raised myriad claims so those the serious i understand it seems to be well we have to look at least peek at the merits here in order to weigh the strategic choices the selection of issues made that both will try to post conviction and appellate counsel and there's a there's a kind of extreme version of that argument that says if i can find one of those twenty seven arguments or one of those thirteen arguments that's noticeably weaker than this choice of counsel claim would have seemed at the time and this is in effect do you think that's the right way to look at th were barred by supreme court illinois supreme court precedent such as the constitutionality of that that kind of it's not fair to pick those out and say well this plan was stronger than that then appellate counsel must of been in effect i think well in the capital context  with the extraordinary consequences of forfeiture you know there's every incentive to raise all kinds of improbable looking claims because over the course of a little bit of a capital case it's very difficult to predict what changes in there might be in u s supreme court law or were state law and then as that correct it is certainly common practice for an appellate counsel to argue that the death penalty is unconstitutional where its client has been sentenced to death even in the face of adverse precedent here the court does have to consider too that it's not a circumstance in which appellate counsel raised one issue and then had ample space in a possible brief to raise another non frivolous issue this is a case the council had already filed an oversized brief and therefore there really was no room for him to just tack on an additional issue and counsel performance has to be judged based on the precedents that were available to him at the time he was making his decision i think efficient or has conceded that there was no clear precedent from the illinois court as she knew the proper construction of the statute the trial judge's reading of the indigency if that she had to require both counsel and experts be appointed court was a reasonable one based on the text of the wall so there was not clear precedent for him to rely on to say that that was in a piece of discretion and there's also not a clear u s supreme court case that shows that this was somehow a violation is acting pro bono then that's counsel that his client can afford as opposed to this fairly unusual circumstance where even though counsel has appeared on behalf of the petitioner it's clear from the record that petitioner an the first point i'd just like to make briefly is that this was the answer choice that she wanted to spend her money on defense counsel this wasn't ochs choice he was indigent he had no say in the matter the second point is i just want to redirect the court to the fact that the issue here is an effective assistance of appellate counsel and if he had raised the issue in his brief he would have won under illinois case law regarding the right to counsel of choice third i'd like to respon response argument that and that appellate counsel strategy was sound because he raised numerous issues he failed to raise a winning issue and that is an effective assistance of a public counsel and the same is true of post conviction counsel