our final case for today is mcgee against watson which i take it appears in the transcript of the trial not to read but it's not like trial counsel said i whispered it or something said it's not enough to get the court reporter to write it down that is correct if you look at page  that's correct you can see it on the trial transcript it's page one hundred three of the separate appendix the judge addresses defense counsel by name is john how mclean she says i'd like them polled judge the judge replies all right and then proceeds to thank the jurors conviction now respondent in light of this undisputed reversible error and clear ineffective assistance not surprisingly focuses on forfeiture of procedural fall so unless your honour's have any more immediate questions that's right like to die i think that would be helpful so it responded might be helpful to recite the three permutations of ineffective assistance briefly my client's trial counsel was ineffective when she didn't object to the trial court's failure to hold the jury counsel was ineffective for not challenging trial counsel's ineffectiveness in that regard and appellate counsel it was also ineffective for not directly challenging the trial court's error the responded says that the first two of those claims are procedurally defaulted are agreeing that these are actually three claims that are distinguishable enough that they should be treated as separate arguments i think it would be arguable than they are is that has a sense of angels dancing on the head of a pin looking at i agree entirely your honor especially given that this was in the district court he was operating pro se and trying to articulate this hyper technical distinction between those claims i think it's understandable that what he was asserting was the jury polling error and that none of his counsel ever raised the error in a timely fashion so he has the error and he's trying to say that shouldn't have happened and it and i'm  that's correct so responded contends that this was procedurally defaulted or specifically two of these claims were filed those in the state courts in the state courts those involving allegations that trial counsel was ineffective for failing to preserve this issue right and those weren't pro se filings those were counsel filings that's correct wrong now but responded concedes that in key did raise those claims in the illinois post conviction proceedings both in his initial petition and then again to the illinois supreme court in this petition for me to appeal t appendix the state court explicitly recognizes that trial counsel failed to preserve this issue and that that prejudiced mr mcgee because it changed the essentially the analysis on the direct appeal now although the state court mistakenly believed that instead as this court made clear in malone the key inquiry is whether the state courts opinion shows that it recognized the facts and law underlying the claims and demonstrating that it could have addressed those claims on a federal basis here log i think i follow what you're saying you're correct that the deference isn't owed on this claim because the court did not address it on the merits so my only point is that the footnote shows that the state court was aware of that claim and could have addressed it if it wanted to state court was mistaken about that which i'll get to in a moment when i go over mr ickes post conviction violence but as a second matter this issue unfair present is whether the state court was aware of the nature of the claims and could have ruled on the issue of whether the state species of procedural default here that that's the government's argument is that the claim was not fairly presented not that the state court somehow made a procedural find but if i can talk briefly about mr mckee's  post conviction papers i think you can also see why this claim was fairly presented responded concedes that mcgee fairly presented all of these claims in his post conviction titian in the last first second to last section of that petition which you'll see on page  hundred fifty that's not at issue we're talking about the appellate filing but you're right well but what i'm getting to your honor is that the post conviction appellate brief closely follows the structure and content of the original post conviction titian and so if you compare the second to last section of the post conviction petition on page one hundred fifty four of our separate appendix with the i want to state a strickland claim based on trial counsel's performance yes in the post conviction we have here a situation where this jury poll doesn't happen everybody understands that as a matter of state law that was a mistake but is this the kind of error that could be disregarding the state courts tell us that this is not a structural error this is the kind of thing that could be harmless they don't see any signs of dissension a cheery we've had some recent cases i'm thinking of one that was actually in the sexually violent offender area the smi go against pain decision from a few months ago in which we said that was a situation where the same law student council but whether the failure to get a jury poll is the kind of thing that causes true reserves against the backdrop of the evidence is the question i'd like you to address i believe the law is clear on that in illinois that it has nothing to do with the strength of the evidence of the trial and that there does not need to be any evidence that the jury's verdict was not unanimous that was that's been held in a number of cases people the real people being just a follow up but we're stuck with the fact that the illinois courts have for some reason thought that this isn't a problem here and so do we as a matter of federal constitutional law have to say well they were raul i mean we can't really do that again lee you know first your honor the illinois supreme court has never ruled on this kind of issue and at issue here is whether raising this issue was would create a reasonable probability that the outcome would have been different i e a new trial you're so right and there are a number of illinois cases that write a new trial under very similar circumstances some even when the error was not preserved for it please the court counsel my name is lee and it from the illinois attorney general's office on behalf of respondent warden petitioners arguments to avoid both forfeiture and default a centrally boiled down to the same argument he is pointing to t characteristics of both is he is petition and his post conviction appellate court brief he's saying number one the failure to conduct the jury pool was mentioned and number two somewhere else there is a general statement of either strickland or of  effective assistance of counsel but these two characteristics alone to regard them as fair presentment of every permutation of ineffective assistance of trial an appellate counsel would extend fair presentment beyond where it should more word because after all as this court is well aware many many state criminal appeals and many many hideous petitions contain some sort of allegation of ineffective assistance of trial counsel and you know  vs a bad name really you know you've got these three to me they're just facets of the same jam basically you've got the trial counsel failing to follow up in any way on the request for the jury poll once the trial court makes the mistake and fails to poll the jury you have the appellate counsel failing to say that the trial court made a mistake when it did that which appellate counsel certainly could have done and you have the appellate counsel who doesn't say that trial counsel was ineffective for failing to follow up now these are all the same issues it's all facets of the same issue he is sometimes counsel sometimes not he's trying to raise this issue to the courts and all we do is play this game of saying which way are we going to cause you to fail this time we're going to cause you to fail because you didn't quite bring this out of the illinois appellate court everybody knew what the issue here was it was the failing to poll the jury well two points in response to that your honor the first point is that actually this is a type of error that well demonstrates the importance of how these different permutations can come to different results because as has been noted if preserved this is a reversible error but if not preserved it is not planar so trial counsel's failure does change the analysis here and so having that layer drastically changes the analysis the second point i wa trial counsel didn't make a mistake by failing to ask for the jury to be polled and by the time the judge has excused the jury it's too late truck ounces you know so i don't know i mean i really think this is all about what are the consequences of the trial court's failure to poll the jury and you wind up you know with this with these different phrasings which you can trace your way through both in the post conviction proceedings in the illinois courts and in in the present proceeding and you know you have you have this expressed in as many ways is language will do it practically important the most important point here when looking both at the hague based petition and the post conviction appellate court brief is that when the jury polling error is mentioned it is explicitly mentioned within what is a clear and unambiguous statement of one raise the trial court's error it isn't terribly appropriate for the state court to only address that permutation of ineffective this instance of counsel and more so in light of the fed and you don't think it's blindingly obvious that when you say appellate counsel was ineffective by failing to point out the trial court's error that actually all of the rest of this isn't compass they're just different ways of looking at the same problem well actually this is one acknowledged that she did not allege ineffective assistance of truck outside we normally don't have both the attorney herself and the state court clarifying when an allegation has not been made it is important that this court continue to enforce  forfeiture and procedural default for hay vs purposes because certainly again as i was i was beginning to say there are many many many cases where the independent ineffective assistance of trial counsel allegations so to indorse petitioners that's been right in the center of these arguments all long it's not just some vague you know i'm going to find something along the way that will show ineffectiveness well this is an error but it's not even an error of constitutional dimension and that's why it is embedded within an ineffective assistance of counsel claim and it was not preserved and so it is important for this court to clarify that it's fair presentment precedent that says there must be the factual basis and the legal principles in the context of ineffective assistance of counsel it is the perfect particular permutation of ineffectiveness must be presented because that does as the state court acknowledged that footnote too often changed the analysis is it preserved is it not is it plain  not that changes and as as petitioner himself is emphasizing in the context of analyzing the merits of claim to sometimes an ineffective assistance of appellate counsel claim involves comparing what issues were raised versus what issues or not that is very different than looking at what the trial counsel preserve these are because these are different analysis to this court should in order to not further and the federal district courts into having to address the merits of every permutation of ineffective assistance of assistance of counsel any time there is an allegation and a citation to strickland that would that would regard a huge burden on the district courts as well as the fact that often like in this case the state appellate court has only addressed the very one permutation that is clearly contained in the state court brief so that would mean the district court would be reaching these other permutations antonova review so and we would have the problem that they might decide on the merits appellate court brief their remarkable including the pro se filing and how they clearly are describing only one permutation of ineffective assistance of counsel so this court should not open the floodgates and regard that the  district court will have to engage in merits analysis of any type of permutation of ineffective assistance of counsel on that they are both wrong state obviously takes the position that if we were to reach the merits of this that you have your arguments that there was no problem well that's true as well you know i mean you know so you are on a strickland but you're prepared to argue no prejudice it's like the state every state every argues procedural default forfeiture waiver you name it you know and so you just get the sense that the state is unwilling to stand up for the process that's gone on well now certainly i mean if there's a default in a forfeiture the state will bring it to the court's attention but the brief  and talk about how he did not cross twenty two fifty four days really litigation bar and even did address the merits of all three claims and as you point out he cannot establish both strickland progs regarding any of the three claims so if this court does get to that point we stand by our position that he's not entitled to relief but that is not to say that we are going to forego where there is clear for six years and i'm just saying i don't like it but it's you i certainly don't expect you to do that sure and of course it's also important that this court continue to to affirm that malone the walls is a very narrow exception to the notion that the permutation of ineffectiveness is what must be presented that is a very unique circumstance where in the state court brief in that case it was clear because a five page of a now five pages of analysis of the nested claim that he was signaling to the state courts that this is the true claim i'm raising that is not at all what we have here he is just attempting to multiply it times three the burdens on both the state court and the district court just because he both cited strickland and mentioned the jury pulling error and this court should be very hesitant to endorse such a very broad understanding of fair presentiment because it would have a drastic effect on the district and potentially the load on the state courts as well petitioner miki filed pro se or through counsel there was a separate section dedicated to ineffective assistance of counsel for failure to hold and prove the jury pool an issue and if you'll note i see that i'm out of time but if you look at the citations to the record