you keep in mind i think you know the bungles here are your entitle to fifteen minutes per side as a matter of right job only won't necessarily measure it out if there is any need on our part  read up the briefs although i never discourage any reference to the facts because they're always helpful but i don't think you have to work do so with other is there in terms of fiction proceeding which was initiated before the change in that statute allowing for that particular exception but one would think that we would be interested in hearing what you have to say on the  first concerning that second issue seems the titian was timely filed post conviction counsel filed the supplemental petition in december of two thousand and six and at that time the postcondition hearing act how that claims of actual innocence are not subject case seems to have somehow fall in between the cracks for both parties because i'm sure that the state as well was aware of their responsibility to mention these kids and these cases that may be dispositive no matter which way they cut but i presume somehow included either of you until the last minute but you might want to discuss absolutely your honor i apologize for not having that in the initial brief that did escape my attention and in order to case the petition actually wouldn't be due until two thousand and eight in hager the illinois supreme court held that when reviewing court orders the circuit court to remain for the sentencing hearing then the tolling for post conviction petition doesn't start so why why february third of two thousand and five and thus under the statute his petition actually wasn't due until three years after that time february of zero eight so whether we're looking at the initial petition filed an a one or even the second mental petition filed by a unorthodox point of view of the dispositional care character of hadn't heard if it really applies i might think that i would ask the state whether they're going to offer any opposition all right then i'd have to proceed with your art i think your honor another point to point out is that common sense would dictate that williams mails his petition in a timely manner the petition was received by the court arguing common sense and everything and there was one case that said it people versus montgomery your own i believe sell it said it was received on a certain date it had to take a couple of days to get there to receive is received by the court here no one is disputing apply the factual innocence claim in a one then it would have been time barred but if he had waited until the legislature changed the statutes of and about three and he had waited two more years to file his petition then it would not be time barred so i think to say that he was illinois supreme court said to even get that right exactly your honor and again because his petition was fine it was timely and because he made this substantial showing of actual innocence we have to be moved on to a third stage evidentiary hearing well since we're  innocence claim he did make this substantial showing through newly discovered evidence that would have undermined the state's entire case against him williams presented first an affidavit from an investigator at the public defender's office the investigator spoke with martin nash a greater effort to locate him and not simply relying on the assertion of the state's attorney that they couldn't find him so with that to let you state your piece i just want to ask you one of the question statement but then immediately when the state's attorneys were called right after to take the statement from williams williams said he wanted a lawyer so he would not repeat the statement also the statement was never memorialized he only notation of it is in the supplemental obtained from a witness because the subpoena power of the court will force that witness to be available but the hearing the purpose of acquiring this supporting documentation is to show that the petitioners allegations are capable of independent corroboration and that's to weigh the credibility of these new affidavits against the testimony that came out at trial also the recantation here was newly discovered it was not available at trial and couldn't have been discovered sooner or through due diligence in people versus par trial state denies that saying that it wouldn't have changed the outcome in part because smith stated doesn't give certain details such as his vantage point however that's that argument shows exactly why we need an evidentiary hearing in this case than this new affidavit the state also argues that williams was not diligent in obtaining smith's affidavit and that he should have to sooner because he was listed as a witness on discovery that's it couldn't be found prior to trial and in fact the state's attorney at the motion to dismiss the petition stated to the court that neither the prosecution nor the defense could find smith prior to trial that yes there is nothing in this record to show that there was any individual that couldn't be found attempts were made to fight smith and if the police couldn't find him so we have the police being unable to find him we can't for more onerous burden on williams to find him and in fact even the circuit court below stated it would have made sense for williams to try and find smith where one the police couldn't find him and where to he thought that smith might pay him so even the trial court was surmising that it would make sense for williams to go out and look for this witness and people versus greene is also instructive in this case ingrain the defendant told counsel after a trial that started but his picture had been in the paper hence i didn't find out until after the trial concluded that this key witness at the trial had seen defendants picture before the lineup and in that case the court held that the evidence didn't specifically know what his account would be and it wasn't until all of us it was discovered and contacted us nixon counsel that that information became available that specific statement could not have been discovered earlier through don't do diligence and both the actual conviction as to guilt and the sentencing that this term conviction applies to the finding of guilt and the sentencing consecutively meaning twenty years of incarceration into ten years of incarceration and it's a very sorry of a distinction to say the same ten years then sutton's transplant in a different order and i don't know that you want to bet that the feds up the rationale behind had not should run and that kind of distinction since the p conviction motion maybe very right not be able to attack the sentencing for the same reason that couldn't attack the sentencing when that sentence is actually the product of a so called reset it's part of the rationale is if you're going to file the post conviction proceeding with the petition you're not going to be able to challenge the entire convict ssion meaning both aspects of guilt as well as time to be served that same rationale seems to post conviction petition be directed at the propriety of meat odd any consecutive sentence without even though it doesn't well oh i can say is it reminds me of the wizard of oz and we're told to disregard the man behind the curtain we can disregard that this petition was filed in two thousand and one and we have every indication of where he was but let's assume he was at state ok ok so i mean can you can you honestly say that if the circuit court says they two days later at that point would you still insist that the twelve be three formality must be implemented not  probably was male because most people just see community it with or through the mail i'm saying that i don't know that for a fact that my hypothetical is any more proven than anything else i'm just saying that the but the question is will it also reject mathematical the certainty of a mathematical inference you asked me earlier if i were wagering and if i were wagering man despite my the truth of matter is i don't think it's it's relevant and the reason i don't think it's relevant is i don't think this case should go back for the third stage proceedings and that goes to the concept  it's a case the gist of which is that due diligence imposes an affirmative obligation to make the effort to locate the friends what they really have to know about the state has the burden of pursuing its proofs while the be found at the actual trial has no burden whatsoever except perhaps in alibi cases where the burden can be shifted that's  a as opposed to the burden that is actually imposed on him with respect to proof of illness it's now i go i think you're i think the case is do good old towards that bears no burden to prove innocence in his direct trial he bears that burden of course and practicality there could be ineffective assistance of counsel if there are witnesses later while it may not be the category of france that will walk in the b three compliance will be sufficient to establish lack of culpability you know i don't have a real answer to you obviously it being proof of actual innocence well i think among other things i think that the defendant is precluded from challenging the sufficiency of the confession in this proceeding challenge that we can still use line if you want to keep it in stage two i'm sorry isn't the bottom line you want to keep it in stage two the bottom line is i think the state issue resolution of dismissal was proper even if the judges say you know the answer and i say disappeared glasses you who you won't concede it is a pair of glasses you'll still call it an elephant that's besides the point no  you can't and i think maybe we want to it unless you have something to add we're just fine the only thing i would say is this if if you subscribe to the notion that the family is failure to do claim so again it could be remanded to the court for the second stage proceedings for the courts actually finally rule on that let's make it so we were to conclude that the allegations were not newly discovered in other words that this doesn't meet