The next case this morning is 519-0088 people versus Jones. Argan for the appellate William T. Jones is Brian Carroll. Argan for the appellate people all the state of Illinois is Michael Lennox. Each cycle will have 10 minutes for the argument. The appellate will also have five minutes for rebuttal. Please note only the clerk is permitted to record these proceedings
. Good morning, council. I'm Brian Carroll. Apologize for running the light that first case took a little while. So I appreciate your patience with us. Mr Carroll, are you ready to proceed? Yes, Dr. Then go right ahead
. Please court council. Mr. I'm Brian Carroll for the appellate William Jones. The second stage dismissal of Mr. Jones post conviction petition should be reversed. And his case demanded for new proceedings because his court appointed council provided him with unreasonable representation
. Council's representation was unreasonable for the following reasons. First, council's first claim that the new DNA testing show that the blood evidence from Jones's trial was unreliable. It's not even cognizable under the Post Conviction Hearing Act. The act is limited to claims of constitutional violations. And a claim that a conviction is based on unreliable evidence, no matter how maritalious or clear cut that claim is, is not by itself a constitutional claim. And thus is not a viable claim to raise in a petition under the act
. And it was unreasonable for council not to understand that. And to be clear, Jones is not arguing that the claim shouldn't have been raised. He's saying that it should have been raised under using the proper vehicle, namely a two 1401 petition, which would allow the claim to be properly presented to the court for consideration. Second, council also raised a actual innocence claim based on council's assertion that the DNA testing suggested the presence of some unknown third party at the crime scene. However, council's assertion is completely baseless. There was the DNA testing did not report any profiles from which both Jones and the dares could be affirmatively excluded
. While a sample from the porch was reported to have a mixed profile, the minor profile of which was unsuitable for comparison. The fact that it was unsuitable comparison is not evidence of the presence of some unknown third party. I mean, it's no better than a fingerprint that's too smudged for comparison. It's neither here nor there. Finally, council's focus on the contamination of Jones's blood standard was misguided. Because the evidence kit that contained the standard was found to be open when all the evidence was collected to perform the new DNA analysis
. Council was completely unable to say that the contamination occurred before or after Jones's trial. And therefore, she was unable to say that the contamination affected the reliability of the trial evidence in any way. However, council or council ignored or didn't realize that James dares standard was also contaminated. But unlike with Jones's standard, there is no evidence in this record that the the seal from his standard was compromised in any way after it left the crime lab that did the original blood typing. And so, the only reason why the only reason for the infrancies is that the contamination occurred at the lab, which shows that the lab is not following proper procedures to avoid contamination and thus all the blood evidence was on it that it provided was unreliable. And that's to claim that council should have raised and she should have raised it into two to 1401 rather than a PC
. Thus, because the record affirmatively shows that council provided Jones with unreasonable representation under suarez, this court should remand for new proceedings and the appointment of new council. So if you're honors have any questions, I'll reserve the rest of my time for the bottle. Just as Kate or just as barbarous any questions at this time. No. Okay, well, thank you, Mr. Carroll
. Obviously, you'll have your time for a bottle. Mr. Linx. Go right ahead. Thank you, Your Honor. Good morning, opposed and council your honors and may it please the court
. My name is Michael and I present the state in this matter. This court should affirm the dismissal of the defendant's second stage post conviction petition because post conviction council complied with Supreme Court rule 651 c. And the defendant has not overcome the rebuttable presumption provided by a rule 651 c certificate first. Because the DNA is newly discovered evidence furthering an actual innocence claim second, because even if post conviction council's second claim was speculative, the defendant cannot show he was prejudiced by the alternate theory, his post conviction council asserted. And third, post conviction council, not asserting what the defendant characterizes as a potentially merit, meritorious claim is not only speculative and contradicts the defendant's first assertion that DNA evidence would not qualify for a successive post conviction petition under the act for newly discovered evidence, but it also incorrect, it's also incorrect because there was still an uncontaminated standard for James there. If your honors wouldn't mind, I'd like to go in reverse order first addressing the alleged potentially meritorious claim, then addressing the defendant's reply brief by giving a synopsis of the cases of suarez, the Lano and land in relation to the alleged to speculative claim and then addressing the newly discovered evidence
. The defendant's assertion contradictory to his first argument is that post conviction council should have highlighted a different aspect of what the DNA test revealed. And if council had, it would have resulted in a potentially meritorious claim. The defendant states on page 18 of his initial brief that post conviction council, quote, ignored that the DNA evidence revealed that James there. The court's claims blood sample was also contaminated. This is objectively false. Post conviction council listed a number of contaminated or mixed blood samples, including number 45, the liquid blood standard for James there. Also, and more notably, number 92, Q was used as a secondary standard for James there and the common law record on page 1403 of which the defendant's sites for his assertion of this claim. Provides that quote, this profile was used for comparisons as the standard for James there. This of course clearly means that the standard for James there, the standards for James there were not both contaminated and the claim that the defendant now believes would have been potentially meritorious act in actuality would not have been meritorious. Further, the defendant incorrectly, deeming that this DNA evidence, a viable claim under the act and not the DNA evidence of the defendant's standard being contaminated should be viewed as a concession of the defendant's first argument where the only real difference between the two arguments other than the fact that there was an uncontaminated standard for James there is the person at issue. And reference to the second issue of this speculative the two speculative claim and Suarez land in Galano in the defendant's reply brief he asserts that the appellate court and land improperly ruled that prejudice need be shown when a 651 c certificate has been filed. The defendant's sites to no authority that contradicts land yet simply suggests that Suarez and Galano both decided before land contradict land in Suarez post conviction counsel filed a first petition on the defendant be on the defendant's behalf of certain ineffective assistance of counsel
. Also, and more notably, number 92, Q was used as a secondary standard for James there and the common law record on page 1403 of which the defendant's sites for his assertion of this claim. Provides that quote, this profile was used for comparisons as the standard for James there. This of course clearly means that the standard for James there, the standards for James there were not both contaminated and the claim that the defendant now believes would have been potentially meritorious act in actuality would not have been meritorious. Further, the defendant incorrectly, deeming that this DNA evidence, a viable claim under the act and not the DNA evidence of the defendant's standard being contaminated should be viewed as a concession of the defendant's first argument where the only real difference between the two arguments other than the fact that there was an uncontaminated standard for James there is the person at issue. And reference to the second issue of this speculative the two speculative claim and Suarez land in Galano in the defendant's reply brief he asserts that the appellate court and land improperly ruled that prejudice need be shown when a 651 c certificate has been filed. The defendant's sites to no authority that contradicts land yet simply suggests that Suarez and Galano both decided before land contradict land in Suarez post conviction counsel filed a first petition on the defendant be on the defendant's behalf of certain ineffective assistance of counsel. The court granted the state's motion to dismiss the petition due to untimely filing a successive post conviction petition was filed pro say the petition proceeded to the second stage and counsel is appointed counsel filed a supplemental petition but did not file a 651 c certificate. The petition was dismissed on the state's motion the appellate court affirmed and the only argument that offended had on appeal was that the case must be remanded because post conviction counsel failed to file a 651 c certificate and the record failed to demonstrate compliance. The appellate court concluded that the failure to comply was harmless error because the defendants post conviction claims were without merit as a matter of law in Suarez the court rejected the argument that counsel substantially complied with 651 c where there was no indication in the supplemental petition that counsel consulted with the defendant. Further, the court found that the failure to substantially comply with 651 c could not constitute harmless error. In Galano, the defendant filed a pro say post conviction petition supported by 20 affidavits and over 100 pages of exhibits. The petition was about 45 pages in length and contained 28 contention of error many with multiple sub parts
. The court granted the state's motion to dismiss the petition due to untimely filing a successive post conviction petition was filed pro say the petition proceeded to the second stage and counsel is appointed counsel filed a supplemental petition but did not file a 651 c certificate. The petition was dismissed on the state's motion the appellate court affirmed and the only argument that offended had on appeal was that the case must be remanded because post conviction counsel failed to file a 651 c certificate and the record failed to demonstrate compliance. The appellate court concluded that the failure to comply was harmless error because the defendants post conviction claims were without merit as a matter of law in Suarez the court rejected the argument that counsel substantially complied with 651 c where there was no indication in the supplemental petition that counsel consulted with the defendant. Further, the court found that the failure to substantially comply with 651 c could not constitute harmless error. In Galano, the defendant filed a pro say post conviction petition supported by 20 affidavits and over 100 pages of exhibits. The petition was about 45 pages in length and contained 28 contention of error many with multiple sub parts. The defendant's post conviction counsel filed a 651 c certificate in that case and stated she had not amended the defendant's pro say post conviction petition as it quote adequately set for the petitioners claim of deprivation of his constitutional rights. The state filed a motion to dismiss raising numerous objections, including racially to coda and unnoterized affidavit and that same affidavit not asserting what it claimed to assert counsel responded to the motion but did not address the lack of notarization the defendant appealed contending that he was denied reasonable assistance when counsel failed to adequately represent him by not amending his position or petition to include the notarized affidavits. The court found that even if the affidavit had been notarized, the affidavit did not assert what it claimed to assert therefore the defendant had not rebutted the presumption afforded by 651 c the 651 c certificate in land. The defendant filed a pro say post conviction petition he set forth nine claims in his petition and in support of his position petition he attached six unnoterized affidavits nothing happened with his petition for over three years until a privately retained attorney filed an appearance on the defendant's behalf. Over three more years past before his post conviction counsel filed a two page supplemental post conviction petition for the defendant the petition added a claim of actual innocence and effectiveness of counsel based on the information of the previously unnoterized affidavits that were re given and notarized counsel filed a 651 c certificate that stated quote counsel on oath states that he communicated with the petitioner by mail. And telephonically and what has examined the record and transcripts here and and has presented the petitioners claims the state filed a motion dismiss the petition stating that one it was unverified to it was untimely three a claim of unconstitutionally unconstitutionality was unfounded for the claim of ineffective instances of count counsel at trial did not meet the stricle and standard five the ineffective assistance of counsel claim on a pellet counsel was meritless
. The defendant's post conviction counsel filed a 651 c certificate in that case and stated she had not amended the defendant's pro say post conviction petition as it quote adequately set for the petitioners claim of deprivation of his constitutional rights. The state filed a motion to dismiss raising numerous objections, including racially to coda and unnoterized affidavit and that same affidavit not asserting what it claimed to assert counsel responded to the motion but did not address the lack of notarization the defendant appealed contending that he was denied reasonable assistance when counsel failed to adequately represent him by not amending his position or petition to include the notarized affidavits. The court found that even if the affidavit had been notarized, the affidavit did not assert what it claimed to assert therefore the defendant had not rebutted the presumption afforded by 651 c the 651 c certificate in land. The defendant filed a pro say post conviction petition he set forth nine claims in his petition and in support of his position petition he attached six unnoterized affidavits nothing happened with his petition for over three years until a privately retained attorney filed an appearance on the defendant's behalf. Over three more years past before his post conviction counsel filed a two page supplemental post conviction petition for the defendant the petition added a claim of actual innocence and effectiveness of counsel based on the information of the previously unnoterized affidavits that were re given and notarized counsel filed a 651 c certificate that stated quote counsel on oath states that he communicated with the petitioner by mail. And telephonically and what has examined the record and transcripts here and and has presented the petitioners claims the state filed a motion dismiss the petition stating that one it was unverified to it was untimely three a claim of unconstitutionally unconstitutionality was unfounded for the claim of ineffective instances of count counsel at trial did not meet the stricle and standard five the ineffective assistance of counsel claim on a pellet counsel was meritless. Six the due process claim was meritless and seven the actual innocence claim was not based on newly discovered evidence post conviction counsel did not appear during the following court date and repeatedly requested extensions of time to file a response to the state's motion dismiss the petition until the courts at a hard deadline at which point counsel needed to file a response or he would be recluded from doing so and counsel failed to file a response by that deadline. Almost a year later argument was heard on the motion to dismiss and counsel still did not had had not filed a response and made no argument during the hearing. The court dismissed the petition in its entirety and the defendant appealed asserting that his post conviction counsel's 651 c certificate was facially deficient and counsel failed to provide him reasonable assistance on his post conviction claims. The court found that counsel's 651 c certificate was sufficient to certify substantial compliance with the rule despite the fact that it did not mirror the language of 651 c however the court stated that the certificate being sufficient was not dispositive. The court stated that the defendant is required to demonstrate that his counsel's deficient performance prejudice him and the post conviction petition and that the counsel's performance result in a dismissal of a potentially meritorious post conviction claim. The court distinguished Suarez stating that Suarez was a case with no 651 c certificate had been filed
. Six the due process claim was meritless and seven the actual innocence claim was not based on newly discovered evidence post conviction counsel did not appear during the following court date and repeatedly requested extensions of time to file a response to the state's motion dismiss the petition until the courts at a hard deadline at which point counsel needed to file a response or he would be recluded from doing so and counsel failed to file a response by that deadline. Almost a year later argument was heard on the motion to dismiss and counsel still did not had had not filed a response and made no argument during the hearing. The court dismissed the petition in its entirety and the defendant appealed asserting that his post conviction counsel's 651 c certificate was facially deficient and counsel failed to provide him reasonable assistance on his post conviction claims. The court found that counsel's 651 c certificate was sufficient to certify substantial compliance with the rule despite the fact that it did not mirror the language of 651 c however the court stated that the certificate being sufficient was not dispositive. The court stated that the defendant is required to demonstrate that his counsel's deficient performance prejudice him and the post conviction petition and that the counsel's performance result in a dismissal of a potentially meritorious post conviction claim. The court distinguished Suarez stating that Suarez was a case with no 651 c certificate had been filed. Here however the court had stated that there was a 651 c certificate giving rise to a rebuttable presumption. Therefore the court therefore the question was whether counsel failed to reasonably assist the defendant in the presentation and defense of the post conviction petition. The court also stated that its decision in Galano summarized where as here the presumption of reasonable assistance is present the question is whether the pro say allegations had merit and crucial is crucial to determine whether counsel acted unreasonably by not filing an amended position and I'm sorry I see that my time is told your honors. Thank you. Before we move on to Mr. Carroll just in case you're just as far bearish having questions
. Here however the court had stated that there was a 651 c certificate giving rise to a rebuttable presumption. Therefore the court therefore the question was whether counsel failed to reasonably assist the defendant in the presentation and defense of the post conviction petition. The court also stated that its decision in Galano summarized where as here the presumption of reasonable assistance is present the question is whether the pro say allegations had merit and crucial is crucial to determine whether counsel acted unreasonably by not filing an amended position and I'm sorry I see that my time is told your honors. Thank you. Before we move on to Mr. Carroll just in case you're just as far bearish having questions. No thank you. Okay thank you Mr. Lennox Mr. Carroll go right ahead with your rebuttal. So, you know, the first the fact that a new standard for James stair with use for the DNA to come from the DNA new DNA analysis it's irrelevant to this case. The question was the contamination to the original blood standards goes to the question of the procedures used by the crime lab that did the previous original blood typing
. No thank you. Okay thank you Mr. Lennox Mr. Carroll go right ahead with your rebuttal. So, you know, the first the fact that a new standard for James stair with use for the DNA to come from the DNA new DNA analysis it's irrelevant to this case. The question was the contamination to the original blood standards goes to the question of the procedures used by the crime lab that did the previous original blood typing. So the fact that the lab that did the DNA analysis used a different. The different standard for James dares and doesn't speak to that at all and it's is relevant. Second there's no inconsistency between my first and third arguments. My first argument is that she should have counsel should have raised the contaminated evidence claim in a two two 1401 petition and my third is that she should have used a different argument for proving up the contamination planes that she did. There's no. And she should have raised that based on Dave's bears standard in a two 1401 so there's no inconsistency there
. So the fact that the lab that did the DNA analysis used a different. The different standard for James dares and doesn't speak to that at all and it's is relevant. Second there's no inconsistency between my first and third arguments. My first argument is that she should have counsel should have raised the contaminated evidence claim in a two two 1401 petition and my third is that she should have used a different argument for proving up the contamination planes that she did. There's no. And she should have raised that based on Dave's bears standard in a two 1401 so there's no inconsistency there. Finally was the on the issue of the homelessness analysis. Again just sorry just repeat for my reply brief. Landa is based on a on a misreading of galo that is or a glano. I mean is counsel argued glano was about whether or not counsel had complied with rule 651 c at all. Not whether once it's established to that counsel has not complied whether harmless misanalysis applies. It was just in the case where counsel stands on a proceed petition since other as the law stands now counsels allowed if counsel determines the claims are black merit they can just stand on the petition without amending it
. Finally was the on the issue of the homelessness analysis. Again just sorry just repeat for my reply brief. Landa is based on a on a misreading of galo that is or a glano. I mean is counsel argued glano was about whether or not counsel had complied with rule 651 c at all. Not whether once it's established to that counsel has not complied whether harmless misanalysis applies. It was just in the case where counsel stands on a proceed petition since other as the law stands now counsels allowed if counsel determines the claims are black merit they can just stand on the petition without amending it. In order to determine whether counsel's decision to stand on the proceed petition is reasonable requires an analysis of whether or not mandatory of claim could have been raised. But that's not what we have here here we have counsel did raise claims and advanced claims on our own so. Here we have we've already established that counsel did not comply with a rule 61 5 6 6 61 c. And also this court has as I know I cite in my reply brief. For example, in Wallace this court has already held that even when it's at 6 51 c. certificate is is filed one sits determined that counsel provided unreasonable counsel then swear as applies and there is no harmless and air analysis
. And it also point out that the question of whether or not harmless near a suarice applies when counsel has filed a certificate is currently pending in the Illinois Supreme Court and people be atticent number one 27119. I don't know what stage of the briefing they're in right now, but it's been decided. So unless your owners have any questions. Yes, that's oh just ask again that you remand for new proceedings in the appointment of new counsel. Thank you counsel before we let these gentlemen go just as Kate just as far bearers have any questions. No, thank you. All right, well thank you counsel. Obviously we will take the matter under advisement and we will issue an order and do course you guys have a great day