People v. Simon
22 N.E.3d 1248
Ill. App. Ct.2015Background
- Damon Simon was convicted after a bench trial of first-degree murder for shooting Robert Hill and sentenced to 50 years. The conviction and denial of his initial postconviction petition were previously affirmed on appeal.
- At trial multiple eyewitnesses placed Simon at the scene, saw him produce a gun and shoot the victim; no weapon was recovered from the victim at the scene. Simon testified he acted in self-defense, alleging prior robbery/pistol‑whipping and an immediate threat by the victim.
- Simon filed a successive postconviction petition supported by an affidavit from Anthony Green (a State witness at trial) claiming the victim was armed and threatened Simon, that another removed the victim’s gun, and that Green previously lied due to fear/coercion.
- The trial court denied leave to file the successive petition under the cause-and-prejudice rule. Simon appealed, arguing both (a) a colorable freestanding actual-innocence claim under Ortiz and (b) that he showed cause and prejudice to raise new ineffective-assistance-of-counsel claims.
- The appellate court affirmed, holding Green’s affidavit was not newly decisive and was largely cumulative or contradicted by the trial record; and Simon’s ineffective-assistance claims lacked arguable merit or prejudice.
Issues
| Issue | People’s Argument | Simon’s Argument | Held |
|---|---|---|---|
| Successive petition — freestanding actual innocence | Green’s affidavit does not establish newly discovered, noncumulative evidence that would probably change the result | Green’s affidavit shows the victim was armed and threatened Simon, proving self-defense and actual innocence | Denied — affidavit not newly discovered or conclusive; much of it was before the court or contradicted by the record |
| Successive petition — cause & prejudice for ineffective assistance | Simon failed to identify objective impediment or show prejudice that infected the trial | Simon claims trial counsel’s failures caused inability to raise claims earlier and that counsel was ineffective (multiple grounds) | Denied — Simon did not satisfy cause-and-prejudice and most ineffective-assistance claims lacked merit or prejudice |
| Ineffective assistance — jury-waiver/bench-trial advice | Advice to waive jury was reasonable trial strategy; no illicit promise to secure judge’s favor proven | Counsel promised acquittal with bench trial and induced waiver | Denied — advice was within reasonable strategy, not an allegation of an illicit agreement with judge |
| Ineffective assistance — mitigation, intoxication, failure to present self-defense evidence | Mitigating facts were in presentence report; no prejudice shown; intoxication allegation unsupported; prior‑injury records would be cumulative | Counsel failed to present mitigating witnesses, came to court intoxicated, and omitted medical records corroborating self-defense | Denied — mitigation evidence cumulative, no demonstrated prejudice from alleged intoxication, additional self-defense evidence would not likely change outcome |
Key Cases Cited
- People v. Ortiz, 235 Ill. 2d 319 (Ill. 2009) (recognizes freestanding actual-innocence gateway for successive petitions)
- People v. Pitsonbarger, 205 Ill. 2d 444 (Ill. 2002) (establishes cause-and-prejudice test for successive petitions)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)
- Schlup v. Delo, 513 U.S. 298 (U.S. 1995) (standard for showing actual innocence gateway evidence)
- People v. Edwards, 2012 IL 111711 (Ill. 2012) (standards for reviewing successive postconviction petitions and actual-innocence gateway)