THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARON WARREN, Defendant-Appellant.
No. 1-09-0884
2016 IL App (1st) 090884-C
June 30, 2016
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justice Gordon specially concurred, with opinion.
Presiding Justice McBride concurred in part and dissented in part, with opinion.
OPINION
¶ 1 In 1997, defendant Laron Warren was convicted of the murder of Ebony Higgins. At defendant‘s bench trial, the State‘s witnesses identified him as the man who shot Higgins from the front passenger-side window of a car. Defendant presented evidence that a man named Willie Madlock shot Higgins.
¶ 2 At the time of the offense, defendant was 17 years old. Because defendant had previously been convicted of murder, the trial court was required to sentence defendant to incarceration for the rest of his natural life.
¶ 3 In 1999, defendant filed a postconviction petition with the assistance of counsel. The petition alleged, among other things, that defendant was actually innocent. But defendant‘s counsel did not attach affidavits or other evidence to support that argument. Counsel told the court that, while he knew of potential witnesses who could potentially substantiate this claim, he did not secure signatures from them in order to prepare affidavits. The trial court dismissed the petition in part for a lack of evidentiary support, and we affirmed the trial court‘s judgment. People v. Warren, No. 1-04-2380 (2006) (unpublished order under Supreme Court Rule 23).
¶ 4 In 2009, defendant sought leave to file a second postconviction petition, which again raised his claim of actual innocence. This time, defendant attached four affidavits
¶ 5 This court first affirmed the trial court‘s judgment in 2011. People v. Warren, 2011 IL App (1st) 090884-U. In a supervisory order, the Illinois Supreme Court directed us to vacate that decision and to reconsider it in light of People v. Edwards, 2012 IL 111711, ¶¶ 20-29, which clarified the standards applicable to actual-innocence claims raised in successive postconviction petitions. People v. Warren, No. 113184 (Ill. May 30, 2012). In 2013, we again affirmed the dismissal of defendant‘s successive petition because defendant had not supported his petition with newly discovered evidence. People v. Warren, 2013 IL App (1st) 090884-U. Justice Gordon dissented from that decision. Id. ¶¶ 63-77 (Gordon, J., dissenting).
¶ 6 On January 28, 2015, the Illinois Supreme Court issued another supervisory order, directing us to vacate our 2013 order and to reconsider our judgment in light of People v. Davis, 2014 IL 115595. People v. Warren, No. 117157 (Ill. Jan. 28, 2015). In Davis, the Illinois Supreme Court held that the United States Supreme Court‘s decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 2469 (2012), which held that mandatory sentences of natural life without parole for defendants under the age of 18 violate the eighth amendment of the United States Constitution, applied retroactively. Davis, 2014 IL 115595, ¶¶ 36-40.
¶ 7 Pursuant to the Illinois Supreme Court‘s supervisory order, in a previous order we vacated our prior judgment in Warren, 2013 IL App (1st) 090884-U, and this opinion will now stand as our disposition of this matter. For the reasons stated below, we now vacate defendant‘s mandatory life-without-parole sentence, which was imposed on defendant for conduct he committed when he was 17 years old, and remand for resentencing. We also reverse the trial court‘s order denying defendant leave to file his successive postconviction petition because defendant established a colorable claim of actual innocence justifying further proceedings on his successive petition.
¶ 8 I. BACKGROUND
¶ 9 A. Trial and Direct Appeal
¶ 10 As we have discussed the evidence adduced at trial at length in our prior order regarding defendant‘s direct appeal (People v. Warren, No. 1-97-4010 (1999) (unpublished order under Supreme Court Rule 23)), we will not reiterate those facts at length. We discuss the trial evidence to the extent necessary to resolve this appeal.
¶ 11 On the afternoon of April 3, 1994, Ebony Higgins, Michael Stampley, Demario Jackson, Jutoy Hoskins, Kevin Smith, and Ebony‘s boyfriend, Omar Muhammad, were walking along the sidewalk on 107th Street in Chicago, heading to Muhammad‘s house. As the group walked, Stampley and Jackson were the closest to the street, just behind Higgins. A car hit the curb behind them, and Jackson and Stampley turned around. They saw two people in the front seats of a blue, four-door Buick. The passenger, whom both Jackson and
¶ 12 After the shooting, Jackson told the police that the shooter was a 20-year-old African-American male with a light complexion and “corn” braids in his hair. Stampley said that the man was clean shaven and had a chubby face.
¶ 13 Muhammad also testified, but he did not see the car or its occupants because he did not turn around after he heard tires screeching behind him. He testified that he heard four gunshots and tried to push Higgins away from the street, but she was struck after Muhammad heard two more gunshots.
¶ 14 On April 7, 1994, Jackson and Stampley saw the Buick again, traveling south on 106th Street. They took down the license plate number and gave it to the police.
¶ 15 On April 9, 1994, the police found the Buick abandoned on the side of the highway. It had been severely damaged in an accident. The police processed the car and found fingerprints on the passenger side of the interior rear-view mirror; the rear, passenger-side window; and the rear, driver-side quarter panel. Ten of those prints were submitted for latent fingerprint examination. According to latent print examiner Richard McGrath, a print found on the rear, passenger-side window matched defendant‘s left thumb print.
¶ 16 After defendant‘s arrest, the police arranged for him to be included in a lineup. Stampley and Jackson separately viewed the lineup eight days after the shooting and immediately identified defendant as the shooter. Jackson conceded that defendant‘s complexion at trial was darker than it appeared in the lineup. Jackson also conceded that defendant did not look heavyset in the lineup. Stampley testified that, in the lineup, defendant had facial hair and that his face looked “kind of wide” or “filled in,” not fat.
¶ 17 Defendant presented evidence that he was not present for the shooting, and that a man named Willie Madlock killed Higgins. Dejuan Jones testified that, on April 3, 1994, he was in the rear, driver-side seat of the blue Buick traveling on 107th Street. According to Jones, defendant was not in the car. Germaine Bledsoe was driving, Madlock was in the front passenger seat, and a man named Clay was in the rear, passenger-side seat. Jones heard Madlock yell, “There go [sic]
Herman.” Bledsoe then drove the car up onto the curb and Madlock began to shoot at a group of eight or nine people with a revolver. Jones ducked down in the car, so he did not see whether Madlock shot anyone. After Madlock fired four or five shots, Bledsoe sped away. Jones admitted that he had not disclosed this information to the police before trial. At the time of trial, Jones, who was incarcerated for murder, had been defendant‘s friend for 10 years.
¶ 18 Sylvia Stewart, defendant‘s aunt, testified that defendant attended a party she hosted on April 3, 1994. Sylvia testified that her son picked defendant up and brought him to the party between 9:30 and 10 a.m. Between 2 and 2:30 p.m., defendant and Sylvia left to pick up defendant‘s girlfriend and three friends, then returned. Sylvia testified that defendant did not leave the party again until 10:30 p.m.
¶ 19 On cross-examination, Sylvia denied telling an investigator that she could not speak with him because she needed time to get her “story straight.” She conceded that she knew defendant had been arrested soon after April 3, 1994, and that she never told the police that defendant had been at her home during the shooting. During the State‘s rebuttal, the parties
¶ 20 Lavelle Stewart, defendant‘s cousin and Sylvia‘s son, also testified that defendant was at the party on April 3, 1994. Like Sylvia, Lavelle said that he picked defendant up and brought him to the party around 10:30 a.m. Lavelle also testified that Sylvia and defendant left around 12:30 p.m. to pick up defendant and three friends. After returning, defendant remained at the party until 11 or 11:30 p.m.
¶ 21 On cross-examination, Lavelle testified that defendant and his girlfriend went upstairs around 6 or 7 p.m. and did not come back down until he left. He also testified that he heard
defendant had been charged with murder just two days after the party, but Lavelle did not tell the police that defendant was with him on April 3, 1994.
¶ 22 The trial court found defendant guilty of murder. At sentencing, the trial court stated, “[P]ursuant to statute it is mandatory that the defendant be sentenced to life imprisonment without parole in the Illinois Department of Corrections.”
¶ 23 Defendant appealed his conviction, asserting that the State had failed to prove him guilty beyond a reasonable doubt, and that his mittimus should be corrected to reflect only one count of first-degree murder. This court affirmed defendant‘s conviction, corrected the mittimus, and vacated the other count of murder. People v. Warren, No. 1-97-4010 (1999) (unpublished order under Supreme Court Rule 23).
¶ 24 B. First Postconviction Petition
¶ 25 On December 27, 1999, with the assistance of court-appointed counsel, defendant filed a postconviction petition alleging, among other claims, that he was innocent of Higgins‘s murder. Counsel argued that defendant had “recently discovered evidence” that corroborated his trial defense and proved his innocence. Counsel did not attach any affidavits or other evidence to support this contention.1 The State moved to dismiss defendant‘s petition.
¶ 26 On July 1, 2004, the trial court held a hearing on the State‘s motion to dismiss. Postconviction counsel conceded that he had “no affidavit in support” of defendant‘s actual-innocence claim. He said that he had previously been in touch with “three witnesses” who he thought would provide him with statements, but because the statute of limitations on defendant‘s petition was running out, “we had to file something timely so we filed it” without those
affidavits.
¶ 27 In support of its motion to dismiss, the State argued that the petition had no affidavits to support the actual-innocence claim and that the trial court should dismiss that claim “for that reason alone.” Defendant‘s lawyer, in his oral argument to the trial court, made no substantive argument whatsoever concerning the actual-innocence claim. The trial court continued the case for a ruling on the motion.
¶ 28 On July 13, 2004, before the trial court had ruled on defendant‘s petition, defendant filed a motion seeking new counsel. Defendant asserted that his postconviction attorney “failed to investigate thoroughly and to present evidence that could [have] cleared” him. Defendant said that
¶ 29 On August 9, 2004, the trial court addressed defendant‘s motion to substitute counsel. With regard to the absence of evidence to support the petition, defense counsel explained:
“[T]here is a witness, two witnesses who for a long period of time, and I mean years, had told family members and friends that they were willing to come in and provide an affidavit with respect to one of the two claims, but those witnesses while they came to our office never were willing to give an affidavit, and *** the [defendant‘s] mother, who was in attendance at most of the Court proceedings up until maybe five or six months ago, was aware of that because she came in with the gentleman once and left with him, knowing that he didn‘t sign the affidavit.”
The court denied defendant‘s motion to substitute his attorney.
¶ 30 At the same hearing, the trial court granted the State‘s motion to dismiss defendant‘s
postconviction petition. The court dismissed defendant‘s actual-innocence claim because he did not attach affidavits or other evidence to support it, stating, “[W]ith regard to the newly-discovered evidence claims, *** there are no affidavits in support of those claims ***. Those portions of the post-conviction that refer to newly-discovered evidence will be dismissed.” Defendant appealed, and we affirmed the trial court‘s judgment. People v. Warren, No. 1-04-2380 (2006) (unpublished order under Supreme Court Rule 23). On appeal, defendant did not allege that his postconviction attorney‘s performance was deficient. Id.
¶ 31 C. Second Postconviction Petition
¶ 32 On January 5, 2009, defendant, this time acting pro se, filed a motion seeking leave to file a successive postconviction petition, along with a copy of his successive petition. In his motion for leave to file, defendant asserted that, “at the time [his] initial post-conviction petition was filed ***, his claim of newly discovered evidence *** was not fully developed.” He said that he did not receive the affidavits supporting his claim of actual innocence until “late 2006, 2007, and 2008.” Defendant said that he established “cause” justifying his filing of a successive petition because he “was unable to gain and complete the evidence to raise” his claim earlier.
¶ 33 Defendant‘s petition included four affidavits, as well as two unsworn writings. As defendant does not claim that the unsworn writings are evidence supporting his claim, we will confine our discussion to the four affidavits.
¶ 34 The first affidavit was from Grace Warren, defendant‘s mother. She attested that Willie Madlock had told her over the phone and in person that he shot Ebony Higgins, and that defendant was not in the car at the time of the shooting. She did not specify when these conversations took place. Grace also stated that she brought Madlock to “attorney [sic] office,” but that Madlock did not confess once he was there.
¶ 35 The second affidavit was from Andrea Young, who was raised in the same neighborhood as defendant. Young said that she knew defendant was in prison for murder, but she did not know the date of the murder or the details of the incident. Young knew a man named “Willie” who was friends with Germaine Bledsoe and her nephew, but she did not know Willie‘s
¶ 36 The third affidavit came from Rayetta Felton, who knew defendant because her sons grew up in the same neighborhood as defendant. Felton said that, at the time of defendant‘s arrest and conviction, she did not know anything about the facts of the case. Felton said that, “about a year ago,” she had a conversation with Germaine Bledsoe when Bledsoe came to her house to see one of her sons. Bledsoe mentioned that “it was too bad [that defendant] was in prison because [defendant] was not the shooter.” Bledsoe said he knew this because he was driving the car from which the shots were fired, and that “Willie, Cornelius, and DeShawn” were also in the car. According to Felton, Bledsoe did not say who fired the shots, but he did say that defendant was not present. On February 13, 2000, Felton met with defendant‘s attorney and told him about her
conversation with Bledsoe. Defendant‘s attorney then sent Felton a copy of her affidavit to review, which she did. Again, Felton‘s affidavit appeared to have been drafted in 2000. But it was not signed and notarized until January 3, 2006.
¶ 37 The fourth affidavit was from Aisha Daily, who lived in the same neighborhood as defendant. She first contacted defendant in 1999 and then started asking around the neighborhood about Willie and Germaine. Daily said that, in 2001, Willie came to her house and spoke to her about the case. He said that “he was the actual shooter and that [defendant] was not involved.” Daily contacted defendant‘s lawyer, and he said that he would get an affidavit from her. After that conversation, however, defendant‘s attorney never contacted Daily about obtaining her affidavit. Daily attested that, on an unspecified date, Willie came to her house again and told her that he wanted to confess to defendant‘s attorney. Daily brought Willie to defendant‘s attorney, but he “did not confess.” Daily‘s signature on the affidavit was dated January 9, 2005, but it was notarized on January 8, 2006.
¶ 38 We would make two notes about these affidavits. First, Andrea Young, Rayetta Felton, and Aisha Daily each swore in their affidavits that they met with postconviction counsel about their testimony, which is consistent with what postconviction counsel told the court the first time he discussed the absence of supporting affidavits: that he had previously been in touch with three witnesses who would provide him statements, but he had to file an unsupported petition because the limitations period on filing the petition was about to run. See supra ¶ 26. The State does not dispute this fact and even points out that the affidavits of Young and Felton appear to have been originally prepared back in 2000, during their initial meeting with postconviction counsel.
¶ 39 Second, the affidavits of Grace Warren and Aisha Daily, each of whom claim
consistent with what defendant‘s postconviction counsel told the court during the initial postconviction hearing, when defendant asked for new counsel—that a man who had purportedly been willing to confess was brought to counsel‘s law office, but he ultimately refused to confess. Supra ¶ 29. The State agrees that “the visit with Madlock to [defendant‘s] attorney that is described by Ms. Warren is undoubtedly the same visit that [postconviction counsel] described on the record in the first postconviction proceeding.”
¶ 40 On March 3, 2009, the trial court denied defendant leave to file his successive postconviction petition. The court found that the affidavits used to support defendant‘s claim were not new because defendant “already presented the theory at trial that Willie Madlock was the ‘real’ shooter and that [defendant] was not in the vehicle when the crime occurred.” Thus, the court ruled, “these affidavits [were] cumulative and immaterial in nature and would not change the verdict on retrial.” Defendant appeals from the trial court‘s order.
¶ 41 II. ANALYSIS
¶ 42 Defendant argues that the trial court erred in denying him leave to file because he stated a colorable claim of actual innocence. In a supplemental brief filed after the Illinois Supreme Court‘s first remand in 2012, defendant also argues that he established cause and prejudice justifying his leave to file a successive petition, because his attorney performed inadequately during his initial postconviction proceedings, and that his mandatory life without parole sentence is unconstitutional.
¶ 43 We begin by addressing the constitutionality of defendant‘s sentence.
¶ 44 A. Mandatory Life Without Parole Sentence
¶ 45 In Miller, the United States Supreme Court held that mandatory life sentences without the possibility of parole for offenders under 18 violate the eighth amendment‘s prohibition of cruel and
unusual punishment. Miller, 567 U.S. at ___, 132 S. Ct. at 2469. The Court wrote that juveniles “are constitutionally different from adults for purposes of sentencing” because they lack adults’ sense of responsibility, they are more susceptible to negative influence and outside pressure, and they possess a greater capacity to change their character. Id. at ___, 132 S. Ct. at 2464. Thus, juvenile offenders are both less culpable than adults and possess a greater capacity to reform. Id. at ___, 132 S. Ct. at 2464. Because mandatory life without parole sentences fail to acknowledge these characteristics, the Court held that they do not serve any justifiable penological purpose. Id. at ___, 132 S. Ct. at 2465. The Court held that, at sentencing, trial courts must have the opportunity to consider a juvenile defendant‘s “age and the wealth of characteristics and circumstances attendant to it.” Id. at ___, 132 S. Ct. at 2467.
¶ 46 In Davis, the Illinois Supreme Court held that Miller applied retroactively to cases pending on collateral review at the time Miller was decided. Davis, 2014 IL 115595, ¶¶ 34-43. The court reasoned that Miller effected a substantive change in the law by prohibiting mandatory life without parole sentences for juveniles, exempting it from the general bar on the retroactive application of new rules to final convictions. Id. ¶¶ 36-39, 41. Thus, the court held that the defendant, who had raised the constitutionality of his sentence in a successive postconviction petition, was entitled to a new sentencing hearing “where
¶ 47 Here, the trial court was required to sentence defendant, who was 17 years old at the time of the shooting, to natural life in prison without the possibility of parole because he had previously been convicted of first-degree murder. See
to Miller, defendant‘s sentence violated his eighth amendment right to be free from cruel and unusual punishment. Like Davis, this appeal was pending at the time Miller was decided. In light of the holding of Davis, defendant is entitled to be resentenced.
¶ 48 There is no procedural bar to defendant‘s challenge. As the court explained in Davis, Miller itself satisfies the cause-and-prejudice standard for successive petitions because Miller was not available for earlier postconviction proceedings, and it applied retroactively to defendant‘s sentencing hearing. Davis, 2014 IL 115595, ¶ 42. Moreover, a challenge to the constitutionality of a sentencing statute may be raised at any time (People v. McCarty, 223 Ill. 2d 109, 123 (2006)), including on appeal from a collateral proceeding. See, e.g., People v. Croom, 2012 IL App (4th) 100932, ¶¶ 7-8, 10. Thus, the fact that defendant first raised this challenge on appeal from the denial of leave to file his successive postconviction petition does not bar us from granting him relief.2
¶ 49 Our conclusion is supported by the Illinois Supreme Court‘s decision in People v. Thompson, 2015 IL 118151. In Thompson, the defendant relied on Miller to challenge the constitutionality of his sentence in an untimely section 2-1401 petition. Id. ¶¶ 14-15, 17. The supreme court found that the defendant could not raise his untimely challenge simply because he asserted that his sentence was unconstitutional and void. Id. ¶ 30. The court distinguished the defendant‘s challenge from two appellate court cases (People v. Luciano, 2013 IL App (2d) 110792, ¶ 46, and People v. Morfin, 2012 IL App (1st) 103568, ¶¶ 25, 56) that permitted minors to raise Miller challenges for the first time on appeal from the dismissal of their collateral
proceedings. Thompson, 2015 IL 118151, ¶ 41. The supreme court noted that “[t]he holdings of Luciano and Morfin are consistent with [its] recent decision in *** Davis, 2014 IL 115595.” Thompson, 2015 IL 118151, ¶ 42. But, the court said, because the defendant was 19 years old at the time of his offense (i.e., not a minor under Miller) he could not “obtain the same collateral relief afforded the defendants in Luciano, Morfin, and Davis.” Id. ¶ 43.
¶ 50 Unlike the defendant in Thompson, defendant was indisputably a minor at the time of his offense, and thus subject to the holdings of Miller and Davis. Thus, defendant should be able to raise his challenge for the first time on appeal like the
¶ 51 Because defendant‘s sentence is unconstitutional, he is entitled to a new sentencing hearing. There is no need for further postconviction proceedings on this issue. Accordingly, we vacate defendant‘s sentence and remand for a new sentencing hearing, where the trial court may consider any permissible sentence. See Davis, 2014 IL 115595, ¶ 43 (remanding for resentencing).
¶ 52 B. Defendant‘s Successive Postconviction Petition
¶ 53 We now turn to the trial court‘s denial of leave to file defendant‘s successive postconviction petition based on actual innocence. See
¶ 54 1. The Illinois Supreme Court‘s Mandate
¶ 55 Before reaching the merits of defendant‘s actual-innocence claim, it is necessary to address the State‘s and the dissent‘s contention that we cannot address the trial court‘s denial of leave to file the successive postconviction petition, because to do so would be to exceed the scope of the mandate of our supreme court on remand. According to the State and the dissent, because the
supreme court directed us to vacate our original judgment and reconsider it in light of Davis, this court may only address the sentencing issue and otherwise may not deviate at all from our previous decision in Warren, 2013 IL App (1st) 090884-U. The State additionally claims that our prior decision regarding the trial court‘s denial of leave to file defendant‘s successive petition is now the law of the case, to which we must adhere.
¶ 56 In its supervisory order, the supreme court denied the petition for leave to appeal and directed this court to “vacate” our prior judgment in Warren, 2013 IL App (1st) 090884-U, and to reconsider it in light of Davis. We have done both things required of us; we have vacated our previous judgment, and we reconsidered the sentencing issue in light of Davis. But there was more than the sentencing issue in our previous judgment; we also ruled on the circuit court‘s denial of leave to file defendant‘s successive postconviction petition based on actual innocence. We must rule on that actual-innocence issue in this opinion, too, or there will be no final judgment on that question. See Flavell v. Ripley, 247 Ill. App. 3d 842, 847 (1993) (“Where a judgment order is vacated, the effect is to leave the pleadings as if no judgment were ever entered.“); Kelch v. Watson, 237 Ill. App. 3d 875, 877 (1992) (“The effect of a vacated order is that of a void order.“).
¶ 57 Indeed, the authoritative source on which the dissent relies for the notion that we may not reconsider the actual-innocence issue on remand, the Style Manual for the Supreme and Appellate Courts of Illinois, provides that on remand from a supervisory order, our opinion “is not a modified or revised one but simply a new opinion and is given a new filing date.” (Emphasis added.) Style Manual for the Supreme and Appellate Courts of Illinois § I(G)(3) at (4th ed. rev. 2012). That is precisely why we must consider all of the issues on appeal—we are issuing a new opinion, not simply modifying or revising the prior order entered in this case.
¶ 58 The question becomes how this court should rule on that actual-innocence issue. One way to do so, to be sure, would be to merely reference our previous Rule
¶ 59 The problem is that a majority of this appellate panel no longer concurs with that holding. The previous judgment of this court affirmed the denial of leave to file the successive postconviction petition by a vote of 2 to 1. See id. ¶ 61 (affirming denial of leave to file), id. ¶¶ 63-77 (Gordon, J., dissenting). The currently composed panel hearing this matter, by a vote of 2 to 1, would vote to reverse the denial of leave to file the successive postconviction petition and remand for further proceedings.
¶ 60 So the question is whether this court is required to adhere to its previous holding and judgment on the actual-innocence issue, even where a majority of the panel no longer agrees with it. Obviously, if the supreme court told us to do so, we would do so without hesitation. But the supervisory order gave this court no specific direction on the actual-innocence issue. It gave us direction on the sentencing issue but otherwise denied the petition for leave to appeal, which our supreme court has made clear is not a ruling on the merits: “It is well settled that [the supreme court‘s] denials of leave to appeal are not decisions on the merits of the case” and they ” ‘carry no
connotation of approval or disapproval of appellate court action, and signify only that four members of the court, for reasons satisfactory to them, have not voted to grant leave.’ ” People v. Ortiz, 196 Ill. 2d 236, 257 (2001) (quoting People v. Vance, 76 Ill. 2d 171, 183 (1979)). We can read absolutely nothing into the denial of leave to appeal other than the fact that the supreme court denied leave to appeal. In its supervisory order, the supreme court has given us clear direction on how to reconsider the sentencing issue but has given us no hint of approval or disapproval of, much less direction on how to reconsider, the actual-innocence issue.
¶ 61 The dissent suggests that we are forbidden from departing from our prior decision on the actual-innocence issue in Warren, 2013 IL App (1st) 090884-U, that the only result we can reach is affirmance of the denial of leave, regardless of how many judges on this panel would now vote to reverse. But the dissent‘s authoritative source for this contention, the Style Manual, only says that incorporating by reference holdings of the previous opinion is “permissible” or, in the proper context, even “desired“—language that is not mandatory. And the case the dissent quotes, People ex rel. Birkett v. Bakalis, 196 Ill. 2d 510, 512 (2001), merely describes the Illinois Supreme Court‘s general practice of using supervisory orders when one of its opinions “appears to be dispositive of other cases pending before [the supreme court] on petitions for leave to appeal.” The supreme court did not take up the issue of the scope of a supervisory order such as the one in this case; the issue in Bakalis was whether the State could seek a supervisory order to vacate a trial court order
¶ 62 Ultimately, the dissent‘s reasoning rests on the same faulty assumption as the State‘s: that, when the supreme court told us to vacate our prior judgment and reconsider this case in light of Davis, it tacitly signaled its approval of every other issue besides the sentencing issue. But this court simply cannot interpret the supreme court‘s denial of leave to appeal as some kind of implicit
affirmance, an inference the supreme court has rejected in no uncertain terms. Ortiz, 196 Ill. 2d at 257.
¶ 63 When the supreme court ordered us to vacate our previous judgment, it obviously understood that this court would be required to issue a new opinion and enter a new judgment on all issues, even on those that were not addressed specifically in the supervisory order. There is nothing in the supervisory order foreclosing the possibility that the appellate panel might decide to reach a different outcome on one of those other issues, for whatever reason—a new composition of judges on the panel; new case law that persuades us we made a mistake the last time around; or even just a change of one or more judges’ minds, upon further reflection.
¶ 64 Neither the dissent nor the State cites any decision holding that a judge, with jurisdiction over the matter and no specific direction from a higher court on the issue, lacks the inherent ability to change his or her mind about an issue upon further reflection. The case law has always held the exact opposite. See, e.g., People v. Mink, 141 Ill. 2d 163, 171 (1990) (“A court in a criminal case has inherent power to reconsider and correct its own rulings, even in the absence of a statute or rule granting it such authority.“); People v. Van Cleve, 89 Ill. 2d 298, 304 (1982) (“[A] court possesses inherent power to correct its interlocutory rulings.“); Stevens v. Village of Oak Brook, 2013 IL App (2d) 120456, ¶ 37 (“A court has the inherent authority to reconsider and correct its rulings, and this power extends to interlocutory rulings as well as to final judgments.“); Geske v. Geske, 343 Ill. App. 3d 881, 885 (2003) (“It would be absurd to suppose that trial judges who conclude they have made mistakes should not be free to correct them within an appropriate time frame.“).
¶ 65 The dissent also notes that the supreme court instructed us to vacate our “judgment,” not our “decision,” suggesting that the prior order disposing of this case is binding on every issue except the sentencing issue. But without a judgment, a decision has no resolution; it does not fix
the rights of the parties. See In re D.D., 212 Ill. 2d 410, 418 (2004) (“A final judgment is defined as one that fixes the rights of the parties in the lawsuit; it is final if it determines the litigation on the merits and, if affirmed, leaves only the execution of the judgment.“); Black‘s Law Dictionary 846 (7th ed. 1999) (defining “judgment” as “[a] court‘s final determination of the rights and obligations of the parties in a case“). While our prior decision remains, it has no binding effect on the parties, and they are left with no resolution of the actual-innocence issue. We fail to see how, absent a “judgment” giving effect to our prior decision, the “decision” has any bearing on our reconsideration of the case.
¶ 66 To be clear: There is no question that this Court is required to follow the mandate of the supervisory order. The case law cited by the dissent, in essence, says nothing more than that. It is no doubt a correct proposition of law. By
¶ 67 The State‘s objection to our doing so, based on the law-of-the-case doctrine, is likewise incorrect. The law-of-the-case doctrine only applies when there is a “final judgment” on an issue. People v. Patterson, 154 Ill. 2d 414, 469 (1992). As explained above, there is no final judgment on defendant‘s successive petition, now that we have vacated our previous judgment. And in any event, the law-of-the-case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided; it is not a limit on their power.” Id. at 468-69. Thus, the
law-of-the-case doctrine would not strip us of our authority to reconsider these issues, even if a final judgment were in effect—which, again, is not the case.
¶ 68 For all of these reasons, it is appropriate for this court to consider the merits of the actual innocence issue and to reach whatever decision, and enter any judgment, that we deem appropriate based on the law and the facts before us.
¶ 69 2. Defendant‘s Actual-Innocence Claim
¶ 70 The Post-Conviction Hearing Act (the Act) provides that, generally, a defendant may only file one postconviction petition.
¶ 71 We turn first to the appropriate standard of review. Defendant asks us to apply de novo review to the issue of whether he presented a colorable claim of actual innocence. In the State‘s opening brief, it also states that de novo review is proper. But since those briefs were filed, our supreme court has suggested that two different standards of review may be possible. In Edwards, the court, after establishing that a petitioner could obtain leave of court by presenting a colorable claim of actual innocence, turned to the issue of the appropriate standard of review, an issue that “was briefed only minimally” in the supreme court. Id. ¶ 30. While noting that, “[g]enerally, decisions granting or denying ‘leave of court’ are reviewed for an abuse of discretion,” the court
noted that the question before it was whether “as a matter of law, no colorable claim of actual innocence ha[d] been asserted.” Id.
¶ 72 As the court in Edwards noted, the question here is whether the pleadings, taken as true, are sufficient “as a matter of law” to establish a claim of actual innocence. Id. ¶ 30. Necessarily, this is a legal question, to which de novo review is appropriate. See, e.g., Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 32 (ruling that movant was entitled to judgment
¶ 73 Notably, since Edwards questioned the appropriate standard of review, some decisions of this court have applied de novo review to the question of whether a successive petition can state a colorable claim of actual innocence. See, e.g., People v. Adams, 2013 IL App (1st) 111081, ¶ 30 (applying de novo review to decision of whether petitioner stated colorable claim of actual innocence); People v. Green, 2012 IL App (4th) 101034, ¶ 30 (de novo review appropriate because “[t]he trial court *** dismissed defendant‘s second successive petition without finding facts” (internal quotation marks omitted)). Other decisions have declined to reach the issue of the standard of review because the petitioner‘s claim would fail under either standard. See, e.g., People v. Simon, 2014 IL App (1st) 130567, ¶ 58. But we have found no decision applying an abuse of discretion standard.
¶ 74 Moreover, we note that, when a petitioner seeks leave of court via the cause-and-prejudice standard, we apply de novo review. People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002); People v. Edwards, 2012 IL App (1st) 091651, ¶ 25. We see no reason why cases alleging actual innocence should be reviewed under a more deferential standard, when the ultimate question—the propriety of leave of court—is the same.
¶ 75 For all of these reasons, we apply de novo review to the denial of leave to file defendant‘s successive postconviction petition.
¶ 76 To establish a claim of actual innocence, the evidence supporting defendant‘s claim must have been: (1) newly discovered, (2) material and not merely cumulative, and (3) of such a conclusive character that it would probably change the result at a retrial. Edwards, 2012 IL 111711, ¶ 32. At the initial stage of the proceedings, where the defendant seeks leave to file the successive petition, a defendant is not required to conclusively prove his case. Rather, “leave of court should be denied only where it is clear, from a review of the successive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.” Id. ¶ 24. “Stated differently, leave of court should be granted when the petitioner‘s supporting documentation raises the probability that ‘it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
¶ 77 At this stage of
¶ 78 We now turn to each of the elements of the actual-innocence claim, though not in the traditional order of consideration.
¶ 79 a. Material and Not Cumulative
¶ 80 We first conclude that defendant has satisfied the requirement that the proffered evidence be material and noncumulative. Material evidence is evidence that “is relevant and probative of the petitioner‘s innocence.” People v. Coleman, 2013 IL 113307, ¶ 96. Each of the affidavits recounted conversations with Madlock and Bledsoe in which they said that Madlock shot Higgins while Bledsoe was driving. Moreover, Madlock and Bledsoe said that defendant was not present for the shooting. Clearly, this information is relevant to, and probative of, defendant‘s innocence.
¶ 81 The affidavits also presented evidence that was not cumulative of the evidence presented at trial. Evidence is considered cumulative if it “adds nothing” to what the jury heard at trial. People v. Ortiz, 235 Ill. 2d 319, 335 (2009). There was no evidence at trial that either Madlock or Bledsoe had confessed to Higgins‘s murder. While Dejuan Jones testified that Madlock shot Higgins from a car that Bledsoe drove, and that defendant was not present for the shooting, evidence that Madlock and Bledsoe later confessed to these facts would add something to the evidence the jury heard. This evidence certainly would have corroborated Jones‘s account of the shooting and defendant‘s alibi evidence, but that does not mean it would have added nothing to defendant‘s trial. Corroborative evidence is not the same as cumulative evidence. See, e.g., People v. Molstad, 101 Ill. 2d 128, 135 (1984) (evidence corroborating defendant‘s alibi was not cumulative); People v. Sparks, 393 Ill. App. 3d 878, 886 (2009) (eyewitness testimony corroborating defendant‘s version of events was not cumulative).
¶ 82 b. Likely to Change the Result on Retrial
¶ 83 Next, we turn to the question of whether the evidence supporting defendant‘s claim is “of such conclusive character” that it would “probably change the result on retrial.” (Internal quotation marks omitted.) Coleman, 2013 IL 113307, ¶ 84. In other words, defendant‘s evidence must “raise[] the probability that it is more likely than not that no reasonable juror would have convicted him.” (Internal quotation marks omitted.) Edwards, 2012 IL 111711, ¶ 24.
¶ 84 Assuming the truth of the evidence included in the four affidavits, we find that they are sufficient to raise the probability that it is likely that no reasonable juror would convict defendant. As we mentioned
¶ 85 Moreover, we note that the State‘s principal evidence consisted of two eyewitness identifications from Jackson and Stampley. Those identifications were made during less than ideal circumstances: Jackson and Stampley had to take cover from the hail of gunfire coming from the surprise attack behind them, shortening the time they had to view the shooter. The State presented no identifications from the other individuals present for the shooting, including Omar Muhammad, who testified that he did not have an opportunity to see the shooter before he had to seek cover. This is not to say that the State‘s evidence was insufficient; we simply find that it was not so strong that we can say that the addition of evidence that Madlock‘s and Bledsoe‘s confessions would not likely change the result of a new trial.
¶ 86 While the presence of defendant‘s fingerprints on the Buick undermined his alibi, there was no evidence establishing when defendant left those prints. Of the numerous other prints recovered from other locations in the car, none matched defendant‘s prints. And defendant‘s print was recovered from the rear, passenger-side window of the car, whereas Jackson and Stampley said that defendant was in the front, passenger seat during the shooting. Thus, the fingerprint evidence does not mean that defendant‘s new evidence would be unlikely to change the result on retrial, especially where we presume the truth of that evidence.
¶ 87 The dissent contends that, because the evidence presented in the affidavits would simply contradict the State‘s evidence at trial, they are not of such a conclusive character that they would change the result on retrial. The dissent cites Sanders, 2016 IL 118123, to support that contention. But in Sanders, the court did not say that evidence that conflicts with the evidence at trial could never support a claim of actual innocence. Our supreme court has made it clear that evidence contradicting the State‘s evidence can, in certain cases, be likely to change the result on retrial. See, e.g., Ortiz, 235 Ill. 2d at 337 (evidence likely to change result where it “directly contradict[ed] the recanted testimony of the two prosecution witnesses“). Instead, the court in Sanders simply found that the new evidence in that case was unlikely to change the result on retrial. In Sanders, the testimony offered to support the successive petition was a recantation from one of the State‘s witnesses at trial. Sanders, 2016 IL 118123, ¶ 48. That recantation conflicted with the physical evidence presented at
¶ 88 Of course, we acknowledge that the evidence in the affidavits is problematic because it is hearsay. Generally, hearsay affidavits cannot be used to support postconviction claims. People v. Morales, 339 Ill. App. 3d 554, 565 (2003). But the Illinois Supreme Court has held that this rule should not be applied “inflexibly.” People v. Sanchez, 115 Ill. 2d 238, 284 (1986).
¶ 89 For example, in Sanchez, the defendant, who had been convicted of murder, filed a petition for relief from judgment pursuant to
¶ 90 The affidavits supporting defendant‘s petition in this case are similar to the affidavit at issue in Sanchez. Each of the four affidavits contained facts material to defendant‘s innocence: each said that
¶ 91 And the affidavits sufficiently alleged that Madlock and Bledsoe were hostile or unavailable. Both Grace Warren and Daily attested that they brought Madlock to postconviction counsel‘s office, but that Madlock refused to confess. Young attested that she “believe[d]” that Bledsoe had died. While none of the affidavits expressly stated that Madlock or Young would invoke their rights against self-incrimination, each of the affidavits alleged facts showing that Madlock would decline to confess and that Bledsoe would be unable to do so. Finally, we note that, although Sanchez was a capital case, and this case is not, the stakes are similarly high: defendant, who was a juvenile at the time of the offense, was convicted of first-degree murder and faces severe penalties on resentencing. Thus, the court‘s concern for procedural fairness and factual accuracy are present here. Cf. People v. Perkins, 260 Ill. App. 3d 516, 520 (1994) (declining to apply Sanchez in part because case only involved a misdemeanor).
¶ 92 And even though these affidavits contained hearsay, it does not necessarily follow that the affiants’ testimony would be inadmissible at trial. Felton‘s potential testimony about Bledsoe‘s confession could be admissible under
¶ 93 Moreover, we cannot fully assess the trustworthiness of Felton‘s possible testimony at this point, nor should we. The supreme court has recently reminded us that the initial stage of a successive postconviction proceeding is not the forum for credibility or reliability determinations. Sanders, 2016 IL 118123, ¶¶ 33, 37. “Credibility determinations may be made only at a third-stage evidentiary hearing.” Id. ¶ 42; see United States v. Bagley, 537 F.2d 162, 168 (5th Cir. 1976) (inquiry into trustworthiness of statement against penal interest should be left to trial judge, who “has the opportunity to judge the credibility of the witness [and] to exercise discretion in determining whether *** the statement is trustworthy“). Thus, we cannot conclusively say that her testimony lacks indicia of trustworthiness at this stage.
¶ 94 But leaving these principles aside, some indicia of trustworthiness are present. Felton‘s testimony is corroborated by other evidence at trial: Jones testified that Bledsoe was the driver during the shooting, that Madlock was the shooter, and that defendant was not in the car. See People v. Rice, 166 Ill. 2d 35, 45 (1995) (looking to presence of corroborating evidence in
¶ 95 With respect to Grace Warren‘s, Young‘s, and Daily‘s affidavits, their testimony could be admissible pursuant to the hearsay exception created by Chambers v. Mississippi, 410 U.S. 284 (1973). In Chambers, the Court held that due process requires the admission of an out-of-court statement that the declarant, and not the defendant, committed the crime, provided that the trial court finds it to be trustworthy. Id. at 302; see also People v. Bowel, 111 Ill. 2d 58, 66 (1986) (recognizing Chambers). The Court acknowledged that, while such an out-of-court confession would generally be inadmissible hearsay, “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302. The Court set out four factors to determine whether such a statement is trustworthy: (1) whether the declaration was made spontaneously, to a close acquaintance, shortly after the crime occurred; (2) whether it was corroborated by other evidence; (3) whether it was self-incriminating and against the declarant‘s penal interest; and (4) whether there was an adequate opportunity for the State to cross-examine the declarant. Chambers, 410 U.S. at 300-01. The presence or absence of any one factor is not determinative; rather, the trial court should consider whether the statements were made under circumstances demonstrating their trustworthiness. Bowel, 111 Ill. 2d at 67-68.
¶ 96 Again, we must take the affidavits supporting defendant‘s petition as true, without any credibility determinations at this stage. Pitsonbarger, 205 Ill. 2d at 455. Our supreme court has firmly rejected a State argument that “a threshold finding of trustworthiness must be made before a court may determine whether a postconviction petitioner has set forth a colorable claim of actual innocence.” Sanders, 2016 IL 118123, ¶ 32. Trustworthiness and reliability determinations may be made only at a third-stage evidentiary hearing. Id. ¶ 42. Thus, we cannot imagine how we could find, as a matter of law, at this initial stage of the postconviction proceeding, that these three affidavits are so inherently untrustworthy that they would be inadmissible under Chambers.
¶ 97 The dissent claims that our analysis of these affidavits is faulty because the testimony in the affidavits is less reliable than the testimony in Chambers or People v. Tenney, 205 Ill. 2d 411 (2002), meaning that they would be inadmissible. But the dissent ignores the fact that neither Chambers nor Tenney involved a postconviction petition
¶ 98 But leaving that aside, Grace Warren‘s, Young‘s, and Daily‘s affidavits meet at least two—and possibly three—of the Chambers factors. The first factor is not met, as none of the affidavits show that Grace Warren, Young, or Daily were close acquaintances of Madlock, or that Madlock confessed shortly after the crime. Indeed, the affidavits show that Madlock confessed well after the crime occurred, as he did not come forward until defendant had already been sent to prison. But the second and third Chambers factors appear to be satisfied. Assuming the truth of the affidavits, they are corroborated by Jones‘s trial testimony, as Jones testified that Madlock was the shooter and that defendant was not in the car at the time of the shooting. They were also certainly against Madlock‘s penal interest. Thus, the hearsay statements could be admissible under the Chambers exception, provided that the trial court ultimately found them to be trustworthy.
¶ 99 Of course, none of this is to say that the trial court may not ultimately conclude that Grace Warren, Andrea Young, Rayetta Felton, and Aisha Daily are not trustworthy and that their testimony would be inadmissible at a new trial. But we lack the capacity to fully assess their credibility and must presume the truth of their affidavits unless they are affirmatively refuted by the record. Sanders, 2016 IL 118123, ¶ 32; Pitsonbarger, 205 Ill. 2d at 455, 467; Williams, 392 Ill. App. 3d at 370-71. We leave questions regarding these witnesses’ credibility to future postconviction proceedings, where the trial court can more fully evaluate the trustworthiness of this evidence.
¶ 100 The State cites Morales in support of its argument that the affidavits cannot support defendant‘s claims, because they are inadmissible hearsay. In Morales, the defendant filed a successive petition alleging that he was innocent, supported by six affidavits. Morales, 339 Ill. App. 3d at 558-59. One of those affidavits was from one of the defendant‘s codefendants, who pleaded guilty in exchange for his testifying against the defendant at trial. Id. at 557, 558. In that affidavit, the codefendant recanted his trial testimony and said that the defendant was not the shooter. Id. at 558. Three of the affidavits came from individuals incarcerated at the same facility as the defendant, who said that one of the victims of the shooting had recanted his identification of the defendant to them. Id. at 556-57, 558-59. The fifth affidavit came from an individual who was also incarcerated, but not at the same facility as the defendant. Id. at 558-59. This affidavit simply said that, to the best of the
¶ 101 The appellate court noted that the codefendant‘s recantation was “suspect,” citing the general proposition that prisoners often use threats to obtain “‘jail house‘” affidavits, as well as the fact that the codefendant‘s signature looked different on his affidavit than it did on other documents. Id. at 564. The court also noted that four of the affidavits contained hearsay, that four of the affidavits were from other inmates, and that two of them were “simply unpersuasive.” Id. at 565. Thus, the court concluded that the witnesses “were not credible” and that the affidavits were not “sufficiently conclusive” to support the defendant‘s claim. Id.
¶ 102 Morales is not persuasive here. As our supreme court has stressed, credibility determinations should not be made at postconviction pleading stages. Sanders, 2016 IL 118123, ¶¶ 33, 37, 42; Coleman, 183 Ill. 2d at 390-91. Thus, the court‘s conclusion in Morales that certain affidavits were inherently suspect or incredible runs counter to firmly established postconviction principles. See, e.g., Sanders, 2016 IL 118123, ¶¶ 33, 37 (rejecting notion that affidavits containing recantation testimony should be considered inherently unreliable at second-stage proceedings).
¶ 103 And leaving that aside, the affidavits in this case do not resemble the affidavits in Morales. Unlike the affidavits in Morales, these affidavits are not insufficiently conclusive: each recounted details about the affiants’ conversations with Madlock and Bledsoe, including how each affiant was familiar with them, and said that Madlock and Bledsoe consistently said that defendant was not present for the shooting. Moreover, in Morales, there was evidence at trial that the defendant had tried to convince a witness to lie and say he had an alibi, a fact that is not present in this case. Morales, 339 Ill. App. 3d at 557. Finally, in Morales, the defendant did not present evidence at trial that anyone else committed the crime, whereas this case involves new evidence that came to light after trial, which, if true, would significantly bolster defendant‘s trial evidence that Madlock shot Higgins. Thus, we do not find that Morales demands that we find that the affidavits in this case are unreliable.4
¶ 104 The State and dissent also claim that, because defendant‘s attorney was
¶ 105 The dissent argues that none of the affidavits contain sufficient facts that would make a different result on retrial likely. But the dissent‘s specific arguments with regard to each affidavit do not withstand scrutiny.
¶ 106 The dissent contends that Grace Warren‘s affidavit would not change the result on retrial because Warren did not say when and where precisely her conversation with Madlock occurred. But the dissent ignores the fact that, while Warren‘s affidavit does not state the specific date and time of her conversation with Madlock, it is likely that such foundation would be laid if and when she took the stand and was questioned at an evidentiary hearing.
¶ 107 The dissent takes issue with Young‘s affidavit because, according to the dissent, her testimony is not based on her personal knowledge. But Young‘s affidavit recounted a conversation she had with Madlock. She certainly had personal knowledge of that conversation, considering that she was one of the parties to it. While she was not present for the shooting, she would not be testifying as to the facts of the shooting—she would be testifying to the facts of Madlock‘s confession.
¶ 108 The dissent also claims that Young‘s affidavit “contains conclusions, not facts, for example, that Willie knew defendant ‘was in prison for a crime [he] didn‘t commit,’ and that defendant ‘was innocent.‘” Infra ¶ 243. But what Young‘s affidavit actually said was that, “during [the] conversation, Willie told us that he knew [defendant] was in prison for a crime [defendant] did not commit,” and that ”Willie said that he knew [defendant] was innocent because Willie was in a car *** when the shots were fired.” (Emphases added.) These statements are plainly not conclusions drawn by Young—they are the things that Madlock said to Young. Because Young simply recounted the things Madlock said to her, they are facts. They are not Young‘s conclusions regarding defendant‘s innocence.
¶ 109 With respect to Felton‘s affidavit, the dissent claims that it “does not state any facts about when the alleged shooting incident occurred,” about who the victim was, or “anything about the nature of the offense which could indicate which shooting defendant was ‘not present’ for” (infra ¶ 247), suggesting that we cannot even be sure what shooting Felton is talking about without these facts. But Felton‘s affidavit said that Bledsoe “said it was too bad [defendant] was in prison because he ***
¶ 110 Finally, the dissent takes issue with Daily‘s affidavit because she refers to the individual who confessed to her as “Willie” and not “Willie Madlock.” But, once again, context makes plain that she was referring to Willie Madlock. Daily attested that “Willie” spoke to her about defendant‘s case and admitted that he was the shooter. It is unlikely that another person named “Willie” would confess to the same shooting at the same time that Willie Madlock did. And Daily said that she brought “Willie” to defendant‘s postconviction attorney to confess, but “Willie” did not. Once again, this tracks with postconviction counsel‘s on-the-record assertion that Madlock was going to come into his office and confess, but refused to do so. It is not unreasonable to conclude that “Willie” was Willie Madlock. To the contrary, it is the only conclusion that can be drawn when the affidavits are read together and construed in light of the record.
¶ 111 As we have explained, when taking the affidavits as true and avoiding improper credibility determinations, these affidavits support defendant‘s trial theory and provide substantial evidence that both Madlock and Bledsoe repeatedly confessed to the shooting. We cannot say, at this stage, that such evidence would not change the result at a new trial. Any foundational defects in these affidavits can easily be addressed at the second stage, when defendant has had the benefit of counsel to draft new, more thorough affidavits.
¶ 112 We hold that the affidavits of Young, Daily, Felton, and Warren, taken as true at this initial stage of the postconviction proceedings, are sufficient to raise the probability of a different result on retrial.
¶ 113 c. Newly Discovered Evidence
¶ 114 Finally, we consider whether this evidence was newly discovered. Our supreme court has defined newly discovered evidence as evidence that has been discovered since the trial, and that the defendant could not have discovered sooner through due diligence. Ortiz, 235 Ill. 2d at 334. Typically, evidence of which the defendant was aware in earlier postconviction proceedings will not be considered newly discovered. See People v. Snow, 2012 IL App (4th) 110415, ¶ 21 (evidence available at earlier posttrial proceeding was not newly discovered); People v. English, 403 Ill. App. 3d 121, 133 (2010) (affidavit of alibi witness, of which defendant was aware when he filed his initial postconviction petition, was not newly discovered).
¶ 115 The State argues that the evidence supporting defendant‘s successive petition—the four affidavits attesting to the alleged confessions of Madlock and Bledsoe—was not newly discovered because defendant and his postconviction attorney knew of these four witnesses’ potential testimony during the first postconviction proceedings, and none of the affidavits suggests that any of the witnesses were unwilling to testify.
¶ 116 The State is correct that the record suggests that defendant and his attorney were well aware of the four affiants’ willingness to testify at the initial postconviction proceedings. Each of the affidavits, which we take as true, asserted that the witnesses spoke to defendant‘s counsel
¶ 117 But the record, along with defendant‘s allegations in the successive postconviction petition and the supporting affidavits, show more than that. First, they show not only that these witnesses were willing to submit affidavits at the initial postconviction proceeding, but that defendant went so far as to request new counsel during the initial postconviction proceeding because his counsel “failed to investigate thoroughly and to present evidence that could [have] cleared” him of the crime.
¶ 118 More significantly, the record also reveals no good reason why counsel, at the initial postconviction proceeding, failed to present these affidavits. He knew of the potential affiants, so he had to know that if he did not produce the affidavits at the initial postconviction hearing, he would never be able to present them, because he would run up against the very argument the State now puts forth at the successive petition proceedings—that the evidence is no longer newly discovered. There is nothing in the record to indicate that these witnesses were recalcitrant, as even the State concedes; the record, in fact, suggests the complete opposite. Counsel thus had nothing to lose by submitting these affidavits for the court‘s consideration at the first postconviction proceeding, and everything to lose by failing to submit them.
¶ 119 Counsel‘s stated reason for not doing so holds no water. As we have chronicled above, counsel‘s first explanation was that he could not get the affidavits of the “three witnesses” (likely Andrea Young, Rayetta Felton, and Aisha Daily) because he had to file defendant‘s petition before the statute of limitations expired. But the deadline for filing was in 2000, and the hearing on the State‘s motion to dismiss was in July 2004; counsel did not explain why, in the more than four years while defendant‘s postconviction petition was pending before the trial court—and the limitations period posed no problem—he did not amend the petition to include these affidavits.
¶ 120 His second explanation was a non-sequitur. It came after oral argument on the motion to dismiss, on the date of the court‘s ruling, in August 2004. By that time, defendant had filed his pro se motion to substitute counsel, claiming that his lawyer failed to adequately investigate and support his actual-innocence claim. When the trial court inquired of counsel about the motion to substitute, defense counsel explained his client‘s dissatisfaction thusly:
“I think that what he‘s alluding to is something that came up the last time we were in front of your Honor, which is that there is a witness, two witnesses who for a long period of time, and I mean years, had told family members and friends that they were willing to come in and provide an affidavit with respect to one of the two claims, but those witnesses while they came to our office never were willing to give an affidavit, and *** the [defendant‘s] mother, who was in attendance at most of the Court proceedings up until maybe five or six months ago, was aware of that because she came in with the gentleman once and left with him, knowing that he didn‘t sign the affidavit.”
¶ 121 The State agrees that counsel‘s reference to these “two witnesses,” one of whom came into counsel‘s office with defendant‘s mother, was not a reference to Andrea Young, Rayetta Felton, or Aisha Daily, but rather to Willie Madlock and most likely Germaine Bledsoe. This second
¶ 122 Thus, in the record, we are left with only one explanation why counsel at the initial postconviction proceeding failed to present the Young, Felton, Daily, and Warren affidavits. It was not because counsel found these witnesses lacking in credibility. It was not because they refused to cooperate. It was because he did not have time to submit them before the limitations period ran on the filing of the petition. We have no explanation for why he did not amend that petition during the four-year period while the petition pended in the trial court. At least two of these affidavits were prepared back in 2000, at the time the initial postconviction was filed, as the State itself notes. The record further reveals that defendant openly complained—to the point of requesting new counsel—about his lawyer‘s failure to investigate and support his actual-innocence claim. But the trial court denied that motion without even asking defendant, personally, to elaborate on his handwritten motion or to explain his position in any way. And then, of course, the trial court dismissed the original postconviction petition‘s actual innocence claim because it lacked the very supporting evidence that defendant was complaining about his lawyer for failing to submit.
¶ 123 Counsel‘s inexplicable failure to submit the Young, Felton, Daily, and Warren affidavits in support of defendant‘s actual-innocence claim left the trial court with no choice but to dismiss the initial postconviction petition. See
¶ 124 Postconviction counsel‘s performance is similar to that in People v. Johnson, 154 Ill. 2d 227 (1993). In that case, the defendant filed a pro se postconviction petition alleging ineffective assistance of trial counsel in that his trial attorney, among other things, failed to call three identified parole officers at his motion to suppress who could have given materially favorable testimony (id. at 242); failed to present testimony of a specific expert in California who would have refuted the State‘s expert (id. at 243-44); and was improperly prepared due to lack of time (id. at 244). Postconviction counsel was appointed for second-stage proceedings, but postconviction counsel failed to obtain the affidavits of the parole officers, the expert in California, or trial counsel. Id. at 243, 244. The trial court dismissed the petition without an evidentiary hearing. Id. at 232.
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¶ 125 On appeal from the denial of the postconviction petition, our supreme court reversed the dismissal and remanded for further proceedings, holding that postconviction counsel failed to provide reasonable assistance as required under the Act. Id. at 249-50. In language that directly applies to the facts of this case, the court wrote:
“At a minimum, counsel had an obligation to attempt to obtain evidentiary support for claims raised in the post-conviction petition. Because the allegations in the defendant‘s petition were not supported by affidavits, records, or other evidence, the trial court had no
choice but to dismiss the post-conviction petition without an evidentiary hearing.” Id. at 245.
¶ 126 While Johnson arose on appeal from the denial of the initial postconviction petition, the unreasonable assistance by postconviction counsel is quite similar to the allegations before us. In Johnson, postconviction counsel had the names of specific witnesses identified in the pro se postconviction petition but did not obtain their affidavits. In this case, the four affiants each swore that they met with postconviction counsel about their testimony, but counsel did not support the postconviction petition with their affidavits. In each case, the failure to obtain affidavits guaranteed dismissal of the petitioner‘s claim. Indeed, in Johnson, the State argued that even if the lack of supporting affidavits was one basis for dismissal, there were other bases for dismissal, as well, and the court could affirm on those grounds. Id. at 245. The supreme court rejected that argument, holding that “[w]hile it is true that the trial court might have found grounds, other than the absence of supporting affidavits, to dismiss the defendant‘s claims, it is not apparent from the record that the trial court did dismiss the claims on such grounds.” (Emphases in original.) Id. Here, in contrast, there is no question that the only reason the trial court dismissed the initial postconviction petition was the lack of supporting affidavits; the court stated that, “with regard tothe newly-discovered evidence claims, *** there are no affidavits in support of those claims ***. Those portions of the post-conviction that refer to newly-discovered evidence will be dismissed.” Defendant received no substantive consideration of his actual-innocence claim; the trial court was given nothing to consider.
¶ 127 A glaring difference between this case and Johnson is that in Johnson, the defendant first filed a pro se petition for postconviction relief, specifically detailing the witnesses that should have been called at trial and their purported testimony. Id. at 239. It was only after he did so that counsel was appointed for second-stage proceedings. Id. The difference, in other words, is that the defendant in Johnson had a record on which to complain about his postconviction counsel‘s unreasonable performance on appeal.
¶ 128 Here, in stark contrast, defendant retained a lawyer throughout the initial postconviction proceeding. Having a lawyer, but one who failed to present exculpatory evidence, closed every door to defendant. He could not file his own pro se motion with the affidavits. See People v. Serio, 357 Ill. App. 3d 806, 815 (2005) (“When a defendant is represented by counsel, he generally has no authority to file pro se motions, and the court should not consider them.“). He could not meaningfully challenge the reasonableness of his postconviction lawyer‘s performance on direct appeal, because (quite unlike Johnson) he had no record of these four witnesses, much less the substance of their purported testimony. He almost certainly would have run up against the doctrine that, where there is no evidence proving that postconviction counsel has failed to present available evidence to support a petition, courts assume that counsel “made a concerted effort” to obtain such evidence. Johnson, 154 Ill. 2d at 241; see also People v. Waldrop, 353 Ill. App. 3d 244, 250 (2004). And defendant could not have filed a successive postconviction petition challenging the effectiveness of counsel at the first postconviction hearing, because such a claim does not exist;there is no constitutional
¶ 129 Defendant could not submit the affidavits on his own; any challenge to his lawyer‘s performance on appeal from the dismissal of the initial petition would have been fruitless; and he was categorically barred from challenging his postconviction lawyer‘s effectiveness at a successive postconviction proceeding. About the only recourse available to defendant was to try to fire his lawyer and get a new one—which defendant tried to do, without success.
¶ 130 Under these circumstances, it would be fundamentally unfair to deny defendant an opportunity to present this evidence, to bar it because it is not technically “newly discovered.” In any real sense, the evidence of these four witnesses’ testimony was not available—not to a defendant whose lawyer would not submit the evidence or even create a record of the evidence. The ultimate underpinning of the actual-innocence, or fundamental-miscarriage-of-justice, exception is the due process clause of the
¶ 131 We recognize that no Illinois decision has held that evidence may be considered newly discovered by virtue of postconviction counsel‘s deficient performance. But when a petitionerseeks leave of court by alleging cause and prejudice, the deficient performance of his postconviction counsel may constitute cause. For example, in People v. Nicholas, 2013 IL App (1st) 103202, ¶¶ 43-46, we held that the defendant established cause because his postconviction appellate counsel failed to raise an issue that likely would have resulted in defendant‘s postconviction petition being remanded for second-stage proceedings. The defendant filed a pro se petition asserting that the 2006 report of the Special State‘s Attorney supported his claim that he had been physically abused into confessing. Id. ¶ 24. The trial court dismissed the petition and, on appeal, defendant‘s postconviction appellate counsel moved to withdraw, claiming that there were no meritorious issues to raise. Id. ¶ 25. The appellate court granted postconviction appellate counsel‘s motion. Id. Defendant then filed a successive postconviction petition, again alleging that his confession had been coerced. Id. ¶ 27. He argued that he established cause because his postconviction appellate attorney failed to present his claim, despite the fact that the 2006 report expressly implicated the detectives who interrogated defendant as officers who had been involved in the physical abuse of suspects at the Area 2 police station. Id. ¶ 43. We agreed that counsel‘s error showed that defendant‘s initial postconviction proceedings were fundamentally deficient and that this deficiency established cause. Id. ¶¶ 45-46.
¶ 132 We see no reason why a defendant alleging cause and prejudice (like the defendant
¶ 133 We also find guidance from federal case law. Our supreme court has often relied on federal decisions in discussing the actual-innocence or fundamental-miscarriage-of-justice doctrine. See, e.g., Pitsonbarger, 205 Ill. 2d at 459; People v. Hudson, 195 Ill. 2d 117, 124 (2001). Indeed, as the supreme court has noted, Illinois‘s formulation of the actual-innocence test is consistent with the federal version of that test. See Edwards, 2012 IL 111711, ¶¶ 24, 28 (noting that “federal courts employ this same ‘colorable claim’ formulation in the context of the fundamental-miscarriage-of-justice exception” and citing numerous federal decisions, including Schlup, 513 U.S. at 327). And federal case law defines “new” evidence in the same way that Illinois courts define newly discovered evidence. Compare Houck v. Stickman, 625 F.3d 88, 93-94 (3d Cir. 2010) and Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997) (defining new evidence as evidence that was not available at trial and could not have been discovered earlier through due diligence), with Ortiz, 235 Ill. 2d at 334 (” ‘newly discovered’ evidence[ ] [is] defined as evidence that has been discovered since the trial and that the defendant could not have discovered sooner through due diligence“).
¶ 134 In federal courts, a habeas petitioner may use a claim of actual innocence as a means to excuse his or her procedural default of a different, underlying constitutional claim, such as ineffective assistance of counsel. In other words, a habeas petitioner may argue that a federal court should hear the merits of his claim because he is innocent and, therefore, declining to consider the merits would be unfair. Such an actual-innocence claim is known as a “gateway” claim. SeeHerrera v. Collins, 506 U.S. 390, 404 (1993) (“[A] claim of ‘actual innocence’ is *** a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.“).
¶ 135 Federal courts have grappled with the dilemma posed when the actual-innocence test is used as a gateway to an ineffective-assistance-of-counsel claim premised on counsel‘s failure to present certain evidence at trial. In those cases, the petitioner obviously cannot show that the evidence was “new“—he cannot show that the evidence was unavailable at trial or could not have been discovered, because the very point of his underlying ineffectiveness claim is that it was available at trial to his attorney, or his attorney should have discovered it. In these situations, federal courts have excused the requirement that the evidence of actual innocence be new, holding that the evidence may be
¶ 136 While these federal cases are not directly on point, they stand for the proposition that the newly-discovered-evidence requirement may work an injustice if applied inflexibly, and that relaxation of this requirement may be necessary where a defendant‘s presentation of evidence is hindered by his attorney‘s performance. We think the case before us is just such an instance, where there is no question that defendant and his lawyer were aware of these four witnesses at the time ofthe initial postconviction proceeding, but counsel did not submit their affidavits to the court, guaranteeing the petition‘s dismissal without any consideration on the merits and precluding any meaningful appellate review of counsel‘s performance on appeal from that dismissal.
¶ 137 We hold that defendant‘s successive petition and supporting affidavits, taken as true, sufficiently establish that he could not have presented the affidavits in his initial postconviction proceedings due to his attorney‘s deficient performance, and, consequently, that the affidavits constitute newly discovered evidence.