A collateral attack on a sentence cannot be brought under Fed. R. Crim. P. 36 (United States v. Williams, No. 14-3570 (January 29, 2015))

United States v. Williams, No. 14-3570 (January 29, 2015). The defendant’s convictions and sentences were affirmed 15 years ago. He had subsequently filed a petition under 28 U.S.C. §2255, which was denied. The subject of this appeal was the denial of a “Motion to Correct Record” that Williams filed, seeking to reduce his sentence. The defendant’s motion “asks the district judge to revise the presentence report to show that he is not a career offend- er and to resentence him accordingly.” Pg. 2. The Government opposed the motion, arguing that it was “a disguised effort to conduct a successive collateral attack without this court’s permission, which §2255(h) requires.” The district court agreed, and dismissed the defendant’s motion for lack of jurisdiction.

Williams appealed, arguing that “Fed. R. Crim. P. 36 allows courts to correct clerical errors at any time.” Indeed, Rule 36 provides that “After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” However, the Seventh Court held that the defendant’s sentence was not a “clerical error.” The court reasoned that “A request for a lower sentence, not authorized by a retroactive change in the Sentencing Guidelines, is treated as a motion under §2255 if it is within the scope of §2255(a), no matter what caption is on the document.” Pg. 2, citing Melton v. United States, 359 F.3d 855 (7th Cir. 2004). Accordingly the district court “properly treated this as a §2255 motion and dismissed it for want of jurisdiction.” Pg. 2-3.

Dismissal of defendant’s post-conviction petition reversed where he made showing of perjury (People v. Haynes, 2015 IL App (3d) 130091)

People v. Haynes, 2015 IL App (3d) 130091 (January 13, 2015) Kankakee Co. Reversed and remanded. Terrance Haynes was convicted at trial of murder in connection with a shooting death. The defendant was convicted based on the eye-witness testimony of an 11-year-old who claimed that Haynes shot an unarmed man and the testimony of an 8-year-old who claimed that she saw Haynes arguing with another man and then went inside her home and heard a gunshot. The defendant testified that he shot the victim in an act of self-defense after the victim was attempting to pull a gun on him. Haynes was sentenced to 45 years in prison.

Haynes filed a pro se 2-1401 petition, alleging that his due process rights were violated where the State failed to disclose that the 11-year-old witness—the only actual occurrence witness in the case—was the cousin of the Assistant State’s Attorney who acted as co-counsel in the prosecution of the defendant. The trial court dismissed Haynes’ 2-1401 petition sua sponte, stating “that Jeneary [the ASA] ‘probably should have’ disclosed the relationship, but since it concerned only bias and witness credibility, the court would not order a new trial.” ¶ 8. The appellate court affirmed the sua sponte dismissal of the defendant’s petition on appeal.

Haynes, much to the credit of his persistence, filed a pro se post-conviction petition alleging that he “was denied due process where Jeneary suborned perjury when Hammond testified that the victim, Murrell, was not armed with a gun at the time of the shooting. Attached to the petition was an affidavit from Hammond stating, in its entirety: “I was the eye witness in the case People v. Haynes case # 99-CF-338[.] [I]n this case my cousin Michael Todd Jeneary was the State’s Attorney. I testified in open court that there was only one gun but it really was two, the guy that got shot also had a gun when he got shot but I was told not to say that he had a gun.” ¶ 9.

The trial court dismissed the defendant’s petition at the first stage, finding “that Hammond’s affidavit did not say that Murrell was holding a gun, nor did defendant testify Murrell was holding a gun. Instead, defendant stated that he saw a gun in Murrell’s waistband. The court concluded that there was no reasonable probability that the outcome of defendant’s trial would have been different had Hammond testified to seeing Murrell with a gun.” ¶10. Summary dismissal at the first stage of proceedings is appropriate only where the “petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). To survive summary dismissal, the petition must state merely the “gist” of a constitutional claim. People v. Collins, 202 Ill. 2d 59, 66 (2002). The trial court in this case found that Haynes’ petition, which, as they so rarely do, actually included an affidavit of this type from the State’s main witness and a cousin of the ASA, did not meet the gist of a constitutional claim necessary to proceed to second-stage under the PCHA.

The appellate court rightfully disagreed with the trial court that defendant’s allegations, taken as true (as the court must during first-stage review), did not present the gist of a constitutional claim necessary to avoid summary dismissal (“Because Hammond was the only eyewitness to the actual shooting, other than defendant, we find his sworn allegation that he ‘was told not to say that he (Murrell) had a gun’ establishes the gist of a constitutional claim.”). ¶ 13. The Court explained that “Defendant’s entire defense at trial revolved around the theory of self-defense and his testimony that Murrell had a gun on his person. Hammond, however, testified at trial that he did not see Murrell holding a gun or anything in Murrell’s hands. This testimony was extremely damaging to defendant’s defense. Hammond’s affidavit establishes, at least for purposes of first- stage proceedings, that this damaging testimony was untrue. Hammond, as the sole witness to the shooting, was the key witness in this case and thus there is a reasonable likelihood that his curtailed testimony affected the verdict.”). ¶ 14.

I agree with the appellate court’s original decision as to the 2-1401 petition that the existence of a family relationship between the State’s witness and the ASA, while it should have been disclosed to the State, would not necessitate a new trial because the defendant was unable to prove how that relationship impacted the witness’ trial testimony. However, when the defendant was somehow able to obtain the affidavit that he obtained from the same witness, who defendant had already established in a prior proceeding was related to the ASA (through a letter from the ASA conceding this), indicating that the only eye-witness in the case had committed perjury when testifying about key facts in the case, that pro se post-conviction should have absolutely survived first-stage dismissal, and the appellate court in this case was correct for deciding so. These are exactly the type of claims that the PCHA is designed for. The defendant should have, at minimum, received counsel to develop these claims and conduct an evidentiary hearing on them. The case was correctly reversed and remanded for this purpose.

Actual innocence claims and ineffective assistance claims have different time limits for filing, even when brought in the same petition. (People v. Flowers, 2015 IL App (1st) 113259 (January 6, 2015))

People v. Flowers, 2015 IL App (1st) 113259 (January 6, 2015) Cook Co. Affirmed. Defendant Jimmy Flowers was convicted of first-degree murder and aggravated battery with a firearm in 1993. He was sentenced to concurrent terms of 45 years on the murder charge and 20 years on the weapon charge. The defendant appealed his convictions and sentences, which were affirmed on appeal. Flowers filed a pro se petition for post-conviction relief in July of 2005, alleging newly discovered evidence to establish actual innocence. The defendant’s newly discovered evidence was an affidavit from a witness who indicated that Flowers was not at the shooting scene.

The Court appointed counsel at the second-stage to represent Flowers. Counsel filed a supplemental post-conviction petition in June of 2010, additionally claiming ineffective assistance of counsel, supported by a second affidavit from another witness who also maintained that she did not see the defendant at the scene of the shooting, either. Flowers alleged that his trial counsel was ineffective for failing to interview or call her as a witness. The State filed a motion to dismiss, which the court granted, “finding that the information contained in McCray’s affidavit was not newly discovered and that McCray’s testimony would not change the result on retrial. The court also found that, while the delay in bringing forth his ineffective assistance claim was not due to defendant’s culpable negligence, he failed to demonstrate that trial counsel was ineffective for failing to call Peterson as a witness.” ¶ 24. The defendant appealed, arguing that the trial court 1) “erred in dismissing his postconviction petition where he made a substantial showing of actual innocence. Specifically, defendant argues that an evidentiary hearing is warranted where alleged newly discovered evidence from occurrence witness Dujuan McCray shows that defendant was not involved in the shooting,” ¶ 28, and 2) defendant’s “pleadings and affidavits substantially established he was deprived of the effective assistance of trial counsel. Defendant specifically maintains that his trial counsel was ineffective for failing to interview and call eyewitness Karen Peterson.” ¶ 40.

The defendant’s pro se petition advanced to second-stage proceedings under the PCHA, where counsel was appointed and he fulfilled his duties under Ill. Sup. Ct. Rule 651(c). At the second stage of proceedings, all well-pleaded facts that are not positively rebutted by the trial record are taken as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). An evidentiary hearing is only required when the allegations of the petition, supported by the trial record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). At the second stage of a post-conviction “actual innocence” inquiry, the relevant question is “whether the petitioner has made a substantial showing of actual innocence such that an evidentiary hearing is warranted.” People v. Lofton, 2011 IL App (1st) 100118, ¶ 34. The evidence supporting a claim of actual innocence must be newly discovered, material and not merely cumulative, and of sufficiently conclusive character that it would probably change the result of a retrial. People v. Edwards, 2012 IL 111711, ¶ 32.

The appellate court concluded that “Even if we were to find that this evidence was newly discovered, defendant’s claim fails because it is neither material nor conclusive.” ¶ 34. The Court explained that “McCray’s affidavits, which clearly state that he did not see the actual shooting, but only the aftermath of the shooting…are insufficient to move this petition to a third-stage evidentiary hearing. These documents do not support defendant’s claim of actual innocence where, at most, they show that McCray was not at the scene of the shooting and has no personal knowledge about the shooting itself.” ¶ 37.

Before the court considered the ineffective assistance claim that defense counsel failed to interview and call as a witness another person who claimed that she did not see defendant at the scene of the shooting, the court considered the timeliness of this claim. Under section 122-1 of the Act, a postconviction proceeding may not be commenced outside the time limitation period stated in the Act unless the defendant alleges sufficient facts to show that the delay in filing his initial petition was not due to his culpable negligence. ¶ 43, citing 725 ILCS 5/122-1(c) (West 2010); People v. Rissley, 206 Ill. 2d 403, 420-21 (2003). Flowers maintained that he was not culpably negligent for the late filing of this claim when he had trouble contacting one of the witnesses who supplied an affidavit, due to her moving around over the years. The Flowers court was unmoved by the defendant’s excuse. The defendant had until 6 months after the denial of his PLA to file this claim in a post-conviction petition. He filed it 10 years later. Accordingly, he was culpably negligent in filing this claim beyond the time limitation and this claim was dismissed.

What’s interesting about this case is the appellate court’s different treatment of the time limitations for filing each claim. The defendant raised both an actual innocence claim and an ineffective assistance of counsel claim in the same petition. Section 725 ILCS 5/122-1(c) concerns the statute of limitations for filing post-conviction petitions. Claims of actual innocence are specifically exempted from the normal time limits, so it could be brought 10 years after the denial of the PLA without issue. However, the ineffective assistance claim, even though it was brought in the same petition as the actual innocence claim, was separately required to be brought within the normal limitation period prescribed by 5/122-1(c). It was brought about 10 years too late. Consequently, even though the actual innocence claim could be heard on the merits, while IAC claim could not be heard

State had actual notice of 2-1401 petition when ASA appeared in court, despite service being improper (People v. Lake, 2014 IL App (1st) 131542)

People v. Lake, 2014 IL App (1st) 131542 (December 29, 2014) Cook Co., 5th Div. Affirmed. Defendant Lamonte Lake was convicted at trial of first degree murder in 1996 and sentenced to 45 years DOC. His conviction and sentence were later affirmed on appeal, but defendant continued to challenge his conviction and sentence, without success, through post-conviction petitions, a petition for writ of mandamus, and through section 2-1401 petitions.

Lake’s latest appeal concerns the dismissal of a pro se 2-1401 petition in which he argued that the trial court erred by failing to admonish defendant that an MSR term would follow his prison sentence and by in fact adding that MSR term to his sentence. Defendant’s notice of filing of the petition indicated that he served the petition on the trial court and the State via U.S. mail. The defendant’s petition was received by the Clerk and docketed on January 29, 2013. The trial court acknowledged in open court on February 22, 2013, that the defendant had filed his 2-1401 petition. The court, in the presence of the Assistant State’s Attorney who had appeared for the State on February 22, 2013, continued the case until March 21, 2013, and then continued the case again until April 4, 2013. The trial court denied the defendant’s petition in a written order filed at the court date on April 4, 2013. Defendant appealed.

The Lake court rejected the defendant’s substantive MSR claim, relying on the Ill. Supreme Court’s recently decided decision in People v. McChriston, 2014 IL 115310, which held that the defendant’s MSR term was automatically added to his sentence, such that the trial court had no discretionary power in imposing it.

Notable in this decision is not defendant’s weak substantive claim, but the defendant’s argument that “that the trial court’s dismissal of his section 2-1401 petition was premature because he failed to properly serve the State with the petition” “because, according to Supreme Court Rule 105(b), service cannot be made through regular mail.” ¶ 11, citing Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). This is the exact same argument that the defendant made in People v. Alexander, 2014 IL App (4th) 130132 (December 18, 2014), discussed in detail earlier today in this post. The Lake court, like the Alexander court, acknowledged People v. Vincent, 226 Ill. 2d 1 (2007) and People v. Laugharn, 233 Ill. 2d 318 (2009), but declined to decide on the issue by the holding of these two cases because “neither Vincent nor Laugharn addressed the question of proper service on the State or considered whether the State may waive improper service by failing to object and whether the defendant may challenge his own error as a basis for remand.” ¶ 22.

Instead, the Lake court held that the sua sponte dismissal of defendant’s petition was proper under the First District’s decision in People v. Ocon, 2014 IL App (1st) 120912. “In Ocon, we looked to whether the object and intent of notice had been achieved. We held that the State had actual notice of the petition because an assistant State’s Attorney appearing on behalf of the Cook County State’s Attorney and the respondent for purposes of section 2-1401 was present in open court when the petition was docketed. ¶ 25, citing Ocon at ¶ 35. Accordingly, “Under Ocon, the State in the instant case had actual notice of defendant’s section 2-1401 petition when an assistant State’s Attorney was present in court on February 22, 2013. It opted not to respond to the motion and the petition was ‘ripe for adjudication’ after the 30-day period passed. The trial court, therefore, properly dismissed the petition on the merits on April 4, 2013.” ¶ 26.

Defendant tries to use his failure to properly serve State as basis for appeal. Does not end well for him. (People v. Alexander, 2014 IL App (4th) 130132)

People v. Alexander, 2014 IL App (4th) 130132 (December 18, 2014) McLean Co. Affirmed and remanded. Alvin Alexander was convicted of three counts of first-degree murder in 1992 and sentenced to life in prison. He spent the next 20-plus years filing post-conviction petitions and 2-1401 petitions in the trial court, and then appealing the (often sua sponte) denial of those petitions to the appellate court. “The issue in this appeal—defendant’s sixth appeal to this court—concerns defendant’s pro se document entitled “leave to file petition for relief from judgment” pursuant to section 2-1401(f) of the Civil Code, which defendant mailed to the McLean County circuit clerk on December 17, 2012.” ¶ 26.

Alexander’s 2-1401 petition argued that the trial court lacked personal jurisdiction over his case because the police lacked probable cause to arrest him. The defendant filed various handwritten notices and affidavits of service with his petition. The defendant’s petition was denied sua sponte as being frivolous as defined by 22-105 of the Civil Code. Defendant appealed, urging the appellate court to vacate the “trial court’s sua sponte denial of his December 2012 petition for relief from judgment, arguing that because he did not properly serve the State as required by Rule 105, his petition was not ripe for adjudication.” ¶32.

Based on Vincent and Laugharn, the law in Illinois is settled that (1) a trial court may dismiss a section 2-1401 petition on its own motion without benefit of responsive pleadings (Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23) and (2) a court may not adjudicate a section 2-1401 petition prior to the 30-day period in which the respondent can answer or otherwise plead (Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805). ¶ 41. Alexander argued on appeal that “because he sent his petition by regular mail, he failed to comply with the provisions of Rule 105 regarding proper service of his notice by either (1) summons, (2) certified or registered mail, or (3) publication. Defendant then asserts that because service was improper, the 30-day period for the State to answer or otherwise plead did not even begin. Primarily relying on Vincent and Laugharn, defendant claims that the court’s denial was premature because his petition was not yet ripe for adjudication.” ¶ 44.

The appellate court disagreed. “The flaw in defendant’s argument is that under Laugharn, the primary purpose of the 30-day period is to afford the State sufficient time to respond to a petitioner’s claims seeking relief from judgment before a trial court may sua sponte consider the petition. Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805. In other words, the court must allow the State time to make its position known. However, the 30-day period does not provide a sword for a petitioner to wield once a court—as in this case—does not find in his favor, especially given that, under defendant’s interpretation, the basis of his claim on appeal is his failure to comply with Rule 105. If we were to accept defendant’s rationale, a prisoner who uses regular mail to effect service upon the State will—upon appeal—be rewarded with a second bite of the apple if the court denies his petition on the merits. Indeed, no practical reason would exist to comply with the provisions of Rule 105 because to do so would foreclose that avenue of review, which effectively empowers a prisoner to persist in filing frivolous claims.” ¶ 46. “…We refuse to reward defendant for his knowing failure to comply with Rule 105. Defendant should not be able to serve a party incorrectly and then rely on the incorrect service to seek reversal.” ¶ 47.

The Court, in a separate section entitled “Defendant’s Abuse of the Court System,” went on to rebuke the defendant for his “numerous claims under the Postconviction Act, Habeas Corpus Act, and Civil Code in the hope of raising any issue—however obscure, repeated, or futile—that would end or curtail his current incarceration” that have been filed over the past 22 years.” ¶ 57. As the Court “previously concluded, defendant’s claim is without question frivolous, and he had no legitimate basis for appealing the court’s sua sponte denial of his jurisdictional claim. The fact that OSAD—in demonstrating its usual competence and professionalism—raised a colorable argument on appeal regarding service of process was merely fortuitous. It is readily apparent that without some consequences for his repeated frivolous filings, defendant will continue to burden the trial and appellate courts.” ¶ 58. The Court thereafter ordered defendant to show cause why he should not be sanctioned pursuant to Ill. SCR 375(b).

The Court concluded with this amusing gem in its “Epilogue”: “Surely, the judiciary cannot permit this situation to continue. Doing so simply empowers defendants like the one now before us, who is unhappy with his lot in life—sitting in prison merely because of his complicity in the execution of three innocent people—to continue to “attack the system” with groundless claims, thereby requiring the courts to squander their scarce resources. Indeed, we surmise that forcing the courts to do so is likely defendant’s key motivation.” ¶ 63.

Affidavit from State’s trial witness was “newly discovered” when he refused to speak to defense prior to trial (People v. White, 2014 IL App (1st) 130007 (December 18, 2014))

People v. White, 2014 IL App (1st) 130007 (December 18, 2014). Cook Co., 4th Div. Reversed and remanded. Defendant Kenyatta White was convicted of first degree murder following a bench trial in 2006. Defendant filed an initial post-conviction petition in 2012, alleging actual innocence. The court dismissed the petition as being frivolous and patently without merit at first-stage proceedings. However, the First District appellate court reversed and remanded for further proceedings.

The defendant’s post-conviction petition was accompanied by several affidavits from occurrence witnesses and one affidavit from defendant’s counsel on direct appeal. One of the witness’ affidavits avers that the defendant was at the scene of the shooting and that the defendant did not shoot the victim. White claimed that this witness had testified that defendant was the shooter at trial because he had been threatened into doing so.

During the first of three stages in the post-conviction process, “the court treats allegations of fact as true so long as those allegations are not affirmatively rebutted by the record. [Citation.] Any petition deemed frivolous or patently without merit must be dismissed. [Citation.] A petition is frivolous or patently without merit where it has no arguable basis either in law or in fact in that it is based on an indisputably meritless legal theory or fanciful factual allegations. [Citation.] An example of an indisputably meritless legal theory is one that is completely contradicted by the record. [Citation.] Fanciful factual allegations include those that are fantastic or delusional. [Citation.]” Thomas, 2014 IL App (2d) 121001, ¶ 47. To survive the first stage of postconviction proceedings, a petition claiming actual innocence based on newly discovered evidence must present evidence that is arguably “new, material, noncumulative *** [and] so conclusive it would probably change the result on retrial.” People v. Coleman, 2013 IL 113307, ¶ 96; Thomas, 2014 IL App (2d) 121001, ¶ 47.

The Court had to first decide whether the witness affidavit tending to exonerate defendant was “newly discovered evidence” such that the petition could survive first-stage dismissal. To constitute “newly discovered evidence” the evidence must have been unavailable at the original trial and evidence that could not have been discovered sooner through diligence. People v. Anderson, 402 Ill. App. 3d 1017, 1028 (2010). The State argued that defense counsel had access to this witness at trial, such that any statements he made could have been discovered prior to or during trial. However, the appellate court disagreed because the affidavit indicated that the State’s witness would not have spoken to the defense if contacted, and, “taking his statements as true and construing Jennings’ affidavit in favor of defendant, as we must, we find that no amount of diligence by defendant could have compelled Jennings to testify to the statements in his affidavit sooner.” The affidavit was therefore considered “newly discovered” evidence. Furthermore, the court held that the evidence was material and non-cumulative and at least arguably likely to change the result at trial. Accordingly, the defendant’s petition was adequately plead to survive first-stage dismissal, and the trial court’s order dismissing the petition was reversed and remanded for second-stage proceedings.

This case demonstrates the basic principle that a pro se post-conviction must only present a gist” of a constitutional claim to survive first-stage dismissal. The court here correctly decided that a State’s witness’ affidavit recanting his prior trial testimony (and giving a good reason for doing so) adequately stated a gist of a constitutional claim such that the defendant’s claims warranted further consideration after the appointment of counsel.

Why the timing of post-conviction petitions is important (People v. Simon, 2014 IL App (1st) 130567)

People v. Simon, 2014 IL App (1st) 130567 (December 5, 2014). Cook County. Affirmed. Defendant Damon Simon was convicted of first-degree murder in connection with a shooting death, and was sentenced to 50 years DOC. Simon filed a pro se post-conviction petition while his direct appeal was pending. That petition was dismissed at first stage, and the appellate court subsequently affirmed defendant’s conviction and sentence on direct appeal, as well as the denial of his post-conviction petition. Defendant then filed a successive post-conviction petition, asserting, among other claims, actual innocence. The trial court denied leave to file the petition because it found that Simon failed to meet the “cause-and-prejudice” test needed to file a successive petition under the Act. Simon appealed, and this decision followed, affirming the trial court’s dismissal of defendant’s petition.

Simon unsuccessfully argued on direct appeal that “(1) the trial court erred in barring evidence that supported defendant’s theory of self-defense, (2) the trial court relied on an erroneous recollection of the evidence in weighing witness credibility, and (3) the State failed to disclose a witness’ felony conviction and allowed the witness to provide perjured testimony when it failed to correct the witness’ misstatement of his criminal history.” ¶ 41. Thirty-nine days after sentencing, defendant filed a pro se post-conviction petition arguing “that his trial counsel was ineffective for (1) filing a posttrial motion without reviewing trial transcripts after requesting that defendant pay additional funds to obtain the transcripts and (2) failing to argue for second degree murder despite defendant’s specific request for him to do so.” ¶ 42. The petition was denied by the trial court as being frivolous and patently without merit. The appellate court affirmed.

The defendant then filed a petition for leave to file a successive post-conviction petition.

PRACTICE TIP: Note that defendants cannot just file successive petition ad infinitum. The Act requires the defendant to ask permission from the court to file the successive petition through a petition for leave. If the trial court grants the petition for leave, then the defendant can then file the successive petition. Crucial to the trial court’s decision in granting leave to file the successive petition is the defendant showing the court why the failure to bring these new claims in prior proceedings was essentially not his fault.

Simon’s petition for leave “claimed that there was cause for his failure to raise all claims in his initial postconviction petition in that the initial petition “was intended as a post- trial motion, and only labeled as a post-conviction petition after Petitioner was misguided to do so by a jail-house lawyer.” Defendant further claimed that without leave to file the successive petition, he would be “effectively denied the right to present constitutional claims of a serious magnitude, including allegations of ineffective assistance of counsel.” ¶44. Simon’s successive petition stated various claims of ineffective assistance of counsel. He also claimed that he had new evidence in the form of a witness affidavit that supported his self-defense theory asserted at trial. Leave was denied, and the defendant argued on appeal that “he should have been granted leave to file a successive postconviction petition because (1) he presented a claim of actual innocence based on the affidavit of Green, a “key State witness”; and (2) he demonstrated cause and prejudice for his failure to previously raise several meritorious claims concerning trial counsel’s ineffectiveness.” ¶48.

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) generally contemplates that a defendant will file only one postconviction petition. Ortiz, 235 Ill. 2d at 328. However, there are two ways to overcome the procedural bar to filing a successive petition: (1) the Pistonbarger cause-and-prejudice test; and (2) the Ortiz actual innocence test. People v. Ortiz, 235 Ill. 2d 319, 330 (2009) (describing two ways to overcome the procedural bar); People v. Pistonbarger, 205 Ill. 2d 444, 459 (2002). Simon sought leave under both exceptions.

As to the actual innocence claim, “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.” Edwards, 2012 IL 111711, ¶ 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 the light of the new evidence’ [citation].” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup, 513 U.S. at 327). The defendant must show that the evidence in support of his actual innocence claim is: (1) newly discovered; (2) material and not merely cumulative; and (3) of such a conclusive character that it would probably change the result on retrial. Ortiz, 235 Ill. 2d at 333. Evidence is considered “newly discovered” if (1) it has been discovered since the trial; and (2) the defendant could not have discovered it sooner through due diligence. Ortiz, 235 Ill. 2d at 334. “Evidence is considered cumulative when it adds nothing to what was already before the jury.” Ortiz, 235 Ill. 2d at 335. To determine whether the evidence “would probably change the result of retrial,” the court must conduct a case-specific analysis of the facts and evidence. (Internal quotation marks omitted.) Ortiz, 235 Ill. 2d at 336-37. ¶¶ 57-58.

The appellate court held that the affidavit that Simon characterized as “new” evidence supporting his claim of actual innocence was in fact not new because several of the witness’ statements were made at trial and the statements that the witness made in the affidavit were affirmatively rebutted by the trial record.

As to Simon’s argument that he passed the cause-and-prejudice test, the appellate court disagreed. Under section 122-1(f), leave to file a successive petition “may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2012). Section 122-1(f) further provides that: “(1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2012). Both elements of the cause-and-prejudice test must be satisfied in order for the defendant to prevail. Guerrero, 2012 IL 112020, ¶ 15. The appellate court held that Simon’s claims of ineffective assistance did not satisfy the second prong of the cause-and-prejudice test, in that they would not have “so infected the trial that the resulting conviction or sentence violated due process.” The appellate court therefore affirmed dismissal on this ground, too. Having determined that Simon failed to meet the actual innocence and the cause-and-prejudice requirements necessary to file a successive petition, the appellate court affirmed the trial court’s dismissal of the petition for leave.

What stands out to me about this case is not the rather vanilla claims that the defendant asserted throughout post-trial proceedings, but the defendant’s tragic misunderstanding of the law in presenting these claims to the court. The claims themselves might have actually gotten the defendant somewhere if he would have presented them in the right way. The problem started when he filed a post-conviction petition 39 days after sentencing while the case was on direct appeal. A defendant has 6 months after the denial of the PLA following the direct appeal to file a post-conviction petition. There was no reason for the defendant to rush it here as he did. He tried to backpedal out of the mistake by claiming that a jailhouse lawyer told him to characterize the filing as a post-conviction petition rather than a motion for new trial (which would have been untimely filed anyway at 39 days after judgment), but he burned his one chance at post-conviction petition when he didn’t have time to develop his claims (evidenced by the fact that his later petition contained an affidavit from a State’s witness, which defendant probably would not have been able to obtain just a few short months after trial). If the defendant had just waited until his conviction and sentence were affirmed on direct appeal before filing his post-conviction petition, then he would have had time to formulate and gather evidence for all of the claims that he made in his first and second petition; he wouldn’t have had to jump through the successive petition hoops; and he could also raise ineffective assistance of appellate counsel claims that he otherwise would not have been able to raise in his initial petition. But simply filing that first pro se petition too soon significantly restrained his ability to raise his otherwise decent substantive claims.