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