A defendant’s motion for discovery filed after the court denied leave to file a successive petition is untimely

The petitioner in People v. Howery, 2018 IL App (3d) 160603 appealed the denial of his pro se motion for leave to file a successive post-conviction petition and motion for discovery.

While serving a life sentence for four counts of first-degree murder, four counts of felony murder, and one count of aggravated assault, petitioner unsuccessfully appealed his convictions and sentence in 2007 (People v. Howery, No. 3-05-0674) and 2011 (People v. Howery, 2011 IL App (3d) 090650-U). Following both appeals, petitioner filed a pro se motion for leave to file a successive post-conviction petition, alleging that “new developments in the field of fire and arson forensic science constituted new evidence of his actual innocence.” Id. at ¶ 7. Petitioner argued these claims failed to materialize in previous postconviction petitions because the science did not exist at the time. Petitioner’s motion alleged that the expert witness testimony provided at his trial was “based on misleading and antiquated beliefs about fire and technology.” Id. at ¶ 7.

The circuit court found that petitioner’s pro se motion for leave and the successive post-conviction petition “failed to allege any prejudice” on behalf of the expert witness. Id. at ¶ 9. The court ultimately determined the aforementioned pleadings were nothing more than a “request for a court-ordered fishing expedition” and denied defendant leave to file his successive postconviction petition.

Petitioner then filed a subsequent motion to reconsider, alongside a free-standing motion for discovery; alleging that NFPA 921’s explanations of non-arson causes for multiple non-communicating fires can probably make sense of the two fires in the instant case, eliminating defendant as the arsonist, and proving defendant is an innocent man.” Id. at ¶ 10. Petitioner requested that the State produce a copy of NFPA 921. A key aspect of the testimony provided by the State’s expert witness on fire in petitioner’s initial trial pertained to the existence of two separate and unrelated fires in the home, which led the expert to opine that the fires were started deliberately. The court denied petitioner’s motion to reconsider and the free-standing motion for discovery on the grounds that petitioner failed to provide any legal authority to support the motion.

In its decision, the court evaluated each motion, for leave to file a successive post-conviction petition and for discovery, separately.

In order to obtain leave to file a successive postconviction petition, a petitioner must either establish cause and prejudice for failure to raise the claim earlier (People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002), or show actual innocence (People v. Tidwell, 236 Ill. 2d 150, 161 (2010).

The court noted that petitioner’s entire argument was dependent upon NFPA 921; yet, the petitioner failed to include NFPA 921 in either the motion for leave to file a successive post-conviction petition or the proposed successive post-conviction petition itself. The court ruled because the “appellate court cannot consider evidence for the first time on appeal without it first being attached to defendant’s post-conviction petition for initial scrutiny and evaluation at the trial court level,” id. at ¶15, it was not properly before the court.

Thus, the court found petitioner was unable to present evidence of actual innocence and further, failed to identify the evidence that he believed was unreliable; how fire and arson forensic science had changed since his trial; how the new developments affected the fairness of the trial; or how these developments demonstrated his innocence. Had the petitioner and/or counsel adequately met the listed standards, the motion to file a successive postconviction petition would likely not have been denied. However, because the court held that petitioner failed to meet either standard required to obtain leave to file a successive postconviction petition, the court did not err when it denied petitioner’s motion.

In the decision regarding the petition for free standing discovery, the court determined that “because defendant filed his motion for discovery after the circuit court denied defendant leave to file a successive postconviction petition…the discovery request was untimely.” Id. at ¶18. Had the motion for discovery been filed prior to the denial of petitioner’s petition, the court would likely have ruled the motion timely.

Yet because the petition was ruled untimely, the court further determined the petition was procedurally improper, because a motion for discovery is neither a motion to reconsider or challenge the denial of an appeal, as stipulated by People v. Blair, 215 Ill. 2d 427, 451 (2005) following a denied petition. The court determined that “should defendant choose to file a new motion for leave to file a successive post-conviction petition, he can incorporate NFPA 921 into his pleadings”, id. at ¶22, as petitioner’s appellate counsel is in possession of NFPA 921.

Ultimately, the judgement of the circuit court of Kankakee County was affirmed by the Third District Appellate Court of Illinois.

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