Failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal of his 2-1401 petition

The appellant in People v. Roberson, 2019 IL App (1st) 170757 appealed the decision of the Circuit Court of Cook County dismising his pro se petition for relief from judgement (under section 2-1401 of the Code of Civil Procedure) on the grounds that the dismissal was premature since it was within 30 days of the petition’s filing. The Appellate Court of Illinois First District ultimately affirmed the decision of the Circuit Court of Cook County.

Appellant Roberson was charged with one count of armed habitual criminal and two counts of unlawful use of a weapon by a felon, related to an incident in December 2008. Id. at ¶ 3. At trial, one of the police officers who executed the search warrant resulting in Roberson’s arrest–Officer Kasper–testified that Roberson confessed to the purchase and possession of an illegal firearm found within his apartment. Id. at ¶ 5. The trial court found Roberson guilty on all counts and sentenced him to 20 years’ imprisonment. Id. at ¶ 6. On direct appeal, Roberson unsuccessfully argued that his trial counsel was ineffective for failing to file a pre-trial motion challenging the veracity of the allegations in the search warrant (a Franks hearing) and failing to move to suppress his statements regarding the location of the recovered firearm. Id. at ¶ 7. The Appellate Court of Illinois First District affirmed on direct appeal.

Following his direct appeal, Roberson then filed a pro se post-conviction petition, arguing, inter alia, that his confession was coerced, and he was not properly Mirandized, and that his sentence constituted an abuse of discretion. The circuit court summarily dismissed the petition as “frivolous and patently without merit.” Id. at ¶ 8. Upon dismissal, Roberson filed a pro se section 2-1401 petition, repeating the arguments that he was improperly Mirandized and that his sentence lacked statutory authority. Id. at ¶ 9. This petition was accompanied by a Proof/Certificate of Service, dated December 7, 2016, from Dixon Correctional Center, where appellant Roberson was imprisoned. Court records show multiple copies of the petition were circulated before being “filed” on January 3, 2016 (corrected by hand to say January 3, 2017) and January 4, 2017. Id. at ¶ 10. The petition was dismissed sua sponte on February 3, 2017, with a noted filing date of January 4, 2017, for being “frivolous and patently without merit.” Id. at ¶ 11. This appeal followed.

Roberson contended on appeal that the court prematurely dismissed his section 2-1401 petition within the 30-day waiting period that began after the petition was filed on January 4, 2017. Id. at ¶ 13. The State’s response to Roberson’s argument was that the petition was filed on January 3, 2017, transferred to another court on January 4, 2017, and then subsequently re-filed on January 4, 2017. With a filing date of January 3, 2017, the State argues the petition’s dismissal on February 3, 2017 was timely, as it came more than 30 days following the filing. Id. at ¶ 13.

The Court observed that both timeliness arguments were predicated upon the theory that the 30-day response period begins with the date the petition was filed. However, as noted by the Supreme Court, the 30-day response period begins on the date the State receives notice, not the date of filing. Id. at ¶ 17. Yet, because Roberson failed to serve notice on the State, the Court was required to “presume the circuit court’s order conforms with the law,” as the burden of presenting a sufficiently complete records falls upon the appellant. Id. at ¶ 18. Moreover, the Court held that failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal. Id at ¶ 18.

Because of Roberson’s failure to properly serve the State and his resultant inability to establish that the circuit court’s sua sponte\dismissal was untimely, the Appellate Court of Illinois First District presumed the circuit court’s order conformed with the law and affirmed the judgment of the Circuit Court of Cook County.




Appellate court affirms denial of post-conviction petition that failed to make a showing of actual innocence

The appellant in People v. Shaw, 2019 IL App (1st) 152994 appealed the decision of the Circuit Court of Cook County dismissing his petition for post-conviction relief, arguing that the trial court erred in dismissing his petition because he made a substantial showing of actual innocence when he presented an affidavit averring that the deceased victim had previously admitted to misidentifying him and had named another man as the offender.

Germaine Shaw pled guilty and was sentenced to 28 years’ imprisonment for aggravated criminal sexual assault and 6 years’ imprisonment (to be served concurrently) for each home invasion offense, related to acts committed against multiple victims. Id. at ¶ 9.

Shaw did not file a direct appeal, but he moved to withdraw his plea three years after pleading guilty in 2005. Id. at ¶ 10. The motion was denied by the trial court for failure to file it within 30 days of sentencing. In 2007, Shaw filed a pro se motion to reconsider or reduce his sentence, arguing that the sentence should be reduced because DNA was not found in the sexual assault. This motion was denied by the court. In 2010, the trial court also denied a section 2-1401 petition for relief from judgement filed by Shaw. Id. at ¶ 11.

In 2013, Shaw filed a pro se post-conviction petition under the Post-Conviction Hearing Act (the Act), arguing that (1) police officers brutalized him until he signed a “false confession,” (2) his attorney was ineffective for threatening to withdraw as counsel unless he pled guilty, and (3) newly discovered evidence supported his claim of actual innocence. Specifically, defendant alleged that in February 2013, Andrew Coe, the grandson of a friend of M.J. (the victim of the sexual assault) informed him that M.J. admitted to Coe that she identified the wrong person as her attacker. Id. at ¶ 12.’

In support of the claim of actual innocence in the petition, Shaw included a notarized affidavit from Coe, which averred that on December 23, 1999, his grandmother’s friend, M.J., told him that she had been “assaulted and strong armed of several belongings” by “Anthony Benjamin,” whom she previously paid to do work around her house. Further, Coe stated that M.J. told him that after the incident she was “coerced to pick some gentlem[a]n out of a lineup that she never saw or knew,” and the officers forced her to pick someone who “wasn’t the perpetrator.”

Coe further averred that M.J. “express[ed] grief” for the defendant but her family pressured her not to “correct the mistake.” Coe intentionally avoided involvement in defendant’s case but eventually decided to “come forward” because he felt it was his “duty as a born-again Christian to seek justice for both victims.” Id. at ¶ 13. Shaw also included his own notarized affidavit speaking to the brutality he suffered at the hands of unidentified officers and the threats that his defense lawyer made to withdraw if he did not plead guilty. Id. at ¶ 14.

After the trial court advanced the petition to second-stage proceedings, the State filed a motion to dismiss, arguing that defendant’s post-conviction petition was untimely and that his actual innocence claim was uncorroborated. The State further argued that defendant’s claim regarding police brutality was waived when he pleaded guilty, and he failed to demonstrate ineffective assistance of counsel where his plea was knowingly and voluntarily made. Id at ¶ 15.

The trial court agreed with arguments made by the State that Shaw’s coerced confession claim was untimely under the Act and had been waived by pleading guilty. Moreover, the court concluded that the ineffective assistance of counsel claim was also untimely and rebutted by the record, which showed he pled guilty of his own free will. Finally, the trial court ruled that Shaw failed to make a substantial showing of actual innocence, because Coe’s affidavit was inadmissible hearsay and would not change the result of a trial. Id. at ¶ 16. Ultimately, the court granted the State’s motion to dismiss. This appeal followed.

On appeal, Shaw did not challenge the dismissal of any claims other than those pertaining to his substantial showing of actual innocence. Shaw alleged that the court erred in dismissing his petition because a substantial showing of actual innocence was established by attaching Coe’s affidavit. Id. at ¶ 17.

The appellate court noted that to succeed on a claim of actual innocence, a petitioner must present evidence that is (1) newly discovered, (2) material and noncumulative, and (3) of such a conclusive character that it would probably change the result on retrial (noting that this case includes a special circumstance, as Shaw pled guilty and did not ever proceed to trial). Id. at ¶ 20-21. Moreover, after careful and extensive consideration, the the court concluded that a freestanding actual innocence claim may be brought after a guilty plea, and that a defendant does not need to challenge the knowing and voluntary nature of his or her plea to bring such a claim (as would have been barred in other states, considering the fact that Shaw did not challenge the voluntary nature of his guilty plea on appeal). Id. at ¶ 44. The appellate court held similarly regarding actual innocence claims, stating “no person convicted of a crime should be deprived of life or liberty given compelling evidence of actual innocence.” Id. at ¶ 52. In doing so, the Appellate Court substantively disagreed with the most recent analysis in Reed.

That being said, the Appellate Court ultimately agreed with the State (and to a certain degree, Shaw) that the evidence presented in support of Shaw’s claim of actual innocence amounts to inadmissible hearsay would not change the result of a trial–thus, failing to make a substantial showing of actual innocence. Id. at ¶ 64. Further, the court ruled that even without engaging in any credibility determinations, the evidence presented in the Coe affidavit was not of the character that would support an actual innocence claim because Coe is a non-eyewitness, who averred to a conversation he had with the victim more than 13 years before he inscribed his affidavit. Id. at ¶ 71.

As a result, the appellate court found that Shaw had not made a substantial showing of a constitutional violation that warranted a third stage evidentiary hearing and affirmed the decision of the Circuit Court of Cook County to dismiss his post-conviction petition for relief. Id. at ¶ 74-75.