Tag Archives: Actual Innocence

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

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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.

 

 

 

 

 

 

First District reverses order denying successive petition raising actual innocence claim

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The appellant in People v. Galvan, 2019 IL App (1st) 170150, appealed the decision of the Circuit Court of Cook County to dismiss his third-stage successive post-conviction petition on the grounds that the trial court misapplied the standard and made improper findings in regard to the petitioner’s actual innocence claims and failed to address several arguments related to Galvan’s denial of due process claims. The Appellate Court of Illinois First Judicial District reviewed and ultimately reversed the judgment of the trial court, granted appellant’s third-stage successive postconviction petition, and remanded.

Following conviction at a jury trial for aggravated arson and first-degree murder, appellant, John Galvan was sentenced to natural life in prison without parole. Id. at ¶ 4. Galvan was 18 years old at the outset of his jury trial. Galvan’s arrest, prosecution and subsequent conviction were the byproduct of eyewitness testimony from an alleged witness, Michael Almendarez, obtained after a 10-to-12 hour interrogation by detectives James Hanrahan and Victor Switski. Id. at ¶ 5-6. Almendarez’s testimony was the subject of a denied pre-trial motion to suppress by Galvan’s counsel, which alleged the confession was forced by detectives and materially false. Id. at ¶ 5.

At trial, Galvan testified that his confession, signed following his initial interview with Detectives James Hanrahan and Victor Switski, was coerced by Detective Switski, following threats of the “death penalty,” an instruction to blame one of his co-defendants, threats of physical assault, and a promise of release. Id. at ¶12. During closing arguments at trial, defense counsel argued that shortly before the fire, there was a “young woman in the street threatening to burn down [the] building.” Id. at ¶ 13. Galvan was found guilty of all counts by the jury. Id. at ¶ 14.

On direct appeal, appellant’s conviction was upheld by the appellate court. Id. at ¶ 16. Galvan’s subsequent post-conviction petition, which alleged that the eyewitnesses were high on the night of the fire and would not have been able to identify appellant, was dismissed by the circuit court and upheld on appeal. Id. at ¶ 16. Between 2001 and 2004, appellant filed a pro se post-conviction petition (in 2001) and three supplemental petitions (in March 2003, February 2004, and October 2004), which included claims of actual innocence based on a newly executed affidavit by Partida, stating that appellant was not present the night of the arson and murder. Id. at ¶ 17.

At the third-stage evidentiary hearing, Partida testified to the contents of the affidavit, provided his eyewitness account of the fire, and detailed the attempts by detectives to get him to incriminate individuals (Galvan and codefendants) who he had not seen at the location of the fire. Partida also testified to factual innacuracies and exclusions in the two reports produced following his interviews with detectives. Id. at ¶ 19-24. A witness by the name of Mary Jane Borys testified that Lisa Velez, a tenant of the building which burned down in the arson, was affiliated with the Latin Kings gang and had expressed her intent to burn down the building with the victims inside. Id. at ¶ 26. Borys testified to multiple interviews with detectives where she informed them of statements made by Velez. Id. at ¶ 28.

Galvan provided further testimony regarding his coerced confession, detailing threats of violence, actual physical violence and the detective’s statement that he would “shoot [him] himself” if he did not confess. Id. at ¶ 36. Galvan also testified to an interaction with Assistant State’s Attorney (ASA) Joel Leighton, who asked him to corroborate the confession and left the room when he would not. Following an additional alleged beating by Detective Switski, ASA Leighton returned to the room and Galvan confirmed the accuracy of the confession. Id. at ¶ 39.

Almendarez testified to similar treatment by Detectives Switski and Hanrahan. Id. at ¶ 42. Almendarez testified that “Detective Switzki’s threats and abuse resulted in him signing a statement implicating [Galvan] and [codefendant] because he believed he could go him if he did so.” Id. at ¶ 43. Multiple other witnesses testified, in great detail, to signing false confessions after being interrogated and physically abused (in similar fashion to Galvan’s alleged abuse) by Detective Switski. Id. at ¶ 44-52. Switski denied any recollection of the events pertaining to the testimony of Galvan and all other witnesses and ASA Leighton denied seeing injuries on Galvan or the codefendants. Id. at ¶ 53-54. A fire and explosion expert, Dr. Russell Ogle, testified that there was no evidence that the fire started at the porch, as stated in the police report of the arson, nor could the fire have been started by a cigarette. Dr. Ogle testified that the most likely place for the fire to have begun was the stairwell. Id. at ¶ 55.

The trial court found Partida’s testimony to be “untruthful and not credible” based on prior affidavits; found that the outcome of the case would not have been different if the jury had heard Partida’s testimony (preventing a finding of ineffective assistance of counsel); found that any testimony regarding Velez’s expressed intent to burn down the building was improper hearsay and was not “newly discovered evidence”; and, concluded that Galvan failed to meet the necessary burden of proof to entitle him to post-conviction relief. Id. at ¶ 56-58. The trial court observed that all witnesses had, at one point, been convicted of murder (despite several of these convictions being overturned on appeal). Id. at ¶ 59. Galvan’s post-conviction petition was subsequently denied and became the subject of this appeal. Id. at ¶ 60.

The First District noted that “at a third-stage evidentiary hearing, the trial court acts as fact finder, determining witness credibility and weight to be given particular testimony and evidence” and should not re-decide the petitioner’s guilt.  Id. at ¶ 65, 67. The appellate court’s responsibility at this stage is to determine whether the circuit court’s denial of a post-conviction petition following an evidentiary hearing is manifestly erroneous, which is defined as “error which is clearly evident, plain, and indisputable.” Id. at ¶ 65.

As such, in their analysis of the appeal, the appellate court outlined the relevant questions in determining whether the trial court’s denial was manifestly erroneous: “(1) whether any of the officers who interrogated petitioner may have participated in systematic and methodical interrogation abuse and (2) whether those officers’ credibility at petitioner’s suppression hearing or at trial might have been impeached as a result.” Id. at ¶ 68. The appellate court found that the credibility findings made by the trial court, listed as justification for their denial, were not relevant to the issue of whether Switski’s credibility at the suppression hearing might have been impeached. In fact, the court found that “those officers’ credibility at petitioner’s suppression hearing or at trial might have been impeached as a result.” Id. at ¶ 74. Further, the appellate court found that “without petitioner’s confession, the State’s case was nonexistent.” Id. at ¶ 74.

Additionally, the appellate court determined there were “several other bases for which we believe the trial court could have granted petitioner’s successive postconviction petition following the third-stage evidentiary hearing,” most compelling of which was the newly discovered evidence regarding Velez’s motive. Id. at ¶ 75. The court found many of Galvan’s additional claims for postconviction relief compelling. As a result, the appellate court found the trial court’s conclusion manifestly erroneous and reversed and remanded with directions that Galvan receive a new suppression hearing and, if necessary, a new trial. Id. at ¶ 79.

Court re-affirms that free-standing innocence claim cannot be brought after guilty plea

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On May 8, 2019, the Appellate Court of Illinois Fourth District, having previously denied appellant Demario D. Reed’s appeal of the Macon County Circuit Court’s decision to deny post-conviction relief in People v. Reed, 2019 IL App (4th) 170090, re-affirmed their judgment (originally filed on March 27, 2019) and denied a subsequent petition for re-hearing.

The court’s background and analysis in the modified opinion remains largely the same, yet the analysis section is augmented significantly by their revised consideration of the precedential value of People v. Shaw, 2018 IL App (1st) 152994.

Shaw was initially cited by appellant in his appellate brief for its determination that “a freestanding actual innocence claim may be brought [in a postconviction proceeding] after a guilty plea, and that a defendant need not challenge the knowing and voluntary nature of his or her plea to bring such a claim.” Id. at ¶ 16. The Court originally “disagreed with Shaw’s holding that a postconviction claim of actual innocence may be brought after a valid guilty plea for three reasons.”

These three reasons were:

“First, the court believed the application of the Washingtontest inShawis like “trying to jam a square peg into a round hole” as (the supreme court dictates that) all postconviction claims of actual innocence must meet the Washingtonstandard and guilty-please are “inherentlyincapable of meeting the Washingtonstandard.” Id. at ¶ 36.

Second, the court held that “actual innocence would be a no jurisdictional defense to the charge and a guilty plea waives all nonjurisdictional defenses or defects.” Id. at ¶ 37. The court concluded that “[i]f, by a postconviction claim of actual innocence, defendant now can obtain a trail, [the] admonition (of relinquished rights to a trial of any kind) would have been false.” Id. at ¶ 37.

Third, the court held that “defendants cannot knowingly and voluntarily plead guilty in the trial court and then turn around and complain to reviewing court that the trial court found them guilty” as that would be duplicitous. Id. at ¶ 38. Further, the court argued that even in the event that defendant’s conviction was a constitutional error, “it was an error he himself invited by pleading guilty” and “the use of invited error as a basis for postconviction relief is clearly frivolous and patently without merit.” Id. at ¶ 38. In support of this, the court cited People v. Harvey, 211 Ill. 2d 368, 385 (2004), which ruled “Defendant is estopped from “us[ing] the exact ruling or action [he] procured in the trial court as a vehicle for reversal on appeal.” Id.at ¶ 38.”

However, while the reasons cited by the court were sufficient to hold “because the validity of the guilty plea entered by defendant was not called into question upon appeal, that, de novo, appellant remains bound by his guilty plea and that “his claim of actual innocence cannot be entertained,” id. at ¶ 2,” they became inconsequential following the First District’s withdrawal of their opinion in Shaw, on March 19, 2019. Id. at ¶ 16. Following the First District’s withdrawn decision, the Court determined that “[a] withdrawn opinion lacks precedential value.” People v. Jordan, 103 Ill. 2d 192, 205 (1984).” Id. at ¶ 16.

As a result of Shaw’s lack of precedential value, the Court turned to the only Illinois case which “has addressed the question of whether, in a postconviction proceeding, a defendant may raise a claim of actual innocence after being convicted on a valid, i.e., knowing and voluntary, guilty plea,”People v. Barnslater, 373 Ill. App. 3d 512 (2007). Id. at ¶ 17. Notably, the Court had initially looked to Barnslater (in the initial opinion) as more substantial precedent in the consideration of appellant’s grounds for appeal because it had cited Supreme Court precedent from People v. Cannon, 46 Ill. 2d 319, 321 (1970), noting, “when the supreme court speaks, our duty is to obey.” Id.at ¶ 19. Following the withdrawal of the First District’s decision in Shaw, Barnslater became the only precedent on the matter.

As such, the Court’s analysis remained largely the same. In the consideration of Barnslater, the court held that:

“only in the event of a coerced plea agreement would there be sufficient constitutional deprivation to justify postconviction relief,” and “not where he claims actual innocence in the face of a prior, constitutionally valid confession of guilt.” Id.at ¶ 17.

Despite acknowledging the cited passage from the ruling may have been obiter dictum (a “remark or expression of opinion that a court uttered as an aside, and is generally not binding authority or precedent within the stare decisis rule,”), because there was no Supreme Court precedent establishing that “a postconviction claim of actual innocence can be entertained after a guilty plea,” the Court held that “the obiter dictum of Cannon is still the law.” Id. at ¶ 21.

The remainder of the court’s analysis remained the same:

“the court used the Washington evidentiary standard set in People v. Washington, 171 Ill. 2d 475, 489 (1996), that all evidence of actual innocence brought under the Post-Conviction Hearing Act must be “new, material, noncumulative[,] and, most importantly, of such a conclusive character as would probably change the result on retrial” in their evaluation of Reed’s claims of actual innocence. Id.at ¶ 23. As a result, the court held that in the event of a negotiated guilty plea, the defendant in that case would never be in a position for retrial as a voluntary guilty plea involves waving the rights to a jury trial and proof beyond a reasonable doubt. Moreover, the court held that because a guilty plea releases the State from their evidentiary burden, “[e]vidence, in general, would have been immaterial and superfluous.” Id.at ¶ 24.

Ultimately, the court held, because the validity of the guilty plea entered by defendant was not called into question upon appeal, that appellant remains bound by his guilty plea and that “his claim of actual innocence cannot be entertained.” Id.at ¶ 2. In support of this ruling, the court cited People v. Pendleton, 223 Ill. 2d 458, 473 (2006) and People v. Cannon, 46 Ill. 2d 319, 321 (1970).

As a result, the Appellate Court of Illinois Fourth District affirmed the ruling of Circuit Court of Macon County No. 14-CF-1205 and awarded the State $50 in costs against defendant.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Defendant cannot claim actual innocence on post-conviction without also challenging the validity of his guilty plea

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The appellant in People v. Reed, 2019 IL App (4th) 170090  appealed the decision of the Macon County circuit court to deny post- conviction relief to defendant, Demario Reed.

Reed was serving a prison sentence of 15 years for armed violence (720 ILCS 5/33A-2(a), 33A-3(a) (West 2014)), when he filed a post-conviction petition, arguing that “newly discovered evidence he presented to the court in the postconviction hearing proved, clearly and convincingly, that he actually was innocent” of the charges for which pled guilty as part of a negotiated plea deal with the State. Id. at ¶ 1.

Prior to this appeal, Reed filed a successive post-conviction petition in which he claimed actual innocence of the count for which he had entered a negotiated guilty plea. He submitted “proof of his innocence, an affidavit by his codefendant, Davie Callaway,” and stated that Reed was unaware of the existence of the cocaine within Callaway’s possession, which a key piece of evidence in the charges against Reed. Id at ¶ 10. The petition advanced to third stage post-conviction proceedings after the State failed to dismiss the petition.

The circuit court denied Reed’s successive petition for post-conviction relief on the grounds that the court “court simply did not believe Callaway”. Id at ¶ 13. In their opinion, the court wrote: “The court *** does not find that the testimony of Mr. Callaway to be credible as [he] did not come forward with this information until after he pled, and he and the petitioner were in prison together.” Id at ¶ 14. As a result, the court held that appellant did not have establish a colorable claim of actual innocence. This appeal followed.

On appeal, appellant cited People v. Shaw, 2018 IL App (1st) 152994, ¶ 41, a First District cased that held that “a freestanding actual innocence claim may be brought [in a postconviction proceeding] after a guilty plea, and that a defendant need not challenge the knowing and voluntary nature of his or her plea to bring such a claim.” Id. at ¶ 16. Yet, upon the Court’s review, it uncovered that another division of the First District had reached the opposite conclusion, and cited Supreme Court precedent holding that only in the event of a coerced plea agreement would there be sufficient constitutional deprivation to justify post-conviction relief, and “not where he claims actual innocence in the face of a prior, constitutionally valid confession of guilt.” Id. at ¶ 17. The court found this precedent to be more substantial in the consideration of appellant’s grounds for appeal because “when the supreme court speaks, our duty is to obey.” Id. at ¶ 19. Moreover, the court was unaware of any other decision by the Supreme Court which stated that a post-conviction claim of actual innocence could be entertained after a valid plea of guilty.

Further, the court used the Washington evidentiary standard set forth in People v. Washington, 171 Ill. 2d 475, 489 (1996) that all evidence of actual innocence brought under the Post-Conviction Hearing Act must be “new, material, noncumulative[,] and, most importantly, of such a conclusive character as would probably change the result on retrial” in their evaluation of Reed’s claims of actual innocence. Id. at ¶ 23. As a result, the court held that in the event of a negotiated guilty plea, the defendant in that case would never be in a position for re-trial, as a voluntary guilty plea involves waving the rights to a jury trial and proof beyond a reasonable doubt. Moreover, the court held that because a guilty plea releases the State from their evidentiary burden, “[e]vidence, in general, would have been immaterial and superfluous.” Id. at ¶ 24.

In the court’s consideration of appellant’s use of People v. Shaw, 2018 IL App (1st) 152994, the court disagreed with Shaw’s holding that a postconviction claim of actual innocence may be brought after a valid guilty plea for three reasons.

First, the court believed the application of the Washington test in Shaw is like “trying to jam a square peg into a round hole,” as the supreme court dictates that all post-conviction claims of actual innocence must meet the Washington standard and guilty pleas are “inherently incapable of meeting the Washington standard.” Id. at ¶ 36.

Second, the court held that “actual innocence would be a nonjurisdictional defense to the charge and a ‘guilty plea waives all nonjurisdictional defenses or defects.’” Id. at ¶ 37. The court concluded that “If, by a postconviction claim of actual innocence, defendant now can obtain a trial, that admonition would have been false.” Id. at ¶ 37.

Third, the court held that “defendants cannot knowingly and voluntarily plead guilty in the trial court and then turn around and complain to a reviewing court that the trial court found them guilty,” as that would be duplicitous. Id. at ¶ 38. Further, the court argued that even in the event that defendant’s conviction was a constitutional error, “it was an error he himself invited by pleading guilty” and “the use of invited error as a basis for postconviction relief is clearly frivolous and patently without merit.” Id. at ¶ 38. In support of this, the court cited People v. Harvey, 211 Ill. 2d 368, 385 (2004), which ruled “Defendant is estopped from “us[ing] the exact ruling or action [he] procured in the trial court as a vehicle for reversal on appeal.” Id. at ¶ 38.

Ultimately, the court held, because the validity of the guilty plea entered by defendant was not called into question upon appeal, that, de novo, appellant remains bound by his guilty plea and that “his claim of actual innocence cannot be entertained.” Id. at ¶ 2. In support of this ruling, the court cited People v. Pendleton, 223 Ill. 2d 458, 473 (2006) and  People v. Cannon, 46 Ill. 2d 319, 321 (1970). As a result, the Appellate Court of Illinois Fourth District affirmed the ruling of Circuit Court of Macon County No. 14-CF-1205 and awarded the State $50 in costs against defendant.

Defendant who was absent at trial could not later argue that counsel failed to consult with him about trial strategy (People v. Montes, 2014 IL App (2d) 140485)

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People v. Montes, 2014 IL App (2d) 140485 (February 6, 2015) Kane Co. Affirmed. Defendant Augustine Montes was convicted of attempted first-degree murder and aggravated battery following a jury trial in absentia. He received concurrent sentences of 26 years on the attempted murder charge and 10 years on the aggravated battery charge. His convictions and sentences were affirmed on direct appeal. Montes then filed a post-conviction petition alleging actual innocence based on a theory of entrapment and ineffective assistance of counsel.

Montes’ post-conviction petition alleged that he obtained evidence after trial that would have supported an entrapment defense in the form of an affidavit from a man who indicated that, contrary to his trial testimony, another man “‘induced and incited” the incident by possessing a firearm and putting everyone in a position to commit a crime.” ¶ 12. An additional affidavit from defendant’s trial attorney was attached to the petition indicating that it was defense counsel’s understanding that the affiant who would testify to these events was unavailable to be interviewed or called as a witness because he had several pending criminal cases.

Montes also argued that his trial counsel was ineffective for failing to discuss with him tendering a jury instruction on the lesser-included offense of reckless discharge of a firearm. An affidavit from trial counsel was attached indicating that trial counsel did not discuss this jury instruction with defendant and that defendant was not advised of the possibility of asking for it. Montes also argued that trial counsel was ineffective for not seeking a plea deal from the State.

The trial court summarily dismissed the defendant’s petition, finding that the affidavit from the witness was not “newly discovered evidence,” nor was it non-cumulative or so conclusive that it was likely to change the result on retrial. The court also found that defendant’s ineffective assistance claim was forfeited by failing to raise it on direct appeal and that the claim was factually insufficient because defendant did not attach an affidavit asserting that he would have demanded the submission of the lesser-included-offense instruction. ¶ 16. Montes appealed.

The appellate court affirmed the trial court’s dismissal of the petition, holding that defendant forfeited his entrapment defense because he failed to raise it at trial, he never complained that counsel failed to raise that defense, he did not raise the defense on direct appeal, and he did not complain of ineffective assistance of counsel on appeal for his appellate lawyer’s failure to raise it there. Accordingly, this claim was forfeited. ¶ 19, citing People v. Davis, 2014 IL 115595, ¶ 13 (in a postconviction setting, issues that were raised and decided on direct appeal are barred by res judicata, while issues that could have been raised on direct appeal, but were not, are forfeited).

On the issue of whether the information from the witness was considered “newly discovered,” the court explained that “‘Usually, to qualify as new evidence, it is the facts comprising that evidence which must be new and undiscovered as of trial, in spite of the exercise of due diligence. Generally, evidence is not ‘newly discovered’ when it presents facts already known to the defendant at or prior to trial, though the source of those facts may have been unknown, unavailable, or uncooperative.” (Emphases added.) ¶24, quoting People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007). The affidavit from the witness was therefore not “newly discovered” because the defendant knew of the existence of these facts prior to trial, but did not raise them at trial. The court acknowledged that defendant may counter that even if he knew these facts, the witness who would testify to them was unavailable because he would be unwilling to testify. However, the court noted, defendant could have testified to these facts himself at trial, but he chose not to even be present at the trial.

Related to that is defendant’s second claim that defense counsel failed “to discuss with defendant whether to submit to the jury a lesser-included-offense instruction, but defendant was not present at trial for counsel to do so. Counsel could not submit a lesser-included-offense instruction without the opportunity to discuss it with defendant and without defendant’s consent. Id. at 230. Thus, by absenting himself from trial, defendant precluded counsel from fulfilling the obligation to discuss with him the availability of a lesser-included-offense instruction.” Dismissal of the petition was therefore affirmed.

The somewhat unique aspect of this case is that the defendant was tried for this serious charge in abensentia. That severely impacted his ability to argue that certain evidence that he knew existed should have been presented and to argue that defense counsel failed to consult with him about tendering a lesser-included instruction. If the defendant had been present for his trial, he could have asked his attorney to go into certain lines of questioning, and the defense attorney would have then had an obligation to discuss with him the possibility of tendering a lesser-included instruction. The defendant just being present could have positively impacted the result of the trial.

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

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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))

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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

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

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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.

What is newly discovered evidence? (People v. English, 2014 IL App (1st) 102732-B)

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People v. English, 2014 IL App (1st) 102732-B (June 18, 2014) Cook Co., 3d Div. Affirmed.
(Modified upon denial of rehearing 7/30/14.). Syllabus: Defendant was properly denied leave to file a successive postconviction petition alleging his actual innocence based on the claim that the State’s three inculpatory witnesses recanted their trial testimony and claimed that the inculpatory testimony was the result of police abuse. Since the allegations of defendant’s petition were not sufficiently specific to meet the procedural requirements of a successive petition alleging actual innocence, the evidence defendant proposed to present did not qualify as newly discovered evidence for purposes of the Post-Conviction Hearing Act, and there was no evidence corroborating defendant’s claims of police misconduct.

This case provides a good illustration of what is necessary to meet the threshold procedural requirements for filing a successive post-conviction petition.

“To be entitled to relief under the Act, a defendant must demonstrate a substantial deprivation of his constitutional rights in the proceedings that produced his conviction. People v. Morgan, 212 Ill. 2d 148, 153 (2004). The Act contemplates the filing of only one postconviction petition. Morgan, 212 Ill. 2d at 153. “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2010). The supreme court, however, has carved out an exception to this rule, relaxing the bar to successive postconviction petitions when fundamental fairness requires. Morgan, 212 Ill. 2d at 153. Generally, for a reviewing court to consider a defendant’s successive postconviction petition on its merits, the defendant must show both “cause” for his or her failure to raise the claim in the initial postconviction petition and “prejudice” resulting from this failure. People v. Pitsonbarger, 205 Ill. 2d 444, 459-60 (2002). Even if the defendant cannot meet the cause-and-prejudice test, the court may consider the successive petition if the defendant can show that consideration is “necessary to prevent a fundamental miscarriage of justice.” Pitsonbarger, 205 Ill. 2d at 459. To demonstrate a fundamental miscarriage of justice, the defendant must show actual innocence. To obtain relief under a theory of actual innocence based on “newly discovered” evidence, the defendant must offer evidence that was not available at the original trial and that could not have been discovered sooner through diligence. Morgan, 212 Ill. 2d at 154. In order to be considered, the evidence must be material, noncumulative, and of such a conclusive nature, that it would probably change the result on retrial. People v. Washington, 171 Ill. 2d 475, 489, (1996).” English, 2014 IL App (1st) 102732-B ¶35-36

The “newly discovered evidence” that defendant presented here were five-year-old and ten-year-old affidavits from State witnesses who testified in connection with a previous murder case, where those witnesses indicated that they were subjected to police misconduct, and two dated newspaper articles indicating that a “naming Detective McWeeny as one of the former Area 2 detectives that had been granted immunity in the investigation into police misconduct at Area 2.”

The Court held that the evidence that defendant submitted with his petition did not meet the “newly discovered” evidence test. The Court reasoned that the claims concerning police misconduct supported by the affidavits, which were five and ten years old, respectively, could have been raised in defendant’s original post-conviction petition. Furthermore, the newspaper articles indicating that the detective received immunity did not directly link to the claims made in those affidavits because the affidavits did not identify that particular detective as being the perpetrator of the police misconduct. Therefore, taken together, this evidence would not “probably change the result on re-trial,” as is required to meet the threshold requirement for a successive petition based on actual innocence under the Act.