Appellate court finds post-conviction petition timely but finds merits lacking

In the People of the State of Illinois v. Luster T. Scott, 2019 IL App (2d) 160439, the Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of Du Page County to dismiss appellant’s pro se post-conviction petition at the second stage of proceedings.

Appellant Luster Scott was adjudicated guilty at trial of two counts of aggravated unlawful use of a weapon, as well as one count each of attempted vehicular hijacking, attempted armed robbery, aggravated battery with a firearm, and aggravated battery. These charges were related to a December 11, 2002 shooting in a bank parking lot. Id. at ¶ 3. Scott was sentenced to 22 years’ incarceration. Id. at ¶ 7. Immediately following conviction and sentencing, Scott appealed the ruling, arguing (in part) that the court had erred in failing to suppress statements made by detectives at trial. Scott alleged throughout trial proceedings that he had been physically abused by case detectives, denied access to an attorney, and never been read his Miranda rights. The Appellate Court of Illinois Second District affirmed upon appeal. Id. at ¶ 7. In April 2007, the United States Supreme Court denied certiorari. In November 2007, Appellant Scott, pro se, filed a post-conviction petition pursuant to the Post Conviction Hearing Act, via the prison mail system, which was incorrectly post-marked and featured a cover page attempting to establish proof of service on October 28, 2007. Id. at ¶ 8. The petition was initially dismissed for untimeliness and failure to provide an affidavit from the witness, Jon McClain, alleging violations of Appellant’s Miranda rights, yet was corrected and ultimately approved upon rehearing. Id at ¶ 9.

Following an unexplained nearly 8-year delay, in October 2015, Scott’s post-conviction counsel filed an amended petition alleging that trial counsel was ineffective for failing to investigate and call McClain to testify, as well as failing to investigate Scott’s allegations of police misconduct and abuse. Id. at ¶ 10. Included in the petition were allegations that Detectives Evoy and Klecka had transferred Scott to an interrogation room, following repeated requests to speak with an attorney, and repeatedly struck him in the face; an affidavit from McClain stating he had been in the holding cell with Scott and witnessed Scott leave their joint holding cell absent physical injuries yet returned with wounds to his head and an affidavit from McClain that Scott had been denied requests for an attorney. Id. at ¶ 12. The court dismissed the petition as untimely without addressing the merits, holding that Scott had until October 30, 2007, six months from the date that certiorari was denied, to file his petition. Id. at ¶ 13.

On appeal, Appellant contended that the trial court erred in finding his petition untimely as changes in law apply retroactively and should render all pleadings and post-trial motions timely, so long as they were placed in the prison mail system within the required period of time. In support of this argument, Scott cited Illinois Supreme Court Rule12(b), which was amended to allow a pro se litigant in a correctional institution to enclose a certification, in lieu of an affidavit, “of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” Id. at ¶ 16.

The Appellate Court and State agreed that the amendment to Rule 12(b) ought to apply retroactively, yet disagreed on its application to Scott’s case, as his proceedings had completed prior to his filing of the proof of service. Upon review, the Appellate Court held that the amended rule applied retroactively to Scott. Id. at ¶ 19. Moreover, the Appellate Court held that despite the State’s assertions to the contrary, the minor errors in the address listed on the certification were inconsequential and that proof of service (as required under Rule 12(b)) substantially complied with requirements to list a complete address. As a result, the Court ruled that the trial court erred in dismissing appellant’s petition as untimely and determined the petition was timely in nature. Id. at ¶ 24.

Next, the Appellate Court moved to evaluate the merits of Scott’s pro se post-conviction petition. Following the State’s assertion that the petition should be dismissed for failure to make a substantial showing of a constitutional violation, the Appellate Court ordered Scott to file a supplemental brief addressing the merits. Id. at ¶ 25.

On the merits, Scott argued that constitutional violations took place both when his counsel failed to investigate and call McClain to support his motion to suppress based on his invocation of his right to counsel, and when his counsel failed to challenge his sworn statements as being the byproduct of physical coercion. Id. at ¶ 28. Appellant’s assertions of constitutional violations stemming from the ineffective assistance of counsel were evaluated under the guidelines established in Strickland v. Washington, 466 U.S. 668 (1984), which states that “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.” Id. at ¶ 30. This standard is referred to as the Strickland standard. Prejudice, under the Strickland standard, is established “when a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at ¶ 30. The State argued that prejudice could not be established because of the overwhelming evidence that existed against Appellant. The Appellate Court agreed. Id. at ¶ 31, 33. Moreover, the Appellate Court held that Appellant’s assertions regarding physically coerced statements were rebutted by the record and Scott’s own statements at trial. Id. at ¶ 34.

The judgement of the circuit court of Du Page County was affirmed by the Appellate Court of Illinois Second District on the merits. Id. at ¶ 37.


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.

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