                                           2018 IL App (1st) 170218
                                                No. 1-17-0218

                                                                    SECOND DIVISION
                                                                        March 13, 2018
       ______________________________________________________________________________

                                           IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIRST JUDICIAL DISTRICT

       ______________________________________________________________________________


       THE PEOPLE OF THE STATE OF ILLINOIS,                   )      Appeal from the Circuit Court
                                                              )      of Cook County.
                 Plaintiff-Appellee,                          )
                                                              )
       v. 	                                                   )      No. 07 CR 11290 

                                                              )

       JONATHAN MIRANDA,                                      )

                                                              )      The Honorable

                 Defendant-Appellant.	                        )      Stanley Sacks,
                                                              )      Judge Presiding.

       ______________________________________________________________________________

                 JUSTICE PUCINSKI delivered the judgment of the court, with opinion. 

                 Presiding Justice Neville concurred in the judgment and opinion. 

                 Justice Hyman specially concurred, with opinion. 


                                                     OPINION

¶1               Defendant Jonathan Miranda appeals from an order of the circuit court of Cook County

       denying him leave to file a successive petition under the Post-Conviction Hearing Act (Act) (725

       ILCS 5/122-1 et seq. (West 2016)). He contends that the circuit court erred in denying him leave

       because he presented a colorable claim of actual innocence, and he established cause and

       prejudice as to his claim of ineffective assistance of trial counsel. For the reasons that follow, we

       affirm.

¶ 2	                                           BACKGROUND
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¶3          In 2007, defendant and his cousins, Jason and Wellington Jaramillo, 1 were charged by

     indictment with multiple counts of aggravated discharge of a firearm, home invasion, aggravated

     battery with a firearm, armed violence, aggravated battery, aggravated unlawful restraint, and

     aggravated unlawful use of a weapon.

¶4          On March 10, 2009, defendant and his cousins entered negotiated pleas of guilty to

     aggravated discharge of a firearm in exchange for the dismissal of the other charges and agreed

     prison terms of 10 years for defendant and 15 years for his cousins with the express

     understanding they would be eligible to receive day-for-day good-conduct credit. Before entering

     judgments of conviction and imposing sentences, the trial court admonished defendant and his

     cousins of their appeal rights in accordance with Illinois Supreme Court Rule 605(c) (eff. Oct. 1,

     2001). The trial court addressed defendant, commenting that he was “pretty lucky” because when

     his cousins “went into the house *** and shot that guy, they didn’t kill him”; otherwise, he

     would be facing a minimum sentence of 35 years’ imprisonment. The trial court then informed

     defendant and his cousins, inter alia, that before taking an appeal, and “within 30 days of today’s

     date,” they must each file a written motion asking that the judgment be vacated and for leave to

     withdraw the guilty plea stating the reasons for doing so. Defendant and his cousins

     acknowledged that they understood the trial court’s admonishments.

¶5          Sometime thereafter, the trial court received a letter from defendant’s mother saying that

     her son “was doing 85 percent” of his 10-year sentence to which he had agreed with the

     understanding that he would be eligible to receive day-for-day good-conduct credit. On June 4,

     2009, 86 days after defendant and his cousins entered negotiated guilty pleas to aggravated

     discharge of a firearm, attorneys for defendant and his cousins appeared before the trial court and


            1
             Jason and Wellington Jaramillo are not parties to this appeal.
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     reformed the plea agreement so the parties, including the State, received the originally

     bargained-for benefits. Pursuant to this agreement, the trial court reduced defendant’s sentence

     from “10 years contemplating he would do that 10 at 50 percent” to “70 months” at 85%. The

     trial court issued a corrected mittimus nunc pro tunc to March 10, 2009, the date of the

     negotiated guilty plea and the initial mittimus.

¶6          Twenty-eight days later, on July 2, 2009, defendant, represented by new attorneys, filed a

     motion to withdraw his plea of guilty and vacate judgment. After a hearing, the trial court

     granted the motion, reinstated the charges previously dismissed, and remanded defendant to the

     custody of the Cook County jail without bond.

¶7          Defendant proceeded to a jury trial in 2010. The jury found defendant guilty of home

     invasion and aggravated battery with a firearm. The trial court then sentenced defendant to

     consecutive terms of 21 and 6 years’ imprisonment, respectively.

¶8          On direct appeal, we affirmed the judgment entered on defendant’s convictions over his

     challenge to the sufficiency of the evidence and to the propriety of the State’s rebuttal argument.

     People v. Miranda, 2012 IL App (1st) 103360-U. As to the sufficiency of the evidence, we found

     there was sufficient evidence allowing a reasonable trier of fact to conclude that defendant had

     knowledge of his cousins’ criminal purpose and acted with intention to aid his cousins in the

     commission of their offenses against Froylan Lopez, a known narcotics dealer. Id. ¶ 51.

     Specifically, we found sufficient evidence to support defendant’s convictions under

     accountability principles despite defendant’s trial testimony that he remained at home with his

     girlfriend, mother, and sister the night before the shooting, and his brother’s testimony that he,

     and not defendant, drove the Oldsmobile that narcotics surveillance officers observed circle

     Lopez’s house. Id. ¶¶ 51-53. Defendant’s undisputed presence as a getaway driver outside


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     Lopez’s house on the date in question, his flight with his cousins after they shot Lopez, and

     circumstantial evidence of defendant’s prior knowledge of his cousins’ criminal design

     established defendant’s accountability for the home invasion and aggravated battery of Lopez

     with a firearm. Id. We noted that, although defendant testified at trial that he believed he was

     driving his cousins to a job interview, there was circumstantial evidence otherwise. Id. ¶ 52. For

     instance, the night before the shooting, police intercepted a call wherein Jason Jaramillo told

     Luis Diaz, who owed the victim money for drugs seized by police, that he and Wellington were

     going to pay their cousin $1000 “just to drive,” and Jason mentioned that his cousin drove a

     small expensive car. Id. Coincidentally, defendant testified at trial that he drove his cousins to

     Lopez’s house in an Audi TT, which he described as a small sports coupe. Id. As to the propriety

     of the State’s rebuttal argument, we noted that the prosecutor was entitled to comment on

     defendant’s failure to call his girlfriend, mother, and sister to support an alibi defense because

     defendant injected their existence into the case, and we ultimately found the prosecutor’s

     comments were reasonable inferences based on the evidence presented at trial and did not

     impermissibly shift the burden of proof onto defendant or deprive him of a fair trial and warrant

     reversal of his convictions. Id. ¶ 60.

¶9          In 2013, defendant filed a pro se postconviction petition seeking to vacate his jury

     convictions and sentences for home invasion and aggravated battery with a firearm, or

     alternatively to reinstate his 10-year sentence for aggravated discharge of a firearm under the

     original plea agreement. Defendant alleged in his petition that he received ineffective assistance

     of plea counsel, who misinformed him that if he pled guilty to aggravated discharge of a firearm,

     he would be sentenced to 10 years’ imprisonment to be served at 50% and that “after all of [his]

     good time was accumulated, [he] would only serve 2½ to 3 years in jail.” Defendant also alleged


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       that trial counsel 2 was ineffective for failing to call “all of the witnesses who were available to

       testify” on his behalf, and “[t]his failure allowed the prosecution to argue to the jury in rebuttal

       that [he] had not presented witnesses to support [his] theory of the case.”

¶ 10          The circuit court summarily dismissed the petition as frivolous and patently without merit

       in a written order. In rejecting defendant’s assertion that plea counsel’s actions started a “chain

       of events” that ended with a 27-year prison sentence, the circuit court found that the actual chain

       of events that led to defendant’s 27-year imprisonment started with the home invasion and

       shooting of Froylan Lopez and that he voluntarily chose to withdraw his plea of guilty and go to

       trial. In rejecting defendant’s claim that trial counsel was ineffective for failing to call all of the

       witnesses available to testify on his behalf, the circuit court found that defendant failed to attach

       any affidavits from those witnesses or indicate what the substance of their testimony would be.

       The circuit court further found that the issue was barred by the doctrine of res judicata because it

       was previously decided against defendant on direct appeal.

¶ 11          We affirmed the summary dismissal of defendant’s pro se petition, finding that the

       parties’ conduct revested the trial court with jurisdiction to consider defendant’s untimely motion

       to withdraw his guilty plea and that defendant failed to present an arguable claim that trial

       counsel was ineffective for failing to call his mother and sister as a witness to corroborate his

       defense where there were no supporting affidavits or an explanation for their absence. People v.

       Miranda, 2016 IL App (1st) 131551-U, ¶¶ 24-25, 27-29.

¶ 12          In 2015, defendant filed a pro se “Complaint for Mandamus” alleging that the circuit

       court judge who granted defendant’s motion to withdraw his guilty plea and vacate judgment,

       lacked jurisdiction to do so. The circuit court denied defendant leave to file the complaint for

              2
                Defendant was represented by attorney Joseph DiNatale during the plea proceedings and
       attorneys Mark Kusatzky and Gus Santana thereafter and during trial.
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       mandamus, and on appeal therefrom, we affirmed the denial of leave after granting appointed

       counsel leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). People v.

       Miranda, No. 1-15-2583 (2017) (unpublished summary order under Illinois Supreme Court Rule

       23(c)).

¶ 13             On November 17, 2016, defendant, represented by attorney Richard Dvorak, 3 filed the

       subject motion for leave to file a successive postconviction petition, along with the proposed

       petition. In his motion, defendant asserted he could establish cause and prejudice to raise a claim

       of ineffective assistance of counsel because his initial postconviction petition was defective “due

       to misrepresentations made to him by his appellate counsel and that appellate counsel engaging

       in an impermissible ‘ghost writing’ of the petition, and that those defects were therefore not

       caused by [defendant], and that he was prejudiced due to the claims not being raised.” Defendant

       also asserted he was excused from showing cause and prejudice in presenting claims of newly

       discovered evidence and actual innocence.

¶ 14             In his successive petition, defendant stated that he sought postconviction relief based on

       claims of ineffective assistance of trial counsel, newly discovered evidence, and actual

       innocence. Defendant acknowledged the requirement that he show cause for failing to raise the

       ineffective assistance of trial counsel claim in the initial postconviction petition and prejudice

       resulting therefrom. He argued “[b]ecause the [defendant]’s initial post-conviction counsel made

       representations that he could file the Petition as-is, rather than informing the [defendant] that he

       needed affidavits, the [defendant] was caused to file a defective initial Petition.”

¶ 15             On the merits, defendant first argued that he was prejudiced by trial counsel’s failure to

       call as witnesses Luis Madrid, Kayla Rincon, and Stephanie Araujo, considering the “available


                 3
                  Mr. Dvorak also represents defendant in this appeal.

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       testimony discussed” in their supporting affidavits. Specifically, Luis Madrid averred that on

       April 24, 2007, he accompanied Arthuro Miranda, defendant’s younger brother, to his cousins’

       house in Berwyn, whereupon Arthuro agreed to drive his cousins to a friend’s house in Melrose

       Park. There, Arthuro circled the block twice before Wellington walked around the house and

       reported that his friend was not answering his calls. Luis further averred that he would have

       testified had defendant’s attorneys asked him.

¶ 16          Defendant’s sister, Kayla Rincon, averred that on April 24, 2007, defendant came home

       after work and stayed home the entire night. Kayla watched television in the kitchen with her

       mother, defendant, and defendant’s girlfriend, Stephanie Araujo, until 10 p.m. when she went to

       bed. Kayla further averred that she took time off school to be present at the courthouse during

       defendant’s trial because attorneys told her they expected to call her as a witness, but that did not

       happen.

¶ 17          Defendant’s girlfriend, Stephanie Araujo, averred that on April 24, 2007, she was with

       defendant at his house from 8 p.m. to midnight. She recalled that defendant’s mother and sister

       were present but she could not remember whether defendant’s younger brother and his friend

       Luis Madrid were present. Stephanie further averred that she was available to testify at

       defendant’s trial but was never asked to do so.

¶ 18          Defendant next contended that newly discovered evidence comprised of affidavits from

       his cousins, Jason and Wellington Jaramillo, showed that he is actually innocent, citing People v.

       Williams, 2012 IL App (1st) 111145, abrogated on other grounds, People v. Davis, 2014 IL

       115595. The cousins averred in strikingly similar affidavits that on April 25, 2007, Wellington

       asked defendant to drive him and Jason to a job interview with a person who owned a

       landscaping business in Melrose Park, that Jason and Wellington were carrying firearms


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       concealed in their pants or waistband, and that they never told defendant about their plan to

       commit a crime. The cousins acknowledged that the police intercepted a telephone call wherein

       Jason stated he and Wellington were going to recruit one of their cousins to be a getaway driver

       for $1000 but claimed that was a lie they told Luis Diaz, who owed Froylan Lopez money for

       drugs that had been seized by police.

¶ 19           On January 6, 2017, the circuit court entered a written order denying defendant leave to

       file his successive postconviction petition. Regarding defendant’s claim of actual innocence, the

       circuit court found that the affidavits 4 of Jason and Wellington Jaramillo did not support a

       cognizable claim of actual innocence. The circuit court stated that “[w]hile their testimony

       constitutes newly discovered evidence based on their averments that they would have refused to

       testify due to fear of incriminating themselves, People v. Molstad, 101 Ill. 2d 128, 135 (1984), it

       does not satisfy the remaining elements necessary for a freestanding claim of actual innocence.”

       The circuit court noted their proposed testimony was cumulative because defendant had testified

       about the facts set forth in his cousins’ affidavits. The circuit court further noted the proposed

       testimony of defendant’s cousins was not so conclusive that it would probably change the result

       on retrial because Jason and Wellington’s allegation that they did not inform defendant about the

       crime before his involvement was insufficient to offer “the total vindication and exoneration

       necessary for an actual innocence claim since [defendant] was still present and involved in the

       crime under their version of the events.”

¶ 20           Regarding defendant’s claim that trial counsel was ineffective for failing to call his sister

       Kayla as a witness, the circuit court found the claim was barred by res judicata as it was



               4
               Defendant correctly points out that the circuit court also discussed the affidavits of Luis Madrid,
       Stephanie Araujo, and Kayla Rincon in the context of his actual innocence claim although those affidavits
       were submitted in support of his ineffective assistance of counsel claim.
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       dismissed as meritless in defendant’s initial postconviction petition and the appellate court

       affirmed that decision on appeal (Miranda, 2016 IL App (1st) 131551-U). As to defendant’s

       claim that trial counsel was ineffective for failing to call Luis Madrid and Stephanie Araujo, the

       circuit court found that defendant failed to demonstrate cause for his failure to raise the claim in

       his initial postconviction petition, noting in a footnote that defendant “attempts to argue that he

       received ineffective assistance of post-conviction counsel because counsel did not obtain

       necessary affidavits from the prospective witnesses. However, this argument is unavailing as

       there is no constitutional right to effective assistance of post-conviction counsel.” The circuit

       court also found that defendant failed to demonstrate prejudice because his underlying argument

       was meritless. The circuit court reasoned that defendant failed to show that trial counsel’s

       performance was deficient with respect to Jason and Wellington Jaramillo because they averred

       that no amount of due diligence from counsel would have secured their testimony at defendant’s

       trial. The circuit court added that defendant nevertheless failed to demonstrate prejudice resulting

       from trial counsel’s failure to call Luis Madrid, Kayla Rincon, Stephanie Araujo, and defendant’s

       cousins because their proposed testimony would not have changed the outcome.

¶ 21                                             ANALYSIS

¶ 22          On appeal, defendant first contends that the circuit court erred in denying him leave to

       file a successive postconviction petition because he presented a colorable claim of actual

       innocence. We review the denial of defendant’s motion for leave to file a successive

       postconviction petition de novo (People v. Bailey, 2017 IL 121450, ¶ 13), and we may affirm that

       decision on any ground of record (People v. Johnson, 208 Ill. 2d 118, 129 (2003)).

¶ 23          The Act provides a statutory, collateral remedy to defendants who claim their

       constitutional rights were substantially violated at trial. People v. Edwards, 2012 IL 111711, ¶ 21


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        (citing People v. Eddmonds, 143 Ill. 2d 501, 510 (1991)); People v. Kokoraleis, 159 Ill. 2d 325,

        328 (1994). For that reason, claims that could have been, but were not, raised on direct appeal

        are forfeited, and claims that were addressed on direct appeal are barred by res judicata. People

        v. Viramontes, 2017 IL App (1st) 160984, ¶ 59.

¶ 24           Successive postconviction petitions, like the one at bar, are disfavored under the Act.

        People v. Jones, 2017 IL App (1st) 123371, ¶ 41. However, the bar against successive petitions

        will be relaxed if defendant establishes “cause and prejudice” for the failure to raise a claim in

        the initial postconviction petition (725 ILCS 5/122-1(f) (West 2016)) or actual innocence under

        the “fundamental miscarriage of justice” exception. Edwards, 2012 IL 111711, ¶¶ 22-23; People

        v. Brown, 2017 IL App (1st) 150132, ¶ 36. It is incumbent upon defendant to first obtain “leave

        of court” to institute a postconviction proceeding. Edwards, 2012 IL 111711, ¶ 24. In the context

        of an 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.” Id. Put

        another way, leave should be granted when defendant’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.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

¶ 25	          “Where, as here, a defendant’s successive petition makes a claim of actual innocence,

        such a claim may only be considered if the evidence in support of the claim was newly

        discovered, material to the issue and not merely cumulative of other trial evidence, and of such a

        conclusive character that it probably would change the result on retrial.” Jones, 2017 IL App

        (1st) 123371, ¶ 43. Newly discovered evidence refers to evidence discovered after trial that could

        not have been discovered sooner by defendant through due diligence. Id. On the other hand,


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       evidence is not newly discovered “when it presents facts already known to a petitioner at or prior

       to trial, though the source of those facts may have been unknown, unavailable, or

       uncooperative.” Brown, 2017 IL App (1st) 150132, ¶ 42. “Material evidence is relevant and

       probative of the defendant’s innocence,” whereas cumulative evidence adds nothing to what the

       jury already heard. Jones, 2017 IL App (1st) 123371, ¶ 43. Finally, conclusive evidence is the

       most important element of an actual innocence claim (see People v. Washington, 171 Ill. 2d 475,

       489 (1996)), and this court “ ‘must be able to find that petitioner’s new evidence is so conclusive

       that it is more likely than not that no reasonable juror would find him guilty beyond a reasonable

       doubt.’ ” People v. Williams, 2016 IL App (1st) 133459, ¶ 52 (quoting People v. Sanders, 2016

       IL 118123, ¶ 47).

¶ 26          Here, we observe that the affidavits of defendant’s cousins constitute newly discovered

       evidence because no amount of due diligence could have compelled them to violate their fifth

       amendment right against self-incrimination. Id. ¶ 55 (citing Edwards, 2012 IL 111711, ¶ 38).

       However, the proposed testimony of the cousins, that they lied to Luis Diaz about paying one of

       their cousins $1000 to be their getaway driver and did not reveal their criminal plan to defendant,

       is immaterial because such testimony is irrelevant and not probative of defendant’s innocence

       under an accountability theory. Rather, the proposed testimony is cumulative because the jury

       heard defendant’s testimony that he believed he was driving his cousins to a job interview and

       was not aware of their criminal plan. We find that defendant’s actual innocence claim fails

       because he cannot establish the most important element of such claim, i.e., that the proposed

       testimony of his cousins is “ ‘so conclusive that it is more likely than not that no reasonable juror

       would find him guilty beyond a reasonable doubt.’ ” Id. The cousins’ averments do not exonerate

       defendant because he was convicted of the underlying crimes committed by his cousins under an



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       accountability theory, which only requires that the accountable person intend to promote or

       facilitate the commission of the underlying crime. Id. ¶¶ 46-47, 55-57. The evidence contained in

       the cousins’ affidavits merely affects the sufficiency of the evidence and does not totally

       vindicate defendant. Id. ¶ 57 (construing People v. Adams, 2013 IL App (1st) 111081, ¶ 36

       (evidence of actual innocence must support total vindication or exoneration)). Under these

       circumstances, we cannot find that defendant’s new evidence is so conclusive that it is more

       likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.

       Sanders, 2016 IL 118123, ¶ 47.

¶ 27          In so finding, we note that although defendant maintains that his cousins’ affidavits were

       “conclusive enough to change the result on retrial,” he does so without further discussion until

       his reply brief, arguing for the first time that the information contained in the affidavits rebut the

       “single piece of evidence” used to establish defendant’s mens rea for accountability. Generally,

       arguments raised for the first time in a reply brief are considered forfeited. People v. Chatman,

       2016 IL App (1st) 152395, ¶ 40; Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Under these

       circumstances, we need not address defendant’s argument. People v. Strickland, 2015 IL App

       (3d) 140204, ¶ 16. Even so, we observe that accountability, alone, is not a crime but a

       mechanism for establishing culpability for an underlying crime. Williams, 2016 IL App (1st)

       133459, ¶ 62 (Hyman, J., specially concurring). Mens rea, in the context of accountability,

       simply requires that the accountable person intend to promote or facilitate the commission of the

       underlying crime (id. ¶¶ 46-47 (majority opinion)); the mens rea for the underlying crime is

       “wholly separate and apart from” the mens rea encompassed in the accountability statute (id.

       ¶ 64 (Hyman, J., specially concurring)). As we found on direct appeal in this case, there was

       sufficient evidence to support defendant’s convictions under accountability principles despite



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       defendant’s trial testimony that he remained at home with his girlfriend, mother, and sister the

       night before the shooting. Miranda, 2012 IL App (1st) 103360-U, ¶¶ 51-53.

¶ 28          Defendant next contends that he established cause and prejudice as to his claim of

       ineffective assistance. He argues cause for failing to raise the ineffectiveness of trial counsel in

       his initial postconviction petition based on the “ineffective assistance of post-conviction

       counsel.” He faults the attorney who “ghost-wrote” his initial, pro se postconviction petition for

       failing to inform him that supporting affidavits were required to survive summary dismissal. He

       then argues prejudice resulting from trial counsel’s failure to call Luis Madrid, Kayla Rincon,

       and Stephanie Araujo, whose testimony would have weakened the inference that he knew all

       along about his cousins’ criminal plan and actively participated in the furtherance thereof.

¶ 29          “Cause” refers to any objective factor that impeded a defendant’s ability to raise a

       specific claim in the initial postconviction proceeding. People v. Pitsonbarger, 205 Ill. 2d 444,

       462 (2002). “Prejudice” refers to an error that so infected the entire trial that the resulting

       conviction violates due process. Davis, 2014 IL 115595, ¶ 14; People v. Flores, 153 Ill. 2d 264,

       279 (1992).

¶ 30          Here, defendant cannot establish cause for failing to raise the ineffective assistance of

       trial counsel in his initial, pro se petition, based on the alleged ineffective assistance of

       postconviction counsel because neither the Act, nor Illinois Supreme Court Rule 651(c) (eff.

       Dec. 1, 1984) provides any basis for a standard of legal representation at the first stage of

       postconviction proceedings. People v. Shipp, 2015 IL App (2d) 131309, ¶ 16. We observe that

       “Rule 651 applies to counsel appointed or retained after a pro se petition, but not to counsel that

       was privately retained by the prisoner to file the initial petition,” as in the case at bar. (Emphasis

       added.) People v. Zareski, 2017 IL App (1st) 150836, ¶ 51 (citing People v. Cotto, 2016 IL



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       119006, ¶ 41). We also acknowledge defendant’s reliance on People v. Nicholas, 2013 IL App

       (1st) 103202, and People v. Warren, 2016 IL App (1st) 090884-C, for the proposition that the

       deficient performance of postconviction appellate counsel may constitute cause. However, we

       remain unpersuaded as those cases concern counsel who represented the defendant on appeal

       from the summary dismissal of an initial, pro se postconviction petition, which is not the case

       here. We also find that defendant cannot demonstrate prejudice resulting from trial counsel’s

       failure to call Luis Madrid, Kayla Rincon, and Stephanie Araujo, based on their supporting

       affidavits. The witnesses’ proposed testimony involves the day before the shooting of Lopez and,

       at best, suggests that defendant did not drive around Lopez’s house the previous night. Under

       these circumstances, we cannot find the fact that trial counsel did not call these witnesses at trial

       constituted an error that so infected the entire trial that the resulting conviction violates due

       process. Davis, 2014 IL 115595, ¶ 14.

¶ 31                                            CONCLUSION

¶ 32          For the reasons stated, we affirm the judgment of the circuit court of Cook County

       denying defendant leave of court to file his successive postconviction petition.

¶ 33          Affirmed.

¶ 34          JUSTICE HYMAN, specially concurring:

¶ 35          I agree with the majority’s decision to affirm. I write separately to point out a few brief

       writing missteps in the parties’ briefs involving Illinois Supreme Court Rule 341. Because these

       lapses steadily pop up, I wanted to draw attention to them. Remember, full compliance with Rule

       341 is not optional and has the added benefit of framing more readable, navigable, and

       comprehensible briefs.




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¶ 36            Illinois Supreme Court Rule 341 (eff. Jan. 1, 2016) sets out the requirements for filing a

       brief on appeal. Rule 341 seeks to promote “clear and orderly arguments” so that the reviewing

       court may better discern and decide the issues. (Internal quotation marks omitted.) Collier v. Avis

       Rent A Car System, Inc., 248 Ill. App. 3d 1088, 1095 (1993). Failure to substantially conform to

       appellate briefing rules can lead to dismissal. Hall v. Naper Gold Hospitality LLC, 2012 IL App

       (2d) 111151, ¶ 7.

¶ 37            Some of the provisions of Rule 341 are quite specific. For instance, Rule 341(a) requires

       typeface of “12-point or larger throughout the document, including quoted material and any

       footnotes.” Ill. S. Ct. R. 341(a) (eff. Jan. 1, 2016). On page 10 of Miranda’s brief appears a

       footnote in a typeface that is smaller than the typeface in the body of the brief. This slight

       deviation from the rules does not warrant striking the brief, but I would advise lawyers to strictly

       comply with the typeface rule. There is a practical reason to do so—a good number of appellate

       judges have arrived at an age when they cannot read type smaller than 12-point without the need

       for squinting or reaching for their reading glasses.

¶ 38            Other provisions of Rule 341 are more advisory. For example, Rule 341(a) wisely

       discourages, but does not prohibit, footnotes. It also permits quotations of two or more lines to be

       single-spaced but advises that “lengthy quotations are not favored and should be included only

       where they will aid the court’s comprehension of the argument.” Ill. S. Ct. R. 341(a) (eff. Jan. 1,

       2016).

¶ 39            Here, the “Statement of Facts” section of the State’s brief includes a summary of the trial

       court proceedings taken verbatim from an unpublished Rule 23 order ruling on the direct appeal.

       The quoted material consists of 10 continuous single-spaced pages. Although this does not

       technically violate Rule 341, it regurgitates an available order, which could have been attached to


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       an appendix for easy reference and the relevant paragraphs simply cited. Ten pages of thick type

       make for grim reading. Also, the multiple single-spaced pages squeezed into 40 pages when if

       double-spaced, would have exceeded the 50 page limit in Rule 341(b)(1) (Ill. S. Ct. R. 341(b)(1)

       (eff. Jan. 1, 2016)). Although I am not suggesting this was intentional, courts take umbrage at

       efforts to skirt rules.

¶ 40           Later in the “Argument” section of the brief, the State again inserts single-spaced

       block quotes from our earlier unpublished order, with several lines in boldface type for

       emphasis. While Rule 341 does not prohibit the use of bold type, I recommend that it be

       reserved for headings and nothing else. Even boldface headings of over two lines lose their

       impact and are hard to read, not to mention annoying. Instead, stick with italics. And, by

       the way, never ever underline bold type; it is akin to shouting and considered rude.

¶ 41           Every appellate lawyer should want to present the legal issues and arguments accurately,

       concisely, and persuasively. A way to self-sabotage that goal is to disregard both the letter and

       the purpose of Rule 341.




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