                                 2014 IL App (1st) 130535
                                       No. 1-13-0535
                              Opinion filed December 31, 2014

                                                                           FIFTH DIVISION

                                            IN THE

                           APPELLATE COURT OF ILLINOIS

                                      FIRST DISTRICT


     THE PEOPLE OF THE STATE OF                  )      Appeal from the Circuit Court
     ILLINOIS,                                   )      of Cook County.
                                                 )
         Plaintiff-Appellee,                     )
                                                 )
         v.                                      )      No. 03 CR 1284
                                                 )
     GREGORY MINNIEFIELD,                        )      The Honorable
                                                 )      Maura Slattery Boyle,
         Defendant-Appellant.                    )      Judge, presiding.


         JUSTICE GORDON delivered the judgment of the court, with opinion.
         Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.




                                         OPINION


¶1            Defendant Gregory Minniefield was found guilty after a jury trial of first-

       degree murder and sentenced to 25 years for murder, plus a 25-year
     No. 1-13-0535

       enhancement for personally discharging a firearm, for a total of 50 years with

       the Illinois Department of Corrections.

¶2           At his jury trial, defendant testified: that he walked with a gun at his side

       toward the victim's parked vehicle, that the victim said "Oh, s***!" and reached

       toward something on the floor, that defendant reached his gun inside the

       victim's vehicle and fired two shots in self-defense toward "whatever" the

       victim was reaching for, that the victim's vehicle moved forward, and that the

       driver's window frame hit defendant's gun, causing it to discharge multiple

       times accidentally. Thus, there was no dispute at trial that defendant was the

       shooter or that the shots from defendant's gun killed the victim. The only issues

       at trial concerned self-defense and accident and, at defense counsel's request,

       the jury received second-degree murder instructions and a self-defense

       instruction. However, the jury rejected these options and convicted defendant

       of first-degree murder.

¶3           On direct appeal, defendant claimed that his counsel was ineffective for

       failing to request an involuntary manslaughter instruction because his testimony

       demonstrated that he acted recklessly when he shot the victim. The appellate

       court held that, since the record did not disclose whether counsel and defendant

       discussed this option, "the basis of defendant's ineffective assistance claim

       wholly relies on matters not of record," and "the claim must be raised in a

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       collateral proceeding," such as a postconviction proceeding. People v.

       Minniefield, No. 1-05-2792, slip op. at 6 (2007) (unpublished order under

       Supreme Court Rule 23).

¶4           Defendant then filed a pro se postconviction petition in December 2007,

       alleging ineffective assistance of trial counsel based on counsel's alleged failure

       both to request an involuntary manslaughter jury instruction and to investigate

       witnesses. The trial court summarily dismissed the petition on February 6,

       2008, finding his claims frivolous and patently without merit. On May 28,

       2010, this court reversed the trial court's summary dismissal holding that, on the

       record before it, defendant's "allegation that counsel failed to investigate or

       present witnesses has an arguable basis in law and fact." People v. Minniefield,

       No. 1-08-0649, slip op. at 4 (2010) (unpublished order under Supreme Court

       Rule 23) (remanding the case for second-stage proceedings). After remand and

       appointment of counsel, counsel filed a supplemental petition, which the trial

       court dismissed on January 15, 2013.

¶5           It is this January 15, 2013, second-stage dismissal which is the subject of

       the current appeal. On this appeal, defendant argues: (1) that he has made a

       substantial showing that he acted in self-defense and thus is actually innocent;

       and (2) that his counsel was ineffective (a) for failing to ask for an involuntary

       manslaughter jury instruction and (b) for failing to investigate or call

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          occurrence witnesses. At the second-stage proceeding which we are reviewing,

          the State conceded that the two affidavits which defendant submitted in support

          of his actual innocence claim are newly discovered. Defendant requests this

          court to remand for a third-stage evidentiary hearing.

¶6               For the following reasons, we affirm.

¶7                                      BACKGROUND

¶8                                   I. The Evidence at Trial

¶9                                        A. The Events

¶ 10             On direct appeal, we summarized the evidence at trial as follows:

                    "The trial evidence demonstrated that, on December 17, 2002,

                 defendant fatally shot the victim, Theopolis 1 Ransberry. Immediately

                 prior, defendant was driving a car with two passengers, his girlfriend and

                 cousin.   The victim was simultaneously driving his car with three

                 passengers. Although defendant admitted that he shot the victim, the trial

                 testimony conflicted regarding the exact chain of events leading to the

                 victim's death. The State's witnesses, including the victim's passengers

                 and defendant's cousin, testified that defendant instigated the exchange

                 with the victim by shooting at the victim's car. Then, after the victim


             1
               The victim's first name is spelled several different ways in the appellate
       record and we are not certain which spelling is correct.
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       No. 1-13-0535

               subsequently pulled his car over, defendant approached on foot and shot

               the victim several more times absent provocation. Contrarily defendant

               testified that he did not shoot the victim until, after approaching the

               victim's car to merely talk, he thought the victim was reaching for a gun,

               and thus responsively shot the victim's hand twice. Then because the

               victim began to drive away while defendant's hand remained partially

               inside the car, defendant's hand hit the window causing the handgun to

               fire several more times." Minniefield, No. 1-05-2792, slip op. at 2.

¶ 11                         B. Defendant's Pretrial Confession

¶ 12           We further described defendant's pretrial confession as follows:

                  "At trial, Assistant State's Attorney (ASA) John Brady testified that

               defendant agreed to have his statement videotaped, and it was published

               to the jury over defense counsel's objections. In the statement, defendant

               admitted that he chased the victim's car on the day in question because

               they were engaged in an ongoing feud over money. Defendant further

               admitted that, while chasing the victim's car, he fired two gunshots into

               the air. Defendant additionally admitted that he approached the victim's

               car, grabbed the chain around his neck and demanded money that the

               victim owed him. The victim moved and defendant fired his handgun

               toward the victim's leg.    Then, while defendant's handgun remained

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       No. 1-13-0535

               inside the car, the car moved approximately two feet causing defendant to

               shoot the victim four additional times. Defendant admitted that no one

               was armed in the victim's car. Defendant knew that bullets hit both the

               victim and Roshawn Adams, one of the passengers; however, he fled the

               scene and disposed of his handgun. Defendant stated that he merely

               intended to scare the victim, not to hurt him." Minniefield, No. 1-05-

               2792, slip op. at 2.

¶ 13                          C. Defendant's Testimony at Trial

¶ 14           We described defendant's trial testimony as follows:

                  "Defendant testified that, in April 2002, he and the victim had a

               conversation during which the victim denied involvement in an incident

               with defendant's girlfriend.    He further testified that, early in the

               afternoon on the day in question, defendant was driving with his two-

               year[-]old son when the victim opened fire at defendant's car. Defendant

               found a police officer in the area and reported the incident; however, the

               officer was forced to leave on an emergency call. At some point during

               the day, defendant purchased a loaded handgun for protection.

                  Later in the evening, defendant was driving with his girlfriend, Nicole

               Saunders, and his cousin, Erica Simmons, when he recognized the

               victim's car pass him and stop. Defendant approached the victim's car on

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No. 1-13-0535

          foot, armed with his handgun, to talk to him about a misunderstanding

          involving Sanders. Defendant, however, saw the victim reach for what

          he thought was a handgun, and as a result, shot inside the car in an

          attempt to shoot whatever the victim was trying to retrieve. After firing

          two shots, the victim began to drive away. Defendant's hand, however,

          was still inside the car. As a result, the window frame hit defendant's

          hand causing the gun to fire several more times. Defendant testified that

          he did not intend to fire the handgun and he did not think that he shot

          anyone.

             Defendant further maintained that he was mistreated while in police

          custody, and despite expressly invoking his rights to an attorney and to

          remain silent, his Miranda rights were violated.[2] Defendant claimed

          that he told Detective Ron Lewis and Timothy Nolan that the victim

          threatened him and that he shot the victim because he thought the victim

          was reaching for a weapon. Defendant, however, admitted that he did not

          make the same claims in his videotaped statement.

             On cross-examination, defendant stated that he thought the victim

          initially shot at his car because the victim mistakenly thought that

          defendant was involved in a prior attack on the victim, which was
      2
       Prior to trial, the trial court denied defendant's motion to suppress the
statements he made while in police custody.
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       No. 1-13-0535

               actually instigated by defendant's girlfriend. He admitted, however, that

               during the incident the victim did not make any threats." Minniefield, No.

               1-05-2792, slip op. at 2-4.

¶ 15                              D. The State's Rebuttal Evidence

¶ 16           We described the State's rebuttal case as follows:

                   "In rebuttal, Detective Lewis testified that defendant did not report

               that the victim shot at him while he was driving his son or that he thought

               the victim was reaching for a handgun. On cross-examination, however,

               Lewis admitted that defendant told him that the victim had threatened

               defendant. Also, in rebuttal, Detective Nolan reiterated that defendant

               did not report that the victim shot at him.           On cross-examination,

               however, Nolan admitted that defendant requested that he only shot

               inside the victim's car because the victim was reaching for something."

               Minniefield, No. 1-05-2792, slip op. at 4.

¶ 17                                    E. Jury Instructions

¶ 18           At the jury instruction conference, defense counsel requested instructions

         on both second-degree murder and self-defense, which the trial court gave over

         the State's objection.




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¶ 19           The jurors were instructed that, in order to sustain the charge of first-

         degree murder, the State had the burden of proving that "the defendant was not

         justified in using the force he used."

¶ 20           As to when force is justified, the jurors were instructed:

                   "A person is justified in the use of force when and to the extent that he

               reasonably believes that such conduct is necessary to defend himself

               against the imminent use of unlawful force.

                   However, a person is justified in the use of force which is intended or

               likely to cause death or great bodily harm only if he reasonably believes

               that such force is necessary to prevent imminent death or great bodily

               harm to himself."

¶ 21           With respect to second-degree murder, the jury was instructed:

                   "You may not consider whether the defendant is guilty of the lesser

               offense of second degree murder until and unless you have first

               determined that the State has proved beyond a reasonable doubt each of

               the previously stated propositions.

                   The defendant has the burden of proving by a preponderance of the

               evidence that a mitigating factor is present so that he is guilty of the

               lesser offense of second degree murder instead of first degree murder.

               By this I mean that you must be persuaded, considering all the evidence

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       No. 1-13-0535

               in this case, that it is more probably true than not true that the following

               mitigating factor is present: that the defendant, at the time he performed

               the acts which caused the death of Theopulous Ransberry, believed the

               circumstances to be such that they justified the deadly force he used, but,

               his belief that such circumstances existed was unreasonable."

         Thus, the jurors were also instructed to consider, if they first found that the

         State had proved that "the defendant was not justified in using the force he

         used" and he was guilty of first-degree murder, whether he had an unreasonable

         belief in the need for the use of deadly force.

¶ 22           After receiving its instructions, the jury convicted defendant of first-

         degree murder, and defendant was sentenced to 50 years of imprisonment, and

         his conviction was affirmed on direct appeal.

¶ 23                            II. Postconviction Proceedings

¶ 24           Defendant filed a pro se postconviction petition on December 27, 2007,

         alleging ineffective assistance of counsel, which the trial court summarily

         dismissed as frivolous on February 6, 2008.

¶ 25                         A. Reversal of First-Stage Dismissal

¶ 26           On appeal, we reversed the summary first-stage dismissal. Minniefield,

         No. 1-08-0649, slip op. at 7. Since "[t]he law-of-the-case doctrine prohibits the

         reconsideration of issues that have been decided by a reviewing court in a prior

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No. 1-13-0535

  appeal" (In re Christopher K., 217 Ill. 2d 348, 363 (2005)), we provide here our

  prior holding and reasoning:

        "We find defendant's claim should have survived first-stage review

        because his allegation that counsel failed to investigate or present

        witnesses has an arguable basis in law and fact. [Citation.] As a

        threshhold matter, we note that defendant appended his own affidavit as

        well as one from Ratliff. A claim that trial counsel failed to investigate

        and call a witness must be supported by an affidavit from the proposed

        witness. [Citation.]     Therefore, we do not consider the proposed

        testimony from Knighton in our determination. [Citation.]

           We find that defendant's allegation has an arguable basis in fact. At

        trial, defendant's testimony presented an 'imperfect self-defense' theory:

        that he fired his gun at the victim after believing he saw the victim reach

        for a gun. However, the State's testimony established that police did not

        recover a gun from the victim's automobile. In his petition, defendant

        alleged that Ratliff would testify that an unknown man removed a silver

        gun from the automobile before police arrived on the scene. Defendant

        appended an affidavit in which Ratliff averred as such, and also that

        counsel never investigated his statement. In his own affidavit, defendant

        averred that he told counsel about Ratliff and Knighton. Taken as true at

                                       11
No. 1-13-0535

        this stage [citation], Ratliff's affidavit lends support to defendant's theory

        of defense and defendant's affidavit establishes that counsel knew of the

        witnesses. Therefore we cannot find the facts in defendant's allegations

        'fantastic or delusional.' [Citation.]

           We also cannot find defendant's allegation presented an indisputably

        meritless legal theory. A constitutional claim that a defendant did not

        receive effective assistance of counsel must demonstrate that it is

        arguable that counsel's performance fell below an objective standard of

        reasonableness and the defendant was arguably prejudiced as a result.

        [Citation.] Defendant testified at trial that he believed the victim was

        reaching for a gun and that based on this belief, fired one or two shots

        toward the victim. Testimony presented by the State established that the

        police did not recover a gun from the victim's automobile.               The

        allegations related to Ratliff's testimony corroborate defendant's belief

        that the victim was reaching for a gun. We find this failure to investigate

        could arguably demonstrate that counsel's performance was objectively

        unreasonable. [Citation.] Finally, the affidavits support the allegation

        that counsel failed to investigate Ratliff's testimony.        Although the

        evidence against defendant was strong, it is at least 'arguable' that




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       No. 1-13-0535

                evidence of a gun in the victim's car could have changed the outcome."

                Minniefield, No. 1-08-0649, slip op. at 5-7.

         Thus, it is the law of the case that "it is at least 'arguable'," based on the record

         then before the appellate court, "that evidence of a gun in the victim's car could

         have changed the outcome." Minniefield, No. 1-08-0649, slip op. at 7.

¶ 27            The prior appellate panel did not reach defendant's second allegation

         concerning ineffectiveness based on a failure to ask for further jury instructions,

         since it was already reversing on the first issue. Minniefield, No. 1-08-0649,

         slip op. at 7. The court stated that, because the law "does not permit partial

         summary dismissals, we need not consider whether defendant's second

         allegation has an arguable basis in law and fact." Minniefield, No. 1-08-0649,

         slip op. at 7.

¶ 28                           B. Trial Court's Order on Remand

¶ 29                           1. Petitions Under Consideration

¶ 30            On remand, counsel was appointed and filed a supplemental petition,

         supplementing the claims and allegations that defendant already made in his pro

         se petition. Since counsel's Rule 651(c) (Ill. S. Ct. R. 651(c) (eff. Dec. 1,

         1984)) certificate states that he "amended, supplemented and adopted the

         arguments of the pro se petition," we describe first the pro se petition and the



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         affidavits attached to it, and then counsel's supplemental petition and the

         affidavits attached to it.

¶ 31                              a. Defendant's Pro Se Petition

¶ 32            In his pro se petition, filed December 31, 2007, defendant alleged that

         "prior to trial, I informed my trial attorney that Michelle Knighton and Thomas

         Ratliff were present[] after the shooting and saw an unknown male take a silver

         gun off the front passenger floor and [leave] with it before the police came" and

         that defense counsel was ineffective for failing to call these two witnesses to

         testify. Defendant also alleged that "defense counsel was ineffective for not

         requesting an involuntary manslaughter instruction where there was sufficient

         evidence to support it."

¶ 33            In support, defendant swore in his own "Affidavit," that "I informed my

         lawyer *** about the two witnesses on behalf of my defense and I also asked

         my attorney to put in a[n] involuntary manslaughter instruction to the jury."

¶ 34            The two affidavits submitted with defendant's petition are signed but the

         signatures are not dated or notarized. They are certified by the affiant under

         section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2006)).

¶ 35             In support, defendant also submitted the "Affidavit" of Thomas Ratliff,

         which stated:



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       No. 1-13-0535

                   "On December 17, 2002[,] I was coming out [of] a friend['s] house

               after we heard gun fire and saw [the victim] in a tan or brown car crashed

               into another car. I walked up 44th Place and saw three guys and two

               females in [the victim's] car. One female was crying. She was shot and

               one of the guys by the car took a silver looking gun off the front

               passenger floor and left with it before the police came. I informed

               [defendant's] attorney and he took my information down and he was

               going to contact me before trial but never did so?"

¶ 36           Defendant also attached a sheet of what appear to be a police officer's

         investigation notes, and his pro se petition also referred to a "police report."

         The report did not mention Ratliff but stated the following concerning Michelle

         Knighton: "Heard approximately five shots. Saw a female black with a beig[e]

         jacket, blond and black braids standing near the victim's auto. Saw three

         unknown males leaning into victim's car." Defendant did not include an

         affidavit from Knighton.

¶ 37                          b. Counsel's Supplemental Petition

¶ 38           Counsel's supplemental petition argued (1) that trial counsel was

         ineffective for not calling Ratliff, who indicated prior to trial that the victim was

         armed; and (2) that the newly available testimony of Noah Redic and Antoine

         Nash that the victim was armed with a gun would have changed the outcome at

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       No. 1-13-0535

         trial, resulting in an acquittal or reducing the conviction to second-degree

         murder. The supplemental petition states that Ratliff is not a newly discovered

         witness and that his affidavit is submitted to support defendant's ineffective

         assistance claim.

¶ 39             Attached to counsel's supplemental petition were (1) two additional

         affidavits from defendant, dated August 9, 2011, and August 25, 2011; (2) the

         prior "Affidavit" from Thomas Ratliff; (3) an affidavit from Noah Redic, dated

         May 14, 2010; and (4) an affidavit from Antoine Nash, dated May 14, 2010.

¶ 40             In his August 9, 2011, affidavit, which is not notarized but is sworn to

         under penalty of perjury, defendant stated: "I asked my attorney why Mr.

         Ratliff wasn't called to testify and my attorney said the investigator never got

         the chance to interview him before my trial." His August 25, 2011, affidavit

         realleges this information and is dated and notarized. Thomas Ratliff's affidavit

         contains substantially the same information as the affidavit attached to

         defendant's pro se petition and is also sworn to under penalty of perjury but the

         Ratliff affidavit attached to the supplemental petition is dated September 6,

         2007.

¶ 41             Noah Redic's affidavit is dated and notarized, and it states:

                    "On December 17, 2002, I was waiting outside between 44th and 45th

                 [and] Lavergne [Avenue] on my brother to pick me up so we could go

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No. 1-13-0535

        out to eat. While I was waiting a tan car pulled up with people in it.

        Once I realized it was [the victim] I walked up to the car to see what he

        was up to. He had three females in the car and we all started talking

        when twan [sic] walked up and all of a sudden [defendant] pulled up

        behind [the victim's] car and got out. [The victim] looked back and said

        oh s*** as [defendant] approached the driver[']s side door. I thought

        nothing of it until I saw [the victim] grab[] a silver gun from between the

        armrest and [defendant] upped a black gun[,] stepped back and let off a

        shot. I pushed twan out my way so I wouldn't get hit and heard about

        four or five more shots and cars driving away. At that time, my brother

        rode up and I jumped in his car and we left the neighborhood. I'm

        coming forward now because [defendant's] mother reached out to my

        mother and told her that I knew what happened that night and I should

        have come forward with this information, so I wrote up this affidavit and

        gave it to [defendant's] mother ***. "

  Thus, in Redic's affidavit, he admits that defendant's mother knew that he knew

  what happened that night and believed that he should have come forward

  earlier. He also admits that defendant's mother knew how to reach him, which

  was by contacting Redic's own mother. Redic offers no reason in his affidavit




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         either why he did not come forward earlier or why defendant did not try to

         contact him earlier.

¶ 42           Antoine Nash's affidavit is also dated and notarized, and it states:

                  "On December 17, 2002, myself and my girlfriend was standing in

               front of my house when it started getting dark outside, so I decided to

               walk her halfway home. I walked her to 44th and Lavergne [Avenue], so

               I started walking. I saw Noel talking to [the victim] and a car full of

               females. I walked up to the passenger side of the car where Noel was

               standing, when all of a sudden a white car driven by [defendant] pulled

               up behind [the victim's] car. [Defendant] jumped out and approached the

               driver[']s side of [the victim's] car. I heard the victim say 'Oh s***,' and

               [defendant] said something. That's when [the victim] grabbed a silver

               gun from between the armrest and [defendant] stepped back and let off a

               shot. Noel pushed me between a parked car and I heard a lot more shots.

               Once the shooting stopped I ran back home because I knew my house

               arrest box was going off. I didn't come forward that night because I

               didn't want to get locked up for not being where I was supposed to be. I

               did come forward but [defendant] had already went to trial and once I

               saw everybody from the neighborhood there, I got scared and left




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               because I didn't want people to think I was a trick. Now that I'm moved

               out of the neighborhood I'm willing to testify if called to do so."

         While Nash's affidavit explains why he did not want to come forward, it does

         not explain why defendant or defendant's family did not approach him.

¶ 43           Both Redic and Nash swear in their affidavits that defendant "stepped

         back" from the victim's vehicle immediately before firing the first shot. These

         statements contradict defendant's trial testimony that he reached his hand inside

         the victim's vehicle to fire the first couple of shots at whatever the victim was

         reaching for on the floor.

¶ 44                      2. The Trial Court's Second-Stage Ruling

¶ 45           The State then moved to dismiss defendant's pro se petition as

         supplemented by counsel.

¶ 46           At the second-stage hearing, the parties acknowledged that, in order to

         show actual innocence, defendant had to show that his evidence was: (1) newly

         discovered; (2) material and not merely cumulative; and (3) of such a

         conclusive character that it would probably change the result on trial. People v.

         Ortiz, 235 Ill. 2d 319, 333-34 (2009). The State conceded that Redic and

         Nash's affidavits, which were submitted in support of defendant's actual

         innocence claim, were newly discovered. The assistant State's Attorney (ASA)

         stated that Redic's and Nash's affidavits are "reportedly newly discovered and I

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          have no doubt that they are newly discovered." The ASA repeated: "[T]he case

          law requires that actual innocence claims be supported by newly discovered

          information which I grant exist[s] in this case."

¶ 47             However, the State argued that "it's not material" and that it would not

          have changed the result at trial. The State argued that Redic's and Nash's

          testimony would not have changed the result at trial because, at most, their

          affidavits showed mutual combat 3 not self-defense by defendant. Defendant

          testified that he was armed when he approached the victim's vehicle. Redic and

          Nash both swore in their affidavits that the victim said "Oh, s***" when he

          observed defendant's approach and then reached for a gun. At most, this chain

          of events shows aggression by defendant, a self-defense response by the victim,

          and then shooting by defendant toward the seated victim. The State argued that

          this chain of events could not possibly serve as the basis for a self-defense

          claim by defendant.


             3
               "Mutual combat" has been defined by our supreme court as a "fight or
       struggle which both parties enter willingly or where two persons upon a sudden
       quarrel and in hot blood, mutually fight upon equal terms and where death results
       from the combat." People v. Austin, 133 Ill. 2d 118, 125 (1989). See also People
       v. Leach, 2012 IL 111534, ¶ 152 (the offense of first-degree murder may be
       "mitigated" to second-degree murder if the defendant "killed while under the
       influence of a sudden, intense passion engendered by mutual combat"); 720 ILCS
       ILCS 5/9-2(a)(1) (West 2002) (a "mitigating factor" for second-degree murder
       occurs if defendant is "acting under a sudden and intense passion resulting from
       serious provocation by the individual killed *** but he negligently or accidentally
       causes the death of the individual killed").
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       No. 1-13-0535

¶ 48           The trial court again dismissed the petition, ruling (1) that trial counsel

         was not ineffective for allegedly failing to investigate; and (2) that defendant

         had failed to make a substantial showing of actual innocence.

¶ 49           The trial court did not rule on whether trial counsel was ineffective for

         allegedly failing to offer an involuntary manslaughter instruction. In his

         appellate brief, defendant concedes that: "post-conviction counsel did not argue

         this error at the hearing on the State's motion to dismiss and did not say

         anything in his reply to the State's motion to dismiss, when the State failed to

         address the claim. *** In addition, counsel did not attempt to obtain a ruling on

         its merits during oral arguments." This appeal followed.

¶ 50                                     ANALYSIS

¶ 51           On this appeal, defendant claims: (1) that he has made a substantial

         showing that he acted in self-defense and thus is actually innocent; and (2) that

         his counsel was ineffective (a) for failing to ask for an involuntary

         manslaughter jury instruction and (b) for failing to investigate or call

         occurrence witnesses. For the following reasons, we do not find these claims

         persuasive.

¶ 52                        I. Stages of a Postconviction Petition

¶ 53           Under the Post-Conviction Hearing Act (Act), individuals convicted of a

         criminal offense may challenge their convictions if there was a violation of their

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         constitutional rights (725 ILCS 5/122-1 et seq. (West 2012)). See also People v.

         Domagala, 2013 IL 113688, ¶ 32. The Act provides for three stages of review

         by the trial court. At the first stage, the trial court may summarily dismiss a

         petition that is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2)

         (West 2012); Domagala, 2013 IL 113688, ¶ 32.

¶ 54           If the trial court does not dismiss a petition at the first stage, the petition

         advances to the second stage, where counsel is appointed if a defendant is

         indigent.     After counsel determines whether to amend the petition, the State

         may file either a motion to dismiss or an answer to the petition. 725 ILCS

         5/122-4, 122-5 (West 2012); Domagala, 2013 IL 113688, ¶ 33. At the second

         stage, the trial court must determine whether the petition and any accompanying

         documents make a "substantial showing of a constitutional violation." People

         v. Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 55                 If the defendant makes this showing at the second stage, then the

         petition advances to a third-stage evidentiary hearing.           At a third-stage

         evidentiary hearing, the trial court acts as fact finder, determining witness

         credibility and the weight to be given particular testimony and evidence, and

         resolving any evidentiary conflicts. Domagala, 2013 IL 113688, ¶ 34.




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       No. 1-13-0535

¶ 56                                II. Standard of Review

¶ 57           In this appeal, the trial court dismissed defendant's postconviction

         petition at the second stage. During a second-stage dismissal hearing, the

         defendant bears the burden of making a substantial showing of a constitutional

         violation. Domagala, 2013 IL 113688, ¶ 35.

¶ 58           At this stage, the trial court accepts as true all well-pled facts that are not

         positively rebutted by the record. Domagala, 2013 IL 113688, ¶ 35 (citing

         People v. Coleman, 183 Ill. 2d 366, 385 (1998)). There is no fact finding or

         credibility determination at this stage. Domagala, 2013 IL 113688, ¶ 35 (citing

         Coleman, 183 Ill. 2d at 385). As a result, the State's motion to dismiss raises

         solely the issue of whether the petition is sufficient as a matter of law.

         Domagala, 2013 IL 113688, ¶ 35 (citing Coleman, 183 Ill. 2d at 385). The

         question before the court is whether the petition's well-pled allegations, if

         proven, would entitle the defendant to relief. Domagala, 2013 IL 113688, ¶ 35.

         Since this is a purely legal question, our review at the second stage is de novo.

         People v. Coleman, 183 Ill. 2d 366, 387-89 (1998). De novo consideration in

         the case at bar means that we perform the same analysis that the trial judge

         would have performed, if we had been sitting during the second-stage dismissal

         hearing. See Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).




                                                23
       No. 1-13-0535

¶ 59                                 III. Actual Innocence

¶ 60           In this appeal, defendant claims that he is actually innocent of the

         underlying offense, which is first-degree murder. The wrongful conviction of

         an innocent person violates due process under the Illinois Constitution of 1970

         (Ill. Const. 1970, art. I, § 2) and, thus, a defendant can raise in a postconviction

         proceeding a freestanding claim of actual innocence based on newly discovered

         evidence. People v. Ortiz, 235 Ill. 2d 319, 334 (2009); People v. Parker, 2012

         IL App (1st) 101809, ¶ 80. See also People v. Washington, 171 Ill. 2d 475, 489

         (1996).

¶ 61           In Ortiz, our supreme court held that, to assert a claim of actual

         innocence based on newly discovered evidence, a defendant must show that the

         evidence was: (1) newly discovered; (2) material and not merely cumulative;

         and (3) of such a conclusive character that it would probably change the result

         on trial. Ortiz, 235 Ill. 2d at 333-34; People v. Orange, 195 Ill. 2d 437, 450-51

         (2001) (citing People v. Molstad, 101 Ill. 2d 128 (1984)). See also Parker,

         2012 IL App (1st) 101809, ¶ 81.

¶ 62           The Ortiz court defined newly discovered evidence as "evidence [(1)]

         that has been discovered since the trial and [(2)] that the defendant could not

         have discovered sooner through due diligence." Ortiz, 235 Ill. 2d at 334.



                                                24
       No. 1-13-0535

¶ 63           Defendant claims that Redic's and Nash's affidavits are newly discovered

         evidence, and the State conceded at the second-stage hearing that the affidavits

         were newly discovered. On appeal, the State admits in its brief that it made this

         concession at the second-stage hearing, which is the proceeding we are now

         reviewing. Relying on the State's representation at the second-stage hearing,

         the trial court also stated that "these affidavits *** are newly discovered."

         Minniefield, No. 1-08-0649, slip op. at 7.

¶ 64           In addition, a prior panel of the appellate court also held, based on the

         record before it, that "it is at least 'arguable' that evidence of a gun in the

         victim's car would have changed the outcome." Minniefield, No. 1-08-0649, slip

         op. at 7. However, the prior panel had before it only Ratliff's affidavit, and not

         Redic's and Nash's affidavits which are the subject of defendant's present

         actual-innocence claim.

¶ 65           The State argued that Redic's and Nash's affidavits would not have

         changed the result at trial, and the trial court agreed, and so do we. Defendant

         testified at trial that he was armed when he approached the victim's vehicle.

         Defendant testified: "I had my gun on the side of me." Redic and Nash both

         swore in their affidavits that the victim said "Oh, s***" when he observed

         defendant's approach and then the victim reached for a gun. At most, this chain

         of events shows aggression by defendant, a self-defense response by the victim,

                                               25
       No. 1-13-0535

         and then shooting by defendant toward the seated victim. This chain of events

         could not possibly serve as the basis for a self-defense claim by defendant;

         otherwise, every time a victim responded in self-defense, the aggressor could

         then claim self-defense and fire.

¶ 66           In addition, Redic's and Nash's affidavits contradict defendant's trial

         testimony in a crucial respect. Both Redic and Nash swore that defendant

         "stepped back" from the victim's vehicle and then fired the first shot. By

         contrast, defendant testified that he reached his gun inside the vehicle to fire the

         first shots, in order to shoot at what the victim was reaching for. Defendant

         argues that it was this act, of reaching inside the vehicle, that resulted in his gun

         being caught by the window frame when the vehicle moved forward and that

         caused his gun to accidentally discharge multiple times. Defendant testified

         that, when the victim "pressed on the gas pedal, *** my hand was still in the car

         shooting at what I seen him reaching at ***. As he took off, the frame hit the

         gun and the gun went off." However, if defendant "stepped back" as both Redic

         and Nash swore under penalty of perjury, then defendant's hand was not inside

         the vehicle and was not caught by the window frame.

¶ 67           Since defendant's proposed witnesses contradict his trial testimony in key

         respects, we agree with the trial court that the proffered evidence was not of




                                                26
       No. 1-13-0535

         such a conclusive character that it would probably change the result at trial.

         Ortiz, 235 Ill. 2d at 333-34.

¶ 68                    IV. Strickland and Ineffectiveness of Counsel

¶ 69           On this appeal, defendant also claims that his trial counsel was

         ineffective.

¶ 70           Every Illinois defendant has a constitutional right to the effective

         assistance of counsel under the sixth amendment to the United States

         Constitution and the Illinois Constitution. U.S. Const., amends. VI, XIV; Ill.

         Const. 1970, art. I, § 8;       Domagala, 2013 IL 113688, ¶ 36.       Claims of

         ineffective assistance are judged against the standard set forth in Strickland v.

         Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36 (citing

         People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland for

         Illinois)). To prevail on a claim of ineffective assistance, a defendant must

         show both: (1) that counsel's performance was deficient; and (2) that this

         deficient performance prejudiced defendant. Domagala, 2013 IL 113688, ¶ 36

         (citing Strickland, 466 U.S. at 687).

¶ 71           To establish the first prong, that counsel's performance was deficient, a

         defendant must show "that counsel's performance was objectively unreasonable

         under prevailing professional norms." Domagala, 2013 IL 113688, ¶ 36. To

         establish the second prong, that this deficient performance prejudiced the

                                                 27
       No. 1-13-0535

         defendant, the defendant must show that there is a reasonable probability that,

         but for counsel's unprofessional errors, the result of the proceeding would have

         been different. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at

         694). "[A] reasonable probability that the result would have been different is a

         probability sufficient to undermine confidence in the outcome – or put another

         way, that counsel's deficient performance rendered the result of the trial

         unreliable or fundamentally unfair." People v. Evans, 209 Ill. 2d 194, 220

         (2004); People v. Colon, 225 Ill. 2d 125, 135 (2007).

¶ 72           Although the Strickland test is a two-prong test, our analysis may

         proceed in any order. Since a defendant must satisfy both prongs of the

         Strickland test in order to prevail, a trial court may dismiss the claim if either

         prong is missing. People v. Flores, 153 Ill. 2d 264, 283 (1992). Thus, if a court

         finds that defendant was not prejudiced by the alleged error, it may dismiss on

         that basis alone without further analysis. People v. Graham, 206 Ill. 2d 465, 476

         (2003); People v. Albanese, 104 Ill. 2d 504, 527 (1984).

¶ 73                                      V. Jury Instruction

¶ 74           Defendant claims that his trial counsel was ineffective in two ways: (1)

         by allegedly failing to offer a jury instruction; and (2) by allegedly failing to

         investigate or call a witness.



                                                   28
       No. 1-13-0535

¶ 75           Defendant claims that his trial counsel was ineffective for failing to

         request an involuntary manslaughter jury instruction. As a preliminary matter,

         it is not clear whether defendant waived this issue by failing to obtain a ruling

         on this particular claim from the trial court which considered his petition during

         the second-stage proceedings. However, even if the claim was not waived, it

         would not succeed.         Since the prior appellate court which considered

         defendant's petition after its first-stage dismissal never reached this claim

         (Minniefield, No. 1-08-0649, slip op. at 7), there is no law of the case with

         respect to this claim.

¶ 76           It is well established in Illinois that a counsel's choice of jury

         instructions, and the decision to rely on one theory of defense to the exclusion

         of another, is a matter of trial strategy. People v. Falco, 2014 IL App (1st)

         111797, ¶ 16; People v. Sims, 374 Ill. App. 3d 231, 267 (2007). Our supreme

         court has stated: "Such decisions enjoy a strong presumption that they reflect

         sound trial strategy, rather than incompetence," and therefore are "generally

         immune from claims of ineffective assistance of counsel." People v. Enis, 194

         Ill. 2d 361, 378 (2000).

¶ 77           Nonetheless, the failure to request a particular jury instruction may still

         be grounds for finding ineffective assistance of counsel, if the instruction was

         so critical to the defense that its omission denied the accused the right to a fair

                                               29
       No. 1-13-0535

         trial. Falco, 2014 IL App (1st) 111797, ¶ 16; People v. Johnson, 385 Ill. App.

         3d 585, 599 (2008) (citing People v. Pegram, 124 Ill. 2d 166, 174 (1988)).

¶ 78           In addition, the State concedes in its appellate brief that defendant is

         correct that the decision whether to request an instruction on a lesser included

         offense is one for the defendant to make. People v. Brocksmith, 162 Ill. 2d 224,

         229-30 (1994). Defendant submitted an affidavit in which he states that he

         asked his counsel to request an involuntary manslaughter instruction.

¶ 79           Defendant argues that, although his counsel asked for and received both a

         self-defense instruction and a second-degree murder instruction based on

         unreasonable-belief self-defense, counsel's performance fell below that of a

         reasonably competent attorney because counsel failed to also request an

         instruction on involuntary manslaughter.

¶ 80           However, a court may give an involuntary murder instruction only if the

         instruction is supported "by some credible evidence in the record that would

         reduce the crime of first-degree murder to involuntary manslaughter." People

         v. Sipp, 378 Ill. App. 3d 157, 163 (2007). "[A] manslaughter instruction should

         not be given where the evidence shows that the homicide was murder, not

         manslaughter." Sipp, 378 Ill. App. 3d at 163. " '[A] defendant is not entitled to

         reduce first degree murder to [involuntary manslaughter] by a hidden mental

         state known only to him and unsupported by the facts.' " People v. Sipp, 378 Ill.

                                              30
       No. 1-13-0535

         App. 3d 157, 164 (2007) (quoting People v. Jackson, 372 Ill. App. 3d 605, 614

         (2007)).

¶ 81            The Criminal Code of 1961 (the Code) defines involuntary manslaughter,

         in relevant part, as:

                "A person who unintentionally kills an individual without lawful

                justification commits involuntary manslaughter if his acts whether lawful

                or unlawful which cause the death are such as are likely to cause death or

                great bodily harm to some individual, and he performs them recklessly

                ***." 720 ILCS 5/9-3(a) (West 2002).

¶ 82        "Recklessness" is defined as follows in the Code:

                "A person is reckless or acts recklessly, when he consciously disregards a

                substantial and unjustifiable risk that circumstances exist or that a result

                will follow, described by the statute defining the offense; and such

                disregard constitutes a gross deviation from the standard of care which a

                reasonable person would exercise in the situation. An act performed

                recklessly is performed wantonly, within the meaning of a statute using

                the latter term, unless the statute clearly requires another meaning." 720

                ILCS 5/4-6 (West 2002).

¶ 83            "Illinois courts have consistently held that when the defendant intends to

         fire a gun, points it in the general direction of his or her intended victim, and

                                               31
       No. 1-13-0535

         shoots, such conduct is not merely reckless and does not warrant an

         involuntary-manslaughter instruction, regardless of the defendant's assertion

         that he or she did not intend to kill anyone." (Internal quotation marks omitted.)

         People v. Sipp, 378 Ill. App. 3d 157, 164 (2007).

¶ 84           Here, defendant testified at trial: that he fired two shots inside the

         victim's vehicle in an attempt to shoot something that the victim was trying to

         retrieve; that, after firing these two shots, defendant's hand was inside the

         window of the victim's vehicle; and that, when the victim's vehicle moved

         forward, the frame in between the driver's window and the back passenger seat

         hit defendant's gun which then discharged several times.

¶ 85           However, defendant's testimony was contradicted by the physical

         evidence at trial. At least five bullet casings were found outside the vehicle and

         on the street, and the casings were all fired from defendant's gun. Police found

         bullet holes in the driver's side of the vehicle where the victim was sitting. If

         defendant's gun had discharged inside the vehicle, then there would be no bullet

         holes in the door or cartridge cases on the street. In addition, the back window

         behind the driver's seat was shot out. Although the medical examiner made no

         determination about which bullet was the fatal one and concluded only that the

         victim died of multiple gunshot wounds, the examiner specifically determined

         that there was no evidence of close-range firing when he examined the bullet

                                               32
       No. 1-13-0535

         wound on the victim's upper back and that this bullet struck the victim's

         pulmonary artery and lungs, causing massive bleeding.         If defendant's hand

         was caught by the frame of the driver's window, then this would have been in

         close range to the driver.

¶ 86           In response, defendant argues in his brief that the fact that defendant's

         "hand was hit by the window frame when the car moved indicates that it was

         almost outside the car" and thereby explains the lack of close-range firing. This

         makes no sense. For defendant's hand to be hit by the window frame as the

         vehicle moved forward, the hand would have to be inside the driver's window

         and very close to the driver. Defendant further argues "that the car moved,

         which would mean that his hand would have been outside the car for the

         subsequent shots that hit the car's exterior" and which thereby explains why the

         shots hit the vehicle's exterior and the cartridges were found outside the vehicle.

         However, if defendant's hand was outside the vehicle for the subsequent shots,

         then the vehicle's movement could not have been causing the gun to

         accidentally discharge, thereby contradicting defendant's claim of accidental

         and reckless discharge.

¶ 87           Since the record lacked credible evidence supporting defendant's claim of

         merely reckless conduct, defendant suffered no prejudice from trial counsel's

         alleged failure to request an involuntary manslaughter instruction. To establish

                                               33
       No. 1-13-0535

         the prejudice prong of the Strickland test, a defendant must show that there is a

         reasonable probability that, but for counsel's unprofessional errors, the result of

         the proceeding would have been different. Domagala, 2013 IL 113688, ¶ 36.

         Since the record lacks credible supporting evidence, there is not a reasonable

         probability that the result of the trial would have been different. Since we

         conclude that defendant was not prejudiced by the alleged error, we may

         dismiss on that basis alone without further analysis. Graham, 206 Ill. 2d at 476;

         Albanese, 104 Ill. 2d at 527.

¶ 88           However, we find, in addition, that counsel's performance did not fall

         below an objective standard of reasonableness "under prevailing professional

         norms."    Domagala, 2013 IL 113688, ¶ 36.           For example, in People v.

         Shamlodhiya, 2013 IL App (2d) 120065, the appellate court held that a trial

         counsel's decision to focus on self-defense instead of involuntary manslaughter

         during closing argument did not render his performance ineffective.             In

         Shamodhiya, counsel argued in closing that he considered involuntary

         manslaughter to be " 'a compromised verdict,' " and he did " '[not] want a

         compromised verdict,' " because this was solely " 'a case of self defense.' "

         (Internal quotation marks omitted.) Shamlodhiya, 2013 IL App (2d) 120065, ¶

         6.   In Shamlodhiya, the appellate court found that "[c]ounsel credibly

         explained" why he did not argue for involuntary manslaughter in the alternative.

                                               34
       No. 1-13-0535

         Shamlodhiya, 2013 IL App (2d) 120065, ¶ 22. Counsel explained "that arguing

         for involuntary manslaughter would have undermined the credibility of his

         attempt to secure an acquittal based on self-defense, which *** would have

         been the best possible result for defendant." Shamlodhiya, 2013 IL App (2d)

         120065, ¶ 22. The Shamlodhiya case does differ from our case because, in

         Shamlodhiya, the appellate court found that the involuntary manslaughter

         instruction was still before the jury (Shamlodhiya, 2013 IL App (2d) 120065, ¶

         23), whereas in our case counsel took this same strategy one step further and

         chose not to ask for the instruction at all.

¶ 89           However, this decision, to not request the instruction at all, does not

         make the decision less of a strategy decision; and reasonable strategy decisions,

         even if ultimately unsuccessful, do not make an attorney's performance fall

         below prevailing norms. People v. Odie, 151 Ill. 2d 168, 172-74 (1992) (a

         defense strategy is not constitutionally defective if unsuccessful); People v.

         Chapman, 262 Ill. App. 3d 439, 451 (1992) ("the fact that a defense tactic was

         unsuccessful does not retrospectively demonstrate incompetence").

¶ 90           Thus, even if defendant did not waive his claim of ineffectiveness based

         on the failure to request an involuntary manslaughter instruction, we would not

         find it persuasive, because it does not satisfy either prong of the Strickland test.




                                                 35
       No. 1-13-0535

¶ 91                               VI. Failure to Investigate

¶ 92           Defendant also claims that his counsel was ineffective for failing to

         investigate and call a witness, Thomas Ratliff, who swore that he observed a

         silver gun on the floor of the victim's vehicle. "The law-of-the-case doctrine

         prohibits the reconsideration of issues that have been decided by a reviewing

         court in a prior appeal" (In re Christopher K., 217 Ill. 2d 348, 363 (2005)), and

         thus it is the law of the case, based on the record then before the appellate court,

         that it was "at least 'arguable' that evidence of a gun in the victim's car could

         have changed the outcome."         Minniefield, No. 1-08-0649, slip op. at 7.

         However, there are differences between the case that was before the prior panel

         and the case that is before us. First, the burden of proof on defendant is

         different. At the first stage, all he had to show was that his claim was not

         frivolous. 725 ILCS 5/122-2.1(a)(2) (West 2012); Domagala, 2013 IL 113688,

         ¶ 32. By contrast, at the second stage, the burden is on defendant to make a

         "substantial showing of a constitutional violation." Edwards, 197 Ill. 2d at 246.

¶ 93           Second, the record before us includes documents that were not before the

         prior panel, namely, Redic and Nash's affidavits and Ratliff's second affidavit,

         and we may consider those in addition. In conducting a second-stage review,

         we must consider both "the petition and any accompanying documentation"

         (Domagala, 2013 IL 113688, ¶ 33), and "[w]e may affirm the dismissal of a

                                                36
       No. 1-13-0535

         postconviction petition on any basis supported by the record" (People v. Rivera,

         2014 IL App (2d) 120884, ¶ 8). Thus, the record before the prior panel is not

         the same as the record before us.

¶ 94           The record contains two handwritten "Affidavit[s]" signed by "Thomas

         Ratliff." The first, which was submitted by defendant with his pro se petition,

         is undated; and the second, which was submitted by counsel on April 25, 2012,

         is dated September 6, 2007. Although the two documents relate substantially

         the same information, they are not the same, since the first has more detail than

         the second.

¶ 95           The first undated "Affidavit" states that defense counsel obtained Ratliff's

         information and "said he was going to call me before trial but never did so?" In

         this first document, Ratliff wrote a question mark which does not appear in the

         second document. It is unclear whether this first question mark means that

         Ratliff was unsure of this fact.

¶ 96           In the first "Affidavit," Ratliff states that he heard gunfire and observed

         the murder victim in a vehicle which had crashed into another vehicle. Ratliff

         observed that a female passenger "was shot" but his affidavit does not state that

         the murder victim was shot. Ratliff then relates that "one of the guys by the

         car" removed a silver gun off the front passenger-seat floor before the police

         arrived.

                                              37
        No. 1-13-0535

¶ 97            By contrast, the second affidavit makes no reference to the murder victim

          and describes the crashed vehicle by its color rather than as the victim's vehicle.

          Without any reference to the victim, the second affidavit, if read by itself, could

          be describing any "tan or brown car" that "crashed into another car" near 44th

          Place on December 17, 2002. Unlike the first affidavit, the second affidavit

          does not mention that a female passenger had been shot. The second affidavit

          also does not mention a "guy[] by the car." Instead it states that Ratliff "saw

          three guys *** in the tan car while one of the guys took a silver looking gun off

          the front passenger floor."

¶ 98            Defendant has not made a substantial showing that there is a reasonable

          probability that, but for counsel's alleged failure to call Ratliff, the result of his

          trial would have been different (Domagala, 2013 IL 113688, ¶ 36 (citing

          Strickland, 466 U.S. at 694)) where, as we explained above, defendant's

          testimony was contradicted by the physical evidence at trial. Supra, ¶ 85. In

          addition, defendant's own proposed witnesses also contradict his version of

          events. Supra, ¶¶ 66-67.

¶ 99                                     CONCLUSION

¶ 100           For the foregoing reasons, and after a de novo review, we affirm the trial

          court's second-stage dismissal of defendant's pro se postconviction petition as

          supplemented by counsel. We do not find persuasive defendant's claims: (1)

                                                  38
        No. 1-13-0535

          that he has made a substantial showing that he acted in self-defense and thus is

          actually innocent; or (2) that his counsel was ineffective (a) for failing to ask for

          an involuntary manslaughter jury instruction or (b) for failing to investigate or

          call occurrence witnesses.

¶ 101           Affirmed.




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