                                                                      FOURTH DIVISION
                                                                      February 17, 2011

No. 1-09-3337


                                          IN THE
                               APPELLATE COURT OF ILLINOIS
                                 FIRST JUDICIAL DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the
                                                      )       Circuit Court of
                Plaintiff-Appellee,                   )       Cook County.
                                                      )
       v.                                             )       No. 95 CR 34971 (02)
                                                      )
VICTOR TRIPP,                                         )       The Honorable
                                                      )       Matthew E. Coghlan,
                Defendant-Appellant.                  )       Judge Presiding.


       JUSTICE LAVIN delivered the judgment of the court, with opinion.
       Presiding Justice Gallagher and Justice Pucinski concurred in the judgment and opinion.

                                              OPINION

       Here, we consider the second petition for postconviction relief of a defendant convicted of

armed robbery. Following a jury trial, defendant was sentenced to four concurrent terms of 55

years’ imprisonment for armed robbery in violation of section 18–2 of the Criminal Code of 1961

(720 ILCS 5/18–2 (West 1992)). As grounds for relief, defendant contends that the trial court

erred in denying him leave to file a successive postconviction petition in light of the United States

Supreme Court’s decision in Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710 (2009). For reasons

detailed below, we affirm the trial court.

                                             BACKGROUND

       On November 29, 1995, defendant and two others robbed a jewelry store located in
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southwest Chicago at gunpoint. Prior to trial, defendant filed a motion to quash his arrest and

suppress evidence, arguing that the officers lacked probable cause to search a footlocker found in

the backseat of defendant’s car at the time of his arrest. At a hearing on the motion, defendant

testified that he was standing at the corner of Douglas Boulevard and Sawyer Street in Chicago

speaking to Germaine Johnson, a codefendant. Defendant testified that he was legally parked on

Sawyer, facing south on the east side of the street, near the curb, approximately 10 feet from the

intersection. Defendant and Johnson talked on the corner for approximately 40 minutes before

police arrived. Defendant was about 12 feet from his car when he was arrested and was never in

the car while police were at the scene.

       The State called officer Michael Soto, who testified that he was on patrol with his partner

driving southbound on Sawyer near the intersection of Douglas when he observed a car

obstructing traffic on Sawyer. The car, occupied by two black males, was parked in the middle of

the street. Officer Soto activated his car’s emergency equipment, exited the car, and approached

the driver’s side of the other car. Officer Soto asked the driver of the car, later identified as

defendant, for his license and proof of insurance. When defendant stated he did not have those

items, Officer Soto asked him to exit the vehicle and placed him under arrest. After defendant

exited the vehicle, with his passenger still in the front seat, Officer Soto noticed a handgun

between the two front seats. Officer Soto’s partner then instructed the other passenger, later

identified as Johnson, to exit the car and both were handcuffed and placed in the officers’ squad

car. After Officer Soto seized the weapon, he performed a search of the car and recalled that

defendant and Johnson partially fit the description of two of the three people who had robbed a

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jewelry store earlier that day. When Officer Soto searched the car, he discovered gray duct tape,

similar to the type used to bind the victims of the robbery, and a large footlocker. Officer Soto

and his partner removed the footlocker, pried open its side and saw “numerous amounts of

jewelry.” Officer Soto also recovered $1,000 in currency, a gold money clip, a gold chain, and

several keys from defendant. Officer Soto’s partner recovered a gold chain and two gold

medallions from Johnson. After hearing the parties’ arguments, the trial court denied the motion

to suppress, finding that the officers had probable cause to search the car.

          On direct appeal to this court, defendant asserted that the trial court erred in denying his

motion for a directed finding and his motion to suppress, and that his sentence was excessive, all

of which were rejected by this court in a published opinion. People v. Tripp, 306 Ill. App. 3d 941

(1999). Shortly thereafter, our supreme court denied defendant’s petition for leave to appeal.

People v. Tripp, 185 Ill. 2d 661 (1999). Defendant then filed a pro se postconviction petition

asserting that this court erred when it considered new arguments presented by the State on appeal

which were not presented during his suppression hearing, and that his sentence was excessive and

disproportionate to that of his codefendant. On May 9, 2000, the trial court determined that the

petition was frivolous and patently without merit and was summarily dismissed pursuant to

section 122–2.1 of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122–2.1 (West

2004)).

          On September 1, 2009, defendant filed his second postconviction petition, claiming that

his motion to suppress should be granted in light of the Supreme Court’s holding in Gant. On



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October 23, 2009, the trial court denied leave to file the petition on the basis that Gant does not

apply retroactively to collateral proceedings. This appeal followed.

                                             ANALYSIS

       The sole issue on appeal concerns defendant’s contention that the trial court improperly

denied him leave to file a successive petition for postconviction relief in violation of the Act.

Because the resolution of this issue requires the interpretation of a statute, our review is de novo.

People v. LaPointe, 227 Ill. 2d 39, 43 (2007).

        Defendant first contends that the trial court erred in denying him leave to file a successive

postconviction petition based on the nonretroactivity of Gant because that determination was

reserved for second-stage proceedings. Defendant relies on People v. Boclair, 202 Ill. 2d 89, 101

(2002), citing the proposition that because “time limitations in the Act should be considered as an

affirmative defense and can be raised, waived, or forfeited, by the State,” they are inappropriate

grounds for dismissal in first-stage proceedings. This argument “ignores the fact that the Act

treats successive petitions differently than initial petitions.” LaPointe, 227 Ill. 2d at 44. While the

Act permits collateral constitutional challenges to criminal convictions and sentences, the Act

generally limits a petitioner to filing one petition. 725 ILCS 5/122–1 et seq. (West 2008); People

v. Holman, 191 Ill. 2d 204, 209 (2000). Section 5/122–1(f) of the Act provides:

       “Only one petition may be filed by a petitioner under this Article without leave of the

       court. Leave of court may be granted only if a petitioner demonstrates cause for his or her

       failure to bring the claim in his or her initial post-conviction proceedings and prejudice



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        results from that failure.” 725 ILCS 5/122–1(f) (West 2008).

The plain language of section 122–1(f) expressly conditions leave to file a successive

postconviction petition on the petitioner’s satisfaction of the cause-and-prejudice test. LaPointe,

227 Ill. 2d at 44. In People v. Tidwell, 236 Ill. 2d 150 (2010), the defendant filed a successive

petition for postconviction relief but did not explicitly ask for leave of court to file a successive

postconviction petition. Our supreme court held that “a successive postconviction petition is not

considered ‘filed’ for purposes of section 122–1(f), and further proceedings will not follow, until

leave is granted, a determination dependent upon a defendant's satisfaction of the cause-and-

prejudice test.” Tidwell, 236 Ill. 2d at 161. Our supreme court concluded that the trial court

properly performed the review called for by section 122–1(f), i.e. the cause-and-prejudice test, by

“enter[ing] a thorough and reasoned order, denying leave to file the successive postconviction

petition, based upon the contents of the petition submitted.” Tidwell, 236 Ill. 2d at 162. In other

words, “there was no jurisdictional bar to the circuit court’s sua sponte ruling on the matter.”

Tidwell, 236 Ill. 2d at 162.

        Here, defendant filed a motion seeking leave to file a successive postconviction petition

based on Gant. The trial court considered, but ultimately rejected defendant’s allegations,

concluding that defendant failed to satisfy the cause-and-prejudice test. In our view, the trial

court conducted its analysis of defendant’s successive postconviction petition as required by

section 122–1(f) of the Act. We thus turn to the merits of the circuit court’s ruling on cause and

prejudice.



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        Section 122–1(f) of the Act conditions leave to file a successive postconviction petition on

the petitioner’s satisfaction of the cause-and-prejudice test. To establish cause, petitioner must

identify an objective factor that impeded his ability to raise a specific claim during his initial

postconviction proceedings. 725 ILCS 5/122–1(f) (West 2008). Here, the State concedes that

the Gant decision, coming nine years after defendant’s initial postconviction petition, is indeed an

objective factor that impeded his ability to raise the issue during the first petition. We thus turn to

whether defendant has satisfied the prejudice prong of the cause-and-prejudice test.

        To establish prejudice, defendant must show that the claim not raised during his initial

postconviction proceedings so infected the trial that the resulting conviction violated due process.

725 ILCS 5/122–1(f) (West 2008). Defendant contends that he was prejudiced when the trial

court admitted evidence obtained by the type of “search incident to arrest” that the Supreme

Court in Gant condemned. The State responds that Gant introduced a new rule of criminal

procedure, thus disqualifying it from being applied retroactively to matters on collateral review,

and also argues that under the facts of this case, the Gant rule would not bar admission of the

seized evidence because this is not a “search incident to arrest” case, specifically because this

court on direct appeal found that the officers had probable cause to search the vehicle because of

the presence of the gun in open view in the vehicle.

        Our analysis of whether Gant introduced a new rule of criminal procedure is guided by the

Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989), adopted by our supreme court

in People v. Flowers, 138 Ill. 2d 218, 237 (1990). New constitutional rules of criminal procedure


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do not apply retroactively to cases on collateral review unless the new rule either: “(1) places

certain kinds of primary, private individual conduct beyond the power of the criminal law making

authority to proscribe, or (2) requires the observance of those procedures that are implicit in the

concept of ordered liberty.” Flowers, 138 Ill. 2d at 237 (citing Teague, 489 U.S. at 307).

        The Teague Court explained that generally, “a case announces a new rule when it breaks

new ground or imposes a new obligation on the States or the Federal Government. [Citations.] To

put it differently, a case announces a new rule if the result was not dictated by precedent existing

at the time the defendant’s conviction became final.” (Emphasis in original.) Teague, 489 U.S. at

301; People v. Morris, 236 Ill. 2d 345, 359 (2010). Moreover, “ ‘the fact that a court says that

its decision is within the “logical compass” of an earlier decision, or indeed that it is “controlled”

by a prior decision, is not conclusive for purposes of deciding whether the current decision is a

“new rule” under Teague.’ ” Morris, 236 Ill. 2d at 360 (quoting Butler v. McKellar, 494 U.S.

407, 415 (1990)). Further, “a decision constitutes a new rule unless ‘a state court considering

[the] claim at the time [the] conviction became final would have felt compelled by existing

precedent to conclude that the rule *** was required by the Constitution.’ ” Morris, 236 Ill. 2d at

360 (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)).

        Applying these principles to Gant, we conclude that a new rule was created in that case.

Generally, warrantless searches are “per se unreasonable” under the fourth amendment, subject to

limited exceptions, such as a search incident to a lawful arrest. Gant, __ U.S. at __, 129 S. Ct. at

1716. This exception “derives from interests in officer safety and evidence preservation that are


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typically implicated in arrest situations.” Gant, __ U.S. at __, 129 S. Ct. at 1716. In Chimel v.

California, 395 U.S. 752, 763 (1969), the Supreme Court held that a search incident to arrest is

limited to “the arrestee's person and the area ‘within his immediate control’-construing that phrase

to mean the area from within which he might gain possession of a weapon or destructible

evidence.”

       The Supreme Court considered Chimel’s application to the automobile context in New

York v. Belton, 453 U.S. 454, 460 (1981). There, a police officer stopped a speeding car in which

the defendant was one of four occupants. Belton, 453 U.S. at 455. Suspecting that the

occupants possessed marijuana, the officer ordered the four occupants out of the vehicle, placed

them under arrest, and patted them down. Belton, 453 U.S. at 456. Without handcuffing the

arrestees, the officer then separated the four occupants so they would not be in physical touching

area of each other and searched the vehicle, including a jacket on the backseat, in which he found

cocaine. Belton, 453 U.S. at 456. The Supreme Court held that “when a policeman has made a

lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident

of that arrest, search the passenger compartment of that automobile” and any containers therein.

Belton, 453 U.S. at 460. The Supreme Court based this holding in large part on its generalization

“that articles inside the relatively narrow compass of the passenger compartment of an automobile

are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in

order to grab a weapon or evidentiary ite[m].’ ” Belton, 453 U.S. at 460 (quoting Chimel, 395

U.S. at 763).



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       The Supreme Court applied the Belton rule in Thornton v. United States, 541 U.S. 615,

618 (2004), where a police officer attempted to pull over the defendant because his license plates

did not match the car he was driving. Before the officer had the chance to pull him over, the

defendant had parked in a parking lot and exited his vehicle. Thornton, 541 U.S. at 618. The

officer accosted the defendant, asked if he could search him, and found drugs in his pocket.

Thornton, 541 U.S. at 618. The defendant was arrested, handcuffed, and placed in the backseat

of the patrol car. Thornton, 541 U.S. at 618. Incident to the arrest, the officer searched the

defendant’s car and found a handgun under the driver’s seat. Thornton, 541 U.S. at 618. The

Supreme Court stated that the Belton rule applies, even if an officer does not make contact with

the arrestee until after he has left the vehicle, so long as the arrestee was a “ ‘recent occupant’ ”

of the vehicle. Thornton, 541 U.S. at 623-24.

       With this backdrop, we turn to the Supreme Court’s decision in Gant, where the

defendant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car

before police officers searched his car and found cocaine in a jacket pocket. Gant, __ U.S. at __,

129 S. Ct. at 1714. The Supreme Court, applying the Chimel justifications of officer safety and

evidence preservation, first held that “Belton does not authorize a vehicle search incident to a

recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the

vehicle.” Gant, __ U.S. at __, 129 S. Ct. at 1714. Additionally, based on Justice Scalia’s

opinion concurring in the judgment of Thornton, the Supreme Court also held that “circumstances

unique to the automobile context justify a search incident to arrest when it is reasonable to believe



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that evidence of the offense of arrest might be found in the vehicle.” Gant, __ U.S. at __, 129 S.

Ct. at 1714. In so holding, the Supreme Court admitted that this finding “does not follow from

Chimel,” but reasoned that in some cases, “the offense of arrest will supply a basis for searching

the passenger compartment of an arrestee’s vehicle and any containers therein.” Gant, __ U.S. at

__, 129 S. Ct. at 1719.

       Read in whole, Gant stands for the two-part proposition that “[p]olice may search a

vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the

passenger compartment at the time of the search or it is reasonable to believe the vehicle contains

evidence of the offense of arrest.” Gant, __ U.S. at __, 129 S. Ct. at 1723. The Supreme Court

articulated, “The experience of the 28 years since we decided Belton has shown that the

generalization underpinning the broad reading of that decision is unfounded. *** The doctrine of

stare decisis does not require us to approve routine constitutional violations.” Gant, __ U.S. at

__, 129 S. Ct. at 1723.

       The Gant decision itself did not state that it was articulating a new rule, and the Supreme

Court has not yet specifically held that Gant constitutes a new rule. However, Justice Alito,

writing for the four dissenting justices, criticized the majority for overruling Belton’s “bright-line

rule,” which was reaffirmed by Thornton only five years prior to Gant, and replacing it with “a

new two-part rule.” Gant, __ U.S. at __, 129 S. Ct. at 1726 (Alito, J., dissenting, joined by

Roberts, C.J., and Kennedy and Breyer (except as to Part II-E), JJ.). We agree with the four

dissenting justices that Gant replaced Belton’s bright-line rule with a new two-part rule that


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significantly curtails an officer’s ability to search a vehicle incident to arrest.

        Prior to Gant, police officers were permitted to search the passenger compartment of an

arrestee’s automobile contemporaneous to arrest, so long as the arrestee was a recent occupant of

that vehicle. In contrast, Gant’s two-part rule limits an officer’s ability to search a vehicle

incident to a recent occupant’s arrest where the arrestee is within reaching distance of the

passenger compartment at the time of the search or it is reasonable to believe the vehicle contains

evidence of the offense of arrest. This rule imposes new obligations on police officers prior to

searching a vehicle incident to arrest. Similarly, courts enforcing the Gant rule must apply a new

test, first determining whether an arrestee is within reaching distance of an automobile and also

asking whether it was reasonable for an officer to believe the vehicle contained evidence of the

offense of arrest. Based on these new requirements, we conclude that Gant introduced a new

rule of law.1



        1
            While Illinois courts have not previously considered whether Gant introduced a new rule

of law, our conclusion is supported by various other courts’ reference to Gant as a “new rule.”

See, i.e., State v. Brown, No. 28430–1–III, slip op. at __ (Wash. Ct. App. January 13, 2011) (the

Gant decision “announced a new rule limiting the exception to the warrant requirement for

searches incident to arrest); United States v. Ferguson, No. 09–5056, 2010 WL 3521992, at *2

(4th Cir. Sept. 9, 2010) (Gant court “set forth new rules governing warrantless searches arising

out of vehicle stops); Baxter v. State, 2010 OK CR 20, ¶ 11, 238 P. 3d 934, 937 (“Gant is a

newly declared rule of constitutional criminal procedure ***.”).

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       Having reached this conclusion, we turn to whether the new rule should be applied

retroactively to cases on collateral review. Retroactive application would only be appropriate if

the new rule falls within one of the Teague exceptions. The first Teague exception is inapplicable,

as the Gant rule does not legalize primary, private individual conduct and does not reinterpret a

statute. Under the second exception, the Gant rule would apply if it represents a “watershed rule”

of criminal procedure implicit in the concept of ordered liberty and central to the accuracy of a

conviction. This exception should be narrowly construed. Flowers, 138 Ill. 2d at 242. Since

Teague, the “Supreme Court has rejected every claim brought before it alleging that a new rule

satisfies the requirements for watershed status.” Morris, 236 Ill. 2d at 361. The only “watershed

rule” identified by the Supreme Court was pronounced 16 years before Teague in Gideon v.

Wainwright, 372 U.S. 335, 344-45 (1963), where the Supreme Court held that counsel must be

appointed for any indigent defendant charged with a felony because the denial of such

representation presents an intolerably high risk of an unreliable verdict. The Supreme Court has

explained that the second Teague exception:

       “ ‘cannot be met simply by showing that a new procedural rule is based on a “bedrock”

       right. We have frequently held that the Teague bar to retroactivity applies to new rules

       that are based on “bedrock” constitutional rights. [Citation.] Similarly, “[t]hat a new

       procedural rule is ‘fundamental’ in some abstract sense is not enough.” [Citation.] Instead,

       in order to meet this requirement, a new rule must itself constitute a previously

       unrecognized bedrock procedural element that is essential to the fairness of a proceeding.



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        In applying this requirement, we again have looked to the example of Gideon, and “we

        have not hesitated to hold that less sweeping and fundamental rules” do not qualify.

        [Citation.]’ ” (Emphasis in original.) Morris, 236 Ill. 2d at 363 (quoting Whorton v.

        Bockting, 549 U.S. 406, 420-21 (2007)).

        The Gant rule, while certainly important, cannot be characterized as a profound and

sweeping change to rules of criminal procedure which is essential to the fundamental fairness of

criminal proceedings. This exception must be narrowly construed and we do not believe that the

Gant rule established such a component of basic due process so as to fall within it. See Flowers,

138 Ill. 2d at 242. Warrantless searches were per se unreasonable prior to Gant and remain so in

the aftermath of Gant. Rather than introducing a profound and sweeping change, Gant instead

introduced a new rule regarding the already-existing limitations placed upon officers when

conducting a search incident to arrest. Accordingly, the Gant rule does not represent a watershed

rule of criminal procedure that requires retroactive application to cases on collateral review.

        For the above-stated reasons, we hold that Gant does not apply retroactively on collateral

review. Therefore, the trial court properly denied defendant leave to file his successive

postconviction petition because defendant has not satisfied the prejudice prong of the cause-and-

prejudice test.

        Finally, even if we were to rule contrarily on the issue of whether Gant would apply

retroactively on collateral review, defendant would not satisfy the prejudice test because on direct

appeal, this court specifically determined that the police officers had probable cause to search


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defendant’s car after one of the officers observed a handgun in plain view in the car. Tripp, 306

Ill. App. 3d at 952 (citing People v. Tingle, 279 Ill. App. 3d 706, 715 (1996)) (once officer found

the first gun, it was reasonable for officer to search the entire car for evidence of criminal

activity)). Thus, this court has previously determined that the officers had probable cause to

search defendant’s vehicle, regardless of whether that search was incident to arrest. In light of

this determination, defendant was not prejudiced by his failure to raise Gant because the search

was upheld on independent probable cause grounds. “Under the law of the case doctrine, issues

presented and disposed of by a reviewing court in a prior appeal are binding upon remand to the

trial court and on subsequent appeal to the reviewing court unless the facts presented are so

different as to require a different interpretation or a higher court has changed the law.” People v.

Sutton, 375 Ill. App. 3d 889, 894 (2007). Accordingly, had we determined that Gant applied to

defendant’s successive postconviction petition, he still would have failed to satisfy the prejudice

element of the cause-and-prejudice test.

       Affirmed.




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                      REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
                                    (Front Sheet to be Attached to Each Case)

 Plea se Use
               THE PEOPLE OF THE STATE OF ILLINOIS,                             )   Appeal from the
 Following

 Form:
                                                                                )   Circuit Court of
                                Plaintiff-Appellee,                             )   Cook County.
 Complete                                                                       )
 TITLE                v.                                                        )   No. 95 CR 34971 (02)
 of Case                                                                        )
               VICTOR TRIPP,                                                    )   The Honorable
                                                                                )   Matthew E. Coghlan,
                                Defendant-Appellant.                            )   Judge Presiding.
 Docket No.                                           No. 1-09-3337
                                               Appellate Court of Illinois
 COURT
                                           First District, FOURTH Division


                                                    February 17, 2011
 Opinion
 Filed                                        (Give month, day and year)


 JUSTICES      JUSTICE LAVIN delivered the judgment of the court, with opinion.
               Gallagher, P.J., and Pucinski, J., concurred.
 APPEAL                    Lower Court and Trial Judge(s) in form indicated in the margin:
 from the
 Circuit Ct.                   The Honorable Matthew E. Coghlan, Judge Presiding.
 of Cook
 County.




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1-09-3337


 For                Indicate if attorney represents APPELLANTS or APPELLEES and include
 APPELLAN
 TS,
                         attorneys of counsel. Indicate the word NONE if not represented.
 John Doe, of
 Chicago.
                 Attorneys for Petitioner/Appellant:

 For
                                  Michael J. Pelletier, State Appellate Defender
 APPELLEE                              Alan D. Goldberg,Deputy Defender
 S,
 Smith and                         Rachel Moran, Assistant Appellate Defender
 Smith of                                 203 N. LaSAlle St., 24th floor
 Chicago,
 Joseph                                        Chicago, IL 60601
 Brown, (of
 Counsel)                                         312.814.5472
                 Attorneys for Respondent/Appellee:
 Also add
 attorneys for
                                         Anita Alvarez, State’s Attorney
 third-party          Alan Spellberg, Douglas Harvath, Joseph M. Preiser, ASA’s of Counsel
 appellants
 or                                         Room 309- Daley Center
 appellees.
                                               Chicago, IL 60602




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