                                       2014 IL App (1st) 130567
                                             No. 1-13-0567
                                                                                      Fifth Division
                                                                                   December 5, 2014

     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                    )
     THE PEOPLE OF THE STATE OF ILLINOIS,           )   Appeal from the Circuit Court
                                                    )   of Cook County.
           Plaintiff-Appellee,                      )
                                                    )   No. 06 CR 20692
     v.                                             )
                                                    )   The Honorable
     DAMON SIMON,                                   )   Frank Zelezinski,
                                                    )   Judge Presiding.
           Defendant-Appellant.                     )
                                                    )
     ______________________________________________________________________________

                   JUSTICE GORDON delivered the judgment of the court, with opinion.
                   Justices McBride and Reyes concurred in the judgment and opinion.

                                               OPINION

¶1         Following a bench trial, defendant Damon Simon was convicted of first degree murder

        for the shooting death of Robert Hill and sentenced to 50 years in the Illinois Department of

        Corrections. Defendant filed a direct appeal and, while the appeal was pending, filed a pro se

        petition for postconviction relief that was summarily dismissed at the first stage of the

        proceedings. We affirmed the trial court in both defendant’s direct appeal (People v. Simon,

        2011 IL App (1st) 091197) and in his appeal from the dismissal of his postconviction petition

        (People v. Simon, No. 1-09-2199 (2011) (unpublished order under Supreme Court Rule 23)).

        Defendant subsequently filed another petition for postconviction relief, raising additional
     No. 1-13-0567


        claims, including a claim of actual innocence. The trial court denied defendant leave to file

        the petition, finding that defendant had not demonstrated the cause and prejudice required for

        successive postconviction petitions. Defendant appeals, and we affirm.

¶2                                        BACKGROUND

¶3         The evidence at trial has been described twice before by the appellate court, in our

        opinion affirming the trial court on direct appeal (People v. Simon, 2011 IL App (1st)

        091197) and in our order affirming the dismissal of defendant’s first postconviction petition

        (People v. Simon, No. 1-09-2199 (2011) (unpublished order under Supreme Court Rule 23)).

        Those prior orders are incorporated here by reference, and the facts will be described only as

        needed for the resolution of the issues now before us.

¶4                                              I. Trial

¶5         On August 14, 2006, defendant was arrested and subsequently indicted for first degree

        murder (720 ILCS 5/9-1(a)(1) (West 2004)) for the July 21, 2006, shooting death of Robert

        Hill (the victim). In his answer to the State’s motion for pretrial discovery, defendant stated

        that he would assert the affirmative defense of self-defense. Defendant waived a jury trial

        and proceeded with a bench trial on November 12, 2008.

¶6         During the State’s case-in-chief, the State presented four witnesses who testified to the

        circumstances of the shooting. Aaron Jackson testified that he was attempting to purchase

        marijuana from defendant, who was sitting in the passenger seat of a vehicle parked in the

        parking lot of Corona’s Food Mart in Calumet Park, when defendant turned to reach behind

        his seat. Defendant turned around quickly to face forward, looking surprised, and left the

        vehicle, removing a gun from his waistband. Jackson observed the victim approaching, riding

        a bicycle in the direction of the vehicle. Defendant walked up to the victim, pointing the gun


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        at him. Jackson heard defendant tell the victim, “talk that shit now,” to which the victim

        responded “what, what,” while holding up his hands with his palms facing out; the victim

        was not holding anything in his hands and appeared surprised. Defendant stood in place and

        shot the victim twice. After Jackson observed defendant shoot the victim, Jackson “[t]ook

        off,” but heard an additional four gunshots. Jackson later testified that after the shooting, he

        observed defendant “tak[ing] off” in the vehicle.

¶7         Anthony Green testified that approximately five minutes before the shooting, he was

        standing with defendant in front of the home of the victim’s girlfriend, Star Gardner. Green

        observed the victim come out from the home with a handgun in his back pocket. When

        defendant observed the gun, he “disappeared.” Green ran up to the victim and told him to put

        the gun away because both the victim and defendant were Green’s friends and he did not

        want to see either killed. The victim then went back to Gardner’s home; when he emerged

        from the home, Green no longer observed the gun.

¶8         Green testified that he had observed the victim “pistol-whip” defendant several days

        before the shooting. Green also testified that he had heard about the victim previously

        shooting defendant and when the State objected, the trial court sustained the objection.

¶9         After speaking with the victim, Green left to find defendant and went to Corona’s Food

        Mart, located a block from Gardner’s home, to purchase a beverage. Green encountered

        defendant inside the store and they had a conversation as they walked from the store to a

        vehicle in the parking lot in which a man unknown to Green was sitting in the driver’s seat;

        defendant entered the vehicle. Green spoke to defendant through the vehicle’s passenger

        window when defendant pushed Green back and drew a gun. Green backed up, turned

        around, and observed the victim on a bicycle. Defendant opened the door, left the vehicle,


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           and fired at the victim while he was on the bicycle. Green testified that once he observed the

           victim being shot the first time, “it was like, I blanked out.”

¶ 10           The State questioned Green about a statement that Green gave to a police detective a few

           days after the shooting; Green acknowledged making the statement, but could not recall the

           date because he “[u]sed a lot of drugs.” In the statement, Green stated that the victim did not

           have a weapon and never moved toward defendant. Green testified that while the statement

           included that assertion, “to be realistic, I didn’t know what the hell was going on.” He

           acknowledged that he signed the page and was allowed to make corrections but “I can’t

           barely even read cursive, so I don’t know how I can correct something that [the detective]

           wrote.” However, Green admitted that there were several places within the statement where

           he had made corrections.

¶ 11           Green testified that after the victim was shot, Green was in shock and backed up, leaving

           the scene. He did not observe defendant entering the vehicle and leaving. The State read from

           Green’s statement that Green was attempting to leave the scene when he observed defendant

           in a vehicle and heard defendant yell “GDK,” which Green knew to mean “Gangster Disciple

           killer.” After hearing the statement, Green testified that defendant “jumped in the car[, rode]

           past and said it to me, GDK.” Green later testified that the yell could have come from

           defendant or from another member of the Black P Stones named Mooney1 who was nearby.

           Green testified that he was a Gangster Disciple with the victim, but that there were no other

           Gangster Disciples in the area of the shooting. Green later testified that there were people

           near the victim when he was riding his bicycle toward defendant, and the people were the

           same ones who had been present when the victim had pistol-whipped defendant.

               1
                 The original appellate record did not identify Mooney. However, Green’s affidavit, submitted with
       defendant’s successive postconviction petition, identifies Mooney as Aaron Jackson.

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¶ 12         Green testified that he observed defendant shooting the victim once, after which “it was

          over for me.” The State read from Green’s statement that once defendant shot the victim once

          or twice, the victim “went down,” and defendant stood over the victim, shooting him “maybe

          five or six or seven times altogether.” During cross-examination, the defense questioned

          Green about the assertion in the statement, and Green testified that the statement could not be

          true because the gun could not have held that many bullets. Green further testified that the

          detective taking his statement did not write down “the majority of what the truth was or what

          I had to say,” but admitted that most of the assertions in the statement were true; while still

          under cross-examination, Green later testified that the assertions in the statement were not

          true but then admitted during redirect examination that he had reviewed the statement shortly

          before trial and told the State’s Attorney the statement was true. During cross-examination,

          Green testified that he was considered a suspect at the time he gave his statement to police

          and heard the detective’s account of what had occurred prior to giving his statement. He

          testified that he signed the statement because he was in fear of being sent to jail and that he

          had been in the holding cell of the Calumet Park police department for three days without

          being given food or water before signing the statement. Green also testified that he was

          unable to read the majority of the statement.

¶ 13         After Green’s testimony, the State called Eric Celauro, a former assistant State’s Attorney

          who worked in the Cook County State’s Attorney’s office on July 25, 2006, to testify about

          his interview with Green and the circumstances under which the statement was obtained.

          Celauro was contacted by two detectives from the Calumet Park police department about

          interviewing Green. The interview took place in the State’s Attorney’s office and Celauro,

          Green, and the two detectives were present. Celauro informed Green that he could either


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          write a statement himself or Celauro could write it for him, after which Green would check it

          for accuracy. Green requested Celauro to write the statement. The State then asked to publish

          the statement, and defense counsel objected. The court allowed the statement to be admitted

          into evidence and published, both for purposes of impeachment and substantively.

¶ 14         In the statement, Green said that on the day of the shooting, he observed the victim

          leaving his girlfriend’s house and further observed the handle of a gun protruding from the

          victim’s back pocket. Since Green knew the victim well, he told the victim to “cool out” and

          put the gun away because there were children nearby. At the time, defendant was outside,

          one building away, and at some point, defendant went inside.

¶ 15         A short time later, as Green left Corona’s Food Mart after a brief visit, he observed

          defendant sitting in the passenger seat of the vehicle and walked over and spoke with

          defendant. Green observed a handgun in defendant’s lap. Defendant looked around Green

          “like he saw someone,” and Green turned and observed the victim on a bicycle. Defendant

          pushed Green away and exited the vehicle. Defendant was a few feet from the victim and

          walked toward him with a pointed gun. Green did not observe the victim with a weapon and

          the victim never moved toward defendant. The victim attempted to get off of his bicycle as

          defendant “got right up on him” and said something like, “what’s that shit you was talking

          about.” The victim laid his bicycle on the ground and stood with his hands in the air, saying

          something like, “are you going to do this in broad daylight,” and partially turned his back on

          defendant.

¶ 16         Defendant began shooting the victim from a foot or two away. After the first or second

          shot, the victim “went down” and defendant stood over him and continued shooting “maybe

          five or six or seven times altogether.” Green said that at some point, Jackson or someone


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          named Mooney2 had ridden in on a bicycle and observed the scene as well. Green attempted

          to walk away from the scene and observed defendant “jump” into the vehicle and drive away,

          yelling “GDK” from the vehicle, which meant “Gangster Disciple killer.”

¶ 17         Also in response to Green’s testimony, the State called as a witness Dan Maloney, an

          assistant Cook County State’s Attorney who was a witness to a conversation between one of

          the prosecutors, Shital Thakkar, and Green on November 12, 2008, during defendant’s trial.

          Maloney testified that Green did not want to be involved and did not know why he was

          “locked up,” after which Thakkar explained to Green that he was arrested and held pending

          his testimony at trial due to a warrant issued after he did not appear in court after being

          subpoenaed. Thakkar told Green that he would review Green’s statement with him and, if

          something was untrue, Green should inform Thakkar. Thakkar took Green’s handwritten

          statement and read it to Green, asking every few sentences if the statement was true; Green

          responded to each question that the statement was true. Green began laughing when Thakkar

          read the assertion regarding defendant yelling “GDK” and said something to the effect of “it

          was just funny; I can’t believe he said that”; Green acknowledged remembering the incident.

¶ 18         The State additionally called Antrelle Clayborn as a witness, who testified that on July

          21, 2006, he was driving his automobile when he received a cell call from defendant.

          Defendant told Clayborn that he had just observed Clayborn driving down the street and

          asked Clayborn to pick him up in the alley behind defendant’s house. Clayborn complied and

          defendant entered Clayborn’s vehicle with a 40-ounce beer and began talking about an

          incident that had occurred between defendant and someone else. Clayton also stated that




             2
                 As noted, in his affidavit, Green now states that Jackson and Mooney are the same person.

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          “[defendant] said it was somebody on the front that he thought had a gun who was going to

          shoot him,” but the court sustained the State’s objection on hearsay grounds.

¶ 19         Defendant asked Clayborn to drive to Corona’s Food Mart. Clayborn parked the vehicle

          and defendant exited the vehicle and entered the store while Clayborn waited. Defendant

          exited the store four or five minutes later and entered the vehicle. Anthony Green walked up

          to the passenger side of the vehicle and spoke with Clayborn.

¶ 20         Clayborn testified that the victim came “riding up” on his bicycle, not riding at a fast

          speed, and was riding toward the store, which was in the same direction as the vehicle;

          Clayborn opined that “[h]e wasn’t never close to us or nothing.” The victim was alone when

          he entered the parking lot.

¶ 21         Clayborn testified that defendant lifted his shirt and Clayborn observed the handle of a

          handgun in defendant’s waistband and defendant told Green to move out of the way so that

          defendant could open the door. Defendant jumped out of the vehicle while pulling out his

          gun, “said a few words” that Clayborn was unable to hear, and shot the victim while he was

          still on his bicycle. Clayborn was able to see both of the victim’s hands when he was riding

          up to the store and testified that both of his hands were on the handlebars of the bicycle and

          he was not holding anything else; Clayborn further testified that the victim’s hands never left

          the handlebars.

¶ 22         Clayborn was preparing to leave after the shooting when defendant opened the door and

          jumped into the vehicle. Defendant told Clayborn that the victim “ ‘had to get it.’ ”

¶ 23         The State also called Mohammed Suleiman as a witness. Suleiman was working at

          Corona’s Food Mart on the day of the shooting and observed defendant enter the store, make

          a purchase, and leave. Defendant entered a vehicle, sitting on the passenger side. A man


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          named Yale was standing near the passenger side door of the vehicle. Suleiman was

          sweeping the rug near the store’s glass front door and observed the victim riding on his

          bicycle alone, coming from the opposite side of the parking lot. The victim did not have a

          gun in his hand and Suleiman did not observe the victim reaching for his waistband; while he

          was riding his bicycle, the victim’s hands were on the handlebars.

¶ 24         Suleiman turned around to roll up the store’s rug and heard several shots. He turned back

          and observed the victim on the ground and defendant entering the vehicle and leaving.

          Suleiman noticed a gun in defendant’s hand. Suleiman testified that he never actually saw

          defendant shoot the victim because by the time he turned around, defendant was running

          toward the vehicle. Suleiman was able to see the victim lying on the ground with blood “all

          over his shirt” while he was calling police. No one approached the victim or took anything

          from him. Suleiman observed the fallen victim until the police arrived within a matter of

          seconds.

¶ 25         The State also called a Calumet Park police officer as a witness, who testified that there

          was no weapon recovered from the scene.

¶ 26         After presenting its witnesses, the State made an oral motion in limine to bar on the basis

          of hearsay Star Gardner’s anticipated testimony that the victim told her that he had

          previously “slapped the defendant around.” The trial court granted the motion in limine to bar

          that statement.

¶ 27         The parties stipulated that Dr. Nancy Jones, a forensic pathologist with the Cook County

          medical examiner’s office, would testify that she performed a postmortem examination of the

          victim on July 22, 2006, in which she found a “through-and-through” gunshot wound to the

          victim’s lateral chest, which she classified as an entrance wound. There were also three


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          gunshot wounds to the left back, from which medium caliber, partially copper jacketed, lead

          bullets were recovered. None of the gunshot wounds included evidence of close-range fire.

          Dr. Jones would further opine that the cause of the victim’s death was multiple gunshot

          wounds and the manner of death was homicide.

¶ 28         The parties also stipulated that Illinois State Police forensic scientist William Anselme

          would testify that the three bullets were fired from the same firearm. The parties further

          stipulated to the fact that defendant was arrested with probable cause on August 14, 2006.

¶ 29         In his case-in-chief, defendant called Patricia Simms to testify on his behalf. Simms was

          visiting her daughter on July 21, 2006, when defendant knocked on the door. After defense

          counsel asked Simms what happened when she answered the door, the State objected and the

          trial court sustained the objection.

¶ 30         Prior to defendant knocking on the door, Simms had observed the victim and another

          man called Yayo outside. Simms answered the door and defendant asked if he could come in.

          The State objected and the court sustained the objection, instructing Simms: “Ma’am, you

          can’t testify as to anything that he told you.” Simms testified that defendant appeared scared.

          He made a telephone call for someone to pick him up and left through the back door;

          defendant was in the house for less than five minutes.

¶ 31         Defendant also testified on his own behalf. On July 21, 2006, defendant was walking

          down the street with Green when the victim came out of an apartment. Defendant observed a

          pistol in the victim’s back pocket. The victim was approximately 10 feet from defendant and

          told defendant, “ ‘I got you now; I’m going to kill you.’ ” Green told the victim, “ ‘Man, hold

          on. Man, you don’t need to be doing this out here.’ ”




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¶ 32         Defendant testified that it was not the first occasion in which the victim had threatened

          him with the same gun. Approximately two or three days earlier, defendant was with Green

          when the victim and three of his friends approached. The victim told defendant that “he

          didn’t want to see [defendant] around there no more.” The victim’s friends held defendant

          down and the victim “pistol-whipped” defendant, hitting him across the head several times

          with the butt of the gun. Green told them to stop and ran away. Defendant did not have a gun

          during the incident and thought that the victim was going to kill him.

¶ 33         On July 21, when the victim threatened to kill defendant, defendant did not have a gun.

          After the victim threatened him, defendant testified that “I felt he was going to kill me. I was

          in fear of my life. He said he was going to kill me. He said he was going to kill me. I was in

          fear of my life.” Defendant ran next door to Simms’ house and “asked her please let me come

          in the house ‘cause somebody out there got a gun; he talking about he gonna kill me.” Simms

          opened the door and allowed defendant to come inside. Defendant observed Clayborn driving

          past the window and called him to ask him to pick defendant up. At the time, the victim was

          still in front talking with Green. When Clayborn arrived, defendant ran to his vehicle and

          they drove away. Clayborn asked defendant why he was running out of the back door of

          Simms’ house, and defendant told him “ ‘This guy in the front, he got a gun, man; he just

          told me he gonna kill me, man, just get me away from the area.’ ”

¶ 34         They stopped at the store and both went inside, where defendant purchased potato chips.

          Defendant did not have a gun when he went into the store, nor did he have a gun at Simms’

          house or when exiting the store. When they came out, defendant jumped into the passenger

          seat. Green was walking past and stopped at the passenger side of the vehicle, where he said

          that he wanted a ride to work. Clayborn told Green that he could not have a ride unless he


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          had money for gas. While they were talking, defendant looked to the right and saw the victim

          approaching on a bicycle at a fast pace toward the vehicle with some friends following him

          on foot; defendant testified that the friends were the same three friends as in the pistol-

          whipping incident.

¶ 35         Defendant had been leaning back in the passenger seat and when he turned, he and the

          victim caught each other’s attention. Defendant testified that “[o]ur face[s] saw each other,

          and I just -- he just pointed at me and I looked back at [Clayborn] and I told him, man, we

          got to go, man, this is the same guy that just had a gun on me.” Defendant first noticed the

          victim when he was 30 to 35 feet away and the victim rode his bicycle to within a few feet of

          the passenger side of the vehicle. While the victim was riding his bicycle, defendant observed

          him reach into his back pocket, where defendant had previously seen his gun. The victim

          dismounted the bicycle and pulled his gun, stating “ ‘I got you now,’ ” and Clayborn passed

          defendant a gun. Defendant did not have a gun before that time, and the gun that Clayborn

          passed to him did not belong to defendant; defendant did not know whether the gun was

          loaded.

¶ 36         Defendant exited the vehicle; he testified that he was “trapped.” The victim pointed his

          gun at defendant and said that he was going to kill him. Defendant fired his gun because he

          was afraid that the victim would kill him; he did not know how many times he shot the

          victim, but “just kn[e]w the gun went off.” Defendant testified that he never shot the victim

          in the back. The victim did not fire his gun. Defendant then entered the vehicle and Clayborn

          drove away; defendant did not say anything after the shooting. Defendant was scared after

          the shooting and did not know what to do. Defendant did not tell Clayborn to drive away, did




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          not force Clayborn to drive him to Clayborn’s family’s house, and did not ask anyone to

          dispose of the gun because the gun was not his.

¶ 37         Defendant testified that he had only a few interactions with the victim over several years

          and did not know him very well, but that “[f]or some reason,” the victim did not like him.

          Defendant also testified that the victim robbed him several years ago. However, defendant

          testified that “I ain’t wanna kill him. I ain’t have no plans on seeking no revenge on him.”

          Defendant testified that he was defending himself.

¶ 38         After defendant testified, the defense rested its case-in-chief and the parties presented

          their closing arguments. The court found that both sides agreed that defendant was the person

          who killed the victim and that the only question was whether he was justified in doing so by

          acting in self-defense. The court found that defendant and the victim had “history behind

          them,” including defendant’s testimony that the victim robbed and pistol-whipped defendant.

          However, the history did not justify the shooting. The court found that accepting defendant’s

          testimony would result in a finding that the shooting was justified by self-defense but noted

          that other testimony needed to be considered as well. After recounting the other witnesses’

          testimony, the court concluded that it did not accept defendant’s testimony and did not find it

          credible, including a consideration of second degree murder:

                 “Defense testimony I heard, and I listened very deeply to find if he acted in self-

                 defense or even unreasonably acted in self-defense. I do not accept the defendant’s

                 testimony. I do not find it credible, and on that basis I believe the State has

                 established their burden here.”

          The court found defendant guilty beyond a reasonable doubt of first degree murder.




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¶ 39         On May 4, 2009, the parties came before the trial court for sentencing and defendant’s

          posttrial motion for a new trial. The court denied the motion for a new trial and sentenced

          defendant to 50 years in the Illinois Department of Corrections. Defendant filed a notice of

          appeal the same day.

¶ 40                           II. Direct Appeal and Postconviction Petition

¶ 41         On direct appeal, defendant argued that his conviction should be reduced to second

          degree murder and remanded for resentencing because he acted with an actual, though

          unreasonable, belief in self-defense. Alternatively, defendant claimed that he was entitled to

          a new trial because: (1) the trial court erred in barring evidence that supported defendant’s

          theory of self-defense, (2) the trial court relied on an erroneous recollection of the evidence

          in weighing witness credibility, and (3) the State failed to disclose a witness’ felony

          conviction and allowed the witness to provide perjured testimony when it failed to correct the

          witness’ misstatement of his criminal history. We affirmed defendant’s conviction. Simon,

          2011 IL App (1st) 091197.

¶ 42         On June 12, 2009, 39 days after sentencing, defendant filed a pro se petition for

          postconviction relief. In the petition, defendant raised a number of arguments, including the

          claim that his trial counsel was ineffective for (1) filing a posttrial motion without reviewing

          trial transcripts after requesting that defendant pay additional funds to obtain the transcripts

          and (2) failing to argue for second degree murder despite defendant’s specific request for him

          to do so. On the same day, defendant filed a pro se posttrial motion to reconsider his

          sentence. On June 19, 2009, defendant filed a pro se posttrial motion to convert the petition

          for postconviction relief into a motion for a new trial. On July 10, 2009, the trial court denied

          defendant’s motion for a new trial and his motion to reconsider his sentence “for


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          untimeliness and for lack of jurisdiction due to a notice of appeal being filed.” The court

          further denied defendant’s postconviction petition, finding it to be frivolous and patently

          without merit. Defendant appealed the denial of his postconviction petition, and we affirmed.

          Simon, No. 1-09-2199.

¶ 43                               III. Successive Postconviction Petition

¶ 44         On October 16, 2012, defendant filed a petition for leave to file a successive

          postconviction petition. Defendant claimed that there was cause for his failure to raise all

          claims in his initial postconviction petition in that the initial petition “was intended as a post-

          trial motion, and only labeled as a post-conviction petition after Petitioner was misguided to

          do so by a jail-house lawyer.” Defendant further claimed that without leave to file the

          successive petition, he would be “effectively denied the right to present constitutional claims

          of a serious magnitude, including allegations of ineffective assistance of counsel.”

¶ 45         In the successive postconviction petition, defendant raised a number of ways in which he

          claimed his trial counsel was ineffective. Additionally, defendant claimed he had new

          evidence that he acted in self-defense and therefore was actually innocent of first degree

          murder. In support of his claim, defendant attached the affidavit of Anthony Green, who

          testified on behalf of the State at defendant’s trial. In his affidavit, Green stated that on the

          day of the shooting, the victim approached defendant in the parking lot on his bicycle and

          was accompanied by the same friends who pistol-whipped defendant two days prior to the

          shooting. Green further stated that the victim had a gun and told defendant that he would kill

          defendant. Green stated that Aaron Jackson, not defendant, yelled “GDK” and that one of the

          victim’s friends removed the victim’s gun from the scene. Green stated that the reason he did

          not come forward with this information earlier was that he was “scared” and that the police


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          “said they [were going to] lock me up for accessory to murder if I didn’t make the statement

          in which when I did make a statement they used what they wanted to use.” Green further

          stated that “the reason I didn’t clear it up at [defendant’s] trial[] was because the State

          threatened to lock me up longer if I didn’t cooperate with them[.] I didn’t want to be locked

          up any longer[.] I was told what to say so I said it[.] I just wanted to get it over with and go

          home[,] not even thinking about what will happen to [defendant].”

¶ 46         On January 18, 2013, the trial court denied defendant leave to file his successive

          postconviction petition, finding that defendant “fail[ed] to meet the cause and prejudice test

          that is necessary for the Court to allow him to file a successive petition.” This appeal follows.

¶ 47                                            ANALYSIS

¶ 48         On appeal, defendant argues that he should have been granted leave to file a successive

          postconviction petition because (1) he presented a claim of actual innocence based on the

          affidavit of Green, a “key State witness”; and (2) he demonstrated cause and prejudice for his

          failure to previously raise several meritorious claims concerning trial counsel’s

          ineffectiveness.

¶ 49                               I. Successive Postconviction Petitions

¶ 50         A postconviction proceeding is a collateral proceeding, as opposed to a direct appeal of

          the underlying judgment. People v. Ortiz, 235 Ill. 2d 319, 328 (2009). The purpose of the

          postconviction process is to permit review of constitutional issues that were not, and could

          not have been, reviewed on direct appeal. Ortiz, 235 Ill. 2d at 328. Thus, issues that could

          have been or were raised on direct appeal or a prior petition are generally considered waived,

          for purposes of the postconviction process. See Ortiz, 235 Ill. 2d at 328. The Post-Conviction




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          Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) generally contemplates that a defendant

          will file only one postconviction petition. Ortiz, 235 Ill. 2d at 328.

¶ 51         However, there are two ways to overcome the procedural bar to filing a successive

          petition: (1) the Pistonbarger cause-and-prejudice test; and (2) the Ortiz actual innocence

          test. People v. Ortiz, 235 Ill. 2d 319, 330 (2009) (describing two ways to overcome the

          procedural bar); People v. Pistonbarger, 205 Ill. 2d 444, 459 (2002). The cause-and-

          prejudice test set forth by our supreme court in Pistonbarger was subsequently codified into

          statute by our General Assembly, when it added section 122-1(f) of the Code of Criminal

          Procedure of 1963. See Pub. Act 93-493 (eff. Jan. 1, 2004). Section 122-1(f) provides, in full:

                 “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 results from that failure. For purposes of this subsection (f): (1) a prisoner

                 shows cause by identifying an objective factor that impeded his or her ability to raise

                 a specific claim during his or her initial post-conviction proceedings; and (2) a

                 prisoner shows prejudice by demonstrating that the claim not raised during his or her

                 initial post-conviction proceedings so infected the trial that the resulting conviction or

                 sentence violated due process.” 725 ILCS 5/122-1(f) (West 2012).

          Both elements of the cause-and-prejudice test must be satisfied in order for the defendant to

          prevail. People v. Guerrero, 2012 IL 112020, ¶ 15.

¶ 52         However, the Pistonbarger cause-and-prejudice test, set forth above, is not the only way

          to overcome the procedural bar against filing a successive postconviction petition. In Ortiz,

          our supreme court stated: “we hold that in a nondeath case, where a defendant sets forth a


                                                        17
       No. 1-13-0567


          claim of actual innocence in a successive postconviction petition, the defendant is excused

          from showing [the] cause and prejudice” described in section 122-1(f). Ortiz, 235 Ill. 2d at

          330. See also People v. Anderson, 401 Ill. App. 3d 134, 140 (2010) (our supreme court in

          Ortiz “specifically rejected the State’s claim that all successive postconviction petitions are

          subject to that [cause-and-prejudice] test”). The Ortiz court held that “the due process clause

          of the Illinois Constitution affords postconviction petitioners the right to assert a freestanding

          claim of actual innocence on newly discovered evidence.” Ortiz, 235 Ill. 2d at 331.

¶ 53         In the case of a claim of actual innocence, “leave of court should be denied only where it

          is clear, from a review of the successive petition and the documentation provided by the

          petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual

          innocence.” People v. Edwards, 2012 IL 111711, ¶ 24. “Stated differently, leave of court

          should be granted when the petitioner’s supporting documentation raises the probability that

          ‘it is more likely than not that no reasonable juror would have convicted him in the light of

          the new evidence’ [citation].” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup v. Delo, 513

          U.S. 298, 327 (1995)). The defendant must show that the evidence in support of his actual

          innocence claim is: (1) newly discovered; (2) material and not merely cumulative; and (3) of

          such a conclusive character that it would probably change the result on retrial. Ortiz, 235 Ill.

          2d at 333. Evidence is considered “newly discovered” if (1) it has been discovered since the

          trial; and (2) the defendant could not have discovered it sooner through due diligence. Ortiz,

          235 Ill. 2d at 334. “Evidence is considered cumulative when it adds nothing to what was

          already before the jury.” Ortiz, 235 Ill. 2d at 335. To determine whether the evidence “would

          probably change the result of retrial,” the court must conduct a case-specific analysis of the

          facts and evidence. (Internal quotation marks omitted.) Ortiz, 235 Ill. 2d at 336-37.


                                                       18
       No. 1-13-0567


¶ 54         Satisfying either the Pistonbarger cause-and-prejudice test or the Ortiz actual innocence

          test will overcome the procedural bar against successive petitions. In the case at bar,

          defendant seeks leave to file his successive petition on both bases.

¶ 55                                    II. Actual Innocence Claim

¶ 56         Defendant first argues that the trial court erred in denying him leave to file a successive

          postconviction petition because he set forth a colorable claim of actual innocence. Defendant

          claims that newly discovered evidence provided by Green establishes that the victim was

          armed and threatening to kill defendant immediately before defendant shot him in self-

          defense and further establishes that one of the victim’s friends removed the victim’s gun

          from the scene before the police arrived.

¶ 57         As noted, in the case of a claim of actual innocence, “leave of court should be denied

          only where it is clear, from a review of the successive petition and the documentation

          provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable

          claim of actual innocence.” Edwards, 2012 IL 111711, ¶ 24. “Stated differently, leave of

          court should be granted when the petitioner’s supporting documentation raises the probability

          that ‘it is more likely than not that no reasonable juror would have convicted him in the light

          of the new evidence’ [citation].” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup, 513 U.S.

          at 327). The defendant must show that the evidence in support of his actual innocence claim

          is: (1) newly discovered; (2) material and not merely cumulative; and (3) of such a

          conclusive character that it would probably change the result on retrial. Ortiz, 235 Ill. 2d at

          333. Evidence is considered “newly discovered” if (1) it has been discovered since the trial;

          and (2) the defendant could not have discovered it sooner through due diligence. Ortiz, 235

          Ill. 2d at 334. “Evidence is considered cumulative when it adds nothing to what was already


                                                      19
       No. 1-13-0567


          before the jury.” Ortiz, 235 Ill. 2d at 335. To determine whether the evidence “would

          probably change the result of retrial,” the court must conduct a case-specific analysis of the

          facts and evidence. (Internal quotation marks omitted.) Ortiz, 235 Ill. 2d at 336-37.

¶ 58         Our supreme court has noted that the denial of a successive postconviction petition

          raising a claim of actual innocence is reviewed either de novo or for an abuse of discretion,

          but has declined to decide the question of the applicable standard of review. Edwards, 2012

          IL 111711, ¶ 30. Like our supreme court, we have no need to resolve the issue, as

          defendant’s claim in the case at bar fails under either standard of review. See Edwards, 2012

          IL 111711, ¶ 30 (“We need not decide this question in this case, however. Petitioner’s claim

          of actual innocence here fails under either standard of review.”).

¶ 59         In the case at bar, the “newly discovered evidence” defendant points to as support for his

          actual innocence claim is in the form of Green’s affidavit. In his affidavit, Green stated that

          on the day of the shooting, the victim approached defendant in the parking lot on his bicycle

          and was accompanied by the same friends who pistol-whipped defendant two days prior to

          the shooting. Green further stated that the victim had a gun and told defendant that he would

          kill defendant. Green stated that Aaron Jackson, not defendant, yelled “GDK” and that one of

          the victim’s friends removed the victim’s gun from the scene. Green stated that the reason he

          did not come forward with this information earlier was that he was “scared” and that the

          police “said they [were going to] lock me up for accessory to murder if I didn’t make the

          statement in which when I did make a statement they used what they wanted to use.” Green

          further stated that “the reason I didn’t clear it up at [defendant’s] trial[] was because the State

          threatened to lock me up longer if I didn’t cooperate with them[.] I didn’t want to be locked




                                                        20
       No. 1-13-0567


          up any longer[.] I was told what to say so I said it[.] I just wanted to get it over with and go

          home[,] not even thinking about what will happen to [defendant].”

¶ 60         Green’s affidavit does not support a colorable claim of actual innocence. First, several of

          the statements in the affidavit were already introduced during defendant’s trial, either

          through Green’s testimony or through his statement to police, admitted as substantive

          evidence at trial. For instance, at one point during his trial testimony, Green testified that

          there were people near the victim when he was riding his bicycle toward defendant and that

          those people were the same ones who had been present when the victim had previously

          pistol-whipped defendant. Similarly, while Green was inconsistent in his testimony on the

          issue, he testified at one point that the yell of “GDK” could have come from defendant or

          Mooney, whom he now identifies in his affidavit as Aaron Jackson. Thus, these assertions

          are not “new.”

¶ 61         Additionally, the arguably “new” information in Green’s affidavit contradicts his

          testimony at defendant’s trial and his statement to police. For instance, in his statement to

          police, Green stated that the victim did not have a weapon and never moved toward

          defendant. Green’s affidavit attempts to explain this contradiction by stating that the reason

          he did not come forward with this information earlier was that he was “scared” and that the

          police “said they [were going to] lock me up for accessory to murder if I didn’t make the

          statement [and] when I did make a statement they used what they wanted to use.” Green

          further stated that “the reason I didn’t clear it up at [defendant’s] trial[] was because the State

          threatened to lock me up longer if I didn’t cooperate with them[.] I didn’t want to be locked

          up any longer[.] I was told what to say so I said it[.] I just wanted to get it over with and go




                                                        21
       No. 1-13-0567


          home[,] not even thinking about what will happen to [defendant].” However, these claims are

          affirmatively rebutted by the record.

¶ 62         As the State notes, Green’s testimony at trial does not demonstrate that Green

          “cooperate[d] with” the State because the State “threatened to lock [him] up longer” if he did

          not do so. Instead, the record reflects that Green was extremely reluctant to testify

          consistently with his statement and, in fact, attempted to distance himself from the statement

          wherever possible. When the State questioned Green about the statement, Green

          acknowledged making the statement, but could not recall the date because he “[u]sed a lot of

          drugs.” When the State asked about Green’s claim in the statement that the victim did not

          have a weapon and never moved toward defendant, Green testified that while the statement

          included that assertion, “to be realistic, I didn’t know what the hell was going on.” He

          acknowledged that he signed the page and was allowed to make corrections but “I can’t

          barely even read cursive, so I don’t know how I can correct something that [the detective]

          wrote.” On cross-examination, when the defense questioned Green about his assertion in the

          statement that once defendant shot the victim once or twice, the victim “went down,” and

          defendant stood over the victim, shooting him “maybe five or six or seven times altogether,”

          Green testified that the statement could not be true because the gun could not have held that

          many bullets. Green further testified that the detective taking his statement did not write

          down “the majority of what the truth was or what I had to say,” but admitted that most of the

          assertions in the statement were true; while still under cross-examination, Green later

          testified that the assertions in the statement were not true but then admitted during redirect

          examination that he had reviewed the statement shortly before trial and told the assistant

          State’s Attorney the statement was true. During cross-examination, Green also testified that


                                                     22
       No. 1-13-0567


          he was considered a suspect at the time he gave his statement to police and heard the

          detective’s account of what had occurred prior to giving his statement. He testified that he

          signed the statement because he was in fear of being sent to jail and that he had been in the

          holding cell at the Calumet Park police department for three days without being given food

          or water before signing the statement. Green also testified that he was unable to read the

          majority of the statement. Thus, far from cooperating with the State due to its threats “to lock

          [him] up longer” if he did not do so, Green’s trial testimony demonstrates that he was

          actively not cooperating with the State. In fact, due to Green’s testimony, the State called two

          witnesses specifically to testify as to the circumstances under which Green’s statement was

          obtained and the prosecutor’s conversation with Green prior to his trial testimony. Thus, we

          cannot find that Green’s affidavit supports a colorable claim of actual innocence and,

          therefore, the trial court did not err in denying defendant leave to file his successive

          postconviction petition.

¶ 63         We find defendant’s attempts to draw an analogy between his case and those of People v.

          Molstad, 101 Ill. 2d 128 (1984), and People v. Sparks, 393 Ill. App. 3d 878 (2009), to be

          unpersuasive. First, neither of the cases involved a successive postconviction petition, so the

          question before the reviewing court was slightly different than that present in the case at bar.

          In Molstad, the court was reviewing a posttrial motion for a new trial (Molstad, 101 Ill. 2d at

          132), while in Sparks, the court was reviewing a first-stage dismissal of an initial

          postconviction petition (Sparks, 393 Ill. App. 3d at 879). See Edwards, 2012 IL 111711, ¶ 29

          (holding that the standards for a first-stage postconviction petition and a successive

          postconviction petition are different, in part because “treating successive petitions the same

          as initial petitions *** ignores the well-settled rule that successive postconviction actions are


                                                       23
       No. 1-13-0567


          disfavored by Illinois courts”). Most importantly, in both cases, the “newly discovered

          evidence” submitted by the defendant was in the form of affidavits of witnesses who were

          unknown or unavailable to testify at the defendant’s trial. Molstad, 101 Ill. 2d at 134-35

          (testimony of codefendants was newly discovered evidence that could not have been earlier

          discovered, as codefendants could not be forced to incriminate themselves); Sparks, 393 Ill.

          App. 3d at 885 (testimony of eyewitness unknown to the defendant and who had been

          threatened by the actual shooter was arguably newly discovered evidence). Here, by contrast,

          Green was available and, in fact, testified at defendant’s trial. Thus, Molstad and Sparks do

          not support defendant’s argument and we affirm the denial of leave to file the actual

          innocence portion of defendant’s successive petition.

¶ 64                               III. Ineffective Assistance of Counsel

¶ 65         Defendant also argues that the trial court erred in denying him leave to file a successive

          petition raising several claims of ineffective assistance of counsel because he satisfied the

          Pitsonbarger cause-and-prejudice test. As noted, the cause-and-prejudice test set forth by our

          supreme court in Pistonbarger was subsequently codified into statute by our General

          Assembly, when it added section 122-1(f) of the Code of Criminal Procedure of 1963. See

          Pub. Act 93-493 (eff. Jan. 1, 2004). Under section 122-1(f), leave to file a successive petition

          “may be granted only if a petitioner demonstrates cause for his or her failure to bring the

          claim in his or her initial post-conviction proceedings and prejudice results from that failure.”

          725 ILCS 5/122-1(f) (West 2012). Section 122-1(f) further provides that: “(1) a prisoner

          shows cause by identifying an objective factor that impeded his or her ability to raise a

          specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows

          prejudice by demonstrating that the claim not raised during his or her initial post-conviction


                                                       24
       No. 1-13-0567


          proceedings so infected the trial that the resulting conviction or sentence violated due

          process.” 725 ILCS 5/122-1(f) (West 2012). Both elements of the cause-and-prejudice test

          must be satisfied in order for the defendant to prevail. Guerrero, 2012 IL 112020, ¶ 15. Our

          review of the trial court’s dismissal of defendant’s postconviction petition is de novo. People

          v. Edwards, 197 Ill. 2d 239, 247 (2001). De novo consideration means we perform the same

          analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,

          578 (2011).

¶ 66         As an initial matter, defendant argues that we should not consider his postconviction

          petition to be a successive petition, but instead should consider it to be an initial

          postconviction petition. After defendant filed his initial postconviction petition, he sought to

          convert it into a motion for a new trial. Thus, since he did not wish for the first

          postconviction petition to in fact be considered a postconviction petition, he argues that the

          instant petition should be considered his initial petition. We have no need to answer this

          question, however, as even under the more lenient standards of a first-stage initial

          postconviction petition, defendant’s ineffective assistance of counsel claims would fail.

¶ 67         The Illinois Supreme Court has found that, to determine whether a defendant was denied

          his or her right to effective assistance of counsel, an appellate court must apply the two-prong

          test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d

          125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland)).

          Under Strickland, a defendant must prove both (1) his attorney’s actions constituted errors so

          serious as to fall below an objective standard of reasonableness; and (2) absent these errors,

          there was a reasonable probability that his trial would have resulted in a different outcome.

          People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94).


                                                      25
       No. 1-13-0567


¶ 68         Under the first prong of the Strickland test, the defendant must prove that his counsel’s

          performance fell below an objective standard of reasonableness “under prevailing

          professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004).

          Under the second prong, the defendant must show that, “but for” counsel’s deficient

          performance, there is a reasonable probability that the result of the proceeding would have

          been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[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.” Evans, 209 Ill. 2d at 220; Colon,

          225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s

          performance.

¶ 69         To prevail, the defendant must satisfy both prongs of the Strickland test. Colon, 225 Ill.

          2d at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective-assistance claim can be

          disposed of because the defendant suffered no prejudice, we need not determine whether

          counsel’s performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We do

          not need to consider the first prong of the Strickland test when the second prong cannot be

          satisfied. Graham, 206 Ill. 2d at 476.

¶ 70         In the case at bar, defendant argues that his trial counsel was ineffective in the following

          ways: (1) failing to present any mitigating evidence at sentencing; (2) misleading defendant

          into waiving his right to a jury trial by promising him that he would be acquitted if he chose a

          bench trial; (3) coming to court intoxicated on at least one occasion prior to trial; and (4)

          failing to present available evidence of self-defense. We cannot find that any of these claims

          even arguably demonstrate ineffective assistance of counsel.


                                                      26
       No. 1-13-0567


¶ 71         First, with regard to defendant’s argument concerning counsel’s failure to present

          mitigating evidence at sentencing, “failure to offer evidence in mitigation does not, in and of

          itself, demonstrate deficient performance.” People v. Orange, 168 Ill. 2d 138, 167-68 (1995).

          Furthermore, “[e]ven where counsel’s performance is deficient due to the failure to

          investigate mitigating evidence and present it to the [fact finder], the defendant must still

          demonstrate prejudice to sustain a claim.” People v. Pulliam, 206 Ill. 2d 218, 239 (2002). In

          the case at bar, defendant argues that trial counsel was ineffective for failing to present

          mitigating evidence at sentencing, pointing to nine affidavits from defendant’s family

          members who would have been willing to testify on defendant’s behalf. These affidavits all

          state, in essence, that defendant was well-behaved and helpful growing up and demonstrated

          a strong work ethic through his employment history. However, defendant’s presentence

          investigation report contained similar information about defendant’s personal history,

          including his good relationship with his family and his employment history. Thus, as the

          presentence investigation report was considered by the trial court in sentencing defendant,

          the additional testimony of defendant’s family members would have been essentially

          cumulative and defendant can show no prejudice on this basis. See People v. Phyfiher, 361

          Ill. App. 3d 881, 886 (2005) (“Trial counsel cannot be faulted for failing to introduce

          mitigation evidence that was already presented in the report. [Citation.] Defendant cannot

          make out a claim of ineffectiveness where the testimony he claims should have been offered

          was cumulative to evidence already in the record.”); People v. Griffin, 178 Ill. 2d 65, 88

          (1997) (finding no prejudice where testimony from the defendant’s family members as to the

          defendant’s troubled childhood would have been cumulative, as the information was already

          presented through the presentence investigation report). This distinguishes defendant’s case



                                                      27
       No. 1-13-0567


          from those he cites, which are death-penalty cases in which the record affirmatively

          demonstrated a lack of investigation and the court found the proffered mitigating evidence

          had the potential of influencing the sentence. See Orange, 168 Ill. 2d at 170-73; People v.

          Steidl, 177 Ill. 2d 239, 257-60 (1997).

¶ 72         Additionally, “we must assess prejudice in a realistic manner based on the totality of the

          evidence. Accordingly, it is improper to focus solely on the potential mitigating evidence.”

          People v. Coleman, 168 Ill. 2d 509, 538 (1995); People v. Easley, 192 Ill. 2d 307, 341

          (2000). Instead, “the nature and extent of the evidence in aggravation must also be

          considered.” Coleman, 168 Ill. 2d at 538; Easley, 192 Ill. 2d at 341. In the case at bar, the

          trial court placed the most weight on the fact that the victim was shot to death during the

          middle of the day in front of a grocery store and that numerous gunshots were fired. The

          court also noted that, although he had no prior felony background, defendant was “not a

          newcomer” to the criminal justice system. For these reasons, the trial court sentenced

          defendant to 50 years, 5 years above the statutory minimum. Given this evidence in

          aggravation, “[t]he failure of defendant’s trial counsel to place more information from

          defendant’s past onto the scale probably would not have tipped it in defendant’s favor.”

          Easley, 192 Ill. 2d at 341. Accordingly, we cannot find even an arguable basis for

          ineffectiveness here.

¶ 73         Next, with regard to defendant’s claim that he waived his right to a jury trial because trial

          counsel promised him an acquittal, defendant’s affidavit in support of his postconviction

          petition states: “I told counsel that I wanted to go with a jury trial. He brought up that he

          knows the judge and that he will be *** basing it off ‘law’ which will be essential for me to

          get acquitted. He promised me freedom with a bench trial. Told me if I went with a jury, they


                                                      28
       No. 1-13-0567


          could bring up that I was in a gang. Even though I was in a gang at the time, that was not a

          factor as to the shooting. He promised me that I will go home with a bench trial. So I went

          along with his decision.” (Emphasis in original.) “When a defendant’s challenge to a jury

          waiver is predicated on a claim of ineffective assistance of counsel, the court must determine:

          (1) whether counsel’s performance fell below an objective standard of reasonableness; and

          (2) ‘whether there exists a reasonable likelihood that the defendant would not have waived

          his jury right in the absence of the alleged error.’ ” People v. Batrez, 334 Ill. App. 3d 772,

          782 (2002) (quoting People v. Maxwell, 148 Ill. 2d 116, 142-43 (1992)).

¶ 74         The decision of whether to choose a bench trial or jury trial belongs to the defendant, not

          to his counsel. People v. McCarter, 385 Ill. App. 3d 919, 943 (2008). However, “advice on

          waiving a jury trial constitutes the type of trial strategy and tactics that cannot support a

          claim of ineffectiveness.” People v. Elliott, 299 Ill. App. 3d 766, 774 (1998). In the case at

          bar, defendant’s counsel on appeal focuses on the portion of defendant’s affidavit in which

          defendant states that trial counsel “promised me freedom with a bench trial” and “promised

          me that I will go home with a bench trial. So I went along with his decision.” (Emphasis in

          original.) However, the sentence before the quoted language provides important context to

          the rest of defendant’s statements: “He brought up that he knows the judge and that he will

          be *** basing it off ‘law’ which will be essential for me to get acquitted.” It is clear from the

          entirety of defendant’s affidavit that trial counsel was advising defendant to waive a jury trial

          because counsel knew that the judge would base his decision on the law instead of on the fact

          that defendant was a gang member, as a jury might do. This type of advice does not

          constitute ineffective assistance of counsel.




                                                          29
       No. 1-13-0567


¶ 75         Defendant attempts to draw an analogy between his case and that of People v. Smith, 326

          Ill. App. 3d 831, 848 (2001), in which the defendant alleged that his trial counsel advised the

          defendant “that it would be better to take a bench trial because the judge owed [the attorney]

          a favor and would have information not available to the jury” and the appellate court found

          the allegations sufficient to survive the first stage of the postconviction process. We do not

          find the situation here analogous to that one. Here, there is no allegation that trial counsel had

          any sort of illicit agreement with the judge that led to the waiver of a jury trial. Instead, trial

          counsel merely advised defendant that he would be more likely to obtain “freedom” with a

          bench trial because the judge would be “basing it off ‘law.’ ” We find the situation here more

          analogous to that present in People v. Hobson, 386 Ill. App. 3d 221, 242 (2008), in which the

          defendant alleged: “ ‘When I told him [defense counsel] that I shot the deceased in self

          defense, he told me to waive a jury and take a bench trial. He told me that the judge ***

          would find me not guilty if I took a bench trial, that he knew the judge and the judge was

          alright.’ ” On appeal, authoring justice Joseph Gordon noted that “we cannot dismiss as

          unreasonable counsel’s strategic decision to advise his client to opt for a bench trial with a

          trial judge whom defense counsel knew as sympathetic, rather than a trial with an

          unpredictable jury, whom defense counsel knew nothing about.” Hobson, 386 Ill. App. 3d at

          243. Further, the court found that “defense counsel’s advice to defendant to waive his right to

          a jury because ‘he knew the judge and [the judge] was alright’ and would find him not guilty,

          constituted a prediction based upon counsel’s evaluation of the mitigating circumstances of

          the case which counsel intended to assert on behalf of defendant and his knowledge by

          reputation and/or by experience of the trial judge’s previous record.” Hobson, 386 Ill. App.

          3d at 243. In the case at bar, the advice trial counsel allegedly gave defendant is similar, and



                                                        30
       No. 1-13-0567


          accordingly, we cannot find that it forms the basis for an ineffective assistance of counsel

          claim.

¶ 76         Next, defendant claims that trial counsel “came to court intoxicated and smelling of

          liquor on at least one occasion before trial.” Even if these assertions are accepted as true, the

          fact that defense counsel was under the influence of drugs or alcohol does not establish per se

          ineffective assistance of counsel. See People v. Burris, 315 Ill. App. 3d 615, 617 (2000)

          (“That counsel was using alcohol or drugs at the time of defendant’s trial does not establish

          per se ineffective assistance.”); People v. Barraza, 253 Ill. App. 3d 850, 856 (1993)

          (specifically “reject[ing] the argument that we should find that defense counsel was

          ineffective per se because of an allegation that defense counsel was alcohol impaired”);

          People v. White, 180 Ill. App. 3d 781, 791 (1989); People v. Bernardo, 171 Ill. App. 3d 652,

          659 (1988). In the case at bar, defendant does not allege that trial counsel’s intoxication on an

          unspecified pretrial date prejudiced him in any way. In the absence of any prejudice,

          defendant cannot make even an arguable claim for ineffective assistance of counsel. See

          White, 180 Ill. App. 3d at 791. Defendant argues in his brief that “prejudice may be presumed

          where counsel’s representation constructively amounted to a denial of counsel.” However,

          defendant has not pointed to any way in which trial counsel’s representation “constructively

          amounted to a denial of counsel” other than a bare allegation that trial counsel was

          intoxicated on an unspecified pretrial court date. We will not presume prejudice under the

          facts as alleged and accordingly find no basis for a claim of ineffective assistance of counsel.

¶ 77         Finally, defendant claims that trial counsel failed to present relevant evidence of self-

          defense. Specifically, defendant argues that trial counsel was ineffective for failing to

          introduce medical records that showed defendant had been shot in 2004, which would have


                                                       31
No. 1-13-0567


    corroborated defendant’s claim that the victim had previously shot defendant and supported

    his self-defense claim. 3 On direct appeal, we discussed a similar issue concerning evidence

    that defendant had been shot by the victim, namely, Green’s attempt to testify that he had

    heard that the victim had previously shot defendant. Simon, 2011 IL App (1st) 091197,

    ¶¶ 69-72, 75-78. Although we found that there was no error in the exclusion of Green’s

    testimony, we also found that even if there had been error, the evidence was not so closely

    balanced that it threatened to tip the scales of justice against defendant. Simon, 2011 IL App

    (1st) 091197, ¶ 75. Specifically, we noted:

             “Defendant was permitted to testify that the victim had robbed him, which was the

             same incident in which he was supposedly shot. Additionally, Green and defendant

             both testified to the pistol-whipping incident, so the trial court was aware that there

             was a history of the victim acting violently toward defendant. The trial court also

             heard from Green and defendant that the victim had threatened defendant with a gun

             several minutes prior to the shooting. Finally, the evidence was weighed heavily

             against defendant, with four eyewitnesses to the circumstances of the shooting. Any

             additional testimony concerning the victim’s violent behavior toward defendant

             would not have tipped the scales in defendant’s favor.” Simon, 2011 IL App (1st)

             091197, ¶ 76.

    We also noted that, “[h]ere, *** defendant testified to the robbery, the pistol whipping, and

    the threat shortly before the shooting. His testimony regarding the pistol whipping and the

    threat were corroborated by Green’s testimony, and Clayborn and Simms testified to

    defendant’s demeanor directly after receiving the threat. Several witnesses also testified to

        3
         Defendant also states that “Alex Cruz and his brother Chico” were present during the prior shooting, but
was unable to obtain affidavits from either of them.

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          the victim’s membership in the Gangster Disciples gang. Thus, *** there was evidence of

          several instances of violent behavior by the victim and multiple witnesses testifying.” Simon,

          2011 IL App (1st) 091197, ¶ 77.

¶ 78         While in the case at bar, defendant’s burden is lower than on direct appeal, where he was

          arguing plain error, we find our previous analysis equally applicable to determining whether

          there is even an arguable basis for an ineffective assistance claim. In his brief, defendant

          claims that if defense counsel had used defendant’s medical records to question defendant

          about the incident in which the victim shot defendant, “evidence of [the victim’s] history of

          violence and aggression could easily have changed the court’s assessment as to how

          threatening he actually was.” However, in light of the evidence of self-defense that was

          presented at trial, in addition to defendant’s ability to testify that he had been previously

          robbed by the victim, we see no way that the inclusion of this additional evidence would

          have had any impact on the outcome of the trial and, accordingly, defendant cannot raise

          even an arguable ineffectiveness claim.

¶ 79         In the case at bar, therefore, even looking at the postconviction petition in the way

          defendant urges---as an initial postconviction petition instead of as a successive one---

          defendant’s arguments do not present even an arguable basis for ineffective assistance of

          counsel. Accordingly, the trial court did not err in denying defendant leave to file his

          postconviction petition.

¶ 80                                         CONCLUSION

¶ 81         The trial court did not err in denying defendant leave to file a successive postconviction

          petition because (1) the petition did not present a colorable claim of actual innocence and (2)




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          even examining the petition under the more lenient standard of an initial postconviction

          petition, there is no basis for defendant’s ineffective assistance of counsel claims.

¶ 82         Affirmed.




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