                         No. 3--05--0886
               (Consolidated with No. 3--06--0287)
_________________________________________________________________
Filed April 8, 2008
                              IN THE

                   APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                           A.D., 2008

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 10th Judicial Circuit,
                                ) Peoria County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 01--CF--125
                                )
WILLIE LEE COLEMAN,             ) Honorable
                                ) James E. Shadid,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

     JUSTICE HOLDRIDGE delivered the Opinion of the court:
_________________________________________________________________


     In 2001, the defendant, Willie Lee Coleman, was convicted of

two counts of possession with the intent to deliver a controlled

substance (720 ILCS 570/401(a)(1)(A), (d) (West 2000)).   He was

sentenced to concurrent terms of 36 and 7 years' imprisonment,

court costs, and a drug assessment of $3,500.    On direct appeal,

this court affirmed the defendant's conviction and sentence.

People v. Coleman, No. 3--01--0539 (2003) (unpublished order

under Supreme Court Rule 23).   In 2002, the defendant filed a

petition for postjudgment relief (postjudgment petition) (735

ILCS 5/2--1401 (West 2002)), and in 2003 the defendant filed a

first petition for postconviction relief (first postconviction
petition) pursuant to the Illinois Post-Conviction Hearing Act

(Act) (725 ILCS 5/122--1 et seq. (West 2002)).    Both petitions

were dismissed by the circuit court, and the defendant appealed.

This court affirmed the dismissal of the postconviction petition

but reversed the dismissal of the postjudgment petition and

remanded the latter for further proceedings.     People v. Coleman,

358 Ill. App. 3d 1063, 835 N.E.2d 387 (2005).    On remand, the

circuit court dismissed the defendant's postjudgment petition.

The defendant appealed that dismissal to this court, and that

appeal was docketed as case No. 3--06--0287.    In the meantime,

the defendant had sought leave to file a successive petition for

postconviction relief (successive postconviction petition).      The

circuit court denied leave to do so.    The defendant appealed that

ruling, and this court docketed that appeal as case No. 3--05--

0886.   For purposes of the instant appeal, case Nos. 3--05--0886

and 3--06--0287 have been consolidated.   We affirm.

                               FACTS

                             I. Trial

     On February 1, 2001, the Peoria police executed a search

warrant at 1507 W. Butler, which was a known drug house.    In

addition to the search warrant, the police had an arrest warrant

for Otis Ross, whom the police believed to be residing at 1507 W.

Butler.




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     To execute the search warrant, an undercover officer went to

the back door of the home and posed as a drug buyer.    The officer

testified that he knocked on the back door, and the defendant

answered it.    The officer said that he wanted to purchase "two

bags."   The defendant went back into the house and then returned

to the back door and opened it.    At that point, two police

officers rushed the defendant and knocked him to the ground.

Meanwhile, several other police officers attempted to enter

through the front door.    They were unsuccessful and ultimately

entered through the back door.

     In the living and dining area of the house, the police found

111 small packages of heroin.    They also found a 38-gram rock of

cocaine as well as several individual baggies of cocaine.      It

appeared that someone had been breaking the rock into smaller

individual portions of cocaine.    The police also discovered that

the front door had been wedged shut with a shovel.

     The defendant testified that his cousin lived in the house.

He told the police that he did not live in the house and he was

only visiting.    However, one of the officers testified that the

defendant told him he had been staying in the house since

Thanksgiving.

     The police searched the unattached garage and found a car.

In the glove compartment, they found an application for natural

gas service addressed to William L. Coleman at 1507 W. Butler.


                                  3
The defendant testified that the application belonged to his

cousin, William Lawrence Coleman, who was known as "Larry."      He

asserted that his cousin had left the application in the glove

compartment a few days earlier when the defendant had assisted

his cousin in moving into the house on Butler.

     The police also found a key to the back door and a key to a

padlock on an upstairs room door on the defendant’s key ring.

     The defendant testified that he came to Peoria with a

friend, Vratraun Robinson, and intended to visit his girlfriend.

They stopped in Dwight and purchased milk and donuts.    As they

neared Peoria, the defendant began to have stomach problems and

needed to stop.   He decided to stop at his cousin’s house because

it was closer than his girlfriend’s.    He called his cousin from a

cellular phone to see if he was home.    His cousin told him to

stop by and requested that he park in the garage.

     The defendant and Robinson arrived around 9 p.m.    They

entered his cousin’s home through the front door.    The defendant

went upstairs immediately to use the washroom.    He heard voices

and thought that there were people besides his cousin and his

friend in the house.   His friend used the cellular phone, which

his cousin then brought upstairs to the defendant.    The defendant

called his girlfriend.   While he was on the phone with her, he

heard knocking at the door.   He went downstairs and realized he

was the only person in the house.    When he answered the back


                                 4
door, the police ran in and threw him to the ground.     He said he

did not know there were drugs in the house until the police took

him into the living room in handcuffs.

     Robinson testified on the defendant's behalf.     He and the

defendant were en route to Peoria from Chicago when they stopped

to eat.    As they neared Peoria, the defendant had to use the

bathroom.    They decided to stop at 1507 W. Butler, the home of

the defendant's cousin Larry, and arrived around 9 p.m.     The

defendant parked his car in the garage, and then Robinson, the

defendant, and the defendant's cousin entered the residence

through the front door.    Although the defendant had made an

emergency stop to use the bathroom, the defendant first spoke

with his cousin for about five minutes.     Robinson only saw the

defendant's cousin, but he heard others speaking in the home.

     Robinson then used the defendant's phone to make a call.

Robinson called a girl he knew and requested that she pick him

up, and then the defendant went upstairs while using the phone.

Robinson waited outside for 10 minutes for his ride to arrive and

did not see anyone leave or enter the residence during this time.

Robinson left and returned to 1507 W. Butler 20 to 30 minutes

later.    By this time, the police were at the premises and had

executed the search warrant.    Robinson knocked on the front door

and was told to go to the back.    He did and was immediately

cuffed.    At this time, it was 9:22 p.m.   Robinson was taken to


                                  5
jail on an outstanding traffic warrant and released later that

night.

     The jury convicted the defendant of two counts of possession

with the intent to distribute a controlled substance.   The judge

sentenced the defendant as described above.   The defendant

appealed.

                        II. Direct Appeal

     On appeal, the defendant argued that (1) he was improperly

indicted without a preliminary hearing, (2) his counsel was

ineffective, (3) the trial judge should have recused himself

because he had previously represented the defendant, (4) he was

not proven guilty beyond a reasonable doubt, (5) his due process

rights were denied when his crime was enhanced from a Class 1 to

a Class X felony, and (6) he was entitled to a $5 per day credit

for time served in pretrial custody.   This court granted the

credit against the defendant's fine, but otherwise affirmed.

People v. Coleman, No. 3--01--0539 (2003) (unpublished order

under Supreme Court Rule 23).   In response to the defendant's

argument that he was not proven guilty beyond a reasonable doubt,

we held, "[g]iven the strong evidence of the defendant's guilt

and the utter implausibility of the defendant's testimony, we

cannot say that the jury's finding was unreasonable."

                  III. Other Collateral Filings




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     The defendant first filed a pro se postjudgment petition in

September 2002.   735 ILCS 5/2--1401 (West 2002).   In this

petition, the defendant challenged his arrest and the search and

seizure of evidence from the home on 1507 W. Butler.    The

defendant also asserted that a Peoria police officer gave false

testimony to the grand jury and that the State failed to weigh

each package of contraband.

     In March 2003, the defendant, pro se, filed a first

postconviction petition.    725 ILCS 5/122--1 et seq. (West 2002).

This petition asserted that the Peoria police officer who wrote

the affidavit in support of the search warrant invented the

confidential informant.    The defendant also argued that trial

counsel was ineffective for failing to challenge the affidavit.

     On motion of the State, the trial court dismissed the

defendant's postjudgment petition, finding the defendant's claims

were res judicata.   The circuit court also summarily dismissed

the defendant's first postconviction petition as frivolous and

patently without merit, on the basis that the defendant waived

the issues presented since they were not pursued on direct

appeal.   The defendant appealed the dismissal of both the

petition for relief from judgment and petition for postconviction

relief.   This court affirmed the dismissal of the defendant's

first postconviction petition, but reversed the dismissal of the




                                  7
postjudgment petition and remanded it for further proceedings.

Coleman, 358 Ill. App. 3d 1063, 835 N.E.2d 387.

     Before the circuit court ruled on the defendant's

postjudgment petition, the defendant was allowed to supplement

this petition.   The defendant filed a petition to amend his

previous postjudgment petition.   He now asserted that (1) he was

a guest in the home at 1507 W. Butler and therefore should never

have been charged, (2) Otis Ross had never been in the home at

1507 W. Butler, and (3) the police used the warrant as a pretext

for entering the residence.   The trial court denied the

postjudgment petition on res judicata grounds, concluding that

the issues could have been raised on direct appeal.      The

defendant appealed, and this court docketed the case as No. 3--

06--0287.

               IV. Successive Post-Conviction Petition

     In the meantime, on October 25, 2005, the defendant filed a

successive postconviction petition claiming actual innocence

based on newly discovered evidence.   725 ILCS 5/122--1 et seq.

(West 2004).   In this petition, the defendant asserted that (1)

the search warrant for 1507 W. Butler was based on false

information, (2) the police failed to use proper surveillance

before executing the search warrant, thus allowing time for some

to escape while leaving an innocent person alone in the home, and

(3) the warrant was for the wrong person's home because while


                                  8
"everyone had a[n] idea drugs [were] inside the house, the Peoria

Police [were] clueless to who sold drugs from" this location.

Attached to the petition were affidavits from Otis Ross, Richard

Welch and Keith Mitchell.    The defendant asserted that these

individuals were not called to testify at trial and supported his

claim of actual innocence.

     Ross averred that he did not sell drugs from 1507 W. Butler

and that he never lived at the residence, nor had he been a

"repeated visitor" to this location.    However, Ross also stated

that he was "no stranger" to 1507 W. Butler because in 2000, he

would visit a female friend who lived at the address.

     Welch and the defendant met while they were incarcerated in

the Peoria County jail and conferred about the defendant's

instant arrest when they met again at the Illinois River

Correctional Center.   Welch averred that he was familiar with the

activity that took place at 1507 W. Butler and had never seen

Ross at that residence, nor had he seen the defendant at that

residence or on that block.    Welch also stated that the home was

used only to package drugs, not to sell them.    Welch then averred

that an individual named Jarod Carpenter told him that others

were packaging drugs on February 1, 2001, and the defendant had

arrived shortly before the Peoria police executed the search

warrant.   He then stated that Carpenter told him that

"[Carpenter] and his friends manage[d] to escape out the back


                                  9
door just in the nick of time right before the police arrived

they ran next door and watched [the defendant] get arrested."     He

also averred that he had a conversation with a Peoria police

officer, who told him that the police knowingly used the name of

an old informant on the warrant.

     Keith Mitchell stated he is the defendant's cousin.     He

averred that he was at the 1507 W. Butler residence on February

1, 2001, with Carpenter and his friends.   Prior to the

defendant's arrival, Mitchell heard Carpenter speaking with the

defendant via telephone, and Carpenter told the defendant to park

his car in back.   Mitchell averred that Carpenter told him that

the defendant was on his way to 1507 W. Butler to use the

washroom, but then stated that the defendant did not arrive until

a few hours later.   After the defendant arrived at the residence

with his friend, they entered through the front door.     The

defendant spoke to Carpenter and proceeded to the bathroom.

Then, "for some odd reason," Carpenter knew the Peoria police

were planning to execute a search warrant in the near future, so

Mitchell yelled to the defendant to vacate the residence, but the

defendant could not hear this warning.

     Mitchell and all of the individuals in the home, with the

exception of the defendant, were able to vacate the residence

unnoticed and take shelter in a home next door.   The police then

arrived, executed the warrant and arrested the defendant and


                                10
Robinson.   Finally, Mitchell stated that he spoke with the

defendant's trial attorney and offered to testify on the

defendant's behalf.   The defendant's attorney warned Mitchell

that he may be arrested if he appeared and later told Mitchell

that he would not be needed to testify.

     The circuit court denied the defendant leave to file the

successive postconviction petition.     In doing so, the court

stated that the defendant alleged "newly discovered evidence but

challenges the sufficiency of the search warrant."     The court

then stated that a challenge to the search warrant was not

brought at trial or on direct appeal and was therefore waived.

The court also cited the order dismissing the defendant's first

postconviction petition, which stated that as a casual guest

there was a question of whether the defendant had standing to

challenge the sufficiency of the warrant.     The court concluded

that the issues could have been, and were, raised in the first

postconviction petition.   Further, the court held that

fundamental fairness did not require the filing of the

defendant's instant successive postconviction petition.     The

defendant appealed, and this court docketed the case as No. 3--

05--0886.   Case Nos. 3--06--0287 and 3--05--0886 were

consolidated for purposes of appeal.

                             ANALYSIS




                                11
     On appeal, the defendant argues that his successive

postconviction petition successfully advanced a claim of actual

innocence and was supported by affidavits of witnesses who were

not available at trial.   The defendant asserts that "what was

missing from his case was testimony from people who were inside

the house when he first got there," and is supplied in his

petition and the attached affidavits.    We disagree.

     Under the Act, any person imprisoned in a penitentiary may

file a petition for postconviction relief if the individual

asserts there was a substantial denial of his constitutional

rights at trial.   725 ILCS 5/122--1(a) (West 2004).    In a

noncapital case, the Act provides a three-stage process for

adjudicating postconviction petitions.    At the first stage, a

judge may summarily dismiss a petition if it is found frivolous

or patently without merit.    725 ILCS 5/122--2.1(a)(2) (West

2004).   A petition is considered frivolous or patently without

merit if the petitioner’s allegations, taken as true, fail to

state the gist of a constitutional claim.    People v. Collins, 202

Ill. 2d 59, 782 N.E.2d 195 (2002).    The petitioner need only

present a limited amount of detail to meet this standard.       People

v. Kellerman, 342 Ill. App. 3d 1019, 804 N.E.2d 1067 (2003).

While all well pled allegations are liberally construed and

normally taken to be true, they will not be so considered if

contradicted by the record.    People v. Coleman, 183 Ill. 2d 366,


                                 12
701 N.E.2d 1063 (1998).    We review de novo the first-stage

dismissal of a postconviction petition.     Kellerman, 342 Ill. App.

3d 1019, 804 N.E.2d 1067.

       The Act contemplates the filing of only one postconviction

petition.    People v. Flores, 153 Ill. 2d 264, 606 N.E.2d 1078

(1992).    Claims raised in an original postconviction petition and

decided by the circuit court or on direct review have res

judicata effect.    People v. Thompson, 331 Ill. App. 3d 948, 773

N.E.2d 15 (2002).    Claims that could have been raised in the

earlier petition and on review, but were not, are deemed waived.

Thompson, 331 Ill. App. 3d 948, 773 N.E.2d 15.    Regarding a

successive postconviction petition, the procedural bar of waiver

is not merely a rule of judicial administration.    Rather, it is

an express statutory requirement under the Act.    See 725 ILCS

5/122--3 (West 2004); see also People v. Pitsonbarger, 205 Ill.

2d 444, 793 N.E.2d 609 (2002).

       The procedural bars do not, however, preclude a successive

postconviction petition when the defendant establishes that the

proceedings on his initial postconviction petition were

fundamentally deficient.    Flores, 153 Ill. 2d 264, 606 N.E.2d

1078.    To show such a deficiency, the defendant must demonstrate

"cause and prejudice."     Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d

609.    In the event a petitioner cannot meet the cause and

prejudice test, the failure to bring a claim in a prior


                                  13
postconviction petition will be excused only "if necessary to

prevent a fundamental miscarriage of justice."     People v.

Washington, 348 Ill. App. 3d 231, 237, 809 N.E.2d 239, 243

(2004).   In a noncapital case, the petitioner must show actual

innocence in order to establish such a miscarriage of justice.

Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 609.

     Here, the defendant alleges actual innocence based on newly

discovered evidence.   In order to obtain relief under this

theory, the "defendant must show that the evidence he is relying

on (1) is of such conclusive character that it will probably

change the result on retrial; (2) is material to the issue, not

merely cumulative; and (3) was discovered since trial and is of

such character that the defendant in the exercise of due

diligence could not have discovered it earlier."     People v.

Anderson, 375 Ill. App. 3d 990, 1006, 874 N.E.2d 277, 292 (2007).

     Evidence is not newly discovered if "it presents facts

already known to the defendant at or prior to trial, though the

source of those facts may have been unknown, unavailable, or

uncooperative."   People v. Barnslater, 373 Ill. App. 3d 512, 523,

869 N.E.2d 293, 303 (2007).   Further, an "allegation of newly

discovered evidence of innocence is not intended to question the

strength of the State's case.   An allegation of newly discovered

evidence of innocence seeks to establish the defendant's actual

innocence of the crimes for which he has been tried and


                                14
convicted."   People v. Washington, 171 Ill. 2d 475, 495, 665

N.E.2d 1330, 1339 (1996) (McMorrow, J., specially concurring);

see also People v. Manrique, 351 Ill. App. 3d 277, 280, 813

N.E.2d 1095, 1098 (2004) (this court found a defendant had

sufficiently stated the gist of a constitutional claim in a

successive postconviction petition because the evidence

supporting actual innocence was "potentially exculpatory");

Barnslater, 373 Ill. App. 3d at 520, 869 N.E.2d at 300, (court

held "actual innocence" means total vindication or exoneration

and does not concern whether a defendant has been proven guilty

beyond a reasonable doubt).

     In this case, the defendant's successive petition for

postconviction relief and the supporting affidavits fail to

establish his actual innocence.

     First, we agree with the State's contention that the

affidavit of Ross, averring that he was neither a resident nor a

"repeated visitor" to the home at 1507 W. Butler, challenges only

the sufficiency of the search warrant.    Therefore, it does not

assist in showing the defendant is actually innocent of the crime

of which he was convicted.    Welch's affidavit also raises a

challenge to the sufficiency of the search warrant.    Welch

averred that he lives on West Butler, he has never heard of Ross,

and that an informant could not have purchased drugs at the

residence because that residence was only used to store and


                                  15
package drugs.   These assertions do not establish that the

defendant is actually innocent of the crimes for which he was

convicted, but only challenge the sufficiency of the search

warrant and the underlying affidavit.   We agree with the circuit

court that this challenge was waived and fundamental fairness

does not require the filing of a successive postconviction

petition on this claim alone.

     Next, the defendant has not established his actual innocence

based on newly discovered evidence.   The affidavits of Welch and

Mitchell do not offer such conclusive evidence that the result at

trial would change.   Additionally, the affidavits of Welch and

Mitchell do not present new evidence.   Rather, they present

evidence that is cumulative to the defendant and Robertson's

testimony at trial.

     In relevant part, Welch averred that Carpenter told him that

Carpenter and his friends managed to flee the residence

immediately before the police arrived, leaving the defendant

alone in the residence, and that the defendant had just arrived

at the residence.   First, Welch's purported testimony does not

add anything exculpatory or different to the facts adduced at

trial.   It merely reiterates the testimony that was offered by

the defendant and Robinson at trial and rejected by the jury.

Also, Welch's purported testimony does not fill the void the

defendant alleged was left at trial, specifically that "what was


                                16
missing from his case was testimony from people who were inside

the house when he first got there," because Welch does not claim

to have been at the residence on February 1, 2001.   Rather, his

knowledge is based on the hearsay statements of Carpenter.

     Mitchell's affidavit also offers testimony that was

cumulative to the testimony offered by the defendant and Robinson

at trial and rejected by the jury.   Furthermore, portions of

Mitchell's purported testimony conflicts with the evidence

adduced at trial.   The defendant testified that en route, he

phoned and spoke with his cousin, "Willie Lawrence Coleman."    The

defendant said that he requested to use the washroom, and his

cousin agreed and told him to park his car in the garage.

However, Mitchell averred that the defendant phoned Carpenter,

whom he heard tell the defendant to park his car in the back.    In

addition, the defendant was found alone in the home by the

police, who also had the residence under surveillance that day,

while Mitchell averred that there were a number of friends in the

home immediately before the police executed the search warrant

who managed to escape the home unnoticed prior to the entry by

the police.

     Finally, it is clear that the evidence offered by Mitchell

is not "newly discovered."   Mitchell admitted that he offered to

testify at the defendant's trial but was told by the defendant's

attorney that his testimony would not be needed.   Thus, not only


                                17
was Mitchell not "unknown, unavailable, or uncooperative," (see

Barnslater, 373 Ill. App. 3d at 523, 869 N.E.2d at 303) he was

known, available, and offered to cooperate.    Additionally, the

defendant has not established that in the exercise of due

diligence, Welch could not have been located earlier.    In his

affidavit, Welch stated that he and his family lived on West

Butler.   He also averred that he knew that drug activity occurred

at 1507 W. Butler, and also knew who conducted the activity.      The

defendant was found inside 1507 W. Butler and also stated that

his cousin lived there.    Therefore, it cannot be said that in the

exercise of due diligence, Welch could not have been found by the

defendant to offer his testimony on his behalf at trial.

     As a result, the defendant has not sufficiently established

a claim that he was actually innocent of the crimes for which has

was tried and convicted.   The circuit court properly denied the

defendant leave to file his successive postconviction petition.

                             CONCLUSION

     The judgment of the circuit court of Peoria County is

affirmed.

     Affirmed

     MCDADE, P. J., and SCHMIDT, J., concur.




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