                                                                                FOURTH DIVISION
                                                                                   March 18, 2010

No. 1-07-2820


THE PEOPLE OF THE STATE OF ILLINOIS,                           )       Appeal from the
                                                               )       Circuit Court of
       Plaintiff-Appellee,                                     )       Cook County
                                                               )
                               v.                              )       No. 00 CR 3448
                                                               )
DARRELL JARRETT,                                               )       The Honorable
                                                               )       John J. Fleming,
       Defendant-Appellant.                                    )       Judge Presiding.



       PRESIDING JUSTICE O’MARA FROSSARD delivered the opinion of the court:

       Following a jury trial, defendant Darrell Jarrett was convicted of two counts of first degree

murder and sentenced to natural life imprisonment, which was affirmed on direct appeal. People v.

Jarrett, No. 1-03-2859 (2005) (unpublished order under Supreme Court Rule 23). Defendant filed

a pro se postconviction petition under section 122–1(f) of the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122–1(f) (West 2006)), and we also affirmed the circuit court’s summary dismissal of

defendant’s petition. People v. Jarrett, No. 1-06-2766 (2008) (unpublished order under Supreme

Court Rule 23).     Defendant now appeals the summary dismissal of his successive pro se

postconviction petition and the imposition of certain fees and costs. Defendant on appeal contends

that his petition stated the gist of a constitutional claim of actual innocence, ineffective assistance

of trial counsel, and a violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194

(1963). Defendant further contends that the circuit court’s imposition of certain fees violated his

right to equal protection and was otherwise erroneous. We affirm as modified.
No. 1-07-2820

                                          BACKGROUND

       Defendant and codefendant Travoy Williams were charged with the December 1999 murders

of Anthony Harris and William Key. The evidence adduced at their joint trial was as follows.

       On December 29, 1999, Tarimako Allen was driving in her brown van and picked up Linda

McGee, defendant, and Williams on the west side of Chicago. McGee sat in the front passenger seat,

defendant sat behind McGee, and Williams sat behind Allen. As they approached the intersection

of West Lexington Street and South Sacramento Boulevard, Williams told Allen to go west on

Lexington. They drove down the block and approached a black Chevrolet Lumina on the south side

of the street, in which the victims, Harris and Key, and an unidentified third individual were sitting.

       Harris and Key were in the front seats of the Lumina and the third individual sat in the

backseat. They spoke to Devon Joshua, who was standing outside of the car next to the driver’s side

window. Four feet behind the Lumina, Barbara Starling was sitting in her car, a white Plymouth.

       Allen had driven just past the Lumina when defendant asked Williams, “Is that the guys

[sic]?” Williams told defendant he believed so, and told Allen to stop and back up. Allen testified

that Williams spoke briefly with the people in and around the Lumina, and then pushed her head

down toward the steering wheel. Allen stated that she heard multiple gunshots very close to her, and

McGee testified that it was Williams who drew a revolver and began firing multiple times at the

Lumina. McGee ducked down in the backseat of the van. Starling also testified that the first set of

gunshots came from the front driver’s side of Allen’s van.

       When the shooting began, Harris and Key escaped the Lumina through the driver’s side

window, while Joshua ducked down next to the car. Starling testified that Harris and Key ran toward


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a vacant lot through a gangway as defendant--whom she knew by the nickname “Meat Man”--got

out of the van by a passenger side door, walked to the back of the van, and fired multiple times

toward Harris and Key. Harris and Key both died of gunshot wounds.

       Joshua testified that he was standing next to the Lumina talking to Harris and Key, who were

both sitting inside. After he saw Williams fire several shots, Joshua took cover behind the sedan.

Joshua then saw defendant, whom he knew as “Meat Man,” get out of the van. Joshua ducked down

lower, but he saw defendant’s feet walk toward the curb. Joshua then heard several more gunshots.

       Allen heard several shots from the backseat of the van, followed by several more from

outside of the van. After the shooting, Allen saw defendant get back into the van, although she did

not see defendant leave the van after the shooting started. Allen was then told to drive to defendant’s

brother-in-law’s apartment near the intersection of North Hamlin Avenue and West Fulton Street.

       Chicago police officer Michael Cronin testified that defendant’s brother-in-law allowed him

into the apartment and gave him permission to search it. Officer Cronin saw defendant leave a room

and arrested him, and arrested Williams after finding him in a bedroom in the apartment. He then

returned to the room where defendant emerged and found a plastic bag containing a .45-caliber Colt

revolver, a .45-caliber Glock revolver, and a .25-caliber pistol. Subsequent forensic tests indicated

that bullets recovered from the crime scene were consistent with the guns found in defendant’s

brother-in-law’s apartment.

       Defendant testified that when Allen’s van stopped next to the Lumina, he got out of the van

to see if a particular person was there, but as he walked to the back of the van, he heard gunshots.

When he heard the shots, defendant believed someone was trying to shoot at him, so he pulled out


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No. 1-07-2820

his gun and returned fire into a crowd of people he saw running around him.

       On May 9, 2003, the jury found defendant guilty of two counts of first degree murder and one

count of aggravated discharge of a firearm. On September 4, 2003, the trial court sentenced

defendant to life in prison.

       On direct appeal, defendant contended that he was denied the effective assistance of counsel

because his attorney failed to file a motion to suppress evidence relating to the guns found when

defendant and Williams were arrested. We rejected defendant’s contention and affirmed his

conviction and sentence. People v. Jarrett, No. 1-03-2859 (2005) (unpublished order under Supreme

Court Rule 23), appeal denied, 216 Ill. 2d 710 (2005). On March 14, 2006, defendant filed a pro

se postconviction petition claiming, inter alia, ineffective assistance of trial and appellate counsel

based upon alleged improper jury instructions on accountability. The trial court summarily

dismissed the petition, and we affirmed. People v. Jarrett, No. 1-06-2766 (August 22, 2008)

(unpublished order under Supreme Court Rule 23), appeal denied, 233 Ill. 2d 579 (2009).

       On June 11, 2007, defendant filed the instant successive pro se postconviction petition

alleging: (1) actual innocence based upon newly discovered evidence, (2) ineffective assistance of

trial and appellate counsel, and (3) a Brady violation. In his actual innocence claim, defendant

included the affidavits of Ashake Banks and Charles Ginns. Banks’s affidavit indicated that Ginns

told her that, when the shooting began, Allen’s brown van “pulled off,” leaving defendant standing

on the street. In addition, Banks’s affidavit stated that Ginns then saw Michael Blue “draw and aim

a gun” at defendant and defendant shoot at Blue in response, and that Ginns left the area after the

shooting to avoid becoming involved in the investigation. Ginns’s affidavit, however, only relates


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No. 1-07-2820

that Blue “pulled out his gun to throw down on [defendant] and [defendant] pulled out his gun and

shot at” Blue. Defendant asserted that this constituted newly discovered evidence because Ginns did

not testify at defendant’s trial. Defendant further claimed in an affidavit that his trial counsel

specifically advised him not to testify that an individual pointed a gun at him.

       Defendant also claimed that his trial counsel was ineffective, inter alia, for failing to

investigate witnesses that could support his self-defense theory and for instructing him not to testify

regarding an individual pointing a gun at him.

       Defendant’s claim of ineffective assistance of appellate counsel–which he does not pursue

on appeal–alleged that appellate counsel failed to brief and argue ineffective assistance of trial

counsel.

       Finally, defendant alleged a Brady violation on the part of police based upon Officer Cronin’s

alleged refusal to give defendant the name of a “favorable witness” and the name of the person who

aimed a gun at defendant because defendant would not provide information regarding drug activity

in the Lawndale neighborhood of Chicago.

       On September 5, 2007, in an eight-page written order, the trial court summarily dismissed

defendant’s successive petition, finding the petition entirely frivolous. In a separate order, the trial

court imposed filing fees and court costs totaling $359, including a $294 fee for filing a

postconviction petition and $50 in State’s Attorney’s fees.

       Defendant now appeals the summary dismissal of his successive pro se postconviction

petition and the imposition of certain fees and costs. Defendant contends that his petition stated the

gist of a constitutional claim of actual innocence, ineffective assistance of trial counsel, and a Brady


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violation. Defendant further contends that the circuit court’s imposition of certain fees violated his

right to equal protection and was otherwise erroneous. We will address each argument in turn.

                                              ANALYSIS

                 I. Defendant’s Failure to Seek Leave to File a Successive Petition

        The State initially argues that the trial court properly dismissed the successive petition

because defendant failed to first obtain leave to file his petition under section 122–1(f) of the Act.

725 ILCS 5/122–1(f) (West 2006). In the alternative, the State argues that, with respect to all three

claims, the trial court properly dismissed defendant’s successive petition because defendant forfeited

the claims and failed to satisfy the cause-and-prejudice test. We now consider the State’s initial

argument that the trial court’s dismissal was proper because defendant failed to obtain leave to file

a successive petition.

        In a noncapital case, the Act creates a three-stage procedure for postconviction relief. People

v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court determines whether the petition is

frivolous or patently without merit. 725 ILCS 5/122–2.1 (West 2006). If the petition is not

dismissed at stage one, it proceeds to stage two, where section 122–4 of the Act provides for the

appointment of counsel for an indigent defendant. 725 ILCS 5/122–4 (West 2006). At stage two,

the State has the opportunity to either answer or move to dismiss the petition (725 ILCS 5/122–5

(West 2006)), and the trial court determines whether the petition makes a substantial showing of a

constitutional violation (People v. Coleman, 183 Ill. 2d 366, 381 (1998)). If the petition is not

dismissed at stage two, it proceeds to stage three, for the trial court to conduct an evidentiary hearing.

725 ILCS 5/122–6 (West 2006). An evidentiary hearing on the petition is required when the


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No. 1-07-2820

allegations of the petition, supported by the trial record and the accompanying affidavits,

demonstrate a substantial violation of a constitutional right. People v. Mitchell, 189 Ill. 2d 312, 322

(2000).

          An action for postconviction relief is a collateral proceeding rather than an appeal from the

underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). Principles of res judicata and

waiver will limit the range of issues available to a postconviction petitioner “ ‘to constitutional

matters which have not been, and could not have been, previously adjudicated.’ ” People v. Scott,

194 Ill. 2d 268, 273-74 (2000), quoting People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly,

rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues

that could have been raised in the earlier proceedings, but were not, will ordinarily be deemed

waived. Scott, 194 Ill. 2d at 274; 725 ILCS 5/122–3 (West 2006).

          The doctrines of res judicata and waiver will be relaxed, inter alia, where fundamental

fairness so requires. People v. Williams, 209 Ill. 2d 227, 233 (2004). Moreover, section 122–1(f)

of the Act provides that only one petition may be filed by a petitioner without leave of the court. 725

ILCS 5/122–1(f) (West 2006). Both fundamental fairness and the granting of leave to file a

successive petition are defined in terms of the cause-and-prejudice test, which must be applied to

each claim in a successive petition. People v. Pitsonbarger, 205 Ill. 2d 444, 458-59 (2002); 725

ILCS 5/122–1(f) (West 2006). Cause is defined as some objective factor external to the defense that

impeded efforts to raise the claim in an earlier proceeding (725 ILCS 5/122–1(f) (West 2006);

Pitsonbarger, 205 Ill. 2d at 460), and prejudice occurs where the alleged error “so infected” the trial

that the resulting conviction or sentence violates due process (725 ILCS 5/122–1(f) (West 2006);


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No. 1-07-2820

Pitsonbarger, 205 Ill. 2d at 464).

        The State’s initial response is that the trial court’s dismissal was proper because defendant

failed to seek leave to file a successive petition prior to submitting it to the trial court. The State

further argues that, because “leave to file was never expressly granted, the successive post-conviction

petition was never filed, and never made it to the first stage of proceedings.” The State then

concludes, quoting People v. DeBerry, 372 Ill. App. 3d 1056, 1060 (2007), that this court has

“ ‘nothing further to discuss or review’ ” because defendant’s failure to obtain leave to file a

successive petition “ ‘trumps anything that defendant’s petition may contain.’ ”

        Recently, however, the supreme court considered this issue in People v. Tidwell, No. 108133

(January 22, 2010). There, as here, the defendant filed a successive postconviction petition, but

neither included a motion seeking leave nor expressly requested leave to file it. Tidwell, slip op. at

2-3. Nonetheless, the trial court issued a six-page order denying the petition and concluding that the

defendant had failed to meet the cause-and-prejudice test. Tidwell, slip op. at 3. The appellate court,

however, found that the successive petition was not considered filed because the defendant failed

to expressly seek leave of court prior to filing the successive petition. Tidwell, slip op. at 4. For that

reason, the appellate court declined consideration of the defendant’s allegations on appeal. Tidwell,

slip op. at 4. The supreme court, however, vacated the appellate court’s judgment and remanded the

cause to that court for review of the merits of the trial court’s ruling regarding the cause-and-

prejudice test. Tidwell, slip op. at 9. The supreme court specifically explained:

                        “a successive postconviction petition is not considered ‘filed’

                for purposes of section 122–1(f), and further proceedings will not


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                follow, until leave is granted, a determination dependent upon a

                defendant’s satisfaction of the cause-and-prejudice test. There is also

                a commonsense acknowledgment that a defendant who submits a

                successive postconviction petition wants to ‘file’ it and institute

                proceedings thereon. However, it is still defendant’s burden to obtain

                leave, and he must submit enough in the way of documentation to

                allow a circuit court to make that determination. Certainly, no

                separate motion seeking leave is mandated by section 122–1(f) in its

                current form, nor, as we have demonstrated, is an explicit request

                even required if the circuit court sees fit to consider the matter and

                rule of its own accord. We find that circuit courts have that authority

                under the statute.” (Emphasis in original.) Tidwell, slip op. at 8-9.

        The discussion above indicates that, ideally, before or at the time of filing a successive

petition, a defendant would ask the trial court for leave to file a successive petition, and the trial

court would set the matter for a ruling on whether it should grant the defendant leave to file the

successive petition. After reviewing the documentation that the defendant submits, the trial court

would then determine whether the defendant has satisfied the requirements under section 122–1(f)

of the Act, i.e., the cause-and-prejudice test. If the trial court determines that the defendant has met

the cause-and-prejudice test, then it rules in favor of granting leave to file a successive petition. If,

however, the trial court finds that the defendant has failed to establish cause and prejudice, then it

rules against granting leave to file a successive petition.


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No. 1-07-2820

        In this case, as in Tidwell, defendant did not file a motion seeking leave to file a successive

petition and did not expressly ask for leave to file it. Also similar to Tidwell, the trial court in this

case issued an eight-page order that considered, but ultimately rejected, defendant’s allegations,

concluding that defendant failed to meet the cause-and-prejudice test for filing a successive petition

and that his actual innocence and Brady claims would not have changed the outcome of his trial, i.e.,

he suffered no prejudice. As previously noted by the court in Tidwell, “Certainly, no separate motion

seeking leave is mandated by section 122–1(f) in its current form, nor, as we have demonstrated, is

an explicit request even required if the circuit court sees fit to consider the matter and rule of its own

accord. We find that circuit courts have that authority under the statute.” (Emphasis in original).

Tidwell, slip op. at 8-9. Keeping these principles in mind, we disagree with the State’s argument that

the trial court was required to expressly grant leave to file a successive postconviction petition prior

to evaluating it according to section 122–1(f) of the Act. The record reflects that the trial court found

sufficient documentation in defendant’s successive pro se petition to consider whether defendant had

complied with the cause-and-prejudice test as provided in section 122–1(f) of the Act. Therefore,

we reject the State’s argument that there is “ ‘nothing further to discuss or review,’ ” because

defendant’s failure to obtain leave to file a successive petition “ ‘trumps anything that defendant’s

petition may contain.’ ” The State’s reliance upon People v. DeBerry, 372 Ill. App. 3d 1056, 1060

(2007), is not persuasive because, as previously noted, the Tidwell court recognized that the circuit

court has the authority to consider the matter and rule on its own accord even without a separate

motion seeking leave to file a successive petition.

        Finally, we note that a proposed 2007 House bill would amend section 122–1(f) to


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specifically require a petitioner to seek leave by “filing a motion when he or she sends his or her

proposed subsequent petition.” 95th Ill. Gen. Assem., House Bill 3452, 2007 sess. As the Tidwell

court pointed out, however, that bill was never voted out of a Senate committee. Tidwell, slip op.

at 5-6. Although we express no opinion as to the merits of House Bill 3452, we do believe that

section 122–1(f) is somewhat unclear as to the proper procedure a petitioner must follow in order

to obtain leave from the trial court to file a successive petition. As such, this matter is one that

deserves the attention of the General Assembly. Accord People v. Daniel, 379 Ill. App. 3d 748, 751

(2008) (“Should this pending legislation pass, it will add much needed clarity to this area of the

law”). We now turn to the merits of defendant’s claims.

                             II. Defendant’s Claim of Actual Innocence

        Defendant contends that he presented the gist of a constitutional claim of actual innocence

based upon newly discovered evidence. Specifically, defendant argues that Ginns’s and Banks’s

affidavits establish that a third individual, Michael Blue, aimed a gun at defendant, thus

corroborating his self-defense theory. The State responds that defendant’s claim was properly

dismissed because defendant forfeited the claim, failed to meet the cause-and-prejudice test, and

failed to show that the proposed evidence would have exonerated him.

        Where, as here, a defendant in a noncapital case alleges a claim of actual innocence in a

successive postconviction petition, “the defendant is excused from showing cause and prejudice.”

People v. Ortiz, 235 Ill. 2d 319, 330 (2009); see also Pitsonbarger, 205 Ill. 2d at 459. To obtain

relief under a claim of actual innocence, however, the evidence adduced by the defendant must first

be “newly discovered,” i.e., it must be evidence that was not available at the defendant’s original trial


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No. 1-07-2820

and that the defendant could not have discovered sooner through diligence. People v. Morgan, 212

Ill. 2d 148, 154 (2004). It is well established that evidence is not “newly discovered” when it

presents facts already known to a defendant at or prior to trial, even if the source of these facts may

have been unknown, unavailable, or uncooperative. See People v. Collier, 387 Ill. App. 3d 630, 637

(2008), citing People v. Moleterno, 254 Ill. App. 3d 615, 625 (1993). In addition, the evidence must

also be material, noncumulative, and of such conclusive character that it would probably change the

result on retrial. Morgan, 212 Ill. 2d at 154.

       In this case, defendant states in his successive petition that he was innocent of first degree

murder because he knew a person was aiming a gun at him “as shots were being fired in close

proximity to him but where he could not see who was doing the shooting and therefore acted to

defend himself.” Defendant also claims in his petition that on September 17, 2003, Officer Cronin

visited defendant in prison and told defendant that he knew of a witness who saw someone aim a gun

at defendant prior to defendant drawing his own gun. In the petition, defendant, however, replied

that he knew the name of the person shooting at him and told his trial attorney at the time of his

arrest. Defendant readily admits in his petition that he knew prior to trial that Michael Blue allegedly

aimed a gun at him while shots were being fired; this evidence was therefore not “newly discovered”.

See Morgan, 212 Ill. 2d at 154 (holding that evidence is not newly discovered if it was available at

the defendant’s original trial). Therefore, defendant knew that Blue had supposedly aimed a gun at

him prior to his trial, but nevertheless said nothing on direct appeal, or even in his first

postconviction petition. In addition, the fact that he may not have known the names of alleged

witnesses to Blue’s aiming of a gun at defendant does not support defendant’s assertion that his


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No. 1-07-2820

proffered evidence is newly discovered. As noted above, if a defendant knew of certain facts at or

prior to trial, those facts are not transformed into “newly discovered evidence” simply because the

source of these facts may have been unknown, unavailable, or uncooperative. See Collier, 387 Ill.

App. 3d at 637, citing Moleterno, 254 Ill. App. 3d at 625.

       In addition, we cannot say that the proffered evidence would probably have changed the

result on retrial. Defendant claims that he acted in self-defense. One of the required elements of

self-defense that the State must negate is that the defendant was not the initial aggressor. See 720

ILCS 5/7-1 (West 2008); People v. Jeffries, 164 Ill. 2d 104, 127-28 (1995). The record in this case

indicates that defendant and Williams were the initial aggressors, and defendant’s proffered evidence

does not change that fact. Defendant’s affidavits and petition do not dispute the established

testimony that codefendant Williams fired the first shots. It is well established that “the hallmark

of ‘actual innocence’ means ‘total vindication,’ or ‘exoneration.’ ” Collier, 387 Ill. App. 3d at 636,

quoting People v. Savory, 309 Ill. App. 3d 408, 414-15 (1999). Therefore, even if defendant’s

allegations are true, the fact that he fired at an individual who aimed a gun at him after defendant’s

codefendant began firing does not change the fact that defendant and codefendant were the initial

aggressors.

       Defendant, however, argues that the trial court was required to take all well-pleaded facts as

true, relying upon People v. Reyes, 369 Ill. App. 3d 1 (2006). Defendant’s reliance is misplaced.

Reyes involved the trial court’s erroneous first-stage dismissal of the defendant’s initial

postconviction petition. This case concerns a successive postconviction petition, which typically

requires a showing of cause and prejudice. 725 ILCS 5/122–1(f) (West 2006). Although successive


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petitions claiming actual innocence are excused from showing cause and prejudice (see Ortiz, 235

Ill. 2d at 330), the newly discovered evidence supporting an actual innocence claim must, inter alia,

have been unavailable at the defendant’s original trial and material, noncumulative, and of such

conclusive character that it would probably change the result on retrial. Morgan, 212 Ill. 2d at 154.

The trial court properly examined defendant’s claim of actual innocence and found that he failed to

meet these requirements. Reyes is therefore not instructive.

                     III. Defendant’s Ineffective Assistance of Counsel Claims

        Defendant also contends that the trial court erred in dismissing his claim of ineffective

assistance of counsel, arguing that he stated the gist of a constitutional claim based upon his

assertions that his counsel failed to investigate his self-defense claim and “deprived [defendant] of

his right to testify” by advising him not to testify that Michael Blue aimed a gun at him.

        We note at the outset, however, that defendant could have raised this allegation in his direct

appeal or in his pro se initial postconviction petition, but did not. Instead, defendant claimed on

direct appeal that he received ineffective assistance of counsel based upon trial counsel’s failure to

file a motion to suppress guns that were found in the apartment where defendant was arrested. Three

years after his conviction, defendant filed his initial pro se petition alleging seven issues: a

constitutional challenge to his sentence, two challenges to his indictment, a jury instruction

challenge, ineffective assistance of trial counsel relating to the jury instruction issue, ineffective

assistance of appellate counsel for failure to raise trial counsel’s ineffective assistance regarding the

jury instruction issue, and a claim that the State intentionally withheld defendant’s blood sample

while he was in custody. Nowhere in his direct appeal or in his initial petition does he allege that


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his trial counsel was ineffective because of a failure to investigate his self-defense claim or because

trial counsel advised him not to testify that Michael Blue aimed a gun at him. As such, his claim is

forfeited. See People v. Anderson, 375 Ill. App. 3d 990, 1000-01 (2007) (holding that the

defendant’s successive claim of ineffective assistance of counsel for failure to investigate police

corruption and coercion was forfeited because defendant did not make that allegation in his initial

postconviction claim of ineffective assistance), citing People v. Blair, 215 Ill. 2d 427, 445 (2005).

        Moreover, regarding his claim of ineffective assistance of counsel, defendant has failed to

meet the cause-and-prejudice test for filing a successive claim. First, even if the jury had heard

Ginns’s testimony, the evidence would nevertheless show that defendant and codefendant were the

initial aggressors and that defendant did not act in self-defense. Counsel does not render ineffective

assistance for failure to investigate witnesses whose proposed testimony would not support the

defendant’s self-defense theory, namely, that the defendant was not the initial aggressor. See People

v. Hodges, 234 Ill. 2d 1, 20 (2009). Defendant therefore cannot show prejudice because he cannot

show that this alleged error “so infected” the trial that the resulting conviction or sentence violated

due process. Pitsonbarger, 205 Ill. 2d at 464.

        In addition, defendant has failed to establish “cause.” Defendant merely asserts he was

diligent but does not cite any objective factor external to the defense that impeded efforts to raise this

ineffective assistance claim in an earlier proceeding--either his direct appeal or in his initial pro se

petition. Defendant admits in his successive petition that he knew at the time of his arrest that it was

Michael Blue who aimed a gun at him, which occurred prior to Officer Cronin allegedly visiting

defendant in prison on September 17, 2003. Nonetheless, defendant never raised this matter at any


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time, instead waiting more than six years to allege this in a successive petition.

       Defendant argues that he could not have raised this claim on direct appeal because the record

was not “sufficiently developed,” citing People v. Kunze, 193 Ill. App. 3d 708, 726 (1990).

Defendant’s reliance on Kunze is misplaced. In Kunze, the defendant claimed his trial counsel was

ineffective for failure to investigate his prior criminal history and for consequently advising him to

testify. Kunze, 193 Ill. App. 3d at 724. The defendant then argued that he was deprived of his right

to make an informed decision. Kunze, 193 Ill. App. 3d at 724-25. We stated:

                       “[T]he alleged incompetence of [defendant’s] trial attorney

                depends upon whether [defendant] would have testified, even if he

                had known in advance that the State would use his prior convictions

                to impeach him. No evidence in the record before us addresses this

                question, nor is there any evidence regarding consultations between

                [defendant] and his trial counsel or between [defendant’s] counsel

                and counsel for the other defendants.” Kunze, 193 Ill. App. 3d at 725.

The court then declined to resolve this claim on direct appeal because this concerned a matter outside

of the record, which is “more appropriately addressed in proceedings on a petition for

post-conviction relief.” Kunze, 193 Ill. App. 3d at 725-26.

       In the instant case, defendant’s allegation centers on his assertions that his counsel failed to

investigate his self-defense claim and deprived him of his right to testify by advising him not to

testify that Michael Blue aimed a gun at him. We see nothing that would have prevented defendant

from properly raising this matter on appeal. Moreover, he cites no objective factor external to the


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defense that prevented him from raising this matter in his initial postconviction petition. He only

makes the general assertion that he was diligent, which is insufficient to establish cause.

Accordingly, defendant’s failure to meet both the cause and prejudice test results in forfeiture of this

claim. See Pitsonbarger, 205 Ill. 2d at 459-60.

       We further note that, even if we were to consider defendant’s forfeited claim, we would be

compelled to reject it. Defendant must meet both prongs of the Strickland test, i.e., he must show

that trial counsel’s actions were objectively unreasonable, and that, but for trial counsel’s errors,

there is a reasonable probability that the result of his trial would have been different. See People v.

Klepper, 234 Ill. 2d 337, 350 (2009).

       In the instant case, defendant cannot show prejudice because the proffered evidence would

not have supported his self-defense claim and consequently would not have changed the result of

defendant’s trial. Therefore, defendant cannot meet the second prong of the Strickland test. For the

reasons previously discussed, defendant’s forfeited claim of ineffective assistance of trial counsel

is unavailing because he failed to satisfy both prongs of the Strickland test.

                                   IV. Defendant’s Brady Claim

       Defendant next contends that the trial court erred in denying his claim that the State failed

to disclose exculpatory evidence–specifically, the name of Charles Ginns, who saw Michael Blue

aim a gun at defendant–in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct.

1194 (1963).

       Under Brady, the State must disclose evidence favorable to the accused and “ ‘material to

guilt or to punishment.’ ” People v. Harris, 206 Ill. 2d 293, 311 (2002), quoting Brady, 373 U.S.


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at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. This rule includes evidence known to police

investigators, but not to the prosecutor. People v. Beaman, 229 Ill. 2d 56, 73 (2008), citing Kyles

v. Whitley, 514 U.S. 419, 438, 131 L. Ed. 2d 490, 508, 115 S. Ct. 1555, 1568 (1995). A Brady claim

requires a showing that: (1) the undisclosed evidence is favorable to the accused because it is either

exculpatory or impeaching; (2) the evidence was suppressed by the State either willfully or

inadvertently; and (3) the accused was prejudiced because the evidence is material to guilt or

punishment. People v. Burt, 205 Ill. 2d 28, 47 (2001), citing Strickler v. Greene, 527 U.S. 263,

281-82, 144 L. Ed. 2d 286, 302, 119 S. Ct. 1936, 1948 (1999). Evidence is material if there is a

reasonable probability that the result of the proceeding would have been different had the evidence

been disclosed. Harris, 206 Ill. 2d at 311, citing Kyles, 514 U.S. at 434, 131 L. Ed. 2d at 506, 115

S. Ct. at 1566; United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375,

3383 (1985). To establish materiality, an accused must show “ ‘the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine confidence in the

verdict.’ ” People v. Coleman, 183 Ill. 2d 366, 393 (1998), quoting Kyles, 514 U.S. at 435, 131 L.

Ed. 2d at 506, 115 S. Ct. at 1566. Illinois has also codified the rule. See 188 Ill. 2d R. 412(c).

       Defendant, however, has forfeited this claim by failing to raise it in his initial postconviction

petition. See Anderson, 375 Ill. App. 3d at 1011-12; see also Pitsonbarger, 205 Ill. 2d at 458; 725

ILCS 5/122-3 (West 2006) (“[a]ny claim of substantial denial of constitutional rights not raised in

the original or an amended petition is waived”). As noted above, Detective Cronin’s alleged refusal

to disclose of the name of Charles Ginns occurred three years prior to the filing of defendant’s initial

postconviction petition in 2006. Moreover, even assuming that the allegation was true about Officer


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Cronin refusing to give defendant the name of this alleged favorable witness and that defendant

could not have included this at the time he filed his initial postconviction petition, defendant cannot

meet the Brady materiality test because, as previously noted, there is no reasonable probability that

the result of the proceeding would have been different. Even had the jury heard Ginns’s testimony,

the evidence demonstrates that defendant and codefendant were the initial aggressors and defendant

did not act in self defense. Defendant’s contention is therefore unavailing.

                       V. Defendant’s Challenge to Certain Fees and Costs

       Defendant next contends that the trial court erred in imposing a $50 State’s Attorney fee,

arguing, inter alia, that the successive petition was dismissed at the first stage, which does not allow

for any involvement by the State’s Attorney’s office. We agree. Accordingly, we direct the clerk

of the circuit court of Cook County to vacate that portion of the trial court’s September 5, 2007,

order imposing a $50 State’s Attorney fee.

       Finally, defendant contends that the trial court’s imposition of a $294 filing fee pursuant to

section 22-105 of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West 2008)) must be

vacated because the statute violates the equal protection clause by targeting prisoners to the

exclusion of other indigent petitioners. This contention, however, has been repeatedly rejected by

this court. See People v. Smith, 383 Ill. App. 3d 1078, 1096 (2008), appeal denied, 231 Ill. 2d 650

(2009); People v. Carter, 377 Ill. App. 3d 91, 106 (2007), appeal denied, 231 Ill. 2d 639 (2009);

People v. Hunter, 376 Ill. App. 3d 639, 648 (2007), appeal denied, 233 Ill. 2d 578 (2009); People

v. Gale, 376 Ill. App. 3d 344, 363 (2007), appeal denied, 233 Ill. 2d 574 (2009). Despite the

overwhelming weight of authority against him, defendant nonetheless argues that those cases were


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No. 1-07-2820

“wrongly” decided and invites this court to depart from its holdings in Smith, Carter, Hunter, and

Gale, directing our attention to Rinaldi v. Yeager, 384 U.S. 305, 305-09, 16 L. Ed. 2d 577, 577-81,

86 S. Ct. 1497, 1497-1500 (1966). We decline to depart from these well-reasoned decisions.

        Rinaldi concerned a New Jersey statute providing that only indigent prisoners receiving a free

transcript for their appeal would have to reimburse the state if their appeal was unsuccessful.

Rinaldi, 384 U.S. at 307, 16 L. Ed. 2d at 579, 86 S. Ct. at 1498-99. The Rinaldi court found no

legislative history that indicated what the statute at issue was to achieve. Rinaldi, 384 U.S. at 309,

16 L. Ed. 2d at 580, 86 S. Ct. at 1500. Unlike Rinaldi, the instant case involves the imposition of

court costs and filing fees for frivolous petitions, and the legislative history of section 22-105 clearly

indicates that the purpose is to deter inmates from filing frivolous petitions and thereby impeding

access to the courts by those with arguably meritorious claims. See generally, 95th Ill. Gen. Assem.,

House Proceedings, May 29, 2007, at 129-46 (statements of Representative Fritchey); see also

People v. Marshall, 381 Ill. App. 3d 724, 737 (2008), citing Gale, 376 Ill. App. 3d at 360. In the

factual context of the instant case, we do not find Rinaldi persuasive.

        In the alternative, defendant argues that his filing fee should be reduced to $190 to reflect the

maximum allowable fee for filing a civil pleading. The State does not address this argument in its

brief. This petition was filed in the circuit court of Cook County. For counties like Cook County

having a population of 3 million or more, pursuant to 705 ILCS 105/27.2a(g)(2) (West 2006), the

maximum fee for filing a petition to vacate or modify any final judgment or order of court is $90

(with certain exceptions not relevant here). We are mindful that “[t]he purpose of a postconviction

petition *** is to modify or vacate a final judgment, and as such, section 27.2a fees are applicable.”


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No. 1-07-2820

Carter, 377 Ill. App. 3d at 98, citing Gale, 376 Ill. App. 3d at 358; see also Hunter, 376 Ill. App. 3d

at 646. We therefore direct the clerk of the circuit court of Cook County to modify the trial court’s

September 5, 2007, order to provide for a $90 fee for filing a postconviction petition under section

27.2a of the Clerks of Courts Act (705 ILCS 105/27.2a (West 2006)).

                                           CONCLUSION

       Accordingly, we affirm the judgment of the circuit court, but vacate that portion of the trial

court’s September 5, 2007, order imposing $50 in State’s Attorney’s fees and direct the clerk of the

circuit court of Cook County to modify that order to reflect a $90 fee for filing a petition for

postconviction relief.

       Affirmed as modified.

       O’MARA FROSSARD, P.J., with GALLAGHER and NEVILLE, JJ., concurring.




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