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                                Appellate Court                         Date: 2018.01.30
                                                                        15:05:43 -06'00'




                   People v. Brown, 2017 IL App (1st) 150132



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            PERNELL BROWN, Defendant-Appellant.



District & No.     First District, Fourth Division
                   Docket No. 1-15-0132


Filed              November 16, 2017
Rehearing denied   January 4, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 01-CR-15671; the
Review             Hon. Jorge Luis Alonso, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Gilbert C. Lenz, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Christine Cook, and Clare Wesolik Connolly, Assistant State’s
                   Attorneys, of counsel), for the People.



Panel              JUSTICE MCBRIDE delivered the judgment of the court, with
                   opinion.
                   Justice Burke concurred in the judgment and opinion.
                   Justice Ellis dissented, with opinion.
                                                OPINION

¶1        Petitioner, Pernell Brown, who was found guilty of first degree murder and sentenced to 50
     years’ imprisonment, appeals from the Cook County circuit court’s order denying him leave to
     file a successive pro se postconviction petition under the Post-Conviction Hearing Act (Act)
     (725 ILCS 5/122-1 et seq. (West 2014)). He maintains that he set forth a colorable claim of
     actual innocence based on affidavits that he argues identify someone else as the shooter.
     Because the affidavits do not raise the probability that it is more likely than not that no
     reasonable juror would have found petitioner guilty, we affirm.
¶2        In denying petitioner leave to file his successive postconviction petition, the trial court
     summarized the relevant trial evidence, which we repeat here due to the nature of petitioner’s
     claims.
¶3        Petitioner’s conviction stems from the January 16, 2001, shooting of Robert Byrd, known
     as “Rah-Rah,” who was killed in the Super Sub Shop on North Cicero Avenue in Chicago,
     Illinois.
¶4        At trial before Judge Lawrence Fox, Walter Thomass1 testified that he was 48 years old
     and lived in the neighborhood where the offense occurred. On the evening of the shooting,
     Thomass went to the sub shop with some friends. About 1:15 a.m., Thomass was standing by
     the glass front door of the sub shop when he observed a small red Buick pull up in front of the
     shop. There were two people in the car. The driver got out, reached under the driver’s seat, and
     pulled out a gun. He walked into the sub shop and fired the gun twice. Thomass fled the shop,
     then heard several more shots after he left. Thomass testified that petitioner was the driver and
     shooter. He stated that he recognized petitioner from the neighborhood and had seen him
     approximately 10 or 15 times before the shooting. He also testified that he identified petitioner
     as the driver and shooter in a photo array on the day after the shooting and in a subsequent
     police lineup on May 26, 2001. Thomass also testified that he accompanied detectives, who
     walked him through a parking garage, to see if he could identify the vehicle that was used in
     the offense. Thomass spotted the vehicle and identified it for the detectives.
¶5        Venice Blackburn testified that she was 47 years old, that she had four children who were
     between 15 and 28 years old, and that she lived in the area where the shooting occurred.
     Blackburn was with some friends at the sub shop shortly before 1 a.m. on January 16, 2001,
     and she was still there, laughing and joking, when someone came in shooting. She testified
     that, after being shot three or four times, Byrd fell to the floor and reached toward Blackburn’s
     leg. Blackburn testified that petitioner was the shooter. She also testified that she had
     previously identified petitioner as the shooter in a photo array later in the morning of January
     16, 2001.
¶6        Blackburn testified that she had lived in the neighborhood where the shooting occurred for
     13 or 14 years and that she had seen petitioner in the neighborhood for the same length of time.
     Although Blackburn testified that she did not personally know petitioner, she also stated that
     he used to play basketball with her children.



         1
          Throughout the record, the last name of this witness is spelled either Thomas or Thomass. We will
     refer to this witness as “Thomass” with the spelling used by the witness during his testimony.

                                                   -2-
¶7         Both Thomass and Blackburn admitted to using narcotics on the day of the shooting.
       Blackburn stated that she was still high at the time of the shooting but that neither her memory
       nor perception were impaired. Blackburn testified that she had two drug convictions, for which
       she received a sentence of probation. Blackburn completed probation satisfactorily, and at the
       time of her testimony, she had participated in treatment and had not used drugs in over two
       years.
¶8         Cory Gilmore testified that he grew up with individuals who went by the nicknames of
       “Rah-Rah” and “Von,” whom he identified as petitioner. The prosecutor asked Gilmore if he
       recalled speaking with the police on February 7, 2001, and Gilmore responded that he did not
       remember because his drug use impaired his memory. Over petitioner’s objection, the trial
       court allowed the prosecutor to present Gilmore’s handwritten statement given to an assistant
       State’s Attorney (ASA).
¶9         In the statement, Gilmore stated he had known Byrd his whole life. On January 16, 2001,
       Gilmore was at the Super Sub Shop with Robert Curry when Byrd and two other individuals
       arrived. He went outside, and petitioner pulled up in a two-door maroon or red Regal.
       Petitioner was by himself. Gilmore talked to petitioner at the car window. Petitioner did not say
       anything about Byrd, and Gilmore did not see a gun at that time. Petitioner then pulled off
       alone in the car. Gilmore then went back inside the sub shop and got Curry so they could leave.
       Gilmore said they went to a strip club and waited for some other people. After waiting 15
       minutes, Gilmore called his friend to see where he was. Gilmore was told by his friend to come
       back to the sub shop. Gilmore and Curry returned to the sub shop and saw Byrd on the ground
       with police around him. He never saw who shot Byrd.
¶ 10       Robert Curry testified that on January 16, 2001, he was in the vicinity of 611 North Cicero
       Avenue with Gilmore. He went into the sub shop and saw Byrd but left because the place was
       too crowded. He left with Gilmore. They went around the neighborhood and came back. When
       they returned, Curry saw an ambulance, and they tried to find out what happened.
¶ 11       Kevin Tenard identified petitioner at trial and testified that he knew him by the nickname
       “Von.” Tenard stated that on January 16, 2001, at approximately 1:30 a.m., he was in the
       vicinity of 4817 West Ferdinand Street, which was the home of Iesha Rials, the mother of
       petitioner’s child. Tenard was there with his brother and Rials’s cousin. At that time, petitioner
       drove up in a red car. Petitioner gave Tenard the keys and asked him to give the keys to Rials.
       Tenard saw another person with petitioner, but he did not know who he was. Petitioner and the
       other person then got into another car and left.
¶ 12       Detective Michael Delassandro, who investigated Byrd’s shooting, testified that Thomass
       and Blackburn identified petitioner as the shooter in photo arrays on the morning after the
       shooting. Detective Delassandro also met with Iesha Rials at 4817 West Ferdinand Street to get
       Rials’s car, a 1989 red Buick. She took him to the garage behind the building at that address,
       and Detective Delassandro drove the vehicle to area 4. Detective Delassandro asked Thomass
       and Gilmore to view the vehicle. Both witnesses identified the vehicle as the one they saw
       petitioner driving. On February 8, 2001, Detective Delassandro met with Tenard, who told him
       that he was sitting on the porch at 4718 West Ferdinand Street at approximately 1 a.m. on
       January 16, 2001. Tenard said that he observed a red Buick driven by petitioner, which he
       parked in front of that address. Petitioner waved Tenard over and gave Tenard the car keys to
       give to Rials. Petitioner then got into a car that had pulled up behind the Buick and left.


                                                   -3-
¶ 13       In his defense, petitioner attempted to show that his deceased brother, David Payton, was
       the actual shooter. Petitioner’s mother, Tawana Brown, testified that she had two prior
       convictions for drug offenses, for which she received four years’ imprisonment for each.
       Brown testified that petitioner was living in Indianapolis at the time of the shooting. She
       further testified that Payton had once identified himself as petitioner while seeking medical
       treatment and that Payton had been living in Chicago at the time of the shooting. She did not,
       however, testify that petitioner and Payton looked alike. Elaine Jefferson, a friend of
       petitioner’s mother, testified that petitioner was staying with her in Indianapolis on the night of
       the shooting.
¶ 14       Petitioner’s trial counsel recalled Blackburn, and counsel presented her with photographs
       of petitioner and Payton. Blackburn admitted that she had previously been shown the
       photographs by the defense investigator. She indicated that she did not know who in the
       photographs was the shooter and that they “favor[ed]” each other. On cross, the State asked
       Blackburn why she could not identify the shooter from the photographs, and she responded
       that “you can’t see them. I mean, they look alike on there. You can’t hardly tell.” The State
       then asked if there was anything in particular about the photographs that prevented her from
       being able to tell who the shooter was, and Blackburn responded that “Well, one thing, you
       can’t see them clearly, so you really can’t [identify them].”
¶ 15       The trial court entered extensive factual findings, spanning almost 14 pages of the record.
       Regarding some of petitioner’s challenges to the eyewitnesses, the court considered both
       Thomass’s and Blackburn’s ability to view petitioner at the time of the shooting and
       subsequent identifications to police, either by photo array or lineup, as well as their credibility,
       including their admitted drug use. The trial court further reviewed their testimony alongside
       the videotape of the shooting, which provided corroboration of their accounts. Specifically,
       when considering their opportunity to view the shooter, the trial court noted, “Thomass was
       standing by the door looking out as the car pulls up outside and the shooter exits and walks into
       the sub shop.” Further, “[t]he shooter is basically right in front of Thomass when he starts
       shooting and continues to walk forward, shooting as he walks.” Although neither one of the
       eyewitnesses appeared to have had more than a few seconds to see the shooter’s face while he
       was actually in the sub shop, the court noted that “[a]t different times the shooter comes within
       a couple of feet of both witnesses.” The court also noted that “[b]oth Thomass and Blackburn
       testified that they recognized defendant from the neighborhood.”
¶ 16       The trial court stated:
                    “While there’s some minor inconsistency in impeachment in their testimony, what
                strikes me most about Thomas [sic] and Blackburn is that neither one of them really has
                any reason to want to be involved in this case as a witness, which was apparent in their
                manner and demeanor on the witness stand.
                    While Blackburn knew Rah Rah, which is the victim’s nickname, from the
                neighborhood and appears to be joking around with him before he is shot, Thomas [sic]
                only knew who he was and there isn’t any evidence of a close relationship with him or
                any other relationship with the defendant who is known by the name Von which would
                influence either one of these two people to come in here and falsely accuse the
                defendant or say it was him if they weren’t certain it was.
                    Wouldn’t it be much easier for both of them to say I’m not sure, I didn’t get a good
                look at the guy, or something like that?

                                                    -4-
                    On the other hand, doesn’t it make more sense that they’re just two people from the
                neighborhood who happened to be in the sub shop at the time of the shooting, get
                hauled into the police station, and rather than lie to the police to avoid responsibility
                they cooperate and tell the truth and identify defendant because they did get a good
                enough look at him and they had seen him before in the neighborhood.”
¶ 17        The court found petitioner guilty of first degree murder, then sentenced him to 50 years’
       imprisonment.
¶ 18        On appeal, petitioner maintained that (1) the State failed to prove him guilty beyond a
       reasonable doubt because the testimony of identification witnesses was not credible, (2) he
       was denied his sixth amendment right to confrontation, and (3) the trial court improperly
       admitted the prior inconsistent statements of a witness pursuant to section 115-10.0 of the
       Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2000)). People v. Brown,
       No. 1-04-2048 (2006) (unpublished order under Illinois Supreme Court Rule 23). We affirmed
       petitioner’s conviction, specifically finding that “[t]he trial judge completely discussed all the
       evidence presented at trial by both parties. Clearly, the trial court considered the credibility of
       both Thomas[s] and Blackburn and their drug histories as well as any inconsistencies in their
       testimony.” Id. at 18.
¶ 19        In December 2006, petitioner filed a pro se postconviction petition, alleging multiple
       claims, including ineffective assistance of trial and appellate counsel. Judge Fox, who had
       presided over petitioner’s trial, summarily dismissed the petition at the first stage of
       postconviction proceedings, and petitioner appealed, arguing that the trial court erred in
       dismissing his petition because he presented the gist of a claim of ineffective assistance of trial
       counsel based on counsel’s failure to present evidence as to the effect of narcotics on the
       observational abilities of the key identification witnesses, and the gist of a claim of ineffective
       assistance of appellate counsel for failing to raise trial counsel’s ineffectiveness. We held that
       petitioner had failed to support his claims with any affidavits, records, or other evidence and
       had failed to explain the absence of supporting documentation, and we concluded that
       summary dismissal was proper. People v. Brown, No. 1-07-0406 (2008) (unpublished order
       under Illinois Supreme Court Rule 23).
¶ 20        In June 2009, petitioner sought leave to file his first successive pro se postconviction
       petition, which alleged his actual innocence based on his own affidavit and an affidavit from
       Martell Halbert. Petitioner asserted that he was innocent and his deceased brother Payton was
       the actual shooter. In his affidavit, petitioner stated that in early 2007, he learned of two
       witnesses to the shooting, Martell Halbert and Mario Nixon. Both were present in the sub shop
       at the time of the shooting but had not been interviewed by the police. Petitioner stated that he
       was unable to procure an affidavit from Nixon but that Nixon would be willing to sign one.
       Halbert stated in his affidavit that early on the morning of the shooting, he and Nixon had been
       walking to the sandwich shop where the incident occurred. Payton offered to give the men a
       ride, drove them to the sandwich shop, and left. About 10 or 15 minutes later, Payton returned
       to the shop with a pistol and fired several gunshots at the victim “without hesitation.” “Halbert
       was never interviewed by police and was unaware that he had been captured on the
       surveillance camera in the store.” People v. Brown, 2012 IL App (1st) 092597-U, ¶ 8.
¶ 21        Judge Fox denied petitioner leave to file the petition, and we affirmed, finding there was no
       legal basis to consider the purported testimony from Nixon, where petitioner had failed to
       attach an affidavit from him. Halbert’s affidavit was not newly discovered evidence because

                                                    -5-
       both Halbert and Nixon were visible in the surveillance video of the sub shop. The record
       showed that the surveillance footage in question was available to petitioner before trial, and it
       was played at trial on at least two occasions. Further, petitioner acknowledged in his petition
       that the two witnesses “were captured *** on the surveillance videotape,” and thus, we found
       that petitioner should have discovered Halbert at or before trial through the exercise of
       minimal due diligence. Id. ¶¶ 17-18. We also found that petitioner’s claim failed because the
       evidence was not of such a conclusive character that it would probably change the result on
       retrial, given the strong evidence at trial. We concluded that the proffered evidence raised a
       similar set of facts (i.e., that Payton was the actual shooter and that petitioner was living out of
       state) that had been previously heard and rejected by the fact finder. Accordingly, we found
       that Halbert’s affidavit did not “raise the probability that it is more likely than not that no
       reasonable juror would have convicted him in the light of the new evidence.” (Internal
       quotation marks omitted.) Id. ¶¶ 17, 19 (quoting People v. Edwards, 2012 IL 111711, ¶ 24,
       quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
¶ 22       On September 24, 2014, petitioner sought leave to file a second successive pro se
       postconviction petition, alleging actual innocence based on the sworn affidavits of Terrell
       Austin and Randy Norwood. Petitioner contended that he first learned of this evidence in the
       summer of 2014.
¶ 23       Austin’s April 8, 2014, affidavit states, in relevant part, that he was a lookout for heroin
       dealers on the 600 block of Cicero Avenue and on January 16, 2001, he was looking for “an
       associate” named Robert Byrd, also known as “Rah Rah.” While next door to the sub shop at
       his “security post” between 12:30 and 1 a.m., he “saw another one of [his] associate[s] name[d]
       David Payton ‘DP’ drive up in his car and jump[ ] out with a gun in his hand.” Austin called
       out “What you on man[?]” to Payton, who told Austin to “fall back” and then continued into
       the sub shop. Austin was a few steps behind Payton when “out of nowhere [he] heard 2 [to] 3
       gun shots then a man ran out the sub shop. [Austin] took a quick look in the sub shop while [he]
       ran for cover, [he] heard afew [sic] more shots and saw [Payton] run back to his car and drive
       off.” When Austin looked inside the sub shop after Payton left, he saw Byrd “on the floor shot
       up” and then left the scene.
¶ 24       Austin further averred that earlier on the day of the shooting, he was with Byrd when he
       and Payton “got into it” about whose “drops should be sold on certain nights.” Austin “was
       forced to leave the hood” to avoid being killed because “some of the Vice Lords close to
       [Byrd] *** claimed [Austin] had a role in [Payton] ambushing [Byrd].” Austin then went back
       to his “old neighborhood.” In 2014, Austin reconnected with “Ms. Rawls” who he “used to
       mess with.” She told him she had a child with petitioner and that he was in prison for killing
       Byrd. After Austin explained that petitioner did not kill Byrd and that Payton did that “crazy
       stuff,” she asked him to inform the State’s Attorney’s office. Austin declined, so she asked him
       to prepare an affidavit.
¶ 25       Randy Norwood’s affidavit states, in relevant part, that at around 12:30 a.m. on January 16,
       2001, he was in an apartment at Ferdinand Street and Lawler Avenue with Cedric Redmond.
       After he heard a knock at the door, Redmond let Payton in, and Norwood overheard “Payton
       ask [Redmond] if he had a gun that he could borrow for a few minutes.” Payton said he
       “needed a gun real fast, since he just seen [Byrd] at the sub shop on Cicero, when Payton was
       dropping off Mario Nixon and Martel [sic] Halbert.” Payton told Redmond “that he was just


                                                    -6-
       going to scare [Byrd] so he can stay off his turf and stop him from playing games” and
       Redmond gave “Payton a black revolver maybe a .38 or .32 type of gun.”
¶ 26        Norwood further averred that when Payton did not return with the gun, they heard that
       Payton had shot Byrd at the sub shop that morning and that Byrd was dead. “This all started an
       all out war” between Byrd’s crew and Payton’s crew. “[T]he word on the street” was that
       Byrd’s “crew finally caught up with Payton sometime in late 2003 in revenge for [Byrd’s]
       death,” and “they also found out that [Redmond] gave [sic] the gun that killed [Byrd].”
       According to “rumors on the street,” Redmond “was killed because of this but nobody knows
       who killed them.” When Norwood heard what happened to Redmond, he “didn’t want to get
       involved” out of concern for his safety. “[He] knew [Payton’s] younger brother [petitioner]
       was locked up for [Byrd’s] murder and didn’t want to get involved.”
¶ 27        In addition, Norwood averred that he viewed the video surveillance tape of the shooting
       and he was “positive” that Payton was “the man on the surveillance tape” because he was the
       same height and weight and “had on the same exact clothes” that Payton was wearing when
       Norwood saw him earlier that morning.
¶ 28        This time, the petition for leave to file a successive postconviction petition was heard by
       Judge Jorge Luis Alonso, who has since been appointed to the federal bench in 2014. Although
       Judge Alonso found that the affidavits were newly discovered evidence, he concluded that they
       were not of such a conclusive character as would probably change the result on retrial. In its
       written order denying petitioner leave to file, the trial court found:
                    “This evidence is not ‘of such conclusive character’ that it would ‘probably change
                the result on retrial.’ Neither witness states that he actually saw Payton commit the
                shooting or that [petitioner] was not at the scene. Nothing in either affidavit might
                explain why two eyewitnesses from the sub shop positively identified the shooter as
                [petitioner]. The theory that Payton committed the murder remains directly rebutted by
                the record, as [petitioner] was convicted based on positive eyewitness testimony that
                [petitioner] was the shooter.” (Emphasis in original.)
¶ 29        On appeal, petitioner maintains that the trial court erred in denying his second motion for
       leave to file a successive postconviction petition. He contends that the Austin and Norwood
       affidavits show that he made a colorable claim of actual innocence that should be tested at the
       second stage of a postconviction proceeding.
¶ 30        However, before turning to our analysis of petitioner’s issue on appeal, we note that this
       court has become aware that petitioner has been pursuing the same claim as part of proceedings
       on a federal habeas corpus petition, which petitioner initially filed in 2010 in the federal
       district court for the Northern District of Illinois before Judge Virginia Kendall. Brown v.
       Gaetz, No. 10 C 1463, 2015 WL 1976366, at *1 (N.D. Ill. May 1, 2015), certificate of
       appealability denied, No. 15-2156 (7th Cir. Feb. 4, 2016); see People v. Davis, 65 Ill. 2d 157,
       161 (1976) (a court may take judicial notice of facts capable of immediate and accurate
       demonstration by resort to easily accessible sources of indisputable accuracy). Petitioner was
       appointed counsel in those proceedings in February 2011 and supplemented his petition. Those
       proceedings were stayed twice, due to petitioner’s proceedings in state court. The stay was
       lifted after our previous appellate judgment, briefing was completed in the federal court, and
       petitioner requested a stay, again, based on the proceedings on this second successive petition.
¶ 31        In 2015, Judge Kendall refused petitioner’s request to stay the habeas proceedings, finding
       that those proceedings had “already been stayed twice to allow [him] to resolve pending state

                                                  -7-
       law claims and a third stay is not warranted.” Brown, 2015 WL 1976366, at *7. Among other
       claims made before the federal court, petitioner contended that he was actually innocent based
       on the affidavits of “Terrell Austin, Randy Norwood, and Martell Halbert *** essentially
       claiming that Brown’s now-deceased half-brother, [sic] David Payton, was the shooter in this
       case.” Id. at *9. The federal court utilized the “fundamental miscarriage of justice” actual
       innocence standard also used in Illinois to review the totality of the evidence presented at trial
       and petitioner’s proffered evidence. It questioned the timeliness of petitioner’s proffered
       evidence but found that it “need not rely exclusively upon such dilatoriness” because
       petitioner’s evidence “d[id] not sufficiently rebut the evidence presented by the state at trial.”
       Id. at *10. The court noted that the “only ‘new’ eyewitness of the shooting is Martell Halbert,”
       that Austin was only present outside of the sub shop, and that Norwood was not present at or
       immediately near the scene of the crime. Id. The federal court concluded, “Against the state’s
       six witnesses and corroborating surveillance video, the affidavits of these four witnesses
       simply do not warrant the application of the miscarriage of justice exception or an evidentiary
       hearing. [Citations.] After reviewing the evidence, old and new, of Brown’s guilt, this Court
       cannot conclude that ‘no juror, acting reasonably, would have voted to find him guilty beyond
       a reasonable doubt.’ ” Id. (quoting Coleman v. Lemke, 739 F.3d 342, 254 (7th Cir. 2014)).
¶ 32       In light of the fact that another court has already considered the issue that petitioner
       currently brings before this court, this court ordered the parties to brief the issue of whether
       petitioner’s claim is barred by res judicata, collateral estoppel, or law of the case—preclusion
       doctrines that prevent a litigant “from ‘taking two bites out of the same appellate apple.’ ”
       People v. Tenner, 206 Ill. 2d 381, 395-97 (2002) (quoting People v. Partee, 125 Ill. 2d 24, 37
       (1988)). Petitioner contends that the denial of his federal habeas petition has no preclusive
       effect because the question before this court is not identical to the one before the habeas court.
       Petitioner alternatively requests that this court reach the merits of his claim “in the interest of
       fundamental fairness.” The State contends that petitioner’s claim has already been decided
       against him in a final judgment by the federal habeas court, and accordingly, this court should
       apply collateral estoppel to bar his claim.
¶ 33       Although we would be inclined to find petitioner’s claim precluded, we need not reach this
       issue. Even assuming that collateral estoppel does not apply or bar petitioner’s claim, or if we
       were to accept petitioner’s request to reach the merits of his claim based on fundamental
       fairness, we would reach the same conclusion that was reached by both the federal court and
       the circuit court—that petitioner has failed to raise a colorable claim of actual innocence.
¶ 34       The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)) provides a tool
       by which those under criminal sentence in this state can assert that their convictions were the
       result of a substantial denial of their rights under the United States Constitution or the Illinois
       Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2010); People v. Coleman, 183 Ill. 2d 366,
       378-79 (1998). Postconviction relief is limited to constitutional deprivations that occurred at
       the original trial. Coleman, 183 Ill. 2d at 380. “A proceeding brought under the [Act] is not an
       appeal of a [petitioner’s] underlying judgment. Rather, it is a collateral attack on the
       judgment.” People v. Evans, 186 Ill. 2d 83, 89 (1999).
¶ 35       Only one postconviction proceeding is contemplated under the Act (Edwards, 2012 IL
       111711, ¶ 22), and a petitioner seeking to file a successive postconviction petition must first
       obtain leave of court (People v. Tidwell, 236 Ill. 2d 150, 157 (2010)). It is the petitioner’s
       burden to obtain leave before further proceedings on his claims can follow and to “submit

                                                    -8-
       enough in the way of documentation to allow a circuit court to make that determination.” Id. at
       157, 161. “[L]eave of court should be granted when the petitioner’s supporting documentation
       raises the probability that ‘it is more likely that not that no reasonable juror would have
       convicted him in the light of the new evidence.’ ” Edwards, 2012 IL 111711, ¶ 24 (quoting
       Schlup, 513 U.S. at 327).
¶ 36        A petitioner faces “immense procedural default hurdles when bringing a successive
       post-conviction petition,” which “are lowered in very limited circumstances,” as successive
       petitions “plague the finality of criminal litigation.” Tenner, 206 Ill. 2d at 392. However, our
       supreme court has found “the statutory bar to a successive postconviction petition will be
       relaxed when fundamental fairness so requires.” People v. Lee, 207 Ill. 2d 1, 5 (2003). The bar
       against successive postconviction proceedings should be relaxed when (1) a petitioner can
       establish “cause and prejudice” for the failure to raise the claim earlier or (2) he can show
       actual innocence under the “fundamental miscarriage of justice” exception. Edwards, 2012 IL
       111711, ¶¶ 22, 23. Well-pleaded factual allegations of a postconviction petition and its
       supporting evidence are taken as true unless they are positively rebutted by the record of the
       original trial proceedings. People v. Sanders, 2016 IL 118123, ¶ 48 (citing Coleman, 183 Ill.
       2d at 382).
¶ 37        Whether abuse of discretion or de novo review applies to decisions granting or denying
       leave to file successive postconviction petitions is unclear. Edwards, 2012 IL 111711, ¶ 30. In
       Edwards, the court pointed out that decisions granting or denying leave of court are generally
       reviewed for abuse of discretion. Id. However, the Edwards court recognized that the
       requirement that a successive postconviction petition based on a claim of actual innocence
       must state a colorable claim, as a matter of law, suggests de novo review. Id. Although our
       supreme court has not resolved the question, we need not address the issue here because
       petitioner’s claim fails under either standard. See id.; People v. Calhoun, 2016 IL App (1st)
       141021, ¶ 32.
¶ 38        A petitioner is not entitled to an evidentiary hearing on a postconviction petition as a matter
       of right; rather, a hearing is required only when the allegations of the petition, supported by the
       trial record and accompanying affidavits, make a substantial showing of a violation of a
       constitutional right. People v. Jones, 191 Ill. 2d 354, 361 (2000). Because “[c]redibility
       determinations may be made only at a third-stage evidentiary hearing,” all well-pleaded factual
       allegations of a postconviction petition and its supporting evidence must be taken as true
       unless they are positively rebutted by the record of the original trial proceedings. Sanders,
       2016 IL 118123, ¶¶ 42, 48.
¶ 39        “Actual innocence” does not involve an analysis of whether a petitioner had been proved
       guilty beyond a reasonable doubt. People v. Savory, 309 Ill. App. 3d 408, 414 (1999) (citing
       People v. Washington, 171 Ill. 2d 475, 479 (1996)). Actual innocence is not the same as
       sufficiency of the evidence or reasonable doubt, nor mere impeachment of trial witnesses, but a
       claim of vindication or exoneration. Id.; People v. House, 2015 IL App (1st) 110580, ¶¶ 41, 46.
       The requirements of an actual innocence claim are “extraordinarily difficult to meet” (People
       v. Coleman, 2013 IL 113307, ¶ 94), and “[c]ourts rarely grant postconviction petitions based
       on claims of actual innocence.” People v. Wallace, 2015 IL App (3d) 130489, ¶ 14.
¶ 40        “The evidence of actual innocence must be (1) newly discovered, (2) not discoverable
       earlier through the exercise of due diligence, (3) material and not merely cumulative, and
       (4) of such conclusive character that it would probably change the result on retrial.” Sanders,

                                                    -9-
       2016 IL 118123, ¶ 24. The conclusiveness of the evidence has been held to be the most
       important requirement of an actual innocence claim. See Washington, 171 Ill. 2d at 489.
¶ 41       As an initial matter, the State contends that petitioner did not establish that his proposed
       evidence was newly discovered and that his claim to have recently learned of the affiants is
       insufficient where he could have discovered their testimony with due diligence.
¶ 42       We also question whether petitioner’s proposed evidence could be considered newly
       discovered. “Newly discovered evidence is evidence that was unavailable at trial and could not
       have been discovered sooner through due diligence.” People v. Harris, 206 Ill. 2d 293, 301
       (2002). Evidence is not newly discovered when it presents facts already known to a petitioner
       at or prior to trial, though the source of those facts may have been unknown, unavailable, or
       uncooperative. People v. Wideman, 2016 IL App (1st) 123092; People v. Jones, 399 Ill. App.
       3d 341, 364 (2010); People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007). As the above
       recitation of petitioner’s trial proceedings illustrate, petitioner’s defense is and always has
       always been that his deceased brother, Payton, was the actual shooter. The proposed testimony
       of these new affiants shows that they were known close associates of his brother, and as such, it
       is doubtful that petitioner would not have known or been able to discover their testimony
       earlier. The affiants offer only vague explanations about their whereabouts and unavailability
       since the offense. Additionally, petitioner previously presented, as part of his prior successive
       postconviction petition, the affidavit of Halbert, who averred that Payton dropped off Halbert
       and Nixon at the sub shop, then returned later with a gun. In these circumstances, petitioner’s
       proposed evidence, showing that Payton picked up a gun and was later outside the sub shop
       before the shooting, would not be considered newly discovered.
¶ 43       Nonetheless, even assuming that the proposed evidence is newly discovered, we conclude
       that petitioner’s claim fails because he is unable to establish “the most important element of an
       actual innocence claim”—specifically, that it is “so conclusive that it is more likely than not
       that no reasonable juror would find him guilty beyond a reasonable doubt.” Sanders, 2016 IL
       118123, ¶ 47 (citing Edwards, 2012 IL 111711, ¶ 40); Washington, 171 Ill. 2d at 489.
¶ 44       This standard has been recognized to be stronger than the showing necessary to establish
       prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Edwards, 2012 IL 111711,
       ¶ 40 (citing Morales v. Johnson, 659 F.3d 588, 605 (7th Cir. 2011)). In making this
       determination, a court must “make a probabilistic determination about what reasonable,
       properly instructed jurors would do.” Schlup, 513 U.S. at 329. “It must be presumed that a
       reasonable juror would consider fairly all of the evidence presented. It must also be presumed
       that such a juror would conscientiously obey the instructions of the trial court requiring proof
       beyond a reasonable doubt.” Id.
¶ 45       The United States Supreme Court, whose standard this state has adopted in Edwards, 2012
       IL 111711, has said that the “fundamental miscarriage of justice” standard required to show
       actual innocence
                “does not merely require a showing that a reasonable doubt exists in the light of the
                new evidence, but rather that no reasonable juror would have found the defendant
                guilty. It is not the district court’s independent judgment as to whether reasonable
                doubt exists that the standard addresses; rather the standard requires the district court to
                make a probabilistic determination about what reasonable, properly instructed jurors
                would do. Thus, a petitioner does not meet the threshold requirement unless he
                persuades the district court that, in light of the new evidence, no juror, acting

                                                    - 10 -
                reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup,
                513 U.S. at 329.
¶ 46        The above standard “ ‘ensures that petitioner’s case is truly “extraordinary” [citation]
       while still providing petitioner a meaningful avenue by which to avoid a manifest injustice.’ ”
       See People v. English, 2014 IL App (1st) 102732-B, ¶ 44 (quoting Schlup, 513 U.S. at 327).
       This court has also noted that “the supreme court did not intend for the colorable claim
       standard to be ‘a mere pleading standard,’ but a standard that restricts review of successive
       postconviction petitions only to those that truly relate to an unjust incarceration of the
       defendant. Those cases that are truly ‘extraordinary.’ ” (Internal quotation marks omitted.) Id.
       (citing Schlup, 513 U.S. at 327).
¶ 47        With these principles in mind, we turn to petitioner’s proffered evidence in this case.
       Petitioner contends that he has raised a colorable claim of actual innocence based on the
       affidavits of Halbert, Austin, and Norwood. We examine each affidavit in turn.
¶ 48        In Halbert’s affidavit, which was attached to petitioner’s first successive postconviction
       petition, he alleged that he was in the sub shop and saw that Payton was the actual shooter.
       Halbert further stated that he was never interviewed by police and was unaware that he had
       been captured on the surveillance camera in the store.
¶ 49        Petitioner, however, did not attach Halbert’s affidavit to his second successive
       postconviction petition, which is at issue here, and made no argument or reference to the
       affidavit in his petition. Nevertheless, even if this affidavit were properly before us, this court
       has previously considered whether Halbert’s affidavit supported an actual innocence claim and
       resolved that question against petitioner. In concluding that petitioner “should have discovered
       Halbert at or before trial through the exercise of minimal due diligence,” we reasoned that the
       surveillance footage “was available to [petitioner] before trial, and was played at trial on at
       least two occasions.” Brown, 2012 IL App (1st) 092597-U, ¶ 17. We also found that Halbert’s
       affidavit was not of such a conclusive character that it was likely to change the result on retrial
       based on the strong trial evidence and the fact that the court rejected a similar set of facts at
       trial. We thus concluded that the proffered evidence did not raise “ ‘the probability that “it is
       more likely than not that no reasonable juror would have convicted him in the light of the new
       evidence.” ’ ” Id. ¶ 19 (quoting Edwards, 2012 IL 111711, ¶ 24, quoting Schlup, 513 U.S. at
       327). In these circumstances, we find that collateral estoppel precludes petitioner from
       relitigating his actual innocence claim as it relates to Halbert’s affidavit. See Tenner, 206 Ill.
       2d at 396 (“The collateral estoppel doctrine bars relitigation of an issue already decided in a
       prior case.”). Moreover, even if we were to conclude that petitioner could raise Halbert’s
       affidavit again, in spite of our earlier rejection of it, we would continue to conclude that it does
       not support an actual innocence claim for the same reasons stated previously.
¶ 50        Next, in Austin’s affidavit, he contended that around the time of the offense he saw Payton
       drive up to the sub shop “and jump[ ] out with a gun in his hand.” After Payton went into the
       sub shop, Austin heard gunshots, then saw “[Payton] run back to his car and drive off.” Austin
       also contended that he was present when Byrd and Payton had a disagreement earlier that day
       about drug sales.
¶ 51        Austin, however, was not present at the shooting and only heard the gunshots.
       Accordingly, Austin did not, and cannot, exonerate petitioner, since he did not actually observe
       what happened inside the sub shop. See House, 2015 IL App (1st) 110580, ¶ 41 (“A claim of


                                                    - 11 -
       actual innocence is not a challenge to whether the defendant was proved guilty beyond a
       reasonable doubt, but rather an assertion of total vindication or exoneration.”).
¶ 52        Moreover, even if we could construe Austin’s affidavit as implicating Payton in the
       shooting, we conclude that the new account is directly rebutted by the evidence at trial, which
       included actual eyewitness testimony from two witnesses who saw the shooter and identified
       him as petitioner, whom they knew from the neighborhood. Accordingly, this court need not
       construe such allegations as true. See Sanders, 2016 IL 118123, ¶ 48 (“Well-pleaded factual
       allegations of a postconviction petition and its supporting evidence must be taken as true
       unless they are positively rebutted by the record of the original trial proceedings.”); Coleman,
       183 Ill. 2d at 382 (“this court has consistently upheld the dismissal of a post-conviction petition
       when the allegations are contradicted by the record from the original trial proceedings”).
¶ 53        Norwood’s affidavit fares no better. In his affidavit, Norwood states that around 12:30 a.m.
       on January 16, 2001, he was in an apartment when Payton arrived, borrowed a gun from
       someone else at the apartment, and said that he was going to go scare Byrd. Norwood further
       averred that he later heard that Payton shot Byrd.
¶ 54        Norwood is also not an eyewitness to the offense at issue and is even more removed than
       Austin from the actual crime scene. He merely contends that Payton received a gun shortly
       before the shooting. However, like Austin, Norwood did not and cannot say that petitioner did
       not commit the crime because he has no personal knowledge of what happened in the sub shop.
       Additionally, while Norwood subsequently “heard” that Payton shot Byrd, Norwood does not
       claim to have any personal knowledge of this fact and does not even say from whom he
       “heard” this information.
¶ 55        Neither Austin nor Norwood stated that petitioner was not present at the sub shop, where
       he was identified at trial by eyewitnesses who were actually present at the scene and who
       testified that it was petitioner who shot the victim. Neither affiant refuted the testimony at trial
       that petitioner was seen in the red Buick before, during, and after the shooting, or that the car
       used in the shooting belonged to petitioner’s child’s mother. At trial, Detective Delassandro
       testified that the car was recovered from petitioner’s child’s mother and subsequently
       identified by Thomass, Gilmore, and Tenard. Since the affiants have no personal knowledge
       from which to aver that petitioner was not the shooter, the affidavits do not raise the probability
       that “it is more likely than not that no reasonable juror would find him guilty beyond a
       reasonable doubt.” Sanders, 2016 IL 118123, ¶ 47.
¶ 56        We also reject the idea that Norwood is now an “eyewitness” to the shooting, simply
       because he viewed the video surveillance tape of the shooting and was “positive” that Payton
       was “the man on the surveillance tape.” Norwood is not an eyewitness to the crime. There is
       absolutely no question that Norwood was not in or near the sub shop when the shooting
       occurred. Norwood’s review of a surveillance tape more than a decade after a shooting, cannot
       make him an eyewitness to a crime he never observed.
¶ 57        Moreover, Norwood does not claim to be able to identify Payton based on any facial
       recognition; instead, he contends that he can identify Payton based on his height, weight, and
       clothing. However, this court has also repeatedly reviewed the surveillance tape and has
       observed that it is grainy, in black and white, and noticeably distorted on the sides of the frame
       as if it was taken with a wide-angle lens. Additionally, Norwood’s statement that the shooter in
       the video was identifiable as Payton because of his height and weight is particularly lacking in


                                                    - 12 -
       character given that petitioner is arguing that he was misidentified because he and his brother
       look alike.
¶ 58       We thus conclude that petitioner has not asserted a colorable claim of actual innocence and
       the trial court did not err in denying him leave to file his successive postconviction petition.
¶ 59       Unlike the circuit court, the federal district court, and this majority opinion, the dissent
       contends that the new proposed evidence is not rebutted by the record. However, in doing so,
       the dissent overstates the proposed evidence at issue. Specifically, the dissent describes the
       witnesses as “swearing under oath that the wrong person was convicted of this crime.” Infra
       ¶ 98. However, as stated above, the two affiants that are at issue here are not eyewitnesses to
       the crime. They did not see what happened inside the sub shop, and accordingly, their proposed
       testimony is rebutted by the trial witnesses who were actual eyewitnesses to the offense.
¶ 60       Additionally, although the dissent focuses on the requirement that we take all well-pleaded
       factual allegations as true, we believe that it misconstrues that concept and relies upon it so
       heavily that it effectively does away with the requirement that the new evidence be “so
       conclusive in character as would probably change the result on retrial.”
¶ 61       On this issue, we find the supreme court’s decision in Sanders, 2016 IL 118123,
       instructive.2 In Sanders, our supreme court considered the successive postconviction petition
       of the petitioner, who had been convicted of first degree murder and aggravated kidnapping
       and claimed that he was actually innocent of those crimes. In his successive postconviction
       petition, the petitioner submitted evidence purporting to show that Bingham, a co-offender,
       had acted alone and that Bingham’s trial testimony was perjured.
¶ 62       At trial, Bingham had testified that he, petitioner, and a co-offender were in partnership
       selling cocaine. On the day of the murder, he purchased cocaine from the victim, and, later,
       they discovered that “the amount of the cocaine was six grams short.” Id. ¶ 8. Bingham
       testified that the petitioner retrieved three guns and the three men went to the victim’s house to
       confront him. They put the victim in the trunk of a car and drove him to an abandoned building,
       and the petitioner brought the victim inside and shot him while the other two men waited
       outside. Three other witnesses testified to seeing the petitioner, Bingham, and the co-offender
       during the drug buy and/or when the men returned and took the victim from the house.
¶ 63       In his successive postconviction petition, the petitioner attached a transcript of testimony
       that Bingham had given during an evidentiary hearing on the co-offender’s postconviction
       petition. In that testimony, Bingham recanted his prior testimony identifying the petitioner and
       the other man as participating in the murder. He also denied being in the drug business with the
       petitioner or co-offender. Bingham testified that he purchased cocaine from the victim and
       discovered that the cocaine was “no good.” Bingham then went back to the victim, picked him
       up by himself, and put him in the trunk of Bingham’s car. Bingham then drove to an abandoned
       building, alone, and shot him. Bingham further claimed the State told him he would receive a
       20-year sentence for his testimony and that that he “tried to tell the truth in the beginning but
       the State wanted [the petitioner and the co-offender] for some reason.” Id. ¶ 16.

           2
             Although we recognize that Sanders arose from a slightly different procedural posture than this
       case, in that it was an appeal from a second-stage dismissal of a successive postconviction petition (and
       it was unclear whether the trial court in Sanders recognized that it was a successive petition before
       docketing it for further proceedings), the requirement that all well-pleaded factual allegations are taken
       as true applies equally in this case as in Sanders, and it is thus helpful to our analysis of this issue.

                                                      - 13 -
¶ 64        The petitioner also attached affidavits from two witnesses who claimed that Bingham had
       admitted to killing the victim and another affidavit from Patricia DeRamus, who claimed to be
       present with the victim when Bingham bought the cocaine and when Bingham returned, alone,
       and “ ‘march[ed]’ ” the victim out the back door at gunpoint. Id. ¶ 15. DeRamus testified that
       she never saw the victim again and that Bingham returned later that evening and said that he
       had killed him. Id.
¶ 65        In affirming the trial court’s dismissal of the petitioner’s successive postconviction
       petition, the supreme court reaffirmed that “[a]ll well-pleaded factual allegations not positively
       rebutted by the trial record must be taken as true for purposes of the State’s motion to dismiss.”
       Id. ¶ 42. Accordingly, it concluded that the trial court’s consideration of its own credibility
       determination it had made previously upon hearing the recantation testimony at issue at the
       co-offender’s evidentiary hearing was improper. Nonetheless, the supreme court found that the
       petition was properly dismissed. Id. ¶ 55.
¶ 66        The court noted that Bingham’s “recantation conflicts with much of the evidence at [the
       petitioner’s] trial.” Id. ¶ 48. The supreme court outlined the testimony of several witnesses at
       trial who testified regarding the petitioner’s presence and involvement in kidnapping the
       victim and stated:
               “Bingham’s recantation is contrary not only to his own testimony at petitioner’s trial,
               but also to the testimony of [two witnesses], who positively identified petitioner as
               being with Bingham and May at Barfield’s house the night of the murder and as having
               participated in the events leading up to Cooks’ murder. It is also contradicted by the
               pathologist’s testimony that Cooks was shot twice in the head, not once, as Bingham
               claimed in his recantation. Bingham’s recantation testimony merely adds conflicting
               evidence to the evidence adduced at the trial. Even taking the well-pleaded facts as
               true, we conclude that the recantation is not of such conclusive character as would
               probably change the result on retrial.” Id. ¶ 52.
¶ 67        The supreme court also found that DeRamus’s “statements merely contradict the testimony
       of other occurrence witnesses” and that her “statement that Bingham ‘marched’ Cooks out the
       back door *** directly contradicts Bingham’s recantation testimony when he said that he
       picked up Cooks, threw him over his shoulder, and took him out the back door.” Id. ¶ 53. The
       supreme court thus concluded that her “proposed testimony would merely add to the evidence
       the jury heard at petitioner’s trial. It is not so conclusive in character as would probably change
       the result on retrial, either by itself or in conjunction with Bingham’s recantation.” Id.
¶ 68        By our reading of Sanders, the supreme court did not take the above allegations as true.
       They were not required to do so because they were not well-pleaded facts that were unrebutted
       by the record. Although Bingham had testified that his earlier trial testimony was perjured, that
       he acted alone, and that the State was pressuring Bingham to implicate the petitioner, the
       supreme court did not take those allegations as true. Likewise, although DeRamus contended
       that she saw Bingham, acting alone, purchase drugs then return and take the victim away at
       gunpoint, and that she heard Bingham admit to killing the victim, the supreme court did not
       take those allegations as true either. Instead, the court considered the trial record and the
       character of the petitioner’s proposed new evidence and concluded that the new evidence was
       rebutted by the evidence at the petitioner’s trial. Additionally, the court stated that, even taking
       the proposed evidence as true, it was “not so conclusive in character as would probably change
       the result on retrial.” Id. We reach the same conclusion here.

                                                    - 14 -
¶ 69        The dissent in this case appears to assume that we take all allegations as true, and
       accordingly, because petitioner presented some proposed evidence tending to show that he was
       not the actual offender, his petition must continue for further proceedings. We believe that the
       dissent’s analysis misconstrues our supreme court’s decision in Sanders and turns the
       requirement that the evidence must be “so conclusive that it is more likely than not that no
       reasonable juror would have found him guilty” into a question of whether the proposed
       evidence could possibly create reasonable doubt in any juror, effectively doing away with the
       conclusiveness standard altogether. It is for this reason that the dissent attacks the credibility of
       the trial witnesses, essentially rehashing a reasonable doubt question as to petitioner’s
       underlying conviction. However, a postconviction petition is not, and should not be, based on
       the reasonable doubt standard. Savory, 309 Ill. App. 3d at 414 (citing Washington, 171 Ill. 2d at
       479). As stated previously, actual innocence is not the same as sufficiency of the evidence or
       reasonable doubt, nor mere impeachment of trial witnesses, but a claim of vindication or
       exoneration. Id.; House, 2015 IL App (1st) 110580, ¶¶ 41, 46.
¶ 70        Moreover, the credibility of the witnesses at trial is no longer before this court. As much as
       the dissent characterizes the witnesses and their testimony as “flaw[ed]” (infra ¶ 89), their
       credibility has already been resolved by the fact finder, which concluded that they had no
       motivation to lie and that they were “just two people from the neighborhood who happened to
       be in the sub shop at the time of the shooting *** and rather than lie to the police[,] *** they
       cooperate[d] and [told] the truth and identif[ied] [petitioner] because they did get a good
       enough look at him and they had seen him before in the neighborhood.”
¶ 71        The dissent also mischaracterizes the testimony at trial regarding an allegedly “striking
       resemblance” between petitioner and Payton. Infra ¶¶ 89, 91. No one testified at trial, not even
       petitioner’s own mother, that petitioner and Payton bore a “striking resemblance” to each
       other. Moreover, there was no testimony showing that Payton used petitioner’s photo
       identification at the hospital, or otherwise that it was because they looked alike that Payton was
       able to identify himself as petitioner when seeking medical treatment. Although Blackburn did
       testify that she could not identify the shooter in the two photographs provided by the defense
       attorney, she later clarified that it was because the photographs were not clear. Following this
       clarification, the defense attorney did not attempt to show those photographs to anyone else,
       including Thomass, who also identified petitioner as the shooter, and all of the other witnesses
       who placed petitioner at the scene, and in the car, before, during, and after the shooting.
¶ 72        In People v. Rivera, 2016 IL App (1st) 132573, the First Division of the First District of
       this court considered a petitioner’s postconviction claim of actual innocence. There, the
       petitioner had been convicted of first degree murder as the shooter in a gang-related shooting.
       In his postconviction petition, the petitioner raised a claim of actual innocence based on an
       affidavit from his codefendant. Id. ¶ 1. The codefendant had pleaded guilty to first degree
       murder under a theory of accountability, and, in the affidavit, the codefendant stated for the
       first time that he was the shooter in the murder, not the petitioner. Id. ¶¶ 6-7.
¶ 73        The reviewing court found that the codefendant’s affidavit was not of such conclusive
       character that it would probably change the result on retrial. The court noted that the supreme
       court on direct appeal described the evidence of the petitioner’s guilt as “ ‘overwhelming.’ ”
       Id. ¶ 31 (quoting People v. Rivera, 227 Ill. 2d 1, 26 (2007)). The court pointed out that the
       evidence at trial consisted of witnesses who were with the petitioner before, during, and after
       the shooting and that the petitioner was seen with a gun immediately after the shooting. Id.

                                                    - 15 -
       Moreover, although the court observed that the codefendant’s affidavit did not say that the
       petitioner “was present in the van, he does not say [the petitioner] was not present” during the
       shooting. (Emphasis in original.) Id. ¶ 32.
¶ 74       As these cases clarify, this court can, and should, in our de novo review, consider the
       character of the proposed evidence. Only by doing so can we determine whether the evidence
       is so conclusive that it is more likely than not that no reasonable juror would have found him
       guilty beyond a reasonable doubt. As the United States Supreme Court has emphasized, actual
       innocence claims “must be supported ‘with new reliable evidence—whether it be exculpatory
       scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was
       not presented at trial.’ ” Edwards, 2012 IL 111711, ¶ 32 (quoting Schlup, 513 U.S. at 324).
       Although neither the United States Supreme Court nor our Illinois Supreme Court has
       specifically limited the type of evidence available to support an actual innocence claim to those
       delineated categories, it is clear that the evidence here is so far removed in character from this
       type of “new reliable evidence” that it could never support such a claim.
¶ 75       In this case, petitioner’s proffered evidence comes from two affiants who did not see the
       actual shooting and whose statements came long after the offense at issue. The gist of their
       statements—that petitioner’s brother Payton was seen picking up a gun and driving to and
       entering the sub shop shortly before the shooting—does not exonerate petitioner from having
       committed this crime.
¶ 76       Moreover, even if we excused the fact that these witnesses did not see the actual shooting,
       we conclude, like the federal and circuit courts, that their statements are directly rebutted by
       the evidence at trial. The proposed evidence does not explain why petitioner was identified by
       two witnesses to the shooting, both of whom recognized him from the neighborhood, and
       neither of whom have recanted their trial testimony. It also does not explain why the car that
       was used in the offense belonged to petitioner’s child’s mother or why petitioner was seen
       driving the car to the sub shop and returning it to his child’s mother shortly after the offense.
       Petitioner’s proposed evidence merely impeaches or contradicts the trial testimony and,
       accordingly, does not support a claim of actual innocence. See People v. Williams, 2016 IL
       App (1st) 133459, ¶ 57 (“at best the evidence contained in the affidavit merely affects the issue
       of the sufficiency of the evidence and therefore does not totally vindicate defendant”).
¶ 77       In Wideman, 2016 IL App (1st) 123092, ¶ 31, the petitioner, who had been previously
       convicted of murder and armed robbery of the victim, sought leave to file a successive
       postconviction petition claiming actual innocence based on the recantation of a trial witness,
       Anton Williams, who submitted an affidavit saying that others were attacking the victim and
       that the petitioner was “only standing there” and “didn’t do anything at all” to the victim. This
       court noted that the petitioner had been found guilty, in part based on a confession, and that the
       proposed testimony was not of such conclusive character that it would probably change the
       result on retrial. The court stated that:
               “The defendant essentially asks us to find that it is more likely than not that the jury
               would choose to entirely disregard the defendant’s detailed confession and acquit the
               defendant, had the jury heard Williams testify that the defendant was merely ‘standing
               there’ and ‘didn’t do anything’ to Thomas. The defendant does not explain why the jury
               would completely disregard his own words detailing his participation in the crime in
               favor of Williams’ testimony to the contrary. Such a proposition is unreasonable.
               Clearly, even if the jury were presented with such conflicting evidence, it could easily

                                                   - 16 -
                conclude that the defendant’s detailed, self-incriminating statements were entitled to
                more weight and (along with the other trial evidence) supported a finding of guilt. We
                certainly cannot say that an acquittal on either the murder or armed robbery charge
                would be ‘probable’ had Williams testified to the statements in his May 2010 affidavit.
                Thus, we do not find that the defendant set forth evidence ‘of such conclusive character
                that it would probably change the result on retrial’ as is required to allow leave to file a
                successive petition on the basis of actual innocence.” Id. ¶ 67 (quoting Edwards, 2012
                IL 111711, ¶ 32).
¶ 78       So too here, we conclude that, even if a jury were presented with the testimony proposed by
       Austin and Norwood, a juror “could easily conclude” that the evidence presented at
       petitioner’s trial—which included unimpeached and uncontradicted eyewitness identifications
       and other testimony that placed petitioner at or near the scene, and in the car that was used in
       the offense—was “entitled to more weight and *** supported a finding of guilt.” Id. “We
       certainly cannot say that an acquittal *** would be ‘probable’ had” Austin and Norwood
       testified consistently with their affidavits. Id. We thus conclude, like in Wideman, that the
       proposed evidence was not “ ‘of such conclusive character that it would probably change the
       result on retrial’ as is required to allow leave to file a successive petition on the basis of actual
       innocence.” Id.
¶ 79       The dissent, however, appears to believe that considering the character of the evidence
       amounts to an improper credibility assessment. We disagree. Although some of the same
       considerations may come into account when considering the character of the evidence and the
       credibility of witnesses, we are explicitly required to consider the evidence’s character to
       determine whether the proposed evidence “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.’ ”
       Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup, 513 U.S. at 327).
¶ 80       Nonetheless, even taking petitioner’s proposed evidence as true, it would be absurd to
       think that, in light of that proposed non-eyewitness testimony, there is no reasonable juror who
       would have convicted petitioner, when two other eyewitnesses inside the sub shop identified
       him as the shooter, the car involved in the offense belonged to his child’s mother, and he was
       seen in that car before, during, and after the offense. We thus find that petitioner’s proposed
       evidence is not so conclusive that it is more likely than not that no reasonable juror would have
       found him guilty beyond a reasonable doubt. Sanders, 2016 IL 118123, ¶ 47.
¶ 81       The cases that the dissent relies on to support its position are clearly distinguishable from
       the case at bar, most importantly because the postconviction petitions in those cases were
       supported by new eyewitness testimony.
¶ 82       In People v. Adams, 2013 IL App (1st) 111081, the petitioner had been convicted of the
       murder of his former girlfriend, who had been beaten to death on the street in Chicago. In
       support of a successive postconviction petition, the petitioner presented affidavits from three
       individuals who claimed to have seen the beating, who said that the petitioner was not the
       perpetrator, and who either identified or described the actual perpetrator. In those
       circumstances, the proposed affidavits, if believed, directly refuted the trial testimony of
       witnesses who identified petitioner as the perpetrator, and accordingly, the new evidence
       “add[ed] to what was previously before the jury in that the jury had heard [the petitioner]’s
       testimony that he left the scene before the victim was killed, but had heard no evidence
       pointing to the identity of an alternate perpetrator.” Id. ¶ 35.

                                                    - 17 -
¶ 83       In People v. Ortiz, 235 Ill. 2d 319, 322 (2009), and People v. Ortiz, 385 Ill. App. 3d 1, 2-4
       (2008), the petitioner filed a successive postconviction petition challenging his murder
       conviction based on actual innocence. At an evidentiary hearing, the petitioner presented
       testimony from eyewitnesses who claimed to have seen the shooting and who identified other
       individuals as the shooters. Additionally, the State’s witnesses who had previously identified
       the petitioner as the shooter had recanted that testimony at trial. As the dissent notes, this court
       found that these witnesses allowed the petitioner to “attack the credibility of the State’s
       eyewitnesses directly with his own eyewitnesses” instead of “rel[ying] solely on alibi
       testimony” (Ortiz, 385 Ill. App. 3d at 13), and the supreme court affirmed, finding that the new
       eyewitness testimony “supplied a first-person account of the incident that directly contradicted
       the prior statements of the two eyewitnesses for the prosecution” (Ortiz, 235 Ill. 2d at 335).
¶ 84       Unlike in Adams and Ortiz, the affidavits here are not from eyewitnesses to the offense at
       issue because the affiants did not see the shooting or who pulled the trigger. Instead, the
       proposed affidavits are from one person who saw Payton outside of the sub shop before the
       shooting and another who saw Payton picking up a gun earlier that night. These proposed
       affidavits do not “directly contradict[ ] the prior statements of the two eyewitnesses for the
       prosecution” (Ortiz, 235 Ill. 2d at 335), namely Thomass and Blackburn, who were the actual
       eyewitnesses to the shooting and who identified petitioner as the perpetrator. In these
       circumstances, we find Adams and Ortiz unpersuasive.
¶ 85       We reiterate that, by our decision, we are not making credibility determinations regarding
       the proposed evidence. We have, however, using a de novo review, examined the character of
       that evidence and determined that it is not “so conclusive that it is more likely than not that no
       reasonable juror would find him guilty beyond a reasonable doubt.” Sanders, 2016 IL 118123,
       ¶ 47.
¶ 86       For all the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 87      Affirmed.

¶ 88       JUSTICE ELLIS, dissenting:
¶ 89       Defendant was convicted of murder, not based on an accountability theory but on the
       allegation that he shot Robert Byrd. Two witnesses, with all their flaws, testified at trial that
       defendant was the shooter. Three witnesses have now testified through affidavits that he was
       not—that instead, the shooter was defendant’s half-brother David Payton, who bears a striking
       resemblance to defendant and who would qualify as the first suspect in this case with a
       demonstrable motive to kill Byrd. The majority holds that defendant should not even be given
       leave to present this argument, to have an attorney appointed so that he can make a case for a
       third-stage evidentiary hearing on his innocence, where the credibility and strength of this
       evidence could be evaluated by a judge.
¶ 90       Defendant was convicted largely on the testimony of two longtime drug addicts, Walter
       Thomas and Venice Blackburn, both of whom admitted to consuming narcotics and alcohol on
       the day of the shooting and one of whom (Blackburn) admitted to being high on heroin and
       vodka at the time of the shooting. These witnesses were familiar with defendant from around
       the neighborhood but did not know him. Beyond that, the State presented evidence that
       defendant was seen, before and after the fact, in the vehicle involved in the shooting. There was
       no physical evidence tying defendant to the shooting. Defendant did not confess or make any

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       inculpatory statements. And the State conceded at trial that defendant could not be positively
       identified from the sub shop’s surveillance video.
¶ 91       Defendant’s theory of defense, besides an alibi, was misidentification—specifically, that
       his half-brother, David Payton, was the shooter. The evidence showed that defendant and
       Payton bore a striking resemblance to each other, so much so that, at trial, Blackburn admitted
       that she could not tell the difference between the two when shown photos of each. (And so
       much so that Payton, on at least one occasion, had passed himself off as defendant when
       treated at a hospital.)
¶ 92       Since his conviction, defendant has put forward the following evidence to demonstrate that
       Payton, not he, was the shooter:
                    (i) Terrell Austin swore in an affidavit that Payton, not defendant, drove up to the
                sub shop, got out of the car with a gun in his hand, and entered the sub shop. After
                gunshots were fired, Payton left the sub shop, gun still in hand, and drove away in the
                Buick. Austin was a “lookout” for drug dealers—for Payton and the victim, Robert
                Byrd, who shared drug turf and each used Austin to watch out for police. Earlier that
                day, before the shooting, Austin was present when Payton and Byrd argued over their
                drug turf. After the shooting, Austin left the neighborhood, fearing for his
                safety—fearing that he would be lumped in with Payton for Byrd’s murder.
                    (ii) Randy Norwood swore in an affidavit that, earlier that day, Payton showed up at
                an apartment and borrowed a gun from his friend because, Payton said, Robert Byrd
                was at the sub shop and Payton wanted to scare Byrd to keep him “off his turf.”
                Norwood also viewed the restaurant’s surveillance video of the shooting and swore that
                he was “positive” that the shooter captured on the video was Payton, not defendant. He
                refused to come forward earlier out of fear, as the murder of Byrd had spawned what he
                described as an “all out war” between the “Payton crew” and “[Byrd] crew.”
                    (iii) Martell Halbert swore, years ago, that he was in the sub shop at the time of the
                shooting and that it was Payton, not defendant, who shot and killed Robert Byrd.
¶ 93       If a jury heard and accepted this evidence as true, as we must assume at this first stage, it is
       unfathomable that the jury would still convict defendant of this crime. There is simply no way
       a reasonable fact finder could believe both that (1) David Payton walked into the sub shop with
       a gun and shot Robert Byrd and (2) defendant walked into the sub shop with a gun and shot
       Robert Byrd. One of those two options must be false. Because we are required to accept option
       (1) as true at this stage, option (2)—defendant’s guilt—must be false. A reasonable juror could
       not possibly convict defendant under those circumstances.
¶ 94       Of the three affidavits listed above, the majority would hold that the third one—the Martell
       Halbert affidavit—cannot be considered because it was not “newly discovered” at the time it
       was offered by defendant years ago and was previously rejected by this court back then. But
       even if we limited our focus to the new information defendant has proffered in his latest
       petition—the Austin and Norwood affidavits—defendant has established a more than
       sufficient basis for advancing this case to the second stage of postconviction proceedings, to
       have his pro se claims investigated and presented to the circuit court by competent counsel.
¶ 95       Putting aside the contested Martell Halbert affidavit, the affidavits of Austin and Norwood,
       when taken as true, establish the following key facts. Payton and Byrd were rival drug dealers
       engaged in a turf war, including having engaged in an argument on the day of Byrd’s murder.


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        Shortly before the shooting, Payton borrowed a gun from Cedric Redmond. Payton said that he
        had seen Robert Byrd at the sub shop on Cicero and he needed the gun to scare Byrd into
        “stay[ing] off his turf.” Later, Payton drove up to the sub shop, got out of the car, and walked
        into the sub shop with the gun in his hand. After gunshots were fired, Payton left the restaurant,
        ran back to his car, and drove away. And Norwood is “positive that the man on the surveillance
        tape is David Payton.”
¶ 96         Neither Austin nor Norwood was inside the sub shop when Byrd was shot there, but that
        does not mean these witnesses could not identify Payton as the shooter. Norwood, as just
        noted, watched the surveillance video of the shooting inside the restaurant and positively
        identified David Payton as the shooter. And Austin narrated precisely the same sequence of
        events as the State’s witnesses at trial—the shooter drove up; left the car; entered the sub shop,
        gun in hand; and ran back out to the car after the shooting stopped—except that Austin
        identified Payton, not defendant, as the actor in this story. Austin and Norwood, in short,
        plainly identify Payton as the shooter and, in doing so, exonerate defendant.
¶ 97         The circuit court discredited Austin’s affidavit, as does the majority, noting that Austin did
        not actually see Payton shoot Byrd—he only saw Payton enter the shop with the gun and later
        exit the shop with the gun, after the shooting. But we can see the shooting, because it was
        captured on surveillance video. And we know from that video that the same person who
        entered the restaurant with a gun in his hand proceeded to pull the trigger multiple times and
        kill Byrd and then walk out with the gun. There was no handoff or exchange of the gun. The
        video does not tell us much, but it does tell us that one person, and one person only, walked in
        with the gun, shot Robert Byrd, and left with the gun. So when Austin swore that Payton
        walked in and out with the gun, with gunshots fired during his time inside, the only thing it
        could possibly mean (in conjunction with the video) is that Payton also shot and killed Robert
        Byrd—if Austin’s affidavit is to be believed.
¶ 98         And if Norwood is to be believed when he swears that he is “positive” that the shooter on
        the video is Payton, not defendant, he would be the second witness swearing under oath that
        the wrong person was convicted of this crime.
¶ 99         Martell Halbert, who was inside the restaurant when the shooting occurred, also swore that
        David Payton, not defendant, shot Robert Byrd, but his affidavit was previously rejected by
        this court in 2010, so the State’s and the majority’s position is that we should ignore his
        affidavit in conjunction with the two new ones we have now.
¶ 100        We are required to accept the Austin and Norwood affidavits as true. People v. Sanders,
        2016 IL 118123, ¶ 42. If taking these allegations “as true” means anything at all, it must mean
        that a juror at a hypothetical retrial, hearing from Austin and Norwood, would believe their
        testimony—that is, would accept it “as true.” We then ask whether it is more likely than not
        that no reasonable juror, hearing and believing this new evidence in conjunction with all the
        other evidence presented at trial, could convict defendant. People v. Edwards, 2012 IL 111711,
        ¶ 24.
¶ 101        There can only be one answer to that question: If a reasonable juror believed Austin and
        Norwood, that juror could only believe that David Payton, not defendant, shot and killed the
        victim. No reasonable juror could convict defendant in that scenario.
¶ 102        The majority looks at the Austin and Norwood affidavits and determines that a reasonable
        juror could still convict defendant, based on the evidence of the two intoxicated eyewitnesses
        in the restaurant and the evidence of defendant’s association with the vehicle involved in the

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        crime. But that is not taking the Austin and Norwood affidavits “as true.” That may be taking
        “as true” that Norwood and Austin would testify at a hypothetical retrial consistent with their
        affidavits, but that is not taking “as true” the substance of their testimony. The majority does
        not assume that a reasonable juror would believe Austin and Norwood. Rather, the majority
        lines up the evidence from Norwood and Austin—that David Payton was the shooter—against
        the evidence from the trial implicating defendant and determines that a reasonable juror might
        not believe Austin and Norwood, in light of the other evidence.
¶ 103       There is simply no way that the majority’s analysis could be viewed as taking the substance
        of the Norwood and Austin affidavits “as true.” But it is hard to imagine what taking the
        affidavits as true could mean, other than assuming that the hypothetical juror would believe the
        new testimony at a retrial and then analyzing what effect that new, believed evidence would
        have on the outcome.
¶ 104       Take, for example, the decision in Schlup v. Delo, 513 U.S. 298 (1995), the case that our
        supreme court cited for the adoption of its test for first-stage successive petitions on
        actual-innocence claims. See Edwards, 2012 IL 111711, ¶ 24. Schlup was convicted of
        murdering another prison inmate. Schlup, 513 U.S. at 301-02. The State’s case was based on
        testimony by two corrections officers who witnessed the killing. Id. at 302. Schlup’s defense
        included a video showing him in the prison dining room, far from where the murder took place,
        65 seconds before a distress call sounded. Id. at 303. But there was conflicting evidence about
        whether the distress call was delayed and thus about whether Schlup would have had enough
        time to get from the dining room to the murder scene. Id. at 303-05.
¶ 105       In his habeas proceeding, Schlup presented new evidence that another guard saw him
        elsewhere in the prison right around the time of the murder and statements of multiple
        eyewitnesses who swore that Schlup did not commit the crime. Id. at 307-12. The Supreme
        Court explained, “Those new statements may, of course, be unreliable. But if they are true ***
        it surely cannot be said that a juror, conscientiously following the judge’s instructions
        requiring proof beyond a reasonable doubt, would vote to convict.” Id. at 331.
¶ 106       The Supreme Court did not simply throw Schlup’s new evidence into the mix at a
        hypothetical retrial and ask whether a reasonable juror would believe it in light of the evidence
        from the original trial. The Supreme Court assumed that the jury in a hypothetical retrial would
        believe the new evidence—it would believe the new witnesses who said Schlup didn’t do
        it—and reasoned that, in that event, there was no way a reasonable juror could still convict
        Schlup, notwithstanding the other evidence demonstrating Schlup’s guilt.
¶ 107       So too here. If a reasonable juror believed Austin’s and Norwood’s affidavit testimony that
        David Payton is the shooter, there is no way he or she could still convict defendant as the
        shooter, notwithstanding other evidence in this case suggesting defendant’s guilt.
¶ 108       The citation to Schlup is important here for more than one reason. First, as just stated, it
        shows how the Supreme Court interpreted the mandate to take the new evidence “as true,”
        which is not how the majority has analyzed defendant’s new affidavits. But second, it also
        highlights the difference between how Illinois analyzes successive postconviction petitions of
        actual-innocence claims versus how federal courts analyze gateway-innocence claims on
        habeas review—which also highlights the difference between the majority and this dissent.
¶ 109       Federal courts do more than simply ask the first question that the Supreme Court asked in
        Schlup. They go further—they make threshold determinations about the trustworthiness,
        credibility, and likely weight a reasonable juror would assign the new evidence, even without

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        an evidentiary hearing. Id. at 330-32. Look no further than the federal habeas decision
        concerning our defendant; the federal judge expressly made threshold determinations of
        reliability in rejecting defendant’s affidavits. See Brown v. Gaetz, No. 10 C 1463, 2015 WL
        1976366, at *9-10 (N.D. Ill. May 1, 2015).
¶ 110        But in Illinois, our supreme court has been clear that we do not engage in credibility or
        reliability determinations of any kind at the initial stages of a successive postconviction
        petition. Sanders, 2016 IL 118123, ¶¶ 37, 42. In Sanders, the State argued that the trial court, at
        the initial stages of a successive postconviction petition, could engage in a threshold
        determination of whether the evidence was “reliable” and whether new eyewitness accounts
        were “trustworthy,” based on language from Edwards that quoted Schlup (language that the
        majority here includes in its analysis as if it were settled law in Illinois). Id. ¶ 32. But our
        supreme court emphatically rejected that argument. Id. ¶ 37. The court emphasized that, when
        it adopted the Schlup test (i.e., that it is more likely than not that no reasonable juror could
        convict based on the newly discovered evidence) in Edwards, it had not intended to adopt the
        federal analysis part and parcel and never meant to leave the door open to credibility
        determinations at the initial stages of a successive postconviction petition (id.)—which is why
        the federal habeas decision rejecting this defendant’s affidavits (Brown v. Gaetz, No. 10 C
        1463, 2015 WL 1976366 (N.D. Ill. May 1, 2015)), decided as it was under a different standard,
        does not collaterally estop defendant from presenting his claims to this court.
¶ 111        The majority’s analysis here falls comfortably under the federal standard but not under the
        Illinois standard. The majority holds that a reasonable juror might choose to believe the
        eyewitnesses who identified defendant at the original trial over the new affiants, who identify
        David Payton as the shooter. The majority is saying, without saying it, that a reasonable juror
        could find the original eyewitnesses more credible than defendant’s new ones, that a
        reasonable juror could place more weight on the original eyewitnesses than the new ones. At
        the risk of repetition, that is not taking the new evidence “as true.”
¶ 112        The trial court’s stated reason for rejecting this petition was that the new evidence was
        “directly rebutted by the record, as [defendant] was convicted based on positive eyewitness
        testimony that [defendant] was the shooter.” While it is true that newly-discovered evidence
        will not be taken as true if it is affirmatively rebutted by the record (Sanders, 2016 IL 118123,
        ¶ 42), the fact that Norwood and Austin would testify inconsistently with Thomas and
        Blackburn does not render this new testimony “rebutted” by the record. If it did, then no newly
        discovered evidence would ever satisfy a successive postconviction hearing. Every conviction
        is supported by some evidence of guilt, and evidence of innocence, by definition, will directly
        or indirectly contradict evidence of guilt. If a contradiction between eyewitnesses were enough
        by itself to derail an actual-innocence petition, our postconviction proceedings for
        actual-innocence claims would be a dead letter, something out of a Kafka novel. Contrary to
        the trial court’s reasoning, the stark contradiction between the new eyewitnesses, identifying
        David Payton as the shooter, and the old ones, implicating defendant, is not a reason to reject
        defendant’s claims—it is a reason to give them a fair and complete airing.
¶ 113        Schlup, discussed above, should be a clear enough example of this point. The district court
        there said what the trial court here said—that the eyewitness testimony at trial, implicating the
        defendant, rebutted the defendant’s new witness testimony demonstrating innocence. Schlup,
        513 U.S. at 309 n.19. As already noted, the Supreme Court, recognizing that the “new


                                                    - 22 -
        statements may, of course, be unreliable,” remanded for further consideration because “if they
        are true,” it “cannot be said that a juror *** would vote to convict.” Id. at 331.
¶ 114        As another example, in People v. Adams, 2013 IL App (1st) 111081, ¶¶ 36-38, we found
        that affidavits from two new eyewitnesses, attesting that Adams was not the perpetrator and
        either identifying or describing someone else who was, supported a colorable claim of
        innocence. Adams’s conviction, like defendant’s, was based on the testimony of two
        eyewitnesses who identified him as the perpetrator, with no physical evidence or confession to
        corroborate it. Id. In these circumstances, we reasoned, “[w]here the statement of a witness is
        both exonerating and contradicts a State witness, it can be capable of producing a different
        outcome on retrial.” Id. ¶ 36. That is equally true here, where Austin and Norwood would
        contradict the State’s witnesses with exculpatory evidence that was not available at
        defendant’s trial.
¶ 115        Likewise, in People v. Ortiz, 385 Ill. App. 3d 1, 2-4 (2008), the State’s case was based on
        testimony from two witnesses who identified Ortiz as the shooter, and like defendant here,
        Ortiz’s defense at trial was an alibi. At a bench trial, the State’s witnesses recanted, though the
        trial court did not find those recantations credible, and defendant was convicted. Id. at 3, 12. In
        a successive postconviction petition, new eyewitnesses came forward, attesting that Ortiz did
        not shoot the victim and positively identifying the people who did. Id. at 5. After a third-stage
        evidentiary hearing in the successive postconviction proceeding, the trial court denied the
        petition. We reversed and remanded for a new trial because the new eyewitnesses contradicted
        the original inculpatory testimony of the State’s witnesses. Id. at 12-13. Among other reasons,
        we found that the evidence in favor of Ortiz’s innocence would be much stronger on retrial and
        the evidence of his guilt would be much weaker, because he could “attack the credibility of the
        State’s eyewitnesses directly with his own eyewitnesses” instead of “rel[ying] solely on alibi
        testimony.” Id. at 13.
¶ 116        Our supreme court affirmed. Noting that the new eyewitness testimony “supplied a
        first-person account of the incident that directly contradicted the prior statements of the two
        eyewitnesses for the prosecution” and recalling that “[n]o physical evidence linked defendant
        to the murder,” the supreme court reasoned that “the evidence of defendant’s innocence would
        be stronger when weighed against the recanted statements of the State’s eyewitnesses.” People
        v. Ortiz, 235 Ill. 2d 319, 335, 337 (2009).
¶ 117        Likewise, here, defendant would no longer have to rely solely on Jefferson’s alibi
        testimony because Austin and Norwood would identify Payton as the shooter, directly
        contradicting the eyewitness testimony implicating defendant. It is hard to understand how our
        supreme court would grant Ortiz a new trial, yet we deny defendant here a chance to merely file
        his petition, when each petitioner’s new witnesses would bolster the defense case in essentially
        the same way.
¶ 118        In addition to identifying Payton as the shooter, Austin and Norwood would also testify
        that Payton had a plausible motive to shoot Byrd: the two rival heroin dealers were feuding
        over drug turf. At trial, the State did not offer any explanation for the shooting or any evidence
        that defendant had a reason to shoot Byrd. Of course, motive is not an element of the State’s
        case, but it is at least worth noting that, on retrial, the only plausible account of why Byrd was
        shot in the first place would come from the defense and it would point squarely toward Payton
        as the shooter.


                                                    - 23 -
¶ 119        To be sure, the State presented evidence linking defendant to the car that the shooter drove
        to and from the sub shop. Thomas identified that car as a red Buick that belonged to Iesha
        Rials, the mother of defendant’s child. In his pretrial statement to prosecutors, Corey Gilmore
        said that, as he left the sub shop prior to the shooting, he saw defendant drive up, alone, in the
        same car. Gilmore and defendant talked for a few minutes in front of the shop; defendant then
        drove away, and Gilmore went to a strip club. Defendant did not mention Byrd, and Gilmore
        did not see a gun in the car. Kevin Tenard testified that defendant drove up to Rials’s house in
        a red car, not long after the shooting, and gave him the keys to return to Rials.
¶ 120        No doubt, this is circumstantial evidence of defendant’s guilt. But if we assume that a
        rational trier of fact will believe the witnesses who implicate Payton as the shooter (which we
        must, if we take their affidavits as true at this stage), the State’s case boils down to the evidence
        provided by Gilmore and Tenard that defendant was seen driving Rials’s car shortly before and
        shortly after the shooting. Assuming that Gilmore and Tenard reliably identified defendant,
        that evidence might support an inference that defendant was accountable for the
        shooting—either by casing the scene or by providing a getaway car for the shooter.
¶ 121        But the State’s theory of guilt was not accountability; the State charged defendant as the
        shooter. Had defendant been convicted under an accountability theory, the majority’s citation
        to Edwards, 2012 IL 111711, might be more persuasive. There, defendant was convicted of
        murder under an accountability theory. The new postconviction affidavit claimed that the
        petitioner “ ‘had nothing to do with’ ” the shooting but did not assert “that petitioner was not
        present when the shooting took place,” and thus the defendant still could have been culpable
        under an accountability theory. (Emphasis in original.) Id. ¶¶ 10, 39. The new evidence was
        not likely to change the outcome.
¶ 122        But here, given the State’s direct-shooter theory and the new, direct evidence implicating
        Payton as the shooter that we must take as true and reliable, I would have no “confidence in the
        factual correctness of [a] guilty verdict” (People v. Coleman, 2013 IL 113307, ¶ 97) based
        entirely on the circumstantial evidence that placed defendant in Rials’s car before and after, but
        not at the time of, the shooting.
¶ 123        Understandably, the first stage of a successive postconviction procedure on an
        actual-innocence claim is designed to screen out petitions that will obviously fail before
        expending further judicial resources on them. Courts dismiss successive postconviction
        petitions when the new evidence presented is not new at all—it was or should have been
        known to the defendant earlier, or it may come from a new source but is cumulative to
        something the trier of fact already heard at the original trial. See Ortiz, 235 Ill. 2d at 335. If a
        defendant can continually raise and reraise the same evidence, or essentially the same evidence
        with a different coat of paint, our system would drown in “ ‘piecemeal post-conviction
        litigation.’ ” Id. at 332 (quoting People v. Tenner, 206 Ill. 2d 381, 395, 398 (2002)); see also
        People v. Davis, 2014 IL 115595, ¶ 14 (noting that “successive petitions impede the finality of
        criminal litigation”).
¶ 124        And once a defendant establishes that the evidence is new and noncumulative, the first
        stage is further designed to screen out cases that are so deficient that we can be confident that
        an evidentiary hearing on the new evidence is unnecessary: unnecessary because, even if the
        evidence is true, it is not conclusive—it does not directly negate the evidence of guilt and, thus,
        would not likely change the outcome of a retrial (see, e.g., People v. Smith, 177 Ill. 2d 53, 83
        (1997) (new evidence merely served to impeach main witness and was “insufficient to warrant

                                                     - 24 -
        a new trial”)), or unnecessary because we know conclusively that the new evidence is not true,
        as it is positively rebutted by the record. See, e.g., Sanders, 2016 IL 118123, ¶ 48 (witness’s
        new claim that he shot victim once, in back of head, was positively rebutted by trial record,
        where pathologist demonstrated victim was shot twice in back of head and died of “multiple
        gunshot wounds”).
¶ 125        That procedure, as interpreted by our supreme court, separates those petitions that afford a
        defendant no meaningful chance of success from those that bear further scrutiny—not a new
        trial, not even an evidentiary hearing, but merely the appointment of a lawyer to help the
        defendant make the case for an evidentiary hearing.
¶ 126        This case is not one that should be screened out before determining the truth of the factual
        allegations by Austin and Norwood. There is nothing cumulative or collateral about
        defendant’s new evidence. It speaks directly to whether defendant did or did not shoot Robert
        Byrd. And there is nothing in the record that affirmatively rebuts what Austin and Norwood are
        saying.
¶ 127        I have no idea if defendant is actually innocent. Neither does the majority. That is not the
        point. The point is that Austin and Norwood swear that he is. If they are telling the truth, the
        wrong man is in prison. If they are not, then let us find that out—let a judge hear from them and
        decide if their testimony is credible. Then we will know the answer, as best we can in our
        adversarial system. But we should not close the courtroom door to defendant without even
        trying to learn that answer.




                                                   - 25 -
