                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                             People v. Lofton, 2011 IL App (1st) 100118




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



District & No.               First District, Fourth Division
                             Docket No. 1–10–0118


Filed                        June 30, 2011


Held                         The trial court’s dismissal of defendant’s successive postconviction
(Note: This syllabus         petition alleging his actual innocence was reversed based on an affidavit
constitutes no part of the   of his codefendant and the cause was remanded for a third-stage
opinion of the court but     evidentiary hearing, since defendant made a substantial showing that the
has been prepared by the     codefendant’s affidavit exonerating defendant and implicating his
Reporter of Decisions for    codefendant was newly discovered evidence of defendant’s actual
the convenience of the       innocence of first degree murder in a gang-related shooting, the
reader.)                     evidence was material and not merely cumulative, and the evidence
                             likely would change the result on retrial.


Decision Under               Appeal from the Circuit Court of Cook County, No. 95–CR–11719; the
Review                       Hon. Thomas Hennelly, Judge, presiding.



Judgment                     Reversed and remanded.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Jonathan Steffy, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, John
                            E. Nowak, and Clare Wesolik Connolly, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE STERBA delivered the judgment of the court, with opinion.
                            Presiding Justice Lavin and Justice Salone concurred in the judgment
                            and opinion.




                                             OPINION

¶1          Defendant Gerald Lofton was charged by indictment with two counts of first degree
        murder in the shooting death of Anthony Williams. Lofton’s first trial resulted in a hung jury.
        Following a second jury trial, Lofton was found guilty of first degree murder. The circuit
        court sentenced Lofton to 50 years in prison. On direct appeal, this court affirmed the
        conviction (People v. Lofton, No. 1–97–3486 (1999) (unpublished order under Supreme
        Court Rule 23)). Lofton filed a pro se postconviction petition in July 2000. The circuit
        court’s dismissal of this petition was affirmed by this court on September 19, 2002 (People
        v. Lofton, No. 1–00–2980 (2002) (unpublished order under Supreme Court Rule 23)) . Lofton
        filed a second pro se postconviction petition on April 16, 2004. Lofton was appointed
        counsel, and a supplemental petition was filed on October 27, 2008. The circuit court granted
        the State’s motion to dismiss the petition on December 18, 2009. On appeal, Lofton contends
        that the circuit court erred in granting the motion to dismiss where the petition contained a
        claim of actual innocence based on newly discovered evidence and the court erroneously
        applied the cause-and-prejudice test to this claim. For the reasons that follow, we reverse the
        judgment of the circuit court and remand for a third-stage evidentiary hearing.

¶2                                       BACKGROUND
¶3          On March 20, 1995, Williams and his father, Carl Fisher, were walking south on
        Princeton Avenue in Chicago near 113th Street when they were attacked by a group of young
        men. Two shots were fired at Williams, killing him, and the group then scattered. Officer
        Kevin Williams and his partner were standing outside their squad car a short distance away
        and heard the shots. They then saw approximately 10 to 12 young men running from the
        direction where they heard the gunshots. Officer Williams went to the scene and saw
        Williams on the ground in a pool of blood. The only other person still in the area was Fisher.
        Officer Williams asked Fisher if he knew who had shot his son, and Fisher told him yes.

                                                 -2-
     Fisher gave Officer Williams the name of “Little Anthony.”
¶4       At a hearing on defense counsel’s motion to suppress the arrest before Lofton’s first trial,
     Officer Williams confirmed that on the police report he generated after the incident, he wrote
     that Williams was shot by Little Anthony. Officer Williams testified that he later discovered
     that Little Anthony went by the name of Antonio Fountain. Officer Williams said that Fisher
     did not mention Lofton. Officer Williams testified that he wrote “AKA Gerald Lofton” next
     to Fountain’s name on the report because he later overheard Norman Moss, who was being
     questioned by police at the station in connection with the incident, tell another officer that
     Lofton was the shooter. Officer Williams said that he initially assumed that Lofton and
     Fountain were the same person.
¶5       At the second trial, Fisher testified that on March 20, 1995, his son was visiting him. At
     approximately 5 p.m., Fisher left his house with his son to walk him back to his own
     residence a few blocks away. They were walking southbound on Princeton and Fisher said
     that he heard someone coming up behind them. He turned and saw a group of four or five
     young men walking toward them at a fast pace. Fisher said that he knew his son was in a
     gang and he knew about the different gang territories, so he told his son that they were
     coming for him and to get out of there. Fisher recognized one of the young men in the group
     as someone he knew from the neighborhood as Little Anthony. The group attacked them and
     Fisher and Williams fought back. During the attack, Fisher was fighting with two of the
     young men and he stepped back and fell over the curb. As he was getting back up, he heard
     someone say, “Where is the nine, where is the nine?” Fisher said that he looked for his son
     and saw Lofton with a gun in his hand, hitting Williams with it. Fisher shouted, “No, don’t
     do it!” He then heard two shots and the group scattered. Fisher saw Little Anthony running
     across the street with the gun in his hand. His son was on the sidewalk and he ran to him, but
     Williams was unresponsive. Fisher started shouting for help.
¶6       The police arrived and a short time later, some young men were brought to the scene in
     the back of a police car. Fisher identified Moss, who was in the police car, as one of the men
     who had attacked them. Fisher had initially given the police the name of Little Anthony and
     he later took the police to Little Anthony’s mother’s house. Fisher then went to the police
     station and was shown a book with some photos in it. He was subsequently asked by the
     detectives to view a lineup. Fisher said that at first he did not want to identify anyone in the
     lineup because he and his family lived in the neighborhood and he was afraid for his family’s
     safety. He said that when he first viewed the lineup, he recognized Lofton as the person who
     shot his son but he did not say anything because he was afraid. The detectives had him view
     the lineup a second time and he identified Lofton as the person who shot his son.
¶7       On cross-examination, Fisher denied telling Officer Williams at the scene that Little
     Anthony was the person who shot his son. He acknowledged that Officer Williams asked him
     who shot his son, but he said that he did not tell Officer Williams who had done it, nor did
     he give him a description of the person at that time. He said that he did not describe the
     shooter at the scene as being a male black, 16 to 17 years old and about 5 feet 1 inch in
     height. He said that he later gave a similar description to the police of the shooter, but he said
     that the shooter was about his height, 5 feet 9 inches, or a little taller. Fisher was also asked
     if he knew the names of the two young men who were fighting with him. He responded that

                                                -3-
       he did not know at that time but learned later that Moss and an individual named Robert
       Foster were the ones who were attacking him.
¶8         Detective George Karl testified that he put together the lineup containing Lofton and
       brought Fisher in to view the lineup. Detective Karl said that as soon as Fisher looked at the
       lineup participants, he started shaking and crying. Detective Karl asked Fisher if he wanted
       to continue and Fisher said that he was scared to death. When asked if he knew anyone in the
       lineup, Fisher said he did, but he could not say because he was scared for himself and his
       family. Detective Karl then had Fisher step out of the lineup viewing area and waited until
       he calmed down. Detective Karl told Fisher that the police would protect his family and
       relocate them if necessary, and Fisher agreed to go back into the lineup room. As soon as
       they went back into the lineup viewing area, Fisher identified Lofton as the person who shot
       his son.
¶9         Detective Karl testified that on April 8, 1995, he took a number of photographs to Fisher
       and asked if he could identify anyone in the photos. Fisher identified Fountain as Little
       Anthony, the person who participated in the attack, struck his son, and ran off with the gun
       after the shooting. He also identified Flomont Johnson as someone he knew from the
       neighborhood, but he said that Johnson did not participate in the attack and he did not see
       him in the area at the time. He did not know the identity of anyone else in the photographs.
       One of the photographs was of Foster, and the remaining photographs were fillers.
¶ 10       Officer Davis testified that he and his partner were in the area at the time of the shooting
       and responded to a call of shots being fired. A description was given that several young men
       were running north on Princeton and that one was wearing a red jacket or coat. The officers
       proceeded down 112th Street and observed two young men running north from Princeton,
       one of whom was wearing a red coat. They stopped the two men, searched them, and took
       them to the crime scene. When they arrived at the scene, Officer Davis got out of the car to
       speak to his supervisor. Fisher ran over to the squad car, shouting that one of the individuals
       in the back of the car was at the scene, and tried to get into the car to go after the individual.
       Officer Davis later learned that the person Fisher was trying to get to was Moss. The person
       in the car who was wearing the red jacket was identified as Jerry Singleton. Officer Davis
       acknowledged that Fisher did not have any problem identifying Moss as someone who had
       been involved in the attack.
¶ 11       Officer Williams testified that he was on foot in the area of 113th and Wentworth when
       he heard gunshots. He looked toward 113th and Princeton and saw 10 to 12 youths running
       north on Princeton. He got in his squad car and drove to the scene. He had to restrain Fisher,
       who was very distraught and was trying to move his son’s body. He spoke with Fisher, who
       told him that he had seen what had happened and provided the name and description of Little
       Anthony. On cross-examination, Officer Williams acknowledged that in a previous
       proceeding, he testified that Fisher told him that Little Anthony was the one who shot his
       son. Officer Williams said that he made a mistake in his previous testimony. He further
       acknowledged that his report from the incident indicates that Fisher told him he saw Little
       Anthony shoot his son, but Officer Williams said that Fisher did not actually tell him that.
       He said that Fisher was very distraught and only gave him one name, so he made the
       assumption that Little Anthony was the shooter and that is why he put that in the report.

                                                  -4-
       Officer Williams testified that Fisher had given him a description of the shooter as a male
       black between the ages of 16 and 17, 5 feet 1 inch in height. However, on redirect and
       recross, Officer Williams said that Fisher had actually given him a description of Little
       Anthony, and he just assumed Little Anthony was the shooter. Defense counsel again
       referred to his testimony in a previous proceeding in which he said that Fisher had given him
       a description of the shooter. Officer Williams said that he made a mistake in his previous
       testimony.
¶ 12        Over defense counsel’s objection, Foster was called to testify. Foster was originally
       charged as a codefendant in the case but had been acquitted by the time of Lofton’s second
       trial. Foster testified that at the time of the shooting, he, Lofton, Johnson, Moss, and Little
       Anthony, a/k/a Fountain, were all members of the Blackstones street gang and Singleton was
       a member of the Micky Cobras. Foster said that on the date of the shooting, he was in
       Johnson’s car and saw a group of individuals going toward 113th on Princeton. Foster said
       he could not identify anyone in the group because there were too many people and he did not
       know if Lofton was in the group. Foster was then asked about a statement he had given to
       the assistant State’s Attorney after the shooting in which he said that two more people were
       in Johnson’s car with him, Moss and Lofton pulled up in another car, Moss told Johnson
       there was someone on the corner, and Moss asked Johnson if he wanted to “push on” this
       person (i.e., beat him up). Foster acknowledged that he told the assistant State’s Attorney the
       details that were in the statement and that he signed the statement, but he said that it was
       because he was told that if he did not tell them anything about the case, they were going to
       charge him with first degree murder. Foster testified that the detectives questioned him three
       times after he was arrested. He said that the first two times, he told them he did not know
       anything about the incident. The third time, a detective told him he was going to be charged
       with first degree murder if he did not give a statement, so that is when he agreed to give the
       statement. Foster maintained that the statement he gave the detectives was not true.
¶ 13        Foster’s statement was read to the jury during the testimony of the assistant State’s
       Attorney who took the statement. In his statement, Foster said that on the day of the shooting,
       he, Kenny Sharkey and Fountain were all in a car driven by Johnson that was stopped at
       112th and Princeton. Moss and Lofton pulled up in another car. Moss told Johnson there was
       a guy on the corner and asked if they wanted to beat him up. Johnson then asked if he should
       go get the gun, and Lofton said yes. Foster saw Johnson get out of the car and walk into his
       mother’s house, exit the house, and hand a 9-millimeter automatic handgun to Lofton.
       Everyone got out of the cars and started walking on Princeton. Foster said he was about 20
       yards away from Williams and saw Moss, Lofton, Fountain, Johnson, Singleton and Sharkey
       start punching Williams in the face and body. Foster said that he saw Lofton pull out the gun
       and shoot Williams.
¶ 14        After Foster’s statement was published in its entirety, defense counsel moved for a
       mistrial. Defense counsel’s earlier objection to Foster’s testimony was on the ground that in
       the first trial, the court granted a motion in limine to exclude the statements of all
       codefendants. Because Foster had been acquitted the week before Lofton’s second trial
       began, he was no longer a codefendant and the court overruled the objection and allowed him
       to testify. In the motion for a mistrial, defense counsel renewed the objection to Foster being

                                                -5-
       allowed to testify at all and objected to the publication of Foster’s statement. The court
       denied the motion.
¶ 15       The defense called Betty White, Lofton’s mother, to testify. She testified that the police
       came to her home after the incident and said they wanted to question her son about an
       altercation. Her son was not home at the time. The police saw pictures of her son on the
       mantle and asked if they could have one of them, so she gave them a photograph. Lofton then
       testified that he was 20 years old on March 20, 1995, and was 5 feet 11 inches tall. Lofton
       said that on March 20, he and a friend attended a class together at Kennedy King College
       from 11 a.m. to 1 p.m. After class, they went to the Evergreen Plaza shopping mall. They left
       the mall around 3:30 or 4 p.m. and Lofton drove his friend to his friend’s mother’s house,
       where he sat and talked for about half an hour before going home. He then walked to a store
       on the corner to get something to eat and saw Dorian Hart, his dog trainer, talking on the pay
       phone inside the store. Lofton had been out of town the previous weekend and Hart had been
       keeping his dog, so Lofton asked Hart to return his dog. Hart told him that the dog was at the
       home of his ex-girlfriend, Deidra Dennis, so the two of them drove to her house to get the
       dog.
¶ 16       Lofton and Hart left with the dog around 6 p.m. and returned to Lofton’s house to drop
       the dog off. The two then drove to visit a friend. After leaving the friend’s house, they went
       to a store on 120th and Michigan to buy some beer, and while they were in the store, the
       police came in and told everyone to go outside and put their hands on the police car. The
       police asked everyone for their names, and when Lofton told them his name, the police
       handcuffed him. They also handcuffed Hart and took them both to the police station. He and
       Hart were both ordered to participate in a lineup. An officer told them that nobody had been
       picked out of the first lineup. They had a second lineup, and Lofton did not find out that he
       had been picked out of the lineup until they brought him to Cook County jail.
¶ 17       On cross-examination, Lofton was asked whether Hart was in court that day and he said
       no, Hart had to watch his children. The court would not allow defense counsel to ask whether
       Hart had testified on Lofton’s behalf at the first trial, but Lofton said that he had asked Hart
       to testify for him at his second trial. Lofton testified that he was not a member of any gang
       in 1995. He said that he got out of the Blackstones gang after he graduated from high school
       in 1993 and went away to college. Lofton testified that on March 20, 1995, he was not
       involved in any shooting and was not at the scene when Williams was killed.
¶ 18       Because of Foster’s statement that Johnson was involved in the attack, defense counsel
       wanted to recall Fisher, but he lived in another state at that time. Instead, the parties
       stipulated that if Fisher was recalled as a witness, he would testify that he knew Johnson
       from the neighborhood, but he did not see Johnson on the street during the attack.
¶ 19       The jury returned a verdict of guilty of first degree murder. As previously noted, Lofton’s
       conviction was affirmed on direct appeal (People v. Lofton, No. 1–97–3486 (1999)
       (unpublished order under Supreme Court Rule 23)). Lofton filed a pro se postconviction
       petition in July 2000, alleging ineffective assistance of counsel on the grounds that defense
       counsel failed to call Dennis and Hart as alibi witnesses at the second trial. The circuit
       court’s dismissal of this petition was affirmed by this court on September 19, 2002 (People


                                                 -6-
       v. Lofton, No. 1–00–2980 (2002) (unpublished order under Supreme Court Rule 23)), in part
       because Lofton failed to attach affidavits from the two alibi witnesses.
¶ 20       Lofton filed a second pro se postconviction petition on April 16, 2004. Lofton was
       appointed counsel, and a supplemental petition was filed on October 27, 2008. The petition
       again alleged ineffective assistance and this time included an affidavit from Hart. Hart’s
       affidavit stated that he testified as an alibi witness at Lofton’s first trial. Hart said that on
       March 20, 1995, he saw Lofton at the store at approximately 3:45 to 4 p.m. He stated that he
       was in the process of training Lofton’s dog and had boarded him at Dennis’s home the
       weekend before March 20. He left the restaurant with Lofton to go get Lofton’s dog. They
       arrived at Dennis’s home around 4:30 p.m., but she was not home. They waited in the car for
       30 minutes. When she returned home, they let the dog run in the backyard for a few minutes,
       and then left her home between 5 and 5:30 p.m. Hart did not remember when they dropped
       off a friend of Lofton’s who was riding with them, or when they dropped off the dog. They
       stopped to visit another friend for about 10 minutes and then Lofton drove Hart to his
       mother’s house to pick up some training equipment. Lofton then drove Hart to a store on
       120th and Michigan. When Hart came out of the store, the police had people lined up on the
       fence and Lofton was in the police car. He attempted to retrieve his equipment from Lofton’s
       car, and the police then arrested him. Hart was released later that evening. Hart stated that
       he informed defense counsel immediately after the mistrial that he would testify again at
       Lofton’s second trial. However, he stated that defense counsel did not subpoena him for the
       second trial and did not notify him of the date or time of the trial. Hart stated that he would
       have been willing to testify at Lofton’s second trial.
¶ 21       The second postconviction petition also alleged actual innocence on the basis of an
       affidavit provided by Antonio Walker, a/k/a Antonio Fountain. Walker stated that on March
       20, 1995, he and Moss were in Moss’s car when they saw Fisher and Williams on the corner
       of 113th and Princeton. They drove to a store on 113th and Wentworth, where they saw
       Sharkey, Singleton and Johnson. They told them there was a “brick” on the corner. “Brick”
       was a slang word used for rival gang members. Walker got out of Moss’s car and Moss said
       he would meet them at 113th and Princeton. Walker, Johnson, Sharkey and Singleton walked
       to Johnson’s grandmother’s house on 112th Street, where Johnson retrieved a 9-millimeter
       handgun and handed it to Walker. Johnson then got in his car and Walker, Sharkey and
       Singleton walked south on Princeton toward 113th Street. As the group approached Fisher
       and Williams, Moss and Foster came down 113th and joined them. Johnson drove up alone
       and remained in his car.
¶ 22       Walker said “G.D.” (for Gangster Disciple) to Williams to see what his reaction would
       be, but Williams did not respond. Walker then hit Williams in the face. Singleton joined
       Walker in attacking Williams, while Sharkey, Moss and Foster attacked Fisher. Walker
       stated that it looked like Williams was reaching for a weapon and Singleton shouted,
       “Where’s the nine?” Walker then pulled out the gun and shot Williams twice. Foster and
       Sharkey jumped in Johnson’s car and Johnson drove off. Singleton, Moss and Walker ran
       north on Princeton, but because Walker still had the gun, they split up with Singleton and
       Moss running down 112th toward Wentworth and Walker continuing on Princeton.
¶ 23       Walker stated that Lofton was nowhere around at the time of the incident. In 1995,

                                                 -7-
       Walker went by the name of Antonio Fountain. Under the name of Fountain, he said that he
       signed a statement implicating Lofton, because the statement did not implicate Walker
       himself and he thought if he signed it, he would not be charged with the crime. He was still
       charged with the murder of Williams under the name of Fountain and went through two trials
       before he was found not guilty. Walker stated that he did not admit to the shooting then
       because he did not want to implicate himself. He said that after he was found not guilty, he
       did not have any contact with Lofton or his attorney, and the trial attorney never attempted
       to contact him. Walker finally located Lofton and said he is now willing to state the facts
       because an innocent man is in prison.
¶ 24       On December 18, 2009, the court issued its ruling on the second postconviction petition.
       The court stated that the petitioner needed leave of court to file a second petition, and
       therefore, the cause-and-prejudice test applied. The court stated that the petitioner had not
       met his burden of cause and prejudice. The court said that it did not believe that an actual
       innocence claim, which would excuse the cause-and-prejudice standard, was present because
       the claim was based on an affidavit of a codefendant who was exonerated and made a prior
       statement, executed 10 years after the fact. Thus, the court granted the State’s motion to
       dismiss the petition. Lofton timely filed this appeal.

¶ 25                                          ANALYSIS
¶ 26        The Post-Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2004)) provides
       a procedural mechanism by which any person imprisoned in the penitentiary may assert that
       there was a substantial denial of a federal or state constitutional right in the proceeding which
       resulted in his or her conviction. 725 ILCS 5/122–1(a) (West 2004); People v. Harris, 224
       Ill. 2d 115, 124 (2007). Proceedings are commenced by the filing of a petition, verified by
       affidavit, in the circuit court in which the conviction took place. 725 ILCS 5/122–1(b) (West
       2004). A postconviction proceeding is limited to constitutional issues that have not been, nor
       could they have been, previously adjudicated. Harris, 224 Ill. 2d at 124.
¶ 27        Postconviction proceedings may consist of up to three stages in cases that do not involve
       the death penalty. People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006). At the first stage, the
       circuit court reviews the petition to determine whether the petition is frivolous and patently
       without merit. Harris, 224 Ill. 2d at 125-26. A petition must present “the gist of a
       constitutional claim” to survive beyond the first stage. Id. at 126. The circuit court is required
       to dismiss petitions that are frivolous and patently without merit, and such dismissals are
       final orders. Id. At stage two, the circuit court may appoint counsel for the defendant and the
       State may move to dismiss the petition. Id. At the second stage, the relevant inquiry is
       whether the petition establishes a substantial showing of a constitutional violation. Id. (citing
       725 ILCS 5/122–6 (West 2004)). A petition that is not dismissed at the second stage
       proceeds to the third stage, where the circuit court conducts an evidentiary hearing. Id.
¶ 28        At both the second and third stages of postconviction proceedings, the defendant bears
       the burden of making a substantial showing of a constitutional violation. Pendleton, 223 Ill.
       2d at 473. At the second stage of the proceedings, all well-pleaded facts that are not
       positively rebutted by the trial record are taken as true. Id. The circuit court does not engage


                                                  -8-
       in fact-finding or credibility determinations at the dismissal stage; rather, such
       determinations are made at the evidentiary stage. People v. Coleman, 183 Ill. 2d 366, 385
       (1998). Here, Lofton’s petition was dismissed at the second stage. We review a circuit
       court’s dismissal of a postconviction petition at the second stage de novo. Pendleton, 223 Ill.
       2d at 473.
¶ 29        Lofton argues that the circuit court erred in granting the State’s motion to dismiss on the
       grounds that his actual innocence claim did not satisfy the cause-and-prejudice standard,
       because successive petitions claiming actual innocence are not subject to this test. The State
       concedes that the circuit court erred in utilizing the cause-and-prejudice standard in
       dismissing petitioner’s successive petition, but contends that this court can affirm on any
       basis supported by the record. The State argues that Walker’s affidavit was not newly
       discovered evidence because Walker was acquitted before the start of Lofton’s second trial
       and, thus, Walker’s potential testimony was available at the time of Lofton’s trial. The State
       further contends that Walker’s affidavit would not change the result in a retrial because of
       Fisher’s testimony that Lofton was the shooter and Foster’s pretrial statement in which he
       said that Lofton was the shooter.
¶ 30        The filing of successive postconviction petitions has generated a fair amount of confusion
       in the lower courts. Our supreme court attempted to clarify the issues surrounding successive
       postconviction petitions in People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). The Act
       generally contemplates the filing of only one postconviction petition. 725 ILCS 5/122–3
       (West 2004); Pitsonbarger, 205 Ill. 2d at 456; People v. Morgan, 212 Ill. 2d 148, 153 (2004).
       However, our supreme court held in Pitsonbarger that fundamental fairness allows the filing
       of a successive petition where the petition complies with the cause-and-prejudice test.
       Pitsonbarger, 205 Ill. 2d at 459. The court stated that “ ‘cause’ in this context refers to any
       objective factor, external to the defense, which impeded the petitioner’s ability to raise a
       specific claim in the initial post-conviction proceeding.” Id. at 462. The court also noted that
       the cause-and-prejudice test is to be applied to individual claims, not to the petition as a
       whole. Id. “ ‘Prejudice’ exists where the defendant can show that the claimed constitutional
       error so infected his trial that the resulting conviction violated due process.” Morgan, 212
       Ill. 2d at 154. In 2004, our legislature amended the Act to adopt the cause-and-prejudice test.
       725 ILCS 5/122–1(f) (West 2004); People v. Anderson, 375 Ill. App. 3d 121, 135 (2006).
¶ 31        In Pitsonbarger, the supreme court reaffirmed that even if a petitioner cannot show cause
       and prejudice, the failure to raise a claim in an earlier petition will be excused if necessary
       to prevent a fundamental miscarriage of justice. Pitsonbarger, 205 Ill. 2d at 459. The
       supreme court reiterated this principle in People v. Ortiz, 235 Ill. 2d 319, 330 (2009), stating
       that in a case not involving the death penalty where a defendant sets forth a claim of actual
       innocence, the defendant is excused from showing cause and prejudice. We note that a
       determination of whether or not the cause-and-prejudice test applies and, if it applies,
       whether or not the test is satisfied, is merely a determination of whether a claim raised in a
       successive petition may be considered on its merits. See Pitsonbarger, 205 Ill. 2d at 459.
       Thus, if the cause-and-prejudice test applies and is not satisfied, the claim is statutorily
       barred and the merits of the claim will not be considered.
¶ 32        We now turn to Lofton’s argument that the circuit court erred in using the cause-and-

                                                 -9-
       prejudice standard when it dismissed Lofton’s second postconviction petition. In fact, both
       parties agree that the application of this standard was erroneous. In its ruling, after finding
       that Lofton had “[not] met his burden of cause and prejudice,” the circuit court
       acknowledged that a claim of actual innocence was an exception to the cause-and-prejudice
       standard, but it said it did not believe an actual innocence claim was present here. The circuit
       court reasoned that Walker’s affidavit did not support a claim of actual innocence because
       Walker was a codefendant who was exonerated at trial, made a prior statement, and executed
       the affidavit 10 years after the fact. The State argues that this reasoning demonstrates that
       although the circuit court erroneously applied the cause-and-prejudice test, it was in fact
       determining whether petitioner made a substantial showing of actual innocence.
¶ 33        In fact, Lofton’s petition included a claim of actual innocence. The circuit court appears
       to have determined that, on its face, this was not a bona fide claim of actual innocence, and
       therefore, the cause-and-prejudice test applied. Although our supreme court has definitively
       stated that a claim of actual innocence excuses the defendant from showing cause and
       prejudice in order to reach the merits of a successive postconviction petition, there is indeed
       a lack of clarity in the existing jurisprudence regarding what analysis should be used in
       determining whether a claim purporting to be an actual innocence claim does, in fact, allege
       actual innocence. This court held in People v. English, 403 Ill. App. 3d 121, 132 (2010), that
       a defendant was not excused from showing cause and prejudice where his actual innocence
       claim was merely a reiteration of his previous ineffective assistance of counsel claim. We
       agree that, as in English, there are instances in which a purported claim of actual innocence
       is, on its face, obviously not an actual innocence claim. However, in the case at bar, Lofton’s
       claim of actual innocence is based on an affidavit of someone purporting to be the actual
       shooter stating that Lofton was not at the scene, a statement that is consistent with what
       Lofton has maintained since his arrest. Thus, we conclude that the petition contains a
       legitimate claim of actual innocence, and thus, this claim is not subject to the cause-and-
       prejudice test.
¶ 34        We note that this determination merely means that the successive petition is not
       statutorily barred and the merits of the actual innocence claim will be considered. As
       previously stated, a petitioner at the second stage of postconviction proceedings must make
       a substantial showing of a constitutional violation. Harris, 224 Ill. 2d at 126. In Ortiz, our
       supreme court stated that evidence in support of a claim of actual innocence “must be newly
       discovered; material and not merely cumulative; and ‘of such conclusive character that it
       would probably change the result on retrial.’ ” Ortiz, 235 Ill. 2d at 333 (quoting People v.
       Morgan, 212 Ill. 2d 148, 154 (2004)). We note that in Ortiz, the supreme court was
       considering whether the circuit court’s ruling following a third-stage evidentiary hearing was
       manifestly erroneous. Id. Thus, the court had to determine whether the petitioner had, in fact,
       shown actual innocence such that a new trial was warranted. However, at the second stage
       of postconviction proceedings, the relevant inquiry is whether the petitioner has made a
       substantial showing of actual innocence such that an evidentiary hearing is warranted.
¶ 35        Although a defendant is not entitled to an evidentiary hearing as a matter of right, our
       supreme court has repeatedly stressed that a hearing is required whenever the petitioner
       makes a substantial showing of a violation of constitutional rights. Coleman, 183 Ill. 2d at

                                                -10-
       381 (and cases cited therein). Dismissal of a postconviction petition is warranted only when
       the petition’s allegations of fact, liberally construed in favor of the petitioner and in light of
       the original trial record, fail to make a substantial showing of imprisonment in violation of
       the state or federal constitution. Id. at 382.
¶ 36        Reiteratively, after stating that the exception to the cause-and-prejudice standard was not
       present in this case, the circuit court explained that it did not agree that Walker’s affidavit
       supported a claim of actual innocence. The reasoning the court gave for this conclusion is
       that Walker was a codefendant who was exonerated at trial, made a prior statement, and
       executed the affidavit 10 years after the fact. This appears to be a dismissal of Walker’s
       affidavit, and thus, of Lofton’s actual innocence claim, on the basis of a credibility
       determination, which, as previously noted, is an issue to be reached at the evidentiary stage,
       not at a second-stage dismissal hearing. Id. at 385.
¶ 37        We must now determine whether Lofton’s petition made a substantial showing that the
       evidence upon which his actual innocence claim was based was newly discovered, material
       and not merely cumulative, and likely to change the result on retrial. We first address the
       requirement that the evidence must be newly discovered. Evidence that is newly discovered
       is defined as evidence that was discovered since the trial and could not have been discovered
       earlier through due diligence. Ortiz, 235 Ill. 2d at 334. Taking the facts alleged in the petition
       as true, Walker’s admission that he was the shooter and that Lofton was not at the scene was
       not discovered until Walker contacted Lofton and subsequently signed the affidavit on
       December 10, 2007. Prior to the contact from Walker, there would have been no reason for
       Lofton to seek Walker out. Lofton has maintained from the beginning that he was not at the
       scene and, thus, would not have known that Walker was the actual shooter. Accordingly, the
       only information available to Lofton prior to his second trial would have been that Walker
       had been identified by Fisher and charged with the murder, but had been acquitted. Under
       this scenario, absent Walker coming forward with a different story, there would be no way
       that Lofton could have known that Walker was the shooter and that he would sign an
       affidavit to that effect. Therefore, Lofton has made a substantial showing that the evidence
       was newly discovered. Why Walker came forward when he did is a matter to be investigated
       at an evidentiary hearing, not at this stage in the proceedings.
¶ 38        The second requirement is that the evidence be material and not merely cumulative.
       Evidence is considered cumulative when it does not add anything to what was previously
       before the jury. Id. at 335. Taking the facts alleged in the petition as true, the evidence that
       someone else was the shooter and Lofton was not present is certainly material. This evidence
       also certainly adds something to what was previously before the jury. The jury learned of the
       initial police report in which Walker was identified as the shooter, had the testimony of
       Officer Williams that he made a mistake and just assumed Walker was the shooter, the
       testimony of Fisher that Walker ran away from the scene with the gun but that Lofton was
       the shooter, and the testimony of Foster that he did not know if Lofton was there after
       making an initial pretrial statement that Lofton was, in fact, the shooter. The jury also had
       Lofton’s testimony that he was not there, but no supporting statements from alibi witnesses.
¶ 39        In contrast, the petition included an affidavit from one of the alibi witnesses at the first
       trial, stating that he would have again verified Lofton’s account if he had been called as a

                                                 -11-
       witness at the second trial, and an affidavit from a codefendant who did not testify and whose
       statement was not before the jury, stating that he was the actual shooter and Lofton was not
       there. The record supports these facts to the extent that Walker is the only one who was
       immediately named and described at the scene by Fisher, and Fisher consistently maintained
       that he saw Walker running from the scene with the gun. Thus, Lofton has made a substantial
       showing that the evidence is material and not merely cumulative, and Walker’s credibility
       is an issue to be determined at the evidentiary stage.
¶ 40       Finally, the evidence must be so conclusive that it would probably change the result on
       retrial. The State correctly notes that “the hallmark of ‘actual innocence’ means ‘total
       vindication,’ or ‘exoneration.’ ” People v. Collier, 387 Ill. App. 3d 630, 636 (2008). It would
       not have been enough for Walker to state that he was the shooter if Lofton was still actively
       involved under Walker’s version of events. However, Walker’s affidavit states that not only
       was Walker the shooter, Lofton was not even there. This is inconsistent with Fisher’s
       identification of Lofton as the shooter in a lineup and with Foster’s initial pretrial statement
       that Lofton was the shooter. However, it is consistent with Lofton’s insistence from the
       beginning, supported by alibi witnesses, that he was not present at the scene. It is also
       consistent with Fisher’s apparent initial identification of Walker and his testimony that
       Walker is the one he saw running from the scene with the gun. Moreover, Walker’s account
       in which Johnson was a participant but drove up in his car alone and stayed in the car is
       consistent with the testimony of Fisher, who knew Johnson, but maintained he was not at the
       scene. We also note that although Fisher identified Lofton in a lineup and testified that he
       gave a physical description of Lofton to the police at some point during the investigation,
       Fisher’s initial identifications and descriptions were only of Walker and Moss. Officer
       Williams asked Fisher if he knew who shot his son and Fisher said yes, but the only name
       he provided initially was Walker’s. Testimony reflects that the police report does not indicate
       that Fisher ever spoke of a separate shooter initially or described Lofton to police, and
       although this testimony was not before the jury, Officer Williams stated that he got Lofton’s
       name from an interview he overheard at the station of Moss, who was apprehended fleeing
       the scene and was immediately identified by Fisher as a participant. Fisher also consistently
       maintained that Walker was the one who fled the scene with the gun. Thus, Lofton has made
       a substantial showing that the evidence would probably change the result on retrial and again,
       Walker’s credibility is something that must be determined at the evidentiary stage, not the
       dismissal stage. For these reasons, we hold that Lofton has made a substantial showing of a
       constitutional violation and is entitled to a third-stage evidentiary hearing on his claim of
       actual innocence. We reverse the circuit court’s dismissal of the petition and remand for a
       third-stage evidentiary hearing.
¶ 41       Reversed and remanded.




                                                -12-
