                                      2013 IL App (1st) 091944

                                                                                 SECOND DIVISION
                                                                                  September 24, 2013



1-09-1944

THE PEOPLE OF THE STATE OF ILLINOIS,                     )       Appeal from the
                                                         )       Circuit Court of
                        Plaintiff-Appellee,              )       Cook County.
                                                         )
v.                                                       )       93 CR 25151
                                                         )
JOSE CRUZ,                                               )       Honorable
                                                         )       William G. Lacy,
                        Defendant-Appellant.             )       Judge Presiding.


        JUSTICE QUINN delivered the judgment of the court, with opinion.
        Justice Pierce concurred in the judgment and opinion.
        Justice Neville dissented, with opinion.


                                               OPINION

¶1      Defendant Jose Cruz appeals from the second-stage dismissal of his petition for relief under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). He contends that

the circuit court erred in dismissing his petition where he lacked culpable negligence for its late filing

and made a substantial showing that his right to due process was violated by the use of an erroneous

version of an Illinois Pattern Jury Instruction. For the following reasons, we affirm.

¶2                                         BACKGROUND

¶3      Around 3:30 a.m. on October 6, 1993, Vernon Meadors walked to a bus stop by a gas station

on North Avenue. Antoine Douglas drove into the gas station and got out of his car, wearing a Duke

Blue Devils shirt. Another car pulled into the gas station and stopped in front of Douglas. Someone
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from that car asked whether Douglas was a Disciple. Douglas said he was a Vice Lord. Several men

emerged from the car and Douglas ran off. When the men started shooting at Douglas, Meadors hit

the ground. After the shooting stopped, someone yelled, “Witness.” One of the men shot Meadors

in the arm, but additional pulls on the trigger produced no bullets. The men drove off. Police

arrived minutes later and found Douglas dead from multiple gunshot wounds.

¶4     Doctors at a nearby hospital treated Meadors and released him. Police showed Meadors an

array of photographs, including some pictures of local gang members, but Meadors did not identify

any of the photos as pictures of the men he saw shooting at Douglas. Meadors and his family moved

out of the area near the shooting. On October 8, 1993, two days after the shooting, Meadors returned

to the police station and identified a picture of Cruz as a picture of the man he saw asking Douglas

about his gang affiliation, and as one of the men who shot at Douglas.

¶5     Police arrested Cruz, who admitted that he belonged to the Latin Kings. Meadors identified

Cruz in a lineup as the person he saw in the car at the gas station, and as one of the men he saw

shooting Douglas. A grand jury indicted Cruz for the murder of Douglas and for the attempted

murder of Meadors.

¶6     At the trial, held in 1995, prosecutors presented an expert on gangs to explain the shooting.

The expert said that Latin Kings control the area near the shooting. Latin Kings participate

in a loose alliance with Vice Lords, but they view Disciples as enemies. Disciples wear Duke Blue

Devil clothing to show their gang affiliation. Another officer testified that when he questioned Cruz,

Cruz admitted that if he saw a Disciple in Latin King territory, Cruz would “beat him, stab him,

shoot him, whatever it takes to get him out of there.”

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¶7     Meadors testified that he saw Cruz’s face clearly from about 15 feet away, in very good

lighting, when Cruz asked Douglas about his gang affiliation. Meadors did not get a good view of

the other men in the car. After police arrived at the scene, a young Hispanic man walked up to

Meadors and looked at him in a way Meadors found threatening. Meadors decided not to identify

Cruz at that time, but after his family moved, he made the identification.

¶8     The trial court instructed the jury, without objection:

                         “When you weigh the identification testimony of a witness,

                 you must consider all of the facts and circumstances and evidence,

                 including but not limited to the following. The opportunity the

                 witness had to view the offender at the time of the offense; or the

                 witness' degree of attention at the time of the offense; or, the witness's

                 earlier description of the offender; or, the level of certainty shown by

                 the witness when confronting the defendant; or the length of time

                 between the offense and the identification confrontation.”

¶9     The jury found Cruz guilty of murder and attempted murder. The trial court sentenced Cruz

to 60 years in prison for the murder, and 30 years for the attempted murder, with the sentences to run

consecutively.

¶ 10   On direct appeal, defense counsel argued that Cruz did not receive a fair trial because the

court permitted the State to introduce evidence of other crimes and to use inadmissible evidence to

bolster Meadors’s testimony, and the State made improper assertions in closing argument. Counsel

raised no issue concerning the jury instructions or ineffective assistance of trial counsel. The

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appellate court affirmed the trial court’s judgment. People v. Cruz, No. 1-96-0575 (Aug. 31, 1998)

(unpublished order under Supreme Court Rule 23).

¶ 11   On June 2, 1999, Cruz filed a postconviction petition in which he argued that he received

ineffective assistance of trial and appellate counsel. The trial court dismissed the petition as

untimely, without appointing counsel to assist Cruz with the petition. The appellate court reversed

and remanded for the appointment of counsel to assist Cruz with his postconviction petition and to

advance the case to the second stage of postconviction proceedings, pursuant to the holding in

People v. Boclair, 202 Ill. 2d 89, 99 (2002). People v. Cruz, No. 1-99-3215 (May 30, 2003)

(unpublished order under Supreme Court Rule 23).

¶ 12   On May 6, 2004, counsel was appointed to represent Cruz. On June 21, 2007, however, the

court granted Cruz's motion to proceed pro se and discharged his appointed counsel. Then, on

January 17, 2008, Cruz withdrew his prior postconviction petition and filed an amended petition in

which he added an allegation that he did not receive a fair trial because the trial court used an

erroneous instruction concerning the factors to consider when weighing identification testimony.

¶ 13   Cruz also filed another amendment to his postconviction petition to explain his delay in

filing the original petition. He stated:

               “[I am] illiterate in law, has poor comprehension and border line

               illiterate, and english is not fluent at all. There-fore, I have had to

               rely on the advice of other jail house lawyers, including the law clerks

               assigned to Stateville Corr. Ctr. Law Library *** who told me that I

               had (6) six months after the denial of my Petition for Leave to Appeal

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                to the Illinois Supreme Court to file my Post Conviction Petition.”

Because the Illinois Supreme Court denied his petition for leave to appeal on December 2, 1998 (181

Ill. 2d 577 (1998) (table)), Cruz concluded that he could file his postconviction petition anytime

before June 3, 1999. In fact, the statute made the petition due, at the latest, three years after the

conviction, so that Cruz’s time for filing expired on January 30, 1999. See 725 ILCS 5/122-1(c)

(West 1998). Cruz alleged that due to his difficulty reading English, he needed to rely on prison staff

to let him know the filing date, and he needed the help of a jailhouse lawyer to prepare his

postconviction petition. He further alleged that "Stateville's Law Clerk are [sic] not properly trained,

many of whom does [sic] not have the proper paralegal certification to even work as a law clerk."

He also explained:

                "[H]ere at Stateville Law Library there is a rotating system where

                every (6) six months prisoners are re-assigned to another job

                assignment. which means a prisoner who may have or may have not

                the proper certification to work at the Law Library may be assigned

                to the prison's Laundry, and the prisoner will likewise be assigned to

                the Law Library to work as a Law Clerk."

¶ 14    The State moved to dismiss the amended postconviction petition as untimely and

insufficient. On July 10, 2009, the trial court granted the State’s motion, finding the petition

untimely because Cruz failed to allege facts to show that he did not act with culpable negligence

when he filed his postconviction petition four months late. The court also found the petition and its

supplements insufficient to warrant an evidentiary hearing. The court did not directly address the

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argument concerning the improper instruction. Cruz appealed.

¶ 15    In the appeal, the State argued that this court should affirm the dismissal of Cruz's petition

because Cruz did not support his allegations about the lack of culpable negligence with a notarized

affidavit. This court agreed with the State. People v. Cruz, 2011 IL App (1st) 091944-U, ¶ 23. Our

supreme court reversed our judgment, holding that the State forfeited its objection to the lack of a

notarized affidavit by failing to raise the issue in the trial court. People v. Cruz, 2013 IL 113399,

¶ 25. Our supreme court remanded the case for us to review the other issues raised in the appeal

from the dismissal of Cruz's postconviction petition. We now address the issues we left unresolved

in our initial disposition of this appeal.

¶ 16                                         ANALYSIS

¶ 17    The Act provides a mechanism by which a criminal defendant may assert that his conviction

was the result of a substantial denial of his constitutional rights. People v. Delton, 227 Ill. 2d 247,

253 (2008). At the second stage of proceedings, defendant has the burden of making a substantial

showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). A petition

may be dismissed at this stage only where the allegations, liberally construed in light of the trial

record, fail to make such a showing. People v. Hall, 217 Ill. 2d 324, 334 (2005). All well-pleaded

facts that are not positively rebutted by the record are to be taken as true. Pendleton, 223 Ill. 2d at

473. We review de novo the dismissal of a petition without an evidentiary hearing. Hall, 217 Ill.

2d at 334.

¶ 18    Defendant first contends that the circuit court erred in dismissing his postconviction petition

where he was not culpably negligent for its untimely filing. Postconviction proceedings may not be

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commenced outside the time limitations of the Act unless defendant alleges sufficient facts to show

the delay in filing was not due to his culpable negligence. People v. Lander, 215 Ill. 2d 577, 586

(2005) (citing 725 ILCS 5/122-1(c) (West 2000)). Culpable negligence "contemplates something

greater than ordinary negligence and is akin to recklessness." People v. Boclair, 202 Ill. 2d 89, 108

(2002).

¶ 19      In the case at bar, there is no dispute that defendant's petition was untimely. Defendant

claims, however, that he was not culpably negligent for the untimely filing because he is illiterate

and reasonably relied on a prison law clerk's erroneous advice as to the due date for his petition. The

State responds that defendant's reliance on an unnamed prison law clerk, whom he admits had no

specialized knowledge of the law, demonstrates that he was culpably negligent.

¶ 20      We find the disposition of this appeal to be controlled by our supreme court's decision in

Lander. There, the supreme court rejected a defendant's claim on appeal that he was not culpably

negligent for the untimely filing of his postconviction petition because he reasonably relied on the

erroneous advice of a prison law clerk and several "jailhouse lawyers" as to the filing deadline.

Lander, 215 Ill. 2d at 586-87. In doing so, it distinguished People v. Rissley, 206 Ill. 2d 403 (2003),

a case where it found a defendant was not culpably negligent for the late filing of his petition

"because he reasonably relied on the advice of his attorney on direct appeal, a person who had

obvious expertise in legal matters and, in particular, criminal appeals." Lander, 215 Ill. 2d at 587-88

(citing Rissley, 206 Ill. 2d at 421). The supreme court noted that, unlike Rissley, defendant failed

to allege that the people on whom he relied for advice were hired to assist inmates with

postconviction matters or "had any particular training in postconviction matters providing them with

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1-09-1944


specialized knowledge of the filing deadline for a postconviction petition." Lander, 215 Ill. 2d at

588. Moreover, noted the court, defendant sought advice concerning the filing deadline from a

librarian after having previously received advice on the same matter from jailhouse lawyers and a

law clerk, showing that he questioned their advice. Lander, 215 Ill. 2d at 588. Ultimately, the

supreme court concluded:

                       "It is well settled that all citizens are charged with knowledge

               of the law. [Citation.] Ignorance of the law or legal rights will not

               excuse a delay in filing a lawsuit. [Citation.]        Thus, the sole

               obligation of knowing the time requirements for filing a

               postconviction petition remains with the defendant. Defendant's

               entrustment of this responsibility to jailhouse lawyers, a prison law

               clerk, and a law librarian who had no proven specialized knowledge

               in postconviction matters shows an indifference to the consequences

               likely to follow from his actions.

                       We caution that our determination in this regard is fact-

               specific and is not amenable to an easily defined standard or rule.

               Rather, each case must be examined on its own facts. Based on the

               specific facts of this case, we conclude defendant's reliance on the

               advice of jailhouse lawyers, a law clerk, and a law librarian is

               insufficient to establish the delay in filing was not due to defendant's

               culpable negligence." Lander, 215 Ill. 2d at 588-89.

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¶ 21    The circumstances in the case at bar are nearly identical to those in Lander. Here, defendant

filed an untimely postconviction petition and claimed that the late filing was due to his reliance on

a prison law clerk's erroneous advice as to the time requirements of the Act. However, the record

shows that he was fully aware that prison law clerks have no specialized legal knowledge and were

assigned to the law library without any consideration as to their qualifications. Applying Lander to

these facts, defendant's reliance on the advice of the prison law clerk was clearly insufficient to

establish that his delay in filing his petition was not due to his culpable negligence. Lander, 215 Ill.

2d at 589.

¶ 22    This conclusion comports with additional case law as well. In People v. Walker, 331 Ill.

App. 3d 335, 340 (2002), defendant filed untimely postconviction petitions and claimed that his late

filing was occasioned by a two-year lockdown at the prison, during which time he was prohibited

from meeting with an inmate paralegal to prepare a petition. This court affirmed the dismissal of

the petitions as untimely, noting that defendant failed to explain how the alleged lockdown impeded

his ability to file a timely petition or how a meeting with an inmate paralegal would have facilitated

the timely filing of his petitions. Walker, 331 Ill. App. 3d at 341-42.

¶ 23    In People v. Williams, 394 Ill. App. 3d 236, 244 (2009), defendant requested leave to file a

successive postconviction petition, claiming that "his original postconviction petition was prepared

by a fellow inmate who deliberately failed to raise claims requested by the defendant." Defendant

attached an affidavit from that inmate in which the inmate averred that he was not getting along with

defendant and purposely did not raise certain issues. Williams, 394 Ill. App. 3d at 241. Relying on

Lander, this court affirmed the denial of defendant's motion for leave to file his successive petition,

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noting: "We conclude that the defendant failed to establish that his reliance on [his fellow inmate]

for the preparation of his original postconviction petition was reasonable and did not establish 'cause'

for purposes of section 122-1(f)." Williams, 394 Ill. App. 3d at 245.

¶ 24    Most recently, in People v. Evans, 2013 IL 113471, ¶ 13, our supreme court followed Lander

in another case affirming the denial of a motion for leave to file a successive postconviction petition.

There, the supreme court noted that it "has made very clear that 'all citizens are charged with

knowledge of the law' and that '[i]gnorance of the law or legal rights will not excuse a delay in filing

a lawsuit.' " Evans, 2013 IL 113471, ¶ 13 (quoting Lander, 215 Ill. 2d at 588). It noted, however,

that "ignorance of the law is precisely the 'cause' that defendant asserts here to justify his failure to

include the present claim in his initial postconviction petition." Evans, 2013 IL 113471, ¶ 13.

¶ 25    Given the outcome of these cases, there can be no doubt that it is defendant who bears the

ultimate responsibility of ensuring that he timely files his postconviction petition. Defendant

nonetheless attempts to avoid the result in Lander by citing the supreme court's admonishment that

each case must be examined on its own facts. Noting his alleged illiteracy, defendant claims that in

the instant case he may never have filed anything without the help of other inmates. He also claims

that, compared to him, the other inmates had specialized knowledge in that they were literate.

¶ 26    Initially, we note that defendant's claims of illiteracy, poor comprehension, and lack of

fluency in English are highly dubious. According to his presentence investigation report, defendant

attended elementary school in Puerto Rico from kindergarten through sixth grade before graduating

in 1985. He also attended another school for seventh grade and attended "Sister Isolind Ferre

Center" from 1986 to 1987 to obtain his GED, though he never took the required test. While

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defendant claims that nothing about his education in Puerto Rico would demonstrate that he was

literate in the English language, other indications of his literacy and fluency in English nonetheless

abound. For instance, the record is replete with pro se documents–though defendant suggests these

could have been typed or handwritten by others. Defendant also discharged his appointed post-

conviction counsel and proceeded pro se on his petition, apparently confident in his ability to carry

out the functions of self-representation, i.e., reading and preparing documents and communicating

with the court. Finally, at the hearing on the State's motion to dismiss, defendant positively revealed

his ability to read and speak English during the following exchange:

                   "THE COURT: Okay. Thank you.

                   Mr. Cruz, do you wish to respond?

                   THE DEFENDANT: Yes, [y]our Honor. I have got a written

               response, please–

                   THE COURT: A written response? You are filing something else

               again?

                   THE DEFENDANT: No, I am not filing something. No, I am

               reading–

                   THE COURT: Oh, you just want to read it to me.

                   THE DEFENDANT: No, I am reading – this is my argument. My

               argument is written down.

                   THE COURT: Okay. Go ahead."

Whereupon defendant proceeded to read his argument to the court–in English.                Under the

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circumstances, defendant's claims of illiteracy, poor comprehension, and lack of fluency in English

are simply incredible.

¶ 27   That said, even if defendant is illiterate, we still find that he was culpably negligent for the

untimely filing of his petition. The fact remains that defendant relied on the advice of a prison law

clerk, whom he knew had no specialized knowledge of postconviction matters, to ascertain the filing

date for his petition. Clearly, he should have been prepared for not just the possibility, but the

probability, that he would be misadvised as to the law, yet he did not seek out more reliable advice

and proceeded to file his petition late. He now must accept the consequences of his imprudence, as

the Act does not make exceptions for defendants who are illiterate and/or do not speak fluent

English.

¶ 28   Defendant also attempts to distinguish his case from People v. Hampton, 349 Ill. App. 3d

824, 828 (2004), where the defendant filed his postconviction petition 56 months late. There, the

court noted that "[w]hile the length of the delay alone is not dispositive, it stands to reason that a

defendant who waits nearly five years beyond the statutory deadline to file a petition has more

explaining to do than one who is late by less than a week." Hampton, 349 Ill. App. 3d at 828.

Defendant points out that his petition was only five months late, and that the State was not

prejudiced by the delay considering that his case "wound its way though the courts for a decade."

¶ 29   We find defendant's reliance on Hampton to be misplaced. First, the mere fact that

defendant's petition was not filed as late as the one in Hampton does not mean that he was not

culpably negligent in the case at bar. Second, whether or not the State was prejudiced by the delay

is irrelevant. The Act sets forth time limitations for the filing of a postconviction petition, and

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defendant must either comply with those limitations or establish that he was not culpably negligent

for his untimely filing. Since defendant did neither, the circuit court properly dismissed his petition

as untimely.

¶ 30   In his well-reasoned dissent, Justice Neville cites several federal court decisions addressing

allegations raised by petitioners seeking equitable tolling in habeas corpus proceedings. In Mendoza

v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006), the court considered the holding in Cobas v. Burgess,

306 F.3d 441, 444 (6th Cir. 2002), where the court found that "[b]ecause Cobas had written a

detailed letter to his counsel in English and had otherwise demonstrated his ability to either

communicate in English or communicate with a translator, the record in Cobas' case 'belie[d] any

claim that language difficulties prevented Cobas from filing his petition in a timely manner.' " The

Cobas court also held that the "existence of a translator who can read and write English and who

assists a petitioner during appellate proceedings" renders equitable tolling inapplicable to that

petitioner. Cobas, 306 F.3d at 444. The Mendoza court noted that "[o]ur conclusion is completely

consistent with the Supreme Court's recent decision addressing law library access rights. Kane v.

Garcia Espitia, 546 U.S. 9, 10, 126 S. Ct. 407, 408, 163 L. Ed. 2d 10 (2005) (per curiam), held that

the denial of access to a law library cannot provide a basis for a pro se petitioner's habeas relief

because no Supreme Court case clearly establishes a pro se petitioner's constitutional right to law

library access." Mendoza, 449 F.3d at 1070.

¶ 31   The Mendoza court also considered United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004),

which applied "Cobas' reasoning and conclud[ed] that the petitioner's 'excellent' English skills and

ability to compose, without assistance, court filings in English, foreclosed any contention that lack

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of English proficiency justified equitable tolling." Mendoza, 449 F.3d at 1070. The majority in

Mendoza said "the record contains no indication that Mendoza could communicate in English."

(Emphasis in original.) Mendoza, 449 F.3d at 1070 n.4.

¶ 32   In the instant case, the first indication that Cruz is not completely proficient in English came

in 2008, when Cruz raised the assertion in an amendment to his postconviction petition. At his

arraignment in 1993, Cruz told the court that he spoke English. No interpreter was used by Cruz

during his trial in 1995. The record contains letters to and from Cruz to a private lawyer with whom

Cruz disagreed as to the merits of filing a postconviction petition. The record also contains a 20-

page transcript of a proceeding on June 21, 2007, during which Cruz fired his public defender, who

had represented him for three years. Cruz speaks English fluently throughout the proceeding, and

he filed an 82-page habeas corpus petition that he asked to proceed on. Cruz had been writted in

so he could presumably inform the postconviction court whether he wished to continue to be

represented by appointed counsel or proceed pro se. After a lengthy discussion (in English) on the

record, Cruz asked that the public defender be discharged. At no time did Cruz express a concern

that he would not be competent to represent himself.

¶ 33   The dissent is quite correct in reciting the holding in Pabon v. Mahanoy, 654 F.3d 385 (3d

Cir. 2011). However, the Pabon court noted that "Pabon has maintained from the time of his arrest

that he reads, writes, and understands only Spanish. *** Pabon used a court translator for pre-trial

hearings and during the trial." Pabon, 654 F.3d at 389 & n.3. Again, the first time Cruz raised any

question regarding his fluency in English was in a 2008 filing, 15 years after he was arraigned and

13 years after his conviction. Cruz did not raise any such allegation in his postconviction petition

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which he filed in 1999. No such allegation was raised by Cruz's attorneys in 2001 when they

appealed the dismissal of his petition based on its untimeliness.

¶ 34   Finally, the dissent's citation to Diaz v. Kelly, 515 F.3d 149, 154-55 (2d Cir. 2008), merits

some discussion. There, Angel Diaz and Yoke Yew Tan, in separate cases, argued that the one-year

limitations period for filing a habeas corpus petition found in the Antiterrorism and Effective Death

Penalty Act of 1996 (28 U.S.C. § 2244(d) (2006)) should have been equitably tolled on the basis of

petitioners' lack of proficiency in the English language. The Diaz court rejected these arguments,

holding:

                       "This is not to say, however, that language deficiency must be

               remedied by the State in any sense comparable to the obligation,

               grounded in the Sixth Amendment, to provide an interpreter at trial.

               See United States ex rel. Negron v. New York, 434 F.2d 386, 389-90

               (2d Cir. 1970). On the contrary, the diligence requirement of

               equitable tolling imposes on the prisoner a substantial obligation to

               make all reasonable efforts to obtain assistance to mitigate his

               language deficiency.

                       Neither Diaz nor Tan have alleged efforts that satisfy the

               diligence requirement. Both have claimed nothing more than the

               unavailability of personnel within their prisons who could translate

               for them during the applicable limitations periods. There is no

               allegation of any efforts to contact anyone outside the prison who

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               might assist in making them aware, in their language, of legal

               requirements for filing a habeas corpus petition, nor what efforts were

               made to learn of such requirements within their places of

               confinement. Equitable tolling was properly rejected in their cases."

               Diaz, 515 F.3d at 154.

¶ 35   A reading of the cases cited in the dissent and the cases cited by them supports our

conclusion that Cruz has utterly failed to meet his burden of showing that the late filing of his

postconviction petition was not due to his own culpable negligence. Given our disposition in this

case, we need not address defendant's remaining claim.

¶ 36   For the reasons stated, we affirm the second-stage dismissal of defendant's post-conviction

petition by the circuit court of Cook County.

¶ 37   Affirmed.

¶ 38   JUSTICE NEVILLE, dissenting.

¶ 39   I respectfully dissent. In my opinion, Cruz adequately alleged facts showing that the delay

in filing his postconviction petition did not result from his culpable negligence, and he has made a

substantial showing of a constitutional violation. Accordingly, I would reverse the dismissal of

Cruz’s postconviction petition and remand for an evidentiary hearing at the third stage of

proceedings on the petition.

¶ 40                                    Culpable Negligence

¶ 41   The majority correctly acknowledges that the Act permits a petitioner to file a late

postconviction petition if “the petitioner alleges facts showing that the delay was not due to his or

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her culpable negligence" (725 ILCS 5/122-1(c) (West 2010)), and that we must accept as true all

facts well-pleaded in the petition, unless the record positively contradicts them. Lander, 215 Ill. 2d

at 586. Cruz's completion of the seventh grade in Puerto Rico does not prove his literacy in English,

especially to the extent needed to read and understand the Act. Cruz alleged that he sought help

from jailhouse lawyers, who may have drafted his pro se submissions to the court. The majority

relies on Cruz's ability to read a document to the court in English as sufficient to disprove the

allegations of the petition.      However, the ability to enunciate the words does not prove

understanding. The trial court could more completely address the question of Cruz's ability to read

and understand English at an evidentiary hearing. For purposes of this appeal, I would accept as true

Cruz's allegation that he is "illiterate in law" and not fluent in English, and therefore he relied on the

advice of jailhouse lawyers and library clerks. I would address the issue of whether Cruz has

"allege[d] facts showing that the delay [in filing his postconviction petition] was not due to his ***

culpable negligence." 725 ILCS 5/122-1(c) (West 2010).

¶ 42    Our supreme court explained the applicable standard:

                "Culpable negligence has been defined as '[n]egligent conduct that,

                while not intentional, involves a disregard of the consequences likely

                to result from one's actions.' Black's Law Dictionary 1056 (7th ed.

                1999). Culpable negligence has also been defined as 'something more

                than negligence' involving 'an indifference to, or disregard of,

                consequences.' 65 C.J.S. Negligence § 19 (2000). Accord 1 R. Rawle,

                Bouvier's Law Dictionary 736 (3d rev. 1914) (stating that 'culpable

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            neglect would seem to convey the idea of neglect for which he was to

            blame as is ascribed to his own carelessness, improvidence or folly').

                                            ***

                 *** [I]n Holway v. Ames, 100 Me. 208, 60 A. 897 (1905), the

            Supreme Judicial Court of Maine defined 'culpable neglect' in an

            analogous context as 'less than gross carelessness, but more than the

            failure to use ordinary care.' Holway, 100 Me. at 211, 60 A. at 898. In

            other contexts, other courts have defined culpable negligence as

            something more than mere neglect or more than a mere failure to use

            ordinary care. E.g., Ross v. Baker, 632 So. 2d 224, 226 (Fla. App.

            1994) (holding that '[c]ulpable negligence is negligence of a gross and

            flagrant character which evinces a reckless disregard for the safety of

            others'); State v. Giordano, 138 N.H. 90, 95, 635 A.2d 482, 484

            (1993) (stating that '[c]ulpable negligence is something more than

            ordinary negligence, mere neglect, or the failure to use ordinary

            care—it is negligence that is censorious, faulty or blameable').

                 *** We find that the 'culpably negligent' standard contained in

            section 122-1(c) contemplates something greater than ordinary

            negligence and is akin to recklessness." People v. Boclair, 202 Ill. 2d

            89, 106-08 (2002).



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¶ 43   The majority holds that our supreme court's decision in Lander controls our decision in this

case. I find this case distinguishable from Lander because Cruz alleged facts explaining his need

to rely on persons who could read and understand English, at a time when he did not have an

attorney to assist him with understanding the statute.

¶ 44    Federal courts have confronted similar issues in the context of habeas corpus proceedings.

In Pabon v. Mahanoy, 654 F.3d 385 (3d Cir. 2011), the district court dismissed Pabon's petition for

a writ of habeas corpus as untimely. Pabon admitted that he missed the statutory filing deadline, but

he asked the court to apply equitable tolling because Pabon could not read, speak or write English

and the prison denied his request for translation assistance. For equitable tolling, the prisoner needed

to show that extraordinary circumstances stood in the way of timely filing, and the prisoner acted

with due diligence. The Pabon court held:

                "[I]nability to read or understand English, combined with denial of

                access to translation or legal assistance, can constitute extraordinary

                circumstances that trigger equitable tolling. *** [W]e note that the

                relevant inquiry is not whether the circumstance alleged to be

                extraordinary is unique to the petitioner, but how severe an obstacle

                it creates with respect to meeting [the statutory] deadline." Pabon,

                654 F.3d at 400-01.

The Pabon court held that the district court needed to hold an evidentiary hearing on Pabon's petition

to determine whether to allow equitable tolling of the statutory filing deadline.

¶ 45    Other courts reached similar conclusions about the effect of illiteracy in English on the right

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to equitable tolling in Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008), Mendoza v. Carey, 449 F.3d

1065, 1069 (9th Cir. 2006), and Fell v. Rafferty, 736 F. Supp. 623, 628 (D.N.J. 1990). Cruz need

not meet the rigorous standards for showing a right to equitable tolling. Instead, he must meet the

less stringent requirement of showing that he did not act with culpable negligence.

¶ 46    Along with the authority of Pabon, Diaz, Mendoza and Fell, like the Boclair court, I would

look to cases that interpret "culpable negligence" in other contexts. In Kinney v. Ensmenger, 6 So.

72, 73 (Ala. 1889), the court held:

                      "The complainant's illiteracy and inability to understand the

                English language, coupled with his probable confidence in his trusted

                agent, Harrison, who acted for him in negotiating the sale, are prima

                facie sufficient, under the facts of this case, to acquit him of such

                culpable negligence in failing to be informed as to the contents of the

                deed and notes as would prevent him from obtaining relief in a court

                of equity."

        See also Klabunde v. Byron-Reed Co., 98 N.W. 182, 186 (Neb. 1904).

¶ 47    A person may even find relief from the terms of a contract he signed, if he needed to rely on

another person to translate the contract for him, and the translator misread some of the contract

terms. Corpus Juris says, “where a person cannot read the language in which a contract is written,

it is ordinarily as much his duty to procure some person to read and explain it to him before he signs

it as it would be to read it before he signed it if he were able so to do.” 13 C.J. 372 ( ). Applying the

rule stated in Corpus Juris, the court in Keystone Pipe & Supply Co. Of Texax v. Kleeden, 299 S.W.

                                                 - 20 -
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671, 673 (Tex. App. 1927), said, “It is not alleged that plaintiff's representative, who executed the

contract for plaintiff company, made any false representations as to the contents of the writing, nor

that Kleeden, who represented the defendants, was illiterate, nor that there was any confidential

relation existing between the parties who actually executed it.” Thus, illiteracy in English, coupled

with a misrepresentation to the petitioner about the contents of a crucial document, like the Act here,

can excuse a petitioner's misunderstanding of the document and provide grounds for relief from the

usual consequences of failure to comply with some provision of the document.

¶ 48   Under the reasoning of Pabon and other cases concerning culpable negligence, in the specific

circumstances of this case, where the defendant has alleged functional illiteracy in English, his

reliance on the advice of jailhouse lawyers and library clerks does not show blameable or censorious

conduct, indifference to the consequences of his acts, or more than ordinary negligence. See People

v. Rissley, 206 Ill. 2d 403, 419-22 (2003); Boclair, 202 Ill. 2d at 106-08. Interpreting "culpable

negligence" in light of our supreme court's pronouncement that we should construe the Act "liberally

*** to afford a convicted person an opportunity to present questions of deprivation of constitutional

rights" (People v. Correa, 108 Ill. 2d 541, 546 (1985)), Cruz has adequately alleged facts showing

that the delay in filing his postconviction petition did not result from his culpable negligence.

¶ 49                                  Identification Instruction

¶ 50   Because I find the allegations of the petition sufficient to show a lack of culpable negligence,

I would reach the issue of whether Cruz has met his burden of making a substantial showing of a

constitutional violation. See Hall, 217 Ill. 2d 324, 334 (2005). Cruz argues that he showed that he

received ineffective assistance of appellate counsel when appellate counsel failed to argue that he

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received ineffective assistance of trial counsel when trial counsel failed to object to the erroneous

identification instruction.

¶ 51      The State contends that the amended postconviction petition does not adequately raise the

issue Cruz asks us to address on this appeal, because Cruz did not specifically list the failure to raise

the insufficiency of the identification instruction as a reason to find that he did not receive effective

assistance of appellate counsel. The State acknowledges that in his postconviction petition, Cruz

raises two related issues: the erroneous identification instruction, and the ineffective assistance of

appellate counsel for failing to argue ineffective assistance of trial counsel.             The State's

hypertechnical reading of Cruz's postconviction petition does not accord with the policies underlying

the Act. See Rissley, 206 Ill. 2d 403, 420-21. The identification instruction issue arises as part of

Cruz's claim that he received ineffective assistance of appellate counsel when his counsel for the

appeal failed to argue ineffective assistance of trial counsel. See People v. Winsett, 153 Ill. 2d 335,

346 (1992); People v. Mahaffey, 194 Ill. 2d 154, 171 (2000), overruled on other grounds by People

v. Wrice, 2012 IL 111860 ¶ 75.

¶ 52      To show ineffective assistance of appellate counsel, a defendant must show that appellate

counsel made an objectively unreasonable decision not to raise an issue on direct appeal, and that

the failure to raise the issue prejudiced the defendant. People v. Wilder, 356 Ill. App. 3d 712, 719

(2005).

¶ 53      Illinois Pattern Jury Instructions, Criminal, No. 3.15 (3d ed. 1992) (hereinafter IPI Criminal

3d No. 3.15), states:

                 “When you weigh the identification testimony of a witness, you

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              should consider all the facts and circumstances in evidence,

              including, but not limited to, the following:

                    The opportunity the witness had to view the offender at the time

              of the offense.

                                                  [or]

                    The witness's degree of attention at the time of the offense.

                                                  [or]

                       The witness's earlier description of the offender.

                                                  [or]

                       The level of certainty shown by the witness when confronting the defendant.

                                                  [or]

                       The length of time between the offense and the identification confrontation.”

¶ 54   The User’s Guide explains:

              “A bracketed ‘or’ (‘[or]’) is used when the user must choose between

              alternative paragraphs or propositions that may be given as part of the

              instruction when more than one alternative is applicable. Illinois

              Pattern Jury Instructions, Criminal, User's Guide at XXII (3d ed.

              1992).

¶ 55   The example in the 1992 edition for the use of the instruction does not include “or” between

the listed factors. See People v. Brookins, 333 Ill. App. 3d 1076, 1083 (2002). The Committee


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1-09-1944


Notes for the instruction cite three cases as the source for the instruction. See Manson v. Brathwaite,

432 U.S. 98, 114 (1977); People v. Manion, 67 Ill. 2d 564, 571 (1977); People v. Slim, 127 Ill. 2d

302, 308 (1989). All three cases, which predate the 1995 trial here, indicate that the trier of fact

should consider all of the applicable factors when assessing the reliability of an eyewitness

identification of the defendant as the offender.

¶ 56   The trial court listed all of the factors and inserted “or” between the factors when the court

instructed the jury. As our supreme court explained in People v. Herron, 215 Ill. 2d 167, 191 (2005):

               “If the instruction initially directs jurors to consider all the facts and

               circumstances surrounding the identification, but then, through the

               use of the conjunction ‘or,’ directs jurors to consider one of five

               factors regarding the reliability of the identification, then the

               instruction contains an internal inconsistency. It is ambiguous and

               misleading ***.”

¶ 57   Our supreme court in Herron held that the trial court in that case committed plain error when

it instructed the jury on the factors listed in IPI Criminal 3d No. 3.15 and inserted the word "or"

between the factors. See Herron, 215 Ill. 2d at 191. Trial counsel here did not challenge the plain

error the trial court committed when the court gave the instruction with “or” between the factors.

Appellate counsel failed to raise trial counsel's failure to object to the erroneous instruction as

grounds for finding that Cruz received ineffective assistance of counsel at his trial.

¶ 58   The State cites People v. Chatman, 357 Ill. App. 3d 695 (2005), in support of the trial court’s

decision to dismiss the petition here. The postconviction petitioner in Chatman similarly claimed

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1-09-1944


that his trial and appellate counsel provided ineffective assistance because they failed to challenge

use of IPI Criminal 3d No. 3.15 with “or” inserted between the listed factors. The petitioner in

Chatman relied solely on People v. Gonzalez, 326 Ill. App. 3d 629 (2001), as authority for finding

counsel ineffective. The appellate court noted that the decision in Gonzalez came down after the

direct appeal in Chatman. The appellate court held that trial and appellate counsel need not

anticipate changes in the law, and their failure to anticipate Gonzalez did not show ineffective

assistance.

¶ 59   Here, Cruz, unlike the petitioner in Chatman, does not rely on Gonzalez to show that counsel

provided ineffective assistance. Instead he relies on the sources cited in Gonzalez, which show that

the decision in Gonzalez did not change the law. In particular, the Committee Notes and User’s

Guide to the pattern instructions, together with the sample and the supporting case law, all show that

the trier of fact must consider all of the applicable factors. An attorney may provide ineffective

assistance if he fails to read and consider the Committee Notes, sample instructions and supporting

case law when faced with a proposed jury instruction. See Lotero v. People, 203 Ill. App. 3d 160,

163 (1990); United States v. DeCoster, 487 F.2d 1197, 1204 (D.C. Cir. 1973) (counsel has a duty

to research the applicable law). In my opinion, Cruz has adequately alleged facts showing that trial

counsel provided objectively unreasonable assistance by failing to oppose the erroneous instruction,

and appellate counsel provided objectively unreasonable assistance by failing to raise the issue of

trial counsel's ineffective assistance on the direct appeal.

¶ 60   Appellate counsel’s failure to raise on direct appeal the issue of trial counsel’s ineffective

assistance constitutes ineffective assistance of appellate counsel only if raising the issue would have

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1-09-1944


created a reasonable probability that Cruz could have obtained a reversal of his conviction. Here,

the conviction hinged on the identification testimony of a single eyewitness who, for less than a

minute, saw the offender who questioned Douglas. The witness admitted that he could not identify

any of the accomplices who accompanied the offender in the car, and that he did not know Cruz

before the encounter at the gas station. No physical evidence connected Cruz to the murder scene.

Because the State did not present overwhelming evidence of guilt, where a single eyewitness saw

the offender for only a few seconds and did not previously know the offender, I find a reasonable

likelihood that the appellate court would have reversed Cruz's conviction if appellate counsel had

argued that trial counsel provided ineffective assistance when counsel failed to object to the

erroneous instruction on the assessment of identification testimony. See People v. Piatkowski, 225

Ill. 2d 551, 570 (2007).

¶ 61                                        Conclusion

¶ 62   Cruz sufficiently alleged facts showing that he did not act with culpable negligence when he

failed to timely file his postconviction petition. Cruz also presented sufficient evidence to require

an evidentiary hearing on his allegation that he received ineffective assistance of appellate counsel

because appellate counsel failed to argue on direct appeal that Cruz received ineffective assistance

of trial counsel when trial counsel failed to object to an erroneous and prejudicial instruction

concerning the State's identification testimony. I would reverse the dismissal of Cruz’s post-

conviction petition and remand for an evidentiary hearing at the third stage of proceedings on the

petition. Accordingly, I dissent.



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