                         ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                          People v. Green, 2012 IL App (4th) 101034




Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  DONALD L. GREEN, Defendant-Appellant.



District & No.           Fourth District
                         Docket No. 4-10-1034


Argued                   May 15, 2012
Filed                    June 7, 2012


Held                     The dismissal of defendant’s second successive postconviction petition
(Note: This syllabus     alleging his actual innocence of first-degree murder and aggravated
constitutes no part of   criminal sexual assault of his six-month-old daughter was affirmed, since
the opinion of the       defendant never sought leave to file a successive postconviction petition,
court but has been       his petition failed to state a claim of actual innocence, and the “newly
prepared by the          discovered” evidence he relied on did not raise the probability that it was
Reporter of Decisions    “more likely than not that no reasonable juror would have convicted him
for the convenience of   in the light of the new evidence.”
the reader.)


Decision Under           Appeal from the Circuit Court of Sangamon County, No. 88-CF-189; the
Review                   Hon. Peter C. Cavanagh, Judge presiding.



Judgment                 Affirmed.
Counsel on                Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                    and Thomas A. Lilien and Yasemin Eken (argued), both of State Appellate
                          Defender’s Office, of Elgin, for appellant.

                          John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, Robert J.
                          Biderman, and Anastacia R. Brooks (argued), all of State’s Attorneys
                          Appellate Prosecutor’s Office, of counsel), for the People.


Panel                     JUSTICE STEIGMANN delivered the judgment of the court, with
                          opinion.
                          Justices Appleton and Knecht concurred in the judgment and opinion.


                                              OPINION

¶1           Following an April 1989 trial, a jury convicted defendant, Donald L. Green, of (1) first
        degree murder (Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1) and (2) aggravated criminal sexual assault
        (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-14) in connection with the death of his six-month-old
        daughter. Shortly thereafter, the trial court sentenced defendant to 50 years in prison.
¶2           Following a direct appeal and a series of collateral attacks defendant, in November 2010,
        pro se filed a second successive postconviction petition under the Post-Conviction Hearing
        Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)). The trial court later dismissed that
        second successive petition as “frivolous and patently without merit.”
¶3           Defendant appeals, arguing that the trial court erred by dismissing his second successive
        postconviction petition because he raised a claim of (1) actual innocence based upon newly
        discovered evidence and (2) cause and prejudice based upon a Brady violation (Brady v.
        Maryland, 373 U.S. 83 (1963)). We disagree and affirm.

¶4                                       I. BACKGROUND
¶5          In March 1988, the State charged defendant with four counts of first degree murder,
        aggravated battery of a child, and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch.
        38, ¶¶ 9-1, 12-4.3(a), 12-14) in connection with the death of his six-month-old daughter,
        Lynn Allen.

¶6                A. Defendant’s Trial, Conviction, Sentence, and Direct Appeal
¶7          The following is a summary of events based upon the evidence presented at defendant’s
        April 1989 jury trial.
¶8          On February 14, 1988, defendant was left to watch Lynn when the baby’s mother,
        Marilyn Allen, left the apartment they shared to run errands. Sometime later, defendant ran
        across the hallway to Sharon Floyd’s apartment, carrying Lynn, who was limp, unconscious,

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       and not breathing. Defendant told Floyd that Lynn had been playing on the floor when she
       fell and bumped her head. Floyd attempted to revive Lynn, while defendant called 9-1-1.
¶9          When Lynn arrived at the hospital, she was comatose and not breathing. Lynn had bruises
       along her jaw, below her neck, and over the left side of her chest. Dr. Nancy B. Pollard, the
       attending physician, testified that she also noticed blood and a small tear at the entrance of
       Lynn’s vagina. Indeed, Lynn had fresh blood in her diaper, swelling around the perineum,
       and a vaginal laceration. Despite attempts to save her, Lynn died the next day.
¶ 10        The focus of defendant’s trial was to determine who and what caused Lynn’s death.
       Several medical experts testified as to the probable cause of Lynn’s injuries. Defendant
       provided numerous, conflicting explanations. As previously explained, defendant told Floyd
       that he and the baby were playing on the floor and that the baby had fallen over and hit her
       head. He told a nurse, however, that he attempted to wake Lynn and found her gasping for
       air, shaking, lethargic, with “white stuff” coming out of her mouth. The next day, defendant
       told the same nurse that he was carrying Lynn to the bathroom when she hit her head against
       the bathroom door and the bathroom mirror. Defendant also told the nurse that when he was
       carrying Lynn back to the bathroom, he tripped over a toy, and that she flew out of his arms
       onto the bed. Defendant told police investigators that he found blood in Lynn’s diaper and
       that he shook the child. Defendant later told Terry Buchanan, a fellow inmate in the
       Sangamon County jail, that he had molested and killed Lynn.
¶ 11        Buchanan testified for the State that while he and defendant were housed together at the
       county jail, he heard defendant talking in his sleep and saying, “I didn’t mean to do it.”
       Buchanan later asked defendant about the incident and, in that conversation, defendant
       admitted to Buchanan that he molested and killed his daughter. Buchanan acknowledged that
       he was facing charges of armed robbery, residential burglary, unlawful restraint, and theft.
       He denied, however, having received any promises or bargains in exchange for his testimony.
¶ 12        On this evidence, the jury convicted defendant of (1) first degree murder (Ill. Rev. Stat.
       1987, ch. 38, ¶ 9-1) and (2) aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38,
       ¶ 12-14) in connection with Lynn’s death. Shortly thereafter, the trial court sentenced
       defendant to 50 years in prison.
¶ 13        Defendant appealed, and in October 1990, this court affirmed his convictions and
       sentence. People v. Green, No. 4-89-0545 (Oct. 11, 1990) (unpublished order under Supreme
       Court Rule 23).

¶ 14                           B. Defendant’s Postconviction Petitions
¶ 15       In April 1991, defendant pro se filed his first petition under the Act (Ill. Rev. Stat. 1987,
       ch. 38, ¶¶ 122-1 to 122-8). The trial court thereafter appointed counsel to amend defendant’s
       petition. Defendant’s amended petition included, in part, the allegation that (1) “upon
       information and belief, Buchanan was planted in [defendant’s] jail cell by law enforcement
       authorities for the purpose of extracting statements” and (2) his trial counsel was ineffective
       for failing to investigate that fact. In July 1994, the court dismissed defendant’s petition,
       finding that his claim related to Buchanan was “totally conclusory,” adding that defendant
       failed to support his allegations with an affidavit. Defendant appealed, and in May 1996, this

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       court affirmed. People v. Green, No. 4-94-0674 (May 30, 1996) (unpublished order under
       Supreme Court Rule 23).
¶ 16        In April 1997, defendant pro se filed a successive postconviction petition, alleging that
       the State suborned perjury by allowing Buchanan to testify falsely at defendant’s trial.
       Defendant attached to his petition the transcript from Buchanan’s May 1989 guilty plea
       hearing, which showed that Buchanan had negotiated away several charges and agreed to a
       sentence of 3 years of probation followed by 90 days in jail. The trial court later denied
       defendant’s petition for lack of jurisdiction. Defendant appealed, and in July 1998, this court
       reversed and remanded for further proceedings. People v. Green, No. 4-97-1054 (July 15,
       1998) (unpublished order under Supreme Court Rule 23).
¶ 17        On remand, defendant pro se filed an amended successive postconviction petition. The
       trial court thereafter appointed attorney Jeff Page to represent defendant and Page retained
       private investigator Bill Clutter to assist him. In September 2003, Page filed an amended
       successive petition on defendant’s behalf, alleging that the State misled the jury concerning
       its dealings with Buchanan. The court later dismissed defendant’s successive petition, finding
       that the claims in defendant’s petition were “conclusory in nature and not supported by the
       facts.” Defendant appealed, and in October 2005, this court affirmed, concluding that
       defendant failed to (1) argue the cause and prejudice standard for filing a successive petition
       and (2) make a claim of actual innocence to excuse his failure to raise his claims in his earlier
       petitions. People v. Green, No. 4-04-0125 (Oct. 20, 2005) (unpublished order under Supreme
       Court Rule 23).
¶ 18        In November 2010, defendant pro se filed a second successive postconviction petition,
       asserting that he was actually innocent based upon newly discovered evidence and that the
       State violated his right to due process of law when it failed to comply with Brady. As part
       of his claim, defendant explained that he received, as part of a Freedom of Information Act
       (FOIA) request, a February 2003 memorandum describing an interview that Clutter
       conducted with Buchanan. That memorandum included the following excerpt:
                “Buchanan stated that he and [defendant] shared the same jail cell in the Sangamon
            County [j]ail. [Defendant] was talking in his sleep, stating he didn’t mean to do it. ‘When
            he woke up, he told me everything,’ said Buchanan.
                Before [Buchanan] testified, he stated that he [did] recall having a discussion with
            prosecutors about getting a break on his case for testifying against [defendant]. ‘After the
            fact, they did reduce my sentence,’ said Buchanan. He said he remembers [Assistant
            State’s Attorney] Carol Walker telling him this, but most of his discussions concerning
            the case were with State’s Attorney Donald Cadigan, he said.
                However, at the time he testified, he said he did not expect to get a break on his case.
            ‘I wasn’t really expecting it,’ said Buchanan. He stated that his attorney told him he
            would likely receive probation anyway, since it was his first offense.”
       Defendant asserted that this memorandum from Clutter showed that Buchanan testified
       falsely at defendant’s trial when he testified that he had not made any deals or received any
       promises from the State in exchange for his testimony. Defendant further alleged that the
       State was in possession of this information at the time of trial but did not turn it over to his

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       trial counsel.
¶ 19        In November 2010, the trial court dismissed defendant’s second successive petition as
       “frivolous and patently without merit.” As part of its judgment, the court entered a written
       order, which stated, in pertinent part, as follows:
                “A review of the court file indicates that on December 4, 2002, [the trial court]
            appointed Clutter to interview Buchanan concerning statements Buchanan made at ***
            [d]efendant’s trial. Clutter prepared a Memorandum of Interview, dated February 26,
            2003, that was provided to [d]efendant’s post[ ]conviction counsel, Jeff Page. On
            September 15, 2003, Page filed a Second Amended Second Petition for Post-Conviction
            Relief, setting forth allegations regarding Buchanan’s testimony. These same allegations
            are the substance of [d]efendant’s Third Petition for Post-Conviction Relief. They were
            discovered prior to the February 26, 2003[,] Clutter Memorandum of Interview and were
            discovered prior to Page filing his September 15, 2003[,] Second Amended Second
            Petition for Post-Conviction Relief. Therefore, they cannot be deemed ‘new evidence’
            to support [d]efendant’s claim of actual innocence.”
¶ 20        This appeal followed.

¶ 21                                       II. ANALYSIS
¶ 22       Defendant argues that the trial court erred by dismissing his second successive
       postconviction petition. Specifically, defendant contends that the court erred by dismissing
       his petition because he raised a claim of (1) actual innocence based upon newly discovered
       evidence and (2) cause and prejudice based upon a Brady violation. We address defendant’s
       contentions in turn.
¶ 23       We begin our analysis by pointing out that we have explicitly not included, in outlining
       defendant’s arguments, defendant’s assertion that he stated the “gist” of a claim of (1) actual
       innocence and (2) cause and prejudice. We have done so because that first-stage standard has
       been flatly rejected by the supreme court in the context of a successive petition. See People
       v. Edwards, 2012 IL 111711, ¶ 27, 2012 WL 13564192 (“there is simply no basis in [section
       122-1(f)] for applying a first-stage analysis to a successive petition” (emphasis in original)).

¶ 24                        A. Defendant’s Failure To File a Motion for
                                Leave To File a Successive Petition
¶ 25       Before proceeding to the merits of defendant’s appeal, we note that our review of the
       record shows that defendant failed to seek leave to file his second successive postconviction
       petition as required by section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2010)). In
       People v. DeBerry, 372 Ill. App. 3d 1056, 1060, 868 N.E.2d 382, 384 (2007), this court held
       that the trial court need not–and should not–concern itself with the merits of a successive
       postconviction petition when the defendant has not first sought leave to file a successive
       petition under section 122-1(f) of the Act. Three years after our DeBerry decision, the
       supreme court explained that a defendant need not first file a formal motion seeking leave
       to file a successive petition if the trial court is satisfied that the defendant has submitted


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       sufficient documentation to allow the court to make a determination under section 122-1(f),
       as follows:
           “[A] successive postconviction petition is not considered ‘filed’ for purposes of section
           122-1(f), and further proceedings will not follow, until leave is granted, a determination
           dependent upon a defendant’s satisfaction of the cause-and-prejudice test. There is also
           a commonsense acknowledgment that a defendant who submits a successive
           postconviction petition wants to ‘file’ it and institute proceedings thereon. However, it
           is still defendant’s burden to obtain leave, and he must submit enough in the way of
           documentation to allow a circuit court to make that determination. Certainly, no separate
           motion seeking leave is mandated by section 122-1(f) in its current form, nor, as we have
           demonstrated, is an explicit request even required if the circuit court sees fit to consider
           the matter and rule of its own accord. We find that circuit courts have that authority
           under the statute.” (Emphasis in original.) People v. Tidwell, 236 Ill. 2d 150, 161, 923
           N.E.2d 728, 734-35 (2010).
       Accordingly, when, as here, the trial court is satisfied that a defendant has submitted
       sufficient documentation to allow the court to make a determination under section 122-1(f),
       the trial court may do so and choose to address the defendant’s successive petition on the
       merits. When, however, the trial court is not satisfied that the defendant has submitted
       sufficient documentation in that regard, the court can–and should–dismiss the defendant’s
       successive petition without concerning itself with the merits of the defendant’s claims.
¶ 26       Having concluded that our review of the trial court’s dismissal of defendant’s successive
       postconviction petition is not limited, given that the trial court in this case saw fit to
       “consider the matter and rule of its own accord” (Tidwell, 236 Ill. 2d at 161, 925 N.E.2d at
       735), we begin our analysis with a review of the Act (725 ILCS 5/122-1 to 122-7 (West
       2010)) and the standard of review.

¶ 27             B. The Post-Conviction Hearing Act and the Standard of Review
¶ 28        The Act (725 ILCS 5/122-1 to 122-7 (West 2010)) “ ‘provides a procedural mechanism
       in which a convicted criminal can assert “that in the proceedings which resulted in his ***
       conviction there was a substantial denial of his *** rights under the Constitution of the
       United States or of the State of Illinois or both.” ’ ” People v. Cathey, 2012 IL 111746, ¶ 17,
       2012 WL 966178 (quoting People v. Harris, 224 Ill. 2d 115, 124, 862 N.E.2d 960, 966
       (2007), quoting 725 ILCS 5/122-1(a) (West 2002)). Under the plain language of the Act, a
       petitioner may file only one petition without first seeking leave of court to file a subsequent
       petition. 725 ILCS 5/122-1(f) (West 2010). Thus, “although exceptions may be made in
       certain circumstances, the Act contemplates the filing of only one post[ ]conviction petition.”
       People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 619 (2002). In seeking leave
       of court, a petitioner must demonstrate “cause for his *** failure to bring the claim in his ***
       initial post[ ]conviction proceedings and prejudice result[ing] from that failure.” 725 ILCS
       5/122-1(f) (West 2010). The Act goes on to elaborate on this “cause-and-prejudice” test, as
       follows:
            “(1) a prisoner shows cause by identifying an objective factor that impeded his ***

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           ability to raise a specific claim during his *** initial post[ ]conviction proceedings; and
           (2) a prisoner shows prejudice by demonstrating that the claim not raised during his ***
           initial post[ ]conviction proceedings so infected the trial that the resulting conviction or
           sentence violated due process.” 725 ILCS 5/122-1(f)(1), (2) (West 2010).
¶ 29       When, however, a petitioner sets forth a claim of actual innocence in a successive
       postconviction petition–that is, he can demonstrate a “fundamental miscarriage of justice”–he
       is “excused” from showing cause and prejudice. (Internal quotation marks omitted.) People
       v. Ortiz, 235 Ill. 2d 319, 329-30, 919 N.E.2d 941, 947-48 (2009).
¶ 30       The trial court in this case dismissed defendant’s second successive postconviction
       petition without “finding facts” and, thus, we review its judgment de novo. See People v.
       Guerrero, 2012 IL 112020, ¶ 13, 963 N.E.2d 909 (reviewing the denial of a successive
       postconviction following a hearing for “ ‘[m]anifest error,’ ” noting that absent fact finding,
       the appropriate review is de novo); People v. Anderson, 401 Ill. App. 3d 134, 138, 929
       N.E.2d 1206, 1209-10 (2010) (modified upon petition for rehearing). In undertaking our
       review of the court’s judgment, we may affirm on “any basis supported by the record if the
       judgment is correct.” Anderson, 401 Ill. App. 3d at 138, 929 N.E.2d at 1210.

¶ 31                         C. Defendant’s Claim of Actual Innocence
¶ 32        Defendant first contends that he stated a claim of “actual innocence” because Clutter’s
       memorandum revealed “newly discovered” evidence that could have been used to impeach
       Buchanan. Specifically, defendant asserts that the trial court erred by dismissing his petition
       because the contents of Clutter’s memorandum showed that Buchanan lied under oath, which
       was “critical” to the jury’s credibility determination. We disagree.
¶ 33        Initially, we note that Illinois has few cases regarding the standards for dismissing and
       addressing successive postconviction petitions based upon claims of actual innocence. We
       find particularly instructive, however, Justice Murphy’s scholarly analysis in Anderson, 401
       Ill. App. 3d at 138-42, 929 N.E.2d at 1209-12.
¶ 34        In Anderson, the defendant, George Anderson, was found guilty following a November
       1994 bench trial of first degree murder and two counts of attempt (first degree murder) for
       his involvement in a shootout between rival gangs. Id. at 136, 929 N.E.2d at 1208. Anderson
       appealed, and the appellate court affirmed. Id. In November 2006, following a series of
       collateral attacks, Anderson filed a fourth successive postconviction petition, in which he
       alleged, among other things, that the State (1) committed prosecutorial misconduct by using
       perjured testimony at trial and (2) improperly withheld exculpatory evidence in violation of
       Brady. Id. at 137, 929 N.E.2d at 1208-09. Anderson attached to his petition an affidavit from
       a potential witness, Jerome Johnson, who claimed that he was lied to by Anderson’s
       attorneys so that he would not testify at Anderson’s trial. Id., 929 N.E.2d at 1209. Johnson
       averred that Anderson did not assist in the shooting but merely drove Johnson to pick up his
       car after the shootings. Id. The trial court later denied Anderson’s petition. Id. at 138, 929
       N.E.2d at 1209.
¶ 35        Anderson appealed, arguing that the trial court erred by dismissing his petition because
       Johnson’s claims were “newly discovered” evidence sufficient to support his claim of actual

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       innocence. Id., 929 N.E.2d at 1209-10. In rejecting Anderson’s contention in this regard, the
       court–citing its previous holding in People v. Collier, 387 Ill. App. 3d 630, 636, 900 N.E.2d
       396, 403 (2008), and the supreme court’s decision in Ortiz, 235 Ill. 2d at 330, 919 N.E.2d
       at 948–explained that for purposes of claims of actual innocence, “newly discovered”
       evidence is evidence that (1) was not available at the defendant’s trial, (2) the defendant
       could not have discovered sooner through due diligence, and (3) is material and
       noncumulative. Anderson, 401 Ill. App. 3d at 140, 929 N.E.2d at 1211-12. But, perhaps most
       important, such evidence “ ‘must be of such conclusive character that it would probably
       change the result on retrial.’ ” Id. at 141, 929 N.E.2d at 1212 (quoting Collier, 387 Ill. App.
       3d at 636, 900 N.E.2d at 403). Applying this standard to the facts of Anderson’s case, Justice
       Murphy wrote, as follows:
            “[U]nder the Act and Collier and Ortiz, for a successive petition to survive dismissal, the
            defendant must present evidence that is material to the issue and not cumulative of the
            evidence presented at trial. [Anderson] was convicted under an accountability theory for
            the actions of Johnson. Johnson’s affidavit does not vindicate [Anderson]. At best, his
            testimony could have been used in considering the weight of [Anderson’s] custodial
            statement. Johnson’s statement is cumulative of [Anderson’s] testimony at trial–that
            [Anderson] drove him to retrieve his vehicle and that they did not plan on a shooting.
            Perhaps Johnson’s statement would provide a basis to argue the existence of a reasonable
            doubt, but as the State highlights, that is not the standard as addressed in Collier and
            affirmed in Ortiz. The trial court and this court have repeatedly affirmed [Anderson’s]
            conviction and accepted the evidence the State presented at trial. Johnson’s statements
            cannot overcome that evidence to exonerate [Anderson]. We find the allegedly newly
            discovered evidence fails to establish actual innocence and agree with the State that the
            trial court properly dismissed [Anderson’s] petition.” Anderson, 401 Ill. App. 3d at 141-
            42, 929 N.E.2d at 1212.
¶ 36        Like Anderson’s petition, defendant’s petition in this case failed to state a claim of actual
       innocence. See Edwards, 2012 IL 111711, ¶ 33, 2012 WL 1356492 (“documentation must
       set forth a colorable claim of actual innocence, i.e., they must raise the probability that it is
       more likely than not that no reasonable juror would have convicted him in the light of the
       new evidence”). Here, the jury convicted defendant of sexually assaulting and murdering
       Lynn. No part of Clutter’s February 26, 2003, memorandum of interview in any way
       exonerates defendant. At best, the information contained in Clutter’s memorandum could be
       used to attempt to impeach Buchanan’s credibility. In other words, the best that can be said
       is that the information included in Clutter’s memorandum could be used to argue to the jury
       that Buchanan lied in exchange for concessions from the State about what defendant told him
       when they shared a jail cell–an argument the jury would, of course, be free to reject. Perhaps,
       like Johnson’s statement in Anderson, the information contained in Clutter’s memorandum
       would provide a basis to assert a reasonable doubt argument, but that is not the standard; the
       standard is actual innocence. Compare Ortiz, 235 Ill. 2d at 337, 919 N.E.2d at 952
       (concluding that the defendant presented newly discovered evidence that directly
       contradicted the recanted testimony of two of the State’s witnesses, which constituted a claim
       of actual innocence because no physical evidence was presented to link the defendant to the

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       murder). The alleged newly discovered evidence in this case would merely serve to
       contradict–if accepted by the jury–Buchanan’s own testimony through impeachment. It
       would not contradict the State’s other evidence of defendant’s guilt–namely, that defendant
       (1) was alone with Lynn when her injuries occurred, (2) had several inconsistent stories about
       what happened to Lynn, (3) inflicted Lynn’s injuries, which included considerable bruising
       and lacerations consistent with sexual assault, and (4) told police that he had shaken Lynn.
       Our review of the information contained in Clutter’s memorandum shows that it cannot
       overcome this other evidence of defendant’s guilt to exonerate defendant. Or, in the words
       of the supreme court, defendant’s “newly discovered” evidence does not raise the probability
       that it is “more likely than not that no reasonable juror would have convicted him in the light
       of the new evidence.” Edwards, 2012 IL 111711, ¶ 33, 2012 WL 1356492.

¶ 37                           D. Defendant’s Brady-Violation Claim
¶ 38       Defendant next contends that the trial court erred by dismissing his second successive
       postconviction petition because he raised a claim of “cause and prejudice” under section 122-
       1(f) of the Act based upon a Brady violation. We disagree.
¶ 39       “Under Brady, the State must disclose evidence favorable to the accused and ‘ “material
       to guilt or to punishment.” ’ ” People v. Jarrett, 399 Ill. App. 3d 715, 727, 927 N.E.2d 754,
       766 (2010) (quoting People v. Harris, 206 Ill. 2d 293, 311, 794 N.E.2d 181, 193 (2002),
       quoting Brady, 373 U.S. at 87). To establish a Brady violation, a defendant must show, in
       pertinent part, that (1) the undisclosed evidence is favorable to the accused because it was
       impeaching; (2) the evidence was suppressed by the State; and (3) the accused was
       prejudiced because the evidence is material to guilt. Jarrett, 399 Ill. App. 3d at 727-28, 927
       N.E.2d at 766. “Evidence is material if there is a reasonable probability that the result of the
       proceeding would have been different had the evidence been disclosed.” Id. at 728, 927
       N.E.2d at 766.
¶ 40       Here, defendant asserts that the State’s alleged failure to disclose its plea negotiations
       with Buchanan prejudiced him because that evidence was material to his guilt. Defendant’s
       assertion in this regard, however, is not the type of claim contemplated by section 122-1(f)
       of the Act. As previously stated, the Act contemplates the filing of only one postconviction
       petition and allows a successive petition as an exception to that rule when new evidence
       comes to light, giving rise to a new claim. See 725 ILCS 5/122-1(f) (West 2010) (“Leave of
       court may be granted only if a petitioner demonstrates cause for his *** failure to bring the
       claim in his *** initial post[ ]conviction proceedings.” (Emphasis added.)). Defendant’s
       claim that the State failed to disclose the fact that it had engaged in plea negotiations with
       Buchanan is not new. Clutter’s memorandum that defendant recently uncovered pursuant to
       a FOIA request may arguably be additional evidence to support that claim, but that does not
       make that claim new. Defendant has asserted, in one form or another, in each of his previous
       collateral attacks, the claim that the State failed to disclose its negotiations with Buchanan.
       Moreover, even if defendant’s claim were new, defendant could not meet the Brady
       materiality test because, as we explained in rejecting defendant’s claim of actual innocence,
       no reasonable probability exists that the result of his trial would have been different. At trial,


                                                  -9-
       defense counsel vigorously challenged Buchanan’s veracity–indeed, counsel argued that
       Buchanan hoped to receive favorable consideration from the State in exchange for his
       testimony. Of course, Buchanan testified that he had no such an expectation. Thus, even if
       defendant had attempted to impeach Buchanan with the additional evidence that he was
       receiving a “break” in exchange for his testimony–which we note does not necessarily mean
       that the jury would have rejected his testimony–the additional evidence of defendant’s guilt
       demonstrates that the result of his trial would not have been different.

¶ 41                                   III. CONCLUSION
¶ 42      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 43      Affirmed.




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