                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Harper, 2013 IL App (1st) 102181




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



District & No.             First District, First Division
                           Docket No. 1-10-2181


Filed                      March 29, 2013


Held                       The dismissal of defendant’s third successive postconviction petition at
(Note: This syllabus       the second stage of the proceedings on the ground that defendant failed
constitutes no part of     to satisfy the “cause and prejudice” test for purposes of establishing an
the opinion of the court   exception to the rule against successive postconviction petitions was
but has been prepared      reversed and the cause was remanded for a third-stage evidentiary
by the Reporter of         hearing, since the “fundamental miscarriage of justice” exception applied
Decisions for the          to defendant’s petition making a colorable claim of innocence, and a
convenience of the         review of the record showed defendant presented affidavits and testimony
reader.)
                           constituting newly discovered evidence that made a substantial showing
                           of actual innocence that warranted a third-stage hearing.


Decision Under             Appeal from the Circuit Court of Cook County, No. 88-CR-8605; the
Review                     Hon. Kenneth J. Wadas, Judge, presiding.



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

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Tasha
                            Marie Kelly, and Judy L. DeAngelis, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE CUNNINGHAM delivered the judgment of the court, with
                            opinion.
                            Justices Rochford and Delort concurred in the judgment and opinion.


                                              OPINION

¶1          This appeal arises from the July 1, 2010 order entered by the circuit court of Cook
        County, which dismissed, at the second stage of the proceedings, a third successive
        postconviction petition filed by defendant-appellant Michael Harper. On appeal, the
        defendant argues that his third successive postconviction petition should advance for a third-
        stage evidentiary hearing, because he made a substantial showing that he was actually
        innocent of the crimes for which he was convicted. For the following reasons, we reverse the
        judgment of the circuit court of Cook County and remand the cause for a third-stage
        evidentiary hearing.

¶2                                           BACKGROUND
¶3           In May 1988, an arson occurred at a building located on the 400 block of East 63rd Street
        in Chicago, Illinois. The building housed several businesses, including a drug store,
        sandwich shop, discount store, barbershop, video store and the King Chef restaurant. Two
        victims, Pismai Panichkarn and Kiert Phophariat, died of smoke inhalation during the fire.
        Subsequently, the defendant was charged with first-degree murder, arson, and aggravated
        arson.
¶4           On April 23, 1990, a jury convicted the defendant of arson and first-degree murder. On
        direct appeal, this court reversed the defendant’s conviction and remanded for a new trial,
        holding that the cumulative impact of many trial errors denied him a fair trial. People v.
        Brown, 253 Ill. App. 3d 165, 624 N.E.2d 1378 (1993).
¶5           In July 1994, on retrial, the following evidence was presented to the jury.1 The State read
        a transcript of the testimony of Sid Malone (Malone) from the defendant’s first trial. Malone


                1
                Our recitation of the evidence presented at the 1994 retrial of the defendant is primarily
        reproduced from this court’s April 26, 1999 opinion affirming the defendant’s conviction and
        sentence on retrial. See People v. Harper, 279 Ill. App. 3d 801, 665 N.E.2d 474 (1996).

                                                   -2-
       did not testify in the defendant’s second trial. In the transcript that was read to the jury in the
       second trial, Malone testified that on May 28, 1988, at about 5 a.m., he saw a van with
       license plate number GAS 403 in front of a video store in the 400 block of 63rd Street. He
       observed two people, one of whom carried a gasoline can, walk in front of the van toward
       the video store. A few minutes later, Malone saw smoke emanate from the video store.
       Malone was unable to identify the individuals he observed.
¶6         Officer David Brown (Officer Brown) testified in the defendant’s second trial that at 5
       a.m. on May 28, 1988, he saw smoke coming from the video store. He exited his car and
       began knocking on storefront windows. At this point, the defendant approached him and
       asked whether the “Chinese or Oriental people” got out. The defendant identified himself as
       the owner of the video store.
¶7         Detective Joseph Campbell (Detective Campbell), an expert in the determination of the
       causes and origins of fires, testified that the fire was intentionally set and that it originated
       in the rear of the video store. Detective Campbell recovered debris samples from the rear of
       the video store. In executing a search warrant for the defendant’s Ford Bronco, which bore
       license plate number GAS 403, Detective Campbell recovered X-rated videotapes. He was
       alerted by a citizen as to a gasoline can near the scene of the fire, which Detective Campbell
       photographed. At trial, Detective Campbell identified the photograph as being a photograph
       of the gasoline can.
¶8         Detective David Kutz (Detective Kutz) testified at the defendant’s second trial that he
       interviewed the defendant at the police station, during which the defendant confessed that
       he intended to burn videotapes to collect insurance proceeds. The defendant also informed
       Detective Kutz that he was the only person with keys to the video store and the Ford Bronco.
¶9         Marshall Levin (Levin) testified at the defendant’s second trial that he leased the retail
       space of the video store to the defendant. He stated that, at the time of the fire, he did not
       have any fire insurance on the building in which the video store was housed.
¶ 10       William Tyrell (Tyrell) testified at the defendant’s second trial, as an expert in chemistry,
       that the debris samples recovered from the fire scene testified positive for the residue
       characteristic of gasoline.
¶ 11       Assistant State’s Attorney Joel Whitehouse (ASA Whitehouse) testified at the
       defendant’s second trial that in May 1988, he took a court-reported statement from the
       defendant. That statement was published to the jury at the second trial. He testified that he
       was present during the execution of the search warrant on a Ford Bronco with license plate
       number GAS 403.
¶ 12       In the defendant’s court-reported statement, which the jury heard during the second trial,
       the defendant stated that the video store was owned by his mother, Roberta Holmes
       (Roberta). The statement went on to detail the following facts. At 3 a.m. on May 28, 1988,
       he drove to the video store and informed codefendant Arthur Brown (codefendant Brown)
       that he wanted to burn the videotapes because the business was no longer making any money
       and he wanted to collect the insurance proceeds. The defendant’s uncle, Albert Harper
       (Albert), and his cousin, Jerome Ford (Jerome), were also present. Codefendant Brown
       agreed to assist the defendant in exchange for some X-rated videotapes, which the defendant

                                                  -3-
       put in the Ford Bronco. The defendant then instructed Jerome to get some gasoline, after
       which Jerome left with Albert while the defendant and codefendant Brown stayed at the
       video store. Codefendant Brown then bent the burglar bars at the back of the store.
       Codefendant Brown and the defendant discussed using a mattress from the video store and
       putting it against the videotapes so it “would flame quicker.” The reason he was burning the
       videotapes was to collect insurance proceeds. He knew that two “Oriental persons” had a
       restaurant business near his video store, that they spent nights in the restaurant from time to
       time, and that he knew their truck was in the neighborhood on the night of the fire. In his
       statement, the defendant stated that he had been treated fairly by the police and by ASA
       Whitehouse.
¶ 13        Firefighter Kevin Brannigan (Firefighter Brannigan) testified in the defendant’s second
       trial that the front door of the video store was locked when he arrived at the scene. He cut the
       lock off. He also discovered the two deceased victims in the restaurant next to the video
       store. Commander Frances Burns (Commander Burns) testified in the defendant’s second
       trial that the fire originated in the video store and that a backdraft explosion had occurred
       there.
¶ 14        During the defendant’s second trial, the State also read the transcript of the testimony of
       Cecil Hingston (Hingston) from the defendant’s first trial. Hingston was an unavailable
       witness at the defendant’s second trial. In the transcript from the first trial, Hingston testified
       that on the morning of May 28, 1988, he was a manager and attendant at a gasoline station
       near the scene of the fire. At approximately 5 a.m., a man came into the station and
       purchased gasoline, which was put into a gasoline can. The man and a second man, who was
       urging the first man to hurry, both left in a white truck. Hingston believed that the white
       truck may have been a Ford Bronco.
¶ 15        The defense presented a stipulation that license plate number GAS 403 was registered
       with the Secretary of State in the name of Geronia Hopper.
¶ 16        During closing argument, defense counsel argued, inter alia, that the defendant’s
       confession was a product of police coercion, and in addressing the question of motive, there
       was no evidence that any insurance policy existed. Following jury deliberations, the
       defendant was again convicted of arson and two counts of first-degree murder, and thereafter
       sentenced to natural life imprisonment without parole. On April 26, 1996, this court affirmed
       the defendant’s second conviction and sentence. People v. Harper, 279 Ill. App. 3d 801, 665
       N.E.2d 474 (1996). On October 2, 1996, leave to appeal was denied by our supreme court.
       People v. Harper, 168 Ill. 2d 608, 671 N.E.2d 737 (1996) (table).
¶ 17        On March 31, 1997, the defendant, by counsel, filed a petition for postconviction relief
       in which he raised issues that had primarily been raised in the second direct appeal, but
       included a new argument that he was actually innocent of the crimes based upon the
       confession of a “James Dell.” However, no affidavits or supporting documentation were
       attached to the petition.
¶ 18        On May 16, 1997, the defendant filed a pro se successive petition for postconviction
       relief, in which he alleged that another witness, Willie Freeman, would prove his actual
       innocence. He further alleged various instances of ineffective assistance of counsel, due


                                                  -4-
       process violations, and improper remarks by the prosecutor during closing argument.
¶ 19        On June 2, 1997, the circuit court summarily dismissed the March 31, 1997
       postconviction petition, which had been filed by defense counsel. On August 11, 1997, the
       circuit court summarily dismissed the defendant’s May 16, 1997 pro se postconviction
       petition, finding, inter alia, that it was a successive petition alleging claims which could have
       been raised in the initial petition, and that the bare allegation of actual innocence did not
       merit further consideration by the court. In separate orders dated December 29, 1998 and
       March 30, 1999, this court affirmed the summary dismissal of the defendant’s two
       postconviction petitions. People v. Harper, No. 1-97-3735 (1998) (unpublished order under
       Supreme Court Rule 23); People v. Harper, No. 1-97-3023 (1999) (unpublished order under
       Supreme Court Rule 23).
¶ 20        On January 3, 2000, the defendant filed a petition for writ of habeas corpus (habeas
       corpus petition) in the United States District Court for the North District of Illinois. The
       habeas corpus petition alleged, inter alia, that the trial court committed constitutional errors
       by refusing to instruct the jury on involuntary manslaughter and by admitting into evidence
       at trial a photograph of the gasoline can. On April 18, 2000, the District Court, finding no
       constitutional violations, denied the defendant’s habeas corpus petition. United States ex rel.
       Harper v. Welborn, No. 00 CR 0061, 2000 U.S. Dist. LEXIS 6940 (N.D. Ill. Apr. 18, 2000).
¶ 21        On July 25, 2001, the defendant requested postconviction relief in the form of a pro se
       motion to vacate unconstitutional and void judgment in the circuit court (motion to vacate),
       arguing that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), his sentence was in
       error. On August 3, 2001, the circuit court dismissed the motion to vacate, which was
       affirmed on appeal by this court on April 22, 2002. See People v. Harper, No. 1-01-3468
       (2002) (unpublished order under Supreme Court Rule 23).
¶ 22        On January 24, 2003, the defendant filed the instant successive postconviction petition,
       claiming actual innocence based upon a December 3, 2002 affidavit signed by Hingston, the
       gasoline station manager and attendant. As noted, Hingston testified at the defendant’s first
       trial and the transcript of that testimony was read at the defendant’s second trial. Thereafter,
       on April 18, 2003, the circuit court docketed the defendant’s successive postconviction
       petition and appointed counsel. In its ruling, the court noted that the defendant “will get his
       day in court, even though he has been through the appellate court two to three times, the
       supreme court two to three times, and the federal district court a couple [of] times.” On May
       2, 2003, the circuit court granted the State additional time to file a motion to dismiss the
       defendant’s petition.
¶ 23        On July 28, 2009, defense counsel, who was appointed to represent the defendant in
       advancing his postconviction petition, filed an amended petition for postconviction relief
       (amended postconviction petition). The amended postconviction petition asserted a claim of
       actual innocence based upon newly discovered evidence that a James Bell (Bell) had
       confessed to setting the fire for which the defendant had been convicted. The petition also
       alleged that in an affidavit executed on December 3, 2002, Hingston had recanted his trial
       testimony. Attached to the amended postconviction petition were: (1) a May 29, 2009 signed
       affidavit by Bell; (2) a copy of the transcripts of Bell’s testimony at codefendant Brown’s


                                                 -5-
       postconviction proceedings; (3) a December 3, 2002 signed affidavit by Hingston; and (4)
       a July 23, 2009 signed affidavit by the defendant.
¶ 24       The highlights of Bell’s May 29, 2009 affidavit stated that he did not know the
       defendant; that he believed codefendant Brown owned the video store; that codefendant
       Brown owed Bell over $1,500 in drug money; and that Bell set fire to the video store out of
       anger when codefendant Brown did not pay his debt to Bell. Transcripts of codefendant
       Brown’s postconviction proceedings revealed that Bell testified that he was responsible for
       setting the fire; that he bent the burglar bars on the rear gate of the video store and kicked in
       the back door; that he spread gasoline on a mattress inside the video store; that he exited
       through the back door of the store; and that he dropped the gasoline can and left in his car.
       Bell further testified that he did not come forward with the information sooner because of
       the lingering effects of drugs and his fear of receiving the death penalty; that he had accepted
       Christianity while serving a sentence in prison on an unrelated matter; and that, as a result
       of his faith, he no longer feared prosecution for the crimes.
¶ 25       Hingston attested in his December 3, 2002 affidavit that his trial testimony was a lie; that
       he had not sold gasoline to anyone in a truck or a van on the morning of the arson and that
       he told the police this fact; that police officers informed him about two individuals who had
       confessed to purchasing gasoline from Hingston on that morning; that police officers
       threatened him with a fine and negative report to Hingston’s boss if Hingston did not identify
       the individuals they wanted him to identify; and that Hingston cooperated with the police’s
       request to identify certain individuals from a physical lineup. In his July 23, 2009 affidavit,
       the defendant attested that he co-owned the video store with his mother, Roberta; that he
       confessed to setting the fire because police officers threatened to charge his mother with
       murder; that he did not know Bell prior to the fire; that in 1997, he heard a “rumor” about
       “James Dell” at Statesville Correctional Center but that the defendant never personally talked
       with anyone by that name; that he was not housed in the same building as a James Dell or
       Bell; that the defendant was transferred to Tamms Correctional Center in March 1998; that
       he did not set fire to the video store nor had he asked anyone to buy gasoline to start a fire;
       and that neither he nor his mother collected any insurance money as a result of the fire.
¶ 26       On March 18, 2010, over seven years after the defendant filed his postconviction petition
       which is the subject of this appeal, the State filed a motion to dismiss, arguing that the instant
       postconviction petition was untimely; that the defendant failed to seek leave to file the
       successive petition; and that the affidavit of neither Hingston nor Bell was of such conclusive
       character that it would change the result on retrial.
¶ 27       On July 1, 2010, the circuit court ruled on the defendant’s instant petition, which had first
       been filed on January 24, 2003. The court granted the State’s motion to dismiss, finding that
       the instant successive postconviction petition was untimely; that it did not satisfy the “cause
       and prejudice” test; that the defendant did not request leave to file the successive
       postconviction petition; and that the affidavits attached to the petition did not conclusively
       show that the outcome of the proceeding would have been different had the evidence
       contained therein been presented. In its ruling, the circuit court specifically noted that it did
       not take into consideration the fact that Bell’s testimony did not help codefendant Brown’s
       case on retrial.

                                                  -6-
¶ 28       On July 8, 2010, the defendant filed a notice of appeal.

¶ 29                                          ANALYSIS
¶ 30        The sole issue on appeal is whether the circuit court properly dismissed the defendant’s
       instant amended postconviction petition at the second stage of the proceedings. We review
       this issue de novo. People v. Coleman, 183 Ill. 2d 366, 378, 701 N.E.2d 1063, 1075 (1998).
¶ 31        We feel compelled to comment at the outset on the extraordinary amount of time between
       when the defendant filed his postconviction petition on January 24, 2003 and when the
       circuit court finally ruled on the petition on July 1, 2010. Seven and a half years elapsed
       between the defendant’s filing of his pro se postconviction petition and the trial court’s
       ruling on the defendant’s petition. An additional 2 ½ years have elapsed between the trial
       court’s ruling on the defendant’s petition and the issuance of this opinion, for a total of 10
       years since the defendant filed the petition that is the subject of this appeal. Although there
       is some indication in the record that portions of the transcripts from the defendant’s trial
       were missing and that defense counsel made efforts to locate the transcripts and conduct an
       investigation, this still does not give any persuasive reason for the lengthy delay to which this
       case has been subjected. We note also that the State suggested during oral argument that
       Hingston, whose testimony was prominent in the defendant’s convictions and whose
       affidavit provides support for the defendant’s current postconviction petition, has died during
       the pendency of the defendant’s petition and this appeal. While we are not in a position to
       identify the exact cause of this delay, we can infer that this extraordinarily lengthy passage
       of time presents significant issues which impact the truth-seeking process and the issues
       which are at the core of this case. We urge the circuit court and the parties to avoid any
       further unwarranted or unnecessary protraction of the process, upon remand.
¶ 32        We now address the issues in this case. The defendant seeks a third-stage evidentiary
       hearing on his petition, arguing that he made a substantial showing that he was actually
       innocent of the crimes for which he was convicted. The State contends to the contrary that
       the circuit court properly dismissed the defendant’s instant amended postconviction petition
       where the defendant failed to make a substantial showing of actual innocence.
¶ 33        The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010))
       provides a three-step procedural mechanism by which a convicted defendant can assert that
       there was a substantial denial of his constitutional rights in the proceedings which resulted
       in his conviction. People v. Harris, 224 Ill. 2d 115, 124, 862 N.E.2d 960, 966 (2007). Under
       the Act, a defendant bears the burden of establishing that a substantial deprivation of his
       constitutional rights occurred. People v. Waldrop, 353 Ill. App. 3d 244, 249, 818 N.E.2d 888,
       893 (2004). At the first stage, a postconviction petition may be summarily dismissed if the
       claims in the petition are frivolous and patently without merit. People v. Hodges, 234 Ill. 2d
       1, 10, 912 N.E.2d 1204, 1209 (2009); see 725 ILCS 5/122-2.1(a)(2) (West 2010). However,
       if the petition survives initial review, the process moves to the second stage, where the circuit
       court appoints counsel for the defendant when the defendant cannot afford counsel. 725 ILCS
       5/122-4 (West 2010). Defense counsel then has an opportunity to amend the defendant’s pro
       se postconviction petition. People v. Slaughter, 39 Ill. 2d 278, 284-85, 235 N.E.2d 566, 569


                                                 -7-
       (1968). The State may then file a motion to dismiss or an answer to the postconviction
       petition. 725 ILCS 5/122-5 (West 2010). At the second stage of the proceedings, if the State
       moves to dismiss the petition, the circuit court may hold a dismissal hearing, which is still
       part of the second stage. People v. Wheeler, 392 Ill. App. 3d 303, 308, 912 N.E.2d 681, 686
       (2009). The circuit court must determine whether the petition and any accompanying
       documentation make a substantial showing of a constitutional violation. People v. Edwards,
       197 Ill. 2d 239, 246, 757 N.E.2d 442, 446 (2001). However, the circuit court is foreclosed
       from engaging in any fact-finding because all well-pleaded facts are to be taken as true at this
       point in the proceedings. Wheeler, 392 Ill. App. 3d at 308, 912 N.E.2d at 686. If a substantial
       showing of a constitutional violation is set forth, the petition advances to the third stage for
       an evidentiary hearing. Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446.
¶ 34       In the case at bar, the relief the defendant seeks is a third-stage evidentiary hearing. As
       an initial matter, we note that one of the bases upon which the circuit court granted the
       State’s motion to dismiss was that the instant successive postconviction petition was
       untimely. We find this to be erroneous. In the motion to dismiss, the State alleged that the
       instant successive postconviction petition, filed on January 24, 2003, was untimely under
       section 122-1(c) of the Act. However, section 122-1(c) explicitly provides that the time
       limitation for commencing postconviction proceedings under the Act “does not apply to a
       petition advancing a claim of actual innocence.” 725 ILCS 5/122-1(c) (West 2010).
       Moreover, we note that the defendant’s initial petition for postconviction relief, filed on
       March 31, 1997 and claiming actual innocence, commenced within the time limitation set
       forth by the Act at that time. See 725 ILCS 5/122-1(c) (West 1998) (no postconviction
       proceedings shall be commenced more than six months after the denial of a petition for leave
       to appeal before the Illinois Supreme Court). Therefore, we hold that the circuit court’s
       findings regarding untimeliness were erroneous.
¶ 35       The circuit court also dismissed the instant successive postconviction petition on the
       basis that it did not satisfy the “cause and prejudice” test. We likewise find this basis for
       dismissal to be erroneous. The filing of only one postconviction petition is contemplated
       under the Act. People v. Williams, 2012 IL App (1st) 111145, ¶ 35. However, our supreme
       court has provided two exceptions under which the bar against successive proceedings will
       be relaxed. People v. Edwards, 2012 IL 111711, ¶ 22 (citing People v. Pitsonbarger, 205 Ill.
       2d 444, 793 N.E.2d 609 (2002)). The first exception for relaxing the bar occurs when a
       defendant can establish “cause and prejudice” for failing to raise the claim earlier. Edwards,
       2012 IL 111711, ¶ 22. The “cause and prejudice” test is codified by section 122-1(f) of the
       Act. See 725 ILCS 5/122-1(f) (West 2010). However, our supreme court has specifically held
       that a defendant setting forth a claim of actual innocence in a successive postconviction
       petition is excused from the “cause and prejudice” test. People v. Ortiz, 235 Ill. 2d 319, 330,
       919 N.E.2d 941, 948 (2009). Rather, a defendant falls under the second exception for
       relaxing the bar to successive postconviction proceedings, known as the “fundamental
       miscarriage of justice” exception, where he sets forth a colorable claim of actual innocence.
       Edwards, 2012 IL 111711, ¶¶ 23-24. That is exactly the scenario in this case. Therefore, we
       find that the circuit court’s dismissal of the instant petition for failing to satisfy the “cause
       and prejudice” test was erroneous.

                                                 -8-
¶ 36        Likewise, we find that the circuit court erred in dismissing the instant successive
       postconviction petition based on the court’s finding that the defendant failed to request leave
       to file the petition. A defendant seeking to institute a successive postconviction petition must
       first obtain “leave of court.” See 725 ILCS 5/122-1(f) (West 2010); People v. Tidwell, 236
       Ill. 2d 150, 157, 923 N.E.2d 728, 732 (2010). It is the defendant’s burden under the statute
       to obtain “leave” of court before a successive postconviction petition may be filed so that
       further proceedings can follow. Tidwell, 236 Ill. 2d at 157, 923 N.E.2d at 733. Thus, “it is
       incumbent upon defendant, by whatever means, to prompt the circuit court to consider
       whether ‘leave’ should be granted, and obtain a ruling on that question.” Id. Although in
       most cases, “this will require a motion or request and an articulated argument in order to
       initiate court action, *** that is not necessarily so.” (Emphasis in original.) Id.
¶ 37        Our review of the record shows, and the State concedes, that the defendant had in fact
       filed a “motion for leave to file and proceed in forma pauperis” (motion for leave to file) in
       January 2003, when he submitted the instant successive postconviction petition. However,
       the State contends that the defendant failed to ensure that the circuit court was aware of the
       motion for leave to file and failed to “prompt” the court to consider whether leave should be
       granted or to obtain a ruling on that question. Thus, the State contends, the circuit court never
       properly granted the defendant leave to file the petition. The State’s argument is meritless.
       To the contrary, the record reveals that, at a status hearing on April 18, 2003, the circuit court
       docketed the defendant’s instant successive postconviction petition and appointed counsel,
       while ruling and stating on the record that the defendant “will get his day in court, even
       though he has been through the appellate court two to three times, the supreme court two to
       three times, and the federal district court a couple [of] times.” We hold that the act of
       docketing the postconviction matter, appointing counsel, and acknowledging that the
       defendant was entitled to be heard supports the conclusion that the circuit court granted the
       defendant’s motion for leave to file his pro se successive postconviction petition. We note
       that when the defendant’s appointed counsel finally filed an amended petition, albeit six
       years later, there was no challenge from the State regarding the propriety of the
       representation. Further, when the circuit court granted the defendant’s motion for leave to
       file his petition and appointed counsel, we note that the defendant’s pro se successive
       postconviction petition included an assertion of actual innocence and supporting affidavit
       from Hingston. Thus, although the court did not expressly articulate a finding of a “colorable
       claim of actual innocence,” it can be inferred from the court’s ruling. Therefore, we find that
       the circuit court implicitly ruled that the defendant had satisfied the threshold requirement
       of setting forth a “colorable claim of actual innocence,” which satisfies the second exception
       for relaxing the bar against filing successive postconviction petitions. Moreover, the
       defendant’s petition advanced to the second stage of the postconviction proceedings by virtue
       of the circuit court’s granting of the motion for leave to file and appointing counsel.
       Accordingly, we hold that the defendant properly obtained leave to file the instant successive
       postconviction petition.
¶ 38        Turning to the merits of the instant petition, we determine whether the defendant made
       a substantial showing of actual innocence so as to warrant a third-stage evidentiary hearing.
       In order to succeed on a claim of actual innocence, a defendant must show that the evidence

                                                  -9-
       he now presents is: (1) newly discovered; (2) material and not cumulative; and (3) of such
       conclusive character that it would probably change the result on retrial. Ortiz, 235 Ill. 2d at
       333, 919 N.E.2d at 950. We examine each element in turn. We reiterate that at this stage in
       the postconviction proceedings, all well-pleaded facts that are not positively rebutted by the
       trial record are taken as true. See People v. Childress, 191 Ill. 2d 168, 174, 730 N.E.2d 32,
       35 (2000).
¶ 39        Our supreme court has defined “newly discovered” evidence as “evidence that has been
       discovered since the trial and that the defendant could not have discovered sooner through
       due diligence.” Ortiz, 235 Ill. 2d at 334, 919 N.E.2d at 950.
¶ 40        The defendant argues that the allegations in the instant successive amended
       postconviction petition and the supporting documentation presented newly discovered
       evidence that could not have been found earlier by the exercise of due diligence. The State
       counters that the evidence was not newly discovered, arguing in a footnote that this claim
       was barred by the principle of res judicata, where the defendant’s initial March 31, 1997
       postconviction petition alleging actual innocence based upon the confession of “James Dell”
       had already been rejected by the circuit court and this court. The State further contends that
       neither Bell’s testimony nor Hingston’s affidavit was newly discovered evidence, where
       Bell’s testimony was unreliable and refuted by the evidence presented at trial, and where
       Hingston’s affidavit was simply recanted testimony.
¶ 41        We reject the State’s argument. We find that Bell’s affidavit and testimony, and
       Hingston’s affidavit, were newly discovered evidence. Transcripts of Bell’s testimony at
       codefendant Brown’s postconviction proceedings, which were attached as an exhibit to the
       instant postconviction petition, revealed that the first time Bell ever told anyone about his
       involvement in the arson for which the defendant was convicted was during a Bible study
       meeting at the Statesville Correctional Center in 1995 or 1996–years after the defendant’s
       second trial had concluded in 1994. Bell’s testimony also revealed that he confessed to the
       arson in an affidavit dated October 17, 2001–several years after the defendant’s second trial
       in 1994 and after the defendant’s filing of his first three postconviction petitions. The
       defendant’s July 23, 2009 affidavit, which was also attached to the instant postconviction
       petition, averred that he did not know Bell and never had any contact with him in prison.
       Thus, no amount of due diligence on the defendant’s part could have resulted in the
       discovery of Bell’s confession at the time of the defendant’s second trial in 1994 or shortly
       thereafter.
¶ 42        Likewise, we find Hingston’s December 3, 2002 affidavit to be newly discovered
       evidence. In the affidavit, Hingston attested that his trial testimony was a lie and that police
       officers threatened him to obtain the testimony. Clearly, due diligence could not have
       compelled Hingston to testify truthfully at the first trial. The State, citing People v.
       McDonald, 405 Ill. App. 3d 131, 937 N.E.2d 778 (2010), argues that Hingston’s affidavit
       should not be considered newly discovered because Hingston was subject to extensive cross-
       examination at the defendant’s first trial. We reject the State’s argument and find McDonald
       to be distinguishable from the facts of the instant case. In McDonald, the court found that the
       circuit court properly denied the defendant leave to file a successive postconviction petition
       under the “cause and prejudice” test, where the recanted testimony of a witness was not

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       considered newly discovered because the witness was available at the defendant’s trial and
       was extensively cross-examined by defense counsel. Id. at 137, 937 N.E.2d at 784. Unlike
       McDonald, this case involves an appeal based on the merits of the case as outlined in the
       instant amended postconviction petition, and does not involve an appeal from a denial of
       leave to file a successive postconviction petition. Further, the record shows that Hingston
       was an unavailable witness at the time of the defendant’s second trial, and thus, transcripts
       of Hingston’s testimony from the defendant’s first trial were read into the record at the
       second trial. That testimony was presented “as is” and defense counsel did not have an
       opportunity to cross-examine Hingston at the second trial. Thus, we conclude that Hingston’s
       affidavit and Bell’s affidavit and testimony were newly discovered evidence.
¶ 43        To the extent that the State argues that res judicata barred the instant actual innocence
       claim because the defendant had previously alleged actual innocence in his March 1997
       postconviction petition based upon the confession of “James Dell,” we reject this contention.
       Despite the similarities in the names of “James Dell” and the current affiant, Bell, we cannot
       speculate or assume that they describe the same person. Indeed, transcripts of Bell’s
       testimony at codefendant Brown’s postconviction proceedings, which were attached as an
       exhibit to the instant petition, revealed that Bell was also known by the names of “Jerry Lee
       Johnson” and “Michael Barry,” but made no mention of the name “James Dell.” Even if
       “James Dell” and Bell were in fact the same person, the defendant was not precluded from
       raising this new claim of actual innocence where it was now supported by newly discovered
       evidence. See Ortiz, 235 Ill. 2d at 333, 919 N.E.2d at 949. Thus, we find the State’s
       arguments regarding res judicata to be without merit.
¶ 44        The State further argues that dismissal of the instant petition was proper where Bell’s
       testimony and affidavit were unreliable because they were positively rebutted by the evidence
       at the defendant’s second trial. Specifically, the State contends that Bell’s testimony that he
       bent the burglar bars and kicked in the back door was refuted by evidence that a backdraft
       explosion occurred as a result of an oxygen-starved environment; that statements in the
       defendant’s confession refuted Bell’s testimony; and that Bell’s testimony was rebutted by
       Malone’s testimony. As discussed, at this stage in the postconviction proceedings, all well-
       pleaded facts that are not positively rebutted by the trial record are taken as true. See
       Childress, 191 Ill. 2d at 174, 730 N.E.2d at 35. Based on our review of the record, we cannot
       say that Bell’s testimony was positively rebutted by the record at the defendant’s second trial.
       The State’s assertions require this court to speculate regarding several facts and conclusions.
       Further, we cannot say that Malone’s testimony positively refuted Bell’s confession, where
       Malone never identified the defendant nor any of the individuals he observed at the scene.
       Further, the State’s argument is an invitation for this court to engage in credibility
       determinations as to whether the defendant’s confession or Bell’s confession was more
       believable. We decline to make such determinations. We further find that Bell’s testimony
       and affidavit were not positively rebutted by the physical evidence at trial. In support of its
       arguments, the State, by including repeated references to this court’s unpublished Rule 23
       order pertaining to codefendant Brown’s appeal, seems to imply that this court’s ultimate
       finding in rejecting Bell’s testimony in codefendant Brown’s appeal should dictate a similar
       result in the instant case. This is clearly improper and we find that the ultimate findings of

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       this court in codefendant Brown’s appeal cannot be substituted for a third-stage evidentiary
       hearing in this case. Thus, at the second stage of the postconviction proceedings, we must
       take all well-pleaded facts as true.
¶ 45       The second element of a claim of actual innocence is that a defendant must show that the
       new evidence was material and not cumulative. Ortiz, 235 Ill. 2d at 333, 919 N.E.2d at 950.
       Evidence is considered cumulative when it “adds nothing to what was already before the
       jury.” Id. at 335, 919 N.E.2d at 950. Taken as true, we find that Bell’s May 29, 2009 affidavit
       and transcripts of Bell’s testimony at codefendant Brown’s postconviction proceedings,
       which were attached as exhibits to the instant amended postconviction petition, could be
       considered exculpatory and support the defendant’s claim of actual innocence. This
       information was never before the jury at the defendant’s second trial and was thus
       noncumulative evidence. Likewise, Hingston’s December 3, 2002 affidavit was also
       noncumulative evidence, where such evidence of police coercion was not before the jury in
       the defendant’s second trial. We further find Bell’s confession that he was the arsonist to be
       material to the central issue in the case–specifically, the identity of the arsonist. The State,
       however, argues that Hingston’s affidavit was immaterial to the case because Hingston never
       identified the defendant as one of the persons at the gasoline station on the morning of the
       arson, nor did Hingston have any personal knowledge of the crime at hand. We disagree and
       find that, taking Hingston’s affidavit as true, it was material to the issue of police coercion,
       which would weaken or contradict the State’s case against the defendant. The defendant
       attests in his affidavit that he only confessed to the crime because police officers had
       threatened to charge his mother with murder. See Williams, 2012 IL App (1st) 111145, ¶ 41
       (newly discovered evidence was clearly material where it weakened or contradicted the
       State’s case against the defendant). Therefore, we conclude that the newly discovered
       evidence was material and not cumulative.
¶ 46       The last element required to support a claim of actual innocence is whether the new
       evidence is “of such conclusive character that it would probably change the result on retrial.”
       (Internal question marks omitted.) Ortiz, 235 Ill. 2d at 333, 919 N.E.2d at 950. In the case
       at bar, one of the bases upon which the circuit court granted the State’s motion to dismiss
       was that the affidavits attached to the amended postconviction petition did not conclusively
       show that the outcome of the proceedings would have been different had the evidence
       contained therein been presented. In its ruling, the circuit court specifically noted that it did
       not take into consideration the fact that Bell’s testimony failed to help codefendant Brown’s
       case on retrial.
¶ 47       The defendant argues that the newly discovered evidence, taken as true, would probably
       change the result on retrial. He contends that Bell’s confession alone, which was supported
       by the physical evidence in this case, was sufficient to advance the postconviction
       proceedings to a third-stage evidentiary hearing. The defendant maintains that the State’s
       evidence implicating the defendant was far from overwhelming, where no eyewitness
       testimony existed to directly connect the defendant to the crime, that the only evidence
       directly implicating the defendant was his own confession, and that he had long maintained
       that his confession was a product of police coercion.
¶ 48       The State counters that neither Bell’s affidavit and testimony, nor Hingston’s affidavit,

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       was of such conclusive character as to probably change the result on retrial. Specifically, the
       State contends that Bell’s confession was nothing more than impeachment evidence that did
       not support a claim of actual innocence.
¶ 49        Mere impeachment evidence will typically not be of such conclusive character as to
       justify postconviction relief. People v. Collier, 387 Ill. App. 3d 630, 637, 900 N.E.2d 396,
       403 (2008). However, where newly discovered evidence is both exonerating and contradicts
       the State’s evidence at trial, it is capable of producing a different outcome at trial. Ortiz, 235
       Ill. 2d at 336-37, 919 N.E.2d at 951-52. Here, taking as true the contents of Bell’s affidavit
       and testimony, they could be found to exculpate the defendant from involvement in the
       crimes and refute the State’s evidence at trial, thereby changing the result on retrial.
¶ 50        The State further argues that the “conclusive character” element of the actual innocence
       claim was not satisfied where Hingston’s affidavit was simply a recantation of his testimony
       at the defendant’s first trial, and that it was unreliable because the affidavit did not
       specifically state that Hingston’s prior trial testimony was false.
¶ 51        Generally, recantation testimony is inherently unreliable. People v. Steidl, 177 Ill. 2d 239,
       260, 685 N.E.2d 1335, 1345 (1997). In Coleman, however, our supreme court rejected the
       State’s argument that the newly discovered evidence was unreliable recanted testimony,
       finding that the State’s reliability argument was premature at the second stage of the
       postconviction proceedings. Coleman, 183 Ill. 2d at 390, 701 N.E.2d at 1076. The Coleman
       court specifically noted that the State, in filing a motion to dismiss instead of an answer to
       the petition, had neither refuted nor denied the allegations in the defendant’s petition and
       supporting affidavit, and that the Act contemplates that factual and credibility determinations
       are to be made at the evidentiary hearing stage of the postconviction proceedings. Id. at 390-
       91, 701 N.E.2d at 1076. Applying the principles of Coleman, we find that here, the State
       filed a motion to dismiss rather than an answer to the instant petition and, as such, the
       reliability of Hingston’s affidavit should not be determined at this stage of the proceeding.
       Thus, the State’s arguments on this basis must fail.
¶ 52        Further, the State argues that Hingston’s affidavit was not of such conclusive character
       as to probably change the result on retrial, where Hingston did not witness the crime and
       Hingston’s recanted testimony did not refute the fact that the defendant committed the crime.
       We disagree. Based on our review of the record, we find that the State’s strongest direct
       evidence against the defendant at trial was the defendant’s own confession, which the
       defendant argued was a product of police coercion. No witness at trial identified the
       defendant as the perpetrator of the crimes. Although certain trial evidence–such as X-rated
       videotapes found in the defendant’s truck and the burned mattress–corroborated elements of
       the defendant’s confession, such evidence had no bearing on whether the defendant’s
       confession was coerced by the police. Taking Hingston’s affidavit as true, we find that it
       would lend credence to the defendant’s claim that his confession was coerced, which, if
       believed by the fact finder in the event of a retrial, would likely change the outcome of the
       case. See Williams, 2012 IL App (1st) 111145, ¶ 41 (newly discovered evidence would likely
       change the result of trial where the only evidence linking defendant to the crime was his
       confession and no witness identified defendant as being involved); see also People v.
       Almodovar, 2013 IL App (1st) 101476, ¶ 79 (newly discovered evidence met “conclusive

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       character” element where no physical evidence linked defendant to the shooting and the State
       relied on questionable eyewitness identification). Thus, we find that the defendant met the
       “conclusive character” element of his claim of actual innocence. We further reject the State’s
       argument that the defendant had forfeited any claim of police coercion as a result of his
       failure to raise it on direct appeal or previous postconviction petitions. The defendant is not
       precluded from raising the claim in the instant petition where he has come forth with newly
       discovered evidence. See Ortiz, 235 Ill. 2d at 331-33, 919 N.E.2d at 948-49 (petitioners have
       the right to assert a freestanding claim of actual innocence based on newly discovered
       evidence; multiple claims of actual innocence may be raised where each claim is supported
       by newly discovered evidence). Therefore, we find that the defendant has made a substantial
       showing of a claim of actual innocence such that he is entitled to a third-stage evidentiary
       hearing on the instant successive postconviction petition.

¶ 53      Reversed and remanded.




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