                                     2020 IL 123849



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS




                                   (Docket No. 123849)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                        RICKEY ROBINSON, Appellant.


                               Opinion filed June 18, 2020.



        JUSTICE NEVILLE delivered the judgment of the court, with opinion.

        Chief Justice Anne M. Burke and Justices Kilbride and Theis concurred in the
     judgment and opinion.

        Justice Michael J. Burke dissented, with opinion, joined by Justices Garman
     and Karmeier.



                                        OPINION

¶1      Petitioner, Rickey Robinson, appeals from an order of the circuit court of Cook
     County denying him leave to file a successive petition for relief under the Post-
     Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). The pro se
     petition alleged a claim of actual innocence based on newly discovered evidence.
     The appellate court affirmed the decision of the circuit court in an unpublished
     order. 2018 IL App (1st) 153547-U. For the reasons that follow, we reverse the
     judgment of the appellate court.


¶2                                    I. BACKGROUND

¶3      Petitioner was charged with numerous offenses in relation to the December
     1997 death of Nicole Giles. Two codefendants, Marques Northcutt and Peter
     Andrew Ganaway, were also charged and tried for their involvement in Giles’s
     murder.


¶4                                   A. Trial Proceedings

¶5       At trial, the State presented autopsy evidence establishing that Giles died of a
     gunshot wound in her neck and that her body was subsequently burned. The State
     also presented the testimony of several witnesses.

¶6       Sherrilyn Bivens, Giles’s mother, testified that Giles was supposed to pick her
     up from work at 6 p.m. on December 28, 1997. When she failed to show up, Bivens
     called Elsie Reed, Giles’s friend, to ask whether she had heard from her daughter.
     Reed told Bivens that Giles had spoken with petitioner, who asked her to stop by.
     Bivens later went to the home of petitioner, who stated that, although he had spoken
     with Giles about coming to his house, she never arrived.

¶7       Elsie Reed testified that on December 28, 1997, she had participated in a three-
     way telephone conversation with Giles and petitioner. During that call, petitioner
     asked Giles to stop at his home before she went to Reed’s house. When Giles failed
     to arrive at her house, Reed called petitioner to ask if he had seen her, and petitioner
     responded that she had not shown up.

¶8        Anjanette Vance and Lavell Rogers testified that on the evening of December
     28, 1997, they were in a car stopped at the intersection of 88th and Kingston Streets,
     facing toward a viaduct. They observed two people standing over a person who was
     sitting on the ground against a car when a third person exited the vehicle and shot
     the person on the ground. The couple also saw a bag being placed over the head of




                                              -2-
       the victim and the body being pulled into the back seat of the car. They then flagged
       down a nearby police car and informed the officers of what they had observed. The
       couple returned to the scene with the police officers and saw blood on the street.

¶9         Leonard Tucker testified that, on December 28, 1997, he was the boyfriend of
       petitioner’s sister and was at her house when petitioner, Northcutt, and Ganaway
       had a conversation about Giles, whom he had known for about seven years. When
       he and petitioner were alone, petitioner stated that he had killed Giles and that he
       had jumped out of the car and shot her in the head. After petitioner stated that he
       did not wear gloves, Tucker responded that his fingerprints would be on Giles’s
       body and the car. Petitioner also indicated that they had put a bag over Giles’s head,
       put her in the car, drove off, and then put her body in a garbage can. Tucker further
       testified that, as he left petitioner’s house, Ganaway handed him a green Pronto
       pager, which he took home. Later that evening, Ganaway came to his home and
       gave him a green box of AK-47 bullets to hide, which he knew was illegal. The
       following day, he returned to petitioner’s home and saw him with a red gasoline
       can. At that time, petitioner said “we burned her body.” Tucker further testified
       that, on January 7, 1998, the police arrived at his school and escorted him to the
       police station, where he was informed that he was a suspect. He then told the police
       about the pager, the box of ammunition, and the conversations he had with
       petitioner and the others.

¶ 10       Maisha Muhammad testified that she was the best friend of petitioner’s sister.
       At about 10:30 on the morning of December 29, 1997, she received a call from
       petitioner’s sister, who asked whether Muhammad could borrow her grandmother’s
       car. After receiving permission, Muhammad drove her grandmother’s four-door
       burgundy Corsica to petitioner’s house. When she arrived, petitioner’s sister was
       there along with petitioner, Tucker, and Ganaway. Muhammad further testified that
       she then left the house with Ganaway and petitioner, who was holding a gasoline
       can. She drove to a gas station, where petitioner left the car with the gas can while
       Ganaway remained in the car. Petitioner got back into the car with the gasoline can
       and directed her to drive around several streets. Petitioner eventually told her to
       stop the car, and he and Ganaway left with the gas can and headed toward an alley,
       returning about 5 to 10 minutes later. She then drove them back to petitioner’s
       house. In response to her question of what was going on, petitioner asked if she




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       remembered “Nicky.” Muhammad answered that she did, and petitioner replied,
       “that’s whose body we burned.”

¶ 11       D’Andre Weaver testified that at about 11:45 a.m. on December 29, 1997, he
       was looking out of the second-story window in his bedroom waiting for his mother
       to return from the grocery store. While looking out of his window, he saw a dark
       reddish Chevrolet car parked at his neighbor’s house, and two guys got out of the
       car and walked into the alley. He could not see their faces, but one was carrying a
       gas can. After leaving the window for a few minutes, Weaver returned and saw the
       same two guys running toward the red car with the gas can. They got into the car,
       and the driver, who had remained in the car, drove off. Weaver further testified that
       about 5 to 10 minutes after the car drove away, he heard fire engines, sirens, and
       police cars. He returned to the window and saw smoke coming from the alley. Later,
       a police officer rang his doorbell, and Weaver spoke with the officer about what he
       had seen.

¶ 12       Michelle McClendon testified that, on December 29, 1997, she was petitioner’s
       girlfriend and was at his house with him and Ganaway when they told her they had
       burned Giles’s body. Later, when she and petitioner were alone, she asked whether
       he had a conscience, and he answered that he did. McClendon further testified that
       she asked how the gun was put in the victim’s car, and petitioner stated that one of
       his friends asked for Giles’s keys to put something in her car and they then snuck
       the gun in the car. According to McClendon, petitioner stated that, while they were
       in Giles’s car, one of them said he had to urinate. When Giles pulled over and
       stopped under the viaduct, they pulled her out of the car. Petitioner told her that he
       shot Giles in the head, and she fell to the ground. McClendon testified that she did
       not believe petitioner at the time but subsequently saw the murder reported on the
       television news and began to believe what petitioner had been saying. On December
       31, 1997, two police officers arrived at her home in the middle of the night and
       escorted her to a police station. At trial, McClendon identified a picture of a rifle
       and testified that she had seen that weapon twice within the month prior to the
       shooting, once at Northcutt’s home and again at petitioner’s house.

¶ 13       Chicago police detective Michael McDermott testified that petitioner arrived at
       the police station on December 30, 1997, and was advised of his rights. McDermott
       also testified that he informed petitioner of the status of the investigation, including




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       that witnesses had seen someone up against a car and another person shoot the
       victim, that the shooting took place under a viaduct, and that a rifle had been
       recovered. Petitioner then made a statement in which he admitted shooting and
       robbing Giles.

¶ 14       Assistant State’s Attorney John Karnezis testified that he had advised petitioner
       of his constitutional rights and that petitioner had answered his questions. Petitioner
       agreed to make a court-reported statement, which he and Karnezis reviewed and
       signed. Karnezis read petitioner’s 70-page statement into the record, without
       objection.

¶ 15       In that statement, petitioner, who was 18 years old at the time, admitted his
       involvement in the murder of Giles and the disposal of her body. Petitioner
       indicated that sometime prior to December 28, 1997, he, Northcutt, and Ganaway
       decided to rob Giles because they believed she would have a large sum of money
       in her possession. They also decided that they would kill her because she knew
       them. They formulated a plan for carrying out the robbery and murder. Pursuant to
       the plan, petitioner contacted Giles on December 28, 1997, and asked her to come
       over. After she arrived, petitioner asked Giles for her car keys, and he and Ganaway
       put a semiautomatic rifle in her car. Later, while she was driving the three of them
       around, Northcutt indicated that he had to urinate. Giles stopped under a viaduct,
       and Northcutt exited the car. Ganaway pulled Giles from the car, and petitioner shot
       her in the head. They placed a bag over her head and pushed her back into the car.
       They removed $50 from Giles’s pocket and drove around before placing her body
       into a garbage can. They then drove to a south suburb and parked Giles’s car on a
       side street near a train station before taking the train back to the city. The following
       day, after learning that fingerprints can be left on clothing, petitioner and Ganaway
       returned to the garbage can in which they had placed Giles’s body. Ganaway poured
       gasoline into the can, and petitioner lit a gasoline-soaked bandana that had been put
       at the top of the garbage can. Petitioner’s statement also described conversations
       that he had with Tucker, McClendon, and Muhammad in which he admitted his
       participation in the shooting of Giles and burning of her body.

¶ 16       The State did not present any physical evidence directly linking petitioner to
       the crime. Petitioner did not testify, and the defense rested without presenting
       evidence.




                                                -5-
¶ 17       At the conclusion of the trial, petitioner was convicted of first degree murder,
       aggravated vehicular hijacking, armed robbery, and concealment of a homicide.
       The circuit court sentenced petitioner to a term of natural life for the murder
       conviction, a consecutive 30-year term for armed robbery, a concurrent 30-year
       term for aggravated vehicular hijacking, and a consecutive 5-year term for
       concealment of a homicide.

¶ 18      Petitioner’s conviction and sentences were affirmed on direct appeal. People v.
       Robinson, No. 1-00-2981 (2002) (unpublished order under Illinois Supreme Court
       Rule 23). This court denied leave to appeal. People v. Robinson, 202 Ill. 2d 691
       (2003) (table) (unpublished order under Illinois Supreme Court Rule 23).


¶ 19                              B. Postconviction Proceedings

¶ 20       Petitioner filed a pro se postconviction petition in January 2005, asserting
       various claims of ineffective assistance of counsel. The circuit court advanced the
       postconviction petition to the second stage. The circuit court determined that
       petitioner had failed to make a substantial showing of a constitutional violation and
       dismissed his petition. The appellate court affirmed the second-stage dismissal of
       the petition. See People v. Robinson, 2015 IL App (1st) 123360-U. This court
       denied leave to appeal. People v. Robinson, No. 119184 (Ill. Sept. 30, 2015).

¶ 21       In May 2015, petitioner filed a motion for leave to file a successive
       postconviction petition seeking relief under the Act. Petitioner’s motion alleged,
       inter alia, a claim of actual innocence. In particular, petitioner asserted that he was
       not involved in the crimes for which he had been convicted and that Giles had been
       murdered by Tucker. In support, petitioner included his own affidavit as well as the
       affidavits of Yasmyn Johnson, Andre Mamon, Donald Shaw, and Tavares Hunt-
       Bey.

¶ 22       Petitioner’s affidavit averred that, on the day of Giles’s murder, he contacted
       her for her assistance with transporting gang weapons but she never arrived at his
       home. Petitioner further averred that, after spending the evening hours with Fatique
       Williams, Yasmyn Johnson, and Michelle McClendon, he spent the night at the
       apartment of Natasha Veasley-Boone and that she subsequently told him that she
       would deny they spent that night together.




                                                -6-
¶ 23       In addition, petitioner’s affidavit averred that he and Tucker were members of
       different sects of the same gang and had learned that Giles had received money
       from her cousin, who belonged to a rival gang. According to petitioner’s affidavit,
       Tucker considered Giles as “bait” in the ongoing war between the rival gangs.
       Petitioner’s affidavit explained that he had not come forward with this information
       previously because he feared for his safety and because a gang rule precluded him
       from cooperating with the police against a fellow gang member. Lastly, petitioner
       averred that his trial attorney as well as his counsel on direct appeal and initial
       postconviction proceeding “were all made privy to this information” and that the
       “majority of these details herein was actually in my initial statement while being
       questioned by [d]etectives that was not used.”

¶ 24       The affidavit of Yasmyn Johnson, dated November 10, 2014, averred that she
       was with petitioner, who was her boyfriend, on December 28, 1997. According to
       Johnson’s affidavit, she and petitioner were at her sister’s apartment when the sun
       went down, and they were together for one to two hours. Johnson’s affidavit further
       averred that she remembered the date because it was three days after Christmas and
       that was the night she suspected petitioner of cheating on her with another girl in
       the same building.

¶ 25       Andre Mamon’s affidavit, dated December 19, 2014, averred that a few days
       after Christmas in December 1997, he witnessed someone get shot and shoved into
       a car. According to Mamon’s affidavit, he was with his father and three women on
       the night of the shooting. The group had just left a liquor store at 87th Street and
       South Colfax Avenue and was walking toward 88th Street to catch the bus on South
       Chicago Avenue when they heard the horn from a car that was parked across the
       street. The three women waved and yelled “hello” to a guy named “Lenny,” who
       was sitting in the car with one other guy. Mamon and his companions continued
       walking to the bus stop on Kingston Avenue. After standing there for a little while,
       their attention was diverted to the viaduct across South Chicago “after a bright flash
       and loud gun shot.” Mamon’s affidavit averred that he saw “Lenny shove an A.K.
       into the back seat of the car” he had been sitting in. Mamon then observed that
       “Lenny and two guys with him got in the car and disappeared through the viaduct.”
       When the bus arrived, Mamon and his companions “got on it and out of there.”




                                               -7-
¶ 26       Mamon’s affidavit also averred that, in August 2014, he had a telephone
       conversation with an individual who asked whether he knew a person named
       “Ricky.” The caller explained that “Ricky” had been “locked up” for a murder on
       South Chicago Avenue for a long time, but Mamon did not know petitioner as
       “Ricky” because petitioner went by a nickname. According to his affidavit, Mamon
       recalled the shooting incident he had witnessed years before, “but the name to go
       with the face he saw was Lenny.” Later, while at a prison dining table, Mamon saw
       the name “Ricky” on petitioner’s shirt, and he asked petitioner “if he had a murder
       that happened under a viaduct right off South Chicago.” When petitioner answered
       in the affirmative, Mamon told petitioner that he was at the bus stop when the
       incident occurred and that petitioner’s face was not one of the faces he had seen
       that night. Mamon averred that he prepared the affidavit knowing that he did not
       see petitioner under that viaduct on the night of the shooting and that petitioner was
       not guilty.

¶ 27       Donald Shaw’s affidavit, dated March 5, 2015, averred that from approximately
       January 1995 to August 1999, he spent time “hang[ing] out on the block of 89th
       Bennett” in Chicago. According to Shaw’s affidavit, an acquaintance recently told
       him about some information on Facebook pertaining to petitioner, which caused
       him to recall events that occurred on the evening of December 28, 1997. Shaw’s
       affidavit averred that, while he was hanging out in the alley behind 8918 South
       Bennett Avenue, a dark-colored Ford Contour drove past him and then stopped a
       couple of garages further down the alley. When he approached, he recognized the
       car’s occupants as “three guys that hung out with [petitioner].” One of the men was
       Tucker, whom Shaw knew well, and they shook hands. During a brief conversation
       with Tucker, Shaw observed another occupant, who was holding an AK-type
       assault rifle, get out of the back seat of the car. That person ran down a gangway
       on the other side of the alley toward Constance Avenue and, after a minute or two,
       came back empty-handed. He then got into the back seat of the car, and the three
       men drove off. Shaw’s affidavit averred that he could say “with absolute certainty
       that [petitioner] was not in that Ford Contour with Tucker” on December 28, 1997.
       The affidavit further averred that, during the ensuing years, Shaw had not realized
       that this information could have been helpful.

¶ 28       The affidavit of Tavares Hunt-Bey, dated April 25, 2014, averred that he was
       at a gas station on 87th Street and Exchange Avenue between 10 and 11 a.m. on




                                               -8-
       December 29, 1997, when he observed a “red-maroonish color Chevy Corsica pull
       into the gas station.” Hunt-Bey approached the car and recognized the driver as a
       former fellow gang member whose name was Leonard “Lenny” Tucker. After
       displaying a gang sign, Tucker and two other gang members exited the vehicle and
       shook hands with Hunt-Bey. According to the affidavit, one of the men went to pay
       for the gas, and the other person got back in the car while Tucker stood outside and
       conversed with Hunt-Bey. In response to Hunt-Bey’s inquiry as to what the three
       men were doing that morning, Tucker stated that he had killed the sister of a rival
       gang member the night before under a viaduct on South Chicago Avenue and that
       Hunt-Bey should be “on point” because that rival gang might seek revenge. Tucker
       also said that he had borrowed the car from a friend “to tie up some loose ends.”
       Tucker then removed a gas can from the floor of the front passenger side of the car
       and began pumping gas into it while the person who paid for the gas got back into
       the passenger seat. After Tucker finished pumping the gas, he exchanged gang signs
       with Hunt-Bey and got into the driver’s seat and drove away with his two
       companions in the car.

¶ 29       Hunt-Bey’s affidavit further averred that, the following day, he heard the news
       that petitioner had confessed to the killing and setting the body on fire. Hunt-Bey
       averred that he immediately knew petitioner was “taking the rap for Lenny” but the
       “code of silence” imposed by their gang prevented him from contacting the police
       because “snitching on a fellow member” was a “death violation.” According to
       Hunt-Bey’s affidavit, he recently heard that Tucker had falsely testified against
       petitioner and, because Tucker was no longer a gang member, Hunt-Bey felt
       obligated to come forward with this information.

¶ 30       In ruling on petitioner’s motion, the circuit court determined that the affidavit
       of Johnson was not newly discovered evidence because he would have been aware
       of his own whereabouts on the night of the murder and could have presented his
       girlfriend’s alibi evidence at trial. The circuit court also determined that, although
       the affidavits of Shaw, Hunt-Bey, and Mamon were newly discovered and material
       evidence, they did not totally vindicate or exonerate petitioner. The court observed
       that, because none of the affiants witnessed the murder of Giles or the burning of
       her body, their affidavits were not of such a conclusive character as to probably
       change the outcome on retrial. The court also found that Hunt-Bey’s averments as
       to Tucker’s confession would be inadmissible hearsay. The circuit court concluded




                                               -9-
       that petitioner failed to raise a colorable claim of actual innocence and, therefore,
       denied his request for leave to file a successive postconviction petition.

¶ 31       Petitioner challenged the circuit court’s decision, contending that he had alleged
       a colorable claim of actual innocence that was supported by the affidavits of Shaw,
       Mamon, and Hunt-Bey. 2018 IL App (1st) 153547-U, ¶ 3.

¶ 32       The appellate court held that petitioner’s confession, which was consistent with
       the testimony of several State witnesses, overwhelmingly pointed to petitioner as
       the person who murdered Giles and burned her body and that the new evidence
       would not totally vindicate or exonerate petitioner. Id. ¶¶ 35-47. The court found
       that the affidavits of Mamon, Shaw, and Hunt-Bey did little to exonerate petitioner,
       noting that none of the affiants saw the murder take place or saw who burned the
       body. Id. ¶ 36. The court noted that Shaw only observed someone apparently
       disposing of a rifle. Id. ¶ 38. Mamon does not state that he actually saw the murder
       and cannot point to any of the three men he saw as the shooter. Id. ¶ 40. The court
       reasoned that Tucker’s statement to Hunt-Bey claiming a role in the murder was
       rebutted by the evidence at trial, including petitioner’s confession and the testimony
       of the State’s witnesses. Id. ¶ 42.

¶ 33       The court determined that the affidavits merely conflicted with the trial
       evidence and were not of such a conclusive character as to probably change the
       result on retrial. Id. ¶ 47. Given each affidavit’s individual deficiencies and in light
       of the strong evidence of petitioner’s guilt presented at trial, the court could not find
       that “ ‘no reasonable juror would have convicted him in light of the new
       evidence.’ ” Id. (quoting People v. Edwards, 2012 IL 111711, ¶ 31). The court
       concluded that petitioner failed to raise a colorable claim of actual innocence based
       on the three affidavits. Id. The court affirmed the circuit court’s denial of
       petitioner’s leave to file a successive postconviction petition. Id. ¶¶ 48-50.

¶ 34        Petitioner filed a petition for leave to appeal, which we allowed pursuant to
       Illinois Supreme Court Rules 315 (eff. Apr. 1, 2018) and 612 (eff. July 1, 2017).




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¶ 35                                      II. ANALYSIS

¶ 36       Petitioner argues that the lower courts erred in denying him leave to file his
       pro se successive postconviction petition because he alleged a colorable claim of
       actual innocence. Thus, the sole issue presented is whether petitioner should be
       granted leave to file his successive petition.


¶ 37                                  A. Standard of Review

¶ 38       This court has not previously articulated the standard of review applicable to
       the denial of leave to file a successive postconviction petition premised on a claim
       of actual innocence. In addressing this question, we are guided by the principles
       that comport with the nature of that determination.

¶ 39       Where the issue on review is limited to the sufficiency of the allegations in a
       postconviction petition, there is little justification for affording deference to the
       circuit court’s decision. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). Given
       that no factual findings or credibility determinations are required at the pleading
       stage of postconviction proceedings, a reviewing court is as capable as the circuit
       court of determining whether a petition and supporting documents contain adequate
       allegations. Id. at 388. Because the sufficiency of a postconviction petition is a
       purely legal question, de novo review is appropriate. People v. Sanders, 2016 IL
       118123, ¶ 31 (holding the circuit court’s dismissal of a postconviction petition is
       subject to plenary review); Coleman, 183 Ill. 2d at 389 (same); see also People v.
       Chambers, 2016 IL 117911, ¶¶ 78-79 (holding that a ruling on the sufficiency of a
       motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), is
       reviewed de novo). Therefore, a ruling on a motion requesting leave to file a
       successive postconviction petition claiming actual innocence parallels the
       determination of whether to dismiss an initial petition based on the legal sufficiency
       of the allegations. In addition, the denial of a motion for leave to file a successive
       petition alleging cause and prejudice is reviewed de novo (People v. Wrice, 2012
       IL 111860, ¶¶ 49-50), as is a similar ruling premised on statutory construction
       (People v. Bailey, 2017 IL 121450, ¶¶ 12-13).

¶ 40      In light of these governing principles, this court recognized in Edwards, 2012
       IL 111711, ¶ 30, that the assessment of whether, as a matter of law, a colorable




                                               - 11 -
       claim of actual innocence has been asserted suggests the de novo standard of
       review. Since Edwards, several appellate panels have applied the de novo standard
       in similar cases. See People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 72-75;
       People v. Adams, 2013 IL App (1st) 111081, ¶ 30; People v. Green, 2012 IL App
       (4th) 101034, ¶ 30. Based on the reasoning set forth above, we now affirmatively
       hold that the denial of leave to file a successive postconviction petition alleging
       actual innocence is reviewed de novo.


¶ 41                           B. The Post-Conviction Hearing Act

¶ 42       The Act provides a statutory remedy to criminal defendants who assert claims
       for substantial violations of their constitutional rights at trial. Edwards, 2012 IL
       111711, ¶ 21. The Act is not a substitute for an appeal but offers a mechanism for
       a criminal defendant to assert a collateral attack on a final judgment. Id. Therefore,
       where a petitioner has previously challenged a judgment of conviction on appeal,
       the judgment of the reviewing court will serve to bar postconviction review of all
       issues actually decided by the reviewing court as well as any other claims that could
       have been presented to the reviewing court. Id. As a consequence, only one
       postconviction proceeding is contemplated under the Act. Id. ¶ 22. However, the
       bar against successive proceedings will be relaxed on two grounds. Id. The first is
       where the petitioner can establish cause and prejudice for the failure to assert a
       postconviction claim in an earlier proceeding. Id. (citing People v. Pitsonbarger,
       205 Ill. 2d 444, 459 (2002)); see also 725 ILCS 5/122-1(f) (West 2014). The second
       is where the petitioner asserts a fundamental miscarriage of justice based on actual
       innocence. Edwards, 2012 IL 111711, ¶ 23 (citing Pitsonbarger, 205 Ill. 2d at 45,
       and People v. Ortiz, 235 Ill. 2d 319 (2009)).

¶ 43       Prior to commencing a successive postconviction petition, a petitioner must
       obtain leave of court. Id. ¶ 24 (citing People v. Tidwell, 236 Ill. 2d 150, 157 (2010)).
       A request to file a successive petition based on actual innocence is reviewed under
       a higher standard than that applicable to the first stage for an initial petition, which
       only requires that the petition is not frivolous or patently without merit. Id. ¶¶ 25-
       29; see also People v. Smith, 2014 IL 115946, ¶ 35 (holding that a higher standard
       also applied to a successive petition based on cause and prejudice). If leave to file
       is granted, a successive petition is docketed for second-stage proceedings, at which




                                                - 12 -
       the petitioner must make a substantial showing of actual innocence to warrant an
       evidentiary hearing. Sanders, 2016 IL 118123, ¶¶ 25-28, 37; Wrice, 2012 IL
       111860, ¶ 90. The substantial showing required to avoid dismissal at the second
       stage is greater than the standard that must be satisfied to obtain leave to file a
       successive petition. See Smith, 2014 IL 115946, ¶ 29 (recognizing that the three-
       stage process for postconviction proceedings should not be rendered superfluous);
       see also People v. Morrow, 2019 IL App (1st) 161208, ¶ 51; People v. Lee, 2016
       IL App (1st) 152425, ¶ 47.

¶ 44        A request for leave to file a successive petition should be denied only where it
       is clear from a review of the petition and supporting documentation that, as a matter
       of law, the petition cannot set forth a colorable claim of actual innocence. Sanders,
       2016 IL 118123, ¶ 24 (citing Edwards, 2012 IL 111711, ¶ 24). Accordingly, leave
       of court should be granted where the petitioner’s supporting documentation raises
       the probability that it is more likely than not that no reasonable juror would have
       convicted the petitioner in light of the new evidence. Id.

¶ 45       At the pleading stage of postconviction proceedings, all well-pleaded
       allegations in the petition and supporting affidavits that are not positively rebutted
       by the trial record are to be taken as true. Id. ¶¶ 42, 48; Pitsonbarger, 205 Ill. 2d at
       455; Coleman, 183 Ill. 2d at 380-81, 385. In deciding the legal sufficiency of a
       postconviction petition, the court is precluded from making factual and credibility
       determinations. Sanders, 2016 IL 118123, ¶ 42; Coleman, 183 Ill. 2d at 390.


¶ 46                                    C. Actual Innocence

¶ 47       To establish a claim of actual innocence, the supporting evidence must be
       (1) newly discovered, (2) material and not cumulative, and (3) of such conclusive
       character that it would probably change the result on retrial. Edwards, 2012 IL
       111711, ¶ 32; see also People v. Coleman, 2013 IL 113307, ¶ 96; People v.
       Washington, 171 Ill. 2d 475, 489 (1996). Newly discovered evidence is evidence
       that was discovered after trial and that the petitioner could not have discovered
       earlier through the exercise of due diligence. Coleman, 2013 IL 113307, ¶ 96.
       Evidence is material if it is relevant and probative of the petitioner’s innocence. Id.
       Noncumulative evidence adds to the information that the fact finder heard at trial.
       Id. (citing People v. Molstad, 101 Ill. 2d 128, 135 (1984)). Lastly, the conclusive



                                                - 13 -
       character element refers to evidence that, when considered along with the trial
       evidence, would probably lead to a different result. Id. ¶ 96 (citing Ortiz, 235 Ill.
       2d at 336-37). The conclusive character of the new evidence is the most important
       element of an actual innocence claim. Washington, 171 Ill. 2d at 489.

¶ 48        Ultimately, the question is whether the evidence supporting the postconviction
       petition places the trial evidence in a different light and undermines the court’s
       confidence in the judgment of guilt. Coleman, 2013 IL 113307, ¶ 97. The new
       evidence need not be entirely dispositive to be likely to alter the result on retrial.
       Id. (citing People v. Davis, 2012 IL App (4th) 110305, ¶¶ 62-64). Probability, rather
       than certainty, is the key in considering whether the fact finder would reach a
       different result after considering the prior evidence along with the new evidence.
       Id.


¶ 49                 D. Petitioner’s Motion and Supporting Documentation

¶ 50       The question in this case is whether petitioner has set forth a colorable claim of
       actual innocence. Accordingly, we consider his motion for leave to file the
       successive petition, along with the supporting affidavits, to ascertain whether he
       has raised the probability that it is more likely than not that no reasonable juror
       would have convicted him in light of the new evidence.

¶ 51       We first address the affidavit of petitioner, which was attached to his motion
       for leave to file the successive petition. Petitioner’s affidavit averred that, on the
       day of Giles’s murder, he contacted her for her assistance with transporting gang
       weapons but she never arrived at his home. Petitioner further averred that, after
       spending the evening hours with Fatique Williams, Yasmyn Johnson, and Michelle
       McClendon, he spent the night at the apartment of Natasha Veasley-Boone and that
       she subsequently told him that she would deny they spent that night together.

¶ 52       In addition, petitioner’s affidavit also averred that he and Tucker were members
       of different sects of the same gang and had learned that Giles had received money
       from her cousin, who belonged to a rival gang. According to petitioner’s affidavit,
       Tucker considered Giles as “bait” in the ongoing war between the rival gangs.
       Petitioner’s affidavit explained that he had not come forward with this information
       previously because he feared for his safety and because a gang rule precluded him




                                               - 14 -
       from cooperating with the police against a fellow gang member. Lastly, petitioner
       averred that his trial attorney and his counsel on direct appeal and initial
       postconviction proceeding “were all made privy to this information” and that the
       “majority of these details herein was actually in my initial statement while being
       questioned by [d]etectives that was not used.”

¶ 53        As set forth above, evidence is newly discovered where it was discovered after
       trial and where the petitioner could not have discovered it earlier through the
       exercise of due diligence. Id. ¶ 96; People v. Harris, 206 Ill. 2d 293, 301 (2002).
       By its own terms, petitioner’s affidavit demonstrates that the information contained
       therein was known to him before trial and had been communicated to police
       detectives and to his trial counsel. Also, to the extent that the affidavit includes
       information that can be construed as alibi evidence, petitioner obviously was aware
       of that information prior to trial, and there is no indication that petitioner’s attorney
       attempted to subpoena these witnesses to testify at trial, nor is there any explanation
       of why subpoenas were not issued. See Edwards, 2012 IL 111711, ¶ 38 (citing
       Harris, 206 Ill. 2d at 301). In addition, the prior gang rule against cooperating with
       police against a fellow gang member did not inhibit petitioner’s ability to present
       this alibi evidence. Moreover, petitioner’s averment that he was no longer bound
       by that rule does not implicate Tucker in Giles’s murder or explain that petitioner
       incriminated himself in order to take responsibility for crimes committed by a
       fellow gang member. For all of these reasons, the content of petitioner’s affidavit
       is not newly discovered and will not be considered in support of his claim of actual
       innocence.

¶ 54       With regard to the affidavits of Mamon, Shaw, and Hunt-Bey, the appellate
       court assumed the validity of the circuit court’s finding that they satisfied the newly
       discovered and materiality elements of an actual innocence claim (2018 IL App
       (1st) 153547-U, ¶¶ 30, 36), and the State does not challenge that determination
       here. Accordingly, we review only the determination of whether the evidence set
       forth in the affidavits of these three uninvolved and disinterested parties was of
       such a conclusive character as would probably change the outcome on retrial.

¶ 55       We initially observe that the lower courts erred in applying an incorrect
       standard when considering the sufficiency of those three affidavits. The circuit and
       appellate courts cited People v. Barnslater, 373 Ill. App. 3d 512, 520 (2007), and




                                                - 15 -
       People v. Collier, 387 Ill. App. 3d 630, 636 (2008), respectively, in employing a
       standard that requires evidence of total vindication or exoneration to support a
       claim of actual innocence. See 2018 IL App (1st) 153547-U, ¶¶ 35, 38. Both
       Barnslater and Collier relied on the appellate court’s opinion in People v. Savory
       for that proposition. 309 Ill. App. 3d 408, 414-15 (1999) (addressing the statutory
       standard applicable to a postjudgment motion for DNA testing). However, in
       reviewing Savory, this court specifically rejected the total vindication or
       exoneration standard and explained that “evidence which is ‘materially relevant’ to
       a defendant’s claim of actual innocence is simply evidence which tends to
       significantly advance that claim.” People v. Savory, 197 Ill. 2d 203, 213 (2001).

¶ 56       As previously noted, the new evidence supporting an actual innocence claim
       need not be entirely dispositive to be likely to alter the result on retrial. Coleman,
       2013 IL 113307, ¶ 97. Rather, the conclusive-character element requires only that
       the petitioner present evidence that places the trial evidence in a different light and
       undermines the court’s confidence in the judgment of guilt. Id. Contrary to the
       approach taken by the lower courts, we apply the standard set forth above. 1

¶ 57       We further note that the appellate court erroneously premised its decision on a
       “conflicting evidence” standard. The appellate court held that the evidence in
       petitioner’s supporting affidavits does not satisfy the conclusive character element
       because it merely conflicts with the evidence presented at trial (2018 IL App (1st)
       153547-U, ¶ 47), and the State argues for affirmance on this ground. But this is not
       the proper inquiry at the leave-to-file stage of successive postconviction
       proceedings. This court has never held that a request for leave to file a successive
       petition must be denied if the new evidence conflicts with the trial evidence. And,
       indeed, such a requirement would be fundamentally illogical. If the new evidence
       of innocence does not contradict the evidence of petitioner’s guilt at trial, the filing
       of the successive petition would be pointless, and the purpose of the Act would be
       rendered meaningless, which is a result that must be studiously avoided. See 725
       ILCS 5/122-1(f) (West 2014) (authorizing the filing of a successive postconviction
       petition); see also Coleman, 183 Ill. 2d at 382 (recognizing that, where a petitioner’s


           1
             Although the State argues in its brief that petitioner’s supporting affidavits do not constitute
       “conclusive proof” or “conclusive evidence” of his innocence, the State conceded at oral argument
       that this court has never held that total exoneration is a requirement for an actual innocence claim.




                                                      - 16 -
       postconviction claims are premised on matters outside the record, the Act does not
       contemplate that such claims will be adjudicated on the pleadings).

¶ 58        Although this court has occasionally made reference to the insufficiency of new
       evidence that conflicts with trial evidence, we have not done so where the relevant
       inquiry involved a request for leave to file a successive petition based on actual
       innocence. Rather, those “conflicting evidence” references were made in cases that
       decided whether a petition should advance to a third-stage evidentiary hearing (see
       Sanders, 2016 IL 118123, ¶¶ 48, 52) or whether a new trial should be granted
       following such a hearing (see Coleman, 2013 IL 113307, ¶¶ 105, 114; Ortiz, 235
       Ill. 2d at 336-37). The difference between those cases and the procedural posture
       of this case is critical because a petitioner who requests leave to file a successive
       petition need not satisfy even the substantial showing burden to advance to the third
       stage—let alone the evidentiary burden to obtain a new trial after a third-stage
       hearing. As explained above, the standard for alleging a colorable claim of actual
       innocence falls between the first-stage pleading requirement for an initial petition
       and the second-stage requirement of a substantial showing. See Smith, 2014 IL
       115946, ¶ 29; see also Morrow, 2019 IL App (1st) 161208, ¶ 51; Lee, 2016 IL App
       (1st) 152425, ¶ 47.

¶ 59       In arguing for affirmance, the State places significant reliance on Sanders for
       the proposition that new conflicting evidence is insufficient to justify granting leave
       to file a successive petition. However, given its significantly different procedural
       context, Sanders does not control the result here. 2 In Sanders, we held that the new
       evidence presented in that case did not satisfy the substantial showing requirement
       to avoid dismissal at second-stage proceedings. Sanders, 2016 IL 118123, ¶ 55.
       But, as noted above, that standard is inapplicable here. Moreover, the decision in
       Sanders was also premised on the fact that a critical aspect of the new evidence—
       an assertion that the victim had been shot only once—was positively rebutted by
       autopsy evidence at trial establishing that the victim had been shot twice and died
       of multiple gunshot wounds. Id. ¶ 48.


           2
             We also summarily reject the assertion made by the State at oral argument that our precedent
       holding that the allegations in supporting affidavits must be accepted as true applies only to the fact
       that, if called as a witness, the affiant would testify consistently with the content of the affidavit.
       This court has never held, or even suggested, that the “accept as true” principle is confined to that
       limitation.




                                                       - 17 -
¶ 60        In this case, the appellate court apparently believed that the evidence in the
       supporting affidavits was positively rebutted simply because it was contradicted by
       the evidence presented at trial. That was error because recognizing the existence of
       a conflict with the trial evidence is not the same as finding that the new evidence is
       positively rebutted. For new evidence to be positively rebutted, it must be clear
       from the trial record that no fact finder could ever accept the truth of that evidence,
       such as where it is affirmatively and incontestably demonstrated to be false or
       impossible—like the single-gunshot evidence in Sanders. We now clarify that the
       inquiry applicable at the leave-to-file stage of successive proceedings does not
       focus on whether the new evidence is inconsistent with the evidence presented at
       trial. Rather, the well-pleaded allegations in the petition and supporting documents
       will be accepted as true unless it is affirmatively demonstrated by the record that a
       trier of fact could never accept their veracity. In assessing whether a petitioner has
       satisfied the low threshold applicable to a colorable claim of actual innocence, the
       court considers only whether the new evidence, if believed and not positively
       rebutted by the record, could lead to acquittal on retrial.

¶ 61       With the proper standards and analytical framework in mind, we consider the
       sufficiency of the supporting affidavits at issue here. The only disputed question is
       whether the allegations in the affidavits of Shaw, Mamon, and Hunt-Bey, which
       must be taken as true, are sufficient as a matter of law to establish a colorable claim
       of actual innocence. Id. ¶¶ 40, 42. Resolution of that issue requires that we ascertain
       whether the supporting affidavits raise the probability that it is more likely than not
       that no reasonable juror would have convicted petitioner. Id. ¶ 24; Edwards, 2012
       IL 111711, ¶ 24. Credibility findings and determinations as to the reliability of the
       supporting evidence are to be made only at a third-stage evidentiary hearing in a
       successive postconviction proceeding. Sanders, 2016 IL 118123, ¶ 42; Coleman,
       183 Ill. 2d at 390-91.

¶ 62       The State argues that Mamon’s affidavit is insufficient because it is internally
       inconsistent as to the number of people who were with Tucker on the night of the
       shooting and because the trial testimony by two eyewitnesses indicates that Mamon
       could not have been certain that petitioner’s “face wasn’t one of the faces he saw
       that night.”




                                               - 18 -
¶ 63        We disagree. First, the averments regarding the number of Tucker’s
       companions are not necessarily inconsistent. Those allegations reflect that Mamon
       first saw Tucker with one man and then later observed him with two men under the
       viaduct. The affidavit indicates that some time had elapsed between Mamon’s first
       and second observations of Tucker and also that the location of the car had changed.
       Considering the affidavit as a whole, it is clear that a third person could have joined
       Tucker or could have been simply outside of Mamon’s initial field of vision. The
       different references to the number of people present with Tucker is precisely the
       type of factual allegation that may be explored at an evidentiary hearing, but they
       are not an adequate reason to entirely reject the affidavit at the pleading stage of the
       proceedings.

¶ 64       Next, we find the State’s argument that Mamon could not be certain that
       petitioner was not under the viaduct at the time of the shooting to be without merit.
       According to the State, Mamon could not have seen that petitioner was not present
       because other occurrence witnesses testified that they could not discern the features
       of the men underneath the viaduct.

¶ 65       As set forth above, Mamon averred that, in December 1997, just days after
       Christmas, he witnessed someone get shot and shoved into a car. While standing at
       a bus stop, immediately after the occurrence of a bright flash and a gunshot, Mamon
       saw Tucker shove an AK-type weapon into the back seat of the car. Tucker and two
       men then got in the car and disappeared through the viaduct. Mamon’s affidavit
       includes an unqualified averment that petitioner’s face was not one of the faces that
       he saw that night. The State offers nothing in support of its assertion that Mamon
       could not have seen the faces of the men under the viaduct. The State fails to discuss
       or explain the different vantage points of the other occurrence witnesses, their
       positioning or distance involved with regard to the viaduct, and the lighting
       conditions or any obstructions that may have also been present. Mamon’s affidavit
       places Tucker, not petitioner, at the scene of Giles’s murder with an AK-type
       assault rifle in his hand. Although these allegations conflict with the record, they
       are not positively rebutted.

¶ 66      The State also challenges the sufficiency of Shaw’s affidavit, claiming that it
       only concerned the concealment of evidence, in which Tucker was already
       implicated. The State maintains that Shaw’s observation of someone disposing of




                                                - 19 -
       a rifle would not exonerate petitioner. Further, the State argues that this evidence
       would only serve to impeach Tucker, as the trial evidence already showed that he
       was involved in hiding Giles’s pager and ammunition.

¶ 67       In his affidavit, Shaw averred that he saw Tucker on December 28, 1997,
       driving a dark-colored Ford Contour in the alley behind the address of 8918 South
       Bennett Avenue, with two of petitioner’s acquaintances. While Shaw conversed
       with Tucker, one of the passengers got out of the car with an AK-type assault rifle,
       ran down a gangway on the other side of the alley, and returned without the rifle
       after one or two minutes. Shaw further averred that petitioner was not in the car.

¶ 68        Accepting these allegations as true, Shaw’s affidavit places Tucker in the same
       type of car that Giles drove, on the night of her murder with the possible murder
       weapon in the area where the gun was found. The police recovered the AK-type
       assault rifle they believed to have been used in the murder in the alley of 8900 South
       Bennett Avenue. Further, Shaw averred that petitioner was not in the car with
       Tucker, which corroborates Mamon’s affidavit that petitioner was not in the car
       with Tucker under the viaduct. More importantly, the affidavit directly contradicts
       trial testimony by placing Tucker, and not petitioner, in Giles’s car on the evening
       of the murder.

¶ 69        Finally, we reject the State’s argument with regard to the impeachment of
       Tucker. The purpose of impeaching evidence is to attack the credibility of a witness
       and not to establish the truth of the impeaching evidence. People v. Bradford, 106
       Ill. 2d 492, 499 (1985). Credibility determinations are not relevant at the motion for
       leave to file stage of successive postconviction proceedings. Coleman, 183 Ill. 2d
       at 385 (1998).

¶ 70       The State similarly challenges Hunt-Bey’s affidavit as insufficient to provide
       conclusive evidence of petitioner’s innocence. The State maintains that Hunt-Bey’s
       affidavit is rebutted by Muhammad’s trial testimony and by petitioner’s
       incriminating statement. The State also posits that Hunt-Bey’s affidavit is
       consistent with petitioner’s guilt under an accountability theory. Lastly, the State
       contends that this affidavit contains inadmissible hearsay.

¶ 71      The State concedes that Hunt-Bey’s averment, that he saw Tucker with two
       others in a red-maroonish Chevy Corsica at a gas station filling a gas can, is




                                               - 20 -
       consistent with trial testimony that the men who burned Giles’s body were in such
       a car. The State maintains, however, that the fact that Hunt-Bey saw Tucker, and
       not petitioner, in the car was rebutted by Muhammad’s testimony that she drove
       petitioner and Ganaway. The State also maintains that Hunt-Bey’s affidavit was
       further rebutted by petitioner’s statement that he and Ganaway were in the car with
       Muhammad during the trip to the gas station before they lit the garbage can on fire.

¶ 72       Hunt-Bey avers that, between 10 and 11 a.m. on December 29, 1997, he
       encountered Tucker and two other men in a red Corsica at a gas station. According
       to Hunt-Bey’s affidavit, Tucker confessed to murdering a woman the night before
       under a viaduct on South Chicago Avenue. Tucker also said that he had to “tie up
       some loose ends” prior to filling a gas can and leaving the station. The next day
       Hunt-Bey heard that petitioner had confessed to the murder and the burning of the
       body. Hunt-Bey stated that he, Tucker, and petitioner were in the same gang and
       that, because of its “code of silence,” he knew petitioner was “taking the rap” for
       Tucker and he could not come forward with this information sooner.

¶ 73       We observe that Hunt-Bey’s affidavit is consistent with the trial record
       regarding the location and timing of the murder. It is also consistent with the timing
       of the burning of Giles’s body and the type of car the men used. Thus, this affidavit
       substantiates, with detailed circumstantial evidence, the occurrences of Giles’s
       murder and the burning of her body. Further, Tucker’s confession is an admission
       of guilt by the culpable party and, therefore, identifies a different offender. See
       Ortiz, 235 Ill. 2d at 337 (recognizing that the identification of a different offender
       provides evidence that the facts and surrounding circumstances should be
       scrutinized more closely to determine the petitioner’s guilt or innocence); see also
       Molstad, 101 Ill. 2d at 136. The fact that the affidavit conflicts with, but is not
       positively rebutted by, the State’s witnesses on the identification of the person who
       killed Giles is insufficient to reject it. Instead, it is a reason to allow petitioner to
       proceed, with counsel, on his colorable claim of actual innocence.

¶ 74       The State also posits that the averment of Tucker’s confession in Hunt-Bey’s
       affidavit does not preclude petitioner’s guilt. According to the State, Tucker’s
       confession does not unequivocally assert that he personally shot Giles and could be
       construed as an admission that he was involved in her murder with accomplices,
       including petitioner. The State also contends that petitioner’s admission that he




                                                - 21 -
       planned the murder would make him accountable even if an accomplice had pulled
       the trigger. In support, the State relies on our decision in Edwards, which held that
       a codefendant’s affidavit stating that he was the principal offender was not
       conclusive proof of innocence because petitioner could still have been accountable.
       Edwards, 2012 IL 111711, ¶ 39.

¶ 75       This argument is entirely without merit. In Edwards, this court observed that
       the newly discovered evidence did little to exonerate the petitioner, who was
       convicted of the murder under the theory of accountability. Id. Here, the State never
       introduced an accountability theory into the case. Petitioner was not charged or
       indicted under such a theory, and accountability was not argued at trial.

¶ 76       We observe that Hunt-Bey’s affidavit is not only consistent with other evidence
       in the record regarding the circumstances of Giles’s shooting and the burning of her
       body, but it also presents new evidence of significant details that are missing from
       the record. Further, the affidavit provides evidence that a different party is guilty,
       which is of such a conclusive character as to lead to a different result on retrial. See
       People v. White, 2014 IL App (1st) 130007, ¶ 29.

¶ 77       In considering the sufficiency of Hunt-Bey’s affidavit, we also address the
       parties’ arguments as to the admissibility of his averment that Tucker confessed to
       the murder. Petitioner argues that this averment must be considered in ascertaining
       whether he has alleged a colorable claim of actual innocence. The State opposes
       petitioner’s argument based on its assertion that Tucker’s confession would be
       inadmissible hearsay at a new trial.

¶ 78       The parties acknowledge that Illinois Rule of Evidence 1101(b)(3) (eff. Sept.
       17, 2019) specifically provides that the rules of evidence do not apply to
       postconviction hearings. The State maintains, however, that the averment of
       Tucker’s confession does not enhance the validity of petitioner’s actual innocence
       claim. In the State’s view, because Tucker’s confession would be inadmissible
       hearsay on retrial, it cannot be considered in assessing the conclusive character of
       petitioner’s newly discovered evidence. In support of this argument, the State relies
       on People v. Wallace, 2015 IL App (3d) 130489, ¶ 29, for the proposition that
       inadmissible hearsay “is insufficient as a matter of law to support a claim of actual
       innocence.” The State’s reliance is misplaced because Wallace cited People v.
       Coleman, 2012 IL App (4th) 110463, ¶ 55, as authority for that proposition.



                                                - 22 -
       Coleman, however, was decided before Rule 1101 was amended to include
       postconviction hearings among the list of proceedings to which the rules of
       evidence do not apply. Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013). Thus, cases
       decided prior to the amendment of Rule 1101 do not govern a postconviction
       court’s consideration of hearsay evidence. See People v. Velasco, 2018 IL App (1st)
       161683, ¶¶ 119, 123 (taking as true, pursuant to Rule 1101(b)(3), hearsay allegation
       that another gang member bragged to affiant about committing the murder and
       advancing actual innocence petition to third stage); Warren, 2016 IL App (1st)
       090884-C, ¶¶ 166-67; (Gordon, J., specially concurring) (finding that admissibility
       is not the standard even at third-stage postconviction hearings and indicating that
       this should apply more strongly at earlier stages where the imprisoned defendant
       lacks ready access to counsel).

¶ 79      The State also relies on People v. Shaw, 2019 IL App (1st) 152994, ¶ 67, which
       posited that, because the evidence supporting an actual innocence claim must be of
       such a conclusive character that it would probably change the result on retrial, the
       court’s assessment of that evidence “necessarily encompasses a determination of
       whether that evidence would be admissible at a retrial.” However, the Shaw court
       proceeded to consider the hearsay affidavit supporting the petitioner’s claim
       because the amendment of Rule 1101 made the evidence rules inapplicable to
       postconviction proceedings. Id.

¶ 80       In accordance with the dictates of Rule 1101(b)(3), Tucker’s confession, as set
       forth in Hunt-Bey’s affidavit, must be considered in evaluating petitioner’s actual
       innocence claim, and we hold that such evidence is of such a conclusive character
       as to probably change the outcome at a retrial. See White, 2014 IL App (1st)
       130007, ¶¶ 26-29 (finding that a new affidavit identifying someone else as the
       murderer was sufficient to advance the successive petition to the second stage even
       where the affidavit conflicted with trial evidence of multiple witnesses identifying
       the defendant, noting that the affidavit would require credibility determinations that
       the court could not make); People v. Adams, 2013 IL App (1st) 110081, ¶ 36
       (finding that, where the statement of a witness is both exonerating and contradicts
       a State witness, it can be capable of producing a different outcome at retrial).

¶ 81      We note that the parties have also presented opposing arguments as to whether
       Tucker’s confession is reliable and trustworthy and would be admissible at a new




                                               - 23 -
       trial. Those arguments are premised on Chambers v. Mississippi, 410 U.S. 284,
       300-01 (1973), in which the United States Supreme Court articulated four factors
       that are relevant in determining whether there are sufficient indicia of
       trustworthiness to admit an extrajudicial confession. However, given the procedural
       posture of this case, the parties’ reliability arguments are premature. See Sanders,
       2016 IL 118123, ¶¶ 33, 42 (holding that credibility determinations are made at a
       third-stage evidentiary hearing); Coleman, 183 Ill. 2d at 385 (same); Warren, 2016
       IL App (1st) 090884-C, ¶¶ 96-97, 164; (holding that a determination as to the
       trustworthiness of statements is an issue that should be considered first by the trial
       court). The final determination as to the admissibility of Tucker’s extrajudicial
       confession cannot, and should not, be made until after petitioner has overcome the
       hurdles of second- and third-stage proceedings. Accordingly, questions regarding
       the admissibility and reliability of such evidence are not relevant considerations at
       the motion for leave to file stage of a successive postconviction proceeding.

¶ 82       Here, no physical or forensic evidence linked petitioner to the crimes, and no
       eyewitness identified him as being involved or even present at the time of the
       relevant events. The only trial evidence directly linking petitioner to the crimes was
       his own inculpatory statement and the testimony of Tucker, Muhammad, and
       McClendon, the State witnesses to whom petitioner allegedly confessed. We note,
       however, that both Tucker and Muhammad themselves were implicated in the
       offenses, where Tucker admittedly possessed physical evidence consisting of
       Giles’s pager and the box of ammunition and Muhammad testified that she drove
       petitioner and Ganaway to a gas station on the day Giles’s body was burned. Also,
       McClendon admitted that she did not contact the police despite allegedly learning
       of petitioner’s involvement in the crimes.

¶ 83       Although this testimony and petitioner’s lengthy, detailed statement provide
       evidence of his guilt, that trial evidence is directly contradicted by the affidavits of
       Mamon, Shaw, and Hunt-Bey, who were not involved in the crimes. Without
       engaging in any credibility determinations, there is no way for this court—or any
       court—to assess the reliability of those affidavits or the veracity of their assertions.
       Taking as true the allegations in the supporting affidavits, as we must at the
       pleading stage, we conclude that a fact finder could determine that the new evidence
       exculpates petitioner from any involvement in the crimes and refutes the State’s
       evidence at trial. Accordingly, we find that petitioner’s motion and supporting




                                                - 24 -
       documentation contain evidence of such a conclusive character that, when
       considered along with the trial evidence, would probably lead to a different result.
       See Coleman, 2013 IL 113307, ¶ 96. In light of our conclusion, we hold that the
       lower courts erred in denying him leave to file his successive postconviction
       petition. Based on the foregoing, we need not address petitioner’s other contentions
       of error by the appellate court.


¶ 84                                   III. CONCLUSION

¶ 85       In sum, the only issue presented in this case is whether petitioner may file his
       successive postconviction petition that alleges he is actually innocent of the crimes
       for which he has been convicted and sentenced. The new evidence supporting the
       petition need not be completely dispositive of petitioner’s innocence. Rather, it
       need only be of such a conclusive character as to probably change the result upon
       retrial. Granting leave to file means that the petition advances to second-stage
       proceedings, at which counsel will be appointed and the State can either move for
       dismissal or file an answer. Because petitioner has satisfied the pleading
       requirements for granting leave to file a successive postconviction petition, his
       claim of actual innocence must be advanced to second-stage proceedings.
       Accordingly, we reverse the judgments of the appellate and circuit courts and
       remand the cause to the circuit court for further proceedings.


¶ 86      Judgments reversed.

¶ 87      Cause remanded.


¶ 88      JUSTICE MICHAEL J. BURKE, dissenting:

¶ 89       Reading the majority opinion, one would think that it is still an open question
       what standard applies at the leave-to-file stage of postconviction proceedings when
       a petitioner raises a freestanding claim of actual innocence. That is incorrect. In
       People v. Edwards, this court explained that “leave of court should be granted when
       the petitioner’s supporting documentation raises the probability that ‘it is more
       likely than not that no reasonable juror would have convicted him in light of the




                                              - 25 -
       new evidence.’ ” People v. Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup v. Delo,
       513 U.S. 298, 327 (1995)). This standard has been faithfully applied by Illinois
       courts ever since. Today, a majority of this court holds that the correct standard is
       something else entirely. According to the majority, the correct standard is “whether
       the new evidence, if believed and not positively rebutted by the record, could lead
       to acquittal on retrial.” Supra ¶ 60. This standard has no foundation in this court’s
       case law. The appellate court correctly applied the Edwards standard and correctly
       determined that petitioner failed to satisfy it. I therefore cannot join the majority
       opinion.


¶ 90                                          Edwards

¶ 91       In Edwards, the petitioner was found guilty of first degree murder on an
       accountability theory. Edwards, 2012 IL 111711, ¶ 3. His conviction was largely
       based on his own statement placing him at the scene of the crime. Id. ¶ 7. After the
       petitioner’s direct appeal and initial postconviction proceedings were unsuccessful,
       the petitioner sought leave to file a successive postconviction petition. Id. ¶ 9. The
       circuit court denied leave to file, finding that the petitioner could not establish cause
       and prejudice. Id. The appellate court affirmed. Id.

¶ 92       The petitioner then sought leave to file his third postconviction petition. The
       petition alleged actual innocence and was supported with two affidavits. Id. ¶ 10.
       The circuit court once again denied leave to file. Id. ¶ 11. The petitioner then sought
       leave to file his fourth postconviction petition, once again alleging actual innocence
       based on newly discovered evidence and once again supported by two affidavits.
       Id. ¶ 12. The circuit court denied leave to file the fourth postconviction petition. Id.
       ¶ 14. The appeals of the denials of his third and fourth petitions were consolidated.
       Id. ¶ 15. The appellate court affirmed the circuit court’s denial of leave to file the
       petitions, finding that the petitioner had failed to state a claim of actual innocence.
       Id. ¶¶ 15-16. Justice Gordon dissented, arguing that the appellate court had applied
       the wrong standard. According to Justice Gordon, a “low threshold” applied at the
       leave-to-file stage of successive postconviction proceedings, and leave to file
       should be denied only if the petition had no arguable basis in law or fact. Id. ¶ 17.
       This court allowed the petitioner’s petition for leave to appeal. Id. ¶ 18.




                                                - 26 -
¶ 93       This court began its analysis by explaining that the parties’ dispute centered on
       “the standard a petitioner claiming actual innocence must meet in seeking leave of
       court to initiate a successive postconviction proceeding under the Act.” Id. ¶ 20.
       This court then explained that the standard is as follows:

          “With respect to those seeking to relax the bar against successive postconviction
          petitions on the basis of actual innocence, we hold today that leave of court
          should be denied only where it is clear, from a review of the successive petition
          and the documentation provided by the petitioner that, as a matter of law, the
          petitioner cannot set forth a colorable claim of actual innocence. See People v.
          Smith, 341 Ill. App. 3d 530, 536 (2003) (citing Sawyer, 505 U.S. at 339 (actual
          innocence defined in context of federal habeas petitions as colorable claim of
          factual innocence)); Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)
          (habeas petitioner must initially come forward with new reliable evidence to
          support ‘colorable claim of actual innocence’ under fundamental-miscarriage-
          of-justice exception). Stated differently, leave of court should be granted when
          the petitioner’s supporting documentation raises the probability that ‘it is more
          likely than not that no reasonable juror would have convicted him in the light
          of the new evidence’ (Schlup v. Delo, 513 U.S. 298, 327 (1995) (characterizing
          threshold standard as one of probability)).” Id. ¶ 24.

¶ 94        This court next gave several reasons why it was rejecting the position of the
       petitioner and the appellate court dissent that the low threshold applicable to the
       first stage of initial postconviction petitions should be applied to the leave-to-file
       stage of successive postconviction proceedings. First, the “leave of court” language
       in section 122-1(f) of the Act would be rendered superfluous if this court applied
       the “frivolous or patently without merit” standard to a successive petition. Id. ¶¶ 25-
       26.

¶ 95       Second, section 122-1(f) makes no mention of a frivolous or patently without
       merit standard. Id. ¶ 27. Third, the legislative history of section 122-1(f) confirmed
       that (1) the Act contemplates only one postconviction petition being filed without
       leave of court and (2) the legislature intended to make Illinois law consistent with
       federal law in this manner. This court explained that the legislative history
       supported a conclusion that a “ ‘colorable claim of actual innocence’ ” standard
       should apply and that this would be consistent with the standard federal courts use




                                               - 27 -
       when applying the fundamental-miscarriage-of-justice exception. Id. ¶ 28. Finally,
       this court explained that it is well settled that successive postconviction petitions
       are disfavored and that applying a first stage standard to a successive petition would
       be inconsistent with this principle. Id. ¶ 29.

¶ 96        The court then considered the supporting documentation that the petitioner
       provided and determined that the petitioner had failed to establish that it was more
       likely than not that no reasonable juror would have convicted him in light of the
       new evidence. Id. ¶¶ 31-40. The court explained that affidavits that the petitioner
       provided from alibi witnesses were not newly discovered. Id. ¶¶ 34-37. That left
       only the affidavit of a witness who said that the petitioner “ ‘had nothing to do with
       this shooting’ ” and that the petitioner was neither “ ‘a part [of nor] took part in this
       crime.’ ” Id. ¶ 39. This court agreed with the appellate court that this evidence did
       “ ‘little to exonerate’ ” the petitioner because he was convicted on an accountability
       theory. Id. Thus, the court held that the petitioner had failed to show that, in light
       of the new evidence, it was more likely than not that no reasonable juror would
       have convicted him. Id. ¶ 40. In other words, the petitioner’s evidence was not “ ‘of
       such conclusive character that it would probably change the result on retrial.’ ” Id.
       (quoting People v. Morgan, 212 Ill. 2d 148, 154 (2004)).

¶ 97       Thus, the very question facing the Edwards court was what standard applies at
       the leave-to-file stage of successive postconviction proceedings when a petitioner
       brings a freestanding claim of actual innocence. This court thoroughly analyzed
       that question, adopted a standard, explained where that standard came from, and set
       forth several reasons why a lower standard did not apply. This is not an open
       question.


¶ 98                              The Appellate Court’s Analysis

¶ 99       Contrary to what the majority claims, the appellate court did not apply an
       improper standard. The appellate court properly applied Edwards and determined
       that petitioner had failed to make the required showing. 2018 IL App (1st) 153547-
       U, ¶¶ 36-47. The majority mischaracterizes the appellate court’s analysis in two
       important ways. First, the majority claims that:




                                                - 28 -
               “The appellate court held that petitioner’s confession, which was consistent
           with the testimony of several State witnesses, overwhelmingly pointed to
           petitioner as the person who murdered Giles and burned her body and that the
           new evidence would not totally vindicate or exonerate petitioner.” (Emphasis
           added.) Supra ¶ 32 (citing 2018 IL App (1st) 153547-U, ¶¶ 35-47).

        Here is what the appellate court actually said in paragraph 47 of its opinion:

                “Muhammad, McClendon, and Tucker all testified to defendant’s
           involvement in Giles’s murder and corroborated defendant’s own court-
           reported confession. This evidence overwhelmingly pointed to defendant as the
           person who murdered Giles and burned her body. Accordingly, the affidavits
           of Shaw, Mamon, and Hunt-Bey are not of such a conclusive character that they
           would probably change the result on retrial, as they merely conflict with
           defendant’s confession and other testimony presented at trial. See People v.
           Mabrey, 2016 IL App (1st) 141359, ¶ 30. Given each affidavit’s individual
           deficiencies and in light of the strong evidence of defendant’s guilt presented at
           trial, we cannot find that ‘no reasonable juror would have convicted him in light
           of the new evidence[.]’ Edwards, 2012 IL 111711, ¶ 31. Defendant therefore
           has failed to present a colorable claim of actual innocence based on these
           affidavits.” 2018 IL App (1st) 153547-U, ¶ 47.

¶ 100       In other words, the appellate court correctly applied the Edwards standard and
        determined that petitioner failed to meet it. Rather than simply citing this paragraph,
        the majority cites paragraphs 35 to 47. Supra ¶ 32. By using this 12-paragraph
        citation, the majority brings in paragraph 35 of the opinion, where the appellate
        court was citing boilerplate legal principles applicable to actual innocence claims
        and said that the “ ‘hallmark of “actual innocence” means “total vindication,” or
        “exoneration.” ’ ” 2018 IL App (1st) 153547-U, ¶ 35 (quoting People v. Collier,
        387 Ill. App. 3d 630, 636 (2008), citing People v. Savory, 309 Ill. App. 3d 408,
        414-15 (1999)). The majority later explains that a petitioner is not required to
        demonstrate total vindication or exoneration. Supra ¶ 55. Nevertheless, as clearly
        demonstrated above, when it came time to apply the law to the facts, the appellate
        court held that petitioner had failed to meet the Edwards standard and therefore had
        failed to present a colorable claim of actual innocence. 2018 IL App (1st) 153547-
        U, ¶ 47.




                                                - 29 -
¶ 101       In further attempting to demonstrate that the appellate court applied an incorrect
        standard, the majority states that, “The court found that the affidavits of Mamon,
        Shaw, and Hunt-Bey did little to exonerate petitioner, noting that none of the
        affiants saw the murder take place or saw who burned the body.” Supra ¶ 32 (citing
        2018 IL App (1st) 153547-U, ¶ 36). Here is what paragraph 36 of the appellate
        court opinion actually says:

               “Here, even assuming that the attached affidavits of Shaw, Mamon, and
           Hunt-Bey are newly discovered and material and noncumulative, they are not
           of such a character as to probably change the result on retrial. As our supreme
           court noted in People v. Edwards, 2012 IL 111711, to set forth a colorable claim
           of actual innocence, a defendant’s ‘request for leave of court and his supporting
           documentation [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[.]’
           Edwards, 2012 IL 111711, ¶ 31. Defendant’s evidence cannot meet this
           burden.” 2018 IL App (1st) 153547-U, ¶ 36.

        Once again, the majority claims that the appellate court is applying an exoneration
        standard when it is in fact applying the Edwards standard.

¶ 102       The appellate court’s only use of the word “exonerate” in its application of the
        law to the facts was when it stated that Shaw’s affidavit did not exonerate petitioner
        but merely provided circumstantial evidence to challenge the sufficiency of the
        evidence supporting petitioner’s conviction. Id. ¶ 38. But this court also used
        “exonerate” in this same fashion in Edwards when it stated that it agreed with the
        appellate court that one of the petitioner’s affidavits did “ ‘little to exonerate
        defendant.’ ” Edwards, 2012 IL 111711, ¶ 39. It is difficult to see why the appellate
        court’s isolated use of the very same word this court used in Edwards amounts to
        reversible error.

¶ 103       The majority’s second major mischaracterization of the appellate court opinion
        is when the majority claims that the appellate court applied an improper
        “conflicting evidence” standard. This misreading of the appellate court opinion is
        significant, as the majority later uses it as justification to replace the Edwards
        standard with a new one. The majority initially states—correctly—that the
        appellate court held that the petitioner could not meet the conclusive-character
        element because his evidence merely conflicted with the evidence presented at trial.



                                                - 30 -
        Supra ¶ 57. However, the majority thereafter ignores the appellate court’s use of
        the word “merely” and criticizes the appellate court for holding that a petitioner’s
        evidence can be rejected on the basis that it conflicts with the trial evidence. Supra
        ¶ 57. The majority states that this court has “never held that a request for leave to
        file a successive petition must be denied if the new evidence conflicts with the trial
        evidence.” Supra ¶ 57. The majority then claims that the appellate court was taking
        a “fundamentally illogical” position because rejecting new evidence of innocence
        on the basis that it conflicts with trial evidence would make the filing of successive
        petitions pointless and render the purpose of the Act meaningless. Supra ¶ 57.

¶ 104       With all due respect to my colleagues in the majority, this is simply not what
        the appellate court was saying. By ignoring the appellate court’s use of the word
        “merely,” the majority makes it sound like the appellate court was saying something
        absurd when in fact the appellate court was saying something quite reasonable. The
        appellate court did not hold that petitioner failed to meet his burden because his
        evidence conflicted with the trial evidence. Rather, the court held that petitioner
        failed to meet his burden because his evidence merely conflicted with the trial
        evidence. The appellate court stated that, “the affidavits of Shaw, Mamon, and
        Hunt-Bey are not of such a conclusive character that they would probably change
        the result on retrial, as they merely conflict with defendant’s confession and other
        testimony presented at trial.” 2018 IL App (1st) 153547-U, ¶ 47. The appellate
        court did not find petitioner’s new evidence insufficient because it conflicted with
        the trial evidence. Rather, it found it insufficient because that is all it did. In other
        words, petitioner’s new evidence conflicted with the trial evidence but fell short of
        being conclusive. Obviously, all evidence of actual innocence will necessarily
        conflict with evidence that established a petitioner’s guilt beyond a reasonable
        doubt. That is the whole point of such evidence. But it must do more than merely
        conflict; it must be conclusive. The conclusiveness of the new evidence is the most
        important element of an actual innocence claim. People v. Washington, 171 Ill. 2d
        475, 489 (1996). Here, the appellate court held that petitioner’s evidence merely
        conflicted with the trial evidence but was not conclusive as to his innocence.

¶ 105       There is nothing at all unreasonable or incorrect about what the appellate court
        held. Indeed, this court has found newly discovered evidence insufficient on this
        same basis. As the majority concedes, this court held in People v. Sanders, 2016 IL
        118123, that a petitioner’s newly discovered evidence was insufficient when it




                                                 - 31 -
        merely conflicted with the trial evidence but was not conclusive. Here is this court
        in Sanders explaining why it found the petitioner’s new evidence insufficient:

           “This leaves the testimony of petitioner denying all involvement and that of his
           girlfriend, Felicia Hollivay, who provided an alibi for petitioner starting at
           midnight on the night of the murder. Thus, Bingham’s recantation is contrary
           not only to his own testimony at petitioner’s trial, but also to the testimony of
           Ramseur and Barfield, who positively identified petitioner as being with
           Bingham and May at Barfield’s house the night of the murder and as having
           participated in the events leading up to Cooks’ murder. It is also contradicted
           by the pathologist’s testimony that Cooks was shot twice in the head, not once,
           as Bingham claimed in his recantation. Bingham’s recantation testimony merely
           adds conflicting evidence to the evidence adduced at the trial. Even taking the
           well-pleaded facts as true, we conclude that the recantation is not of such
           conclusive character as would probably change the result on retrial.

               The same must be said of the factual statements in DeRamus’s affidavit.
           Her statements merely contradict the testimony of other occurrence witnesses.
           Further, we note that DeRamus’s statement that Bingham “marched” Cooks out
           the back door of Barfield’s house directly contradicts Bingham’s recantation
           testimony when he said that he picked up Cooks, threw him over his shoulder,
           and took him out the back door. Like Bingham’s recantation, DeRamus’s
           proposed testimony would merely add to the evidence the jury heard at
           petitioner’s trial. It is not so conclusive in character as would probably change
           the result on retrial, either by itself or in conjunction with Bingham’s
           recantation.” (Emphases added.) Id. ¶¶ 52-53.

¶ 106       The majority tries to distinguish Sanders by arguing that it was decided in a
        “significantly different procedural context” because it was decided at the second
        stage rather than at the leave-to-file stage. Supra ¶ 59. But this is a distinction
        without a difference, as both the leave-to-file stage and the second stage are stages
        in which all well-pleaded factual allegations are taken as true. 3 In Sanders, this

           3
            The appellate court reached the same conclusion in People v. Brown, where it noted:
               “Although we recognize that Sanders arose from a slightly different procedural posture
           than this case, in that it was an appeal from a second-stage dismissal of a successive
           postconviction petition (and it was unclear whether the trial court in Sanders recognized that it




                                                     - 32 -
        court, while acknowledging that it had to take all well-pleaded facts as true
        (Sanders, 2016 IL 118123, ¶¶ 31, 33), still rejected the petitioner’s evidence on the
        basis that all it did was add conflicting evidence to what the jury already heard (id.
        ¶¶ 52-53). Similarly, the appellate court here, although it was required to take the
        affidavits as true, could still properly find that petitioner failed to meet his burden
        when his new evidence merely added conflicting evidence to what the jury heard
        but was not conclusive as to his innocence. The difference between the leave-to-
        file stage and the second stage is that the petitioner must at the leave-to-file stage
        raise the probability that it is more likely than not that no reasonable juror would
        have convicted him in light of the new evidence (Edwards, 2012 IL 111711, ¶ 33),
        while at the second stage the petitioner’s burden raises from a “probability” to a
        “substantial showing” (Sanders, 2016 IL 118123, ¶ 37). If the majority believes
        that the difference in the first- and second-stage burdens is relevant to whether a
        court may find new evidence insufficient on the basis that it merely conflicts with
        trial evidence, then it is incumbent on the majority to explain why. It is not
        sufficient to simply state that the two are “significantly different procedural
        contexts.”

¶ 107      The majority also distinguishes Sanders on the basis that a critical aspect of the
        new evidence in that case was positively rebutted by autopsy evidence. Supra ¶ 59.
        But, as the above block quote from Sanders demonstrates, other evidence was
        found to be insufficient because it merely conflicted with the testimony of other
        occurrence witnesses and was not conclusive. The majority simply ignores this
        aspect of Sanders.

¶ 108       The appellate court recently interpreted Sanders to mean that leave to file may
        be properly denied when a petitioner’s new evidence merely adds conflicting
        evidence to what the jury heard but falls short of being conclusive. See People v.
        Simms, 2020 IL App (1st) 161067. In that case, the court upheld the trial court’s
        denial of leave to file a successive postconviction petition alleging actual
        innocence. In discussing Sanders, the appellate court noted:


           was a successive petition before docketing it for further proceedings), the requirement that all
           well-pleaded factual allegations are taken as true applies equally in this case as in Sanders,
           and it is thus helpful to our analysis of this issue.” (Emphases added.) People v. Brown, 2017
           IL App (1st) 150132, ¶ 61 n.2, vacated on other grounds and appeal dismissed, No. 123252
           (Ill. Jan. 24, 2019).




                                                     - 33 -
               “In Sanders, the codefendant stated he was alone when he committed the
           offense and that his prior testimony identifying the petitioner as participating in
           the crime was not true. Id. ¶ 16. A witness who provided an affidavit in support
           of the successive postconviction petition averred that the codefendant acted
           alone at all times when she was observing the commission of part of the offense
           (aggravated kidnapping). Id. ¶ 15. If all that were required was to take the
           recantation and averment as true and would be believed by a reasonable juror
           and ask if the defendant could still be convicted, then the result of the
           petitioner’s trial in Sanders would have to have been different: based on that
           “true” evidence Sanders did not commit aggravated kidnapping and did not
           participate in the murder. The only explanation for our supreme court’s holding
           is that more is required of courts considering claims of actual innocence.” Id.
           ¶ 42.

        The court followed Sanders and held that the trial court correctly denied leave to
        file the successive postconviction petition because the petitioner’s newly
        discovered evidence was not conclusive as to his innocence but merely added
        conflicting evidence to the evidence heard at trial, including the petitioner’s
        multiple confessions. Id. ¶¶ 43-47.

¶ 109       Presiding Justice Ellis dissented, arguing that his primary disagreement with the
        majority was over what it meant to take an affidavit as true. Id. ¶ 53 (Ellis, P.J.,
        dissenting). The dissent argued that the majority merely assumed that the affiant
        would testify consistently with the affidavit at a new trial. Id. ¶ 54. By contrast, the
        dissent argued that a court must assume that a reasonable juror would believe the
        testimony at a new trial and that the proper inquiry is whether “it is more likely than
        not that no reasonable juror, hearing and believing this evidence, alongside all the
        other evidence presented at trial, could convict defendant.” (Emphasis omitted.) Id.
        ¶ 57. Applying this standard, the dissent concluded that the petitioner had presented
        fully exonerating evidence. Id. ¶¶ 72-73.

¶ 110       The Simms dissent’s position simply cannot be reconciled with Sanders. If this
        court in Sanders had assumed that a reasonable juror would believe the petitioner’s
        newly discovered evidence, then this court would have had no choice but to reverse
        the lower courts and remand for an evidentiary hearing. If a reasonable juror
        believed the petitioner’s new evidence, then that juror would have no choice but to




                                                 - 34 -
        acquit the petitioner at a new trial. That is not what this court held. The majority
        claims that this court has “never held, or even suggested,” that the taken-as-true
        requirement means that an “affiant would testify consistently with the content of
        the affidavit.” Supra ¶ 59 n.2. However, in People v. Coleman, 183 Ill. 2d 366
        (1998), this court set forth what it meant to take an affidavit as true in the context
        of a postconviction petition alleging ineffective assistance of counsel at the
        aggravation/mitigation phase of a capital sentencing hearing. This court stated:

           “We, therefore, will examine defendant’s assertions on their merits. In so doing,
           we will assume the truth of all defendant’s well-pleaded allegations in
           conformity with the procedural posture of this case. In other words, we will
           presume that had defense counsel called these witnesses, they would have
           testified in a manner consistent with their affidavits and that the proffered
           evidence would have been considered by the sentencing judge as required under
           our death penalty statute.” (Emphases added.) Id. at 403.

        While the above statement was made in a slightly different context, the sense in
        which it used “taken as true” must have been the sense in which this court was
        applying the “taken as true” requirement in Sanders. If this court were assuming
        that a reasonable juror would believe the new evidence, this court would have had
        no choice but to reverse. Merely assuming that the affiant would testify consistently
        with the affidavit is consistent with Edwards, which requires a court to make a
        probabilistic determination about what a reasonable juror would do at a trial that
        included the new evidence. See Edwards, 2012 IL 111711, ¶ 24; People v.
        Coleman, 2013 IL 113307, ¶ 96 (“conclusive means the evidence, when considered
        along with the trial evidence, would probably lead to a different result”).

¶ 111       Moreover, if the position of the Simms dissent is correct, then a petitioner
        seeking leave to file a successive postconviction petition based on actual innocence
        would have an extremely low burden. Indeed, an evidentiary hearing would be
        available to any defendant who could find someone to file an affidavit telling a
        story inconsistent with the trial evidence. Assume a case in which 20 eyewitnesses
        who knew the defendant personally testified that they saw him commit a murder.
        Years later, if the defendant could find someone in prison to sign an affidavit saying
        that he saw the defendant in a different city at the time of the murder, that defendant
        would automatically be granted leave to file, pass stage two, and be entitled to an




                                                - 35 -
        evidentiary hearing. Any such outcome would be completely contradictory to the
        leave-to-file standard adopted in Edwards.

¶ 112      In sum, the appellate court applied the correct standard—Edwards—and
        concluded that leave to file was properly denied. The court explained that:

           “Given each affidavit’s individual deficiencies and in light of the strong
           evidence of defendant’s guilt presented at trial, we cannot find that ‘no
           reasonable juror would have convicted him in light of the new evidence[.]’
           Edwards, 2012 IL 11711, ¶ 31. Defendant therefore has failed to present a
           colorable claim of actual innocence based on these affidavits.” 2018 IL App
           (1st) 153547-U, ¶ 47.

        The appellate court’s isolated use of the word “exonerate” in the same manner that
        this court used that term in Edwards does not mean that the appellate court applied
        an improper standard. Moreover, the appellate court did not apply an improper
        “conflicting evidence” standard but rather rejected petitioner’s evidence on the
        basis that it merely conflicted with the trial evidence but fell short of being
        conclusive.


¶ 113                             The Majority’s New Standard

¶ 114       Notwithstanding that the applicable standard at the leave-to-file stage of
        postconviction proceedings when the petitioner raises a freestanding claim of actual
        innocence was the precise issue considered and resolved in Edwards, the majority
        holds that the correct standard is something else entirely. The majority, relying on
        its mischaracterization of the appellate court opinion as adopting a “conflicting
        evidence” standard, explains:

               “In this case, the appellate court apparently believed that the evidence in the
           supporting affidavits was positively rebutted simply because it was contradicted
           by the evidence presented at trial. That was error because recognizing the
           existence of a conflict with the trial evidence is not the same as finding that the
           new evidence is positively rebutted. For new evidence to be positively rebutted,
           it must be clear from the trial record that no factfinder could ever accept the
           truth of that evidence, such as where it is affirmatively and incontestably




                                               - 36 -
           demonstrated to be false or impossible—like the single-gunshot evidence in
           Sanders. We now clarify that the inquiry applicable at the leave-to-file stage of
           successive proceedings does not focus on whether the new evidence is
           inconsistent with the evidence presented at trial. Rather, the well-pleaded
           allegations in the petition and supporting documents will be accepted as true
           unless it is affirmatively demonstrated by the record that a trier of fact could
           never accept their veracity. In assessing whether a petitioner has satisfied the
           low threshold applicable to a colorable claim of actual innocence, the court
           considers only whether the new evidence, if believed and not positively rebutted
           by the record, could lead to acquittal on retrial.” Supra ¶ 60.

¶ 115       There are several problems with this passage. First, the majority does not
        “clarify” anything. This is the elimination of a standard that was previously settled
        and the replacement of it with an entirely new one. It is difficult to see how this is
        not an overruling of Edwards, given that the very issue in Edwards was the standard
        for these types of claims and the majority now jettisons that standard in favor of a
        different one. Moreover, the majority never explains why it believes the standard a
        petitioner has to meet at the leave-to-file stage is an open question. The only
        window into the majority’s thinking on this is when it asserts that,

           “the standard for alleging a colorable claim of actual innocence falls between
           the first-stage pleading requirement for an initial petition and the second-stage
           requirement of a substantial showing. See Smith, 2014 IL 115946, ¶ 29; see also
           Morrow, 2019 IL App (1st) 161208, ¶ 51; Lee, 2016 IL App (1st) 152425,
           ¶ 47.” Supra ¶ 58.

        While this is true, that standard has already been determined by this court in
        Edwards: leave of court should be granted when the petitioner’s supporting
        documentation raises the probability that it is more likely than not that no
        reasonable juror would have convicted him in the light of the new evidence. The
        cited paragraph of this court’s decision in Smith contains an observation by this
        court that requiring a petitioner to conclusively establish cause and prejudice prior
        to being granted leave to file a successive petition “may render the entire three-
        stage postconviction process superfluous.” People v. Smith, 2014 IL 115946, ¶ 29.
        But this is not an invitation to rewrite the standard a postconviction petitioner must
        meet to obtain leave to file a postconviction petition alleging actual innocence.




                                                - 37 -
        Smith distinguished Edwards on the basis that Edwards addressed the standard for
        successive postconviction petitions alleging actual innocence and was not a cause
        and prejudice case. Id. ¶ 32. The two appellate court cases that the majority cites—
        Morrow and Lee—merely cite Smith for the proposition that the three-stage process
        should not be rendered superfluous, but they then explain that the Edwards
        “probability” standard applies at the leave-to-file stage and then the higher
        “substantial showing” standard applies at the second stage. See People v. Morrow,
        2019 IL App (1st) 161208, ¶ 51; People v. Lee, 2016 IL App (1st) 152425, ¶ 47.
        Thus, the majority’s citations confirm that Edwards is the proper standard, and the
        majority has provided no reason at all for why it believes that this court needs to
        replace that standard with a new one.

¶ 116       Second, this court has never described the leave-to-file stage of successive
        postconviction proceedings as being a “low threshold.” 4 The “low threshold”
        language is how the court describes the first stage of initial postconviction
        proceedings. See, e.g., People v. Brown, 236 Ill. 2d 175, 184 (2010) (explaining
        that first stage of postconviction proceedings presents a low threshold “requiring
        only that the petitioner plead sufficient facts to assert an arguably constitutional
        claim”); People v. Robinson, 217 Ill. 2d 43, 60 (2005) (noting that a “postconviction
        petition is frivolous or patently without merit when its allegations, taken as true and
        liberally construed, fail to present the gist of a constitutional claim” and that the
        gist standard presents a low threshold). In Edwards, the dissenting justice in the
        appellate court had argued that a “low threshold” standard should also apply at the
        leave-to-file stage of successive postconviction proceedings. Edwards, 2012 IL
        111711, ¶ 17. As set forth earlier in this dissent, this court comprehensively rejected
        that view and gave four independent reasons why it was incorrect. Id. ¶¶ 26-29. It
        is well settled that successive postconviction actions are disfavored by Illinois
        courts (id. ¶ 29; see also People v. Bailey, 2017 IL 121450, ¶ 39 (“successive
        postconviction petitions are highly disfavored”)), and it is simply not the case that
        a petitioner seeking leave to file a successive postconviction petition faces a “low
        threshold.”




            4
             At oral argument, defense counsel asked this court to follow its “long-standing precedent
        requiring a low threshold at this stage.” There is no such long-standing precedent.




                                                   - 38 -
¶ 117      Nor does a postconviction petitioner bringing a freestanding claim of actual
        innocence face a “low threshold.” Quite the opposite. In Coleman, this court stated:

               “As we stated in Washington, ‘no person convicted of a crime should be
           deprived of life or liberty given compelling evidence of actual innocence.’
           Washington, 171 Ill. 2d at 489. That statement indicates that the standard we
           adopted is extraordinarily difficult to meet. In fact, as amicus informs us and
           our research confirms, courts of review have granted postconviction relief on
           actual-innocence claims in only three reported cases since 1996. See People v.
           Burrows, 172 Ill. 2d 169 (1996) (decided the same day as Washington); Ortiz,
           235 Ill. 2d 319; People v. Starks, 365 Ill. App. 3d 592 (2006).” (Emphasis
           added.) Coleman, 2013 IL 113307, ¶ 94.

        Thus, petitioner was bringing a type of claim that is extraordinarily difficult to
        succeed on and was doing so in a proceeding that is highly disfavored by Illinois
        courts. Contrary to what the majority states, there is nothing about a freestanding
        claim of actual innocence brought in a successive postconviction petition that
        presents a “low threshold” for the petitioner.

¶ 118       Third, the standard “whether the new evidence, if believed and not positively
        rebutted by the record, could lead to acquittal on retrial,” is virtually meaningless.
        Supra ¶ 60. Anything could lead to an acquittal. The jury could vote to acquit even
        in the face of overwhelming evidence of guilt, or the jury could engage in jury
        nullification. Such a standard gives no guidance whatsoever for lower courts to
        follow, and it is difficult to see how it is much different from the “frivolous or
        patently without merit” standard rejected in Edwards. Previously, this court has
        focused on probability. As this court said in Edwards,

           “leave of court should be granted when the petitioner’s supporting
           documentation raises the probability that ‘it is more likely than not that no
           reasonable juror would have convicted him in the light of the new evidence’
           (Schlup v. Delo, 513 U.S. 298, 327 (1995) (characterizing threshold standard as
           one of probability)).” Edwards, 2012 IL 111711, ¶ 24.

        Under the majority’s new standard, this court likely would have reached the
        opposite result in Edwards. In that case, the petitioner supported his successive
        petition with the affidavit of Eddie Coleman, a fellow gang member who




                                                - 39 -
        participated in the shooting and said that the petitioner had nothing to do with it.
        This court, applying its newly adopted standard, explained:

           “[E]ven though Eddie’s affidavit contains newly discovered evidence, the result
           is the same. In the affidavit’s specific references to petitioner, Eddie averred
           petitioner ‘had nothing to do with this shooting,’ he (Eddie) ‘never saw or spoke
           with [petitioner] after the funeral,’ petitioner was neither ‘a part [of nor] took
           part in this crime,’ and he (Eddie) did not ‘share this information [about the
           shooting] with [petitioner] after the crime.’ Though Eddie averred petitioner
           ‘had nothing to do with this shooting’ and was neither ‘a part [of nor] took part
           in this crime,’ Eddie critically does not assert that petitioner was not present
           when the shooting took place. As the appellate court correctly noted, Eddie’s
           averment in his affidavit that he was the principal offender ‘does little to
           exonerate defendant who *** was convicted of the murder under the theory of
           accountability.’

               Thus, even though Eddie Coleman’s affidavit could be considered new
           evidence, it does not raise the probability that, in the light of the new evidence,
           it is more likely than not that no reasonable juror would have convicted
           petitioner. This evidence is not ‘of such conclusive character that it would
           probably change the result on retrial’ (Morgan, 212 Ill. 2d at 154). See
           Washington, 171 Ill. 2d at 489, (describing ‘conclusive character’ requirement
           as the ‘most important[ ]’ element of an actual-innocence claim).” (Emphasis
           omitted.) Id. ¶¶ 39-40.

        However, if all that the petitioner had to show to get past the leave-to-file stage was
        that the new evidence, if believed and not positively rebutted by the record, could
        lead to an acquittal, it seems that the petitioner’s evidence met that standard. Surely
        the testimony of a participant in the crime that the petitioner had nothing to do with
        the crime and neither was a part of it nor took part in it, and was not even told about
        it, could lead to an acquittal, even if the petitioner was charged under an
        accountability theory. This is clearly not the standard this court was applying in
        Edwards.


¶ 119                          Application of the Edwards Standard




                                                - 40 -
¶ 120        I agree with the appellate court that petitioner cannot meet the Edwards
        standard. Petitioner has not submitted evidence sufficient to raise a probability that
        no reasonable juror would have convicted him. Petitioner’s newly discovered
        evidence would add conflicting evidence for a trier of fact to consider, but it is far
        from conclusive. This court reiterated in Edwards that the “ ‘conclusive character’
        requirement is the ‘most important[ ]’ element of an actual-innocence claim” (Id.
        ¶ 40 (quoting Washington, 171 Ill. 2d at 489) and that the “ ‘no reasonable juror’
        standard ‘requires a stronger showing than that required to establish Strickland
        prejudice’ ” (id. (quoting Morales v. Johnson, 659 F.3d 588, 605 (7th Cir. 2011))).
        In Schlup, the case from which the Edwards standard was derived, the United States
        Supreme Court explained that the word “reasonable” in the above formulation
        means that it “must be presumed that a reasonable juror would consider fairly all of
        the evidence presented” and would “conscientiously obey the instructions of the
        trial court requiring proof beyond a reasonable doubt.” Schlup, 513 U.S. at 329. A
        court must “assess the probative force of the newly presented evidence in
        connection with the evidence of guilt adduced at trial.” Id. at 332; see also supra
        ¶ 47 (“the conclusive character element refers to evidence that, when considered
        along with the trial evidence, would probably lead to a different result”); Coleman,
        2013 IL 113307, ¶ 96; People v. Ortiz, 235 Ill. 2d 319, 336-37 (2009).

¶ 121        I agree with the appellate court’s assessment of petitioner’s newly discovered
        evidence along with the trial evidence, as set forth in paragraphs 36 through 47 of
        its opinion, and I would affirm its decision. The appellate court properly noted the
        deficiencies of each of the affidavits and concluded that they were not of such
        conclusive character as would probably change the result on retrial, given the
        overwhelming evidence of petitioner’s guilt that was introduced at trial, including
        petitioner’s 70-page, court-reported statement. I wish to focus here on that
        statement, as it is crucial to understanding why petitioner has failed to raise the
        probability that it is more likely than not that no reasonable juror would have
        convicted him in light of the new evidence. The majority, as did the appellate court,
        summarizes that statement in one paragraph, and this does not give a full
        appreciation of the story that petitioner told. In his statement, petitioner consistently
        gave details that went far beyond those necessary to establish his guilt of the crime.

¶ 122      In his statement, petitioner explained that, in the weeks prior to December 28,
        1997, he and two of his friends, Marques Northcutt and Andrew Ganaway,




                                                 - 41 -
        formulated a plan to get some money. They decided to rob Nicole Giles, whom they
        had known for a few months, because they had heard that she had a lump sum of
        money coming in. She was supposed to be receiving between $200 and $300 from
        a cousin named Gerry. Initially, the plan was just to rob her, but once they realized
        that Giles would turn them in to the police, they formulated a plan to kill her.
        Petitioner explained that he planned to use a MAK-90 semiautomatic rifle to kill
        Giles, and he identified a picture of the weapon. He said he obtained the weapon
        from the brother of a man named Daniel Williams.

¶ 123       Petitioner said that he planned to use the $200 to $300 he would get from the
        robbery to purchase three eight-balls of crack cocaine. He would then cut it down
        and sell it at a profit. Petitioner believed that he could double his money. He would
        then take the money he received from selling the crack cocaine and use it to buy a
        pound of marijuana. He would then take this pound of marijuana to Minnesota to
        sell it, where he would hopefully double or triple his money. Petitioner said that he
        could receive a higher price for the marijuana in Minnesota than in Chicago.

¶ 124       On December 28, 1997, Northcutt and Ganaway were at petitioner’s house.
        Petitioner called Giles and asked her to come over for a visit. Giles arrived at
        petitioner’s house in her Ford Contour, which petitioner believed was either a ’97
        or ’98 model. Petitioner described it as being purple or “kind of violet.” When Giles
        arrived at the house, petitioner took her car keys, and then he and Ganaway slipped
        out so that they could put the MAK-90 into the back seat of her car. They covered
        the weapon with a laundry bag because they did not want Giles to see it. They
        feared that, if she saw the weapon, she would know what was going to happen to
        her.

¶ 125       Petitioner told Giles that it was time to go, and the four of them then got into
        Giles’s car. Giles sat in the driver’s seat with Ganaway next to her. Petitioner and
        Northcutt sat in the back. When they were getting into the vehicle, Giles wanted to
        see if petitioner and Northcutt had enough room in the back seat. At this point, she
        noticed the laundry bag. She reached down to touch it and wanted to know what it
        was and where it came from. Petitioner said, “don’t trip,” which means “don’t
        worry about it.” Ganaway initially told Giles to drive west on 87th Street, but then
        petitioner took over giving her directions and eventually told her to drive to 88th
        and Kingston Streets and to stop under a viaduct. This was around 4:45 p.m. The




                                               - 42 -
        plan was for Northcutt to tell her that he had to get out of the car under the viaduct
        so he could go to the bathroom. Northcutt exited the vehicle and went around the
        back of the car to petitioner’s side of the car. Petitioner then opened the back door
        and set the MAK-90 on the ground.

¶ 126       Northcutt went to a pillar and pretended to urinate. Ganaway exited the vehicle
        and went around the car to try to open Giles’s door. She had locked it, so he was
        not able to do so. Petitioner then unlocked Giles’s door. Ganaway opened it and
        tried to force Giles out of the car. He was unsuccessful, so Northcutt reached in
        from the passenger side of the car, grabbed Giles by the left arm, and dragged her
        out of the car. She then fell to the ground. Petitioner picked up the MAK-90 and
        approached Giles, who was sitting on the ground, facing away from him. Petitioner
        then pointed the MAK-90 at Giles’s head and squeezed the trigger. Giles fell to the
        ground, and petitioner did not see her move again. Petitioner then said that he
        “threw the Mak-90 to the back of the car.” Northcutt pulled a plastic bag over
        Giles’s head, and petitioner helped him drag her into the back seat of the car.

¶ 127       The three of them got back into the vehicle, with Ganaway driving. Petitioner
        told Ganaway to “drive up 90th.” Petitioner was looking for a place to get rid of the
        body. Eventually, petitioner spotted an alley between Crandon and Luella. They
        drove down the alley, and petitioner noticed three garbage cans next to some
        branches and twigs. Petitioner then examined the pile of branches to see if it could
        be moved so that he could put the body under it. Petitioner determined that they did
        not have time to move the branches, so they decided they would place the body in
        a garbage can instead. Before placing the body into the garbage can, petitioner
        reached into Giles’s pocket, hoping to find approximately $200. He found only $50,
        which he handed to Northcutt.

¶ 128       Petitioner noticed that the bag was starting to come off of Giles’s face, so he
        pulled it back over her face so that he would not have to look at her. Northcutt
        helped him place Giles’s body headfirst into the garbage can. They then closed the
        can and drove away.

¶ 129       The three men drove to the back of a house at 8918 South Bennett Avenue so
        that Ganaway could get rid of the MAK-90. Petitioner explained that he did not
        want it in his possession because he did not want to get caught for murder. Ganaway
        exited the vehicle with the MAK-90 in his hands. He disappeared for “no longer



                                                - 43 -
        than a minute,” and when he returned, he no longer had the weapon. Ganaway told
        petitioner that he hid the gun on the side of the garage. Petitioner then drove Giles’s
        car to Country Club Hills. He wanted to ditch the car far from his vicinity and then
        take the Metra back. When they arrived in Country Club Hills, they went to the
        house of a friend of Ganaway’s. The friend, Megan, was not home, so they drove
        east on 175th Street and then ditched the car close to the Metra station. Before doing
        so, the three of them tried to wipe down every surface of the car. Petitioner used his
        jacket to wipe the car.

¶ 130        They then got rid of the laundry bag that had concealed the MAK-90. The bag
        was now covered in blood. They placed it in the garbage can of one of the
        residences in the area. Petitioner then hid the car keys across Dixie Highway by the
        Metra station. The three of them then took a Metra train that was going north.
        Petitioner said that it was the E-zone train that arrives at 6:06 p.m. They bought
        their tickets on the train. Northcutt paid for them with the money they stole from
        Giles. When Northcutt took the money out of his pocket, petitioner noticed that
        there was blood on one of the $20 bills. Petitioner advised Northcutt to hand the
        money to the conductor facedown. Petitioner said that they wanted to get rid of the
        bill “so he would not be on to us.”

¶ 131       The three of them exited the train at 59th Street and University Avenue and then
        switched over to the B-zone train. That train took them to “95th between
        Commercial and Buffalo.” They got off the train at 91st Street. Petitioner then cut
        through the park to Lenny Tucker’s house. Tucker was petitioner’s sister’s
        boyfriend. Tucker lived at 87th and Marquette Streets. Lenny’s mother was home,
        but Lenny was not, so petitioner decided to go home. Northcutt, Ganaway, and
        petitioner all went to petitioner’s house at 87th Street and Colfax Avenue, where
        they found petitioner’s mother, his siblings, and Lenny Tucker. Petitioner
        proceeded to take off his clothes and advised Northcutt and Ganaway to do the
        same. Petitioner explained that they had Giles’s blood on their clothes. Petitioner
        placed their clothes in the washing machine. He also had Giles’s blood on a pair of
        his shoes, so he decided to throw the shoes away. The shoes were red, white, and
        blue Fila low tops, made from both leather and canvas. Petitioner threw them away
        in the garbage can behind his house.




                                                - 44 -
¶ 132        Petitioner then spoke to Tucker in the kitchen. He told Tucker how they had
        killed Giles, and Tucker did not believe him. He eventually gave Tucker enough
        details that Tucker believed the story. Tucker asked about the bag they had kept the
        MAK-90 in and warned petitioner that the police could get fingerprints off clothes.
        Petitioner began to worry that they may have left their fingerprints on Giles’s body.
        Petitioner then spoke to Northcutt and Ganaway about the possibility that they had
        left their fingerprints on Giles’s clothing, and they decided that her clothes would
        need to be burned.

¶ 133       Petitioner called his grandmother to tell her that he was coming over to her
        house. Petitioner called his girlfriend, Michelle McClendon, and asked her to come
        and take him to his grandmother’s house. He had previously called her and told her
        how they had murdered Giles. Before the murder took place, he had told her the
        entire plan about how they had decided to rob and murder Giles, but she was not
        interested. McClendon came and picked up petitioner, Northcutt, and Ganaway and
        took them to petitioner’s grandmother’s house. They stayed for 20 minutes and
        “fixed left over Christmas plates.” They then went back home, where they stayed
        for no more than two minutes before deciding to leave again to purchase marijuana.
        They went to 72nd Street and Coles Avenue to buy it but ended up not buying any.
        They then went to McClendon’s house to pick up two of her friends, Myesha and
        Giovanni. Next, they went to the Shell station at 83rd Street and Stoney Island, after
        which they dropped Giovanni off at his home in Riverdale. They then dropped off
        Northcutt at 111th and Bell.

¶ 134        At this point, petitioner, Ganaway, McClendon, and Myesha were in the car.
        Ganaway told McClendon to drive to 89th Street and South Bennett Avenue, where
        they had hidden the gun. Ganaway wanted to rehide it because he did not believe
        that he had hidden it well enough the first time. McClendon drove to 8918 South
        Bennett Avenue, and Ganaway got out of the car. Ganaway was gone for less than
        two minutes. When he returned, he explained that he rehid the gun across the alley
        on the side of the garage. Petitioner then asked McClendon to drive him home.
        Once they arrived at home, petitioner asked Ganaway and Myesha to exit the
        vehicle so that he could talk to McClendon alone. Petitioner then told McClendon
        that he loved her, and she told him that he was going to go to jail. He told her not
        to think like that. He then went inside and “fixed a plate from [his] Grandma’s” and
        fell asleep.




                                                - 45 -
¶ 135       On the following day, December 29, 1997, Northcutt called petitioner at around
        10:30 or 11 a.m. Northcutt said to “get up so that yall could get on that business.”
        Petitioner said that Northcutt was referring to the plan to burn Giles’s body to
        remove any fingerprints. Petitioner decided that they would use gasoline to burn
        the clothes. He told his sister to get the gas can out of the shed. His sister called her
        best friend, Maisha Muhammad, to come over. Petitioner had known Muhammad
        for around four years. She arrived sometime during the day in a four-door, maroon
        Corsica. Muhammad, Ganaway, and petitioner all got into the vehicle. Petitioner
        had the gas can with him, and he told Muhammad to drive to the Clark station at
        87th Street and Exchange Avenue. Petitioner then bought $1 worth of gas, which
        was enough to fill the gas can about three-quarters.

¶ 136       Petitioner directed Muhammad to the area of the viaduct, but they were not able
        to locate the body quickly because petitioner had forgotten which alley they put her
        in. It took them about 20 minutes to locate the body. They eventually found the
        correct garbage can, and petitioner noticed that a garbage bag had been placed on
        top of her. Petitioner said that the garbage can was black with wheels and a handle
        on top. Ganaway took the gas can to the garbage can and drenched the body with
        gasoline. Petitioner then closed the garbage can, and Ganaway gave him a bandana
        to place on top of the garbage can. They soaked the bandana with gasoline, placed
        one end of it inside the can, touching the body, and left one end hanging out of the
        can. Ganaway handed him some matches, and petitioner lit the bandana on fire. He
        then could see nothing but flames, and he and Ganaway ran back to the car. They
        got in the car, and petitioner told Muhammad that they had just burned Giles’s
        body. Muhammad asked why, and petitioner said that their fingerprints were on it.
        Muhammad did not ask any more questions; she just wanted to go. Muhammad
        then took petitioner back home.

¶ 137       At the end of his statement, petitioner reiterates that he came to the police
        station of his own free will, that no one forced him to come there, and that he had
        been treated fairly by the police officers, the detectives, and the assistant state’s
        attorney. He said that he had been given food and water and been allowed to rest
        and use the restroom. He said that no one had threatened him before giving this
        statement and that no one had promised him anything in return for the statement.
        He agreed that he gave the statement free of the influence of drugs or alcohol.




                                                 - 46 -
¶ 138        What is notable about this statement is the level of detail. Petitioner shares
        intimate details about all phases of the planning and execution of the crime.
        Moreover, he consistently goes far beyond giving the facts necessary to establish
        the crime. He does not merely set forth the basic facts of the crime, such as the
        shooting of Giles under the viaduct, the disposal of her body in a garbage can, and
        the subsequent burning of the body. Rather, he also offers such details as (1) the
        plan to sell marijuana obtained from the proceeds of the robbery in Minnesota,
        where he could get a better price than in Chicago; (2) Giles noticing the laundry
        bag in the back of the car and wanting to know what it was; (3) Ganaway
        unsuccessfully attempting to pull Giles out of the car before Northcutt eventually
        had to do it; (4) that the initial plan was to dispose of the body under a pile of
        branches rather than in a garbage can but that they ultimately decided that they did
        not have time to move the branches; (5) that the bag began to fall off of Giles’s
        face, so petitioner covered it back up so he would not have to look at her; (6) that
        when they arrived in Country Club Hills, they first went to visit a friend of
        Ganaway’s named Megan, but she was not home; (7) that when Northcutt needed
        to give money to the Metra conductor, petitioner noticed blood on a $20 bill and
        told Northcutt to turn the bill over; (8) that when they got off the Metra train, they
        first went to Tucker’s home but found only Tucker’s mother there; (9) that when
        they went to McClendon’s house to pick up Myesha, Giovanni was also there, and
        they took Giovanni home to Riverdale before the rest of the group went to 8919
        South Bennett Avenue so that Ganaway could rehide the gun; (10) that Ganaway
        moved the gun to a different hiding spot because he did not believe he had hidden
        it well enough he first time; (11) that before McClendon took petitioner and
        Ganaway to 8918 South Bennett Avenue, she had taken Northcutt, petitioner, and
        Ganaway to petitioner’s grandmother’s house, where they had leftover food from
        Christmas; (12) that when petitioner got back home after the trip to 8918 South
        Bennett Avenue, he told McClendon that he loved her, and she told him that he was
        going to jail; (13) that when they went back to the area of the viaduct to burn the
        body, they initially could not find it because petitioner had forgotten which alley
        they had left her in, and it took them 20 minutes to find her; and (14) that when
        they located the correct garbage can, petitioner noticed that someone had placed a
        bag of garbage on top of Giles’s body.

¶ 139       Thus, a reasonable juror would hear that petitioner gave a complete confession
        to his responsibility for the offense, consistently filling in details of the story that



                                                 - 47 -
        went far beyond what was necessary to establish his guilt. Additionally, a
        reasonable juror would hear evidence that petitioner also confessed to Muhammad,
        McClendon, and Tucker. Elements of petitioner’s statement were corroborated by
        other witnesses. For instance, petitioner’s statement that it took a while to find
        Giles’s body because he could not remember which alley he put her in was
        corroborated by Muhammad, who testified that they rode around several blocks in
        the area of the viaduct and that they changed directions two or three times.
        Muhammad testified that petitioner was the one giving directions. Additionally,
        McClendon corroborated petitioner’s statement about getting leftover food at his
        grandmother’s house on December 28, 1997. McClendon testified that petitioner’s
        “grandmother let us in and we went into the kitchen and she showed us where the
        left over food was, and they began to fix themselves plates and they eight [sic].”
        McClendon further corroborated petitioner’s statement that she drove Northcutt to
        his home at 111th Street and Bell Avenue after they left petitioner’s grandmother’s
        house. McClendon also testified to specific details of the crime that petitioner
        shared with her, such as how he had asked Giles for her keys so that he could hide
        the weapon in her car, how the plan was to get Giles to pull over by having one of
        them say that he had to use the bathroom, how they used a bandana to ignite the
        gasoline, and how someone had dumped garbage on top of Giles’s body.

¶ 140       Petitioner’s affidavits would give a reasonable juror conflicting evidence to
        consider, but they were not even close to being conclusive. Hunt-Bey stated in his
        affidavit that Tucker confessed to him at a gas station near 87th Street and
        Exchange Avenue on December 29, 1997, filled a container of gas, and said that he
        had to “tie up loose ends.” He then drove away with two unknown men. Hunt-Bey
        stated that he knew petitioner was “taking the rap for Lenny.” However, Tucker
        testified at trial that petitioner told him that petitioner had committed the crime.
        Moreover, Muhammad testified that she was the driver of the vehicle in question
        and that the people she drove to the gas station were Ganaway and petitioner. Hunt-
        Bey’s affidavit was therefore not conclusive as to petitioner’s innocence. See
        Sanders, 2016 IL 118123, ¶ 52 (“Bingham’s recantation is contrary not only to his
        own testimony at petitioner’s trial, but also to the testimony of Ramseur and
        Barfield, who positively identified petitioner as being with Bingham and May at
        Barfield’s house the night of the murder and as having participated in the events
        leading up to Cooks’ murder.”).




                                               - 48 -
¶ 141       Shaw testified in his affidavit that on December 28, 1997, he observed a dark
        Ford Contour stop near 8918 South Bennett Avenue. In the vehicle were “three
        guys that hung with Rickey,” including a man named “Lenny.” Petitioner was not
        one of the men in the car. Shaw observed one man exit the car with an assault rifle
        and run between the gangway toward Constance Avenue. The man returned to the
        vehicle without the weapon and entered the back seat of the car. This affidavit is
        not conclusive as to petitioner’s innocence. Shaw did not observe Giles’s murder
        and did not reference it in any way. At best, he could add conflicting evidence for
        the trier of fact to consider about the disposal of the weapon. And his testimony
        about the disposal of the weapon is directly contradicted by petitioner’s statement
        where petitioner states that he was in the Ford Contour with Northcutt when
        Ganaway disposed of the weapon. Shaw’s affidavit was nowhere near being
        conclusive as to petitioner’s innocence but merely would give a reasonable juror
        conflicting evidence to consider about the disposal of the weapon.

¶ 142       Finally, Mamon testified in his affidavit that “just days after Christmas” in
        December 1997 he observed a man named Lenny and another man sitting in a
        parked car. Shortly thereafter, by a viaduct on South Chicago Avenue, he heard a
        loud gunshot and saw a bright flash, following which he saw Lenny place an “A.K.”
        in the back seat of a car. Lenny then drove away with two men. Mamon later met
        petitioner in prison and asked if “he had a murder that happened under a viaduct
        right off South Chicago.” In August 2014, Mamon received a call from someone
        who asked whether Mamon knew a “Ricky” and explained that Ricky had been
        locked up for a long time for a murder on South Chicago Avenue. Mamon did not
        know petitioner as Ricky because he went by a nickname. Mamon stated in the
        affidavit that petitioner was not one of the men he saw under the viaduct that night.

¶ 143       Mamon’s affidavit is internally inconsistent as to how many men were
        involved. He first saw Lenny and one other man and then said that Lenny was with
        two other men. Moreover, it is not conclusive as to petitioner’s innocence because
        Mamon does not claim to have seen who shot Giles. It is also contradicted by
        petitioner’s affidavit and petitioner’s statements to Muhammad, McClendon, and
        Tucker. Thus, it would merely give a reasonable juror conflicting evidence to
        consider.




                                               - 49 -
¶ 144       As the appellate court properly concluded, the evidence against petitioner was
        overwhelming and included both petitioner’s detailed, 70-page statement
        confessing to the murder and petitioner’s confessions to Muhammad, McClendon,
        and Tucker. The information in petitioner’s new affidavits would give the trier of
        fact conflicting evidence to consider, but petitioner has failed to demonstrate a
        probability that it is more likely than not that no reasonable juror would have
        convicted him in light of the new evidence. The majority treats petitioner’s detailed
        confession as essentially equivalent to the statement of a disinterested witness.
        Supra ¶ 82. But, presumably, a reasonable juror would assume that petitioner knew
        whether or not he was responsible for shooting a woman under a viaduct and
        burning her body to hide the evidence. As the United States Supreme Court has
        noted, “a full confession in which the defendant discloses the motive for and means
        of the crime” is powerful evidence of guilt. Arizona v. Fulminante, 499 U.S. 279,
        296 (1991). The court explained in that case that:

              “A confession is like no other evidence. Indeed, ‘the defendant’s own
           confession is probably the most probative and damaging evidence that can be
           admitted against him. . . . [T]he admissions of a defendant come from the actor
           himself, the most knowledgeable and unimpeachable source of information
           about his past conduct. Certainly, confessions have profound impact on the jury,
           so much so that we may justifiably doubt its ability to put them out of mind
           even if told to do so.” Id. (quoting Bruton v. United States, 391 U.S. 123, 139-
           140 (White, J., dissenting, joined by Harlan, J.)

        See also People v. Simpson, 2015 IL 116512, ¶ 36 (“It has been observed that ‘a
        confession is the most powerful piece of evidence the State can offer, and its effect
        on a jury is incalculable.’ ” (quoting People v. R.C., 108 Ill. 2d 349, 356 (1985))).

¶ 145        In People v. Wideman, 2016 IL App (1st) 123092, the defendant had given a
        detailed confession to the crime but later sought leave to file a successive
        postconviction petition alleging actual innocence. In upholding denial of leave to
        file the petition, the appellate court stated:

           “The defendant essentially asks us to find that it is more likely than not that the
           jury would choose to entirely disregard the defendant’s detailed confession and
           acquit the defendant, had the jury heard Williams testify that the defendant was
           merely ‘standing there’ and ‘didn’t do anything’ to Thomas. The defendant does



                                               - 50 -
           not explain why the jury would completely disregard his own words detailing
           his participation in the crime in favor of Williams’ testimony to the contrary.
           Such a proposition is unreasonable. Clearly, even if the jury were presented
           with such conflicting evidence, it could easily conclude that the defendant’s
           detailed, self-incriminating statements were entitled to more weight and (along
           with the other trial evidence) supported a finding of guilt. We certainly cannot
           say that an acquittal on either the murder or armed robbery charge would be
           “probable” had Williams testified to the statements in his May 2010 affidavit.
           Thus, we do not find that the defendant set forth evidence ‘of such conclusive
           character that it would probably change the result on retrial’ as is required to
           allow leave to file a successive petition on the basis of actual innocence.” Id.
           ¶ 67 (quoting Edwards, 2012 IL 111711, ¶ 32).

        Similarly, here, petitioner has failed to sufficiently explain why a reasonable juror
        would disregard his own detailed confession to the crime, which was corroborated
        by his confessions to three other people. Petitioner simply cannot meet the Edwards
        standard, and he has thus failed to present a colorable claim of actual innocence. I
        would therefore affirm the appellate court’s decision.

¶ 146      JUSTICES GARMAN and KARMEIER join in this dissent.




                                               - 51 -
