                                  2016 IL App (1st) 123371
                                        No. 1-12-3371
                                  Opinion filed June 30, 2016

                                                                        FIFTH DIVISION

                                           IN THE

                           APPELLATE COURT OF ILLINOIS

                                      FIRST DISTRICT


     THE PEOPLE OF THE STATE OF                 )      Appeal from the Circuit Court
     ILLINOIS,                                  )      of Cook County.
                                                )
          Respondent-Appellee,                  )
                                                )
          v.                                    )      No. 00 CR 08223 (02)
                                                )
     ANTELETO JONES,                            )      The Honorable
                                                )      Domencia A. Stephenson,
          Petitioner-Appellant.                 )      Judge, presiding.



               JUSTICE GORDON delivered the judgment of the court, with opinion.
               Presiding Justice Reyes specially concurred, with opinion.
               Justice Lampkin dissented, with opinion.



                                        OPINION


¶1             Defendant Anteleto Jones was convicted by a jury on January 30, 2003,

       of first-degree murder and sentenced on March 28, 2003, to 44 years in the

       Illinois Department of Corrections (IDOC). This appeal concerns defendant's
     No. 1-12-3371

       pro se motion for leave to file a second postconviction petition. Defendant

       claims that the trial court erred in denying him leave: (1) where he presented a

       colorable claim of actual innocence; and (2) where he established cause and

       prejudice to allow the filing of a subsequent petition.

¶2           Defendant has consistently maintained his innocence during pretrial, trial,

       and posttrial proceedings: first moving to suppress his statement as involuntary

       prior to trial; then presenting an alibi defense during trial; and next moving for a

       new trial when the prosecutor disclosed two exculpatory witnesses after the trial

       ended. As we explain below, the only evidence connecting defendant to this

       murder was his own confession, which he has consistently claimed was coerced

       and which is not corroborated by some of the physical evidence. Now, an

       eyewitness, who is the only known eyewitness to the murder, has come forward

       to exonerate defendant. This eyewitness is in addition to the two exculpatory

       witnesses discovered and disclosed by the prosecutor immediately after the trial

       ended. For the following reasons, we reverse and remand for appointment of

       postconviction counsel and second-stage proceedings.

¶3                                   BACKGROUND

¶4                                 I. Procedural History

¶5           First, we provide a short procedural history of the case, before describing

       the evidence at trial.

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     No. 1-12-3371

¶6             Defendant, age 19, was charged with first-degree murder for the shooting

        death of Jerry Green, which occurred at approximately 5 a.m. on January 8,

        2000. Prior to trial, defendant moved to suppress his confession on the grounds

        that Officer Robert Bartik, a polygraph examiner, had physically pushed,

        punched and shoved defendant, while two other officers watched, and that

        defendant was also subjected to psychological and mental coercion.1 Detective

        Robert Lenihan testified at a suppression hearing that defendant agreed to a

        polygraph examination but then confessed during the pretest interview 2 with the

        examiner. Defendant's suppression motion was denied and, at trial, defendant

        presented an alibi defense, calling his mother who testified that she observed

        defendant at home sleeping at 6 a.m.




           1
             Defendant's pretest interview by Officer Bartik and ensuing interview by
     Detectives Robert Lenihan and Edward Farley were not recorded, since they
     occurred a year and a half before Illinois law started requiring the electronic
     recording of all custodial interrogations in homicide cases. Pub. Act 03-206, § 25
     (eff. July 18, 2005) (adding 725 ILCS 5/103-2.1).
           2
             The Illinois Administrative Code requires a polygraph examiner to conduct
     a "pre-test interview" in which, at a minimum: (1) the examiner must inform the
     subject of each issue to be covered during the test; (2) the examiner must reduce to
     writing every question that will be asked, must read them to the subject and must
     record the subject's answers in writing; and (4) the examiner must inform the
     subject that taking the test is voluntary and must obtain the subject's consent. 68
     Ill. Adm. Code 1230.90 (2005). These requirements have applied since at least
     1998. 69 Ill. Admin Code 1230.90, amended at 22 Ill. Reg. 10567 (eff. June 1,
     1998).
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     No. 1-12-3371

¶7             The jury found defendant guilty of both first-degree murder and

        personally discharging a firearm during the offense. After the jury's verdict but

        prior to sentencing, the prosecutor contacted defendant, through his counsel, to

        notify him that two witnesses, Darryl and Anthony Thomas, had separately

        informed her after trial that defendant was with them at the time of the murder

        and thus not at the crime scene. The trial court rejected defendant's motion

        seeking a new trial based on the statements of these two witnesses, in part,

        because their statements were unsworn.3

¶8             The trial court sentenced defendant to 44 years in IDOC, which included

        24 years for first-degree murder and 20 years for personally discharging a

        firearm during the commission of the offense On direct appeal, defendant

        challenged only the constitutionality of his 20-year sentence for personally

        discharging a firearm (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2000)); and this

        court affirmed his conviction and sentence in People v. Jones, No. 1-03-1316

        (2004) (unpublished order under Supreme Court Rule 23).

¶9             In 2005, defendant filed his first postconviction petition in which he

        again asserted his innocence and included an affidavit from one of his




           3
             These statements were later included as exhibits to defendant's motion to
     reconsider the trial court's denial of leave to file his successive postconviction
     petition.
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       No. 1-12-3371

          codefendants, Melvin Jones,4 who averred that Jones had committed the murder

          alone and that defendant was neither involved nor present during the shooting.

          Defendant also included letters he wrote to his parents on March 25, 2000, and

          October 3, 2000, in which he stated that the police officers threatened to beat

          him but did not; and that the polygraph examiner coerced him into confessing.

¶ 10             Concerning the police officers, defendant stated in his letter, dated

          October 3, 2000: "Was I threaten by the cops? Yes, they said they would beat

          me if I wouldn't say I was involved in the murder. *** No they did not touch

          me physically? (the cops)." Concerning the polygraph examiner, defendant

          stated in his letter, dated March 25, 2000, that, first, the police officers showed

          him Jones' confession and that, after defendant denied involvement, they asked

          him if he wanted to take a polygraph examination. Defendant stated: "the two

          officers ask me did I want to take a lie detector test, I said yes. They took me to

          111th & State and I sat in a room with a polygraph for about five to ten minutes

          as the officers talked with the polygram [sic] officer. The polygram officer

          came in the room asking me the same shit about the murder. I told him too, I

          didn't have shit to do with it. He told me I would face the death penalty if I take

          the test because he knew for a fact I would fail as if it was set up for me to fail.
             4
              Since Melvin Jones shares the same last name as defendant, we will refer
       to Melvin Jones as "Jones" and defendant as simply defendant throughout this
       opinion.

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       No. 1-12-3371

          So know [sic] I'm frightened and nervous and I bowed my head then burst out

          in tears because I knew I was about to lie on myself, that's when I confessed and

          went along with a made up story similar to Melvin's." At the end of the letter,

          defendant asked his parents not to "worry yourselves."

¶ 11             The trial court dismissed defendant's petition at the first stage, and this

          court affirmed in People v. Jones, 399 Ill. App. 3d 341 (2010), with Justice

          Howse dissenting.

¶ 12             On July 26, 2011, defendant moved for leave to file a successive

          postconviction petition, again asserting his innocence and including: (1) an

          affidavit from Telvin Shaw, an eyewitness to the murder, who stated that

          defendant was not present and Jones was the sole shooter; and (2) a newspaper

          article which stated that the three police officers, who had obtained defendant's

          confession, were ordered to pay $110,000 each in punitive damages, after a jury

          found that they had fabricated a confession in a murder case. See McGee v. City

          of Chicago, 2012 IL App (1st) 111084, ¶¶ 1-4 (a jury awarded a criminal

          defendant damages for malicious prosecution by Officer Robert Bartik and

          Detectives Robert Lenihan and Edward Farley, but the appellate court reversed

          and granted a new trial due to Internet research by a juror);5 see also People v.

             5
              A civil jury awarded a total of $1.3 million to McGee in damages, but the
       case was appealed and remanded for a new trial, after Internet research by a juror.
       In 2014, the City of Chicago settled the McGee case for $870,000, thereby
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       No. 1-12-3371

          Tyler, 2015 IL App (1st) 123470, ¶¶ 4, 21 (this court reversed the dismissal of

          the defendant's postconviction petition and remanded for a hearing on

          defendant's coerced confession claim where the initial confession was obtained

          during a 45-minute interview with Detective Lenihan).

¶ 13            It is the trial court's denial of defendant's motion for leave to file his

          second postconviction petition which is at issue before us.

¶ 14                                II. The Evidence at Trial

¶ 15            In this court's prior appellate opinion, in which we affirmed the summary

          dismissal of defendant's first postconviction petition, we described the evidence

          at trial in detail. We will not repeat that detailed description here, and we

          incorporate that opinion by reference. We repeat here only the salient facts

          needed to understand the issues in front of us.

¶ 16            In sum, there were no eyewitnesses at trial, no physical evidence linking

          defendant to the murder, and no arrest of defendant at the scene. The only

          evidence linking defendant to the offense was his own videotaped confession.

¶ 17            The evidence at trial established that the victim, Jerry Green, was at a bar

          with his friend, Curtis Moore, the night before the shooting. Moore testified that


       avoiding a new trial and any admission of wrongdoing by the City. Hal Dardick,
       and Duaa Eldeib, Chicago aldermen OK $6.6 million to settle lawsuits, Chicago
       Tribune (Mar. 31, 2014), available at http://articles.chicagotribune.com/2014-03-
       31/news/chi-chicago-aldermen-ok-66-million-to-settle-lawsuits-
       20140331_1_leslie-darling-new-trial-city-attorney.
                                                 7
       No. 1-12-3371

         Jerry Green was often referred to as "Old Baby." After the two men left the bar,

         they drove to Moore's home where Jerry Green parked his vehicle. Moore lived

         with his fiancee, Yolanda Green, a relation of Jerry Green; and Moore and

         Yolanda lived there with other members of Yolanda's family. At approximately

         5 a.m., Jerry Green exited the house and was shot multiple times near his

         vehicle. Moore testified that some gunshots sounded louder than others. After

         hearing multiple gunshots and then looking out a window, Moore went outside.

         He did not, however, observe who shot Jerry Green and he did not observe

         anyone running from the scene.

¶ 18           Lawrence Green testified that he resided at the same house as Curtis

         Moore and Yolanda, that he was the leader of the No Limits faction of the

         Gangster Disciples street gang, and that his nickname was "Motor." Lawrence

         Green explained that there was a conflict between the No Limits and Third

         Ward factions of the Gangster Disciples street gang.

¶ 19           Two forensic investigators testified that they collected: six .380 cartridge

         casings; a fired bullet; and two 9-millimeter cartridge casings from the scene.

         In addition, the medical examiner testified that two bullets were recovered from

         the body of Jerry Green, who had died from multiple gunshot wounds. None of

         the wounds sustained by Green involved close-range firing, which is firing from

         18 inches or less away. The medical examiner testified that two of the gunshot

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       No. 1-12-3371

         wounds, which indicated that bullets travelled through the victim's hands, were

         defensive injuries which generally occur when a victim raises his hands in an

         effort to defend himself.

¶ 20           A firearms expert testified that all the cartridge cases and bullets

         recovered from the scene and the body were a .380 caliber or a 9-millimeter

         caliber and that 380/9 millimeter bullets can be fired from either a 380 caliber

         or 9 millimeter gun.

¶ 21           The firearms expert testified: (1) that the six .380 auto fired cartridge

         cases recovered from the scene were all chambered in the same firearm but he

         could not tell whether they were fired from the same gun; (2) that the two 9

         millimeter cartridge cases were fired from the same gun; (3) that a bullet

         recovered from the scene was fired from the same gun as the two bullets

         removed from defendant's body; and (4) that these three bullets could have been

         fired from either a .380 caliber or 9 millimeter gun. The firearms expert did not

         testify and was not asked whether it was possible that all the cases and bullets

         were fired from one gun.

¶ 22           Odis Deal, a neighbor, testified that he heard gunshots at about 5 a.m.,

         first two to three gunshots, followed by a volley of eight or nine more shots.

         Deal had been in the army almost 30 years ago and, to him, the shots sounded

         like they were coming from two or three different types of firearms. However,

                                               9
       No. 1-12-3371

         he was not asked whether the sound of two different types of cartridges being

         fired from the same handgun would sound the same.

¶ 23           Detective Robert Lenihan testified that, after speaking with Lawrence

         Green, the officers began looking for Melvin Jones and that, after speaking with

         Melvin Jones, they began looking for defendant.

¶ 24           After defendant was taken into custody on March 3, 2000, he denied any

         involvement with the shooting, first to Detective Timothy Nolan and then to

         Detective Michael Rose.

¶ 25           Although not part of the trial evidence, at the hearing on defendant's

         suppression motion, Detective Lenihan testified that defendant agreed to a

         polygraph test and was transported to the facility at 11th and State Streets.

         During the pretest interview with Officer Bartik, defendant first made

         admissions which he then repeated to Detectives Lenihan and Farley on his

         return to Area One.

¶ 26           At trial, Detective Lenihan testified that the detectives then contacted the

         State's Attorney's office and defendant's confession was videotaped. During the

         videotaped confession, defendant confirmed that there was a conflict between

         the Third Ward and the No Limits factions, and that he was a member of the

         Third Ward faction. Defendant stated that he, Melvin Jones and Travis Ashby

         went to Lawrence Green's home and they would have shot Lawrence Green

                                              10
       No. 1-12-3371

         ("Motor") if he had appeared. When Jerry Green ("Old Baby") exited the

         house, they fired at him. Jones discharged his weapon first, firing six or seven

         gunshots at Old Baby. Ashby fired two to three gunshots, and defendant fired

         two gunshots. Defendant had a .357 caliber handgun; Ashby had either a .45 or

         9 millimeter handgun; and Jones had a .380 caliber semiautomatic weapon.

¶ 27           Defendant presented an alibi defense, calling his mother who testified

         that she observed him sleeping at home at 6 a.m. on the day of the shooting. As

         we described above, the jury convicted him of first-degree murder and

         personally discharging a firearm, and he was sentenced to 44 years in the

         IDOC.

¶ 28                         III. Postconviction Petition at Issue

¶ 29           The postconviction petition at issue in this appeal is defendant's second

         petition, and it was filed on July 26, 2011. The pro se petition alleged that his

         confession was involuntary and the product of police misconduct and coercion

         by Officer Robert Bartik and Detectives Robert Lenihan and Edward Farley.

¶ 30           Along with the pro se petition, defendant filed a pro se motion for leave

         to file a successive postconviction petition; a pro se motion for appointment of

         counsel; and documents including: (1) an affidavit from eyewitness Telvin

         Shaw, (2) a letter from an assistant Appellate Defender (APD), dated June 10,



                                               11
       No. 1-12-3371

          2010, and (3) a Chicago Tribune newspaper article by Duaa Eldeib, dated June

          9, 2010.

¶ 31             Defendant states in his pro se petition that the article and the APD's letter

          were both written after his first petition was dismissed.               His initial

          postconviction petition was filed on August 30, 2005, and summarily dismissed

          on October 11, 2006. 6

¶ 32             Defendant also states that Shaw "essentially made himself unavailable as

          a witness when he moved to California shortly after the murder, and did not

          admit to having witnessed the incident until more than 5 years" after defendant's

          trial. In addition, if defendant was not present at the scene of the murder as he

          alleged, then he would not know who was present.

¶ 33             The APD's letter, dated June 10, 2010, and addressed to defendant's

          father, stated that Bartik, Lenihan and Farley were all named in an attached

          Tribune article. The June 9, 2010, article stated that the three officers were

          ordered to pay $110,000 each in punitive damages, after a jury found that they

          had fabricated a confession in a murder case where there had been no physical

          evidence linking the defendant to the crime. See McGee, 2012 IL App (1st)

          111084, ¶¶ 1-4 (a jury awarded damages for malicious prosecution by Officer
             6
               On appeal, this dismissal was affirmed (People v. Jones, No. 1-03-1316
       (2004)), and on September 29, 2010, the Illinois Supreme Court denied his petition
       for leave to appeal the dismissal of the initial petition (People v. Jones, 237 Ill. 2d
       575 (2010)).
                                                 12
       No. 1-12-3371

         Robert Bartik and Detectives Robert Lenihan and Edward Farley, but the

         appellate court reversed and granted a new trial because a juror had performed

         Internet research).

¶ 34           Telvin Shaw stated in a notarized affidavit, dated January 21, 2011:

                   "I Telvin Shaw, do hereby declare and affirm that foregoing

               information within this affidavit is true and correct in substance and in

               part:

                   On the late night of January 7th, 2000 into the early morning hours of

               January 8th, 2000 around 5:00 am, I Telvin Shaw was standing in the

               gangway of the residence at [a certain street address]. At the time, I was

               affiliated with the No Limited faction of the GD. whom Lawrence Green

               a.k.a. 'Motor' was the leader of.

                   On this particular morning, I had been out all night hustling. While

               standing in the ganeway [sic] of this residence, I observed an individual,

               a male whom I didn't know at the time leave out of the back yard of

               'Motor's' house walking out into 72nd Street towards a parked grey-

               colored Chevy vehicle that was facing Damen Street.

                   While this individual was opening his car door someone approached

               him from behind from the alleyway, as the assailant got closer to this



                                               13
No. 1-12-3371

        individual, I clearly notice[d] that the assailant was a guy named 'Melvin',

        a well known member of the Third Ward faction of the GD.

           Melvin stood alone by himself in front of this individual holding a gun

        in his hand. Suddenly, I saw this person raise his hands up and 'Melvin'

        began shooting him several times until he fell to the ground. After

        'Melvin' stopped shooting, I didn't continue to look to see where he went.

        I immediately ran home and never told anyone what I witness.

           I later learn that this guy that I saw 'Melvin' shoot down had died and

        that he was related to 'Motor'. I then sought revenge for 'Motor' by

        looking to make an attempt on 'Melvin's' life so I could try and collect the

        $5,000 dollars that 'Motor' had offered to kill any Third Ward member.

        However, I never got the opportunity to encounter 'Melvin' afterwards

        and I never collected any money from 'Motor.'

           Thereafter, people made several attempts on my life which force me

        to move to California in late January of the year 2000. I returned back to

        the southside of Chicago in my same neighborhood in February 2001. In

        March of 2003 I was charged with an offense that eventually landed me

        in I.D.O.C. at Menard Correctional Center.          While incarcerated at

        Menoard I encountered 'Anteleto Jones' in the prison[']s law library in the

        summer of 2008.

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       No. 1-12-3371

                  After having a conversation with 'Anteleto Jones', to my surprise, I

               learn[ed] that he (Anteleto Jones) was incarcerated for a murder that I

               knew for a fact that he (Anteleto) was innocent of. I also learned after

               having the conversation with Anteleto Jones that he was charged and

               convicted as 'Melvin's' co-defendant for allegedly participating in the

               murder on the morning of January 8th, 2000. I know for a fact that

               Anteleto did not have any involvement with the murder because 'Melvin'

               was the only person I seen that night.

                  I feel the need to do what I know is right by coming forward with an

               accurate and truthful account of what actually occurred on the morning of

               January 8th, 2000. I am making this affidavit of my own free will and I

               would be willing to come forwarded [sic] to testify to the contents herein

               to further assist Anteleto Jones in proving his innocence."

         Shaw states in his affidavit that he did not encounter defendant until the

         summer of 2008, which was two years after defendant's initial petition was

         summarily dismissed.

¶ 35                              IV. Order Denying Leave

¶ 36           On May 31, 2012, the trial court entered an order denying defendant

         leave to file a second petition on the ground that the petition failed to assert "a

         colorable claim of actual innocence." People v. Jones, No. 00 CR 8223(02)

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       No. 1-12-3371

          (Cir. Ct. Cook Co. May 31, 2012) 7, at 4. While the court concluded that Telvin

          Shaw's affidavit was newly discovered evidence, the court rejected defendant's

          letters and newspaper articles because they "are not admissible" (Jones, slip op.

          at 8), and found that Shaw's affidavit was "not of such a conclusive character

          that it would likely change the result on retrial." Jones, slip op. at 5.

¶ 37             The court found that the details in Shaw's affidavit comported in almost

          all respects with "the trial record," including "the color and type of car, where

          the car was parked, defensive wounds to [the victim's] hands, the type of gun

          used, the location of the entry wounds, and which door [the victim] exited as he

          went to the car." Jones, slip op. at 7.

¶ 38             However, the affidavit asserted there was only one shooter, and the trial

          court concluded this assertion was contradicted by the evidence at trial

          including: defendant's confession which defendant claims was coerced; the

          testimony of Odis Deal that Deal could distinguish firearms by their sound

          based on his days in the army 30 years ago, and that he heard two or three

          weapons. The trial court also considered that the presence of two different types

          of cartridge cases established the presence of more than one shooter.




             7
              Since the trial court issued two written decisions in this case in 2012, we
       provide the date in the citation.
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       No. 1-12-3371

¶ 39                                 V. Motion to Reconsider

¶ 40             On July 11, 2012, defendant moved the court to reconsider, with a

          number of supporting exhibits.

¶ 41                                        A. Exhibits

¶ 42             These exhibits8 included pages from the trial testimony of Detective

          Michael Rose, where Rose testified that at 5 a.m. on March 4, 2000, defendant

          stated that Melvin Jones had informed him that Jones had shot a young man

          whom Jones referred to as Old Baby, that Jones hid in a gangway across the

          street from Lawrence Green's residence, that Jones was by himself, that Jones

          wanted to catch Lawrence Green entering or exiting the house, that Jones was

          armed with a .380 caliber semiautomatic handgun which defendant had

          observed in Jones' possession on prior occasions, that Jones observed Old Baby

          exit the rear of Green's residence and walk toward a parked vehicle, that Jones

          said words to the effect of "what's up b***" and Old Baby started "flipping off

          at the mouth," and Jones shot Old Baby six or seven times with the handgun.

          Detective Rose testified that he did not videotape the conversation in which

          defendant stated that he had nothing to do with the offense.


             8
                The exhibits appear in two different places in the appellate record. In one
       place, there is a cover sheet from the circuit court, with just exhibits after it. The
       court's cover sheet states that the documents were received on June 29, 2012, and
       entered into the computer on July 11, 2012.
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       No. 1-12-3371

¶ 43           Defendant also included the entire trial testimony of Richard Amberger, a

         firearms expert employed with the Illinois State Police. Portions of the

         testimony were underlined, including where Amberger testified that the two

         .380/9-millimeter bullets received from the morgue were fired from the same

         firearm as a .380/9-millimeter bullet recovered from the scene, and that .380/9

         millimeter bullets could be fired out of either a .380 caliber or a 9-millimeter

         gun. All the .380 caliber cartridge cases recovered at the scene were chambered

         in the same firearm "at some point," but Amberger could not reach a conclusion

         about whether they had been fired from the same firearm, because the marks

         left by firing were insufficient to reach that conclusion. The two 9-millimeter

         cartridge cases were fired from "the same firearm" but he was not asked to

         clarify what he meant by "the same firearm," and he was not asked whether this

         was the same firearm that had chambered the .380 caliber cartridge cases.

¶ 44           The attached exhibits included an "Impounding Order," dated May 13,

         2003, with a list of items; handwritten statements from Anthony and Darryl

         Thomas stating that defendant was at a party at the time of the offense; an

         "Answer to Discovery" by the State listing witnesses including Anthony and

         Darryl Thomas, and Michelle and Cora Green, whose names were all

         underlined.




                                              18
       No. 1-12-3371

¶ 45                         VI. Amended Motion to Reconsider

¶ 46           On July 16, 2012, defendant mailed an amended motion to reconsider

         which was filed on Monday, July 30, 2012. The amended motion did not attach

         any additional exhibits, and it argued that the trial court had failed to apply the

         correct legal standard.

¶ 47           On Thursday, August 2, 2012, the trial court denied defendant's motion

         for reconsideration on the ground that a motion to reconsider must allege newly

         discovered evidence, changes in the law or errors in the court's prior judgment,

         and defendant's motion did not satisfy these grounds.

¶ 48                               VIII. Late Notice of Appeal

¶ 49           Defendant filed a pro se motion for leave to file a late notice of appeal,

         which this court granted.       This court also appointed the State Appellate

         Defender and this appeal followed.

¶ 50                                      ANALYSIS

¶ 51           On this appeal, defendant claims that the trial court erred in denying his

         pro se motion for leave to file a second postconviction petition: (1) where he

         presented a colorable claim of actual innocence; and (2) where he established

         cause and prejudice to allow the filing of a subsequent petition.         For the

         following reasons, we reverse and remand for appointment of postconviction

         counsel and second-stage postconviction proceedings.

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       No. 1-12-3371

¶ 52                        I. Stages of a Postconviction Petition

¶ 53           Although the issue before us is the very preliminary question of whether

         the petition can even be filed, we provide here a summary of the stages to show

         how the subsequent process sheds light on this preliminary step.

¶ 54           The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

         2012)) provides a statutory remedy for criminal defendants who claim their

         constitutional rights were violated at trial. People v. Edwards, 2012 IL 111711,

         ¶ 21. The Act is not intended to be a substitute for a direct appeal; instead, it is

         a collateral proceeding which attacks a final judgment. Edwards, 2012 IL

         111711, ¶ 21.

¶ 55           The Act provides for three stages of review by the trial court. People v.

         Domagala, 2013 113688, ¶ 32. At the first stage, the trial court may summarily

         dismiss a petition that is frivolous or patently without merit. 725 ILCS 5/122-

         2.1(a)(2) (West 2012); Domagala, 2013 IL 113688, ¶ 32.

¶ 56           However, for a successive petition to even be filed, the trial court must

         first determine whether the petition (1) states a colorable claim of actual

         innocence (Edwards, 2012 IL 111711, ¶ 28) or (2) establishes cause and

         prejudice (People v. Smith, 2014 IL 115946, ¶ 34). This standard is higher than

         the normal first-stage "frivolous or patently without merit" standard applied to

         initial petitions. Edwards, 2012 IL 111711, ¶¶ 25-29; Smith, 2014 IL 115946,

                                                20
       No. 1-12-3371

         ¶ 34 ("the cause-and-prejudice test for a successive petition involves a higher

         standard than the first-stage frivolous or patently without merit standard that is

         set forth in section 122-2.1(a)(2) of the Act").

¶ 57           Since a filed successive petition has already satisfied a higher standard,

         the first stage is rendered unnecessary and the successive petition is docketed

         directly for second-stage proceedings. See People v. Sanders, 2016 IL 118123,

         ¶¶ 25 28 (with a successive petition, the initial issue before the trial court is

         whether it "should be docketed for second-stage proceedings"); People v.

         Wrice, 2012 IL 111860, ¶ 90 ("reversing the trial court's order denying leave to

         file his second successive postconviction petition and remand[ing] to the trial

         court for *** second-stage postconviction proceedings"); People v. Jackson,

         2015 IL App (3d) 130575, ¶ 14 ("When a defendant is granted leave to file a

         successive postconviction petition, the petition is effectively advanced to the

         second stage of postconviction proccedings."); People v. Almodovar, 2013 IL

         App (1st) 101476, ¶ 1, (reversing the trial court's denial of the defendant's

         motion for leave to file a successive petition and remanding for second-stage

         proceedings).

¶ 58           If a trial court permits a successive petition to be filed or does not dismiss

         an initial petition at the first stage, the petition then advances to the second

         stage, where counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4

                                                21
       No. 1-12-3371

         (West 2012); Domagala, 2013 IL 113688, ¶ 33; Wrice, 2012 IL 111860, ¶ 90

         (after reversing the trial court's denial of leave to file a successive petition, the

         supreme court remanded "for appointment of postconviction counsel and

         second-stage postconviction proceedings"). After counsel determines whether

         to amend the petition, the State may file either a motion to dismiss or an answer

         to the petition. 725 ILCS 5/122-5 (West 2012); Domagala, 2013 IL 113688,

         ¶ 33. At the second stage, the trial court must determine "whether the petition

         and any accompanying documentation make a substantial showing of a

         constitutional violation." People v. Edwards, 197 Ill. 2d 239, 246 (2001).

¶ 59           "The second stage of postconviction review tests the legal sufficiency of

         the petition. Unless the petitioner's allegations are affirmatively refuted by the

         record, they are taken as true, and the question is whether those allegations

         establish or 'show' a constitutional violation. In other words, the 'substantial

         showing' of a constitutional violation that must be made at the second stage

         [citation] is a measure of the legal sufficiency of the petition's well-pled

         allegations of a constitutional violation, which if proven at an evidentiary

         hearing, would entitle petitioner to relief." (Emphasis in original.) Domagla,

         2013 IL 113688, ¶ 35.

¶ 60           Both the second stage and a motion for leave to file a successive petition

         require a review of "the petition and any accompanying documentation."

                                                22
       No. 1-12-3371

         Edwards, 197 Ill. 2d at 246 (second stage review); Edwards, 2012 IL 11171,

         ¶ 24 (motion for leave to file a successive petition). For the second stage to not

         be superfluous for a successive petition, it must be that the "substantial

         showing" required at the second stage is greater than the "probability" required

         for a successive petition to receive leave for filing. Smith, 2014 IL 115946, ¶ 29

         (expressing a desire not to "render the entire three-stage postconviction process

         superfluous").

¶ 61           If the defendant makes a "substantial showing" at the second stage, then

         the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL

         113688, ¶ 34. At a third-stage evidentiary hearing, the trial court acts as

         factfinder, determining witness credibility and the weight to be given particular

         testimony and evidence, and resolving any evidentiary conflicts. Domagala,

         2013 IL 113688, ¶ 34.       This third stage is the same for both initial and

         successive petitions. Cf. Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly

         intended for further proceedings on successive postconviction petitions.").

¶ 62                                II. Successive Petition

¶ 63           Although our supreme court has made clear that the Act contemplates

         only one postconviction proceeding, "[n]evertheless, [the supreme] court has, in

         its case law provided two bases upon which the bar against successive

         proceedings will be relaxed" (Edwards, 2012 IL 111711, ¶ 22), and defendant

                                               23
       No. 1-12-3371

         has alleged both in the instant appeal. Those two bases are: (1) cause and

         prejudice; and (2) actual innocence. Edwards, 2012 IL 111711, ¶ 22.

¶ 64           Under the cause-and-prejudice test, a defendant must establish both: (1)

         cause for his or her failure to raise the claim earlier; and (2) prejudice stemming

         from his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People

         v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)). By contrast, to establish a claim

         of actual innocence, a defendant must show that the evidence in support of his

         or her claim is: (1) newly discovered; (2) material and not merely cumulative:

         and (3) of such a conclusive character that it would probably change the result

         on retrial. Edwards, 2012 IL 111711, ¶ 32.

¶ 65           In Edwards, the supreme court addressed the standard that a trial court

         should apply when deciding whether to grant leave to file a successive petition

         alleging actual innocence. Edwards, 2012 IL 111711, ¶ 24. See People v.

         Smith, 2014 IL 115946, ¶ 30 ("Edwards involves the standard a petitioner who

         claims actual innocence must meet in seeking leave to file a successive petition

         ***.").   Two years later in Smith, the supreme court addressed the same

         question but with respect to a successive petition alleging cause and prejudice.

         Smith, 2014 IL 115946, ¶ 32 (the Smith court observed that, in Edwards, "this

         court did not address the cause-and-prejudice exception *** as it was not at

         issue in Edwards").

                                               24
       No. 1-12-3371

¶ 66           With respect to an actual innocence petition, the Edwards court held 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." Edwards, 2012 IL 111711, ¶ 24. "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 [this] new evidence.' Schlup v. Delo, 513 U.S. 298,

         327 (1995) (characterizing the threshold standard as one of probability)."

         Edwards, 2012 IL 111711, ¶ 24.

¶ 67           With respect to the cause-and-prejudice test, the Smith court held that "a

         defendant's pro se motion for leave to file a successive postconviction petition

         will meet the section 122-1(f) cause and prejudice requirement if the motion

         adequately alleges facts demonstrating cause and prejudice." Smith, 2014 IL

         115946, ¶ 34. "[L]eave of court to file a successive postconviction petition

         should be denied when it is clear, from a review of the successive petition and

         the documentation submitted by the petitioner, that the claims alleged by the

         petitioner fail as a matter of law or where the successive petition with

         supporting documentation is insufficient to justify further proceedings." Smith,

         2014 IL 115946, ¶ 35. Thus, the Smith test for cause and prejudice is different

                                              25
       No. 1-12-3371

         from the Edwards test which applies to successive petitions alleging actual

         innocence.

¶ 68                               III. Standard of Review

¶ 69           "Having established what a petitioner must set forth when seeking leave

         of court to file a successive petition on the basis of actual innocence, [the

         Edwards court] turn[ed] to the standard of review ***." Edwards, 2012 IL

         111711, ¶ 30.

¶ 70           First, the Edwards court observed that "[g]enerally, decisions granting or

         denying 'leave of court' are reviewed for an abuse of discretion." Edwards,

         2012 IL 111711, ¶ 30. But next, the Edwards court stated: "However, as we

         have just noted, a trial court should deny leave only in cases where, as a matter

         of law, no colorable claim of actual innocence has been asserted. This suggests

         a de novo review." Edwards, 2012 IL 111711, ¶ 30. The court then found that

         it "need not decide this question in this case," and so it left this question "for

         another day and a more appropriate case." Edwards, 2012 IL 111711, ¶ 30.

¶ 71           Following the suggestion of our supreme court in Edwards, we will apply

         a de novo standard of review to the actual innocence claim. As the Edwards

         court itself observed, we are faced with a purely legal question, and legal

         questions are generally reviewed under a de novo standard. Edwards, 2012 IL

         111711, ¶ 30. In addition, de novo review furthers the original goal of the

                                               26
       No. 1-12-3371

         actual-innocence exception, which is to prevent a fundamental miscarriage of

         justice. Edwards, 2012 IL 111711, ¶ 23.

¶ 72           Next we discuss the appropriate standard of review for defendant's

         second claim of cause and prejudice.

¶ 73           In Smith, the issue was whether the Act prohibited the denial of leave

         when the pleadings of the petition made an " 'arguable' " showing of cause and

         prejudice. Smith, 2014 IL 115946, ¶ 25 (quoting the defendant's petition). The

         Smith court observed that the standard of review for "this issue of statutory

         construction" was de novo. Smith, 2014 IL 115946, ¶ 21. However, the Smith

         court did not explicitly state, after resolving this issue of statutory construction,

         whether the standard of review for a trial court's grant or denial of leave to file a

         successive petition was then also de novo.

¶ 74           Since cause-and-prejudice claims may fail either as a matter of law or

         due to an insufficiency of the petition and supporting documents, we conclude,

         as have other appellate courts, that a de novo standard of review also applies.

         People v. Diggins, 2015 IL App (3d) 130315, ¶ 7 (applying a de novo standard

         of review to the trial court's denial of the defendant's motion to file a successive

         petition alleging cause and prejudice, because this issue is "resolved on the

         pleadings" alone); People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38

         (applying a de novo standard of review to the trial court's denial of the

                                                27
       No. 1-12-3371

         defendant's motion to file a successive petition alleging cause and prejudice).

         See also People v. Wrice, 2012 IL 111860, ¶ 50 (applying a de novo standard of

         review to the State's arguments concerning lack of prejudice to the defendant,

         since these "arguments raise purely legal issues").

¶ 75           When our review is limited to documentary materials, as it is here, then

         our review is generally de novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d

         147, 154 (2007) ("Where the circuit court does not hear testimony and bases its

         decision on documentary evidence, the rationale underlying a deferential

         standard of review is inapplicable and review is de novo"); Dowling v. Chicago

         Options Associates, Inc., 226 Ill. 2d 277, 285 (2007) (where the trial court "did

         not conduct an evidentiary hearing" or "make any findings of fact," and "relied

         on the parties' oral argument and the record," "we review the court's ruling on

         this issue de novo").

¶ 76           Thus, we will apply a de novo review to both of defendant's claims. De

         novo consideration means that we perform the same analysis that a trial judge

         would perform. In re N.H., 2016 IL App (1st) 152504, ¶ 50 (citing Khan v.

         BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)).

¶ 77                                   IV. The Record

¶ 78           The next question is what we are permitted to review. In Smith, our

         supreme court held that: "leave of court to file a successive postconviction

                                               28
       No. 1-12-3371

          petition should be denied when it is clear, from a review of the successive

          petition and the documentation submitted by the petitioner, that the claims

          alleged by the petitioner fail as a matter of law or where the successive petition

          with supporting documentation is insufficient to justify further proceedings."

          (Emphases added.) Smith, 2014 IL 115946, ¶ 35.

¶ 79             Thus, we must certainly consider the pro se petition itself and any

          supporting documentation that defendant provided. Edwards, 2012 IL 111711,

          ¶ 24. However, the Smith court left open the question of whether we and the

          trial court may consider the underlying record. The Smith court stated: "The

          parties have not argued or briefed whether the trial court may consider the

          record in ruling on a petition brought under section 122-1(f) of the Act.

          Accordingly, we do not address that issue." Smith, 2014 IL 115946, ¶ 35 n.3.9

¶ 80             After making this observation, the Smith court then proceeded to discuss

          what happened at trial. Smith, 2014 IL 115946, ¶ 37. However, before

          discussing the events and statements at trial, the court stated that these facts

          were "undisputed." Smith, 2014 IL 115946, ¶ 37. Based on the prior footnote




             9
              Section 122-2.1 provides that, "after the filing" of the petition, "the court
       may examine the court file of the proceeding in which the petitioner was
       convicted." 725 ILCS 5/122-2.1 (West 2014). However, in the instant appeal, we
       are considering a petition that has not yet been filed, which explains why the Smith
       court observed that this was an open issue.
                                                29
       No. 1-12-3371

         and the court's statement that these facts were undisputed, it is unclear whether

         these facts were in the petition and supporting documentation before the court.

¶ 81           As in Smith, the Edwards court relied primarily on the failings on the

         face of the petition and supporting documentation when it affirmed the trial

         court's denial of leave. In Edwards, the supreme court found "no indication"

         that the defendant had tried to subpoena his alibi witnesses, who were both

         known to the defendant at the time of trial, and thus their affidavits did not

         qualify as "newly discovered" evidence. Edwards, 2012 IL 111711, ¶¶ 35-37.

         The supreme court stated that "there was no attempt to subpoena" and "no

         explanation as to why." Edwards, 2012 IL 111711, ¶ 37. If the petition had

         alleged an attempt and offered an explanation, then there would have been some

         "indication."   Edwards, 2012 IL 111711, ¶¶ 36-37. Thus, the failing was

         apparent on the face of the petition itself.

¶ 82           In addition, the Edwards court found that the codefendant's affidavit did

         not raise a colorable claim of actual innocence when the defendant was

         convicted under a theory of accountability and the affidavit did "not assert that

         petitioner was not present when the shooting took place." Edwards, 2012 IL

         111711, ¶¶ 38-39. Again, the failing was apparent on the face of the

         documentation itself.




                                                 30
       No. 1-12-3371

¶ 83              As of today, there are no published Illinois cases discussing Smith's

          footnote 3 (Smith, 2014 IL 115946, ¶ 35 n.3) and only five published Illinois

          cases citing Smith at all.    Of these five cases, only three 10 discussed the

          evidence to be considered. People v. Diggins, 2015 IL App (3d) 130315, ¶ 7

          ("The question of whether to allow leave to file a successive petition is resolved

          on the pleadings ***."); People v. Crenshaw, 2015 IL App (4th) 131035, ¶¶ 21,

          32-33 (rejecting the defendant's argument that the State is forbidden from

          participating in arguments before the trial court on the question of whether

          leave should be granted); People v. Shotts, 2015 IL App (4th) 130695, ¶¶ 7, 71.

          In Shotts, the appellate court observed that an appellate court may always take

          judicial notice of its own opinions and orders. Shotts, 2015 IL App (4th)

          130695, ¶¶ 7, 71 (the appellate court noted that an appellate court may take

          judicial notice of its own opinions and orders, that this was the defendant's

          eleventh appeal, and that "defendant's pleading essentially repeats claims

          previously considered and rejected as frivolous" and thus leave to file was

          properly denied).




             10
               The remaining two cases cited Smith for unrelated issues: (1) People v.
       Sanders, 2016 IL 118123, ¶¶ 26, 30 (the issue was whether the trial court properly
       dismissed the petition at the second stage; Smith was cited in passing); and (2)
       People v. Jackson, 2015 IL App 3d 130575, ¶ 28 (Schmidt, J., dissenting) (Smith
       was cited only in dissent and on a different issue).
                                                31
       No. 1-12-3371

¶ 84           Until our supreme court resolves this issue, we will rely primarily on the

         petition and its supporting documentation in deciding this preliminary question

         of whether the petition may even be filed. In addition, we will take judicial

         notice of our prior opinions and orders. Shotts, 2015 IL App (4th) 130695, ¶¶ 7,

         71. See also Village of Riverwoods v. BG Limited Partnership, 276 Ill. App. 3d

         720, 724 (1995) (a court may properly take judicial notice of publicly available

         records "where such notice will aid in the efficient disposition of a case" (cited

         with approval by Wackrow v. Niemi, 231 Ill. 2d 418, 421 n.1 (2008))); In re

         McDonald, 144 Ill. App. 3d 1082, 1084 (1986) (a court may take judicial notice

         of matters of record in other cases in the same court).

¶ 85           From the perspective of the orderly administration of justice, it makes

         sense to review primarily at this very preliminary stage the documents filed by

         defendant rather than the entire trial court record. As we explained in the prior

         section on the postconviction stages, the postconviction process provides other

         stages where a petition may be more substantially judged. Edwards, 197 Ill. 2d

         at 246 ("a substantial showing" is not required until the second stage). The

         Smith court observed: "From a practical standpoint, if a petitioner is required

         to establish cause and prejudice conclusively prior to being granted leave to file

         a successive petition, it may render the entire three-stage postconviction process




                                               32
       No. 1-12-3371

         superfluous." Smith, 2014 IL 115946, ¶ 29 ("The legislature clearly intended for

         further proceedings on successive petitions.").

¶ 86           Both Edwards and Smith discussed the amount of documentation which

         the defendant must submit at this preliminary stage. In Edwards, the supreme

         court stated: "Defendant not only has the burden to obtain leave of court, but

         also 'must submit enough in the way of documentation to allow a circuit court

         to make that determination.' " Edwards, 2012 IL 111711, ¶ 24 (quoting People

         v. Tidwell, 236 Ill. 2d 150, 161 (2010)). In Smith, the supreme court observed

         that "the legislature intended that the cause-and-prejudice determination be

         made on the pleadings prior to the first stage," that defendant must "allege[]

         facts demonstrating cause and prejudice," and that he must " 'submit enough in

         the way of documentation to allow a circuit court to make that determination.' "

         Smith, 2014 IL 115946, ¶¶ 33-35 (quoting Tidwell, 236 Ill. 2d at 161).

¶ 87           Thus, we will now review defendant's two claims primarily in light of the

         documentation he submitted, as well as our prior opinions and orders.

¶ 88                                 V. Actual Innocence

¶ 89           Defendant's first claim is actual innocence. As stated, to establish a claim

         of actual innocence, a defendant must establish that the evidence in support of

         his or her claim is: (1) newly discovered; (2) material and not merely



                                               33
       No. 1-12-3371

         cumulative; and (3) of such a conclusive character that it would probably

         change the result on retrial. Edwards, 2012 IL 111711, ¶ 32.

¶ 90                                A. Newly Discovered

¶ 91           First, we agree with the trial court that Shaw's affidavit is newly

         discovered. If we accept, as we must at this preliminary stage, defendant's

         assertion that he is innocent and was not present at the shooting, then he would

         have no way of knowing who was present and who could exonerate him.

         People v. Williams, 392 Ill. App. 3d 359, 367 (2009) (in reviewing a trial court's

         denial of leave to file a "successive postconviction petition, all well-pleaded

         facts in the petition and supporting affidavits are taken as true"); see also

         People v. Brown, 236 Ill. 2d 175, 193 (2010) (at the first stage, we must "accept

         as true *** the allegations of the pro se petition"). In addition, Shaw averred

         that he fled to California shortly after the January 8, 2000, shooting, because

         attempts were made on his life, thereby making himself unavailable. People v.

         Ortiz, 235 Ill. 2d 319, 334 (2009) (an eyewitness was newly discovered when

         he "essentially made himself unavailable as a witness when he moved to

         Wisconsin shortly after the murder"). Thus, we agree with the trial court's

         finding that Shaw's affidavit is newly discovered.




                                               34
       No. 1-12-3371

¶ 92              The trial court rejected defendant's letter and newspaper article 11 on the

          ground that they were "inadmissible." Jones, slip op. at 8. However,

          admissibility is not the standard in postconviction proceedings. Our supreme

          court specifically amended the Illinois Rules of Evidence so that admissibility is

          not even the standard at the later third-stage postconviction hearings. Ill. R.

          Evid. 1101(b)(3) (eff. Jan. 6, 2015) (the Illinois Rules of Evidence "do not

          apply" to "postconviction hearings"). 12 This is even more true at this early

          stage, where the imprisoned defendant has no access to counsel.13 The question

          is whether the documentation that the defendant does present could lead, after

             11
               The trial court considered the letter and newspaper article as part of
       defendant's actual innocence claim, which is what defendant argued in his petition.
       Jones, slip op. at 3. Defendant's appellate brief discusses it as part of his second
       claim, concerning cause and prejudice. We consider it under both.
             12
                Rule 1101 of the Illinois Rules of Evidence was amended on April 8,
       2013, to include "postconviction hearings" on the list of proceedings to which the
       rules of evidence do not apply. Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013). Thus,
       case law issued prior to this date, which does not take this change into account,
       may not be applicable. Although the trial court's decision was issued before the
       amendment, our review is de novo and, thus, this amendment governs our
       consideration.
             13
               The State cited McCall v. Devine, 334 Ill. App. 3d 192 (2002), for the
       proposition that defendant's newspaper articles are inadmissible hearsay.
       However, in McCall, 334 Ill. App. 3d at 203, we held that newspaper articles were
       inadmissible in a civil suit by a mother seeking appointment of a special prosecutor
       to investigate the death of her son. In contrast to civil suits, our supreme court has
       specifically provided that the rules of evidence, including the rules of hearsay, do
       not apply in postconviction proceedings. Ill. R. Evid. 1101(b)(3) (eff. Apr. 8,
       2013).

                                                 35
       No. 1-12-3371

          counsel is appointed, to admissible evidence at a future retrial. See Edwards,

          197 Ill. 2d at 246 ("a substantial showing" is not required until the second

          stage).

¶ 93              There is nothing before us to suggest that evidence about possible

          misconduct by Officer Bartik and Detectives Lenihan and Farley was available

          to defendant earlier. The article submitted by defendant concerns defendant

          Donny McGee, and the State argues that, since McGee was acquitted in 2004,

          McGee's "claims of fabricating his confession" must have been "available" in

          2004, which was before defendant filed his first postconviction petition in 2005.

          However, the State cites no source to support its claim that McGee's claims

          must have been available in 2004. News of McGee's claims was not widely

          reported until June 2010,14 when a jury awarded McGee over a million dollars

          in damages.15 This verdict was issued months after this court had already



             14
                There were a number of articles about the McGee case in June 2010. We
       cite here only one as an example. Donny McGee Awarded $1.3M After Police
       MADE UP His Confession, Huffington Post, (June 10, 2010), available at
       http://www.huffingtonpost.com/2010/06/10/donny-mcgee-awarded
       -13m-a_n_607393.html.
             15
                On June 8, 2010, a civil jury awarded $1.3 million to McGee, but the case
       was appealed and remanded for a new trial because one juror did outside research.
       McGee, 2012 IL App (1st) 111084, ¶¶ 5-6. In 2014, the City settled the case for
       $870,000, thereby avoiding a new trial and any admission of wrongdoing by the
       city. Hal Dardick and Duaa Eldeib, Chicago aldermen OK $6.6 million to settle
       lawsuits, Chicago Tribune (Mar. 31, 2014), available at
                                               36
       No. 1-12-3371

          dismissed defendant's initial postconviction petition. Jones, 399 Ill. App. 3d at

          1 (decided March 5, 2010). In 2005, when defendant filed his first petition, the

          McGee parties were still in the midst of an unpublished discovery dispute, with

          the City seeking a protective order in order to keep " 'polygraph related files' "

          and other documents "from public view." McGee v. City of Chicago, 2005 WL

          3215558 (N.D. Ill. June 23, 2005), at 4.16 Thus, we do not find this argument

          persuasive.

¶ 94                             B. Material and Not Cumulative

¶ 95              Second, the trial court did not reject defendant's evidence on the basis

          that it lacked materiality or was merely cumulative, and we agree.

¶ 96              Shaw's affidavit was material and not cumulative. His affidavit, if true,

          may likely exonerate defendant. Other than the shooter, Shaw is the only known

          eyewitness to the murder. The trial court found that the details in Shaw's

          affidavit comported in almost all respects with "the trial record," including "the

          color and type of car, where the car was parked, defensive wounds to [the

          victim's] hands, the type of gun used, the location of the entry wounds, and

          which door [the victim] exited as he went to the car." Jones, slip op. at 7. Thus,

       (http://articles.chicagotribune.com/2014-03-31/news/chi-chicago-aldermen-ok-66-
       million-to-settle-lawsuits-20140331_1_leslie-darling-new-trial-city-attorney).
             16
                Although the McGee case was unpublished, we cite it for the fact that it
       was unpublished and not for any precedential value. Ill. S. Ct. R. 23(e)(1) (eff.
       July 1, 2011) (unpublished orders are "not precedential").
                                                37
       No. 1-12-3371

          Shaw's affidavit is material and not merely cumulative. Ortiz, 235 Ill. 2d at

          335-36 (the testimony of a newly discovered eyewitness was material where it

          "supplied a first-person account of the incident that directly contradicted the

          prior statements" of the State's two eyewitnesses); see also People v. Coleman,

          2013 IL 113307, ¶ 103 (testimony of codefendants, stating that the defendant

          was not even present, was material).

¶ 97              Similarly, the information in the letter and newspaper article is not

          cumulative of any information previously presented.          Defendant moved to

          suppress his confession before trial on the grounds that Officer Bartik, who is

          the polygraph examiner, shoved and punched defendant while Detectives

          Lenihan and Farley watched. The trial court denied the motion, expressing

          incredulity that a polygraph examiner would act this way. 17 Evidence of prior,

          similar misconduct by these same officers may have corroborated defendant's

          claim of physical and psychological coercion. Where the only evidence

          connecting defendant to this murder is his own confession, information

          corroborating his claim of physical coercion is material.

¶ 98              This is particularly true where certain details regarding the confession did

          not match the other evidence. If defendant's videotaped confession were

             17
                In denying defendant's motion to suppress, the trial court stated: "But of
       all the people that he comes in contact with, it's the polygraph examiner who
       pushes and shoves him? It doesn't make sense at all[.]"
                                                 38
        No. 1-12-3371

          accurate, and defendant fired a .357 caliber handgun toward the victim, after the

          victim had been the target of numerous other gunshots and as the victim was

          falling to the ground, then defendant was firing toward an almost stationery

          target and one would expect to find .357 caliber bullets in or near the victim.

          However, no .357 caliber bullets were discovered or recovered from the body or

          the crime scene.

¶ 99                          C. Probability of a Different Result

¶ 100             Lastly, to establish a claim of actual innocence, a defendant must

          demonstrate that the evidence in support of his or her claim is of such a

          conclusive character that it would probably change the result on retrial.

          Edwards, 2012 IL 111711, ¶ 32.

¶ 101             The Edwards stated the question as follows: "the question is whether

          petitioner set forth a colorable claim of actual innocence. In other words, did

          petitioner's request for leave of court and his supporting documentation 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,

          ¶ 31.     However, this "probability" is less than the "substantial showing"

          required at the second stage. Supra ¶ 58.

¶ 102             The cumulative effect of the documentation, in support of defendant's

          innocence and not available at his prior trial, raises the probability that it is

                                               39
        No. 1-12-3371

          more likely than not that he would not be convicted. People v. Ortiz, 385 Ill.

          App. 3d 1, 12-13 (2008) (discussing the cumulative evidence now available to

          the defendant, in order to determine whether the result would probably change

          at retrial), aff'd 235 Ill. 2d 319, 336-37 (2009). It includes: (1) the affidavit of a

          newly discovered eyewitness who states that defendant was not even present at

          the crime scene; (2) the affidavit of the murderer who states defendant was not

          involved; (3) the statements of two alibi witnesses, discovered posttrial by the

          prosecutor, that defendant was with them, and included in defendant's motion to

          reconsider; and (4) information concerning similar misconduct by the same

          officers who obtained defendant's confession. Tyler, 2015 IL App (1st) 123470,

          ¶¶ 4, 21 (this court reversed the dismissal of the defendant's postconviction

          petition and remanded for a hearing on the defendant's coerced confession claim

          where the initial confession was obtained during a 45-minute interview with

          Detective Lenihan); McGee, 2012 IL App (1st) 111084; ¶¶ 1-4.

¶ 103           In contrast, at trial, there were no eyewitnesses at trial, no physical

          evidence linking defendant to the murder, and no evidence of an arrest of

          defendant at the crime scene. Almodovar, 2013 IL App (1st) 101476, ¶ 79 (this

          court granted the defendant leave to file a successive petition and found that the

          new evidence would probably change the result on retrial, where "[n]o physical

          evidence link[ed] the defendant to the shooting," where the two eyewitnesses

                                                  40
        No. 1-12-3371

           had "only a brief opportunity to see the perpetrators," and where the defendant

           attached a newspaper article concerning past misconduct by the same

           detective).

¶ 104              The only evidence at trial linking defendant to the offense was his own

           videotaped confession, which defendant has consistently claimed was coerced.

           People v. Patterson, 192 Ill. 2d 93, 145 (2000) (reversing for a third-stage

           evidentiary hearing, the court stressed that "defendant has consistently claimed"

           his confession was coerced). Also, some of the details of his confession do not

           comport with the physical evidence. In the confession, defendant stated, in

           essence, that he fired a .357 caliber handgun towards an already incapacitated

           victim, but no .357 caliber bullets were recovered from the body or at the scene.

¶ 105              In addition, this court does not have to turn a blind eye to the fact that it

           is odd that a defendant would volunteer for a polygraph examination and then

           confess to the examiner before ever receiving one.18 This odd series of events

           was testified to, not by defendant, but by Detective Lenihan. Not only is it odd,

           but using a pretest interview to elicit a confession is also prohibited. 68 Ill.
              18
                 "Bartik stated in court testimony that he got more than 100 confessions in
        a five-year period in pre-test interviews – a number that strikes some experts as
        extraordinary. They said the pre-test is not a time to try to get confessions; it's
        when the examiner explains how the polygraph works, gets consent and reviews
        the questions." Duaa Elderib, Polygraphs and false confessions in Chicago,
        Chicago Tribune (Mar. 10, 2013), available at http://www.chicagotribune.com/ct-
        met-polygraph-confessions-20130310,0,57552.story.

                                                   41
        No. 1-12-3371

           Adm. Code 1230.90(c) (2015).19 ("The examiner shall not initiate an accusatory

           interrogation prior to the test for the purpose of eliciting a confession or

           admission against interest for the prospective subject."). Cf. People v. Hattery,

           183 Ill. App. 3d 785, 822 (1989) ("In a number of cases, Illinois courts have

           held that confessions following polygraph examinations were properly

           suppressed."). See also People v. Taylor, 101 Ill. 2d 377, 391-92 (1984)

           (polygraph examinations have no place in Illinois courts to prove either guilt or

           innocence).

¶ 106              Although odd, this has happened in a number of other appellate court

           cases involving Officer Bartik. E.g., People v. Cook, 352 Ill. App. 3d 108, 112

           (2004) (Officer Bartik testified that the defendant confessed before he even

           began the actual polygraph examination); People v. Daniels, 2014 IL App (1st)

           130063-U, ¶ 65 (Officer Bartik testified that the defendant confessed during the

           pretest interview)20; see also Murphy v. Atchison, No. 12 C 1206, 2013 WL

           4495652, at *5 (N.D. Ill. Aug. 9, 2013) (Officer Bartik testified that the

           defendant confessed prior to taking the test); Murphy, 2013 WL 4495652, at *1
              19
               This prohibition has been in effect since at least 1998. 69 Ill. Admin.
        Code 1230.90 (c), amended at 22 Ill. Reg. 10567 (eff. June 1, 1998).
              20
                 Although Daniels, Murphy and Lanza are unpublished cases, we are not
        citing them for their precedential value but solely for their facts. Ill. Sup. Ct. R.
        23(e)(1) (eff. July 1, 2011) (an unpublished order may not be cited as
        "precedential").

                                                  42
        No. 1-12-3371

           (in the case involving defendant Donny McGee, Officer Bartik testified that,

           while he was preparing to administer a polygraph test, McGee confessed to the

           murder; McGee was subsequently acquitted)21; Lanza v. City of Chicago, No.

           08 C 5103, 2009 WL 3229407, at *1-2 (N.D. Ill. Oct. 1, 2009) (a criminal

           defendant alleged that "Bartik and two detectives claimed that [he] confessed to

           the [offense] before they had the opportunity to give him a lie detector test" and

           that the charges against him were eventually dropped).

¶ 107              In People v. Harris, 389 Ill. App. 3d 107, 116 (2012), the defendant

           testified that Officer Bartik repeatedly accused her of lying, stating: "You

           know what, Nicole, you are p*** me off. I've been patient with you and you are

           still sitting up here, you are lying to us, you know what, you're acting like a

           monster." (Ellipsis added.) Bartik stated that she would "spend the rest of your

           life behind bars because you won't cooperate." Ultimately, the Seventh Circuit

           Court of Appeals granted the defendant a writ of habeas corpus and granted the




              21
                 "At the heart of McGee's case and others is whether Chicago police used
        their polygraph unit as a tool to obtain false confessions. At least five defendants –
        four of whom were charged with murder – have been cleared since 2002. In a
        sixth case, a federal appeals court threw out a murder conviction *** In five of the
        six cases, suspects were taken to Bartik." Duaa Eldeib, Polygraphs and false
        confessions, Chicago Tribune (Mar. 10, 2013), available at
        http://www.chicagotribune.com/ct-met-polygraph-confessions-
        20130310,0,57552.story)..
                                                  43
        No. 1-12-3371

           State 120 days within which to decide whether to retry her. Harris v.

           Thompson, 698 F.3d 609, 650 (7th Cir. 2012).22

¶ 108              We do not find dispositive the fact that defendant did not mention in the

           letters to his parents that the polygraph examiner pushed and shoved him. In

           his pretrial suppression motion, defendant claimed that the polygraph examiner

           punched and shoved him, and that defendant was also subjected to

           psychological and mental coercion. In the letter to his parents, dated March 25,

           2000, which was attached to his first petition, defendant stated that the

           examiner threatened him with "the death penalty" because the examiner knew

           "for a fact" that defendant would fail the test, as "it was set up for [him] to fail."

           We do not find dispositive the omission of punching in the letter because, in

           both the motion and the letter, defendant made a statement concerning coercive

           behavior by the polygraph examiner. The reason for a difference in details is a

           credibility issue which is best explored at the trial level rather than from the

           paper record of an appellate court.

¶ 109              The trial court concluded that the assertion in Shaw's affidavit of only

           one shooter was contradicted by the evidence at trial.             We review this

           conclusion de novo. The trial court's conclusion was based primarily on: (1)
              22
                  The State elected not to retry Harris. Duaa Eldeib & Lisa Black, Mother
        finally feels free, Chicago Tribune (June 18, 2013), available at
        http://articles.chicagotribune.com/2013-06-18/news/ct-met-nicole-harris-retrial-
        20130618_1_jaquari-dancy-nicole-harris-alleged-confession.
                                                   44
        No. 1-12-3371

          defendant's confession, which defendant claims was coerced; (2) the testimony

          of Odis Deal, who testified that he could distinguish between guns based on his

          days in the army 30 years ago; and (3) the presence of two different types of

          cartridge cases. The trial court considered that two different cartridge cases

          meant that there had to be two different shooters. However, the firearms expert

          testified that .380/9 millimeter bullets can be fired from either a .380 caliber or

          9 millimeter gun. Thus, the physical evidence at trial does not comport with

          this conclusion. In addition, Deal's testimony was not strong evidence of two

          shooters, and defendant has consistently claimed that his confession was

          coerced, both before trial, during trial and in posttrial motions. Curtis Moore

          testified that some gunshots sounded louder than others, and also officers

          testified that cartridges were found on either side of the vehicle. However, this

          is consistent with the victim trying to move away from his attacker, rather than

          remaining stationary upon observing a gunman.

¶ 110           In sum, we find a probability that the evidence uncovered since

          defendant's trial may produce a new result at a retrial, where (1) the only

          evidence linking the 19-year-old defendant to the crime was his own

          confession; (2) the circumstances of the initial confession were odd; (3) some

          details in the confession did not match the physical evidence recovered at the

          crime scene; (4) the one and only known eyewitness to the crime, other than the

                                                45
        No. 1-12-3371

          shooter, exonerates defendant; (5) the confessed shooter exonerates defendant;

          (6) alibi witnesses, produced not by defendant but by the prosecutor, exonerate

          defendant; and (7) recent information supports defendant's claim that his

          confession was physically coerced.

¶ 111           Thus, we reverse and remand for appointment of counsel and second-

          stage proceedings.

¶ 112                            VI. Cause-and-Prejudice Test

¶ 113           Defendant also claims that the trial court erred in denying him leave to

          file his second postconviction petition because he satisfied the cause-and-

          prejudice test. This exception was articulated first by our supreme court in

          Pitsonbarger, 205 Ill. 2d at 459, and later codified by our state legislature in

          section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2012)). See also

          Edwards, 2012 IL 111711, ¶ 22 ("The General Assembly codified the cause-

          and-prejudice exception in section 122-1(f) of the Act, several years after our

          decision in Pitsonbarger.").

¶ 114           Section 122-1(f) of the Act provides that: "(1) a prisoner shows cause by

          identifying an objective factor that impeded his or her ability to raise a specific

          claim during his or her initial post-conviction proceedings; and (2) a prisoner

          shows prejudice by demonstrating that the claim not raised during his or her

          initial post-conviction proceedings so infected the trial that the resulting

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        No. 1-12-3371

          conviction or sentence violated due process."      725 ILCS 5/122-1(f) (West

          2012).

¶ 115           Our supreme court observed: "Section 122-1(f) does not provide for an

          evidentiary hearing on the cause-and-prejudice issues and, therefore, it is clear

          that the legislature intended that the cause-and-prejudice determination be made

          on the pleadings prior to the first stage of postconviction proceedings." Smith,

          2014 IL 115946, ¶ 33.

¶ 116           Defendant argues that the APD's letter and the attached newspaper article

          satisfy the cause-and-prejudice test. This court's decision in People v.

          Almodovar, 2013 IL App (1st) 101476, is instructive. In Almodovar, a

          defendant moved for leave to file a successive postconviction petition and

          attached a Chicago Tribune article which disclosed a prior incident of

          suggestive identification by the same detective whom defendant had accused of

          suggestive identification in his initial postconviction petition. Almodovar, 2013

          IL App (1st) 101476, ¶¶ 38, 52, 55. This court found that the defendant had

          satisfied the cause requirement, since "he was impeded from fully raising that

          claim in the prior proceeding because he was not able to properly challenge the

          credibility of [the detective's] testimony without evidence of his pattern of

          misconduct in other cases." Almodovar, 2013 IL App (1st) 101476, ¶¶ 63-64. A

          defendant's lack of evidence that an officer has committed misconduct in

                                               47
        No. 1-12-3371

          circumstances similar to those of the defendant can serve as cause for failing to

          fully raise that claim in prior proceedings. Almodovar, 2013 IL App (1st)

          101476, ¶¶ 64-68; see also People v. Reyes, 369 Ill. App. 3d 1, 21 (2006) ("any

          allegation that [the detective] coerced a person to provide evidence is relevant

          to whether defendants in the case at bar were similarly coerced" and thus

          summary dismissal was inappropriate, even though the issue of coerced

          confession had been raised on direct appeal). Thus, defendant has satisfied the

          cause requirement. As for prejudice, we discussed the prejudice to defendant in

          the above section. People v. Mitchell, 2012 IL App (1st) 100907, ¶ 62 (reports

          of a detective's "perjury in similar cases involving alleged confessions" satisfied

          the prejudice requirement for the filing of a successive petition, where,

          "[w]ithout testimony from prosecution witnesses who said that [defendant]

          confessed to the crimes, the State had no case against [defendant] at all");

          Almodovar, 2013 IL App (1st) 101476, ¶ 62 (the prejudice requirement was

          satisfied for the filing of a successive petition where, if the detective "actually

          did use suggestive identification procedures as alleged by

          defendant, it would constitute prejudice").

¶ 117                                        CONCLUSION

¶ 118            For the foregoing reasons, we reverse and remand for appointment of




                                                      48
        No. 1-12-3371

          postconviction counsel and second-stage postconviction proceedings.

¶ 119            Reversed and remanded for further proceedings.

¶ 120            PRESIDING JUSTICE REYES, specially concurring:

¶ 121            Although Edwards and its progeny set forth stringent requirements for

          bringing a successive postconviction petition (Edwards, 2012 IL 111711, ¶ 28),

          in light of the particular facts of this case, I concur only in the regard that the

          matter should be remanded for second-stage postconviction proceedings.

¶ 122        JUSTICE LAMPKIN, dissenting:

¶ 123        I respectfully dissent. Because I would find that defendant failed to present a colorable

          claim of actual innocence, I would affirm the circuit court’s ruling that denied his motion for

          leave to file a successive postconviction petition.

¶ 124        Defendant’s motion alleged that newly discovered evidence supported his claim of actual

          innocence of the January 2000 murder of Jerry Green. This newly discovered evidence

          consisted of (1) an affidavit of Telvin Shaw, which defendant claimed exonerated him of

          Jerry Green’s murder; and (2) a June 2010 newspaper article about a malicious prosecution

          lawsuit against some police officers who were also involved in the Jerry Green murder

          investigation. The article was forwarded to defendant’s father from defendant’s first

          postconviction petition counsel, and defendant claimed the article established that his

          confession was involuntary and obtained as a result of police misconduct and psychological,

          mental and physical coercion.

¶ 125        Successive postconviction petitions are disfavored under the Act. People v. Edwards,

          2012 IL 111711, ¶ 29. The Act provides that any claim of substantial denial of constitutional
                                                       49
        No. 1-12-3371

          rights not raised in the original or amended petition is subject to the doctrines of res judicata

          and waiver. 725 ILCS 5/122-3 (West 2010); People v. Smith, 341 Ill. App. 3d 530, 535

          (2003). However, the waiver provision can be lifted and a successive petition can be

          considered on the merits if it meets the cause and prejudice test of section 122-1(f) of the Act

          (725 ILCs 5/122-1(f) (West 2010)), or its consideration is necessary to prevent a fundamental

          miscarriage of justice because the defendant shows a claim of actual innocence. People v.

          Pitsonbarger, 205 Ill. 2d 444, 459 (2002). A defendant seeking to institute a successive

          postconviction proceeding through the filing of a successive postconviction petition must

          first obtain leave of court. People v. Tidwell, 236 Ill. 2d 150, 157 (2010).

¶ 126        Where, as here, a defendant’s successive petition makes a claim of actual innocence, such

          a claim may only be considered if the evidence in support of the claim was newly discovered,

          material to the issue and not merely cumulative of other trial evidence, and of such a

          conclusive character that it probably would change the result on retrial. People v. Ortiz, 235

          Ill. 2d 319, 333-34 (2009). Newly discovered evidence is defined as evidence that has been

          discovered since the trial and could not have been discovered sooner by the defendant

          through due diligence. Id. at 334. Material evidence is relevant and probative of the

          defendant’s innocence (People v Coleman, 2013 IL 113307, ¶ 96), but evidence is considered

          cumulative when it adds nothing to what was already before the jury (Ortiz, 235 Ill. 2d at

          335).

¶ 127        To set forth a colorable claim of actual innocence in a successive petition, the 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 light of the new

          evidence.” Edwards, 2012 IL 111711, ¶31. The defendant has the burden to obtain leave of


                                                       50
        No. 1-12-3371

          court and also must submit enough in the way of documentation to allow a circuit court to

          make that determination. Id. ¶ 24. “This is so under either [the] *** cause and prejudice or

          actual innocence [exception to the bar against successive postconviction proceedings.” Id.

          “[L]eave of court to file a successive postconviction petition should be denied when it is

          clear, from a review of the successive petition and the documentation submitted by the

          petitioner, that the claims alleged by the petitioner fail as a matter of law or where the

          successive petition with supporting documentation is insufficient to justify further

          proceedings.” People v. Smith, 2014 IL 115946, ¶ 35.

¶ 128                                       I. Telvin Shaw’s Affidavit

¶ 129        First, defendant argues the circuit court erroneously denied him leave to file his

          successive petition because Shaw’s affidavit represents the only eyewitness account of Jerry

          Green’s murder and states a colorable claim of actual innocence. I cannot agree. Even

          assuming, arguendo, that Shaw’s affidavit was newly discovered, material and not merely

          cumulative evidence, Shaw’s testimony does not present a conclusive exonerating claim that

          defendant was not present at the scene and did not take part in the shooting.

¶ 130        In his initial postconviction petition, defendant already presented the theory that his

          convicted codefendant Melvin Jones was the only shooter, and this court found that claim of

          defendant’s actual innocence “indisputably meritless” and rejected the notion that Melvin’s

          affidavit was of such conclusive character that it would probably have changed the result on

          retrial. People v. Jones, 399 Ill. App. 3d 341, 366-67 (2010). This court noted that Melvin’s

          affidavit, which was written about 17 months after his trial and would have had no bearing

          on the ultimate disposition of his case, was “cleverly drawn” and failed to actually inculpate

          himself; his statement that he was “solely responsible” for the murder of Jerry Green was


                                                      51
        No. 1-12-3371

          “simply a meaningless assemblage of words” and merely seemed to acknowledge the fact

          that Melvin’s humiliating beating in the presence of his girlfriend by members of the rival

          street gang faction precipitated the events that resulted in the murder of Jerry Green. Id. at

          366. This court, in reaching its ultimate conclusion that defendant’s actual innocence claim

          lacked an arguable basis in law and in fact, conducted an exhaustive analysis of the many

          contradictions between the record and Melvin’s affidavit, including the fact that defendant’s

          postarrest actions failed to coincide with the defense claim that defendant incriminated

          himself in compliance with Melvin’s instructions. Id. at 360-63. Specifically, the defense

          claimed Melvin had threatened to kill defendant or a close relative unless defendant admitted

          to the police that he was present at the scene and fired “a .357 mg [sic] handgun.” Id. at 354.

          This court noted, however, that defendant’s postarrest actions contradicted this allegation of

          coercion by Melvin because defendant “persisted in proclaiming his innocence to three

          different teams of detectives for over 12 hours.” Id. at 360. Moreover, when he finally did

          confess, he offered (contrary to any alleged instruction from Melvin) a detailed explanation

          of the shooting that highlighted Melvin’s involvement, minimized defendant’s own

          participation, and added substantial accusatory details of Ashby’s participation. Id. at 360-63.

¶ 131        The deficiencies of Melvin’s “cleverly drawn” affidavit from the initial postconviction

          petition proceeding reverberate in Shaw’s similarly cleverly drawn affidavit before this court

          in this successive petition. Shaw’s affidavit merely indicates that Melvin was the only person

          Shaw saw at the scene; Shaw does not state that defendant was not present at the scene. See

          Edwards, 2012 IL 111711, ¶ 39 (although the codefendant’s affidavit averred that the

          defendant was neither a part of nor took part in the shooting, the codefendant critically failed

          to assert that the defendant was not present when the shooting took place and, thus, did not


                                                      52
        No. 1-12-3371

          establish a colorable claim of actual innocence where the defendant was convicted of the

          murder under the theory of accountability). Shaw averred that he was standing in the

          gangway of a residence at 7200 South Seeley Avenue around 5 a.m. on January 7, 2000.

          Shaw saw the victim exit the backyard of 7159 South Seeley Avenue and walk to his car,

          which was parked on 72nd Street and faced east toward Damen Avenue. Then Shaw saw

          Melvin emerge from an alley and approach the victim from behind. Shaw averred that

          Melvin “stood alone by himself in front of [the victim,]” who raised his hands up before

          Melvin fired several times until the victim fell to the ground. After Melvin stopped shooting,

          Shaw did not “continue to look to see where [Melvin] went.” Shaw immediately ran home.

¶ 132        Shaw’s affidavit does not actually contradict the facts contained in defendant’s

          videotaped confession. Specifically, defendant admitted that he and codefendants Ashby and

          Melvin, in accordance with their plan, armed themselves with three different types of

          firearms and went into the territory of the rival faction to the home of Lawrence Green, the

          leader of the rival faction, to shoot him. The evidence established that Lawrence Green’s

          house, 7159 South Seeley Avenue, was located at the end of the block and faced 72nd Street.

          Defendant admitted that he, Ashby and Melvin left their car and walked north through the

          alley between Damen and Seeley Avenues toward 72nd Street. According to Detective

          Robert Lenihan’s trial testimony, defendant had explained that Ashby and Melvin waited in

          the alley on the north side of 72nd Street, behind Lawrence Green’s house, and defendant

          waited in the alley on the south side of 72nd street, behind a garage. According to

          defendant’s videotaped confession, the group waited about 10 or 15 minutes and saw the

          victim exit Lawrence Green’s house and cross 72nd Street to the victim’s parked car. Melvin

          walked up to the victim and stood about 2 feet in front of him by the open car door. Ashby


                                                     53
        No. 1-12-3371

          walked about 3 to 4 feet behind Melvin and went about 3 feet to the right side of Melvin.

          Melvin fired 6 or 7 gunshots and the victim fell to the ground. Then Ashby fired 3 to 4

          gunshots. Defendant was about 8 to 10 feet behind them and about 8 to 10 feet on the far left

          side of Melvin. Defendant fired 2 gunshots toward the victim. Then Melvin ran east on 72nd

          Street toward Damen Avenue, and Ashby and defendant ran south down the alley toward

          73rd Street.

¶ 133        Defendant’s inculpatory statement is not inconsistent with Shaw’s cleverly drawn

          assertion that he only saw Melvin stand in front of the victim. According to defendant’s

          statements to the police and his videotaped confession, Melvin left his hiding place in the

          alley first and approached the victim, stood in front of him, and confronted him and swore at

          him. Then Ashby and later defendant emerged from their alley hiding places to help Melvin

          surround the victim. Neither Ashby nor defendant stood in front of or near the victim or

          spoke to him. Moreover, Shaw’s affidavit did not state that no one else was in the vicinity at

          the time of the shooting. Shaw admitted that he was present at the scene because he was “out

          all night hustling,” so people presumably were in the area to purchase Shaw’s wares or assist

          him with any sales. Furthermore, Shaw’s affidavit was devoid of any details indicating that

          his view of the crime scene from the gangway was clear, unobstructed and wide enough to

          refute the likelihood that Ashby and defendant, who were hiding while they waited in enemy

          territory, were not within the scope of Shaw’s limited view. It would have been dark at 5 a.m.

          in January, and Shaw’s affidavit places him in the gangway between two homes near the

          southwest corner of Seeley Avenue and 72nd Street. Thus, Shaw was neither parallel nor

          kitty-corner to the crime scene, and photographs admitted into evidence and the testimony of

          police officers at the scene established that shrubbery blocked certain views east and west on


                                                     54
        No. 1-12-3371

          72nd street. In addition, Shaw admitted that he stopped looking and ran after Melvin stopped

          shooting. Accordingly, Shaw, in addition to missing the sight of Melvin running east toward

          Damen Avenue, also would have missed the sight of defendant and Ashby firing their guns

          or disappearing south down the alley toward 73rd Street.

¶ 134        Furthermore, the evidence at trial established that there was more than one shooter and at

          least two firearms were used. Odis Deal, who lived at the corner of 72nd Street and Damen

          Avenue, testified that he heard two to three gunshots followed by a volley of eight or nine

          gunshots. There was no pause between the gunshots; it all happened together. Deal had been

          in the Army and had heard gunfire before. He stated that the first two to three gunshots

          sounded different from the rest, as if they were coming from two or three different guns.

          Similarly, Curtis Moore testified that he was at home, inside 7159 S. Seeley Avenue, and on

          the telephone at the time of the shooting. The victim had just left the house and then Moore

          heard 5 to 10 gunshots. Although some gunshots sounded loud like they were right next to

          Moore’s window, other gunshots did not sound as loud, which indicated that the gunshots

          were fired from different guns at different locations.

¶ 135        The physical evidence also established that there was more than one shooter. Cartridge

          casings were recovered from both the street and curb sides of the victim’s parked car.

          Furthermore, two different types of cartridge casings were recovered from the scene.

          Although the State’s forensic scientist was unable to state whether the six .380 casings had

          been fired from one weapon, he was able to determine that the two 9-millimeter casings,

          which were recovered on the curb side of the victim’s car, were indeed fired from the same

          firearm. This physical evidence was consistent with defendant’s statements to the police that

          he had fired 2 shots from a .357 revolver, Ashby had fired 3 to 4 shots from either a 9-


                                                       55
        No. 1-12-3371

          millimeter or a “.45,” and Melvin had fired 6 to 7 shots from a .380 semiautomatic pistol.

          The absence of any recovered .357 ammunition from the crime scene corroborated

          defendant’s confession because spent cartridges must be ejected manually from a revolver. In

          addition to the numerous shell casings recovered on both the street and curb sides of the

          victim’s car, the police also found two fresh bullet holes in the overhead door of the garage

          that faced 72nd Street and was alongside and just east of the victim’s parked car.

¶ 136         Additional support for the fact that more than one shooter attacked the victim is found in

          the testimony that the victim died of multiple gunshot wounds, and none of the wounds

          involved close-range firing, i.e., firing from 18 inches or less from the surface of the entry

          wound. The State’s medical examiner found evidence of five gunshot wounds to the victim,

          and the entry wounds were on different sides of his body and had varied angles or

          trajectories. For example, one entry wound on the victim’s right shoulder included the heart

          and abdominal cavity, whereas another entry wound on the victim’s left shoulder exited his

          left upper back. The other wounds showed an entry at the victim’s lower chest with an exit

          from the musculature of the left back, an entry at the palm of the victim’s right hand with an

          exit to the back of the hand, and an entry at the back of the victim’s left hand with an exit to

          the front of the left forearm.

¶ 137         Although Shaw purports to be a source of new information, his affidavit contains

          essentially the same information that was already presented to and rejected by the circuit

          court and this court on review of the first postconviction petition. Concerning the first

          postconviction petition, the circuit court and this court considered, inter alia: (1) Melvin’s

          affidavit, which claimed he was “the only individual responsible for [the] shooting,”

          defendant did not accompany him at the time of the murder and was nowhere in the vicinity,


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        No. 1-12-3371

          and Melvin threatened to kill defendant or his family unless he admitted to police that he

          fired a .357 firearm at the victim; (2) defendant’s October 3, 2000 letter to his parents, which

          acknowledged: “No gang member threatened me to do it”; (3) the alibi trial testimony of

          defendant’s mother claiming defendant was at home and in bed at the time of the shooting;

          (4) the statements of Anthony and Darryl Thomas, two additional alibi witnesses who

          contradicted each other and defendant’s mother when they claimed defendant had attended

          their party and was sleeping at their house at the time of the shooting; (5) the trial testimony

          of witnesses Deal and Moore, who heard the shooting; (6) the physical evidence recovered at

          the scene, which established that at least two firearms were used because two different types

          of ammunition were recovered from both the street and curb sides of the victim’s car; and (7)

          defendant’s videotaped confession, which was voluntary, detailed, and corroborated by the

          physical evidence and the testimony of witnesses Deal, Moore, and Lawrence Green. After

          properly revisiting the trial record, the circuit court and this court concluded that there was

          more than one shooter. The addition of Shaw’s affidavit, which contains no conclusive

          exonerating statement that defendant was not present at the shooting—merely that Shaw saw

          only Melvin—and simply regurgitates details already excruciatingly explored in previous

          proceedings, does not manifest even the slightest probability of a different result on retrial.

¶ 138        Defendant cites People v. Harper, 2013 IL App (1st) 102181, ¶ 52, where the court found

          that even though some of the physical evidence corroborated the defendant’s confession,

          another witness’s recantation of his trial testimony supported the defendant’s claim that his

          confession was coerced by the police and such evidence would likely have changed the

          outcome of the case. Harper, however, is distinguishable from the present case. Defendant

          Harper confessed to setting a fire that killed two people. Id. at ¶ 7-8. After his conviction,


                                                       57
        No. 1-12-3371

          Harper petitioned for postconviction relief, submitting the affidavit of a man who admitted to

          starting the fire as well as an affidavit from a trial witness who recanted his testimony. Id. at

          ¶ 23-25. This court found the affidavits to be newly-discovered evidence that was material

          and likely to change the result on retrial. Id. at ¶ 52. Here, the affidavit at issue is neither a

          recantation of trial testimony, nor an admission of guilt on the part of the culpable party.

          Shaw’s affidavit is merely a repeat of the underlying theory of defendant’s initial

          postconviction petition and Melvin’s cleverly drawn affidavit: that Melvin was the sole

          gunman. Harper would be more pertinent to an innocence claim based on Melvin’s affidavit,

          in which he claimed to be the sole shooter. This court, however, has already determined that

          the sole gunman theory lacks merit. Jones, 399 Ill. App. 3d at 367.

¶ 139         The hallmark of a claim of actual innocence means the newly discovered evidence has

          the potential to totally vindicate or exonerate the defendant. People v. Savory, 309 Ill. App.

          3d 408, 414-15 (1999). Shaw’s affidavit neither exonerates defendant nor establishes that he

          did not participate in the shooting that killed the victim. Accordingly, Shaw’s affidavit was

          not of such a conclusive character that it probably would change the result on retrial, and the

          circuit court properly denied defendant leave to file a successive petition based on Shaw’s

          affidavit.

¶ 140                                        II. Newspaper Article

¶ 141         Next, defendant argues, for the first time on appeal, that the circuit court erroneously

          denied him leave to file his successive petition where he established cause and prejudice to

          file the petition based on a June 9, 2010 article from the Chicago Tribune. This new cause-

          and-prejudice argument on appeal differs from his argument before the circuit court, which




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          alleged he had presented a colorable claim of actual innocence based upon this newspaper

          article.

¶ 142         According to the article attached to the successive petition, Donny McGee was convicted

          of a 2001 murder and served three years in prison but was acquitted by a jury in 2004 where

          DNA evidence excluded him from committing the crime. McGee filed a lawsuit against the

          City of Chicago, detectives Edward Farley and Robert Lenihan, and officer Robert Bartik.

          McGee alleged that he refused to confess to the murder, so the police, who were under

          pressure to solve the crime, lied about McGee voluntarily confessing even though there was

          no written or taped confession and no physical evidence. The jury found the city and officers

          guilty of malicious prosecution and ordered them to pay McGee compensatory and punitive

          damages. On appeal, defendant argues this evidence—that Farley, Lenihan and Bartik were

          implicated in fabricating McGee’s confession—was not available when defendant filed his

          first postconviction petition and would bolster his claim that these same officers coerced his

          confession.

¶ 143         Allegations not raised in the postconviction petition cannot be considered on appeal.

          People v. Jones, 211 Ill. 2d 140, 148 (2004); People v. Smith, 352 Ill. App. 3d 1095, 1112

          (2004); People v. Griffin, 321 Ill. App. 3d 425, 428 (2001) (the Act does not permit a

          defendant to raise an issue on appeal from the dismissal of a postconviction petition that he

          never raised in the petition). Defendant has abandoned on appeal his claim of actual

          innocence concerning this article, and his new cause-and-prejudice theory on appeal is

          improper and should not be considered by this court. However, even under the cause-and-

          prejudice test, defendant’s claim would fail.




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¶ 144        Under the Act, defendants may obtain leave of court to file successive postconviction

          petitions if they establish cause and prejudice for not raising their substantive claims in the

          prior proceedings. 725 ILCS 5/122-1(f) (West 2010); Tidwell, 236 Ill. 2d at 161. Cause may

          be established where the defendant demonstrates that “some objective factor external to the

          defense” prevented the claim at issue from being raised in an earlier proceeding.

          Pitsonbarger, 205 Ill. 2d at 460. This may be shown by demonstrating that the evidence was

          not “reasonably available” during prior proceedings. People v. Hudson, 195 Ill. 2d 117, 123

          (2001). Prejudice, meanwhile, may be established where the defendant’s claimed

          constitutional error “so infected the entire trial that the resulting conviction or sentence

          violate[d] due process.” Pitsonbarger, 205 Ill. 2d at 464.

¶ 145        Defendant is unable to establish prejudice. He has submitted an article concerning a civil

          jury award in a single case, the McGee case, which later was reversed by this court and

          eventually settled by the parties. No claimed pattern of police misconduct can be gleaned

          from the McGee case. Even if McGee’s civil award had not been reversed, his underlying

          claims of police fabrication are incongruous to defendant’s vague claim that his confession

          was “the product of Police Misconduct” and “a result of Psychological, mental and physical

          coercion.” Whereas McGee claimed there was no written or videotaped confession and he

          had refused to confess to the murder, here, in contrast, defendant’s agreement to make a

          videotaped statement was documented both in writing and on the videotape. Also, the

          recording shows a calm and cooperative defendant, giving an articulate, intelligent, and

          detailed narrative statement confessing to his participation in the murder. Defendant does not

          appear disheveled, stressed or tired. No marks, bruises or injuries are visible on defendant,

          and he makes no claim in his successive petition regarding any such injuries. Furthermore,


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          whereas McGee claimed there was no physical evidence linking him to the crime where the

          victim was found stabbed and burned beyond recognition in her bathtub, here, in contrast, the

          physical evidence (as discussed above) concerning the location and type of ammunition

          recovered at the scene, the victim’s wounds, the testimony of Lawrence Green concerning

          the motive for the shooting, and the testimony of witnesses Deal and Moore corroborated the

          details in defendant’s confession.

¶ 146        Defendant’s offered newspaper article concerning the McGee case is devoid of

          evidentiary value and fails to support defendant’s assertion that Farley, Lenihan and Bartik

          “knowingly and deliberately engaged in a pattern and practice of elicitation and ‘fabrication

          of False Confessions’ statements of Murder Suspects for Malicious Prosecution.” See People

          v. Patterson, 192 Ill. 2d 93, 115 (2000) (collateral claims of police conduct are admissible if

          the defendant establishes (1) similar allegations that involved the same police officer; (2)

          closeness in time between the collateral claim and the claim at issue; and (3) that both the

          collateral claim and the defendant’s allegations contain evidence of injury consistent with

          police brutality). Defendant has not been consistent in his claim of police coercion. In his

          pretrial motion to suppress his confession, he claimed that Officer Bartik pushed, shoved and

          punched him while two other officers looked on. However, in his initial postconviction

          petition, defendant argued that his involuntary confession resulted from street gang-related

          coercion and not from police coercion. Furthermore, in defendant’s March 2000 letter to his

          parents, he never claimed that any officer punched him. Moreover, defendant’s October 2000

          letter to his parents asserted that even though the police had threatened to beat him if he did

          not confess his involvement in the murder, the police never touched him physically.




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¶ 147        Defendant’s forfeiture of his cause and prejudice claim notwithstanding, he has failed to

          establish the prejudice necessary for leave to file a successive petition.

¶ 148                                           III. Conclusion

¶ 149        To support his actual innocence claim, defendant’s motion for leave to file and his

          successive petition offered only Shaw’s affidavit and the Chicago Tribune article. After leave

          was denied, defendant, acting pro se, filed several additional exhibits on the circuit court

          without any written discussion of the significance of those documents. Those documents

          included the written statements of alibi witnesses Darryl and Anthony Thomas, who alleged

          defendant was in their home sleeping at the time of the shooting. The circuit court treated

          defendant’s document dump as a motion to reconsider and denied that motion. Furthermore,

          as discussed above, defendant has since abandoned on appeal his initial claim before the

          circuit court that the newspaper article supported his actual innocence claim.

¶ 150        The majority attempts to bolster defendant’s facially insufficient claim by going beyond

          the limited documentation of the successive petition to consider the abandoned claim

          involving the newspaper article and other information about the McGee case, the Thomases’

          alibi statements, Melvin’s previously submitted affidavit, and the credibility of defendant’s

          confession. In doing so, the majority ignores the determinations reached by this court in the

          prior postconviction proceeding, i.e., that the cumulative nature of the evidence indicated that

          there were multiple shooters, Melvin’s affidavit was indisputably meritless, and it would

          have constituted ineffective assistance of counsel to use the Thomases’ alibi statements,

          which contradicted defendant’s alibi that he was at home and in bed at the time of the

          shooting, as asserted in the trial testimony of defendant’s mother and defendant’s March

          2000 letter to his parents. Our role on review is to determine whether the circuit court erred

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          in denying defendant leave to file a successive petition; this review is not an instrument to

          attack this court’s past determinations, particularly where the documentation presented would

          in no way have changed the result on retrial. It is thus exceedingly inappropriate for the

          majority to delve into the credibility of defendant’s confession, the credibility of the trial

          testimony of Otis Deal and Curtis Moore, as well as the history of other court proceedings

          against a particular officer.

¶ 151         The parties here well know the nature of the evidence presented at the trial, which is

          accurately summarized in this court’s 2010 opinion affirming the summary dismissal of

          defendant’s first postconviction petition. Accordingly, I will not catalogue the majority’s

          numerous inaccuracies and misrepresentations of that evidence, which attempt to generate

          some type of support for Shaw’s affidavit. Ironically, the majority’s analysis relies on

          Edwards, but the court held in that case that the affidavit of the codefendant, who claimed the

          defendant was not involved in a shooting, was not of such conclusive character as to establish

          a probability of a different result on retrial. Edwards, 2012 1117111, ¶ 38-40. Although the

          codefendant averred the defendant “had nothing to do with this shooting,” the codefendant

          failed to assert that the defendant was not present; thus, the affidavit did nothing to exonerate

          the defendant. Id. The deficient affidavit in Edwards is strikingly similar to Shaw’s affidavit,

          which merely deduces that defendant could not have been present at the scene because Shaw,

          from his limited vantage point, saw only Melvin stand in front of and near the victim.

¶ 152         I am compelled, however, to comment on the majority’s use of People v. Tyler, 2015 IL

          App (1st) 123470, to attack Detective Lenihan in this case. See supra ¶¶ 12, 102. The

          majority’s misleading citations and parentheticals to Tyler insinuate that the allegations in

          that case of police misconduct and physical coercion to obtain the defendant’s confession


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          included misconduct and coercion by Lenihan. That insinuation, however, is absolutely false.

          In Tyler, the defendant never claimed, either at his pretrial motion to suppress his confession,

          his trial, or in his postconviction petition, that Lenihan did anything wrong. Moreover, Tyler

          submitted a massive amount of documents about police misconduct in other cases to support

          his postconviction claims of coercion against two other police officers; none of that

          documentation contained allegations of wrongdoing by Lenihan. I am very troubled by the

          majority’s misuse of Tyler to support the majority’s outcome in the instant case.

¶ 153         For the above reasons, I would affirm the circuit court’s denial of defendant’s motion for

          leave to file a successive petition.




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