                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Brown, 2013 IL App (1st) 091009




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



District & No.             First District, Second Division
                           Docket No. 1-09-1009


Filed                      April 16, 2013
Rehearing denied           May 16, 2013


Held                       The dismissal of defendant’s successive postconviction petition alleging
(Note: This syllabus       his actual innocence based on new DNA evidence was affirmed, since an
constitutes no part of     insufficient showing of actual innocence was made and postconviction
the opinion of the court   counsel provided reasonable assistance.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 94-CR-4431 (01);
Review                     the Hon. Vincent M. Gaughan, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Sean Collins-Stapleton, all
Appeal                     of State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy
                           Watroba, and Mary P. Needham, Assistant State’s Attorneys, of counsel),
                           for the People.


Panel                      PRESIDING JUSTICE HARRIS delivered the judgment of the court,
                           with opinion.
                           Justices Quinn and Simon concurred in the judgment and opinion.


                                             OPINION

¶1          Defendant, Anthony Brown, appeals the dismissal of his successive petition for relief
        under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2010). In his
        petition, defendant made a freestanding claim of actual innocence based on new
        deoxyribonucleic acid (DNA) testing performed on several pieces of evidence in accordance
        with section 116-3 of the Code of Criminal Procedure of 1963 (Code). 725 ILCS 5/116-3
        (West 2000)). After an evidentiary hearing, the circuit court found the new evidence was not
        of such a conclusive nature that it would have changed the result of defendant’s trial or
        affected any jury’s determination. In addition to challenging the circuit court’s dismissal of
        his postconviction petition, defendant alternatively argues that his postconviction counsel
        was ineffective. At issue is whether the circuit court’s decision is manifestly erroneous and
        whether postconviction counsel provided defendant with a reasonable level of assistance. We
        hold the circuit court’s finding that defendant did not make a showing of actual innocence
        substantial enough to warrant a new trial is not manifestly erroneous. Additionally, we hold
        that defendant’s postconviction counsel provided a reasonable level of assistance.

¶2                                          JURISDICTION
¶3          On March 11, 2009, the circuit court denied defendant’s successive postconviction
        petition after conducting an evidentiary hearing. On April 8, 2009, the circuit court denied
        defendant’s motion to reconsider. On that same date, defendant timely filed his notice of
        appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule
        651(a). Ill. S. Ct. R. 651(a) (eff. Feb. 6, 2013).

¶4                                        BACKGROUND
¶5         Following a jury trial, defendant was convicted of two counts of first degree murder, one
        count of aggravated vehicular hijacking, one count of aggravated criminal sexual assault, and
        one count of armed robbery.


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¶6                               Defendant’s Trial and Initial Appeal
¶7          A detailed account of defendant’s trial and initial appeal is well stated in our supreme
       court’s 1998 opinion. People v. Brown, 185 Ill. 2d 229 (1998). Below we will discuss those
       details from defendant’s trial and initial appeal as they pertain to his successive
       postconviction petition.
¶8          On January 12, 1994, Reginald Wilson, Felicia Lewis, and Steven Fitch were in Wilson’s
       Chevrolet Blazer automobile when they stopped at a gas station to allow Wilson and Fitch
       to use the restrooms. When Fitch returned to the car, he noticed someone outside the Blazer
       letting another person in on the passenger side. When he approached the Blazer, the person
       outside the car asked him what he was looking at. Another person, not Wilson, was in the
       driver’s seat. The Blazer drove off and Fitch called the police.
¶9          Zarice Johnson, a codefendant and friend of defendant’s, testified on behalf of the State
       at defendant’s trial. Johnson testified that defendant picked him up from his apartment in the
       evening. Already inside defendant’s car, a Chevrolet Caprice, were codefendants Scott
       Chambers, Stanley Hamelin, and Carl Williams. Hamelin suggested that they steal a car, a
       plan defendant agreed to. They then stopped at a gas station. As they were leaving, they saw
       a Chevrolet Blazer automobile. Hamelin, Chambers, and Williams got out and went back to
       the gas station. Johnson did not notice what Williams was doing, but he did see Chambers
       enter the Blazer while Hamelin stood by the passenger side. Johnson also saw a person
       approach the passenger side of the Blazer before quickly walking back to the gas station.
       After driving around the block in his Caprice, defendant returned to the gas station.
       Defendant, with Johnson in the backseat, drove away. The Blazer followed defendant’s car.
       Eventually, both cars pulled to the side of the highway. Defendant left his car and went to
       talk to the people in the Blazer. Johnson stayed in defendant’s car, but defendant informed
       him on his return that a pretty woman and a man were inside the Blazer. Both cars drove off.
¶ 10        Later, both cars pulled into a parking lot. Defendant got out of his Caprice and talked to
       Hamelin and Williams. Hamelin told defendant that a car alarm and stereo were in the Blazer
       while Williams told defendant there was a compact disc (CD) player. Defendant asked
       Hamelin and Williams if there was any money inside, to which neither Williams nor Hamelin
       immediately responded. Defendant then returned to his car. Hamelin then walked over and
       gave defendant a bundle of money, which defendant put in his pocket. Hamelin also showed
       defendant a ring he had taken.
¶ 11        Defendant, while laughing, told Johnson that he was going to make the woman perform
       oral sex on him. He then got the woman from the Blazer and brought her to his car. He made
       Johnson move to the front passenger seat while defendant forced the woman into the
       backseat of the Caprice. Hamelin handed Johnson a Kenwood stereo and a portable CD
       player stolen from the Blazer. After defendant forced the woman to perform oral sex on him,
       defendant told her to remove her pants. The woman was crying. Johnson told her to
       cooperate with defendant and to stop crying. The woman stated that she was menstruating
       and that she had given birth in November. When defendant told her that she was lying, she
       replied that she was wearing a sanitary pad. Defendant had the woman place her coat on the


                                                -3-
       car seat before having sexual intercourse with her. Defendant forced the woman to have
       intercourse and oral sex with him several more times. Defendant stated that he was going to
       drive around to find a spot to take Wilson and Lewis to kill them. Hamelin and Chambers
       later killed Lewis and Wilson. The five offenders each took part of the money recovered
       from the Blazer. After returning to the Blazer, 20 to 25 compact discs and cassette tapes were
       recovered, placed in a plastic bag, and given to defendant. Johnson and defendant were
       arrested together on January 13, 1994.
¶ 12        Johnson acknowledged that he was also charged with the crime, but that he entered into
       a plea agreement with the State. Johnson agreed he would plead guilty to one count each of
       first degree murder, armed robbery, vehicular hijacking, and criminal sexual assault. In
       exchange for his truthful testimony, the State agreed it would recommend a prison term of
       35 years. According to Johnson, he would be eligible for release, if he received day-for-day
       good-time credit, in 17 1/2 years. For five months before testifying, Johnson lived in the
       county jail’s witness protection program. He acknowledged that when the police first
       questioned him, he denied any involvement in the crime.
¶ 13        Other evidence presented at trial showed that at the time of his arrest, defendant
       possessed approximately $500 in cash on him. Compact discs, cassette tapes, a Kenwood
       stereo, a Panasonic CD player, an adapter, an earring stud, a cassette radio, and videotapes
       were recovered from defendant’s Caprice. Found inside the Blazer was an earing, a plastic
       camera, a Panasonic CD player case, and an instruction manual and storage case for a
       Kenwood stereo.
¶ 14        Pamela Fish, from the Chicago police department crime laboratory, testified that swabs
       taken from Lewis were all negative for the presence of semen. Fish testified that this was not
       unusual because “of the three thousand or so criminal sexual assaults that are submitted into
       the laboratory per year, approximately half of them are negative for the presence of semen
       or spermatozoa.” She determined Lewis to have blood type O. She found a small area that
       tested positive for human blood taken from the seat cushions of defendant’s Caprice, but was
       not able to further test the blood due to its small size. She believed it to be a smear-type stain,
       possibly placed there by a hand. Inside the underwear defendant was wearing at the time of
       his arrest, Fish found a nickel-sized reddish-brown stain. She concluded this was a smear
       stain and was a mixture of seminal material and human blood. Fish determined defendant’s
       blood type was type O. She attempted to test the underwear stain for genetic markings, but
       was unable to do so. She testified that the inability to obtain a result in the test is generally
       from one of two causes: either the DNA material has degraded or the sample is too small.
       She opined that it was “a human bloodstain that contains some seminal material.” Half of the
       United State’s population has type O blood. She could not determine when either the stain
       or the blood was placed in the car seat or defendant’s underwear.
¶ 15        Dr. Barry Lifschultz, a staff pathologist with the Cook County medical examiner’s office,
       testified regarding the autopsies he performed on the two victims. Swabs were taken of
       Lewis’s oral, rectal, and vaginal cavities. A sanitary napkin was also recovered. He did not
       find any evidence of sexual trauma to Lewis’s genital area.
¶ 16        Scott Rochowicz, a member of the microscopic trace evidence unit of the crime


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       laboratory of the Chicago police department, testified that hairs recovered from Lewis’s
       clothing were similar to her own hairs. Hairs recovered from defendant’s clothing were
       similar to his own hairs, including hairs found in his underwear.
¶ 17       The jury found defendant guilty of the first degree murders of Wilson and Lewis; the
       armed robbery and aggravated vehicular hijacking of Wilson, and the aggravated criminal
       sexual assault of Lewis. The circuit court sentenced defendant to death for his first degree
       murder convictions, and concurrent 30-year prison terms for his aggravated vehicular
       hijacking and aggravated criminal assault convictions. The circuit court merged defendant’s
       conviction for armed robbery with his vehicular hijacking conviction.
¶ 18       On appeal, defendant alleged the State failed to prove him guilty beyond a reasonable
       doubt. In particular, he alleged that Johnson’s testimony was insufficient to support the jury’s
       verdict. Defendant additionally argued that the State made improper comments during both
       opening and closing argument, that several errors occurred at his sentencing hearing, and that
       the Illinois death penalty statute (720 ILCS 5/9-1 (West 1994)) was unconstitutional. Our
       supreme court affirmed defendant’s convictions and sentence. On June 24, 1999, defendant’s
       petition for writ of certiorari was denied. Brown v. Illinois, 527 U.S. 1041 (1999) (table).

¶ 19                               First Postconviction Petition
¶ 20       On January 15, 1998, defendant filed his first postconviction petition challenging his
       sentence. The circuit court dismissed the petition, and defendant appealed. On January 10,
       2003, defendant’s sentence was commuted to natural life in prison. Defendant’s appeal was
       dismissed as moot.

¶ 21                              Motion for Forensic Testing
¶ 22       On August 1, 2001, defendant filed a motion for forensic DNA testing of his boxer shorts
       pursuant to section 116-3 of the Code. 725 ILCS 5/116-3 (West 2000). The circuit court
       granted defendant’s motion. On June 18, 2002, defendant filed a motion seeking additional
       DNA testing on the vaginal, oral and rectal swabs taken from Lewis, and the sanitary pad
       taken from her clothing. The circuit court granted defendant’s motion. On June 27, 2002,
       defendant requested additional DNA testing be done on the car seat of the Caprice, which
       the circuit court granted.

¶ 23                             Defendant’s Successive Petition
¶ 24       On June 4, 2001, defendant filed a successive postconviction petition, in which he
       alleged actual innocence based on the new DNA testing. He amended his successive petition
       on March 21, 2003. In his successive petition, defendant outlined the new DNA evidence that
       he alleged supported his position. First, DNA testing was performed on defendant’s blue and
       white boxer shorts and a material cutting from those boxer shorts. Regarding the non-sperm
       fraction of the blue and white boxer shorts, the data indicated the following:
           “that DNA from more than one individual was obtained from the non-sperm fraction of
           the blue and white boxer shorts. The DNA obtained from this sample contains DNA from

                                                 -5-
           a male. The primary DNA profile obtained from this sample matches the DNA profile
           obtained from the swab labeled [defendant]. Felicia Lewis is excluded as the primary
           source of the DNA obtained from this sample. Using nine of thirteen loci, Felicia Lewis
           cannot be excluded as a secondary source of the DNA obtained from this sample. No
           conclusion can be made regarding Felicia Lewis and this sample at the remaining loci.”
       The approximate frequencies in the Caucasian, African American, and Hispanic populations
       of the combination of all possible types of the nine loci included in the DNA types reported,
       making no assumptions regarding the number of DNA sources, were 1 in 330,000 unrelated
       Caucasian individuals; 1 in 510,000 unrelated African American individuals; and 1 in
       330,000 unrelated Hispanic individuals.
¶ 25       The DNA obtained from the sperm fraction of the blue and white boxer shorts was from
       a male. The DNA profile of this sample matched defendant’s DNA profile. Lewis was
       excluded as the source of the DNA from the sperm fraction of the blue and white boxer
       shorts.
¶ 26       The DNA from the non-sperm fraction of the material cutting showed the following:
               “That DNA from more than two individuals was obtained from the non-sperm
           fraction of the material cutting labeled ext. boxer shorts. The DNA obtained from this
           sample contains DNA from a male and DNA from a female. Felicia Lewis cannot be
           excluded as a source of the DNA obtained from this sample. Using ten of thirteen loci,
           [defendant] cannot be excluded as a source of DNA obtained from this sample. No
           conclusion can be made regarding [defendant] and this sample at the remaining loci.”
       The approximate frequencies in the Caucasian, African American, and Hispanic populations
       for this sample, making no assumptions regarding the number of DNA sources, were 1 in
       71,000 unrelated Caucasian individuals; 1 in 18,000 unrelated African American individuals;
       and 1 in 88,000 unrelated Hispanic individuals.
¶ 27       The DNA obtained from the sperm fraction of the material cutting showed it was from
       a male. The report stated:
               “Data were obtained from this sample at four of nine loci. Using three of these four
           loci, [defendant] cannot be excluded as the source of the DNA obtained from this sample.
           No conclusion can be made regarding [defendant] and this sample at the remaining loci.
           Felicia Lewis is excluded as a source of the DNA obtained from this sample.”
¶ 28       Forensic DNA testing was also done on the car seat from defendant’s Caprice; the oral,
       vaginal, and rectal swabs taken from Lewis; and the sanitary napkin recovered from the
       autopsy. The report contained no conclusions regarding the car seat, “due to insufficient
       amount of amplified product.” The non-sperm fractions of the oral swab, vaginal swab, rectal
       swab, and sanitary napkin matched Lewis. The DNA obtained from the sperm fraction of the
       oral swab matched Lewis. “No DNA profile determined to be foreign to Felicia Lewis was
       detected” from the sperm fraction of the oral swab. The DNA from the sperm fraction of the
       vaginal swabs indicated “DNA from more than one individual,” a male and a female. The
       primary DNA profile matched Lewis, while defendant was “excluded as a source of the DNA
       obtained” from the sperm fraction of the vaginal swabs. The DNA testing of the sperm
       fraction of the rectal swab was from a female, but no further conclusions were made “due to

                                                -6-
       an insufficient amount of amplified product.” The DNA testing of the sperm fraction of the
       sanitary napkin showed the following:
               “DNA from more than one individual was obtained from the sperm fraction of the
           sanitary napkin. The DNA obtained from this sample contains DNA from a male and
           DNA from a female. The primary DNA profile obtained from this sample matches the
           DNA profile obtained from the blood swatch labeled Felicia Lewis. [Defendant] is
           excluded as the source of the DNA obtained from this sample.”
¶ 29       Defendant alleged that the DNA evidence was new, it having been discovered in 2002
       and 2003. He asserted it was noncumulative and that the DNA technology used in the new
       tests was not available at his trial. Defendant also argued that he used reasonable diligence
       in obtaining the new evidence. He argued that it would probably change the result of his trial
       upon retrial because it “is not merely impeaching Zarice Johnson’s credibility, but is also
       probative of a factual situation different from the one presented in Zarice Johnson’s
       testimony; whereas Zarice Johnson testified [defendant] raped Felicia Lewis, the DNA
       evidence is probative of a factual situation where someone other than [defendant] raped Ms.
       Lewis.” Defendant asserted this evidence went to the ultimate issue of whether he was
       present and involved in the crimes charged. He characterized Johnson’s testimony as “the
       cornerstone of the State’s case against” him. He pointed to statements made by the
       prosecution in opening and closing arguments regarding Johnson’s testimony. Defendant
       pointed out that at trial, Fish testified that she did not find any sperm on the vaginal swab
       taken from Lewis. However, the new DNA evidence showed sperm, from a man, but not
       defendant, on the vaginal swab. Defendant argued that the sperm found on the sanitary
       napkin during the new DNA tests that did not match his DNA showed that he was not
       present during the commission of the crime. Regarding the stain on defendant’s boxer shorts,
       defendant argued that “[w]hile the DNA evidence cannot exclude Felicia Lewis as a
       contributor to the DNA found in the stain on the boxers, she cannot be included either.”
       Based on this evidence, defendant requested an evidentiary hearing, that his conviction be
       vacated, and that a new trial be ordered.
¶ 30       On April 21, 2003, the State moved to dismiss defendant’s second petition arguing that
       the new DNA testing presented an even stronger case of defendant’s guilt in the crimes for
       which he was convicted. The State attached to its motion a statement from Chambers that
       he made to the police on January 14, 1994. In the statement, Chambers states both defendant
       and Williams sexually assaulted Lewis on the date of the crime. The State argued that the
       fact that defendant’s DNA was excluded from the sanitary napkin, and the vaginal, oral, and
       rectal swabs was inconclusive and did not show that he did not sexually assault Lewis. The
       State pointed out that defendant may have worn a condom or not ejaculated and argued that
       the emission of semen is not necessary to prove sexual penetration.
¶ 31       On June 5, 2003, the circuit court dismissed defendant’s second petition. The court found
       that the new evidence would not have had a meaningful effect on the trial. The court made
       the following finding “[l]ooking at the totality of the facts that were presented, the
       corroboration of Mr. Johnson’s testimony, and again, the evidence that was in this case, I
       find there is not a substantial showing of a violation of [defendant’s] constitutional rights to
       merit relief.” Defendant timely appealed.

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¶ 32                         Appeal of Defendant’s Successive Petition
¶ 33       On December 2, 2005, this court reversed the order of the circuit court dismissing
       defendant’s successive postconviction petition and remanded the matter for an evidentiary
       hearing. People v. Brown, No. 1-03-1895 (2005) (unpublished order under Supreme Court
       Rule 23). Defendant argued that he had made a substantial showing of a violation of his
       constitutional rights which established his actual innocence based on the new DNA results.
       This court noted that the DNA testing showing negative or nonmatch results excluding the
       victim as the source of the DNA from the sperm fraction of the material cutting and boxer
       shorts, in addition to the DNA results excluding defendant as the source of the DNA found
       in the vaginal swabs and sanitary napkin, were favorable to defendant and warranted an
       evidentiary hearing. This court agreed with the State that the results were “not clearly
       exculpatory.” This court, however, characterized the evidence “as being ‘somewhere in-
       between’ clearly exculpatory and clearly inculpatory.” Id. (quoting People v. Dodds, 344 Ill.
       App. 3d 513, 519 (2003). In conclusion, this court directed the circuit court to conduct an
       evidentiary hearing to “consider the trial evidence in light of the new DNA results to
       determine whether they are so conclusive to warrant a new trial” and to “decide whether the
       DNA evidence was a significant factor at trial and whether it was more likely than not to
       have affected the jury’s determination.”

¶ 34                                   Remand Proceedings
¶ 35       On remand, at the evidentiary hearing, defendant presented six stipulations that he
       entered into with the State before resting. We will discuss each stipulation in turn, below.
       Megan Neff, a DNA analyst at “the ISP Forensic Services Center” and an expert in forensic
       DNA analysis, would have testified that it was her opinion, within a reasonable degree of
       scientific certainty, that defendant’s codefendants Hamelin, Chambers, Johnson, and
       Williams can all be excluded as the source of the male DNA found on the vaginal swabs and
       the sanitary napkin.
¶ 36       Tom Fedor, a forensic serologist at the serological research institute in Richmond,
       California, an expert in the field of forensic DNA analysis, would have testified that he
       conducted statistical calculations in this case. He received DNA data from the vaginal swabs,
       sanitary napkin, and blood standard from Lewis and DNA data from a buccal swab standard
       collected from Hudson. Fedor would have opined, with a reasonable degree of scientific
       certainty, “that a minor male DNA profile can be deduced from the mixture of DNA profiles
       identified in the vaginal swabs” and that “Hudson is not excluded as the sole source of the
       minor profile from the vaginal swabs.” Further, “[a]pproximately 1 in 117,000 unrelated
       individuals is not excluded as the sole minor contributor in the vaginal swabs.” He would
       have further opined “that a minor male DNA profile can be deduced from the mixture of
       DNA profiles identified in the sanitary napkin” and that “Hudson is not excluded as the sole
       source of the minor profile from the sanitary napkin.” He would have further testified that
       “[a]pproximately 1 in 400,000 unrelated individuals is not excluded as the sole minor
       contributor in the sanitary napkin.”


                                                -8-
¶ 37       Kathy Kozak, a forensic scientist in the forensic biology and DNA section of the forensic
       science center of the Illinois State Police forensic sciences command, an expert in forensic
       DNA analysis, would have testified that she received the DNA data for the vaginal swabs and
       sanitary napkin. She would have testified that “[a] search of the DNA types attributed to the
       minor male DNA donor in these samples indicated that an individual by the name of Antoine
       Hudson may be a possible donor of the minor male DNA profile identified” in the vaginal
       swabs and sanitary napkin. Further, “[t]he minor male DNA profile searched from this case
       was not linked to any other convicted offenders or case samples stored in the DNA databases
       searched.”
¶ 38       Amber Moss, a DNA analyst from Orchid Cellmark, an expert in forensic DNA analysis,
       would have testified that in 2007 she received the buccal swab standard from Hudson.
       Cellmark personnel generated a DNA profile from the swab suitable for comparison
       purposes. She also obtained the vaginal swabs, sanitary napkin, and blood standard from
       Lewis. Moss would have opined, with a reasonable degree of scientific certainty, that
       “Hudson cannot be excluded as a possible donor to the mixture of DNA profiles identified
       in the vaginal swabs.” She would have further stated that “[u]sing all possible combinations
       of all possible types in the mixture *** approximately 1 in 515 Black, 1 in 2,703 Caucasian,
       1 in 2,300 Southwest Hispanic, 1 in 2,159 Southeast Hispanic, or 1 in 8,741 General Asian
       unrelated individuals cannot be excluded from having contributed to the mixture of DNA
       profiles identified on the vaginal swabs.” Moss would also opine that Hudson could not “be
       excluded as a possible donor to the mixture of DNA profiles identified in the sanitary
       napkin.” Moss would have stated “that approximately 1 in 360 Black, 1 in 493 Caucasian,
       1 in 676 Southwest Hispanic, 1 in 466 Southeast Hispanic, or 1 in 2,535 General Asian
       unrelated individuals cannot be excluded from having contributed to the mixture of DNA
       profiles identified in the sanitary napkin.”
¶ 39       Bradford Lee, an investigator employed by the Cook County State’s Attorney’s office,
       would have testified that he collected the buccal swab standard taken from Hudson’s mouth,
       and inventoried it in the proper vault, before sending it to Orchid Cellmark.
¶ 40       Wendy Magee, a DNA analyst at Cellmark Diagnostics, an expert in forensic DNA
       analysis, would have testified that she received, among other items, the vaginal swabs and
       the sanitary napkin. Cellmark personnel conducted DNA analysis on these items. Magee
       would have testified that “[a]n extraction technique was used in an attempt to separate the
       sperm cells contained in these items from the other types of cells in each sample. This
       technique results in a ‘non-sperm’ sample tube and a ‘sperm’ sample tube which are profiled
       separately.” For comparison purposes, she obtained Lewis’ blood standard and defendant’s
       buccal swab. Magee would have made, within a reasonable degree of scientific certainty, the
       following opinions: “that a female DNA profile was identified in the non-sperm fractions of
       the vaginal swabs and sanitary napkin which matches the DNA profile from Felicia Lewis”;
       “that a mixture of DNA profiles was identified from the sperm fraction of the vaginal swabs
       which contains DNA from a male and a female”; “that the primary profile from the sperm
       fraction of the vaginal swabs matches the DNA profile of Felicia Lewis”; “that [defendant]
       can be excluded as the source of the male DNA obtained from the vaginal swabs”; “that a
       mixture of DNA profiles was identified in the sperm fraction of the sanitary napkin which

                                                -9-
       contains DNA from a male and a female”; “that the primary profile from the sperm fraction
       of the sanitary napkin matches the DNA profile of Felicia Lewis”; and “that [defendant] can
       be excluded as the source of the male DNA obtained from the sanitary napkin.”
¶ 41       The State provided an affidavit from Antoine Hudson, Lewis’s husband. Hudson attested
       that he married Lewis in September of 1992 and that Lewis was in the Army during their
       marriage and stationed outside of Illinois. He stated that “[a]lthough we remained legally
       married, we went through periods of time where we did not see one another.” They did,
       however, see each other when Lewis was in the Chicago area. Hudson attested that “Lewis
       and I maintained a sexual relationship in spite of the times we lived apart.” He made the
       following statement: “I recall Felicia Lewis returning to the Chicago area from military
       service in late 1993. I did see Felicia Lewis after her return home. We engaged in sexual
       intercourse periodically from the time she returned until she was murdered in January 1994.”
       The State argued that Hudson’s affidavit reasonably explained the presence of Hudson’s
       DNA on the vaginal swab and sanitary napkin.
¶ 42       After the evidentiary hearing, the circuit court denied defendant’s petition. The court
       noted “[t]here is nothing linking Mr. Hudson with any of the events on the day of the tragedy
       or the following early mornings” before finding that the new evidence does not impeach
       Johnson’s trial testimony. In conclusion, the circuit court judge stated: “Weighing all the
       evidence and in light of the DNA results, I do not find that the evidence [is] so conclusive
       *** to warrant a new trial. I also find that it’s not likely that this would affect any jury’s
       determination.”
¶ 43       On April 9, 2009, defendant filed a motion to reconsider, which the circuit court denied
       on April 8, 2009. Defendant timely appealed.

¶ 44                                        ANALYSIS
¶ 45       Before this court, defendant argues that he should be given a new trial because
       postconviction DNA testing produced evidence that would have undermined the testimony
       of the State’s key witnesses, Pamela Fish and Zarice Johnson, thus altering the outcome of
       his trial. Specifically, defendant claims that the postconviction DNA testing contradicted
       Fish’s testimony that no seminal material was present on Felicia Lewis’s vaginal swab and
       Johnson’s testimony that defendant repeatedly sexually assaulted Lewis. According to
       defendant, Fish’s testimony would be undermined due to the new DNA evidence showing
       that Antoine Hudson, Lewis’s husband, was the source of the DNA on the vaginal swab and
       sanitary pad. Regarding Johnson’s testimony, defendant asserts that at a new trial, jurors
       would learn that although the new DNA evidence could not exclude Lewis as the source of
       the DNA found on Brown’s underwear, the DNA could have been from a woman of
       Caucasian, African American, or Hispanic origin. Defendant asserts that our review should
       be de novo because no live witness testimony was presented at his evidentiary hearing.
       According to defendant, the circuit court was not required to make any credibility
       determinations because the evidence presented came in the form of stipulations.
¶ 46       In the alternative, defendant argues that we should remand the matter for a new
       evidentiary hearing due to his postconviction counsel’s “unreasonable presentation of critical

                                               -10-
       DNA evidence.” Specifically, defendant argues that “[t]o the extent post-conviction counsel
       failed to contrast the critical probative difference between a nine-loci match and a thirteen-
       loci match, counsel rendered unreasonable assistance at the evidentiary hearing.”
¶ 47       In response, the State argues that the circuit court properly denied defendant’s successive
       postconviction petition because defendant failed to make a substantial showing of actual
       innocence. Specifically, the State argues that the new DNA evidence does not substantially
       show that defendant did not commit the sexual assaults or the other offenses for which he
       was convicted. The State stresses that there is no requirement that defendant’s DNA has to
       be among the evidence of the crimes to establish his guilt. Furthermore, there is no conflict
       in the results of the new DNA testing that would lead to a different outcome at trial. The
       State disputes defendant’s contention that our review should be de novo. The State asserts
       that the manifest error standard of review is proper where this court reviews the circuit
       court’s postconviction findings after an evidentiary hearing. The State also maintains that
       defendant’s postconviction counsel rendered defendant reasonable assistance.

¶ 48                                      Actual Innocence
¶ 49        The Act allows criminal defendants to challenge their conviction or sentence based on
       substantial deprivations of their constitutional rights. People v. Peeples, 205 Ill. 2d 480, 509.
       (2002). Petitions under the Act are considered a collateral attack on a final judgment as
       opposed to a substitute for an appeal. People v. Edwards, 2012 IL 111711, ¶ 21. Therefore,
       res judicata bars issues previously decided on appeal. People v. Williams, 209 Ill. 2d 227,
       232 (2004). Similarly, issues not raised, even though they could have been raised on appeal,
       are waived. Id. The Act contemplates the filing of only one postconviction proceeding, and
       Illinois courts disfavor successive postconviction actions. Edwards, 2012 IL 111711, ¶¶ 22,
       29. The relaxation of the prohibition of successive postconviction proceedings, however, is
       proper in two instances. Id. ¶ 22. Under the cause-and-prejudice test, as codified by section
       122-1(f) of the Act, a petitioner must establish cause-and-prejudice for not raising the claim
       earlier. Id.; 725 ILCS 5/122-1(f) (West 2010). In the second instance, under the
       “ ‘fundamental miscarriage of justice’ exception,” a petitioner has to show actual innocence.
       Edwards, 2012 IL 111711, ¶ 23 (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 459
       (2002)); see also People v. Ortiz, 235 Ill. 2d 319, 330 (2009) (“where a defendant sets forth
       a claim of actual innocence in a successive petition, the defendant is excused from showing
       cause and prejudice”). In this case, defendant makes an actual innocence claim.
¶ 50        The due process clause of the Illinois Constitution allows postconviction petitioners to
       make freestanding claims of actual innocence based on newly discovered evidence. People
       v. Washington, 171 Ill. 2d 475, 489 (1996). “For new evidence to warrant a new trial, the
       evidence (1) must be of such conclusive character that it will probably change the result on
       retrial; (2) must be material to the issue, not merely cumulative; and (3) must have been
       discovered since trial and be of such character that the defendant in the exercise of due
       diligence could not have discovered it earlier.” People v. Orange, 195 Ill. 2d 437, 450-51
       (2001). “Evidence is considered cumulative when it adds nothing to what was already before
       the jury.” Ortiz, 235 Ill. 2d at 335. Defendant bears the burden of making a substantial


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       showing of a deprivation of constitutional rights at an evidentiary hearing. People v.
       Coleman, 206 Ill. 2d 261, 277 (2002).

¶ 51                                     Standard of Review
¶ 52       Typically, the standard of review for the dismissal of a postconviction petition without
       an evidentiary hearing is de novo, whereas the dismissal of a postconviction petition after an
       evidentiary hearing is reviewed for manifest error. People v. Johnson, 206 Ill. 2d 348, 357
       (2002). Recently, our supreme court held in People v. English that de novo review may be
       appropriate in some circumstances. People v. English, 2013 IL 112890, ¶¶ 23-24. Our
       supreme court explained:
                “The Act provides a three-stage process for adjudicating postconviction petitions.
           [Citation.] *** After an evidentiary hearing where fact-finding and credibility
           determinations are involved, the circuit court’s decision will not be reversed unless it is
           manifestly erroneous. [Citation]. However, if no such determinations are necessary at the
           third stage, i.e., no new evidence is presented and the issues presented are pure questions
           of law, we will apply a de novo standard of review, unless the judge presiding over
           postconviction proceedings has some special expertise or familiarity with defendant’s
           trial or sentencing and that familiarity has some bearing upon disposition of the
           postconviction petition. [Citation.]
                At the third-stage hearing in this case, the circuit court heard no new evidence;
           instead, the court reviewed the trial transcripts and heard arguments of counsel. In
           addition, the judge presiding over the hearing did not preside over defendant’s trial and,
           thus, had no special expertise or familiarity with defendant’s trial. Under these
           circumstances, the standard of review is de novo. [Citations.]” Id. ¶¶ 23-24.1
¶ 53       In this case, the parties do not dispute that an evidentiary hearing was held. Unlike in
       English, the circuit court in this case did review new evidence, i.e., the new DNA evidence
       presented by defendant. Additionally, the circuit judge presiding over defendant’s
       postconviction proceedings was the same circuit judge who presided over defendant’s
       original trial. Accordingly, we hold that for this case, the appropriate standard of review is
       the manifestly erroneous standard of review. “Manifest error is that which is ‘clearly evident,
       plain, and indisputable.’ ” People v. Johnson, 206 Ill. 2d 348, 360 (2002) (quoting People
       v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).
¶ 54       We hold the circuit court’s finding that defendant did not make a showing of actual
       innocence substantial enough to warrant a new trial is not manifestly erroneous. The new


               1
                Justice Freeman, in his concurring opinion in English, disputed that the proceedings had
       even reached the evidentiary hearing stage under the Act. People v. English, 2013 IL 112890, ¶ 60
       (Freeman, J., specially concurring, joined by Burke, J.). Justice Freeman characterized the
       proceedings as second-stage proceedings, which apply de novo review to the circuit court’s legal
       determination made on the pleadings. Id. Justice Freeman additionally stated that “the fact that the
       judge did not preside over the original trial has no relevance to the standard of review employed.”
       Id.

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       DNA evidence does not exonerate defendant because it does not show that he did not commit
       the crimes he was charged with. We note that “DNA, in and of itself, does not confirm the
       commission of a crime; rather, it confirms an individual’s identity.” People v. Rivera, 2011
       IL App (2d) 091060, ¶ 31; see also People v. Hunter, 358 Ill. App. 3d 1085, 1093 (2005)
       (quoting People v. Hall, 352 Ill. App. 3d 537, 549 (2004)). Furthermore, DNA evidence that
       does not match a defendant’s DNA does not exonerate the defendant. Rivera, 2011 IL App
       (2d) 091060, ¶ 31; see also People v. Allen, 377 Ill. App. 3d 938, 944 (2007) (stating that
       “[t]he absence of defendant’s DNA on the gun would not conclusively establish that he did
       not handle the gun or that he did not commit the *** robbery”). In this case, the new DNA
       evidence, at best, only establishes that the DNA of Hudson, Lewis’s husband, was found on
       the vaginal swab and the sanitary napkin and that defendant can be excluded as a possible
       contributor of DNA on the vaginal swab and sanitary napkin. Defendant presented no other
       evidence that Hudson had any involvement at all in the crimes. The State, however,
       presented Hudson’s affidavit in which he attested that, upon Lewis’s return to the Chicago
       area in late 1993, Hudson and Lewis “engaged in sexual intercourse periodically from the
       time she returned until she was murdered in January of 1994.” The State presented a
       plausible explanation for the presence of Hudson’s DNA on the swab and the sanitary napkin
       that defendant did not refute. We reiterate that defendant has the burden of making a
       substantial showing of a deprivation of constitutional rights at an evidentiary hearing.
       Coleman, 206 Ill. 2d at 277. Defendant failed to meet that burden here.
¶ 55       Additionally, we hold that the new DNA evidence did not undermine either Johnson’s
       or Fish’s testimony from the trial. Fish testified that she was unable to find seminal material.
       The discovery of Hudson’s DNA does not undermine Fish’s testimony because it does not
       help or harm defendant. All it shows is that DNA from an admitted sexual partner of Lewis’s
       was found. Furthermore, Fish testified that it was not unusual to not find the presence of
       semen because “of the three thousand or so criminal sexual assaults that are submitted ***,
       approximately half of them are negative for the presence of semen or spermatozoa.”
       Defendant in no way refutes this proposition. He does not show that the absence of his DNA
       exonerates him.
¶ 56       We also fail to see how the new DNA evidence undermines Johnson’s testimony. We
       note that defendant already challenged Johnson’s testimony on direct appeal. Brown, 185 Ill.
       2d at 247-51. Our supreme court held that Johnson’s testimony was sufficiently corroborated
       to provide a sufficient basis for the jury’s verdicts. Id. at 249. Nonetheless, defendant argues
       that the new DNA evidence impeaches Johnson’s testimony that defendant repeatedly
       sexually assaulted Lewis. However, like defendant’s argument regarding Fish’s testimony,
       defendant has not presented any evidence that repeated sexual assaults increase the likelihood
       that defendant’s DNA would be found. Rather, defendant’s argument is purely speculative
       which does not establish that the outcome of his trial would have been different. People v.
       Pecoraro, 175 Ill. 2d 294, 315 (1997) (holding that a claim based on speculation “is
       insufficient to establish a reasonable probability that the outcome of defendant’s trial would
       have been different”). We hold that the new DNA evidence does not undermine either Fish’s
       or Johnson’s trial testimony.
¶ 57       Defendant has failed to produce evidence of such a conclusive character that it would

                                                -13-
       change the outcome of his trial upon retrial. We cannot say that the circuit court’s decision
       to deny defendant postconviction relief “is ‘clearly evident, plain, and indisputable.’ ”
       Johnson, 206 Ill. 2d at 360 (quoting Ruiz, 177 Ill. 2d at 384-85). Accordingly, we hold the
       circuit court’s decision is not manifestly erroneous and, therefore, must be upheld.

¶ 58                                 Ineffective Assistance of Counsel
¶ 59        A postconviction petitioner does not have a constitutional right to the assistance of
       counsel; rather, a petitioner only has the right to counsel as provided by statute. People v.
       Suarez, 224 Ill. 2d 37, 42 (2007). “Because the source of the right to counsel in a post-
       conviction matter is statutory rather then constitutional, the degree of skill and care that a
       lawyer must exercise in representing a post-conviction petitioner is not controlled by the
       sixth amendment standard announced by the Supreme Court in Strickland v. Washington.”
       People v. McNeal, 194 Ill. 2d 135, 142 (2000) (citing Strickland v. Washington, 466 U.S. 668
       (1984)). Under the Act, petitioners are only entitled to “a reasonable level of assistance.”
       Suarez, 224 Ill. 2d at 42. Illinois Supreme Court Rule 651(c) addresses the duties imposed
       on postconviction counsel. Id. Rule 651(c) provides, in relevant part:
                 “(c) *** [I]f the trial court determines that the petitioner is indigent, it shall order that
            a transcript of the record of the post-conviction proceedings, including a transcript of the
            evidence, if any, be prepared and filed with the clerk of the court to which the appeal is
            taken and shall appoint counsel on appeal ***. The record filed in that court shall contain
            a showing, which may be made by the certificate of petitioner’s attorney, that the attorney
            has consulted with petitioner by phone, mail, electronic means or in person to ascertain
            his or her contentions of deprivation of constitutional rights, has examined the record of
            proceedings at the trial, and has made any amendments to the petitions filed pro se that
            are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R.
            651(c) (eff. Feb. 6, 2013).
       Our supreme court “has consistently held that remand is required where postconviction
       counsel failed to fulfill the duties of consultation, examining the record, and amendment of
       the pro se petition, regardless of whether the claims raised in the petition had merit.” Suarez,
       224 Ill. 2d at 47.
¶ 60        In this case, we cannot say that defendant’s postconviction counsel failed to provide him
       a reasonable level of assistance. Defendant focuses on his counsel’s failure “to contrast the
       critical probative difference between a nine-loci match and a thirteen-loci match” of the
       DNA results. As stated above, the new DNA evidence presented by defendant does not show
       that he did not commit the crimes of which he was convicted. He neither refutes nor
       undermines Johnson’s testimony at trial linking him to the crime. Although differences in
       DNA analysis testing results may be critical in many instances, this is not one of them
       because the new DNA evidence defendant presented does not show defendant’s actual
       innocence in this case. Furthermore, defendant has made no argument before this court that
       his postconviction counsel failed in the duties imposed upon him by Illinois Supreme Court
       Rule 651(c). Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Defendant only has the right to counsel
       as provided by statute. Suarez, 224 Ill. 2d at 42. Defendant has not shown in this case that


                                                   -14-
       his counsel acted unreasonably or that his counsel failed to fulfill his duties according to
       Illinois Supreme Court Rule 651(c). Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Accordingly, we
       hold that defendant’s postconviction counsel provided a reasonable level of assistance.

¶ 61                                   CONCLUSION
¶ 62      The judgment of the circuit court is affirmed.

¶ 63      Affirmed.




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