                                                                          Digitally signed by
                                                                          Reporter of Decisions
                           Illinois Official Reports                      Reason: I attest to the
                                                                          accuracy and integrity
                                                                          of this document
                                                                          Date: 2017.02.09
                                   Appellate Court                        10:56:14 -06'00'




                      People v. Mabrey, 2016 IL App (1st) 141359



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



District & No.        First District, Fourth Division
                      Docket No. 1-14-1359



Rule 23 order filed   September 30, 2016
Rule 23 order
withdrawn             October 20, 2016
Opinion filed         November 17, 2016
Rehearing denied      January 17, 2017



Decision Under        Appeal from the Circuit Court of Cook County, No. 00-CR-18817; the
Review                Hon. Arthur F. Hill, Jr., Judge, presiding.



Judgment              Affirmed.



Counsel on            Michael J. Pelletier, Patricia Mysza, and Chan Woo Yoon, of State
Appeal                Appellate Defender’s Office, of Chicago, for appellant.

                      Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                      Miles J. Keleher, and Michele Grimaldi Stein, Assistant State’s
                      Attorneys, of counsel), for the People.
     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Justice Burke concurred in the judgment and opinion.
                              Presiding Justice Ellis dissented, with opinion.


                                                OPINION

¶1         Following a jury trial, defendant, Tyrone Mabrey, was convicted of first degree murder in
       relation to the shooting death of Manuel Jiminez and sentenced to 40 years in prison. In this
       appeal, defendant challenges the summary dismissal of his pro se postconviction petition in
       which he asserted claims of actual innocence and that his confession had been coerced.
¶2         Because the facts relating to defendant’s trial are relevant to our resolution of this appeal,
       we will recite them below. Prior to trial, defendant filed a motion to suppress, and thereafter
       an amended motion to suppress, in which he alleged that his videotaped confession, which
       was taken after three days of interrogation, was the product of police coercion. Defendant
       specifically stated that he had not been informed of his constitutional rights prior to his
       interviews with the police and that the officers had coerced his confession by telling him
       “false statements to the effect of ‘you will never see your children again’; and ‘we will help
       you make a self-defense statement to present [sic] a conviction for first degree murder’; ‘you
       do not need a lawyer, you are not getting a lawyer’ and ‘go along with the program’ or ‘you
       will never be released from custody.’ ” Defendant’s motion also alleged that the detectives
       “coached” him “as to the content of the statements that they wanted him to tell to the
       Assistant State’s Attorney,” and therefore, his statements were involuntary and the
       introduction of them would violate the fifth and fourteenth amendments of the United States
       Constitution.
¶3         The trial court held a hearing on defendant’s motion, at which Detectives Adrian Garcia
       and Mark Richards and Assistant State’s Attorney (ASA) Scott Herbert testified. The
       witnesses testified consistently that defendant was informed of his Miranda rights prior to the
       interviews, that defendant agreed to speak to them, and that he provided a series of differing
       alibis as to his whereabouts at the time of the shooting. After police investigated those alibis
       and found evidence disproving them, defendant confessed. The witnesses denied making the
       statements that defendant had attributed to them or coaching him as to what to say. They
       further testified that defendant was fed and allowed to use the bathroom during the time he
       was in custody. Defendant did not testify at the hearing and presented no witnesses.
¶4         The trial court denied defendant’s motion, finding that the witnesses were “credible, they
       were logical, they were internally consistent with each other, they were unimpeached and the
       video statement also corroborates their testimony.” The trial court further found that
       defendant “was properly advised of his rights,” “was not denied any necessities,” “was not
       threatened or coerced in any way,” and was not “refused an attorney.”
¶5         Immediately thereafter, the court took up the State’s motion to introduce proof of other
       crimes. The State specifically requested that it be allowed to introduce prior convictions
       relating to defendant’s sale of drugs at the corner of Ohio Street and Springfield Avenue,
       where the murder occurred. The State contended that proof of other crimes was relevant as to
       defendant’s identity, as it showed that defendant frequented that corner, and as to motive,

                                                   -2-
     because it showed that defendant had “a lucrative drug business that need[ed] to be
     protected.” Defense counsel initially maintained that identification would be an issue in the
     case, as the defense would be “alibi in the sense that he was not there. Hopefully I’ll be able
     to bring somebody in to show where he was when it occurred, which is not going to be the
     scene here.” However, after speaking with defendant, defense counsel retreated from that
     position, and stated, “Let me correct myself, Judge. An identification is not going to be an
     issue, Judge, it’s not going to be an alibi. The defendant will testify or evidence will show
     that he was in the vicinity of that alley, he was there, but was not the shooter.” The court
     asked defense counsel, “Let me understand, you’re asking to strike the alibi defense?”
     Defense counsel responded, “I am, Judge.” The trial court confirmed that defendant had
     “talked to [his] Attorney about that” and asked if that was “[defendant’s] request as well,”
     and defendant responded, “Yes, sir.” The court then ruled, “Based on that then the People’s
     motion to introduce proof of other crimes is denied.”
¶6       The following summary of the trial testimony and evidence is taken from this court’s
     December 1, 2003, Rule 23 order from defendant’s direct appeal:
                 “At trial, Orlando Mastache testified that on July 3, 2000, he and his cousins,
             including Manuel Jiminez, and several girls watched the fireworks show at the
             Chicago lakefront. Later that evening, he and Jiminez drove to Ohio and Springfield
             to buy cocaine.
                 When they arrived in that area, Mastache and Jiminez drove up to three men near
             a car in the alley. Defendant walked up to the passenger side of the vehicle, where
             Jiminez was sitting, and said that he provided ‘24 hour service.’ He then showed
             Mastache and Jiminez some rock cocaine in a small plastic bag. Mastache took the
             bag and bit into the substance to verify that it was cocaine. As a police car
             approached, defendant grabbed the small bag of cocaine and returned to the car which
             he had previously been standing near.
                 Mastache and Jiminez drove away from the area, and upon their return, saw
             defendant talking to someone in a different vehicle. After that vehicle left, defendant
             walked up to Mastache’s car and told Jiminez to get out.
                 After Jiminez did so, defendant walked over to a tree and picked up something
             from the ground. Jiminez and defendant were talking about six feet away, but
             Mastache could not hear what they were saying. Defendant then extended his right
             arm and shot Jiminez in the stomach. Mastache heard Jiminez yell and saw him fall
             back into the bushes. Defendant ran away and Mastache drove Jiminez to the
             hospital.
                 There, Mastache spoke to detectives and gave them a description of the shooter.
             On July 5, 2000, Mastache viewed a police lineup and identified [Todd Hill,] one of
             the men he saw in the alley with defendant when Jiminez was shot. Later the same
             day, Mastache viewed a second lineup and identified defendant as the shooter.
                 Detective William Fiedler testified that on July 4, 2000, he and his partner,
             Detective Mark Richards, were assigned to investigate the shooting of Jiminez. About
             9:30 a.m., the detectives went to the area of Springfield and Ohio to locate possible
             witnesses. After interviewing Andrew Jones, the detectives attempted to locate a
             white Pontiac Sunbird vehicle.


                                                -3-
    The following morning, Detective Fiedler observed a white Pontiac Sunbird
proceeding across an intersection directly in front of him and drove his police vehicle
behind it. The driver sped away and Detective Fiedler pursued this car for several
blocks. When it stopped, a man, later identified as Todd Hill, ran from the car holding
a handgun in his right hand. The detectives apprehended Hill and recovered the
handgun Hill threw under a porch stairwell. At the station, Hill provided the officers
with defendant’s name as a suspect in the shooting of Jiminez.
    Detective Adrian Garcia testified that on July 4, 2000, he was assigned to
investigate the shooting of Jiminez. Acting on an anonymous tip received the
following day, Detective Garcia and other detectives went to an apartment at 1633
West Madison and arrested defendant inside.
    About 7:30 p.m., Detectives Garcia and Matteas interviewed defendant at the
police station. Detective Garcia advised defendant of his Miranda rights and
defendant agreed to answer his questions. Defendant stated that on July 4, 2000, he
and a woman named Robin Hayes drove to the area of Ohio and Springfield to
purchase marijuana. While purchasing the marijuana, defendant saw a ‘Mexican’
person nearby. As defendant was driving away from the area, he heard a gunshot.
Defendant also provided an address and phone number for Hayes and the detectives
subsequently interviewed her.
    In his second interview with defendant, Detective Garcia informed defendant that
Hayes said she was not with him on the date in question. Defendant then stated that
he was not in the area of Ohio and Springfield, but had heard that a ‘Mexican’ person
was shot there because the two men, Loco and Bollo, who sell drugs in that area,
thought that he was ‘going to rip off the spot.’
    On July 6, 2000, Detective Garcia interviewed defendant a third time, and advised
him of his Miranda rights. Defendant stated that on the date in question, he and a
woman named Latrice, also known as Pamela Williams, drove to Ohio and
Springfield to purchase marijuana. Defendant got out of his car and saw several
people, including a ‘Mexican’ man, in line to make a purchase. After defendant
bought his marijuana, he walked back to his car and heard a gunshot. When he looked
back, defendant saw the ‘Mexican’ man stumbling. Defendant then drove to
Williams’ home and stayed there until about 4 a.m., before proceeding to 1633 West
Madison to spend the night.
    On the following day, July 7, 2000, Detective Garcia interviewed Williams, then
spoke with defendant a fourth time. Detective Garcia informed defendant that
Williams had told them that she was not with defendant on the date in question.
    Detective Mark Richards testified that he advised defendant of his Miranda rights
and interviewed defendant on July 8, 2000. Following this interview, Detective
Richards called the State’s Attorney’s office and about two hours later, he and
Assistant State’s Attorney (ASA) Scott Herbert interviewed defendant. ASA Herbert
advised defendant of his Miranda rights and defendant indicated that he was willing
to answer their questions.
    In the interview that followed, defendant stated that on July 4, 2000, he was
selling narcotics in an alley near Ohio and Springfield when two ‘Mexicans’ drove up
in a car to make a purchase. Defendant gave one of the men some narcotics and the

                                   -4-
              man bit off a piece of the rock to determine in the substance was as represented.
              Defendant had noticed that these men had a baseball bat in their car. When a police
              vehicle approached, the two ‘Mexicans’ drove away, but returned shortly thereafter to
              purchase drugs. At that time, defendant retrieved more drugs and a gun hidden
              nearby, then walked down the alley with Jiminez. Defendant sold Jiminez two rocks
              of cocaine and Jiminez bit off a piece of the cocaine and began chewing on it. Jiminez
              began rocking back and forth on his feet with a crazed look, and defendant thought
              about the baseball bat he had seen in the car. He then pulled out the gun and it went
              off. Defendant provided a similar version of events in a videotaped statement.
                  Doctor Mitra Kalelkar, a Cook County medical examiner, testified that she
              examined Jiminez’s body and determined that the cause of death was a gunshot
              wound to his left upper abdomen. She found a muzzle imprint around the wound and
              the skin blackened from powder and soot deposits which indicated that the barrel of
              the gun was in contact with Jiminez’s body when it was fired.
                  The State rested its case and the court denied defendant’s motion for a directed
              verdict. Defense counsel recalled Detective Fiedler, who testified that Mastache had
              told him that Jiminez and the shooter were about 20 to 40 feet east of his vehicle.
                  Detective Gayle Maurovich testified that on the morning of July 4, 2000, she
              interviewed Mastache at the hospital. Mastache stated that he was about 40 to 50 feet
              away when Jiminez was shot. Detective Maurovich viewed Mastache’s vehicle,
              which contained a baseball bat, stereo unit, a steering wheel lock device and a bottle
              of beer. Detective Maurovich also examined the area where Jiminez was shot and
              determined that the closest street light was about 83 feet away.” People v. Mabrey,
              No. 1-02-1564 (2003) (unpublished order under Supreme Court Rule 23).
¶7       Based on the above evidence, defendant was convicted of first degree murder and
     sentenced to 40 years’ imprisonment. In his 2003 direct appeal before a different panel of this
     court, defendant contended that the trial court had erred in denying his request for a jury
     instruction on the lesser included offense of involuntary manslaughter. This court affirmed,
     finding that the “evidence discloses conduct which cannot be construed as reckless, but
     rather, intentional acts indicative of murder.” Id.
¶8       On January 9, 2014, defendant filed a pro se petition for postconviction relief in which he
     asserted that he was actually innocent and that the murder was committed by Todd Hill, the
     man who had been arrested the day after the murder in a vehicle matching the one described
     by witnesses and who had unsuccessfully attempted to dispose of the murder weapon.
     Defendant supported his petition with his own unsigned statement, which he labeled an
     affidavit, and affidavits from Style Spivey and Dorthea Maybra. Defendant contended that
     these affidavits proved that “Todd Hill *** was the gunman who shot and killed Manuel
     Jiminez and that when the fatal shot rang out, Petitioner was nowhere near the scene.”
     Defendant also contended that there was another witness, Gerrod McCullough, who would
     verify his account, but he had not been able to obtain an affidavit from him because “I am
     incarcerated and indigent and unable to locate Gerrod McCullough[’s] current address
     without assistance from the court.”
¶9       In defendant’s petition and “affidavit,” he provided a new account of the murder.
     Defendant claimed that he sold drugs for Hill, and in the early morning hours of July 4, 2000,
     defendant was with Hill and Hill’s friend McCullough, a.k.a. “Money,” on the 600 block of

                                                -5-
       North Springfield Avenue. Defendant and Hill were “discussing a cocaine transaction” with
       Mastache and Jiminez when police pulled up and “told everyone to go home.” Hill told
       defendant that he was “going to shut down for the night” because the police would come
       back. Defendant gave Hill “his money and drug’s [sic] back to him” and asked McCullough
       for a ride home. The next day, between 11:30 and 11:45 a.m., defendant returned to
       Springfield Avenue and Ohio Street and spoke with Hill. Hill told defendant that he could
       “chill,” because “the police will be hot today.” Hill said that he “had to put in some work last
       night, so stay off the block until I tell you it’s cool.” Defendant understood this to mean that
       Hill had “just shot someone.”
¶ 10       The next day, on July 5, 2000, between 5 and 5:30 p.m., defendant was taken into police
       custody, placed in an interrogation room, and questioned about “a murder for almost 75
       hour’s [sic].” Defendant explained that he “made multiple statements because [he] was
       scared to say Todd might have did [sic] this, because a day earlier Todd told me he put in
       some work last night. So stay off the block. I understood that as he just shot someone.”
¶ 11       Defendant stated that the “whole time [he] was in the interrogation room, [he] was
       handcuff[ed] to a ring coming out the wall.” He had to “sit on the floor” while he had “one
       wrist handcuff[ed] to the ring.” When police came in to question him, defendant was placed
       in a chair with his hands cuffed behind his back. Defendant further stated that he was only
       allowed to use the bathroom “when they wanted to question [him].” Defendant stated that
       Detectives Garcia and Matteas told him that he “was the one that did this crime,” but
       defendant told them that he owned a “380 handgun” not a “357 handgun,” and “if [they]
       wanted to test [his] gun, it’s at [his] aunt Dorthea Maybra apartment.” Later, an ASA and an
       officer told defendant “there was know [sic] gun at my Aunt apartment.”
¶ 12       Defendant further stated that detectives were trying to get him “to sign a statement they
       prepared or take a polygraph test in order to eat” and that the first time he was given anything
       to eat was on July 8, 2000, when he gave the videotaped statement. An ASA also told
       defendant that if he did not confess, “he will charge [defendant’s] aunt with accessory to
       murder and with the gun that was found at her apartment.”
¶ 13       Defendant stated that he told the ASA and a police officer that “the victim fell on [him]
       and the gun just went off,” but the ASA told defendant that he could “do better th[a]n that.”
       Defendant then gave “another statement” and the ASA said “we are on the right track.” The
       ASA told defendant that he could “mention the bat in [his] statement” to help him “get
       involuntary manslaughter” based on defendant feeling threatened. The ASA also told
       defendant that he could say that Jiminez was “coming toward [him] and the gun just went
       off.”
¶ 14       Defendant said that he was “set to testify at trial” as to the police coercion and Hill’s
       “involvement in the shooting,” but Hill “coerced him through threats of having Vice Lords in
       the Cook County Jail assault or kill him.”
¶ 15       Defendant also attached an affidavit from Style Spivey. Spivey averred that:
               “[o]n or about March of 2006, I was on the 600 block of North Springfield in Chicago
               Illinois, where I lived for over twenty years.
                    I seen someone I was familiar with name Todd Hill. Where I recalled a
               conversation we had and he expressed to me how he regretted getting Tyrone Mabrey
               A.K.A. Frank as he was known by to take the fall for something he didn’t do. I ask


                                                  -6-
                Todd what happen, and what was he talking about. And Todd told me that Frank was
                locked up for a murder he committed back in the year of 2000. And he blamed Frank
                for this crime. I was sent to Stateville Corr Cntr in Joliet Illinois in 2013 where I was
                housed in Unit E, as were Frank. And I told Frank what Todd had told me about what
                he had done back in 2000 which he was locked up for.” (Sic throughout.)
¶ 16        Defendant’s aunt, Dorthea Maybra averred,
                    “1. On July 5 2000 police officers came to my apartment at 1633 W Madison Apt
                509 around 5:30 pm. And they took my nephew Tyrone Mabrey into custody.
                    2. Later that evening approx between 7:00 pm and 7:30 pm. The police came back
                to my apartment for a gun. They left my apartment with a gun.” (Sic throughout.)
¶ 17        On March 10, 2014, the circuit court entered a written order summarily dismissing
       defendant’s petition as frivolous and patently without merit. The court found that defendant’s
       proposed evidence did not qualify as newly discovered because “as petitioner himself
       explains, petitioner knew that Todd Hill committed the crime at the time of his arrest and
       trial.” The court observed that the affidavit was comprised of hearsay, which would not be
       admissible at trial, but even without that affidavit, defendant did not exercise due diligence
       because he “could have told his attorney that he knew Hill committed the crime so that his
       attorney could investigate the claim and attempt to demonstrate [it] at trial.” The circuit court
       further found that Spivey’s affidavit was not of such a conclusive character that it would
       probably change the result on retrial because it was an inadmissible hearsay statement, and
       even if it were admitted, it would be directly rebutted by defendant’s videotaped confession
       and Mastache’s testimony identifying defendant as the shooter. The court additionally found
       that defendant’s claim regarding police coercion was waived because he had not raised it
       previously and defendant had not submitted any new evidence of coercion to support his
       claim.
¶ 18        Defendant appeals the summary dismissal of his postconviction petition, alleging that he
       presented arguable claims of actual innocence and that his confession was coerced. The
       Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) provides a
       mechanism by which a criminal defendant may assert that his conviction was the result of a
       substantial denial of his constitutional rights. People v. Delton, 227 Ill. 2d 247, 253 (2008).
       At the first stage in the postconviction process, the trial court reviews the defendant’s petition
       on its own, without input from the parties. People v. Brown, 236 Ill. 2d 175, 184, (2010).
       During this stage, the trial court may review the court file, the transcripts, and any appellate
       court actions. Id.
¶ 19        A postconviction petition may be summarily dismissed within 90 days of filing if the
       court finds it frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2012).
       While a petition should not be summarily dismissed unless it has no arguable basis in law or
       fact, a petition at this first stage must provide sufficient factual basis to show that its
       allegations are capable of objective or independent corroboration. People v. Allen, 2015 IL
       113135, ¶¶ 24-25. “In the review of a first- or second-stage postconviction petition, ‘all
       well-pleaded facts in the petition and affidavits are to be taken as true, but nonfactual and
       nonspecific assertions which merely amount to conclusions are not sufficient.’ ” People v.
       Barnslater, 373 Ill. App. 3d 512, 519 (2007) (quoting People v. Rissley, 206 Ill. 2d 403, 412
       (2003)). Well-pled factual allegations in a petition and its supporting evidence must be taken
       as true unless they are positively rebutted by the record. People v. Sanders, 2016 IL 118123,

                                                   -7-
       ¶ 48. Although defendant need only set forth the “gist” of a constitutional claim at this stage
       (People v. Edwards, 197 Ill. 2d 239, 244 (2001)), section 122-2 of the Act requires that the
       petitioner clearly set forth the respects in which his constitutional rights were violated and
       attach affidavits, records, or other evidence supporting the allegations or an explanation for
       their absence (725 ILCS 5/122-2 (West 2010); People v. Hodges, 234 Ill. 2d 1, 10 (2009)).
       We review the summary dismissal of a postconviction petition de novo. People v. Coleman,
       183 Ill. 2d 366, 388 (1998).
¶ 20        Defendant first contends that the court erred in dismissing his petition because he raised a
       claim of actual innocence based on newly-discovered evidence, namely, the affidavit of Style
       Spivey in which he averred that he had a conversation with Hill in which he confessed to the
       shooting of Jiminez. We note that defendant explicitly relies only on Spivey’s affidavit, and
       not his own statement, to support his actual innocence claim, and as a result, we will consider
       only Spivey’s affidavit on this issue. Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008); People v.
       Guest, 166 Ill. 2d 381, 414 (1995).
¶ 21        A pro se petition seeking postconviction relief under the Act may be summarily
       dismissed as “frivolous or *** patently without merit” pursuant to section 122-2.1(a)(2) only
       if the petition has no arguable basis either in law or in fact. 725 ILCS 5/122-2.1(a)(2) (West
       2012). A petition lacks an arguable basis in fact when it is based on a “fanciful factual
       allegation,” which includes allegations that are “fantastic or delusional” or belied by the
       record. Hodges, 234 Ill. 2d at 16-17.
¶ 22        Although defendant now contends that Hill committed the murder, and that defendant
       was “nowhere near the scene” when the crime occurred, the record shows that defense
       counsel, and defendant himself, requested to strike his alibi defense before trial, maintaining
       that he was “in the vicinity” of the crime scene, but that he “was not the shooter.” In these
       circumstances, we find defendant’s actual innocence claim to be subject to summary
       dismissal, as it is belied by the record. People v. Torres, 228 Ill. 2d 382, 394 (2008) (“[T]his
       court has consistently upheld the dismissal of a postconviction petition when the allegations
       are contradicted by the record from the original trial proceedings.”).
¶ 23        We also conclude that defendant failed to set forth an arguable claim of actual innocence
       that would warrant second stage proceedings. At the first stage of the Act, the evidence
       supporting an actual innocence claim must be arguably “new, material, noncumulative ***
       [and] so conclusive it would probably change the result on retrial.” People v. Coleman, 2013
       IL 113307, ¶ 96; People v. Edwards, 2012 IL 111711, ¶ 24. Evidence is new if it was
       discovered after trial and could not have been discovered earlier through the exercise of due
       diligence, material if it is relevant and probative of the defendant’s innocence, and
       noncumulative if it adds to the evidence heard at trial. Coleman, 2013 IL 113307, ¶ 96. Most
       importantly, defendant’s new evidence must be so conclusive that it is more likely than not
       that no reasonable juror would find him guilty beyond a reasonable doubt in light of this
       evidence. Sanders, 2016 IL 118123, ¶ 47. The new evidence must place the trial evidence in
       a different light and undermine the court’s confidence in the factual correctness of the guilty
       verdict. Coleman, 2013 IL 113307, ¶ 97. Actual innocence is not the same as sufficiency of
       the evidence or reasonable doubt, nor mere impeachment of trial witnesses, but a claim of
       vindication or exoneration. Id.; People v. House, 2015 IL App (1st) 110580, ¶¶ 41, 46. An
       actual innocence claim is “extraordinarily difficult to meet” (Coleman, 2013 IL 113307,


                                                   -8-
       ¶ 94), and “[c]ourts rarely grant postconviction petitions based on claims of actual
       innocence.” People v. Wallace, 2015 IL App (3d) 130489, ¶ 14.
¶ 24       In this case, defendant’s actual innocence claim is premised on Spivey’s affidavit, in
       which he claims to have spoken to Hill, who said that defendant had “take[n] the fall for ***
       a murder [Hill] committed back in the year of 2000.”
¶ 25       Assuming without deciding that Spivey’s affidavit may be considered arguably new and
       noncumulative, we conclude that it is not arguable that the evidence contained in the affidavit
       is of such a conclusive character that it would probably change the result on retrial. See
       Sanders, 2016 IL 118123, ¶ 47 (“[T]he conclusiveness of the new evidence is the most
       important element of an actual innocence claim.” (citing People v. Washington, 171 Ill. 2d
       475, 489 (1996))).
¶ 26       At trial, the State provided substantial and compelling evidence against defendant. First,
       the State provided the testimony of Mastache, who witnessed the shooting and identified
       defendant as the shooter. Mastache testified that he observed defendant and had interacted
       with him earlier on the day of the shooting, when he and Jiminez initially went to buy drugs
       at an alley at Ohio Street and Springfield Avenue. Mastache testified that he saw three men
       in the alley at that time, one of whom was defendant, who approached Mastache and Jiminez
       and spoke to them about purchasing drugs. The drug transaction was interrupted when police
       arrived, but Mastache saw defendant again later, when the two men returned later to continue
       the purchase. After the shooting, Mastache spoke to detectives and gave them a description
       of the shooter. The evidence at trial showed that Mastache viewed a police lineup the day
       after the shooting and identified Todd Hill—not as the shooter but as someone who he saw in
       the alley with defendant. Later that day, Mastache viewed a second lineup, during which he
       identified defendant as the shooter. Mastache identified defendant again in court and never
       wavered in his identification of defendant as the shooter. The record also shows that the
       weapon that Detective Fiedler testified that he believed was used in the murder was later
       found on Todd Hill, one of defendant’s admitted associates.
¶ 27       In addition to the above compelling evidence, the State provided evidence of defendant’s
       confession, which was videotaped, and which the jury had an opportunity to observe. This
       court has also reviewed the videotaped confession, which we find provides persuasive
       evidence of defendant’s guilt. See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (a
       confession may be the “ ‘most probative and damaging evidence that can be admitted’ ”
       against a defendant (quoting Bruton v. United States, 391 U.S. 123, 139 (1968) (White, J.,
       dissenting, joined by Harlan, J.))); see also People v. Fillyaw, 409 Ill. App. 3d 302, 316
       (2011) (“A confession is the most powerful piece of evidence the State can offer, and its
       effect *** is incalculable.”).
¶ 28       In that confession, defendant described in detail the events of that evening, which
       corroborated the account provided by Mastache in many significant respects. Defendant
       described how he was selling drugs in the alley at Springfield Avenue and Ohio Street with
       two other men, Todd Hill—who he identified in a photograph—and a man who he knew as
       “Big Money.” When Jiminez and Mastache arrived, defendant spoke to the passenger, who
       bit off a piece of the rock cocaine during their interaction. Defendant described how a police
       squad car arrived, and Jiminez and Mastache drove away. After they returned, defendant
       spoke to the passenger again outside of the vehicle. Defendant gave him two pieces of crack
       rock, and the passenger took a bite out of one of the rocks again. The passenger “rocked

                                                  -9-
       forward” and defendant thought of the baseball bat he had seen in the men’s car, got out his
       gun from his back pocket, and the gun “went off,” shooting Jiminez, who fell to the ground.
       Defendant looked back as he ran away and saw the driver carrying the passenger back to the
       car. Defendant also identified a photograph of the gun he used and described how he
       disposed of the gun after the shooting in the area nearby where he and Todd Hill stored drugs
       to sell. During the video, defendant also acknowledged his understanding of his rights, that
       he had been treated well, and that he had been given food to eat and allowed to use the
       bathroom when needed.
¶ 29        On this “conclusive character” issue, we find our supreme court’s decision in People v.
       Harris, 206 Ill. 2d 293, 299-300 (2002), instructive. There, the Supreme Court considered
       whether the circuit court properly dismissed a defendant’s first and second amended
       postconviction petitions, in which defendant claimed that he was actually innocent based, in
       part, on the affidavits of two codefendants who stated that defendant was not present at the
       time of the crime and that they conspired to frame defendant. Id. The supreme court affirmed
       the circuit court’s decision to dismiss this claim without an evidentiary hearing, stating that
       “[b]ased upon the overwhelming evidence of guilt, the affidavits of [the codefendants] are
       not of such a conclusive character that they would probably change the outcome on retrial.”
       Id. at 302.
¶ 30        Given the strong evidence of defendant’s guilt outlined above, we similarly conclude that
       that Spivey’s affidavit is not arguably so conclusive that it is more likely than not that no
       reasonable juror would find him guilty beyond a reasonable doubt in light of it. See Sanders,
       2016 IL 118123, ¶ 47. At best, Spivey’s affidavit would merely conflict with defendant’s
       confession and Mastache’s eyewitness testimony, but it would not arguably exonerate
       defendant as required for a claim of “actual innocence.” People v. Collier, 387 Ill. App. 3d
       630, 636-37 (2008) (when evidence merely impeaches or contradicts trial testimony, it is not
       typically of such conclusive character as to justify postconviction relief); People v. Ortiz, 235
       Ill. 2d 319, 335 (2009) (impeachment of a prosecution witness is an insufficient basis for
       granting a new trial). As a result, we find no basis for concluding that the affidavit would
       probably change the result on retrial (Harris, 206 Ill. 2d at 301-02) and conclude that
       defendant failed to set forth an arguable claim of actual innocence requiring further
       proceedings under the Act.
¶ 31        Although the dissent repeatedly refers to the alleged statement by Hill to Spivey as Hill’s
       “confession,” we note that “confession” has a specific legal meaning. According to John H.
       Wigmore, a confession is “an acknowledgment in express words, by the accused in a
       criminal case, of the truth of the main fact charged or of some essential part of it.” (Emphases
       omitted.) 3 John Henry Wigmore, Evidence in Trials at Common Law § 821, at 308
       (Chadbourn rev. ed. 1970); see also Black’s Law Dictionary 293 (7th ed. 1999) (“A criminal
       suspect’s acknowledgment of guilt, usu. in writing and often including details about the
       crime.”). Here, the thrust of Spivey’s statement is that Hill told him that defendant “was
       locked up for a murder he committed back in the year of 2000.” Hill is not the accused in a
       criminal case, his statement was not formalized in writing or otherwise, and he includes no
       details about the crime. Hill’s statement to a third party, Spivey, cannot be appropriately
       described as a “confession.” Under these circumstances, we cannot find Spivey’s affidavit
       recounting the statement, which is the only evidence defendant is relying upon in this appeal,
       to be arguably so conclusive that it would probably change the result on retrial.


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¶ 32       We next turn to defendant’s claim that he set forth the gist of a constitutional claim that
       his confession was obtained as a result of police coercion. He contends that his confession
       was involuntary based on his “affidavit” which included allegations that he was in custody
       for three days, that an ASA threatened to charge his aunt with a crime if he did not confess,
       and that he was not given food or allowed to use the bathroom.
¶ 33       As an initial matter, the State contends that we should not review this issue because it
       was not presented in defendant’s petition. See People v. Coleman, 2011 IL App (1st) 091005,
       ¶ 16 (holding that an appellate attorney has no right to raise any issue on appeal that is not
       contained in petitioner’s postconviction petition). The State acknowledges that defendant
       included a discussion in his petition regarding police coercion, but contends that “the
       discussion of the circumstances of his confession was incidental to” his actual innocence
       claim described above and was not an independent claim.
¶ 34       We reject the State’s argument, which is inconsistent with the requirement that a pro se
       petition be given a liberal construction. “Where defendants are acting pro se, courts should
       review their petitions ‘with a lenient eye, allowing borderline cases to proceed.’ ” People v.
       Hodges, 234 Ill. 2d 1, 21 (2009) (quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.
       1983)). Because most petitions are drafted at the first stage by defendants with little legal
       knowledge or training, this court views the threshold for survival as low. Delton, 227 Ill. 2d
       at 254; Torres, 228 Ill. 2d at 394. A pro se defendant need only allege enough facts to make
       out a claim that is arguably constitutional for purposes of invoking the Act, and the pleading
       requirements may be met “even if the petition lacks formal legal arguments or citations to
       legal authority.” Hodges, 234 Ill. 2d at 9. We thus find that defendant has sufficiently alleged
       the claim in his petition so that it may be reviewed on appeal.
¶ 35       Nevertheless, we conclude that defendant has forfeited this claim for postconviction
       review. A postconviction proceeding is not an appeal of the defendant’s underlying judgment
       but, rather, is a collateral attack on the judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999).
       “The purpose of [a postconviction] proceeding is to allow inquiry into constitutional issues
       relating to the conviction or sentence that were not, and could not have been, determined on
       direct appeal.” People v. Barrow, 195 Ill. 2d 506, 519 (2001); People v. Harris, 224 Ill. 2d
       115, 124 (2007) (“The scope of the [postconviction] proceeding is limited to constitutional
       matters that have not been, nor could have been, previously adjudicated.”). Thus, res judicata
       bars consideration of issues that were raised and decided on direct appeal, and issues that
       could have been presented on direct appeal, but were not, are considered forfeited. People v.
       Petrenko, 237 Ill. 2d 490, 499 (2010); People v. Blair, 215 Ill. 2d 427, 443-47 (2005).
¶ 36       In defendant’s postconviction petition, he contends that his confession was obtained
       through the use of coercive police tactics. Defendant raised the same issue at trial in a motion
       to suppress his confession, which was denied by the trial court. Defendant could have, but
       did not, challenge the propriety of the trial court’s denial of his motion to suppress on direct
       appeal. This issue, having been litigated previously, now acts as a bar to defendant’s present
       coerced confession claim raised in his postconviction petition. Harris, 224 Ill. 2d at 124.
¶ 37       There are exceptions to the doctrines of res judicata and forfeiture that may allow
       otherwise barred claims to proceed. It has long been held that res judicata and forfeiture do
       not apply where fundamental fairness so requires, where the alleged forfeiture stems from the
       incompetence of appellate counsel, or where facts relating to the claim do not appear on the
       face of the original appellate record. Blair, 215 Ill. 2d at 450-51. Here, defendant does not

                                                  - 11 -
       make any argument based on the first two exceptions—based on fundamental fairness or
       counsel’s competence—and focuses exclusively on the third exception—that the facts
       relating to his claim are outside the record. He contends that the coerced confession claim in
       his petition should not be subject to res judicata because he bases his claim on “different
       allegations than” were raised in his Amended Motion to Suppress Statements and “supports
       his claim with newly discovered evidence.” Specifically, he claims that the following
       allegations were “never revealed” to the trial court at the hearing on his motion to suppress:
       that he was “chained and unfed in a windowless interview room for more than three days”
       and that “an ASA threatened to charge his aunt, Doretha Maybra, with a crime if he did not
       confess.”
¶ 38        Our review of the record refutes defendant’s claims. At the hearing on defendant’s
       motion to suppress his confession, the court heard testimony regarding the conditions of
       defendant’s interrogation. The trial court was well aware of the length of time defendant was
       in custody and heard testimony regarding the times that defendant was handcuffed and fed.
¶ 39        The only allegation that is arguably “new,” in that it was not presented to the trial court,
       is that an ASA threatened to charge defendant’s aunt with a crime if defendant did not
       confess. However, this allegation is not newly discovered, it is only newly revealed. Our
       supreme court has recognized “that, in the interests of fundamental fairness, the doctrine of
       res judicata can be relaxed if the defendant presents substantial new evidence.” People v.
       Patterson, 192 Ill. 2d 93, 139 (2000). The standards addressing when new evidence is
       sufficiently substantial so as to relax res judicata are the same standards used to determine
       whether newly discovered evidence should result in a new trial. Id.
¶ 40        In this case, defendant presumably knew the facts of his interrogation and the threats that
       the detectives and ASA had made against him. Although defendant raised a multitude of
       allegations regarding threats allegedly made to him at the trial court during the hearing on his
       motion to suppress, he chose not to raise the specific threat regarding his aunt. The forfeiture
       exception based on facts outside of the original appellate record, is not an invitation for
       defendants to present incomplete claims at trial, sit back, and if they are unsuccessful, raise
       the “new” fact in a postconviction petition. We thus find no basis to relax the application of
       res judicata here. See Barnslater, 373 Ill. App. 3d at 530.
¶ 41        The only case upon which defendant relies in maintaining that res judicata should not bar
       consideration of his coerced confession claim is People v. Mengedoht, 91 Ill. App. 3d 239,
       241 (1980). We, however, do not find Mengedoht to be supportive of defendant’s position,
       and in fact, find it to be supportive of the result we reach here. In Mengedoht, the defendant
       filed a pro se postconviction petition alleging that his confession and later guilty plea were
       involuntary. Defendant acknowledged that most of his allegations regarding police coercion
       of his confession had been previously raised at trial in a motion to suppress his statement.
       Defendant raised one allegation, however, that had not been included in his motion at
       trial—that he was twice denied an opportunity to phone his father during the course of the
       interrogation. The defendant maintained that he had informed his counsel of this allegation
       and that counsel told him that he would bring it up at the suppression hearing but then failed
       to do so. The Second District Appellate Court found that defendant was “now precluded from
       challenging the validity of the confession or guilty plea” under res judicata. The court found,
       however, that res judicata did not bar the consideration of whether defense counsel’s failure


                                                  - 12 -
       to include the allegation constituted ineffective assistance of counsel because it was based on
       facts outside the record on direct appeal.
¶ 42       In this case, defendant maintains that his “new allegations” of police coercion warrant the
       reconsideration of the voluntariness of his confession. This, however, is precisely the
       argument that was rejected in Mengedoht. Defendant does not contend that his counsel’s
       ineffectiveness prevented him from raising the allegations, and we thus find no reason to
       conclude that res judicata does not apply to his coerced confession claim.
¶ 43       Defendant further contends that “his own averment that Todd Hill’s threats prevented
       him from exposing the detective’s coercive interrogation techniques” is new evidence
       supporting his coerced confession claim. He alleges that he “could not counter the detectives’
       and ASA’s testimony at trial that he was treated well because Hill had warned him not to
       testify.” Defendant’s claim is belied by the record on appeal. At trial, defendant was
       admonished by the court that the choice to testify was his, and his alone. After questioning by
       the trial court, defendant stated that no one had threatened or forced him not to testify, and no
       one had promised him anything to not testify. The trial court then accepted defendant’s
       choice to not testify as knowing and voluntary. In these circumstances, we find defendant’s
       claims that his choice not to testify was due to Hill’s threats is affirmatively rebutted by the
       record. See People v. Jones, 144 Ill. 2d 242, 263 (1991) (defendant’s acknowledgment in
       open court, at a plea proceeding, that there were no agreements or promises regarding his
       sentence served to contradict his postconviction petition assertion that he pleaded guilty in
       reliance upon an alleged, undisclosed promise by defense counsel regarding sentencing);
       Rissley, 206 Ill. 2d at 454 (defendant’s allegations were “totally contradicted by the record of
       the plea”); People v. Maury, 287 Ill. App. 3d 77, 83 (1997) (defendant’s declaration in his
       postconviction petition that his plea was involuntarily entered based on the erroneous advice
       of trial counsel was directly refuted by the record, which indicated that defendant answered
       “no” when the circuit court inquired whether any extraneous promises had been made to
       him).
¶ 44       Defendant’s claim is further rebutted by the record which shows that defendant actually
       did present the theory at trial that Hill was responsible for the murder. In defense counsel’s
       opening statement, he focused on how the police had caught “someone else” “running away
       with a gun.” Defense counsel extensively cross-examined Detective Fiedler regarding how
       Hill was the only person found in the car and who was in possession of the gun. Counsel
       attempted to ask if the police had ever “run a criminal background on Todd Hill” but that
       question was objected to and sustained. Counsel further elicited testimony that Hill was not
       charged for possessing the gun, and was released from custody after giving defendant’s
       name. Defense counsel also requested to “exhibit Mr. Todd Hill physically to the jury.” The
       record indicates that Hill was physically present in the courthouse lockup at the time, having
       been writted in from the penitentiary for this particular purpose. However, the court, in its
       discretion, denied the defense’s request to present Hill. In closing argument, defense counsel
       argued that Hill was “Mr. Lucky” who “happened to have this gun.” Counsel argued that Hill
       “got the break of his life” when he “walked out of that police station” and “wasn’t charged
       with anything” even though he “told the police he was a drug dealer” and had “a loaded gun
       used in a murder.” Given the foregoing attention given to Hill by defense counsel, we find
       defendant’s claim that he was threatened by Hill and could not implicate him to be belied by
       the record. It strains credulity to suggest that defendant was afraid of Hill under the

                                                  - 13 -
       circumstances presented above. We thus conclude that the circuit court properly held that
       defendant had failed to present any new evidence which would allow for the reconsideration
       of whether his confession had been coerced.
¶ 45       Based on the foregoing, we find no error in the summary dismissal of defendant’s
       postconviction petition. Accordingly, the judgment of the circuit court is affirmed.

¶ 46      Affirmed.


¶ 47       PRESIDING JUSTICE ELLIS, dissenting.
¶ 48       I respectfully dissent from the majority’s conclusion that defendant failed to state the gist
       of a claim of actual innocence. When taken as true, evidence that Hill confessed to Spivey in
       2013 was new evidence that would at least arguably be likely to change the result on retrial.
¶ 49       The majority opines that the evidence of Hill’s confession would be unlikely to change
       the result on retrial because it “would, at best, merely conflict with defendant’s confession
       and Mastache’s eyewitness testimony.” The majority sells the likely impact of the confession
       short. In investigating the shooting, Detective Fiedler heard that Hill was involved. Fiedler
       arrested Hill in the area of the shooting after Hill fled from the police while carrying the
       murder weapon. It is at least arguable that no rational jury would convict defendant if it heard
       that Hill—the very same person found in possession of the murder weapon in the area of the
       shooting—confessed to shooting Jiminez.
¶ 50       The State’s other evidence against defendant was not so strong as to moot the potential
       impact of Hill’s confession when it is taken as true. When Mastache saw the shooting, it was
       dark outside. He testified at trial that he was only 6 feet from the shooting but told the police
       he was anywhere from 20 to 50 feet or more away.
¶ 51       And although defendant confessed to the shooting, he did so only after being repeatedly
       interrogated by police over three days and after being told that his statements conflicted with
       those of other witnesses. In fact, the videotaped statement shown to the jury only consisted of
       a recitation of defendant’s final statement. None of the initial interrogations were shown to
       the jury. Nor did the jury see the first time defendant confessed to shooting Jiminez. Instead,
       they saw defendant repeat his statement in response to rehearsed questioning by an assistant
       State’s Attorney. Notably, defendant has maintained his claim that his confession was
       coerced by the police because of threats they made in response to his earlier statements.
       While defendant’s confession was certainly powerful evidence of his guilt, it was not so
       conclusive that I can say that a confession by Hill would not at least arguably change the
       result on retrial.
¶ 52       While Spivey’s testimony would contradict the State’s evidence of defendant’s guilt, the
       existence of a contradiction does not automatically defeat defendant’s claim. If that were so,
       any new evidence of defendant’s innocence, no matter how strong, would be insufficient to
       merit further proceedings, as that evidence would necessarily contradict the State’s evidence
       that defendant was the shooter. And our supreme court has held that evidence which
       contradicts the State’s evidence may be sufficient to show that a different result would be
       likely on retrial. See, e.g., People v. Ortiz, 235 Ill. 2d 319, 337 (2009) (new eyewitness’s



                                                  - 14 -
       testimony was likely to change result on retrial because it “directly contradict[ed] the
       recanted testimony of the two prosecution witnesses”).
¶ 53        The majority cites three cases in support of the notion that Spivey’s affidavit is
       insufficient to show the gist of a claim that defendant’s trial would likely be different if
       Spivey testified: Ortiz, 235 Ill. 2d 319, People v. Harris, 206 Ill. 2d 293 (2002), and People v.
       Collier, 387 Ill. App. 3d 630 (2008). None of these cases supports the majority’s decision.
¶ 54        The majority cites Ortiz for the proposition that evidence impeaching a prosecution
       witness “is an insufficient basis for granting a new trial.” But the issue in this case is not
       whether defendant is entitled to a new trial. Rather, it is whether defendant has stated a claim
       of actual innocence that is not frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2)
       (West 2012).
¶ 55        And in any event, Ortiz does not stand for the proposition for which the majority cites it.
       In Ortiz, the defendant was convicted of a murder based on two recanted eyewitness
       statements. Ortiz, 235 Ill. 2d at 323-24. The defendant filed a successive postconviction
       petition that contained an affidavit from another eyewitness who had seen the beating and
       shooting of the victim and said that the defendant was not present. Id. at 326. After an
       evidentiary hearing, the trial court found that this new eyewitness’s testimony was
       insufficient to merit a new trial. Id. at 327. The Illinois Supreme Court disagreed, holding
       that the new eyewitness’s testimony was likely to change the result on retrial because it
       contradicted the State’s evidence and there was no physical evidence linking the defendant to
       the crime. Id. at 337. The court did not find that defendant could meet that standard only by
       conclusively proving his innocence; it held that he met it because, “at retrial, the evidence of
       [the] defendant’s innocence would be stronger when weighed against the recanted statements
       of the State’s eyewitnesses.” Id.
¶ 56        If anything, Ortiz supports the notion that defendant’s petition should be advanced to
       second-stage proceedings. Like the new evidence in Ortiz, the evidence of Hill’s confession
       would contradict the State’s evidence and corroborate defendant’s evidence that Hill was the
       shooter. Taken as true, Hill’s confession to Spivey would arguably make the evidence of
       defendant’s innocence stronger than the State’s lone eyewitness identification and
       defendant’s confession.
¶ 57        The proposition for which the majority cites Ortiz is actually found in a portion of Ortiz
       where the supreme court discussed a different case: People v. Smith, 177 Ill. 2d 53 (1997).
       But Smith involved a trial court’s decision to deny defendant’s motion for a new trial, not a
       first-stage, pro se postconviction petition. Smith, 177 Ill. 2d at 82-83. Thus, the supreme court
       in Smith was not called on to decide whether the defendant had met the low bar for first-stage
       postconviction claims.
¶ 58        Moreover, Smith did not involve evidence of a confession by a person identified at trial as
       the possible murderer. Rather, the defendant in Smith filed a posttrial motion with affidavits
       from nine individuals who said that the codefendant, who had testified at trial that she helped
       defendant find someone to kill the victim for the defendant, had said that the defendant was
       not involved in the murder. Id. at 82. But the defendant had already presented testimony at
       trial recounting the same evidence. Id. at 84-85. Thus, the supreme court concluded that the
       trial court did not abuse its discretion in finding that the new evidence would be merely
       cumulative. Id. In this case, evidence of Hill’s confession would not be cumulative because it


                                                  - 15 -
       would add new evidence supporting defendant’s theory. No one at trial testified that Hill had
       confessed before.
¶ 59        The majority also cites Harris, 206 Ill. 2d at 301-02, but that case involved two affidavits
       of witnesses recanting their statements to the police. This case does not involve mere
       recantation testimony; it involves additional evidence that Hill may have been the actual
       shooter. Moreover, the court in Harris was reviewing whether the defendant had made out a
       “substantial showing” of a constitutional violation at the second stage of the postconviction
       proceeding (id. at 300), not whether he stated the “gist” of a claim at the first stage. Compare
       People v. Pendleton, 223 Ill. 2d 458, 473 (2006) (at second stage of postconviction
       proceeding, defendant “bears the burden of making a substantial showing of a constitutional
       violation”), with People v. Allen, 2015 IL 113135, ¶ 24 (if postconviction petition “alleges
       sufficient facts to state the gist of a constitutional claim *** first-stage dismissal is
       inappropriate”).
¶ 60        Finally, the majority cites Collier, 387 Ill. App. 3d at 632, but that case also involved
       recantation affidavits, not evidence that someone else confessed to the murder for which the
       defendant had been convicted. And neither of the affidavits in Collier said that the defendant
       did not kill the victim; they simply said that the witnesses had fabricated their testimony. Id.
       Here, Hill’s confession, taken as true, would show both that defendant did not kill Jiminez
       and that Hill did. Moreover, Collier involved a successive postconviction petition (id. at
       631), not an initial, first-stage petition, like defendant’s.
¶ 61        The majority notes that evidence supporting an actual innocence claim must be
       exonerating but neglects to point out that, at this stage, defendant does not have to prove his
       innocence. Rather, he must simply show that it is arguable—i.e., not fanciful, fantastic,
       delusional, or completely contradicted by the record (People v. Hodges, 234 Ill. 2d 1, 16-17
       (2009))—that “ ‘all of the facts and surrounding circumstances *** should be scrutinized
       more closely to determine [defendant’s] guilt or innocence.’ ” Ortiz, 235 Ill. 2d at 337
       (quoting People v. Molstad, 101 Ill. 2d 128, 136 (1984)). I do not believe that a confession to
       the crime by an individual who was at the scene of the murder, who was later apprehended
       with the murder weapon in his possession, and whom the defense identified all along as the
       real killer, can be brushed aside as “ ‘fantastic or delusional.’ ” Allen, 2015 IL 113135, ¶ 25
       (quoting Hodges, 234 Ill. 2d at 17).
¶ 62        The majority also contends that defendant’s claims are rebutted by the record, meaning
       that they were insufficient to warrant further proceedings. The majority’s basis for that
       conclusion is that defendant withdrew his alibi defense because defendant was “in the
       vicinity of that alley.” According to the majority, this shows that defendant’s story in his
       postconviction petition differs from his theory at trial.
¶ 63        I fail to see how counsel’s strategic choice of a defense could possibly contradict
       defendant’s recounting of the July 4, 2000, events in his petition. It was not as though
       defendant testified that he was present for the shooting at trial. Instead, he merely agreed
       with his attorney’s decision to withdraw the alibi defense so that the State would not
       introduce evidence of defendant’s prior drug deals in the alley. The majority’s reading of the
       record and the petition is far too strict for the first stage of postconviction proceedings. See
       Hodges, 234 Ill. 2d at 21 (a “strict construction” of a postconviction petition at the first stage
       “is inconsistent with the requirement that a pro se petition be given a liberal construction”).


                                                   - 16 -
¶ 64        I cannot say that defendant has failed to meet the low bar set at the first stage, where he
       presented evidence that an individual found near the scene of the crime, carrying the murder
       weapon, confessed to shooting the victim alone.
¶ 65        I have no idea if Hill’s alleged confession to Spivey is genuine, exaggerated, or utterly
       fictional. Experience tells us that jailhouse confessions are suspect. But we must take this
       testimony as true at this stage. People v. Sanders, 2016 IL 118123, ¶ 42. We are not
       authorized to evaluate the credibility of Spivey, Hill, or anyone else at this stage. Id.
       (“Credibility determinations may be made only at a third-stage evidentiary hearing” of a
       successive postconviction proceeding); People v. Coleman, 183 Ill. 2d 366, 390-91 (1998)
       (noting that “factual and credibility determinations will be made at the evidentiary [i.e., third]
       stage of the [postconviction] proceeding”).
¶ 66        How do we know that Spivey’s testimony would not be so believable and persuasive that
       he could convince a fact finder that Hill really did confess to him? We do not know that. We
       could not possibly know that. And if the fact finder truly found this testimony credible, if the
       fact finder truly believed that Hill confessed his guilt, can we really say that it is not at least
       arguable that the fact finder’s verdict would be different with this new evidence? I do not see
       how we could.
¶ 67        This case should be advanced to the second stage, where an attorney could consult with
       defendant, evaluate the record with a more professional eye, review the evidence, and if
       necessary amend the petition to present the case in a form necessary “to ensure that the
       complaints of [defendant] are adequately presented.” (Emphasis in original.) People v.
       Kuehner, 2015 IL 117695, ¶ 20 (quoting People v. Suarez, 224 Ill. 2d 37, 46 (2007)). I think
       defendant’s petition merits that chance. I respectfully dissent.




                                                   - 17 -
