Docket No. 103420.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CLARENCE DELTON, Appellant.
Opinion filed January 25, 2008.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
After a bench trial in the circuit court of Cook County, petitioner,
Clarence Delton, was convicted of two counts of aggravated battery
to a police officer (720 ILCS 5/12–4(b)(6) (West 2000)) and received
two concurrent 10-year prison sentences. The appellate court affirmed
Delton’s conviction and sentence. People v. Delton, No. 1–02–1835
(2003) (unpublished order under Supreme Court Rule 23). Delton
thereafter filed a pro se petition under the Post-Conviction Hearing
Act. See 725 ILCS 5/122–1 (West 2004). The circuit court summarily
dismissed the petition, and the appellate court affirmed. No.
1–04–3729 (unpublished order under Supreme Court Rule 23). We
granted Delton’s petition for leave to appeal (210 Ill. 2d R. 315(a))
and now affirm the judgment of the appellate court.
Background
Delton’s convictions stemmed from a traffic stop, which occurred
around 4 a.m. on October 20, 2001. At trial, Chicago Police Officers
Heubaum and Miller testified that they observed a Cadillac, driven by
Delton, drive through a stop sign at the intersection of Princeton
Street and China Place. The officers attempted to pull the car over,
but Delton drove for another quarter of a block before stopping in a
parking lot. Delton emerged from the car, shouting angrily that he was
tired of the police harassing him. Although both officers instructed
Delton to return to his car, Delton began to approach them. As he did
so, he swung a silver chain with keys attached to the end in menacing
fashion.
The officers yelled to Delton to drop the chain and return to his
car. Delton, however, continued to approach them. When Delton was
within arm’s reach of Officer Heubaum, Heubaum reached forward
and grabbed his arm. Heubaum was able to rip the chain from
Delton’s grasp and throw it to the ground. Heubaum explained to
Delton that the officers had pulled him over because he had failed to
stop at the stop sign. Heubaum asked that Delton produce his driver’s
licence and insurance card. Delton replied that he had stopped at “that
fucking sign and *** didn’t have that shit” with him. Heubaum
characterized Delton’s demeanor as angry, loud, and profane.
Heubaum told Delton that he was being placed under arrest for
driving without a driver’s license and proof of insurance. When
Heubaum began to instruct Delton to place his hands behind his back,
Delton started to punch and kick both him and his partner. Heubaum
was hit in the right elbow and the left shin. The scuffle continued for
several minutes, and the officers eventually placed Delton under arrest
with the help of additional officers who came to the scene. Once
Delton was under control, Heubaum informed him of his rights. At
that time, Heubaum noticed the smell of alcohol on Delton’s breath.
He also observed that Delton spoke with slurred speech and had
bloodshot eyes. Heubaum had never seen Delton before that night.
Officer Miller’s testimony corroborated that of his partner’s in
most material respects. Miller stated that several of Delton’s punches
hit him on the underneath of his lip and on the right side of his face,
above the cheek. He was also kicked in the right leg. Photographs of
Miller were introduced into evidence during Miller’s testimony. The
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photographs, which were taken after Delton had been brought to the
station, showed Miller with a cut beneath his lower lip and with a red
welt on his right cheek.
Delton’s wife, Carrie, testified that she was with her husband at
the time of the incident. Delton tried to stop at the stop sign, but went
partly past it. A police car was at the corner and stopped them. Delton
pulled his car into the parking lot of the couple’s apartment complex.
According to Carrie, Delton got out of his car and told police that he
was tired of them harassing him all the time. Carrie stated that Delton
was tired of the police “bothering him, the same policemen that he had
made a complaint about.” Carrie said that the officers were the initial
aggressors and that Delton never hit either officer.
The trial judge found Delton not guilty of driving while under the
influence of alcohol and guilty of two counts of aggravated battery to
a police officer. Based on Delton’s extensive criminal history, the
court found him eligible for extended-term sentences. Delton received
two concurrent 10-year terms.
Delton’s pro se postconviction petition alleged, inter alia, that his
trial counsel was ineffective because he failed to investigate Delton’s
claims involving long-term harassment by Heubaum and Miller.
Delton alleged that, prior to trial, he and Carrie spoke to his attorney,
with both “expressing how the complaining officers were the
aggressors and that patterns of harassment had been initiated over the
past by the very same officers.” Delton further alleged that his trial
counsel’s failure “to request within discovery any records of Officer
Heubaum and Miller regarding Office of Professional Standards files,
and/or possible Disciplinary files of said Officers, prevented [him]
from presenting a possible defense of self-defense, and from
corroborating his story of harassment.” Delton also alleged that
because the incident took place at 4 a.m. in the parking lot of a
condominium complex, “someone living within ear shot surely could
have been awakened by all the commotion and either looked outside
their window to see what went on or, overhead the conversations of
the incident.” In that respect, Delton claimed that his trial counsel’s
“failure to investigate all possible witnesses to the incident” violated
his right to receive effective assistance of counsel. Attached to the
petition were excerpts from the trial transcript. Delton also attached
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a four-line affidavit 1 in which he swore that the “contents” of the
petitions “are true and correct to the best of his knowledge.”
The circuit court summarily dismissed the petition in a written
order. With respect to the allegations regarding counsel’s purported
ineffectiveness, the circuit court found that Delton did not make the
requisite factual showing in his petition. Specifically, Delton claimed
that counsel should have contacted residents of the apartment
complex where the incident occurred as potential witnesses. Delton,
however, did not identify any witnesses, nor did he submit any
affidavits from the potential witnesses indicating what their testimony
would be. Further the court found that Delton’s petition was “devoid
of any facts supporting his contentions” regarding his complaints
about the police.
In affirming the circuit court’s judgment, the appellate court
agreed that Delton failed to provide the required factual support for
his claims and upheld the circuit court’s summary dismissal on that
basis. No. 1–04–3729 (unpublished order under Supreme Court Rule
23). The appellate court then went on to note that even assuming that
Delton had provided adequate support for his allegations, his petition
failed to demonstrate that he was prejudiced under the test formulated
in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,
693, 104 S. Ct. 2052, 2064 (1984). No. 1–04–3729 (unpublished
order under Supreme Court Rule 23).
Analysis
The Post-Conviction Hearing Act provides a mechanism by which
those under criminal sentence in this state can assert that their
convictions were the result of a substantial denial of their rights under
either the federal or the state constitution. See 725 ILCS 5/122–1 et
seq. (West 2004). Proceedings under the Act are commenced by the
filing of a petition in the circuit court in which the original proceeding
took place. 725 ILCS 5/122–1(b) (West 2004). Section 122–2 of the
Act requires that the petition must, among other things, “clearly set
1
This affidavit is the verification affidavit required under section
122–1(b) of the Post-Conviction Hearing Act. 725 ILCS 5/122–1(b) (West
2004).
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forth the respects in which petitioner’s constitutional rights were
violated.” 725 ILCS 5/122–2 (West 2004). Moreover, the Act
requires that the petition “shall have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why
the same are not attached.” 725 ILCS 5/122–2 (West 2004). Section
122–2.1 directs, in noncapital cases, that “[i]f the [circuit] court
determines the petition is frivolous or is patently without merit, it shall
dismiss the petition in a written order ***. *** If the petition is not
dismissed pursuant to this Section, the court shall order the petition
to be docketed for further consideration in accordance with Sections
122–4 through 122–6.” 725 ILCS 5/122–2.1(a)(2), (b) (West 2004).
This court has stated that a petitioner, under section 122–2.1,
must “set forth the specific manner in which his rights were violated.”
People v. Porter, 122 Ill. 2d 64, 74 (1988). A postconviction petition
is considered frivolous or patently without merit if the petition’s
allegations, taken as true, fail to present the “gist of a constitutional
claim.” People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Owing to the
fact that most petitions are drafted at this stage by petitioners with
little legal knowledge or training, this court has viewed the threshold
at this stage of the proceedings to be low. Gaultney, 174 Ill. 2d at
418. Thus, a petitioner “need only present a limited amount of detail”
in the petition (Gaultney, 174 Ill. 2d at 418) and need not make legal
arguments or cite to legal authority (Porter, 122 Ill. 2d at 74).
However a “limited amount of detail” does not mean that a pro se
petitioner is excused from providing any factual detail at all
surrounding the alleged constitutional deprivation. Such a position
would contravene the language of the Act that requires some factual
documentation which supports the allegations to be attached to the
petition or the absence of such documentation to be explained. 725
ILCS 5/122–2 (West 2004). This court has held that the purpose of
section 122–2 is to establish that a petition’s allegations are capable
of “objective or independent corroboration.” People v. Hall, 217 Ill.
2d 324, 333 (2005), citing People v. Collins, 202 Ill. 2d 59, 67
(2002). We have also held that the affidavits and exhibits which
accompany a petition must identify with reasonable certainty the
sources, character, and availability of the alleged evidence supporting
the petition’s allegations. People v. Johnson, 154 Ill. 2d 227 (1993).
Thus, while a pro se petition is not expected to set forth a complete
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and detailed factual recitation, it must set forth some facts which can
be corroborated and are objective in nature or contain some
explanation as to why those facts are absent. As a result, the failure to
either attach the necessary “ ‘affidavits, records, or other evidence’ or
explain their absence is ‘fatal’ to a post-conviction petition [citation]
and by itself justifies the petition’s summary dismissal.” Collins, 202
Ill. 2d at 66, citing People v. Coleman, 183 Ill. 2d 366, 380 (1998),
quoting People v. Jennings, 411 Ill. 21, 26 (1952). Our review of the
dismissal of a postconviction petition is de novo. Coleman, 183 Ill. 2d
at 389.
The circuit court believed that Delton’s claim was waived because
it covered matters which could have been raised on direct appeal. The
court, however, proceeded to note that even if the matter was not
subject to waiver, the petition failed to satisfy the supporting evidence
requirements of section 122–2. The appellate court concluded that
waiver was not a bar to the claims but agreed that Delton failed to
support his allegations with the requisite affidavits or other documents
as required under section 122–2. The appellate court then noted, in
dicta, that even if Delton had satisfied section 122–2, his petition
failed to state the gist of constitutional claim. No. 1–04–3729
(unpublished order under Supreme Court Rule 23).
Thus, the case presents two questions: (i) Did Delton properly
support his petition under section 122–2? And if so (ii) did his petition
set forth the gist of a constitutional claim so as to survive the first-
stage postconviction scrutiny? If this court answers the first question
in the negative, it need not reach the second.
Delton argues his allegations regarding police harassment are
supported by the excerpts from the trial transcript that he attached to
his petition. Delton attached a copy of a portion of his wife’s cross-
examination testimony in which she stated that when Delton exited his
car “he was saying he was tired of them harassing him, bothering him,
the same policemen that he had made a complaint about.” Delton also
attached a portion of his trial counsel’s closing argument in which the
following exchange occurred:
“[Defense Counsel]: The Court has heard two types of
testimony, one from the State’s witnesses who were saying
that Mr. Delton approached them. Carrie Delton tells you on
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the stand she didn’t recall him approaching them. He was loud
and angry.
THE COURT: He was what?
[Defense Counsel]: Loud and angry because he at that
point felt like he was being harassed by the police. That’s the
testimony from Miss Delton.
THE COURT: He was being harassed for not stopping?
You think he had sufficient grounds to be angry with the
police?
[Defense Counsel]: Apparently it stressed him from having
a familiarity with those police on prior occasions. I believe
that’s what he was getting at when he said why do you people
keep harassing me. He was angry at that point. The only
question is did he hit any of those officers.”
Delton also maintains that these transcript excerpts, coupled with the
details in his petition concerning his consultations with his attorney
regarding police harassment, satisfy section 122–2.
In our view, the transcript excerpts do not provide the requisite
factual support for Delton’s postconviction allegations that his counsel
did not investigate instances of prior police harassment. There is
nothing in the transcripts that support Delton’s claim that he had told
his attorney prior to trial that he had filed a complaint against the same
two officers. The excerpt from Carrie’s testimony was taken from her
cross-examination by the assistant State’s Attorney and was the first
mention at trial of a complaint against the officers by defendant. By
itself, it does nothing to support an inference that defense counsel had
been told about the complaint. Defendant suggests that defense
counsel’s reference to Delton’s “familiarity with those police on prior
occasions” during his closing argument reveals that he did know about
Delton’s previous complaint and only belatedly tried to bring it up.
Given that Carrie had just earlier told the assistant State’s Attorney
that Delton had made a complaint against the same officers, the
excerpt cannot be used to show defense counsel’s knowledge about
the incident came from Delton prior to trial. These excerpts, standing
alone, do not support Delton’s allegation in the petition that both he
and Carrie spoke to his attorney and told him about the complaining
officers’ pattern of harassment against him. Delton’s petition does not
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contain an affidavit from Carrie attesting to the date and nature of the
conversation she purportedly had with trial counsel, and Delton’s
petition itself lacks any specifics regarding the conversation. Delton
included no explanation for the absence of such documentation in his
petition, and we can think of no reason why obtaining an affidavit
from his wife would be difficult. Accordingly, the excerpts from the
trial transcript, coupled with the petition’s allegations, do not satisfy
section 122–2’s additional-documentation requirements.
Delton next maintains that his petition contains facts from which
the court could easily have inferred the explanation as to why
additional evidence was not provided. See People v. Hall, 217 Ill. 2d
324, 333 (2005) (noting that section 122–2 noncompliance can be
excused when absence of additional documentation can easily be
inferred from the allegations of the complaint and the petitioner’s
affidavit). Delton suggests that it is unreasonable for a pro se
petitioner to expect to receive police disciplinary records without the
assistance of counsel. While we acknowledge that obtaining
information on police disciplinary proceedings requires a subpoena
(Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998)),
Delton, himself, allegedly made the complaint against the officers in
question. Delton therefore did not have to rely on the Chicago police
department’s answer to a subpoena for documentary support. Because
Delton filed the charges, he could easily have supported his petition
with a copy of the complaint he filed against Heubaum and Miller or
with the specifics about the filing of that complaint if, in fact, he had
filed one. Given that such information is within Delton’s personal
knowledge, it is neither unreasonable nor unjust to expect his petition
to contain supporting documentation of this caliber.
In his petition, Delton also alleged that counsel was ineffective for
failing to interview all possible witnesses to the incident. Specifically,
Delton stated that someone “living within ear shot surely could have
been awakened by all the commotion, and either looked outside their
window to see what went on or overheard the conversations of the
incident.” However, Delton did not allege that someone actually saw
or heard the incident, just that his attorney “failed” to investigate all
possible witnesses. This amounts to nothing more than a broad
conclusory allegation of ineffective assistance of counsel. Such
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allegations are not allowed under the Act. People v. Blair, 215 Ill. 2d
427, 453 (2005), citing People v. West, 187 Ill. 2d 418 (1999).
Delton’s petition does not contain the affidavits, records, or other
evidence that support his allegations, as is required by section 122–2.
Nor does the petition explain why those documents are absent, also
required by section 122–2. For that reason, the circuit court’s
summary dismissal was proper. See Collins, 202 Ill. 2d at 62
(affirming summary stage dismissal on the basis of noncompliance
with section 122–2).
Conclusion
The circuit court properly dismissed Delton’s postconviction
petition for failing to attach the required supporting affidavits and
exhibits. The judgment of the appellate court is therefore affirmed.
Affirmed.
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