People v. Green

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Green, 2012 IL App (4th) 101034

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONALD L. GREEN, Defendant-Appellant.

District & No. Fourth District
Docket No. 4-10-1034

Argued May 15, 2012
Filed June 7, 2012

Held The dismissal of defendant’s second successive postconviction petition
(Note: This syllabus alleging his actual innocence of first-degree murder and aggravated
constitutes no part of criminal sexual assault of his six-month-old daughter was affirmed, since
the opinion of the defendant never sought leave to file a successive postconviction petition,
court but has been his petition failed to state a claim of actual innocence, and the “newly
prepared by the discovered” evidence he relied on did not raise the probability that it was
Reporter of Decisions “more likely than not that no reasonable juror would have convicted him
for the convenience of in the light of the new evidence.”
the reader.)

Decision Under Appeal from the Circuit Court of Sangamon County, No. 88-CF-189; the
Review Hon. Peter C. Cavanagh, Judge presiding.

Judgment Affirmed.
Counsel on Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal and Thomas A. Lilien and Yasemin Eken (argued), both of State Appellate
Defender’s Office, of Elgin, for appellant.

John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, Robert J.
Biderman, and Anastacia R. Brooks (argued), all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Appleton and Knecht concurred in the judgment and opinion.

OPINION

¶1 Following an April 1989 trial, a jury convicted defendant, Donald L. Green, of (1) first
degree murder (Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1) and (2) aggravated criminal sexual assault
(Ill. Rev. Stat. 1987, ch. 38, ¶ 12-14) in connection with the death of his six-month-old
daughter. Shortly thereafter, the trial court sentenced defendant to 50 years in prison.
¶2 Following a direct appeal and a series of collateral attacks defendant, in November 2010,
pro se filed a second successive postconviction petition under the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)). The trial court later dismissed that
second successive petition as “frivolous and patently without merit.”
¶3 Defendant appeals, arguing that the trial court erred by dismissing his second successive
postconviction petition because he raised a claim of (1) actual innocence based upon newly
discovered evidence and (2) cause and prejudice based upon a Brady violation (Brady v.
Maryland, 373 U.S. 83 (1963)). We disagree and affirm.

¶4 I. BACKGROUND
¶5 In March 1988, the State charged defendant with four counts of first degree murder,
aggravated battery of a child, and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch.
38, ¶¶ 9-1, 12-4.3(a), 12-14) in connection with the death of his six-month-old daughter,
Lynn Allen.

¶6 A. Defendant’s Trial, Conviction, Sentence, and Direct Appeal
¶7 The following is a summary of events based upon the evidence presented at defendant’s
April 1989 jury trial.
¶8 On February 14, 1988, defendant was left to watch Lynn when the baby’s mother,
Marilyn Allen, left the apartment they shared to run errands. Sometime later, defendant ran
across the hallway to Sharon Floyd’s apartment, carrying Lynn, who was limp, unconscious,

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 and not breathing. Defendant told Floyd that Lynn had been playing on the floor when she
fell and bumped her head. Floyd attempted to revive Lynn, while defendant called 9-1-1.
¶9 When Lynn arrived at the hospital, she was comatose and not breathing. Lynn had bruises
along her jaw, below her neck, and over the left side of her chest. Dr. Nancy B. Pollard, the
attending physician, testified that she also noticed blood and a small tear at the entrance of
Lynn’s vagina. Indeed, Lynn had fresh blood in her diaper, swelling around the perineum,
and a vaginal laceration. Despite attempts to save her, Lynn died the next day.
¶ 10 The focus of defendant’s trial was to determine who and what caused Lynn’s death.
Several medical experts testified as to the probable cause of Lynn’s injuries. Defendant
provided numerous, conflicting explanations. As previously explained, defendant told Floyd
that he and the baby were playing on the floor and that the baby had fallen over and hit her
head. He told a nurse, however, that he attempted to wake Lynn and found her gasping for
air, shaking, lethargic, with “white stuff” coming out of her mouth. The next day, defendant
told the same nurse that he was carrying Lynn to the bathroom when she hit her head against
the bathroom door and the bathroom mirror. Defendant also told the nurse that when he was
carrying Lynn back to the bathroom, he tripped over a toy, and that she flew out of his arms
onto the bed. Defendant told police investigators that he found blood in Lynn’s diaper and
that he shook the child. Defendant later told Terry Buchanan, a fellow inmate in the
Sangamon County jail, that he had molested and killed Lynn.
¶ 11 Buchanan testified for the State that while he and defendant were housed together at the
county jail, he heard defendant talking in his sleep and saying, “I didn’t mean to do it.”
Buchanan later asked defendant about the incident and, in that conversation, defendant
admitted to Buchanan that he molested and killed his daughter. Buchanan acknowledged that
he was facing charges of armed robbery, residential burglary, unlawful restraint, and theft.
He denied, however, having received any promises or bargains in exchange for his testimony.
¶ 12 On this evidence, the jury convicted defendant of (1) first degree murder (Ill. Rev. Stat.
1987, ch. 38, ¶ 9-1) and (2) aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38,
¶ 12-14) in connection with Lynn’s death. Shortly thereafter, the trial court sentenced
defendant to 50 years in prison.
¶ 13 Defendant appealed, and in October 1990, this court affirmed his convictions and
sentence. People v. Green, No. 4-89-0545 (Oct. 11, 1990) (unpublished order under Supreme
Court Rule 23).

¶ 14 B. Defendant’s Postconviction Petitions
¶ 15 In April 1991, defendant pro se filed his first petition under the Act (Ill. Rev. Stat. 1987,
ch. 38, ¶¶ 122-1 to 122-8). The trial court thereafter appointed counsel to amend defendant’s
petition. Defendant’s amended petition included, in part, the allegation that (1) “upon
information and belief, Buchanan was planted in [defendant’s] jail cell by law enforcement
authorities for the purpose of extracting statements” and (2) his trial counsel was ineffective
for failing to investigate that fact. In July 1994, the court dismissed defendant’s petition,
finding that his claim related to Buchanan was “totally conclusory,” adding that defendant
failed to support his allegations with an affidavit. Defendant appealed, and in May 1996, this

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 court affirmed. People v. Green, No. 4-94-0674 (May 30, 1996) (unpublished order under
Supreme Court Rule 23).
¶ 16 In April 1997, defendant pro se filed a successive postconviction petition, alleging that
the State suborned perjury by allowing Buchanan to testify falsely at defendant’s trial.
Defendant attached to his petition the transcript from Buchanan’s May 1989 guilty plea
hearing, which showed that Buchanan had negotiated away several charges and agreed to a
sentence of 3 years of probation followed by 90 days in jail. The trial court later denied
defendant’s petition for lack of jurisdiction. Defendant appealed, and in July 1998, this court
reversed and remanded for further proceedings. People v. Green, No. 4-97-1054 (July 15,
1998) (unpublished order under Supreme Court Rule 23).
¶ 17 On remand, defendant pro se filed an amended successive postconviction petition. The
trial court thereafter appointed attorney Jeff Page to represent defendant and Page retained
private investigator Bill Clutter to assist him. In September 2003, Page filed an amended
successive petition on defendant’s behalf, alleging that the State misled the jury concerning
its dealings with Buchanan. The court later dismissed defendant’s successive petition, finding
that the claims in defendant’s petition were “conclusory in nature and not supported by the
facts.” Defendant appealed, and in October 2005, this court affirmed, concluding that
defendant failed to (1) argue the cause and prejudice standard for filing a successive petition
and (2) make a claim of actual innocence to excuse his failure to raise his claims in his earlier
petitions. People v. Green, No. 4-04-0125 (Oct. 20, 2005) (unpublished order under Supreme
Court Rule 23).
¶ 18 In November 2010, defendant pro se filed a second successive postconviction petition,
asserting that he was actually innocent based upon newly discovered evidence and that the
State violated his right to due process of law when it failed to comply with Brady. As part
of his claim, defendant explained that he received, as part of a Freedom of Information Act
(FOIA) request, a February 2003 memorandum describing an interview that Clutter
conducted with Buchanan. That memorandum included the following excerpt:
“Buchanan stated that he and [defendant] shared the same jail cell in the Sangamon
County [j]ail. [Defendant] was talking in his sleep, stating he didn’t mean to do it. ‘When
he woke up, he told me everything,’ said Buchanan.
Before [Buchanan] testified, he stated that he [did] recall having a discussion with
prosecutors about getting a break on his case for testifying against [defendant]. ‘After the
fact, they did reduce my sentence,’ said Buchanan. He said he remembers [Assistant
State’s Attorney] Carol Walker telling him this, but most of his discussions concerning
the case were with State’s Attorney Donald Cadigan, he said.
However, at the time he testified, he said he did not expect to get a break on his case.
‘I wasn’t really expecting it,’ said Buchanan. He stated that his attorney told him he
would likely receive probation anyway, since it was his first offense.”
Defendant asserted that this memorandum from Clutter showed that Buchanan testified
falsely at defendant’s trial when he testified that he had not made any deals or received any
promises from the State in exchange for his testimony. Defendant further alleged that the
State was in possession of this information at the time of trial but did not turn it over to his

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 trial counsel.
¶ 19 In November 2010, the trial court dismissed defendant’s second successive petition as
“frivolous and patently without merit.” As part of its judgment, the court entered a written
order, which stated, in pertinent part, as follows:
“A review of the court file indicates that on December 4, 2002, [the trial court]
appointed Clutter to interview Buchanan concerning statements Buchanan made at ***
[d]efendant’s trial. Clutter prepared a Memorandum of Interview, dated February 26,
2003, that was provided to [d]efendant’s post[ ]conviction counsel, Jeff Page. On
September 15, 2003, Page filed a Second Amended Second Petition for Post-Conviction
Relief, setting forth allegations regarding Buchanan’s testimony. These same allegations
are the substance of [d]efendant’s Third Petition for Post-Conviction Relief. They were
discovered prior to the February 26, 2003[,] Clutter Memorandum of Interview and were
discovered prior to Page filing his September 15, 2003[,] Second Amended Second
Petition for Post-Conviction Relief. Therefore, they cannot be deemed ‘new evidence’
to support [d]efendant’s claim of actual innocence.”
¶ 20 This appeal followed.

¶ 21 II. ANALYSIS
¶ 22 Defendant argues that the trial court erred by dismissing his second successive
postconviction petition. Specifically, defendant contends that the court erred by dismissing
his petition because he raised a claim of (1) actual innocence based upon newly discovered
evidence and (2) cause and prejudice based upon a Brady violation. We address defendant’s
contentions in turn.
¶ 23 We begin our analysis by pointing out that we have explicitly not included, in outlining
defendant’s arguments, defendant’s assertion that he stated the “gist” of a claim of (1) actual
innocence and (2) cause and prejudice. We have done so because that first-stage standard has
been flatly rejected by the supreme court in the context of a successive petition. See People
v. Edwards, 2012 IL 111711, ¶ 27, 2012 WL 13564192 (“there is simply no basis in [section
122-1(f)] for applying a first-stage analysis to a successive petition” (emphasis in original)).

¶ 24 A. Defendant’s Failure To File a Motion for
Leave To File a Successive Petition
¶ 25 Before proceeding to the merits of defendant’s appeal, we note that our review of the
record shows that defendant failed to seek leave to file his second successive postconviction
petition as required by section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2010)). In
People v. DeBerry, 372 Ill. App. 3d 1056, 1060, 868 N.E.2d 382, 384 (2007), this court held
that the trial court need not–and should not–concern itself with the merits of a successive
postconviction petition when the defendant has not first sought leave to file a successive
petition under section 122-1(f) of the Act. Three years after our DeBerry decision, the
supreme court explained that a defendant need not first file a formal motion seeking leave
to file a successive petition if the trial court is satisfied that the defendant has submitted

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 sufficient documentation to allow the court to make a determination under section 122-1(f),
as follows:
“[A] successive postconviction petition is not considered ‘filed’ for purposes of section
122-1(f), and further proceedings will not follow, until leave is granted, a determination
dependent upon a defendant’s satisfaction of the cause-and-prejudice test. There is also
a commonsense acknowledgment that a defendant who submits a successive
postconviction petition wants to ‘file’ it and institute proceedings thereon. However, it
is still defendant’s burden to obtain leave, and he must submit enough in the way of
documentation to allow a circuit court to make that determination. Certainly, no separate
motion seeking leave is mandated by section 122-1(f) in its current form, nor, as we have
demonstrated, is an explicit request even required if the circuit court sees fit to consider
the matter and rule of its own accord. We find that circuit courts have that authority
under the statute.” (Emphasis in original.) People v. Tidwell, 236 Ill. 2d 150, 161, 923
N.E.2d 728, 734-35 (2010).
Accordingly, when, as here, the trial court is satisfied that a defendant has submitted
sufficient documentation to allow the court to make a determination under section 122-1(f),
the trial court may do so and choose to address the defendant’s successive petition on the
merits. When, however, the trial court is not satisfied that the defendant has submitted
sufficient documentation in that regard, the court can–and should–dismiss the defendant’s
successive petition without concerning itself with the merits of the defendant’s claims.
¶ 26 Having concluded that our review of the trial court’s dismissal of defendant’s successive
postconviction petition is not limited, given that the trial court in this case saw fit to
“consider the matter and rule of its own accord” (Tidwell, 236 Ill. 2d at 161, 925 N.E.2d at
735), we begin our analysis with a review of the Act (725 ILCS 5/122-1 to 122-7 (West
2010)) and the standard of review.

¶ 27 B. The Post-Conviction Hearing Act and the Standard of Review
¶ 28 The Act (725 ILCS 5/122-1 to 122-7 (West 2010)) “ ‘provides a procedural mechanism
in which a convicted criminal can assert “that in the proceedings which resulted in his ***
conviction there was a substantial denial of his *** rights under the Constitution of the
United States or of the State of Illinois or both.” ’ ” People v. Cathey, 2012 IL 111746, ¶ 17,
2012 WL 966178 (quoting People v. Harris, 224 Ill. 2d 115, 124, 862 N.E.2d 960, 966
(2007), quoting 725 ILCS 5/122-1(a) (West 2002)). Under the plain language of the Act, a
petitioner may file only one petition without first seeking leave of court to file a subsequent
petition. 725 ILCS 5/122-1(f) (West 2010). Thus, “although exceptions may be made in
certain circumstances, the Act contemplates the filing of only one post[ ]conviction petition.”
People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 619 (2002). In seeking leave
of court, a petitioner must demonstrate “cause for his *** failure to bring the claim in his ***
initial post[ ]conviction proceedings and prejudice result[ing] from that failure.” 725 ILCS
5/122-1(f) (West 2010). The Act goes on to elaborate on this “cause-and-prejudice” test, as
follows:
“(1) a prisoner shows cause by identifying an objective factor that impeded his ***

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 ability to raise a specific claim during his *** initial post[ ]conviction proceedings; and
(2) a prisoner shows prejudice by demonstrating that the claim not raised during his ***
initial post[ ]conviction proceedings so infected the trial that the resulting conviction or
sentence violated due process.” 725 ILCS 5/122-1(f)(1), (2) (West 2010).
¶ 29 When, however, a petitioner sets forth a claim of actual innocence in a successive
postconviction petition–that is, he can demonstrate a “fundamental miscarriage of justice”–he
is “excused” from showing cause and prejudice. (Internal quotation marks omitted.) People
v. Ortiz, 235 Ill. 2d 319, 329-30, 919 N.E.2d 941, 947-48 (2009).
¶ 30 The trial court in this case dismissed defendant’s second successive postconviction
petition without “finding facts” and, thus, we review its judgment de novo. See People v.
Guerrero, 2012 IL 112020, ¶ 13, 963 N.E.2d 909 (reviewing the denial of a successive
postconviction following a hearing for “ ‘[m]anifest error,’ ” noting that absent fact finding,
the appropriate review is de novo); People v. Anderson, 401 Ill. App. 3d 134, 138, 929
N.E.2d 1206, 1209-10 (2010) (modified upon petition for rehearing). In undertaking our
review of the court’s judgment, we may affirm on “any basis supported by the record if the
judgment is correct.” Anderson, 401 Ill. App. 3d at 138, 929 N.E.2d at 1210.

¶ 31 C. Defendant’s Claim of Actual Innocence
¶ 32 Defendant first contends that he stated a claim of “actual innocence” because Clutter’s
memorandum revealed “newly discovered” evidence that could have been used to impeach
Buchanan. Specifically, defendant asserts that the trial court erred by dismissing his petition
because the contents of Clutter’s memorandum showed that Buchanan lied under oath, which
was “critical” to the jury’s credibility determination. We disagree.
¶ 33 Initially, we note that Illinois has few cases regarding the standards for dismissing and
addressing successive postconviction petitions based upon claims of actual innocence. We
find particularly instructive, however, Justice Murphy’s scholarly analysis in Anderson, 401
Ill. App. 3d at 138-42, 929 N.E.2d at 1209-12.
¶ 34 In Anderson, the defendant, George Anderson, was found guilty following a November
1994 bench trial of first degree murder and two counts of attempt (first degree murder) for
his involvement in a shootout between rival gangs. Id. at 136, 929 N.E.2d at 1208. Anderson
appealed, and the appellate court affirmed. Id. In November 2006, following a series of
collateral attacks, Anderson filed a fourth successive postconviction petition, in which he
alleged, among other things, that the State (1) committed prosecutorial misconduct by using
perjured testimony at trial and (2) improperly withheld exculpatory evidence in violation of
Brady. Id. at 137, 929 N.E.2d at 1208-09. Anderson attached to his petition an affidavit from
a potential witness, Jerome Johnson, who claimed that he was lied to by Anderson’s
attorneys so that he would not testify at Anderson’s trial. Id., 929 N.E.2d at 1209. Johnson
averred that Anderson did not assist in the shooting but merely drove Johnson to pick up his
car after the shootings. Id. The trial court later denied Anderson’s petition. Id. at 138, 929
N.E.2d at 1209.
¶ 35 Anderson appealed, arguing that the trial court erred by dismissing his petition because
Johnson’s claims were “newly discovered” evidence sufficient to support his claim of actual

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 innocence. Id., 929 N.E.2d at 1209-10. In rejecting Anderson’s contention in this regard, the
court–citing its previous holding in People v. Collier, 387 Ill. App. 3d 630, 636, 900 N.E.2d
396, 403 (2008), and the supreme court’s decision in Ortiz, 235 Ill. 2d at 330, 919 N.E.2d
at 948–explained that for purposes of claims of actual innocence, “newly discovered”
evidence is evidence that (1) was not available at the defendant’s trial, (2) the defendant
could not have discovered sooner through due diligence, and (3) is material and
noncumulative. Anderson, 401 Ill. App. 3d at 140, 929 N.E.2d at 1211-12. But, perhaps most
important, such evidence “ ‘must be of such conclusive character that it would probably
change the result on retrial.’ ” Id. at 141, 929 N.E.2d at 1212 (quoting Collier, 387 Ill. App.
3d at 636, 900 N.E.2d at 403). Applying this standard to the facts of Anderson’s case, Justice
Murphy wrote, as follows:
“[U]nder the Act and Collier and Ortiz, for a successive petition to survive dismissal, the
defendant must present evidence that is material to the issue and not cumulative of the
evidence presented at trial. [Anderson] was convicted under an accountability theory for
the actions of Johnson. Johnson’s affidavit does not vindicate [Anderson]. At best, his
testimony could have been used in considering the weight of [Anderson’s] custodial
statement. Johnson’s statement is cumulative of [Anderson’s] testimony at trial–that
[Anderson] drove him to retrieve his vehicle and that they did not plan on a shooting.
Perhaps Johnson’s statement would provide a basis to argue the existence of a reasonable
doubt, but as the State highlights, that is not the standard as addressed in Collier and
affirmed in Ortiz. The trial court and this court have repeatedly affirmed [Anderson’s]
conviction and accepted the evidence the State presented at trial. Johnson’s statements
cannot overcome that evidence to exonerate [Anderson]. We find the allegedly newly
discovered evidence fails to establish actual innocence and agree with the State that the
trial court properly dismissed [Anderson’s] petition.” Anderson, 401 Ill. App. 3d at 141-
42, 929 N.E.2d at 1212.
¶ 36 Like Anderson’s petition, defendant’s petition in this case failed to state a claim of actual
innocence. See Edwards, 2012 IL 111711, ¶ 33, 2012 WL 1356492 (“documentation must
set forth a colorable claim of actual innocence, i.e., they must raise the probability that it is
more likely than not that no reasonable juror would have convicted him in the light of the
new evidence”). Here, the jury convicted defendant of sexually assaulting and murdering
Lynn. No part of Clutter’s February 26, 2003, memorandum of interview in any way
exonerates defendant. At best, the information contained in Clutter’s memorandum could be
used to attempt to impeach Buchanan’s credibility. In other words, the best that can be said
is that the information included in Clutter’s memorandum could be used to argue to the jury
that Buchanan lied in exchange for concessions from the State about what defendant told him
when they shared a jail cell–an argument the jury would, of course, be free to reject. Perhaps,
like Johnson’s statement in Anderson, the information contained in Clutter’s memorandum
would provide a basis to assert a reasonable doubt argument, but that is not the standard; the
standard is actual innocence. Compare Ortiz, 235 Ill. 2d at 337, 919 N.E.2d at 952
(concluding that the defendant presented newly discovered evidence that directly
contradicted the recanted testimony of two of the State’s witnesses, which constituted a claim
of actual innocence because no physical evidence was presented to link the defendant to the

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 murder). The alleged newly discovered evidence in this case would merely serve to
contradict–if accepted by the jury–Buchanan’s own testimony through impeachment. It
would not contradict the State’s other evidence of defendant’s guilt–namely, that defendant
(1) was alone with Lynn when her injuries occurred, (2) had several inconsistent stories about
what happened to Lynn, (3) inflicted Lynn’s injuries, which included considerable bruising
and lacerations consistent with sexual assault, and (4) told police that he had shaken Lynn.
Our review of the information contained in Clutter’s memorandum shows that it cannot
overcome this other evidence of defendant’s guilt to exonerate defendant. Or, in the words
of the supreme court, defendant’s “newly discovered” evidence does not raise the probability
that it is “more likely than not that no reasonable juror would have convicted him in the light
of the new evidence.” Edwards, 2012 IL 111711, ¶ 33, 2012 WL 1356492.

¶ 37 D. Defendant’s Brady-Violation Claim
¶ 38 Defendant next contends that the trial court erred by dismissing his second successive
postconviction petition because he raised a claim of “cause and prejudice” under section 122-
1(f) of the Act based upon a Brady violation. We disagree.
¶ 39 “Under Brady, the State must disclose evidence favorable to the accused and ‘ “material
to guilt or to punishment.” ’ ” People v. Jarrett, 399 Ill. App. 3d 715, 727, 927 N.E.2d 754,
766 (2010) (quoting People v. Harris, 206 Ill. 2d 293, 311, 794 N.E.2d 181, 193 (2002),
quoting Brady, 373 U.S. at 87). To establish a Brady violation, a defendant must show, in
pertinent part, that (1) the undisclosed evidence is favorable to the accused because it was
impeaching; (2) the evidence was suppressed by the State; and (3) the accused was
prejudiced because the evidence is material to guilt. Jarrett, 399 Ill. App. 3d at 727-28, 927
N.E.2d at 766. “Evidence is material if there is a reasonable probability that the result of the
proceeding would have been different had the evidence been disclosed.” Id. at 728, 927
N.E.2d at 766.
¶ 40 Here, defendant asserts that the State’s alleged failure to disclose its plea negotiations
with Buchanan prejudiced him because that evidence was material to his guilt. Defendant’s
assertion in this regard, however, is not the type of claim contemplated by section 122-1(f)
of the Act. As previously stated, the Act contemplates the filing of only one postconviction
petition and allows a successive petition as an exception to that rule when new evidence
comes to light, giving rise to a new claim. See 725 ILCS 5/122-1(f) (West 2010) (“Leave of
court may be granted only if a petitioner demonstrates cause for his *** failure to bring the
claim in his *** initial post[ ]conviction proceedings.” (Emphasis added.)). Defendant’s
claim that the State failed to disclose the fact that it had engaged in plea negotiations with
Buchanan is not new. Clutter’s memorandum that defendant recently uncovered pursuant to
a FOIA request may arguably be additional evidence to support that claim, but that does not
make that claim new. Defendant has asserted, in one form or another, in each of his previous
collateral attacks, the claim that the State failed to disclose its negotiations with Buchanan.
Moreover, even if defendant’s claim were new, defendant could not meet the Brady
materiality test because, as we explained in rejecting defendant’s claim of actual innocence,
no reasonable probability exists that the result of his trial would have been different. At trial,

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 defense counsel vigorously challenged Buchanan’s veracity–indeed, counsel argued that
Buchanan hoped to receive favorable consideration from the State in exchange for his
testimony. Of course, Buchanan testified that he had no such an expectation. Thus, even if
defendant had attempted to impeach Buchanan with the additional evidence that he was
receiving a “break” in exchange for his testimony–which we note does not necessarily mean
that the jury would have rejected his testimony–the additional evidence of defendant’s guilt
demonstrates that the result of his trial would not have been different.

¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 43 Affirmed.

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