ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Gray, 2011 IL App (1st) 091689
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DOIAKAH GRAY, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-09-1689
Filed December 6, 2011
Rehearing denied March 8, 2012
Held The trial court’s sua sponte denial of defendant’s petition to file a
(Note: This syllabus successive postconviction petition was affirmed, but the dismissal of
constitutes no part of defendant’s petition under section 2-1401 of the Code of Civil Procedure
the opinion of the court for relief from the judgment finding him guilty of first degree murder was
but has been prepared vacated and the cause was remanded for further proceedings, since even
by the Reporter of though the State was present at the hearing, it remained silent, and the
Decisions for the trial court’s premature dismissal of the petition deprived the State of the
convenience of the time during which it was entitled to answer or otherwise plead.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 96-CR-10552; the
Review Hon. Michele M. Simmons, Judge, presiding.
Judgment Vacated in part and affirmed in part; cause remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, and Miles J. Keleher, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Defendant Doiakah Gray appeals from an order of the circuit court of Cook County
denying his petition for leave to file a successive pro se petition for relief under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) and dismissing his
petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-1401 (West 2008)). He contends that the circuit court erred in denying him
leave to file a successive postconviction petition where he presented newly discovered
evidence establishing the gist of a claim of ineffective assistance of trial counsel. He also
contends that the sua sponte dismissal of his section 2-1401 petition within 30 days of its
filing was erroneous.
¶2 A jury found defendant guilty of first degree murder in connection with the 1994
shooting death of Don Rietveld. He was then sentenced to an extended term of 80 years’
imprisonment after the trial court found that the murder was accompanied by exceptionally
brutal and heinous behavior indicative of wanton cruelty. This court affirmed that judgment
on direct appeal, where defendant challenged his sentence and contended that he was denied
a speedy trial and discriminated against in jury selection. People v. Gray, 326 Ill. App. 3d
906, 908 (2001).
¶3 On June 24, 2002, defendant, represented by counsel, filed an initial postconviction
petition, alleging a sentencing violation pursuant to Apprendi v. New Jersey, 530 U.S. 466
(2000), and ineffective assistance of trial and appellate counsel regarding the failure to file
a postsentencing motion or to preserve as error the sentencing court’s consideration of
various aggravating factors. The trial court granted the State’s motion to dismiss his petition,
and we affirmed that order of dismissal in People v. Gray, No. 1-04-1771 (Feb. 17, 2006)
(unpublished order under Supreme Court Rule 23).
¶4 Defendant then petitioned the United States District Court for a writ of habeas corpus,
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which was denied. That decision was affirmed by the United States Court of Appeals, which
noted that defendant had procedurally defaulted his ineffective assistance claims. Gray v.
Hardy, 598 F.3d 324, 333 (2010).
¶5 In December 2008, defendant filed the instant pro se motion for leave to file a successive
petition and successive pro se postconviction petition, alleging that the State failed to
disclose favorable evidence to him, in violation of Brady v. Maryland, 373 U.S. 83 (1963);
that the State knowingly presented false trial testimony; and ineffective assistance of trial
counsel based on newly discovered evidence. He maintained that these constitutional
violations could not have been presented in his original postconviction petition because they
were not known to him at that time.
¶6 In support of his allegations, defendant appended an undated, typewritten statement
bearing the signature and stamp of a notary and the signature of an individual named Milton
Marshall. Marshall is not named in the statement, and there is no indication in the statement
that the declarant made it under oath. The declarant maintains that he spoke to Troy
Montgomery, an eyewitness for the State, in September 1997 and that Montgomery told him
he did not know who killed the victim and the only reason he said that defendant did it “was
because they signed a statement saying they did it.” The declarant and Montgomery then
went to the office of defendant’s trial counsel and told him that defendant “did not shoot the
white guy and that he himself was not even there on that night.” Montgomery told counsel
that he was afraid that he could be charged with the murder if he had come forward, but
counsel did not take a statement from Montgomery, and shortly thereafter, Montgomery left
town because he did not want to go to court and “lie.”
¶7 In his pleadings, defendant asserted that his trial counsel failed to inform him of the
statement from Montgomery or use the statement to impeach Montgomery at trial. Defendant
alleges that this failure was not a strategic decision and that he was prejudiced because he
was not allowed to present a full defense.
¶8 On February 6, 2009, while his postconviction petition was pending, defendant filed a
section 2-1401 petition for relief from judgment. He alleged therein that his indictment and
conviction were void because he had not been indicted within 30 days of his arrest as
required by statute.
¶9 On February 20, 2009, the circuit court considered both petitions and denied defendant
leave to file the successive petition, finding that he failed to satisfy the cause and prejudice
test. The court also dismissed his section 2-1401 petition, finding that defendant did not
show that the judgment is void and should be vacated. The transcript shows that an assistant
State’s Attorney (ASA) was present for the proceedings, but did not speak, file a motion to
dismiss, or raise any affirmative defenses to defendant’s petition.
¶ 10 In this appeal, defendant challenges both rulings. He first claims that the trial court erred
in denying his request for leave to file a successive petition, where he had alleged that
recently discovered evidence showed that the State’s eyewitness recanted his statement to
trial counsel, who did not use it to impeach the witness’s trial testimony that defendant was
one of the shooters.
¶ 11 The Act contemplates the filing of only one postconviction petition (People v. Ortiz, 235
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Ill. 2d 319, 328 (2009)), and successive petitions are governed by section 122-1(f) of the Act
(725 ILCS 5/122-1(f) (West 2008)). Leave of court must be obtained to file a successive
petition, and this permission is expressly conditioned on defendant’s satisfaction of the cause
and prejudice test (People v. LaPointe, 227 Ill. 2d 39, 44 (2007)), or where fundamental
fairness so requires (725 ILCS 5/122-1(f) (West 2008); People v. Pitsonbarger, 205 Ill. 2d
444, 459 (2002)).
¶ 12 “Cause” has been defined as “any objective factor, external to the defense, which
impeded the petitioner’s ability to raise a specific claim at the initial postconviction
proceeding.” Pitsonbarger, 205 Ill. 2d at 462. Prejudice, in this context, is the denial of
consideration of an error that so infected the entire trial that the resulting conviction or
sentence violates due process. Pitsonbarger, 205 Ill. 2d at 464. Our review of the order
denying defendant’s motion for leave to file a successive postconviction petition is de novo.
People v. Simmons, 388 Ill. App. 3d 599, 606 (2009).
¶ 13 Defendant maintains that he demonstrated cause for not raising his ineffectiveness claim
in his initial petition through the “newly discovered” evidence provided by Milton Marshall
which he claims was not available and was unknown to him at the time. This “newly
discovered” evidence is contained in an attachment that defendant describes as an “affidavit.”
We observe that an affidavit is a declaration, on oath, in writing, and sworn to before some
person who has authority under the law to administer oaths. People v. Smith, 22 Ill. App. 3d
377, 380 (1974).
¶ 14 In this case, the “affidavit” offered by defendant consists of a typewritten paragraph
purportedly signed by “Milton Marshall” and witnessed by a notary. The document bears no
date, attestations, identifiers in the statement, or signature blocks to indicate that Marshall
is the deponent or a person taking an oath. Although it bears the purported signature and
stamp of a notary, there is also no indication that the notary verified Marshall’s identity or
that his statement was verified upon oath or affirmation (5 ILCS 312/6-102(b) (West 2008)),
leading us to question its legal effectiveness (see People v. Niezgoda, 337 Ill. App. 3d 593,
597 (2003) (setting forth requirements for an affidavit filed under the Act)).
¶ 15 Moreover, nothing in this document establishes the identity of Milton Marshall, his
relationship to defendant or Montgomery, or how it is, or when, defendant learned of the
information the declarant purportedly sets forth, and why he could not have presented this
information earlier. It is, thus, clear that defendant failed to establish the cause prong of the
test to permit the filing of a successive postconviction petition.
¶ 16 Defendant is similarly unable to establish prejudice. The “affidavit” relied upon merely
states that Montgomery told the declarant that he did not see the shooting and that he and
Montgomery told this to trial counsel. In his pleadings, defendant alleged prejudice resulting
from trial counsel’s failure to use this statement to impeach Montgomery at trial. The trial
record shows that Montgomery testified to seeing defendant shoot the victim at close range
at least three times in the head. There is no suggestion in the “affidavit” or the pleadings to
indicate when Montgomery supposedly provided this contradictory information to trial
counsel or his availability to provide this new version of events. People v. Brown, 371 Ill.
App. 3d 972, 982 (2007). Additionally, the content of the “affidavit” is no more than hearsay,
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which, as a general rule, is insufficient to support a claim. People v. Morales, 339 Ill. App.
3d 554, 565 (2003). We conclude, therefore, that defendant cannot establish the prejudice
prong and that his motion for leave to file a successive petition was properly denied by the
circuit court.
¶ 17 Defendant next contends that the sua sponte dismissal of his petition for relief from
judgment under section 2-1401 of the Code was erroneous because the court entered the
dismissal before the expiration of the 30-day time period during which the State may move
to dismiss or otherwise plead. Our review is de novo. People v. Vincent, 226 Ill. 2d 1, 18
(2007).
¶ 18 Section 2-1401 of the Code provides that “[r]elief from final orders and judgments, after
30 days from the entry thereof, may be had upon petition as provided in this Section.” 735
ILCS 5/2-1401(a) (West 2008). Proceedings under this section are subject to the usual rules
of civil procedure and a petition filed under this section is essentially a complaint inviting
responsive pleadings. Vincent, 226 Ill. 2d at 8. The petition is subject to dismissal for want
of legal or factual sufficiency and may be challenged by a motion to dismiss. Vincent, 226
Ill. 2d at 8. If the respondent does not answer the petition, this constitutes an admission of
all well-pleaded facts and the trial court may decide the case on the pleadings, affidavits,
exhibits, and supporting material before it, including the record from prior proceedings.
Vincent, 226 Ill. 2d at 9.
¶ 19 Section 2-1401 further provides that “[a]ll parties to the petition shall be notified as
provided by rule.” 735 ILCS 2-1401(b) (West 2008). Illinois Supreme Court Rules 105 (eff.
Jan. 1, 1989) and 106 (eff. Aug. 1, 1985) require that such notice “shall state *** that a
judgment by default may be taken against [the other party] for the *** relief unless he files
an answer or otherwise files an appearance in the office of the clerk of court within 30 days
after service” of the notice.
¶ 20 Here, defendant filed his section 2-1401 petition on February 6, 2010, and the court sua
sponte dismissed it at a proceeding on February 20, 2010. The parties acknowledge, and the
record indicates, that the State was present for this proceeding, but did not speak or file any
motions, objections, or affirmative defenses related to defendant’s petition at or prior to this
proceeding.
¶ 21 In People v. Laugharn, 233 Ill. 2d 318, 323 (2009), the supreme court held that the circuit
court’s dismissal of a section 2-1401 petition before the expiration of the 30-day period
“short-circuited the proceedings and deprived the State of the time it was entitled to answer
or otherwise plead.” A division of this court recently applied that holding in People v.
Clemons, 2011 IL App (1st) 102329, ¶ 17, finding, under circumstances indistinguishable
from the case at bar, that the State’s silence did not render the section 2-1401 petition ripe
for adjudication and vacated the order of dismissal.
¶ 22 Here, as in Clemons, the State was present at the hearing, but remained silent. In light of
this authority, we likewise conclude that the State was deprived of the time during which it
was entitled to answer or otherwise plead. We, therefore, vacate the trial court’s premature
denial of defendant’s section 2-1401 petition and remand for further proceedings. In so
holding, we are not accepting Laugharn, where there was no indication that the State was
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present, as a bright-line rule for vacating section 2-1401 dismissals entered sua sponte prior
to the statutory 30-day period. We believe that Laugharn and Clemons would not apply
where the State, present at the hearing, expressly represents to the court its waiver of the 30-
day time period and consents to a sua sponte decision on the merits.
¶ 23 Accordingly, we vacate the order of the circuit court of Cook County dismissing
defendant’s section 2-1401 petition and affirm the order in all other respects.
¶ 24 Vacated in part and affirmed in part; cause remanded.
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