People v. Williams

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Williams, 2012 IL App (1st) 111145

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

District & No. First District, Second Division
Docket Nos. 1-11-1145, 1-11-2251 cons.

Opinion filed November 27, 2012
Opinion withdrawn December 11, 2012
Modified opinion filed December 12, 2012

Held The dismissal of defendant’s third and fourth successive postconviction
(Note: This syllabus petitions was reversed and the cause was remanded for a determination
constitutes no part of of whether defendant was entitled to a new hearing pursuant to his claim
the opinion of the court of actual innocence in his third petition, and if a new hearing is denied,
but has been prepared the trial court is directed to hold a new sentencing hearing pursuant to the
by the Reporter of fourth petition, which alleged that the mandatory life sentence without
Decisions for the parole imposed for an offense committed when he was a juvenile violated
convenience of the the eighth amendment.
reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 94-CR-4431-04; the
Review Hon. Angela Munari Petrone, Judge, presiding.

Judgment Reversed and cause remanded.
Counsel on Michael L. Sklar, P.C. (Michael L. Sklar, of counsel), and Ungaretti &
Appeal Harris LLP (John Ruskusky, Timothy E. Horton, Maura M. McIntyre, and
Brittany A. Smith, of counsel), both of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, William L. Tofenetti, and Mary P. Needham, Assistant
State’s Attorneys, of counsel), for the People.

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

OPINION

¶1 Here we are called upon to determine whether the denial of defendant Carl Williams’
petition for an evidentiary hearing to show actual innocence should be reversed. We are also
required to determine whether the United States Supreme Court’s holding in Miller v.
Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), prohibiting mandatory life-without-parole
sentences for juveniles should be retroactively applied. We answer yes to both issues.
¶2 Defendant appeals the dismissal of two of his successive petitions (third and fourth
petitions) for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2010)). In his third petition, which the circuit court reviewed as a second-stage
proceeding under the Act, defendant made a claim of actual innocence, and claimed that the
State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
and that he was arrested without probable cause. The circuit court granted the State’s motion
to dismiss his third petition. In his motion for leave to file his fourth petition, defendant
alleged that his mandatory life sentence is unconstitutional. The circuit court denied him
leave to file his fourth petition. At issue is whether defendant has made a substantial showing
that his constitutional rights have been violated such that he is entitled to an evidentiary
hearing on his claims in his third petition; and whether defendant has satisfied the cause-and-
prejudice requirements codified under section 122-1(f) of the Act such that the circuit court
erred in denying his motion for leave to file his fourth petition challenging his sentence. 725
ILCS 5/122-1(f) (West 2010).

¶3 JURISDICTION
¶4 On March 15, 2011, the circuit court granted the State’s motion to dismiss defendant’s
third petition. Defendant timely appealed on April 12, 2011. On that same day, defendant

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 sought leave from the circuit court to file his fourth petition, which sought to modify his
sentence. On June 28, 2011, the circuit court denied defendant leave to file his fourth
petition. Defendant timely appealed on July 28, 2011. Accordingly, this court has jurisdiction
pursuant to Illinois Supreme Court Rules 602, 606(a), and 651. Ill. S. Ct. R. 602 (eff. May
30, 2008); R. 606 (eff. Mar. 20, 2009); R. 651 (eff. Apr. 26, 2012). On August 30, 2011, this
court granted defendant’s motion to consolidate the appeals under case number 1-11-1145.

¶5 BACKGROUND
¶6 All pertinent factual background concerning defendant’s trial and initial appeal is well
stated in this court’s 1999 opinion. People v. Williams, 305 Ill. App. 3d 517 (1999). Pertinent
factual background concerning defendant’s first three postconviction petitions is well stated
in this court’s 2009 opinion. People v. Williams, 392 Ill. App. 3d 359 (2009). Below, we will
discuss relevant facts from defendant’s third petition and from this court’s 2009 opinion.

¶7 Defendant’s Third Petition
¶8 In January of 2008, defendant, represented by counsel, filed a motion for leave to file his
third petition. In his third petition, based on new affidavits and facts he obtained, he argued
he should be granted leave to file his petition in order to prevent a fundamental miscarriage
of justice based on his actual innocence. Specifically, he argued that the newly discovered
evidence, i.e., the descriptions of the alleged fifth perpetrator provided by his codefendants
in their affidavits, combined with his ex-girlfriend Tameka Johnson’s affidavit which
provided an alibi for defendant, supported his claim of actual innocence. He also argued that
the State withheld exculpatory evidence from him in violation of his right to due process
under Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing statements favorable to him
from three out of his four codefendants,1 and that there was insufficient factual justification
to support probable cause for his warrantless arrest. Defendant alleged he was not able to
discover the new evidence sooner because he was hampered by the difficulties of
communicating between prisons, by his codefendants’ and his ex-girlfriend’s refusals to help
him, and because the witness who told the police about defendant’s whereabouts, Clinton
Taylor, gave the police an alias, i.e., Larry McGee. To support his petition, defendant
attached the affidavits of his codefendants Zarice Johnson, Stanley Hamelin, and Scott
Chambers; his attorney at trial, Stephen Richards; and his ex-girlfriend Tameka Johnson; his
own affidavit; an identity sheet from the Illinois Department of Corrections (IDOC); an
affidavit showing his attempts to secure the newly discovered evidence; and the unpublished
order denying his second petition.2
¶9 Codefendant Johnson attested that there were four other perpetrators besides himself

1
According to defendant’s third petition, his fourth codefendant, Anthony Brown, refused
to provide defendant assistance because he is pursuing his own actual innocence claim.
2
People v. Williams, No. 1-04-2153 (2006) (unpublished order under Supreme Court Rule
23).

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 involved in the crime for which he was convicted; Hamelin, Brown, Chambers, and a person
that he did not know (hereinafter, the fifth person). At the time of the incident, he sat next
to the fifth person in the backseat of Brown’s car for approximately an hour or two. He
described the fifth person’s appearance as “very dark skinned, wore a full untrimmed beard,
was of slim athletic build and over six feet in height.” He remembered the fifth perpetrator’s
height because “he had much difficulty getting his large body out of the back seat of the ***
car” and that “[o]nce out of the car his frame was much taller than I would have stood and
I’m 5’9”.” Once Johnson was arrested, he was separated from his codefendants and “left in
a dark room for what seemed like several hours.” He was shown photographs by the police
of the other perpetrator. He identified Hamelin, Brown, and Chambers, but was unable to
identify the photograph of the alleged fifth perpetrator. Johnson attested, “I repeatedly told
the interrogating detectives that the person in the remaining photo was not the tall, dark
skinned, bearded man that sat next to me in Brown’s car,” and that he did not know the
person in the photograph. The police “insisted” he was wrong and told him that Hamelin and
Chambers had identified the fifth perpetrator as the person shown in the photograph. Johnson
also attested that the police hit and slapped him, and at one point hit him with a telephone
book. Johnson agreed to sign a confession implicating the alleged fifth perpetrator to end the
physical abuse from the police and to protect himself. He insisted that the police did not have
the correct fifth perpetrator, but the police and assistant State’s Attorney (ASA) told him “it
didn’t matter because the others had identified him.” Johnson also attested that he did not
know who “Larry McGee” was, and he was not in the car with him when he was arrested.
¶ 10 Johnson acknowledged that he did receive communications from defendant asking for
help, but did not respond “because I didn’t want to open up this very painful chapter in my
life and I was very bitter about what happened to me.” He also doubted that he would be able
to help or that defendant’s efforts would be successful. He did not agree to help defendant
until he met defendant’s brother in prison “[s]ometime in 2001 or 2002.” Defendant’s brother
was released, but he did not hear from defendant “for another year or so.” He “didn’t respond
for the same reasons as before.” A friend of defendant’s eventually contacted him in “early
2006.” Johnson informed her that he would not help defendant unless a “professional person”
became involved.
¶ 11 Hamelin, in his affidavit, attested that he does not know defendant. The first time he saw
defendant was when the police showed him a photograph. He attested that he told the police
that he did not know the person in the photograph shown to him. He further stated that the
police coerced him into identifying defendant as the fifth perpetrator with threats and
physical beatings. Hamelin also attested that the police told him that his accomplices had also
identified defendant as the fifth perpetrator. He only agreed to implicate defendant to stop
the police from physically abusing him further. Hamelin attested that he described the fifth
perpetrator to the police as “a very light skinned man with very long hair who was tall around
6’1-6’3 in height.” However, he was told by the police “to forget that and agree that it was
[defendant].”
¶ 12 Chambers, in his affidavit, attested that he also did not know the fifth perpetrator. He
only knew that the fifth perpetrator was a friend of Brown’s, “who was called ‘Carl’ by
Brown.” Chambers attested that in the statement he gave to Detective Winstead, he

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 “described this ‘Carl’ from my memory as about 6 foot 1 to 6 foot 3 in height, light skinned
and with very long hair reaching down to his shoulders.” Chambers attested that the police
provided him with a photograph of the person whom they thought was the fifth perpetrator.
Later he viewed the alleged fifth perpetrator in person. Chambers told the police that the
person shown to him in the photograph and in person was not the “ ‘Carl’ ” that he described
to them. The police then “tried to convince” Chambers that the person in the photograph was
the fifth perpetrator. Chambers only agreed to identify defendant as the “ ‘Carl’ ” he
described as the fifth perpetrator because Detective Turner had told him that his codefendants
had already identified defendant and he hoped for special treatment for cooperating. He also
attested that he was instructed by Detective Turner not to describe defendant physically when
confessing to the ASA. Chambers attested that he had “spent time together” with defendant
at Cook County jail while they awaited trial. In his affidavit, he stated “I told [defendant] at
that time I felt very badly about falsely identifying him to Detective Turner. I told him that
I would try to help him later.” He acknowledged that defendant contacted him while he was
in prison but attested that “[b]ecause I was moving around so much that I wasn’t thinking
much about [defendant] and his problems and I did not respond” to defendant’s letters.
¶ 13 Stephen Richards, defendant’s attorney at trial, attested that he was never advised at the
time of trial that defendant’s codefendants stated to the police that defendant was not
involved in the crimes or that their descriptions of the fifth perpetrator were at odds with
defendant’s appearance. According to Richards, had he known this information at the time
of trial, it “is reasonably likely to have changed the outcome of the trial.” Richards
acknowledged that defendant’s codefendants would most likely have asserted their fifth
amendment rights and would not have been available as witnesses, but had he known about
their statements to the police, he would have introduced them at trial. Had Taylor/McGee’s
identity been known to him, he would have obtained a statement from him and “together
with the withheld new evidence from Chambers, Hamelin, and Johnson, [would] have argued
more forcibly that [defendant’s] warrantless arrest was unlawful.” He would have also called
Taylor/McGee to testify to show that the police had arrested the wrong person. The police
provided him with no evidence that could have helped him locate the informant.
¶ 14 Tameka Johnson, defendant’s former girlfriend, attested that she was with defendant
caring for defendant’s mother from the afternoon of January 11, 1994, until the afternoon of
January 13, 1994. She stated that “[e]arly in the evening of Thursday, January 13th, in my
presence, [defendant] called Erica Wells, another one of [defendant’s] friends, at her
mother’s home. *** [Defendant] drove me back to my mother’s house after which I assume
he visited Erica Wells.” She did not disclose this information earlier because her mother
insisted she not do it for fear that she would be implicated in the crime. Although defendant
had contacted her over the years to aid him, she refused because of her age and her mother’s
instructions. She also lost contact with defendant because she did not have a telephone or a
“means of transportation.” Defendant continued to contact her for aid but she refused because
she was busy raising her children, and she feared being “held accountable for not disclosing
important evidence.” She was also in debt and unemployed and spent eight months in
custody and “didn’t want to have anything more to do with the police and the courts.”
¶ 15 Clinton Taylor, a/k/a Larry McGee, attested that he was arrested with Brown, Johnson,

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 and another person. He told the police his name was Larry McGee. He was unaware of the
crime in question. Taylor saw Brown being physically beaten by the police. He observed
Johnson in a “disheveled condition.” The police asked him where Carl could be found, but
did not tell him why he had been arrested or why they were looking for Carl. The police
threatened him and told him that if he did not lead them to Carl, he would be implicated or
charged for the crimes committed by Brown and Johnson. They told him they would let him
go if he led them to Carl. The only Carl he knew in the neighborhood was defendant. He
attested that he led the police to defendant “to avoid being caught up in what was going on
and to avoid the beating that I saw Brown receive.” He told the police he had no idea whether
or not defendant had any involvement in the crime. The police testimony confirmed this.
Shortly after defendant’s arrest, he moved away from the neighborhood. A few months later,
he moved to Iowa and used his given name, Clinton Taylor.
¶ 16 Defendant attached his IDOC record, a copy of his arrest mug shot, and his own affidavit.
His IDOC record shows that as of December 26, 2006, he weighed 174 pounds and was 5
feet, 9 inches tall. Defendant attested that his codefendants “are the principle sources of
evidence to exonerate me” and that “the only time I saw my co-defendants were brief passing
glances in the police station at the time of our arrest in January, 1994.” He did not know his
codefendants. He attested that he had made continuous efforts since his conviction to
establish his innocence. He stated, “my efforts to contact [codefendants] were repeatedly
frustrated by the prison system ***, my inability to obtain professional help despite great
efforts, and by the refusal and reluctance of my co-defendants to respond to my efforts once
I made contact with them.” Defendant then described in detail his numerous efforts to contact
Chambers, Hamelin, and Johnson. He stated that when he eventually prepared an affidavit
for Chambers, Chambers refused because of “his concern about his own pending post-
conviction petition which he did not want to put in jeopardy.” Defendant attested that he had
difficulty locating Johnson because Johnson had been transferred amongst several prisons.
He attached a document that logged his numerous attempts to secure professional
representation and his attempts to contact his codefendants. He attested that before giving
his confession, he was physically abused by Detective Turner. He was also subject to verbal
abuse. He only agreed to sign his statement to the police because he feared for his safety.

¶ 17 2009 Opinion
¶ 18 This court, in defendant’s 2009 appeal from the circuit court’s denial of his petition for
leave to file his third petition, held that defendant made a claim of actual innocence based
on newly discovered evidence that was noncumulative and material and could potentially
change the result upon retrial. Williams, 392 Ill. App. 3d at 369-70. Specifically, the
affidavits of Zarice Johnson and Taylor/McGee were new, in that “both *** were involved
in the crimes and were not heard from before.” Id. at 369. In regard to materiality, this court
held “the attestations of Johnson and Taylor[/McGee] that defendant was not the fifth
participant in the crimes and that they identified defendant as the fifth offender under
pressure from police are clearly material and have the potential to change the result on
retrial.” Id. This court held that Johnson’s and Taylor’s affidavits were not cumulative but,
rather, “lend credence to Chambers’ and Hamelin’s similar affidavits stating that they were

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 pressured to wrongly identify defendant.” Id. at 369-70. This court rejected the State’s
argument that res judicata and collateral estoppel barred defendant’s allegations. Id. at 368.
In conclusion, this court held that “given the pro se status of defendant in his initial two
postconviction petitions, the gravity of the offenses in this case and the affidavits attesting
to defendant’s actual innocence, fundamental fairness requires that defendant’s
postconviction claims receive full consideration on their merits.” Id. at 371. Accordingly, the
matter was remanded for second-stage proceedings under sections 122-4 through 122-6 of
the Post-Conviction Hearing Act (725 ILCS 5/122-4 to 122-6 (West 2006)). Id.

¶ 19 Remand Proceedings on Defendant’s Third Petition
¶ 20 On remand, defendant sought and the circuit court allowed him to supplement the
affidavits of Zarice Johnson, Stanley Hamelin, Clinton Taylor, Stephen Richards, and
himself with statements regarding their willingness to testify in support of defendant’s
petition and waive their rights against self-incrimination. Identical affidavits were then
provided from Zarice Johnson, Stanley Hamelin, Clinton Taylor, Stephen Richards, and
defendant.
¶ 21 On June 29, 2010, the State filed a motion to dismiss defendant’s third petition in which
it argued that defendant failed to meet the requirements of the cause-and-prejudice test by
presenting evidence that could have been presented earlier; that defendant’s actual innocence
claim is not based upon new evidence; that defendant failed to meet the requirements of
Brady; that defendant’s claim of actual innocence is not freestanding; and that defendant’s
attempt to relitigate his motion to suppress is barred by waiver and res judicata. Defendant
responded that the State’ s motion ignored the rulings of this court and that the State’s
motion failed to deal with the question before the court, i.e., whether defendant has shown
“one or more substantial claims of constitutional infirmity in his arrest, interrogation, or trial
that entitle him to a third stage hearing on those claims.” Defendant asserted that he did show
that his constitutional claims were substantial and, thus, he was entitled to proceed to a third-
stage evidentiary hearing on his petition.
¶ 22 After briefing and argument, the circuit court granted the State’s motion to dismiss
defendant’s third petition. The circuit court found that the affidavits of Stanley Hamelin,
Zarice Johnson, and Scott Chambers were not from new witnesses that had new information.
Rather, the affiants were known to defendant at the time of his trial and awaited trial in the
same Cook County jail. The circuit court noted that Chambers and Hamelin also gave
affidavits in defendant’s previous postconviction petition. The circuit court stressed that none
of defendant’s codefendants in their respective affidavits “identify the availability of the
alleged evidence because in none of them does a co-defendant affirmatively aver that he
would have waived his right against self-incrimination and testified as to the contents of the
affidavits at [defendant’s] trial.” The circuit court found that Taylor/McGee’s affidavit could
have been discovered sooner through due diligence as he was known to and was a friend of
defendant. The court stated that “[i]t appears that [defendant] made a strategic decision not
to call McGee at trial so petitioner could argue that McGee, and not [defendant], was the fifth
offender.”

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¶ 23 In regard to the issue of the police having probable cause to arrest defendant, the court
found the issue had previously been ruled upon and, thus, was waived under the doctrine of
res judicata. The circuit court found that the information in Tameka Johnson’s affidavit
could also have been known to defendant, as she was his former girlfriend and “[h]er alibi
testimony would have been known to [defendant] at the time of trial.” As to defendant’s
Brady claim, that the State intentionally withheld evidence of misidentification of him by
codefendant Scott Chambers, the circuit court found this information not to be newly
discovered because Scott Chambers, in his affidavit, told defendant while they were both
awaiting trial that he falsely identified him to the police.
¶ 24 The circuit court also noted that “Zarice Johnson, Scott Chamber, and Stanley Hamelin
contradict themselves regarding purported descriptions of the fifth offender given to police.
Zarice Johnson described him as very dark skinned with a full, untrimmed beard, Stanley
Hamelin described him as very light skinned with very long hair, and Scott Chambers
described him as light skinned with very long hair reaching down to his shoulders.” The
court found that “[t]heir contradictory affidavits give no credence to the notion that their
testimony would be of such conclusive character as to probably change the results upon
retrial.”
¶ 25 The circuit court addressed defendant’s allegations of police abuse toward him by finding
them waived because they were already made in his motion to suppress statements. The court
then explained defendant’s confession, which it found “contained details only an attacker
would know.” The court concluded that it “did not find that the affidavits contain evidence
that is material, noncumulative, and could not have been discovered sooner through due
diligence. The evidence is not newly discovered, nor of such conclusive character that it
would probably change the result on retrial. There has been no showing of a violation of
petitioner’s constitutional rights.” Defendant timely appealed on April 12, 2011.

¶ 26 Defendant’s Fourth Petition
¶ 27 Also on April 12, 2011, defendant filed a motion for leave to file another successive
postconviction petition (fourth petition). In his fourth petition, defendant argued that based
on the Supreme Court’s decision in Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011
(2010), “a sentence of life imprisonment without parole for a non-capital crime committed
by a minor was a ‘cruel and unusual punishment’ and violated the 8th amendment to the
Constitution.” Defendant cited factors to consider in favor of reducing his sentence,
including that he was 17 years old at the time of the offenses, he was convicted on a theory
of accountability, and that “if involved at all, [he was not] present when the double murders
which invoked the mandatory life sentence were committed later in the crime spree.”
¶ 28 On June 28, 2011, the circuit court denied defendant leave to file his fourth petition and
assessed fees and costs for filing a frivolous pleading. In its written order, the circuit court
found Graham distinguishable and that defendant did not meet the cause-and-prejudice test.
The court also assessed defendant fees and costs, finding defendant’s claim was “frivolous
and patently without merit.”
¶ 29 Defendant timely appealed on July 28, 2011. On August 30, 2011, this court granted

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 defendant’s motion to consolidate both of defendant’s appeals under case number 1-11-1145.
¶ 30 After the parties filed their respective briefs, the Supreme Court issued its opinion in
Miller v. Alabama, in which it held a “mandatory life [sentence] without parole for those
under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments.’ ” Miller v. Alabama, 567 U.S. at ___, 132 S. Ct. at
2460. Subsequently, defendant filed a motion for leave to submit supplemental authority,
arguing that Miller has a direct impact on his fourth petition currently before this court.
Defendant pointed out that in his fourth petition, he, like the majority opinion in Miller,
principally relied upon the Supreme Court’s prior holdings in Roper v. Simmons, 543 U.S.
551 (2005), and Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011, in making his argument
that juvenile offenders are less culpable and, thus, less deserving of the harshest punishment
than adult offenders. We granted defendant’s motion, but allowed the State to file a response.
¶ 31 In response, the State argued that Miller “does not categorically prohibit life sentences
for juveniles, but rather requires a particular procedure before it may be imposed.”
(Emphasis in original.) The State argued the circuit court, when sentencing defendant, used
the proper procedure in this case by considering both evidence in aggravation and mitigation,
defendant’s age, and his allocation before exercising its discretion in sentencing defendant
to life in prison without parole. The State argued further the rule expounded in Miller is
procedural and not applicable to final convictions such as this one. Accordingly, the State
argued that Miller cannot be applied retroactively.
¶ 32 We allowed defendant to file a reply to the State’s response. In reply, defendant pointed
out that he was 17 years old at the time the crimes occurred, and he was sentenced to life in
prison without the possibility of parole. He alleged that the statute he was sentenced under
provided for a mandatory sentence of natural life and therefore violated both the United
States and Illinois Constitutions. Accordingly, he maintains his sentence was void ab initio
and can be attacked at any time.

¶ 33 ANALYSIS
¶ 34 Before this court, defendant argues that the circuit court erred in granting the State’s
motion to dismiss his third petition because he has made a substantial showing of
constitutional violations, such that he is entitled to an evidentiary hearing. In the alternative,
he argues that the circuit court erred in denying his petition for leave to file a fourth petition
because the allegations in his fourth petition contain sufficient allegations to satisfy the
cause-and-prejudice requirements of section 122-1(f) of the Act. Therefore, he requests a
new sentencing hearing.
¶ 35 The Act allows criminal defendants to challenge their conviction or sentence based on
substantial deprivations of their constitutional rights. People v. Peeples, 205 Ill. 2d 480, 509
(2002). The filing of only one postconviction petition is contemplated under the Act. People
v. Morgan, 212 Ill. 2d 148, 153 (2004). A petition under the Act is a collateral proceeding,
not an appeal. People v. Williams, 209 Ill. 2d 227, 232 (2004). Therefore, res judicata bars
issues previously decided on appeal. Id. at 233. Similarly, issues not raised, even though they
could have been raised on appeal, are waived. Id. However, a successive petition will be

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 considered on its merits, and the statutory bar to doing so will be relaxed, in the interest of
fundamental fairness. Id. In order to have a successive petition considered, a petitioner must
satisfy the cause-and-prejudice test. People v. Ortiz, 235 Ill. 2d 319, 329 (2009). The cause-
and-prejudice test is codified by section 122-1(f) of the Act, which states:
“(f) Only one petition may be filed by a petitioner *** without leave of the court.
Leave of court may be granted only if a petitioner demonstrates cause for his or her
failure to bring the claim in his or her initial post-conviction proceedings and prejudice
results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause
by identifying an objective factor that impeded his or her ability to raise a specific claim
during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice
by demonstrating that the claim not raised during his or her initial post-conviction
proceedings so infected the trial that the resulting conviction or sentence violated due
process.” 725 ILCS 5/122-1(f) (West 2010).
¶ 36 However, a petitioner is excused from the cause-and-prejudice test where petitioner can
set forth a claim of actual innocence. Ortiz, 235 Ill. 2d at 330. Actual innocence claims based
on newly discovered evidence are protected by the due process clause of the Illinois
Constitution. Id. at 333. Newly discovered evidence is “evidence that was not available at
defendant’s original trial and that the defendant could not have discovered sooner through
diligence.” Morgan, 212 Ill. 2d at 154. The newly discovered evidence has to also be
noncumulative and material. Id. “Evidence is considered cumulative when it adds nothing
to what was already before the jury.” Ortiz, 235 Ill. 2d at 335. Further, “it must be of such
conclusive character that it would probably change the result on retrial.” Morgan, 212 Ill. 2d
at 154.
¶ 37 A petitioner under the Act is not entitled to an evidentiary hearing. Peeples, 205 Ill. 2d
at 510. Rather, “[a]n evidentiary hearing is warranted on a post-conviction claim only where
the allegations in the post-conviction petition, supported where appropriate by the trial record
or accompanying affidavits, make a substantial showing that the constitutional rights of the
defendant have been violated.” Id. “At the motion to dismiss stage in post-conviction
proceedings, all well-pleaded facts that are not positively rebutted by the trial record are to
be taken as true.” People v. Childress, 191 Ill. 2d 168, 174 (2000); see also People v.
Coleman, 183 Ill. 2d 366, 382 (1998) (“Therefore, the dismissal of a post-conviction petition
is warranted only when the petition’s allegations of fact–liberally construed in favor of the
petitioner and in light of the original trial record–fail to make a substantial showing of
imprisonment in violation of the state or federal constitution.”). Our review of the circuit
court’s dismissal of a petition decided without an evidentiary hearing is de novo. Childress,
191 Ill. 2d at 174.

¶ 38 Defendant’s Third Petition
¶ 39 Initially, we reiterate that at this stage in the proceedings, defendant’s allegations that are
not rebutted by the trial record must be liberally construed in his favor and taken as true.
Childress, 191 Ill. 2d at 174; Coleman, 183 Ill. 2d at 382. Our review of the record shows
that defendant’s newly discovered evidence and the allegations contained therein, i.e.,

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 affidavits from his codefendants, his attorney, and his ex-girlfriend, were not addressed at
trial. Accordingly, they must be taken as true at this stage in the proceedings because they
are not rebutted by the trial record. Childress, 191 Ill. 2d at 174. With these principles in
mind, we must determine whether defendant has made a substantial showing that his
constitutional rights have been violated.
¶ 40 In order for defendant to be entitled to an evidentiary hearing on his claims, he must
show that his evidence is newly discovered, material, and noncumulative, and that it is “of
such conclusive character that it would probably change the result on retrial.” Morgan, 212
Ill. 2d at 154. Defendant has shown that his evidence is newly discovered because it was not
available at his trial and could not have been discovered earlier through diligence. Morgan,
212 Ill. 2d at 154 (defining newly discovered as “evidence that was not available at
defendant’s original trial and that the defendant could not have discovered *** through
diligence”). Defendant attested that his codefendants and Tameka Johnson were previously
uncooperative. His codefendants and Tameka Johnson stated in their affidavits that they were
uncooperative with defendant. He attested to the various difficulties of communicating while
in the prison system and attached documentation of his numerous attempts to discover the
evidence. Clinton Taylor could not even be located until well after trial. Defendant’s attorney
also attested that the evidence in question was not known to him at the time of trial. Taking
these allegations as true, defendant has shown that the evidence his allegations are based on
is newly discovered in that it was not available at the time of his trial nor could he have
discovered it through diligence.
¶ 41 Additionally, defendant’s allegations are material and noncumulative and probably would
have changed the result of his trial. His codefendants attested that they each told the police
that the police had the wrong man, that they did not know defendant, and that they gave
descriptions of the alleged fifth perpetrator that did not match defendant. Taylor/McGee
attested to the circumstances which led the police to defendant. We hold that defendant’s
allegations are clearly material because they weaken or contradict the State’s case against
him. This evidence is also noncumulative because it is new and was not previously before
the trier of fact. See Ortiz, 235 Ill. 2d at 335 (“Evidence is considered cumulative when it
adds nothing to what was already before the jury.”). The codefendants’ telling the police they
had the wrong man, that they did not know defendant, and that the descriptions they gave did
not match defendant was never before the jury and obviously not cumulative. We further
hold that this evidence would also probably have changed the result of defendant’s trial. The
only evidence linking defendant to the crime was his confession. No one identified defendant
as being involved. Police testified that Taylor/McGee told them that he knew defendant’s
name was Carl but he did not know whether defendant was involved in any way in the
crimes. Pursuant to a plea agreement, codefendant Johnson testified for the State at
codefendant Brown’s trial. Johnson testified consistently with his own confession, explaining
what role each of the codefendants played in the vehicular hijacking and sexual assault which
took place in his presence prior to the double murder. At no time did Johnson identify
defendant as being the “Carl” who participated in the crime. Further, the State did not call
Johnson at defendant’s trial, which took place six months after Johnson testified against
Brown. Defendant’s attorney supplied an affidavit in which he explains how he would have

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 tried the case had he known about the newly discovered evidence. Namely, he would have
introduced the statements of defendant’s codefendants. He would have argued that
defendant’s warrantless arrest was illegal. He would have called Taylor/McGee to testify that
the police had the wrong person. Taking these allegations as true, defendant’s evidence is
new, material, and noncumulative, and probably would have changed the result of
defendant’s trial. Therefore, we hold that defendant has made a substantial showing of a
freestanding claim of actual innocence such that he is entitled to an evidentiary hearing on
his allegations in his third petition. Accordingly, we reverse the judgment of the circuit court
and remand the matter for an evidentiary hearing on defendant’s third petition.

¶ 42 Defendant’s Fourth Petition
¶ 43 Defendant, in his fourth petition, argues that his mandatory life sentence without parole
violates the eighth amendment to the Constitution of the United States and section 11 of
article I of the Illinois Constitution. He argues that his sentence is void ab initio and can be
attacked at any time. Additionally, he maintains that he has satisfied the cause-and-prejudice
test under section 122-1(f) of the Act because Miller was unknown and unknowable to him
as it was only recently issued, and that without that argument, he was prejudiced by being
denied his right to due process in his sentencing hearing. In response, the State argues that
the circuit court followed the proper procedure and exercised its discretion when it sentenced
defendant, that the rule expounded in Miller is procedural and not applicable in this case, and
that the holding of Miller cannot be applied retroactively.
¶ 44 The two juvenile defendants in Miller were sentenced to life in prison without the
possibility of parole for their respective murder convictions. Miller, 567 U.S. at ___, 132 S.
Ct. at 2460. The Supreme Court pointed out that “[i]n neither case did the sentencing
authority have any discretion to impose a different punishment. State law mandated that each
juvenile die in prison even if a judge or jury would have thought that his youth and its
attendant characteristics, along with the nature of his crime, made a lesser sentence (for
example, life with the possibility of parole) more appropriate.” (Emphasis in original.) Id.
The Court held “that mandatory life without parole for those under the age of 18 at the time
of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’ ” Id. The Court noted that its prior decisions of Graham v. Florida, 560 U.S.
___, 130 S. Ct. 2011 (2010), and Roper v. Simmons, 543 U.S. 551 (2005), “establish that
children are constitutionally different from adults for purposes of sentencing” due to their
“diminished culpability and greater prospects for reform.” Miller, 567 U.S. at ___, 132 S. Ct.
at 2464.
¶ 45 In reaching its decision, the Court addressed its concerns with proportionate punishment
under the eighth amendment. It stated:
“The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees
individuals the right not to be subjected to excessive sanctions.’ [Citation.] That right,
we have explained, ‘flows from the basic “precept of justice that punishment for crime
should be graduated and proportioned” ’ to both the offender and the offense. [Citation.]
As we noted the last time we considered life-without-parole sentences imposed on

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 juveniles, ‘[t]he concept of proportionality is central to the Eighth Amendment.’
[Citation.] And we view that concept less through a historical prism than according to
‘ “the evolving standards of decency that mark the progress of a maturing society.” ’
[Citation.]” Id. at ___, 132 S. Ct. at 2463.
The Court did not ban the sentencing of juveniles to life in prison without parole; rather, it
held the mandatory sentencing of juveniles to life without parole violates the eighth
amendment and required sentencing courts “to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at ___, 132 S. Ct. at 2469. The Court concluded:
“Graham, Roper, and our individualized sentencing decisions make clear that a judge
or jury must have the opportunity to consider mitigating circumstances before imposing
the harshest possible penalty for juveniles. By requiring that all children convicted of
homicide receive lifetime incarceration without the possibility of parole, regardless of
their age and age-related characteristics and the nature of their crimes, the mandatory
sentencing schemes before us violate this principle of proportionality, and so the Eighth
Amendment’s ban on cruel and unusual punishment.” Id. at ___, 132 S. Ct. at 2475.
¶ 46 Simply put, Miller holds there cannot be a mandatory sentence of life without parole for
homicides committed by juveniles. It can be argued that Miller was a procedural change in
how life without parole is imposed; that it did not create an absolute prohibition on life-
without-parole sentences for juveniles. A life-without-parole sentence passes muster where
proper procedures allow the trier of fact to determine if it is an appropriate sentence.
¶ 47 Initially, we reject defendant’s contention that his sentence was void ab initio. To be
considered void ab initio under a new constitutional rule, the statute in question has to be
rendered facially unconstitutional. Lucien v. Briley, 213 Ill. 2d 340, 344 (2004). “A statute
is facially unconstitutional if there are no circumstances in which it could be validly applied.”
Id. In this case, defendant was sentenced according to the following statutory scheme:
“(a) Except as otherwise provided in the statute defining the offense, a sentence of
imprisonment for a felony shall be a determinate sentence set by the court under this
Section, according to the following limitations:
(1) for first degree murder,
***
(c) the court shall sentence the defendant to a term of natural life
imprisonment when the death penalty is not imposed if the defendant,
***
(ii) is a person who, at the time of the commission of the murder, had
attained the age of 17 or more and is found guilty of murdering an individual
under 12 years of age; or, irrespective of the defendant’s age at the time of
the commission of the offense, is found guilty of murdering more than one
victim[.]” (Emphasis added.) 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996).
In this case, with the holding of Miller in mind, the statute can be validly applied to adults.
Accordingly, there are circumstances in which it can be validly applied. Therefore, it is not

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 facially unconstitutional.
¶ 48 While we have previously determined that defendant’s third postconviction petition may
proceed because the defendant has made a substantial showing of a freestanding claim of
actual innocence, that standard does not apply to the defendant’s fourth petition, which is
based on Miller. Consequently, we must apply the cause-and-prejudice test under section
122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2010).
¶ 49 This court has rejected defendant’s arguments that new court rulings provide a basis to
find “cause” for failure to raise an issue on direct appeal or in an initial postconviction
petition. See People v. Purnell, 356 Ill. App. 3d 524, 531 (2005) (defendant could not base
claim of cause on the fact that Boclair had not yet been decided at the time he filed his initial
postconviction petition); People v. Leason, 352 Ill. App. 3d 450, 455 (2004) (defendant could
not claim cause on the fact that Strain had not been decided at the time he filed initial
petition because legal basis for his claim existed even though precedent did not); People v.
Johnson, 392 Ill. App. 3d 897, 903 (2009) (rejected defendant’s assertion that cause
requirement was satisfied because Whitfield was decided after his initial postconviction
petition was filed).
¶ 50 However, in each of those cases this court based its rejection on the fact that the “legal
foundation” for the newly cited cases was laid before the defendant’s conviction, or the filing
of his initial postconviction petition. We find that the holdings defendant relies upon here,
i.e., Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (in supplemental briefing before this
court), and Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011 (in his fourth petition), were
new rules of criminal procedure which made a substantial change in the law and that the legal
foundation for these decisions was not laid before defendant’s trial or the filing of his initial
postconviction petition. Accordingly, defendant has satisfied the cause element of the cause-
and-prejudice test of section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2010) (“Leave
of court may be granted only if a petitioner demonstrates cause for his or her failure to bring
the claim in his or her initial post-conviction proceedings ***. For purposes of this
subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his
or her ability to raise a specific claim during his or her initial post-conviction proceedings
***.”).
¶ 51 Defendant has satisfied the cause element of the cause-and-prejudice test, but he still
must show that he was prejudiced. 725 ILCS 5/122-1(f) (West 2010). In order for defendant
to show that he was prejudiced by his failure to raise his claim in his initial postconviction
petition that his sentence is unconstitutional, defendant has to demonstrate “that the claim
not raised during his or her initial post-conviction proceedings so infected the trial that the
resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2010).
Defendant can show prejudice if the Supreme Court’s decision in Miller applies retroactively
to his case. To determine whether Miller created a new constitutional rule of criminal
procedure such that it can be applied retroactively in this case, we look to the standards set
forth by the Supreme Court in Teague v. Lane and adopted by our supreme court in People
v. Flowers. People v. Sanders, 238 Ill. 2d 391, 400-02 (2010) (citing Teague v. Lane, 489
U.S. 288 (1989), and People v. Flowers, 138 Ill. 2d 218 (1990)). Our supreme court has
explained the Teague analysis as such:

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 “Generally, new rules are not to be applied retroactively to cases on collateral review
except in two instances: (1) if the rule places certain kinds of primary, private individual
conduct beyond the power of the criminal-law-making authority to proscribe; or (2) if the
rule requires the observance of those procedures that are implicit in the concept of
ordered liberty.” Id. at 401.
The second exception is limited to “ ‘watershed rules of criminal procedure’ ” and to “those
new procedures without which the likelihood of an accurate conviction is seriously
diminished.” Id. (quoting Teague, 489 U.S. at 311).
¶ 52 We hold that the Supreme Court’s decision in Miller should be retroactively applied in
this case because it is a rule that “requires the observance of those procedures that are
implicit in the concept of ordered liberty.” Id. The Court in Miller explained:
“The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees
individuals the right not to be subjected to excessive sanctions.’ [Citation.] That right,
we have explained, ‘flows from the basic “precept of justice that punishment for crime
should be graduated and proportioned” to both the offender and the offense. [Citation.]
As we noted the last time we considered life-without-parole sentences imposed on
juveniles, ‘[t]he concept of proportionality is central to the Eighth Amendment.’
[Citation.]” Miller, 567 U.S. at ___, 132 S. Ct. at 2463.
Accordingly, under the proportionate punishment analysis in Miller, defendant was denied
a “basic ‘precept of justice’ ” by not receiving any consideration of his age from the circuit
court in sentencing. (Internal quotation marks omitted.) Id. at ___, 132 S. Ct. at 2463.
Further, “ ‘[t]he concept of proportionality is central to the Eighth Amendment.’ [Citation.]”
Id. Applying the rule of Miller to the case at bar shows that “the rule requires the observance
of procedures that are implicit in the concept of ordered liberty.” Sanders, 238 Ill. 2d at 401.
¶ 53 A new rule of criminal procedure applies retroactively in those instances where it has
made a substantial or substantive change in the law. Id. (new rules are to be applied
retroactively to “ ‘watershed rules of criminal procedure’ ” and “limited to those new
procedures without which the likelihood of an accurate conviction is seriously diminished”
(citing Teague, 489 U.S. at 311)). We find that Miller not only changed procedures, but also
made a substantial change in the law in holding under the eighth amendment that the
government cannot constitutionally apply a mandatory sentence of life without parole for
homicides committed by juveniles. Life without parole is justified only where the State
shows that it is appropriate and fitting regardless of the defendant’s age. We hold that Miller
is such a “ ‘watershed rule[ ] of criminal procedure.’ ” Id.
¶ 54 As to retroactive application we note the Miller decision involved the robbery and murder
cases of Evan Miller and Kuntrell Jackson. Miller was convicted of killing a man in Alabama
and Jackson was convicted as an accomplice in an Arkansas robbery resulting in murder.
Both were 14 when convicted. It is instructive that the Miller companion case, Jackson v.
Hobbs, arising on collateral review, involved a life-without-parole-sentence heretofore final.
Notwithstanding its finality, the Supreme Court of the United States in effect retroactively
applied Miller and vacated Jackson’s sentence. “[O]nce a new rule is applied to the defendant
in the case announcing the rule, evenhanded justice requires that it be applied retroactively

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 to all who are similarly situated.” Teague, 489 U.S. at 300. The Miller case held under the
eighth amendment that it is cruel and unusual punishment to impose a mandatory life
sentence without parole to a special class–juveniles. It would also be cruel and unusual to
apply that principle only to new cases. We therefore hold that the Court’s holding in Miller
should be retroactively applied. From the above discussion, we believe that it is evident that
when a defendant has met his burden under Teague that a new rule must be retroactively
applied, the defendant has also met his burden under the cause-and-prejudice test. 725 ILCS
5/122-1(f) (West 2010); People v. Pitsonbarger, 205 Ill. 2d 444, 461-62 (2002).
¶ 55 Before this court the parties each sought leave to cite additional authority, which we
allowed. The State cited a recent case from the Florida court of appeals, Geter v. State, No.
3D12-1736, 2012 WL 4448860 (Fla. Dist. Ct. App. Sept. 27, 2012); and defendant cited a
per curiam opinion from the Louisiana Supreme Court in State v. Simmons, No. 2011-KP-
1810, 2012 WL 4856210 (La. Oct. 12, 2012), and two unpublished decisions, the California
Court of Appeals decision in People v. Hoffman, No. F061127, 2012 WL 3066392 (Cal. Ct.
App. July 30, 2012), and the Iowa Court of Appeals decision in Iowa v. Lockheart, 820
N.W.2d 769 (Iowa Ct. App. 2012) (table). We have reviewed all of the supplemental
authorities submitted by the parties and find them all distinguishable. Although we agree
with the ultimate results of Simmons, Hoffman, and Lockheart, in that they each remand their
respective cases for resentencing in accord with Miller, none of them employ the Teague
analysis that we have relied upon in reaching our conclusion. We have also reviewed the
Geter decision cited by the State. Although we disagree with the result of Geter in that it held
that Miller did not apply retroactively, it also used a different standard of analysis than that
found in Teague. We acknowledge that the United States Supreme Court held in Danforth
v. Minnesota, 552 U.S. 264, 280-81 (2008), that state courts need not utilize the analysis
found in Teague. However, our supreme court still employs it. See People v. Davis, 388 Ill.
App. 3d 869, 879 (2009) (listing cases). Accordingly, the supplemental authorities from
foreign jurisdictions cited by the parties have no effect on our decision to retroactively apply
Miller.
¶ 56 After oral argument in this matter, the State filed another motion for leave to cite
additional authority, which we allowed. In its motion, the State cited the recent Michigan
Court of Appeals decision in People v. Carp, No. 307758, 2012 WL 5846553 (Mich. Ct.
App. Nov. 15, 2012). The Carp court held, utilizing a Teague analysis, that the holding in
Miller is not a substantive new rule requiring cases on collateral review to apply it
retroactively. The Carp court specifically held, contrary to our holding in this case, that
Miller did not create a watershed rule of criminal procedure. As discussed supra, we hold
that Miller did create such a rule. Therefore, we respectfully disagree with the Michigan
Court of Appeals decision in Carp.
¶ 57 Here, the sentencing court did not graduate and proportion punishment for defendant’s
crime considering his status as a juvenile at the time of the offense. This violates the eighth
amendment’s prohibition on cruel and unusual punishment. Miller, 567 U.S. at ___, 132 S.
Ct. at 2460. Therefore, defendant has shown prejudice under the Act. 725 ILCS 5/122-1(f)
(West 2010) (“Leave of court may be granted only if a petitioner demonstrates cause for his
or her failure to bring the claim in his or her initial post-conviction petition and prejudice

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 results from that failure.”). Accordingly, defendant has satisfied the cause-and-prejudice test
of section 122-1(f) of the Act and the circuit court erred in denying his motion for leave to
file a successive postconviction petition. 725 ILCS 5/122-1(f) (West 2010).
¶ 58 At oral argument the State informed the court that approximately 105 convicted
defendants in Illinois have life without parole sentences and would be affected if the Miller
holding is applied retroactively. This is not such a great number of cases for us to conclude
that it is an unreasonable burden for the State and the courts to reopen their cases for
resentencing.
¶ 59 Lastly, we address a concern which arises as a consequence of determining Miller to be
retroactively applied. No doubt there are family members, friends, and victims who have
suffered due to the acts of juveniles now serving life-without-parole sentences. We
understand the anxiety, pain, and negative impact that remanding and ordering resentencing
hearings will cause them. However, a new sentencing hearing should require only one further
proceeding to attend whether or not they previously attended. They will have another
opportunity to make a statement as to the impact the crime has had upon them before the new
sentence is given. See 725 ILCS 120/6 (West 2010).
¶ 60 Due to our holding regarding defendant’s fourth petition, if the circuit court declines to
grant defendant a new trial after an evidentiary hearing on his third petition, the circuit court
shall conduct a new sentencing hearing in accord with our holding concerning defendant’s
fourth petition. Additionally, due to our holding on defendant’s fourth petition, we reverse
the circuit court’s judgment awarding fees and costs.

¶ 61 CONCLUSION
¶ 62 The judgment of the circuit court is reversed and the cause is remanded with directions.

¶ 63 Reversed and cause remanded.

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