People v. Poole

2022 IL App (4th) 210347
FILED
NO. 4-21-0347 October 13, 2022
Carla Bender
IN THE APPELLATE COURT 4th District Appellate
Court, IL
OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JERRY MAURICE POOLE, ) No. 10CF417
Defendant-Appellant. )
) Honorable
) John Casey Costigan,
) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices DeArmond and Doherty concurred in the judgment and opinion.

OPINION

¶1 In September 2010, a jury found defendant, Jerry Maurice Poole, guilty of

(1) aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2010)), (2) aggravated

discharge of a firearm (id. § 24-1.2(a)(2)), and (3) possession of a weapon by a felon (id. § 24-

1.1(a)) in connection with the shooting of Lawrence Johnson. Shortly thereafter, the trial court

sentenced defendant to a total of 18 years in prison.

¶2 In August 2011, defendant pro se filed a petition for relief from judgment pursuant

to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)),

alleging that the testimony of a newly discovered eyewitness, Roderick Simmons, proved

defendant was actually innocent of the charges. The trial court denied the petition following an

evidentiary hearing.

¶3 In December 2020, defendant filed a second amended postconviction petition (the
subject of this appeal) alleging, among other things, (1) actual innocence based on Simmons’s

affidavit and testimony at the hearing on the section 2-1401 petition, (2) ineffective assistance of

trial counsel for failure to investigate and secure Simmons as a trial witness, and (3) ineffective

assistance of trial counsel for failure to secure a defense expert in gunshot residue to rebut the

State’s expert. The trial court dismissed the petition at the second stage.

¶4 Defendant appeals, arguing (1) the trial court erred by dismissing his second

amended petition because he made a substantial showing that trial counsel provided ineffective

assistance by failing to exercise due diligence in investigating Simmons as a potential trial witness

and (2) postconviction counsel provided unreasonable assistance by failing to include evidence or

affidavits to properly present defendant’s claim that trial counsel was ineffective for failing to

secure a gunshot residue expert.

¶5 We affirm.

¶6 I. BACKGROUND

¶7 A. The Jury Trial and Sentence

¶8 In May 2010, the State charged defendant with aggravated battery with a firearm,

a Class X felony (count I) (720 ILCS 5/12-4.2(a)(1) (West 2010)), aggravated discharge of a

firearm, a Class 1 felony (count II) (id. § 24-1.2(a)(2)), and possession of a weapon by a felon, a

Class 2 felony (count III) (id. § 24-1.1(a)).

¶9 In September 2010, the trial court conducted defendant’s jury trial.

¶ 10 1. Brice Stanfield

¶ 11 Bloomington police officer Brice Stanfield testified that on May 4, 2010, he saw a

fight taking place in the Pop’s Grocery parking lot. Stanfield stated that he “was going to walk up

to the group and tell them to knock it off.” He further stated, “I began to get out of my car, and

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that’s when I watched a subject that raised a handgun.” Stanfield later identified that person as

defendant.

¶ 12 Stanfield testified that he continued to watch the gunman as he took cover inside

his car because the handgun was “pointing straight down in my direction.” Stanfield stated that he

heard a pop and “actually saw the muzzle flash of a handgun go off.” Stanfield then “called out

shots fired” and “drove toward the subjects that—the subject that I saw fire the handgun.” Stanfield

stated, “I got about 20 feet away from the subject. There were two subjects. *** They were

standing on the west side, and they were just scrambling, looking around, trying to figure out what

they were going to do next.”

¶ 13 Stanfield testified that he was getting ready to draw his sidearm when the gunman

and the other subject standing with him, whom Stanfield knew to be Paris Jones, took off running.

Stanfield pursued the pair in his squad car. Stanfield stated that “the shooter” took off his hat,

threw it, then “duck[ed] between two houses” at 913 and 915 Monroe Street, which ran behind the

building where Pop’s was located. Stanfield lost sight of the pair and started to get out of his car

to run between the houses when he saw Jones “pop out between [the two houses] and begin running

back out here to Monroe Street.”

¶ 14 Stanfield began pursuing Jones and called out on his radio that (1) he was pursuing

Jones, (2) Jones was not the shooter, and (3) the shooter was still running. Stanfield then caught

Jones. Other officers arrived on scene, and Stanfield pointed them in the direction the shooter had

run. Stanfield secured Jones in his squad car while other officers pursued the shooter. Shortly

thereafter, Officer Bill McGonigle brought the shooter “out from behind the houses.” Stanfield

stated that he immediately told McGonigle “that’s our shooter.” Stanfield also identified defendant

in open court as the shooter.

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¶ 15 2. Richard Beoletto and Bill McGonigle

¶ 16 Officer Richard Beoletto testified that he found defendant tucked in a corner

between a shed and a house at 913 Monroe. Beoletto stated that defendant appeared to be trying

to conceal himself. McGonigle arrived and placed defendant in handcuffs. Beoletto and

McGonigle both identified defendant in open court.

¶ 17 3. Defendant’s Recorded Interview

¶ 18 The State played a recording of an interview that Detective Steve Fanelli conducted

with defendant at the police department after the shooting. Throughout the interview, defendant

denied that either he or Jones possessed or fired a gun. Specifically, defendant told Fanelli that he

and Jones were walking through the parking lot when an unknown “dude” walked up and started

“swinging on” Jones for no known reason. Jones’s sister pulled up in a van, but before defendant

and Jones could get in, “some girl” tried to swing on Jones’s sister. The girls started to fight, and

Jones tried to break it up when the “dude” tried to swing on him again. Defendant then heard

gunshots, and everyone took off running. Defendant stated he did not know where the gunshot

came from. Defendant said he ran from the police because he does not trust them. He said he ran

to his uncle’s house, which was located behind Pop’s, and sat on the porch. The police showed up

and told him to get on the ground.

¶ 19 Defendant told Fanelli that he was wearing a white shirt with horizontal stripes on

the day of the shooting. He said he took it off when “they was rushing me.” He also said his shoes

came off and his black baseball hat flipped off when he ran.

¶ 20 4. Surveillance Video

¶ 21 The State played surveillance video from Lucky’s, a store also facing the Pop’s

parking lot. (We note that the quality of the video is very poor—specifically, black and white,

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grainy, and pixelated.) The video shows approximately 10 people gathering, a fight breaking out,

Stanfield’s vehicle pulling up within at least 20 feet of the fight, and the people running away. The

video does not clearly depict the shooting itself or the faces of any of those individuals who were

present.

¶ 22 5. Civilian Witnesses

¶ 23 Johnson testified that he confronted Jones in the Pop’s parking lot over “a situation”

that had happened the day prior. Johnson and Jones started fighting, and Jones’s sister and another

female started fighting. Johnson testified that, while his back was turned, he was shot in his calf

muscle. He did not see who shot him. Johnson got into a car and went to the hospital.

¶ 24 Chantell Franklin and Gary Pargo both testified that they were present for the fight

and heard the gunshot but neither saw who fired the gun. Elias Talley testified that he also was

present for the fight. He heard a gunshot directly next to him. Talley stated that he looked to his

left to see who fired the gun and saw “a chrome pistol” and “a guy, a male, a black male [wearing]

a white t-shirt.” Talley only saw the back of the male because he was running away. The State

showed Talley a picture of the gun that was recovered, and Talley testified that he remembered

seeing the chrome part of the gun.

¶ 25 6. Physical Evidence and Forensic Analysis

¶ 26 The State presented photographs showing a white shirt with horizontal stripes lying

on the ground in a narrow area next to a chain link fence separating the properties at 913 and 915

Monroe Street. The photographs also showed, next to the shirt, a small firearm tucked under a

concrete block. The police also collected a black ball cap and two dark tennis shoes that were

located in defendant’s flightpath.

¶ 27 Linda Yborra, a forensic scientist, testified that she analyzed (1) the fired bullet

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retrieved from Johnson’s leg, (2) a fired casing retrieved from the Pop’s parking lot, and (3) the

gun found in the area between 913 and 915 Monroe Street. Yborra concluded that the bullet and

casing were fired from the gun. A crime scene technician involved in collecting the evidence

testified he did not test the gun for fingerprints because Stanfield had seen the shooting.

¶ 28 Mary Wong testified that she was a forensic scientist employed by the Illinois State

Police Forensic Crime Laboratory, specializing in trace chemistry. Wong testified that she

examined gunshot residue kits collected from defendant and Jones. The test administered on

defendant contained “particles characteristic of background samples,” which led her to conclude

that defendant “may not have discharged a firearm with either hand.” She continued, “If he did,

then the particles were removed by activity, were not deposited, *** or not detected by the

procedure.” Her findings were the same as to Jones. Wong then explained that there were multiple

reasons why a person would not have gunshot residue on his hands even though he had fired a

firearm.

¶ 29 On cross-examination, defendant asked Wong only two questions—specifically,

(1) how long she had been “doing this [type of analysis],” and (2) whether the equipment she used

was a scanning electron microscope.

¶ 30 Defendant did not testify or present any evidence.

¶ 31 7. The Verdict and Sentence

¶ 32 The jury found defendant guilty of all counts.

¶ 33 In November 2010, the trial court sentenced defendant to concurrent terms of 18

years in prison on count I and 14 years on count III. (We note that count II merged with count I.)

¶ 34 B. The Direct Appeal

¶ 35 In 2010, defendant appealed his conviction and sentence, arguing (1) he was denied

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effective assistance of counsel when his attorney did not move to sever count III from the other

charges and (2) the trial court improperly sentenced him to an extended term on count III. The

State did not contest defendant’s sentencing argument. This court (1) rejected defendant’s

severance claim but (2) remanded with directions to reduce defendant’s sentence from 14 years to

7 years. People v. Poole, 2012 IL App (4th) 101017, ¶ 14, 17, 972 N.E.2d 340.

¶ 36 C. The Section 2-1401 Petition

¶ 37 In August 2011, defendant pro se filed a petition for relief from judgment pursuant

to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)), alleging (1) actual innocence

based on newly discovered evidence—namely, the affidavit of Freddie Gunn (Freddie)—and

(2) ineffective assistance of trial counsel for failure to investigate, locate, and interview Freddie.

Defendant attached two affidavits to his petition. The first was the affidavit of his mother, Sandra

McGowan, who averred that before defendant’s jury trial, Tisha Gunn told McGowan that Freddie

had witnessed the shooting. McGowan averred that she spoke with Freddie and then gave Freddie’s

name and address to defendant’s trial counsel.

¶ 38 Defendant also attached Freddie’s affidavit to his petition, in which Freddie averred

that he was an eyewitness to the shooting and he saw “Jerome Wilson” emerge from behind a car

with a gun and fire it once in the direction of Johnson and Jones, who were fighting. (We note that

defendant requested the appointment of counsel to represent him on his section 2-1401 petition.

At a November 2011 status hearing, the trial court denied defendant’s request after explaining that

litigants in civil proceedings do not have a right to counsel.)

¶ 39 In December 2011, the State filed a motion to dismiss defendant’s section 2-1401

petition, to which it attached a “booking sheet” for Freddie showing that, because he was in the

custody of the McLean County Sheriff’s Department from April 2010 to June 2010, he could not

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have witnessed the shooting.

¶ 40 In January 2012, the trial court conducted a hearing on the State’s motion to

dismiss. At the beginning of the hearing, defendant filed instanter a “Motion for Leave to Introduce

Additional Newly Discovered Evidence in Support of Defendant’s Relief of Judgment.”

Defendant’s motion claimed that defendant “has uncovered a sworn statement from a[n]

eyewitness to the May 4, 2010, shooting *** that supports the defendant’s actual innocence claim.”

Defendant identified this new witness as “Roderick Simmons” and attached Simmons’s affidavit,

which stated that Simmons “personally observed *** Jerome Wilson shoot another individual in

front of El Loco’s Store” on May 4, 2010. Simmons’s affidavit stated that he did not come forward

to the authorities because he did not get along with either Wilson or defendant at the time. Simmons

stated, however, that “[s]ince then this incident has been weighing heavy on my concious [sic]. I

personally seeked [sic] out [defendant] to give him this statement.” (We note defendant did not

allege ineffective assistance of counsel in connection with the Simmons affidavit; however,

defendant did allege that Simmons’s statement “corroborates the evidence already attached to

petitioner’s [original] Relief of Judgment.”)

¶ 41 The trial court first addressed the State’s motion to dismiss and struck the original

petition, “finding that there is no basis for relief under 2-1401 based upon either of the two

affidavits that were originally submitted.” The trial court then addressed defendant’s new filing,

construed it as an amended section 2-1401 petition, and granted him leave to file because the filing

contained “additional or new information that would be different than the reasons that the [S]tate

has presented to the court in support of its motion to dismiss the original pleading.”

¶ 42 In June 2012, the trial court conducted a hearing on defendant’s amended section

2-1401 petition. Simmons, who was in the custody of the Illinois Department of Corrections,

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testified at the hearing. Simmons testified that on May 4, 2010, he was part of a crowd “up at

Pop’s” when a fight broke out. He heard gunshots, and the crowd ran. Simmons saw that Wilson

had a gun. Simmons further stated that Wilson was the only person he saw with a gun. On cross-

examination, Simmons stated that he saw defendant when they were both in prison in

Pinckneyville and he told defendant what he saw on the day of the shooting.

¶ 43 The trial court denied defendant’s amended section 2-1401 petition, ruling as

follows:

“In order to be entitled to relief from judgment based on newly discovered

evidence, the evidence must be so conclusive that it would probably change the

result if a new trial was granted, that it was discovered after trial, and that it was of

such a character that it could not have been discovered prior to trial in the exercise

of due diligence, must, further, be material to one or more issues, and it must not

merely be cumulative to the trial evidence.

*** What we have is testimony that would, if believed by the trier of fact,

be cumulative evidence which would not, in essence, directly change the result of

the trial were it to be considered, and further, was evidence which, upon due

diligence of the defendant, could have been obtained prior to and then presented to

the jury at the time of his trial based upon the fact that there were individuals, plural,

that were present on the date, time, and place in question, and that the defendant

had the means and access available to go ahead and identify who those witnesses

would be that could corroborate what he now represents to be the case, but was not

represented at the time of trial, so it’s a matter of no due diligence also having been

demonstrate on the part of the defendant.

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 So, whether it be under actual innocence, whether it be under newly

discovered evidence, the defendant has failed to go ahead and meet the threshold

requirements by a preponderance of the evidence that he would be entitled to the

relief that he is requesting, and the Petition for Relief from Judgment under 2-1401

will therefore be denied.”

¶ 44 Defendant did not appeal the trial court’s denial of his section 2-1401 petition.

¶ 45 D. The Postconviction Petitions

¶ 46 1. The Pro Se and First Amended Petitions

¶ 47 In April 2013, defendant pro se filed a postconviction petition pursuant to the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). The pro se petition

was a form document in which defendant alleged that his right to effective assistance of counsel

was violated (1) “where trial counsel failed to interview potential defense witnesses and pursue

substantial mistaken identification” and (2) “where defense counsel failed to interview and call

as a witness Roderick Simmons who could have corroborated [defendant’s] alibi.” Defendant did

not specifically identify any potential witnesses other than Simmons.

¶ 48 In August 2013, the trial court appointed counsel to represent defendant on his

postconviction petition. In April 2016, defendant, through counsel, filed an amended

postconviction petition arguing, relevant to this appeal, that his trial counsel rendered ineffective

assistance by failing to interview Simmons and secure him as a trial witness. Defendant attached

Simmons’s affidavit (the same affidavit that had been attached to the amended section 2-1401

petition) and asked the court to take judicial notice of Simmons’s testimony at the June 2012

hearing on defendant’s amended section 2-1401 petition. Defendant also alleged that his trial

counsel failed to “pursue independent defense expert testimony regarding the issue of the lack of

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gunshot residue on Defendant.”

¶ 49 In August 2016, the State filed a motion to dismiss defendant’s amended petition,

arguing (1) if Simmons’s testimony was “newly discovered” evidence in August 2011 (as

defendant had alleged in his section 2-1401 petition), trial counsel could not be ineffective for

failing to call Simmons as a witness at trial in September 2010 and (2) defendant could not show

he was prejudiced by trial counsel’s failure to hire a gunshot residue expert to challenge the State’s

expert because the State’s expert’s testimony that defendant may or may not have fired a gun was

“at a minimum[,] without impact.”

¶ 50 In November 2016, the trial court conducted a hearing on the State’s motion and

dismissed defendant’s amended petition. Specifically, the court found that “the 2-1401 petition

based on Mr. Simmons’s testimony was previously resolved and the doctrine of res judicata

applies.” The court did not specifically address defendant’s gunshot residue claim in its oral ruling

but stated generally that it agreed with the arguments set forth in the State’s motion and found that

defendant did not make a showing of any substantial constitutional violation.

¶ 51 In February 2017, this court entered an order reversing the judgment of the trial

court and remanding for further proceedings because defendant’s postconviction counsel failed to

file an Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) certificate. People v. Poole, No. 4-

16-0835 (2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 52 2. The Second Amended Petition

¶ 53 In May 2019, on remand, the trial court appointed new counsel to represent

defendant.

¶ 54 In December 2020, defendant’s new postconviction counsel filed a second

amended postconviction petition and Rule 651(c) certificate. The second amended petition alleged,

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among other things, (1) actual innocence based upon Simmons’s testimony and (2) ineffective

assistance of trial counsel for failure to hire a gunshot residue expert to challenge the State’s

gunshot residue expert at trial. The second amended petition did not explicitly reallege the

ineffective assistance claim for trial counsel’s failure to discover and call Simmons at trial, but it

incorporated the claim by reference to the initial pro se petition.

¶ 55 The second amended petition attached Simmons’s affidavit and the transcript of his

testimony from section 2-1401 hearing. The petition did not attach an affidavit from any proposed

gunshot residue expert.

¶ 56 In February 2021, the State filed a motion to dismiss defendant’s second amended

postconviction petition. Regarding the actual innocence claim, the State argued that claim should

be dismissed as a matter of law because (1) it was previously litigated in June 2012 and

(2) Simmons’s testimony was not newly discovered or noncumulative. Regarding the gunshot

residue expert claim, the State argued that claim should be dismissed because (1) trial counsel’s

decision was a reasonable trial strategy that did not prejudice defendant, (2) the claim could have

been brought on direct appeal, and (3) “this claim is not supported by the record nor by any

accompanying affidavits.” The State’s motion did not address defendant’s ineffective assistance

claim relating to Simmons’s testimony as a claim separate from the actual innocence claim.

¶ 57 In May 2021, the trial court conducted a hearing on the State’s motion to dismiss.

The hearing was brief, and the parties answered questions from the court clarifying their positions

on the application of the res judicata doctrine to the actual innocence claim. The court took the

matter under advisement.

¶ 58 In June 2021, the trial court entered a written order dismissing defendant’s

postconviction petition. The court ruled that “[d]efendant’s claim as to actual innocence based

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upon the testimony of Roderick Simmons has already been litigated [in his section 2-1401

petition]” and was, accordingly, barred by res judicata. The court further found that Simmons’s

testimony was not newly discovered and was cumulative.

¶ 59 Although the trial court addressed several of defendant’s other claims (not relevant

to this appeal) and found they were either barred by res judicata or did not make a substantial

showing of a constitutional violation, the court’s order did not specifically address defendant’s

ineffective assistance claims based on trial counsel’s failures to (1) investigate Simmons as a

witness or (2) identify a gunshot residue expert and attach his affidavit.

¶ 60 This appeal followed.

¶ 61 II. ANALYSIS

¶ 62 Defendant appeals, arguing (1) the trial court erred by dismissing his second

amended petition because he made a substantial showing that trial counsel provided ineffective

assistance by failing to exercise due diligence in investigating Simmons as a potential trial witness

and (2) postconviction counsel provided unreasonable assistance by failing to include evidence or

affidavits to properly present defendant’s claim that trial counsel was ineffective for failing to

secure a gunshot residue expert.

¶ 63 We affirm.

¶ 64 A. Ineffective Assistance of Trial Counsel

¶ 65 Defendant first argues that the trial court erred by dismissing his postconviction

claim that trial counsel was ineffective for failing to investigate Simmons on the grounds of

res judicata because the claim that was previously decided during the section 2-1401 proceedings

was a claim of actual innocence, not ineffective assistance.

¶ 66 1. The Applicable Law and Standard of Review

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¶ 67 a. The Post-Conviction Hearing Act

¶ 68 The Act (725 ILCS 5/122-1 et seq. (West 2012)) provides a method by which a

defendant can assert that his conviction was the result of a substantial denial of his constitutional

rights. People v. Tate, 2012 IL 112214, ¶ 8, 980 N.E.2d 1100. A proceeding under the Act contains

three stages. Id.

¶ 69 At the first stage, the trial court conducts its own review of the petition to determine

if the petition states the gist of a constitutional claim. People v. Allen, 2015 IL 113135, ¶ 24, 24

N.E.3d 615. If the petition is not summarily dismissed at the first stage, the proceedings move to

the second stage. People v. House, 2021 IL 125124, ¶ 16.

¶ 70 “At the second stage of postconviction proceedings, counsel may be appointed to

represent the petitioner ***.” House, 2021 IL 125124, ¶ 17. To avoid dismissal, a defendant must

set forth in his petition a substantial showing of a constitutional violation and attach any

accompanying documentation. Id. The failure to attach the necessary accompanying

documentation or explain its absence is generally fatal to a postconviction petition. People v.

Delton, 227 Ill. 2d 247, 255, 882 N.E.2d 516, 520 (2008). Allegations in a postconviction petition

are taken as true unless affirmatively refuted by the record. People v. Domagala, 2013 IL 113688,

¶ 35, 987 N.E.2d 767. “Upon a substantial showing of a constitutional violation, the petition must

be advanced to the third stage, where the [trial] court conducts an evidentiary hearing.” People v.

Brown, 2017 IL 121681, ¶ 24, 102 N.E.3d 205 (citing 725 ILCS 5/122-6 (West 2012)). “Upon no

showing, the petition should be dismissed.” Id.

¶ 71 The dismissal of a postconviction petition without an evidentiary hearing is

reviewed de novo. Id.

¶ 72 b. Ineffective Assistance

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¶ 73 Claims of ineffective assistance of counsel are governed by the standards set forth

in Strickland v. Washington, 466 U.S. 668, 687 (1984). People v. Veach, 2017 IL 120649, ¶ 29, 89

N.E.3d 366. To state a claim of ineffective assistance of counsel, a defendant must allege that

(1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s

deficient performance prejudiced the defendant. Id. ¶ 30. “Specifically, a defendant must show

that counsel’s performance was objectively unreasonable under prevailing professional norms and

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” (Internal quotation marks omitted.) Id. “A ‘reasonable

probability’ is defined as ‘a probability sufficient to undermine confidence in the outcome.’ ” Id.

(quoting Strickland, 466 U.S.at 694). “A defendant must satisfy both prongs of the Strickland test,

and a failure to satisfy [either] of the prongs precludes a finding of ineffectiveness.” (Internal

quotation marks omitted.) Id.

¶ 74 Trial counsel has a professional duty to “independently investigate any possible

defenses.” Domagala, 2013 IL 113688, ¶ 38. When “counsel had reason to know, from an

objective standpoint, that a possible defense *** was available, failure to investigate can constitute

ineffective assistance of counsel.” (Internal quotation marks omitted.) Id. “In particular, the failure

to interview witnesses may indicate incompetence when trial counsel knows of the witness and

their testimony may be exonerating.” (Internal quotation marks omitted.) People v. Clark, 2011 IL

App (2d) 100188, ¶ 26, 957 N.E.2d 162.

¶ 75 c. Section 2-1401 Petitions for Relief From Judgment

¶ 76 Section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)) establishes a

procedure by which to vacate final judgments that are more than 30 days old. People v. Garry,

2017 IL App (4th) 150373, ¶ 20, 83 N.E.3d 627. Although section 2-1401 petitions may be used

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to attack a criminal judgment, they are subject to the rules of civil practice. Id. ¶ 21.

¶ 77 “In considering a section 2-1401 petition, the court must determine whether facts

exist that were unknown to the court at the time of trial and would have prevented a judgment

against the defendant.” People v. Welch, 392 Ill. App. 3d 948, 952, 912 N.E.2d 756, 760 (2009).

To obtain relief under section 2-1401, “a [defendant] must set forth specific factual allegations

showing (1) the existence of a meritorious claim or defense in the original action; (2) due diligence

in presenting the claim or defense to the court in the original action; and (3) due diligence in filing

the section 2-1401 petition.” People v. Davis, 2012 IL App (4th) 110305, ¶ 14, 966 N.E.2d 570.

¶ 78 d. Actual Innocence

¶ 79 “To establish a claim of actual innocence, the supporting evidence must be

(1) newly discovered, (2) material and not cumulative, and (3) of such a conclusive character that

it would probably change the result on retrial.” People v. Robinson, 2020 IL 123849, ¶ 47, N.E.3d

37. “Newly discovered evidence is evidence that was discovered after trial and that the petitioner

could not have discovered earlier through the exercise of due diligence.” Id. “Evidence is material

if it is relevant and probative of the petitioner’s innocence.” Id. “Noncumulative evidence adds to

the information that the fact finder heard at trial.” Id. “Lastly, the conclusive character element

refers to evidence that, when considered along with the trial evidence, would probably lead to a

different result on retrial.” Id. “Probability, rather than certainty, is the key in considering whether

the fact finder would reach a different result after considering the prior evidence along with the

new evidence.” Id. ¶ 48. “The conclusive character evidence is the most important element of an

actual innocence claim.” Id. ¶ 47.

¶ 80 e. The Doctrine of Res Judicata

¶ 81 “Res judicata is an equitable doctrine that bars the relitigation of issues that were

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raised and adjudicated in a prior proceeding.” People v. Kines, 2015 IL App (2d) 140518, ¶ 20, 37

N.E.3d 428 (citing Lutkauskas v. Ricker, 2015 IL 117090, ¶ 44). Under the doctrine of res judicata,

“[(1)] a final judgment on the merits rendered by a court of competent jurisdiction operates to bar

a subsequent suit between [(2)] the same parties and involving [(3)] the same cause of action.”

(internal quotation marks omitted.) Id. ¶ 21. “Res judicata bars not only what was actually decided

in the first action but also whatever could have been decided.” (Internal quotation marks omitted.)

Id. ¶ 20. “This doctrine results from the practical necessity that there must be an end to litigation

and that controversies once decided on their merits *** remain in repose.” (Internal quotation

marks omitted.) Id.

¶ 82 Whether a claim is barred by res judicata is a question of law that is reviewed

de novo. Id. However, because res judicata is “first and foremost an equitable doctrine,” it “may

be relaxed where justice requires.” (Internal quotation marks omitted.) Id. ¶ 21. “In other words,

the question is not solely whether the doctrine of res judicata applies; we must also ask whether it

should be applied.” (Emphases in original.) Id.

¶ 83 2. This Case

¶ 84 In defendant’s section 2-1401 petition, the sole claim relating to the Simmons

affidavit was an actual innocence claim. Because defendant chose the procedural vehicle of a

section 2-1401 petition, he was obligated to show (1) his actual innocence claim was meritorious,

(2) he exercised due diligence in presenting the claim to the trial court, and (3) he exercised due

diligence in filing the section 2-1401 petition. Davis, 2012 IL App (4th) 110305, ¶ 14. To establish

that his actual innocence claim was meritorious, defendant was required to show that Simmons’s

affidavit was (1) newly discovered, (2) material and not cumulative, and (3) of such a conclusive

nature that it would probably change the result on retrial. Robinson, 2020 IL 123849, ¶ 47.

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¶ 85 The trial court heard Simmons’s live testimony at the evidentiary hearing on

defendant’s section 2-1401 petition, and the court denied defendant’s actual innocence claim. In

doing so, the court found that Simmons’s testimony (1) “would, if believed by the trier of fact, be

cumulative evidence which would not, in essence, directly change the result of the trial,” and

(2) could have been discovered and presented to the jury had defendant exercised due diligence.

Stated simply, the court denied defendant’s section 2-1401 petition because (1) the Simmons

testimony was cumulative and not conclusive and (2) defendant did not exercise due diligence.

¶ 86 In his second amended postconviction petition, defendant claimed that his trial

counsel was ineffective for failing to exercise due diligence in developing Simmons as a witness.

To state a claim for ineffective assistance, defendant was required to show (1) counsel’s

performance fell below an objective standard of reasonableness and (2) counsel’s deficient

performance prejudiced the defendant. Veach, 2017 IL 120649, ¶ 30.

¶ 87 At issue in this appeal is whether the trial court’s findings regarding defendant’s

actual innocence claim in his section 2-1401 petition have any preclusive effect, under the doctrine

of res judicata, on defendant’s postconviction ineffective assistance claim.

¶ 88 As we noted earlier (supra ¶ 81), the doctrine of res judicata “bars the relitigation

of issues that were raised and adjudicated in a prior proceeding.” Kines, 2015 IL App (2d) 140518,

¶ 20. We acknowledge that actual innocence and ineffective assistance of counsel are generally

different claims with different issues. However, res judicata can operate to bar different legal

theories that are predicated on the same underlying facts. See Lutkauskas, 2015 IL 117090, ¶ 47

(“[T]he dismissal of a single theory of recovery against a particular defendant operates as a final

adjudication of all claims based on other theories of recovery that could have been brought as part

of the initial action, as long as they arise from the same core of operative facts.”); River Park, Inc.

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v. City of Highland Park, 184 Ill. 2d 290, 311, 703 N.E.2d 883 (1998) (“[S]eparate claims will be

considered the same cause of action for purposes of res judicata if they arise from a single group

of operative facts, regardless of whether they assert different theories of relief.”).

¶ 89 In this case, the actual innocence claim and the ineffective assistance claim—both

arising from the Simmons affidavit—share a dispositive issue: whether a probability exists that

Simmons’s testimony would change the result on retrial. Specifically, at issue in the section 2-

1401 actual innocence claim was whether Simmons’s testimony, “when considered along with the

trial evidence, would probably lead to a different result on retrial.” Robinson, 2020 IL 123849,

¶ 47. At issue in the postconviction ineffective assistance claim was whether there exists “a

reasonable probability that, but for counsel’s [failure to discover and develop Simmons as a

witness], the result of the proceeding would have been different.” (Internal quotation marks

omitted.) Veach, 2017 IL 120649, ¶ 30.

¶ 90 By finding in the earlier section 2-1401 proceeding that Simmons’s testimony

would not change the result on retrial, the trial court answered the question of whether there exists

a reasonable probability that, but for counsel’s alleged failure to call Simmons as a witness at trial,

the result of the proceeding would have been different. The court, in the same case between the

same parties, heard Simmons’s testimony and determined it would not have changed the outcome.

Defendant did not appeal the trial court’s finding.

¶ 91 Accordingly, under the particular facts of this case, the doctrine of res judicata

precludes defendant’s ineffective assistance claim. If defendant’s ineffective assistance claim were

not barred by res judicata, defendant would have a second opportunity to argue the same issue—

namely, whether, had trial counsel presented Simmons’s testimony to the jury, there exists a

reasonable probability that the outcome would have been different. A trial court’s finding in favor

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of defendant on that issue in the postconviction proceedings would result in inconsistent findings

on the same issue in the same litigation involving the same parties, which is contrary to principles

of judicial economy that the doctrine of res judicata seeks to promote. See River Park, 184 Ill. 2d

at 319 (“The purpose of res judicata is to promote judicial economy by requiring parties to litigate,

in one case, all rights arising out of the same set of operative facts and also [to] prevent[ ] the

unjust burden that would result if a party could be forced to relitigate what is essentially the same

case.”).

¶ 92 We emphasize that our holding is limited to the facts of this case because we

acknowledge that there may be other cases where an actual innocence claim may not share the

same dispositive issue as a subsequent ineffective assistance claim. However, we need not

speculate on what those circumstances may be because they do not exist in this case.

¶ 93 We also note that an analysis of defendant’s appeal from a different perspective

leads us to the same conclusion. Defendant seeks a reversal of the trial court’s judgment and

remand for a third-stage evidentiary hearing on his claim that his trial counsel was ineffective for

failing to develop Simmons as a witness. Such a hearing would consist, primarily, of Simmons’s

testimony. However, defendant has already presented Simmons’s live testimony to the trial court.

A third stage evidentiary hearing would be a repeat of the hearing on defendant’s amended section

2-1401 petition, at which the court would be considering, again, the probability of Simmons’s

testimony to change the outcome of defendant’s trial. Res judicata prevents defendant from taking

“two bites out of the same apple.” Diocese of Quincy v. Episcopal Church, 2016 IL App (4th)

150193, ¶ 28, 56 N.E.3d 573.

¶ 94 For all of these reasons, we affirm the judgment of the trial court dismissing

defendant’s postconviction petition.

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¶ 95 B. Ineffective Assistance of Postconviction Counsel

¶ 96 Defendant also argues that his postconviction counsel provided unreasonable

assistance by failing to (1) identify a specific gunshot residue expert who should have been called

as a witness at trial, (2) attach an affidavit containing that expert’s prospective testimony, or

(3) explain the absence of an identified expert and affidavit. Defendant contends that, by not taking

these steps, postconviction counsel failed to comply with his obligation under Rule 651(c) to

adequately present defendant’s claim.

¶ 97 1. The Applicable Law

¶ 98 “Because the sixth amendment right to counsel does not extend to postconviction

petitioners, counsel is afforded in collateral proceedings under the Act only as a matter of

legislative grace, if at all.” People v. Custer, 2019 IL 123339, ¶ 30, 155 N.E.3d 374.

“Consequently, criminal defendants seeking relief in postconviction petitions have no

constitutional right to counsel, effective or otherwise.” Id. Under the Act, a defendant is entitled

only to a reasonable level of assistance, “a standard that is significantly lower than the one

mandated at trial by our state and federal constitutions.” Id.

¶ 99 “Commensurate with the lower reasonable assistance standard mandated in

postconviction proceedings, Illinois Supreme Court Rule 651 (eff. July 1, 2017) sharply limits the

requisite duties of postconviction counsel.” Id. ¶ 32. Postconviction counsel is “required only to

certify they have [(1)]‘consulted with the petitioner by phone, mail, electronic means or in person,’

[(2)] ‘examined the record’ as needed to shape the defendant’s pro se claims, and [(3)] ‘made any

amendments to the petitions filed pro se that are necessary for an adequate presentation’ of those

claims.” Id. (quoting Ill. S. Ct. R. 651(c) (eff. July 1, 2017)).

¶ 100 “If amendments to a pro se postconviction petition would only further a frivolous

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or patently [meritless claim], they are not ‘necessary’ within the meaning of the rule.” People v.

Greer, 212 Ill. 2d 192, 205, 817 N.E.2d 511 (2004). Moreover, although Rule 651(c) requires

postconviction counsel to make necessary amendments, “counsel is under no obligation to actively

search for sources outside the record that might support general claims raised in a postconviction

petition.” (Internal quotation marks omitted.) People v. Nelson, 2016 IL App (4th) 140168, ¶ 16,

49 N.E.3d 1007.

¶ 101 The filing of a Rule 651(c) certificate creates a rebuttable presumption that counsel

has provided reasonable assistance. People v. Profit, 2012 IL App (1st) 101307, ¶ 19, 974 N.E.2d

813. “It is the defendant’s burden to overcome this presumption by demonstrating his attorney’s

failure to substantially comply with the duties mandated by Rule 651(c).” Id.

¶ 102 An attorney’s compliance with Rule 651(c) is reviewed de novo. Id. ¶ 17.

¶ 103 2. This Case

¶ 104 In the present case, defendant’s pro se petition alleged that his right to the

effective assistance of counsel was violated (1) “where trial counsel failed to interview potential

defense witnesses and pursue substantial mistaken identification” and (2) “where defense

counsel failed to interview and call as a witness Roderick Simmons who could have corroborated

[defendant’s] alibi.”

¶ 105 Defendant’s first postconviction counsel amended the pro se petition to allege

ineffective assistance of trial counsel for failure to identify and secure as a witness a gunshot

residue expert. At a second-stage hearing, the trial court rejected the claim on its merits, stating

that it agreed with the arguments made by the State in its written motion to dismiss. The State

had argued that defendant could not state a claim for ineffective assistance because he could not

demonstrate that he was prejudiced by his trial counsel’s failure to secure a gunshot residue

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expert. Specifically, the State asserted the following:

“Wong’s testimony was at a minimum *** without impact to the defense and

could also have been seen as positive. In short, there was nothing for the trial

counsel to cross examine this witness [Wong] on because the testimony supported

the Defense theory that the Defendant didn’t shoot a gun. Therefore, there would

also be no need to call a defense expert to say the same thing.”

¶ 106 However, as noted (supra ¶ 51), defendant’s first postconviction counsel failed to

file a Rule 651(c) certificate. Accordingly, this court reversed the trial court’s judgment on that

limited basis, and the trial court appointed new postconviction counsel to represent defendant on

remand. Poole, No. 4-16-0835.

¶ 107 In defendant’s second amended postconviction petition, new postconviction

counsel repeated the gunshot residue expert claim without identifying an expert, attaching an

affidavit, or explaining the absence of an affidavit. Defendant argues that these failures

demonstrate a lack of substantial compliance with the requirements of Rule 651(c). We disagree.

¶ 108 First, this case is similar to Nelson, 2016 IL App (4th) 140168, ¶ 21, in which this

court found that “postconviction counsel did not fail to provide reasonable representation by failing

to conduct a search to find an expert witness who would support defendant’s claims.” In Nelson,

the pro se petition alleged generally that trial counsel rendered ineffective assistance by not

challenging the credentials of the forensic pathologist called to testify by the State. Id. ¶ 7.

Postconviction counsel filed an amended petition arguing that trial counsel was ineffective for

failing to “hire an independent expert to rebut [the pathologist’s] testimony.” Id. ¶ 8. The trial court

found that defendant “provided no facts to support his allegations” and denied defendant’s petition.

Id. ¶ 9.

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¶ 109 This court affirmed the trial court’s judgment, stating the following:

“Rule 651’s mandate requiring counsel to make necessary amendments is

not limitless. For example, case law establishes counsel is ‘under no obligation to

actively search for sources outside the record that might support general claims

raised in a post-conviction petition. People v. Johnson, 154 Ill. 2d 227, 247 609

N.E.2d 304, 314 (1993). Our supreme court also held, if a pro se petitioner fails to

specify a particular witness to support a claim, appointed counsel is under no

obligation to go on a ‘fishing expedition’ to find a witness. Id. at 247-48 ***.

Analogous to this case, our supreme court held, in People v. Williams, 186

Ill. 2d 55, 61, 708 N.E.2d 1152, 1155 (1999), Rule 651(c) does not require

appointed counsel to provide an affidavit or other documentation from an

unidentified expert witness.” Id. ¶¶ 16-17.

¶ 110 Like in Nelson, defendant brought in his pro se petition a general claim that his trial

counsel rendered ineffective assistance by failing to “interview potential defense witnesses and

pursue substantial mistaken identification.” Defendant did not identify any of those potential

defense witnesses, except Roderick Simmons. As Nelson, Johnson, and Williams instruct,

postconviction counsel was not obligated to go on a fishing expedition to find an expert witness to

support defendant’s general claim.

¶ 111 Additionally, we conclude that defendant’s gunshot residue expert claim lacks

merit. When the trial court denied defendant’s gunshot residue expert claim in the first amended

petition, the court noted that it agreed with the arguments contained in the State’s written motion

to dismiss. We also agree, for the same reasons, that defendant cannot demonstrate either prong of

the Strickland test. Defendant cannot show either that his attorney performed deficiently by failing

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to secure an independent gunshot residue expert or that he was prejudiced by the absence of an

independent expert to challenge Wong’s testimony because Wong’s testimony was completely

neutral, if not favorable to defendant. She testified that defendant “may not have fired” a gun and

explained that her test discovered only “particles characteristic of background samples.” That is to

say, using an instrument as sophisticated as a scanning electron microscope, she was unable to

detect any gunshot residue on the samples collected from defendant. Wong’s explanations for why

gunshot residue particles may have been “removed by activity, *** not deposited, or not detected”

were entirely speculative. The jury did not need an additional expert witness to explain what was

apparent from Wong’s testimony: the State had no forensic evidence to prove that defendant fired

the gun. Accordingly, defendant cannot show that he was prejudiced by the absence of independent

expert testimony to challenge Wong’s testimony.

¶ 112 Moreover, given the neutrality of Wong’s testimony, it was a reasonable strategy

for trial counsel to (1) not challenge or overemphasize Wong’s testimony and (2) argue to the jury

that the State’s own expert could not detect gunshot residue on defendant. Accordingly, it cannot

be said that defendant’s trial counsel performed deficiently. To the contrary, we conclude that

defendant’s trial counsel performed appropriately with regard to Wong’s testimony.

¶ 113 Accordingly, we reject defendant’s argument that his postconviction counsel

rendered unreasonable assistance.

¶ 114 III. CONCLUSION

¶ 115 For the reasons stated, we affirm the trial court’s judgment.

¶ 116 Affirmed.

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 People v. Poole, 2022 IL App (4th) 210347

Decision Under Review: Appeal from the Circuit Court of McLean County, No. 10-CF-417;
the Hon. John Casey Costigan, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Roxanna A. Mason, of
for State Appellate Defender’s Office, of Springfield, for appellant.
Appellant:

Attorneys Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino,
for David J. Robinson, and Benjamin M. Sardinas, of State’s Attor-
Appellee: neys Appellate Prosecutor’s Office, of counsel), for the People.

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