People v. Abdullah

2023 IL App (2d) 220196-U
No. 2-22-0196
Order entered February 3, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
v. ) No. 04-CF-1069
)
MUHAMMAD ABDULLAH, ) Honorable
) Patricia S. Fix,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

PRESIDING JUSTICE McLAREN delivered the judgment of the court.
Justices Schostok and Birkett concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s denial of defendant’s motion for leave to file a successive
postconviction petition. Defendant did not demonstrate a colorable claim of actual
innocence based on two witnesses’ affidavits because the evidence was not newly
discovered. The trial court is affirmed.

¶2 Defendant, Muhammad Abdullah 1 , appeals from an order of the circuit court of Lake

County denying him leave to file a successive petition for relief under the Post-Conviction Hearing

1
The indictment, mittimus, and notice of appeal list defendant’s name as Abdullah

Muhammad. However. our previous rule 23 order listed defendant as Muhammad Abdullah, and
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Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). Defendant contends he presented a colorable

claim of actual innocence based on the affidavits of Robert Bunch and Jeremy Cooper. For the

reasons set forth below, we affirm.

¶3 I. BACKGROUND

¶4 In the afternoon of March 15, 2004, Marco Wilson was shot to death and Luis “Speedy”

Melendez was shot in the back in front of 1821 Greenfield in North Chicago.

¶5 Following a 2005 trial, a jury convicted defendant of the first degree murder of Marco

Wilson, the attempt first degree murder of Luis Melendez, and aggravated battery with a firearm.

The court ultimately sentenced defendant to consecutive terms of 50 years’ imprisonment for first

degree murder and 26 years for attempted first degree murder. We affirmed on direct appeal.

People v. Abdullah, No. 2-06-0086 (unpublished summary order under Illinois Supreme Court

Rule 23(c)).

¶6 A. Trial Proceedings

¶7 Luis “Speedy” Melendez testified that he was a Four Corner Hustler and had been for four

years. At approximately 2:00 p.m. on March 15, 2004, he was at the Alexander family house on

Greenfield in North Chicago, shooting dice with a group of people, most of whom he did not know.

He left with his girlfriend to get some food. Upon their return, Melendez walked toward the front

of his girlfriend’s car when he heard someone say, “What up now, Bitch?” He did not recognize

the man and ignored him. The man then punched Melendez in the jaw; Melendez dropped his food

and wrestled with the man. As he fought this man, he heard a car pull up and the voice of his best

friend, Marco Wilson. He also heard defendant’s voice. He then heard four or five gunshots and

defendant represents that his name is Muhammad Abdullah. Therefore, we refer to defendant as

such.

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passed out.

¶8 When Melendez awoke, he saw three friends loading Wilson into a car. A gold car with

tinted windows drove by and shot in the direction of the people carrying Wilson. Melendez pulled

a .357 magnum revolver from his pocket and fired toward the gold car. He then went into the alley

and threw the gun in a garbage can. He returned to the front of the house and passed out. Melendez

had been shot in the back, between his shoulder blades; the bullet exited under his left arm pit. The

bullet also broke three ribs and punctured a lung. Prior to being shot, he had not drawn his gun and

had not seen anyone else draw a weapon. He did not see a weapon anywhere around Marco Wilson.

¶9 During cross-examination, Melendez admitted to convictions for retail theft and felony

possession of firearms He also admitted that he did not tell police on the day of the shooting or the

following day that he had a gun with him at the time of the shooting. When he was on the ground

wrestling, he did not hear a gun being cocked. He heard four or five rapid gunshots but did not

know who shot him or how he got shot. Wilson fell four to five feet away from him. Melendez

lied to police when he told them that he retrieved his gun from under the seat of a car; the gun had

been in his pocket.

¶ 10 Demetrious Linder testified that he and his brother Bashir were walking on Greenfield

toward 18th Street by their friend “Tom’s” house when they saw “Speedy” Melendez get out of

his girlfriend’s car with food in his hands. A dark-skinned man walked up to Melendez and asked

him something, and they started fighting. Demetrious was only six to eight feet away from

Melendez and the other man as they fought on the ground. Marco Wilson then ran up to Melendez

and the other man, who were on the ground. A lot of other people, including a “light-skinned guy,”

approached the fighters. The light-skinned man, subsequently identified as defendant, pulled out a

pistol and pointed it at Wilson, who had nothing in his hands. Demetrious then heard Wilson say,

“Shoot” three or four times as he faced defendant. Defendant shot Wilson, who then fell.

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Demetrious ran away. He heard, but did not see, other shots fired. On March 15, Demetrious told

police that he did not see the shooting take place. He was shocked and “didn't like the police,” so

he told them something “to get them out of [my] face.” Demetrious was “cool” with Melendez and

had been friends with Wilson. He denied being a Four Corner Hustler. He never saw Melendez

with a gun.

¶ 11 Bashir Linder testified that on the day of the shooting at about 2:20 p.m. he and his brother

were on Greenfield and 18th streets. They were there because they wanted to shoot dice. When

Bashir got out of the car, he saw a lot of people standing out on the street. He saw someone run up

to “Speedy” Melendez, who was standing on the sidewalk, and swing at him. As they fought on

the ground, Wilson pulled up in a car, jumped out, and “tried to help Speedy off the ground.”

Bashir saw defendant pull out a gun, point it at Wilson, and fire. Wilson had nothing in his hands.

Bashir then ran away.

¶ 12 Bashir was perhaps ten feet away from Melendez as he wrestled with the other man. The

two fought for “about a minute” before Bashir saw defendant. Melendez was on his stomach,

underneath the other man.

¶ 13 Leo Presley testified that he was playing dice inside the Alexander house on Greenfield

when he saw a group of people walk past the house. Someone then said that “[s]omebody just stole

on Speedy.” As Presley ran outside, he heard a shot. He saw Wilson lying on top of Melendez and

a crowd of people around them. He saw defendant right beside them, pointing an automatic gun at

them, then heard another shot. He saw no one else with a gun at that time. Presley helped pick up

Wilson and put him in a car; he did not see a gun on or near Wilson’s body. Melendez, who had

jumped up and said that he had been shot, “got ahold of his gun and started shooting back.” Presley

saw no guns other than those used by defendant and Melendez.

¶ 14 On cross-examination, Presley testified that defendant fired five or six shots at Wilson and

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Melendez. Three days after the shooting, he told Detective Diez that defendant had fired at least

30 shots. When shown a picture of Melendez’s gun, Presley said that he had never seen that gun

before. On redirect, Presley testified that he estimated that he heard a total of 30 shots fired. This

included the first shot he heard, “a rapid set of shots” that he saw defendant fire, Melendez’s shots,

and shots fired by defendant as he went to his car. Presley was friends with Wilson, Melendez, and

defendant. On recross, Presley testified that defendant fired around 30 shots.

¶ 15 Timothy Wiltberger testified that on the day of the shooting he was working on a telephone

box on the back of a house near the incident. He heard a “series of pops” that he assumed were

gunshots. He heard “about three and then it was a pause and then there was [sic] a few more. I

don't know exactly. Maybe three to four” more pops were heard.

¶ 16 Donald Burns testified that he lived at 1833 Greenfield. At about 2:25 pm on March 15,

2004, he heard what he thought was “somebody banging on something,” then realized the sounds

were gunshots. He could not say how many shots he heard, but he described the sounds as, “pow,

pow and then it was a couple of shots after that.”

¶ 17 Officer Salvatore Cecala of the North Chicago police department testified that he went to

the scene of the shooting as an evidence technician. He found three spent shell casings within a

five-foot radius of blood stains: one by the curb, one on the parkway, and one on the street. All

three were 9-millimeter Luger casings. He also recovered a large-caliber bullet fragment in the

street. A detective directed him to a garbage can behind 1822 Greenfield, where he recovered a

chrome-plated .357 magnum revolver containing six spent 38 caliber shell casings. The rimless

shell casings that he had recovered on the curb, street and parkway could not have come from the

revolver. No bullet was recovered from Melendez’s body, and they were unable to determine the

caliber of the bullet removed from Wilson’s body.

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¶ 18 Defendant testified that, on the afternoon of March 15, 2004, he received a telephone call

from his friend, Jamiel Amlet, asking him to come get him because someone was shooting at him.

Defendant got a ride with another friend, Anton Thompson, and drove to Greenfield, about five

minutes away. He saw a group of men around Amlet, kicking him. He then saw Wilson, about 15

to 20 feet away, get out of a car and stuff a gun into his pants. Defendant jumped out of the car

with a gun that belonged to Thompson and ducked down behind the back of the car. First Wilson,

then defendant walked about 15 to 20 steps toward Amlet and Melendez. Defendant saw Wilson

try to pull the gun from his waistband, and he yelled three times to Wilson, “Don't do it.” Wilson,

who was about five feet away from defendant, pulled out his gun. Defendant shot; he thought he

shot only once, but he was scared, and it happened very fast. He never shot at, or shot, Melendez,

who was between defendant and Wilson. Wilson’s gun discharged as he pulled the gun from his

waistband, and he shot Melendez in the back. Wilson then fell on top of Melendez. Defendant then

picked up Amlet and ran away. He went to Wisconsin for several months. Defendant was shown

a photo of the revolver found in the garbage can, and he identified it as the gun that Wilson pulled

from his waistband.

¶ 19 During cross-examination, defendant testified that he shot at Wilson first. Defendant also

testified that Wilson “shot first, that’s when I shot.” Defendant admitted that he lied when he told

police that he had gone to Georgia after the shootings and that he was “not anywhere near

Greenfield Avenue” at the time of the shootings. He also admitted to lying to police about his

activities prior to 2:30 p.m. on March 15. He told police that the gun he used on March 15 was a

“regular semi-automatic.” After he shot Wilson, he threw the gun in the car and ran away; however,

he told police that he had disposed of it, and he did not know where it was.

¶ 20 Stephen Newton, Chief Deputy Coroner with the Lake County coroner’s office testified

that he completed a presumptive gunshot residue kit on Wilson’s body before removing it from

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the hospital. That test had a positive result for gunshot residue on Wilson’s hands. That test was

not a conclusive test and could yield false positives. In examining Wilson’s hands, he saw no debris

around the area where residue would have been collected.

¶ 21 In rebuttal, the State presented Detective Frederick Diez of the North Chicago police

department, who testified that he interrogated defendant in Kenosha, Wisconsin on September 1,

2004. Defendant first gave Diez a timeline of activities on March 15 that made no mention of the

shootings on Greenfield and included his traveling to Georgia on that date. When Diez told

defendant that he did not believe the story, defendant gave another statement.

¶ 22 Defendant told Diez that he received a call from Amlet that Melendez and other Four

Comer Hustlers had shot at him. After defendant and another man picked up Amlet, they met

another friend and proceeded to Greenfield Avenue to confront the Four Corner Hustlers. Before

getting out of the car, defendant stuck a Tech-9 9-millimeter Luger parabellum semiautomatic

weapon in his pants. After Amlet and Melendez got into a fight, defendant saw Wilson get out of

a car and stuff some unknown item into his pants. Defendant never saw anyone other than

Melendez fighting with Amlet, although other people were near the fight. Defendant pulled out his

gun when he saw Wilson approach the altercation with his hand over what he thought was a gun.

Defendant said, “Don't do it. We could fight.” As Wilson pulled out his gun, it went off. Wilson

tried to take away defendant’s gun, but defendant fired at least two shots and shot Wilson.

¶ 23 The court admitted defendant’s handwritten signed statement, dated September 1, 2004,

substantively, as agreed by counsel. Defendant wrote the following:

“Me and Ton was riding around No. Chicago when my Cell Phone rings it was

Jemiel; he said Big Bra where you at they Shooting at me; I said who; he said them 4’s. So

me and Ton do find Jemiel; he gets in the car and we went to Prospect St. That’s when we

meet up with Tony. So we like let’s go over there to see what’s going on. When we got

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there (Greenfield) Jemiel and Speedy got to fighting. Then I seen Marco getting out of the

back seat of the car and he was stuffing something down his pants under his shirt. But,

when Marco got out he started walking toward Jemiel & Speedy plus it was like 4 or 5 little

4’s out there as well. So, yes, I’m scared. I told Marco, ‘Don’t pull it, don’t do it.’ He

looked at me and started walking to me reaching in his pants. I seen the handle of his gun

so I pulled my gun out first and told him again ‘don’t do it man we can fight.’ He did not

want to fight he wanted to shoot. So, when he walked up on me he tried to take my gun

and shoot me[.] But I pulled the trigger first. AS GOD AS my witness I did not want to

shoot him But, He was going to shoot me First.”

¶ 24 Robert Berk testified that he was a trace evidence analyst for the Illinois State Police. In

May 2005, he performed an electron microscope analysis of a gunshot residue kit that had been

collected from Wilson. In his opinion, the result was negative for gunshot residue on either hand.

The delay between the collection of the kit and the analysis would not affect the result of the

analysis.

¶ 25 The trial court instructed the jury regarding self-defense theory. After deliberating the jury

found defendant guilty of first degree murder, attempt first degree murder, and aggravated battery

with a firearm. The court sentenced defendant to consecutive terms of 50 years’ imprisonment for

first-degree murder and 26 years for attempted first-degree murder.

¶ 26 B. Postconviction Proceedings

¶ 27 In 2009 defendant filed a pro se postconviction petition arguing, inter alia, various claims

of ineffective assistance of counsel. Relevantly, he argued that counsel was ineffective for failing

“to call or interview eyewitness whose testimony would corroborate [his] self-defense claim.”

Defendant attached to the petition an affidavit of Jeremy Cooper dated January 16, 2009, wherein

he averred the following. On the date of the shooting, Cooper was “shooting dice” in a house on

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the street where the incident occurred. Cooper went outside and saw two men fighting “on the side

of the street.” A “dude” got out of a purple car and put a big, silver gun in his pants. Defendant ran

up and “tried to stop the dude with the gun by saying, ‘don’t do it.’” Then the “guy with gun pulled

it out first and shot at [defendant]. Then [defendant] pulled out a gun and shot the guy with the big

silver gun. [Defendant] then ran down the street with the other person that was fighting.” Then

another guy picked up the silver gun and shot at defendant as he ran down the street. Cooper ran

away after that because a lot of people came out of nowhere and he became scared. At fist Cooper

did not say anything because he is not a “snitch,” but then he learned how “everyone lied on

[defendant and he] had to tell the truth about what happened that day. [Defendant] only shot one

guy (the guy who got out of the purple car) – no one else.”

¶ 28 In May 2009, the trial court summarily dismissed the petition. We affirmed the court’s

dismissal. People v. Abdullah, 2012 IL App (2d) 090695-U (filed Feb. 2, 2012) (unpublished

summary order under Illinois Supreme Court Rule 23(c)).

¶ 29 In December 2021, defendant filed a motion for leave to file a successive postconviction

petition seeking relief under the Act. Defendant’s motion alleged, inter alia, a claim of actual

innocence. In particular, defendant’s succussive postconviction petition asserted that he shot

Wilson in self-defense. In support, he included the affidavits of Cooper and Bunch.

¶ 30 Defendant alleged the following:

“Robert Bunch and Jeremy Cooper’s averments were discovered on June 2, 2017[,] and

[F]ebruary 20, 2018[, r]espectively; over a decade after [defendant’s] trial. Their names are

not mentioned in the discovery. Nor did [defendant] have any knowledge they witnessed the

incident due to the large crowd on the street when the shooting occurred. As such, due diligence

could not have uncovered these witnesses sooner.”

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¶ 31 Jeremy Cooper provided a second notarized and signed affidavit, dated June 2, 2017,

wherein he made the same averments as his prior affidavit dated January 2009, including that prior

to the shooting, he had been shooting dice at a house on Greenfield. Cooper added that he knew

defendant “from seeing him around a few of [his] cousins.” Cooper did not “really know too much

about [defendant].” Cooper also averred that “nobody ever interviewed [him] about this shooting.”

¶ 32 The notarized and signed affidavit of Robert Bunch, dated February 20, 2018, averred that

on the day of the incident he was at Tom Alexander’s house on the 1800 block of Greenfield where

a “big dice game” was going on. As Bunch left the house, he saw Amlet and Melendez fighting

on the ground. A “bunch of people” stood around the fight. Then “a purple car stopped in the

middle of the street and Marco [Wilson] got out in a[n] aggressive fashion.” Wilson tried to help

Melendez fight “by walking up on the fight and reaching for something in his waistline.”

Defendant then “walked over and tried to break up the fight by saying, ‘Break it up. Break it up.

Get off of him.’” Wilson told defendant that he would “kill” him if he “got involved.” Then Wilson

“pulled a silver handgun and [defendant said[, ‘]Don’t do it, don’t do it[.’]” Wilson then said,

“‘F**k that motherf**ka’ and then shot at [defendant] one time. [Defendant] then pulled a gun out

that was black and shot [Wilson], then [defendant] ran away down the street. [Melendez] then

picked up [Wilson’s] gun and started shooting down the street at [defendant].”

¶ 33 On February 16, 2022, the trial court denied defendant’s motion for leave to file his

successive postconviction petition based on the cause and prejudice test. The trial court reasoned

that defendant’s initial postconviction petition was fully litigated and there were no additional

grounds for relief that would cause it to allow the filing of a succussive petition. On March 10,

2022, defendant filed a motion to reconsider which the trial court denied on April 27, 2022. On

May 25, 2022, defendant filed a timely notice of appeal.

¶ 34 II. ANALYSIS

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¶ 35 On appeal, defendant argues that the trial court erred when it denied his motion for leave

to file a successive postconviction petition because he presented a colorable claim of actual

innocence based on the newly discovered evidence contained in Cooper and Bunch’s affidavits.

Defendant contends these affidavits exonerate him of his conviction for first degree murder of

Wilson because the affidavits establish that Wilson shot first, supporting his claim of self-defense.

¶ 36 The Act provides a statutory remedy to criminal defendants who claim that substantial

violations of their constitutional rights occurred at trial. People v. Taliani, 2021 IL 125891, ¶ 53.

A postconviction proceeding is not a direct appeal from a conviction but constitutes a collateral

attack on the judgment. Id. The Act contemplates the filing of only one post-conviction petition.

Id. Succussive petitions impede the finality of criminal litigation, and, therefore, the rules barring

them will be relaxed only when fundamental fairness requires. Id. ¶ 54.

¶ 37 Illinois recognizes two exceptions where fundamental fairness requires that the bar against

successive petitions be lifted: the cause and prejudice exception (see 725 ILCS 5/122-1(f) (West

2020), and the fundamental miscarriage of justice exception. Id. ¶ 55. The latter exception requires

the defendant to make a persuasive showing of actual innocence. Id.

¶ 38 Procedurally, the Act requires leave of court to file a successive petition claiming actual

innocence. Id. ¶ 58. A request to file a successive petition based on actual innocence is reviewed

under a higher standard than that applicable to the first stage for an initial petition, which only

requires that the petition is not frivolous or patently without merit. People v. Robinson, 2020 IL

123849, ¶ 43. The defendant need not show cause and prejudice. Taliani, 2021 IL 125891, ¶ 58.

However, the defendant must support his claim of actual innocence with evidence that is (1) newly

discovered, (2) material and not cumulative, (3) and of such conclusive character that it would

probably change the result on retrial. Id.

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¶ 39 A trial court should grant a request for leave of court to file a successive petition based on

actual innocence where the defendant’s supporting documents raise the probability that it is more

likely than not that no reasonable juror would have convicted the defendant in light of the new

evidence. Robinson, 2020 IL 123849, ¶ 44. Conversely, a trial court should deny a request for

leave to file a successive petition “only where it is clear from a review of the petition and

supporting documentation that, as a matter of law, the petition cannot set forth a colorable claim

of actual innocence.” Id.

¶ 40 Where leave to file a successive petition is granted, the petition is docketed for subsequent

second-stage proceedings. People v. Sanders, 2016 IL 118123, ¶ 28. We review de novo a trial

court’s denial of leave to file a successive postconviction petition alleging actual innocence.

Taliani, 2021 IL 125891, ¶ 52. Additionally, we may affirm the court’s denial on any basis

supported by the record, regardless of the court’s reasoning. People v. Howard, 2021 IL App (2d)

190695, ¶ 21.

¶ 41 At the pleading stage of postconviction proceedings, all well-pleaded allegations in the

petition and supporting affidavits that are not positively rebutted by the trial record are to be taken

as true. Robinson, 2020 IL 123849, ¶¶ 45. An allegation is positively rebutted by the trial record

only if it is “clear from the trial record that no fact finder could ever accept the truth of that

evidence, such as where it is affirmatively and incontestably demonstrated to be false or

impossible.” Id. ¶ 60. Also, in deciding the legal sufficiency of a postconviction petition, the court

is precluded from making factual and credibility determinations. Id. ¶ 42.

¶ 42 Evidence is newly discovered where it was discovered after trial and “could not have been

discovered earlier through the exercise of due diligence.” People v. Coleman, 2013 IL 113307,

¶ 96. An affidavit is newly discovered where no amount of due diligence could have forced the

witness to testify to those facts at trial. People v. Anderson, 2021 IL App (1st) 200040, ¶ 59; People

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v. Fields, 2020 IL App (1st) 151735, ¶ 48. The defendant bears the burden of demonstrating he

exercised due diligence. People v. Walker, 2015 IL App (1st) 130530, ¶ 18.

¶ 43 Newly discovered evidence includes testimony from a witness who “essentially made

himself unavailable as a witness” by moving out of state (People v. Ortiz, 235 Ill. 2d 319, 334

(2009)), testimony from a witness who had been made unavailable through threats or intimidations

not to testify (People v. White, 2014 IL App (1st) 130007, ¶¶ 20-22), and testimony from a

codefendant who could be forced to violate his own fifth amendment right to avoid self-

incrimination (People v. Edwards, 2012 IL 111711, ¶ 38). At the same time, “[i]f an unknown,

unobserved and unrecorded witness chooses not to come forward, there is no amount of due

diligence that can force him or her to come forward to ‘get involved.’” Anderson, 2021 IL App

(1st) 200040, ¶¶ 63, 64 (holding that the evidence was newly discovered because it was unlikely

that the defendant or others would have observed or noticed the two new witnesses, and they

insured their anonymity by their immediately fleeing the scene) (citing Fields, 2020 IL App (1st)

151735, ¶¶ 47 48 (evidence was newly discovered because witness moved out of town before

trial)).

¶ 44 Defendant argues that Cooper and Bunch’s affidavits are newly discovered because they

were not referred to at trial or in discovery, there was a large crowd at the shooting, and defendant

was unaware that they witnessed the shooting. Defendant thus asserts that due diligence could not

have uncovered Cooper and Bunch’s observations of the incident prior to trial.

¶ 45 Here, Walker and Wingate are instructive. In Walker, the defendant claimed actual

innocence based on a statement from a witness, provided 27 years after the crime, that the witness

observed the crime, and the defendant was not the perpetrator. Walker, 2015 IL App (1st) 130530,

¶¶ 6, 18. The witness did not allege that he failed to come forward out of fear for repercussion or

explain his 27-year absence or his whereabouts between the crime and the statement, and the

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defendant did not explain why the witness had not been previously located. Id. ¶ 18. The majority

found that the witness’s statement was not newly discovered evidence. Id. The dissent argued that

the defendant should not have been expected to find witnesses supporting his actual innocence

claim while he was incarcerated and had no way of knowing the witness observed the crime. Id.

¶ 34 (Pucinski, J., dissenting). The majority countered that it was the defendant’s burden to show

due diligence, and the statement was not new evidence because he failed to explain why the witness

was not previously located. Id. ¶ 18.

¶ 46 In Wingate, an affiant who was at the scene of a shooting came forward several years later

and averred that one of the people at whom the defendant shot raised a firearm towards the

defendant before the defendant fired. Wingate, 2015 IL App (5th) 130189, ¶ 20. However, the

affidavit contained no facts suggesting that the affiant was positioned such that he could not have

been observed by other people at the scene of the shooting, or facts suggesting the affiant was

unavailable or could not be located after the crime. Id. ¶¶ 27-28. Nor did the postconviction petition

allege any facts regarding whether other witnesses who were interviewed by police failed to tell

the police the affiant was at the scene. Id. ¶ 29. Thus, the appellate court found that the defendant

did not allege “any facts that would, if taken as true, validate the proposition that the defendant

exercised due diligence” in attempting to discover the affiant. (Emphasis in original.) Id. ¶ 30.

¶ 47 The same reasoning applies here. Cooper and Bunch’s affidavits, which we must accept as

true (Robinson, 2020 IL 123849, ¶ 45), establish that, prior to the shooting, they were at Tom

Alexander’s house where a dice game was going on. When they left Alexander’s house, they saw

Amlet and Melendez fighting on the ground with a “bunch of people standing around the fight.”

Cooper saw a man get out of a car and put a big silver gun in his pants. Bunch saw Wilson get out

of a car and walk up to the fight. Bunch also saw defendant walk over and try to break up the fight

and heard defendant say, “break it up, break it up, get off of him.” Similarly, Cooper saw defendant

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try to stop the man with the silver gun. Bunch heard Wilson tell defendant that if he got involved,

Wilson would kill defendant, and saw Wilson pull a silver gun. Cooper and Bunch then heard

defendant say, “Don’t do it.” Bunch heard Wilson say, “F**k that Motherf**ka.” Cooper and

Bunch saw Wilson shoot at defendant. Cooper and Bunch saw defendant shoot Wilson and run

down the street. Bunch described defendant’s gun as black. Cooper and Bunch also saw Melendez

pick up Wilson’s gun and shoot down the street at defendant.

¶ 48 Cooper and Bunch was close enough to defendant, Wilson, and Melendez to hear and see

what they did and said, and to observe their firearms. Therefore, Cooper and Bunch would have

been visible to Melendez and Presley who were also at Alexander’s house shooting dice prior to

the shooting and others in the crowd. In other words, Cooper and Bunch were not unknown, and

Bunch did not aver that he fled the scene. Compare People v. Anderson, 2021 IL App (1st) 200040,

¶ 64 (holding that the evidence was newly discovered because it was unlikely that the defendant

or others would have observed or noticed the two new witnesses, and they insured their anonymity

by their immediately fleeing the scene).

¶ 49 Further, defendant fails to explain his efforts to identify anyone at the scene that could

corroborate his self-defense theory. As in Wingate, he alleges no facts from which we could infer

that he exercised due diligence in attempting to identify and locate Bunch. See Wingate, 2015 IL

App (5th) 130189, ¶ 30. Moreover, Bunch does not aver in his affidavit that he was in any way

unavailable or could not have been located. Bunch does not explain his nearly 14-year absence or

why he decided to come forward so many years later. Further, Cooper’s averment that he fled the

scene was the only pertinent addition to his previously filed 2009 affidavit. While Cooper’s

affidavit may excuse his own failure to come forward sooner, it does not establish that defendant

exercised due diligence in discovering him as a witness. Further, neither Bunch nor Cooper aver

that they moved away or otherwise became unavailable as a witness. Cf. Ortiz, 235 Ill. 2d 319, 334

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(2009) (witness “essentially made himself unavailable” by moving out-of-state shortly after

witnessing crime). There were a finite number of people an investigator would have had to

interview about potentially corroborating defendant’s version of the events, but defendant did not

offer a single explanation as to why an investigator would not have been able to locate the affiants

sooner with due diligence. Thus, Cooper and Bunch’s affidavits cannot be considered new

evidence. Coleman, 2013 IL 113307, ¶ 96 (to be new, evidence must not have been discoverable

earlier through due diligence); see also Walker, 2015 IL App (1st) 130530, ¶¶ 16, 18 (rejecting a

claim of newly discovered evidence based upon an eyewitness who claimed to have seen the

shooting and that the shooter was not the defendant; the witness’s statement failed to “provide the

court a reasonable explanation for either [the witness’s] 27-year absence or his sudden

appearance,” and the defendant “fail[ed] to explain why [the witness] was not located until nearly

30 years after the crime occurred”); Wingate, 2015 IL App (5th) 130189, ¶ 27 (affidavit explaining

why the witness did not come forward did not address whether the defendant exercised due

diligence).

¶ 50 After oral argument defendant moved to cite additional authority. We grant defendant’s

motion. However, People v. Ayala, 2022 IL App (1st) 193484, cited by defendant, is

distinguishable from this case. In Ayala, the court held that the affidavits of four alleged gang

participants qualified as newly discovered evidence because the participants were unavailable to

testify at trial. Id. ¶¶ 136-137 (one witness asserted his fifth amendment right against self-

incrimination, and the other three failed to testify due to fear of police and prosecutorial threats,

intimidation, and physical abuse). The court also held that the affidavits of two witnesses who

recanted their testimony qualified as newly discovered evidence. Id. ¶¶ 138-140. Here, defendant

has not demonstrated that Cooper and Bunch were unavailable to testify, or that they now aver that

they lied at trial and want to recant their testimony. Therefore, Ayala does not apply to this case.

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2023 IL App (2d) 220196-U

¶ 51 We note that the State urges us to take judicial notice that Bunch was in the custody of the

Lake County jail on the night of the shooting. The State contends that because “these suspicious

circumstances cast doubt on whether [Bunch’s affidavit is] truly newly discovered evidence, or

more newly created evidence,” a finding that Bunch’s affidavit “is newly discovered is simply not

possible.” We are precluded, however, from making factual and credibility determinations.

Robinson, 2020 IL 123849, ¶ 42. Credibility findings and determinations as to the reliability of the

supporting evidence are to be made only at a third-stage evidentiary hearing in a successive

postconviction proceeding. Sanders, 2016 IL 118123, ¶ 42. Therefore, we decline to consider the

State’s argument.

¶ 52 In sum, where Cooper and Bunch’s affidavits cannot be considered new evidence,

defendant failed, as a matter of law, to make a colorable claim of actual innocence, and the court

did not err in denying him leave to file a successive petition. See Sanders, 2016 IL 118123, ¶ 24.

¶ 53 III. CONCLUSION

¶ 54 The judgment of the circuit court of Lake County is affirmed.

¶ 55 Affirmed.

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