2017 IL App (1st) 150132
Fourth Division
November 16, 2017
No. 1-15-0132
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 01 CR 15671
)
PERNELL BROWN, ) Honorable
) Jorge Luis Alonso,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MCBRIDE delivered the judgment of the court, with opinion.
Justice Burke concurred in the judgment and opinion.
Justice Ellis dissented, with opinion.
OPINION
¶1 Petitioner, Pernell Brown, who was found guilty of first degree murder and sentenced to
50 years’ imprisonment, appeals from the Cook County circuit court’s order denying him leave
to file a successive pro se postconviction petition under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2014)). He maintains that he set forth a colorable claim of
actual innocence based on affidavits that he argues identify someone else as the shooter. Because
the affidavits do not raise the probability that it is more likely than not that no reasonable juror
would have found petitioner guilty, we affirm.
¶2 In denying petitioner leave to file his successive postconviction petition, the trial court
summarized the relevant trial evidence, which we repeat here due to the nature of petitioner’s
claims.
No. 1-15-0132
¶3 Petitioner’s conviction stems from the January 16, 2001, shooting of Robert Byrd, known
as “Rah-Rah,” who was killed in the Super Sub Shop on North Cicero Avenue in Chicago,
Illinois.
¶4 At trial before Judge Lawrence Fox, Walter Thomass 1 testified that he was 48 years old
and lived in the neighborhood where the offense occurred. On the evening of the shooting,
Thomass went to the sub shop with some friends. About 1:15 a.m., Thomass was standing by the
glass front door of the sub shop when he observed a small red Buick pull up in front of the shop.
There were two people in the car. The driver got out, reached under the driver’s seat, and pulled
out a gun. He walked into the sub shop and fired the gun twice. Thomass fled the shop, then
heard several more shots after he left. Thomass testified that petitioner was the driver and
shooter. He stated that he recognized petitioner from the neighborhood and had seen him
approximately 10 or 15 times before the shooting. He also testified that he identified petitioner as
the driver and shooter in a photo array on the day after the shooting and in a subsequent police
lineup on May 26, 2001. Thomass also testified that he accompanied detectives, who walked him
through a parking garage, to see if he could identify the vehicle that was used in the offense.
Thomass spotted the vehicle and identified it for the detectives.
¶5 Venice Blackburn testified that she was 47 years old, that she had four children who were
between 15 and 28 years old, and that she lived in the area where the shooting occurred.
Blackburn was with some friends at the sub shop shortly before 1 a.m. on January 16, 2001, and
she was still there, laughing and joking, when someone came in shooting. She testified that, after
being shot three or four times, Byrd fell to the floor and reached toward Blackburn’s leg.
1
Throughout the record, the last name of this witness is spelled either Thomas or Thomass. We
will refer to this witness as “Thomass” with the spelling used by the witness during his testimony.
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Blackburn testified that petitioner was the shooter. She also testified that she had previously
identified petitioner as the shooter in a photo array later in the morning of January 16, 2001.
¶6 Blackburn testified that she had lived in the neighborhood where the shooting occurred
for 13 or 14 years and that she had seen petitioner in the neighborhood for the same length of
time. Although Blackburn testified that she did not personally know petitioner, she also stated
that he used to play basketball with her children.
¶7 Both Thomass and Blackburn admitted to using narcotics on the day of the shooting.
Blackburn stated that she was still high at the time of the shooting but that neither her memory
nor perception were impaired. Blackburn testified that she had two drug convictions, for which
she received a sentence of probation. Blackburn completed probation satisfactorily, and at the
time of her testimony, she had participated in treatment and had not used drugs in over two
years.
¶8 Cory Gilmore testified that he grew up with individuals who went by the nicknames of
“Rah-Rah” and “Von,” whom he identified as petitioner. The prosecutor asked Gilmore if he
recalled speaking with the police on February 7, 2001, and Gilmore responded that he did not
remember because his drug use impaired his memory. Over petitioner’s objection, the trial court
allowed the prosecutor to present Gilmore’s handwritten statement given to an assistant State’s
Attorney (ASA).
¶9 In the statement, Gilmore stated he had known Byrd his whole life. On January 16, 2001,
Gilmore was at the Super Sub Shop with Robert Curry when Byrd and two other individuals
arrived. He went outside, and petitioner pulled up in a two-door maroon or red Regal. Petitioner
was by himself. Gilmore talked to petitioner at the car window. Petitioner did not say anything
about Byrd, and Gilmore did not see a gun at that time. Petitioner then pulled off alone in the car.
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Gilmore then went back inside the sub shop and got Curry so they could leave. Gilmore said they
went to a strip club and waited for some other people. After waiting 15 minutes, Gilmore called
his friend to see where he was. Gilmore was told by his friend to come back to the sub shop.
Gilmore and Curry returned to the sub shop and saw Byrd on the ground with police around him.
He never saw who shot Byrd.
¶ 10 Robert Curry testified that on January 16, 2001, he was in the vicinity of 611 North
Cicero Avenue with Gilmore. He went into the sub shop and saw Byrd but left because the place
was too crowded. He left with Gilmore. They went around the neighborhood and came back.
When they returned, Curry saw an ambulance, and they tried to find out what happened.
¶ 11 Kevin Tenard identified petitioner at trial and testified that he knew him by the nickname
“Von.” Tenard stated that on January 16, 2001, at approximately 1:30 a.m., he was in the vicinity
of 4817 West Ferdinand Street, which was the home of Iesha Rials, the mother of petitioner’s
child. Tenard was there with his brother and Rials’s cousin. At that time, petitioner drove up in a
red car. Petitioner gave Tenard the keys and asked him to give the keys to Rials. Tenard saw
another person with petitioner, but he did not know who he was. Petitioner and the other person
then got into another car and left.
¶ 12 Detective Michael Delassandro, who investigated Byrd’s shooting, testified that Thomass
and Blackburn identified petitioner as the shooter in photo arrays on the morning after the
shooting. Detective Delassandro also met with Iesha Rials at 4817 West Ferdinand Street to get
Rials’s car, a 1989 red Buick. She took him to the garage behind the building at that address, and
Detective Delassandro drove the vehicle to area 4. Detective Delassandro asked Thomass and
Gilmore to view the vehicle. Both witnesses identified the vehicle as the one they saw petitioner
driving. On February 8, 2001, Detective Delassandro met with Tenard, who told him that he was
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No. 1-15-0132
sitting on the porch at 4718 West Ferdinand Street at approximately 1 a.m. on January 16, 2001.
Tenard said that he observed a red Buick driven by petitioner, which he parked in front of that
address. Petitioner waved Tenard over and gave Tenard the car keys to give to Rials. Petitioner
then got into a car that had pulled up behind the Buick and left.
¶ 13 In his defense, petitioner attempted to show that his deceased brother, David Payton, was
the actual shooter. Petitioner’s mother, Tawana Brown, testified that she had two prior
convictions for drug offenses, for which she received four years’ imprisonment for each. Brown
testified that petitioner was living in Indianapolis at the time of the shooting. She further testified
that Payton had once identified himself as petitioner while seeking medical treatment and that
Payton had been living in Chicago at the time of the shooting. She did not, however, testify that
petitioner and Payton looked alike. Elaine Jefferson, a friend of petitioner’s mother, testified that
petitioner was staying with her in Indianapolis on the night of the shooting.
¶ 14 Petitioner’s trial counsel recalled Blackburn, and counsel presented her with photographs
of petitioner and Payton. Blackburn admitted that she had previously been shown the
photographs by the defense investigator. She indicated that she did not know who in the
photographs was the shooter and that they “favor[ed]” each other. On cross, the State asked
Blackburn why she could not identify the shooter from the photographs, and she responded that
“you can’t see them. I mean, they look alike on there. You can’t hardly tell.” The State then
asked if there was anything in particular about the photographs that prevented her from being
able to tell who the shooter was, and Blackburn responded that “Well, one thing, you can’t see
them clearly, so you really can’t [identify them.]”
¶ 15 The trial court entered extensive factual findings, spanning almost 14 pages of the record.
Regarding some of petitioner’s challenges to the eyewitnesses, the court considered both
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No. 1-15-0132
Thomass’s and Blackburn’s ability to view petitioner at the time of the shooting and subsequent
identifications to police, either by photo array or lineup, as well as their credibility, including
their admitted drug use. The trial court further reviewed their testimony alongside the videotape
of the shooting, which provided corroboration of their accounts. Specifically, when considering
their opportunity to view the shooter, the trial court noted, “Thomass was standing by the door
looking out as the car pulls up outside and the shooter exits and walks into the sub shop.”
Further, “[t]he shooter is basically right in front of Thomass when he starts shooting and
continues to walk forward, shooting as he walks.” Although neither one of the eyewitnesses
appeared to have had more than a few seconds to see the shooter’s face while he was actually in
the sub shop, the court noted that “[a]t different times the shooter comes within a couple of feet
of both witnesses.” The court also noted that “[b]oth Thomass and Blackburn testified that they
recognized defendant from the neighborhood.”
¶ 16 The trial court stated:
“While there’s some minor inconsistency in impeachment in their
testimony, what strikes me most about Thomas [sic] and Blackburn is that neither
one of them really has any reason to want to be involved in this case as a witness,
which was apparent in their manner and demeanor on the witness stand.
While Blackburn knew Rah Rah, which is the victim’s nickname, from the
neighborhood and appears to be joking around with him before he is shot, Thomas
[sic] only knew who he was and there isn’t any evidence of a close relationship
with him or any other relationship with the defendant who is known by the name
Von which would influence either one of these two people to come in here and
falsely accuse the defendant or say it was him if they weren’t certain it was.
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No. 1-15-0132
Wouldn’t it be much easier for both of them to say I’m not sure, I didn’t
get a good look at the guy, or something like that?
On the other hand, doesn’t it make more sense that they’re just two people
from the neighborhood who happened to be in the sub shop at the time of the
shooting, get hauled into the police station, and rather than lie to the police to
avoid responsibility they cooperate and tell the truth and identify defendant
because they did get a good enough look at him and they had seen him before in
the neighborhood.”
¶ 17 The court found petitioner guilty of first degree murder, then sentenced him to 50 years’
imprisonment.
¶ 18 On appeal, petitioner maintained that (1) the State failed to prove him guilty beyond a
reasonable doubt because the testimony of identification witnesses was not credible, (2) he was
denied his sixth amendment right to confrontation, and (3) the trial court improperly admitted the
prior inconsistent statements of a witness pursuant to section 115-10.0 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-10.1 (West 2000)). People v. Brown, No. 1-04-2048 (2006)
(unpublished order under Illinois Supreme Court Rule 23). We affirmed petitioner’s conviction,
specifically finding that “[t]he trial judge completely discussed all the evidence presented at trial
by both parties. Clearly, the trial court considered the credibility of both Thomas[s] and
Blackburn and their drug histories as well as any inconsistencies in their testimony.” Id. at 18.
¶ 19 In December 2006, petitioner filed a pro se postconviction petition, alleging multiple
claims, including ineffective assistance of trial and appellate counsel. Judge Fox, who had
presided over petitioner’s trial, summarily dismissed the petition at the first stage of
postconviction proceedings, and petitioner appealed, arguing that the trial court erred in
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No. 1-15-0132
dismissing his petition because he presented the gist of a claim of ineffective assistance of trial
counsel based on counsel’s failure to present evidence as to the effect of narcotics on the
observational abilities of the key identification witnesses, and the gist of a claim of ineffective
assistance of appellate counsel for failing to raise trial counsel’s ineffectiveness. We held that
petitioner had failed to support his claims with any affidavits, records, or other evidence and had
failed to explain the absence of supporting documentation, and we concluded that summary
dismissal was proper. People v. Brown, No. 1-07-0406 (2008) (unpublished order under Supreme
Court Rule 23).
¶ 20 In June 2009, petitioner sought leave to file his first successive pro se postconviction
petition, which alleged his actual innocence based on his own affidavit and an affidavit from
Martell Halbert. Petitioner asserted that he was innocent and his deceased brother Payton was the
actual shooter. In his affidavit, petitioner stated that in early 2007, he learned of two witnesses to
the shooting, Martell Halbert and Mario Nixon. Both were present in the sub shop at the time of
the shooting but had not been interviewed by the police. Petitioner stated that he was unable to
procure an affidavit from Nixon but that Nixon would be willing to sign one. Halbert stated in
his affidavit that early on the morning of the shooting, he and Nixon had been walking to the
sandwich shop where the incident occurred. Payton offered to give the men a ride, drove them to
the sandwich shop, and left. About 10 or 15 minutes later, Payton returned to the shop with a
pistol and fired several gunshots at the victim “without hesitation.” “Halbert was never
interviewed by police and was unaware that he had been captured on the surveillance camera in
the store.” People v. Brown, 2012 IL App (1st) 092597-U, ¶ 8.
¶ 21 Judge Fox denied petitioner leave to file the petition, and we affirmed, finding there was
no legal basis to consider the purported testimony from Nixon, where petitioner had failed to
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No. 1-15-0132
attach an affidavit from him. Halbert’s affidavit was not newly discovered evidence because both
Halbert and Nixon were visible in the surveillance video of the sub shop. The record showed that
the surveillance footage in question was available to petitioner before trial, and it was played at
trial on at least two occasions. Further, petitioner acknowledged in his petition that the two
witnesses “were captured *** on the surveillance videotape,” and thus, we found that petitioner
should have discovered Halbert at or before trial through the exercise of minimal due diligence.
Id. ¶¶ 17-18. We also found that petitioner’s claim failed because the evidence was not of such a
conclusive character that it would probably change the result on retrial, given the strong evidence
at trial. We concluded that the proffered evidence raised a similar set of facts (i.e., that Payton
was the actual shooter and that petitioner was living out of state) that had been previously heard
and rejected by the fact finder. Accordingly, we found that Halbert’s affidavit did not “raise the
probability that it is more likely than not that no reasonable juror would have convicted him in
the light of the new evidence.” (Internal quotation marks omitted.) Id. ¶¶ 17, 19 (quoting People
v. Edwards, 2012 IL 111711, ¶ 24, quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
¶ 22 On September 24, 2014, petitioner sought leave to file a second successive pro se
postconviction petition, alleging actual innocence based on the sworn affidavits of Terrell Austin
and Randy Norwood. Petitioner contended that he first learned of this evidence in the summer of
2014.
¶ 23 Austin’s April 8, 2014, affidavit states, in relevant part, that he was a lookout for heroin
dealers on the 600 block of Cicero Avenue and on January 16, 2001, he was looking for “an
associate” named Robert Byrd, also known as “Rah Rah.” While next door to the sub shop at his
“security post” between 12:30 and 1 a.m., he “saw another one of [his] associate[s] name[d]
David Payton ‘DP’ drive up in his car and jump[ ] out with a gun in his hand.” Austin called out
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No. 1-15-0132
“What you on man[?]” to Payton, who told Austin to “fall back” and then continued into the sub
shop. Austin was a few steps behind Payton when “out of nowhere [he] heard 2 [to] 3 gun shots
then a man ran out the sub shop. [Austin] took a quick look in the sub shop while [he] ran for
cover, [he] heard afew [sic] more shots and saw [Payton] run back to his car and drive off.”
When Austin looked inside the sub shop after Payton left, he saw Byrd “on the floor shot up”
and then left the scene.
¶ 24 Austin further averred that earlier on the day of the shooting, he was with Byrd when he
and Payton “got into it” about whose “drops should be sold on certain nights.” Austin “was
forced to leave the hood” to avoid being killed because “some of the Vice Lords close to [Byrd]
*** claimed [Austin] had a role in [Payton] ambushing [Byrd].” Austin then went back to his
“old neighborhood.” In 2014, Austin reconnected with “Ms. Rawls” who he “used to mess with.”
She told him she had a child with petitioner and that he was in prison for killing Byrd. After
Austin explained that petitioner did not kill Byrd and that Payton did that “crazy stuff,” she
asked him to inform the State’s Attorney’s office. Austin declined, so she asked him to prepare
an affidavit.
¶ 25 Randy Norwood’s affidavit states, in relevant part, that at around 12:30 a.m. on January
16, 2001, he was in an apartment at Ferdinand Street and Lawler Avenue with Cedric Redmond.
After he heard a knock at the door, Redmond let Payton in, and Norwood overheard “Payton ask
[Redmond] if he had a gun that he could borrow for a few minutes.” Payton said he “needed a
gun real fast, since he just seen [Byrd] at the sub shop on Cicero, when Payton was dropping off
Mario Nixon and Martel [sic] Halbert.” Payton told Redmond “that he was just going to scare
[Byrd] so he can stay off his turf and stop him from playing games” and Redmond gave “Payton
a black revolver maybe a .38 or .32 type of gun.”
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No. 1-15-0132
¶ 26 Norwood further averred that when Payton did not return with the gun, they heard that
Payton had shot Byrd at the sub shop that morning and that Byrd was dead. “This all started an
all out war” between Byrd’s crew and Payton’s crew. “[T]he word on the street” was that Byrd’s
“crew finally caught up with Payton sometime in late 2003 in revenge for [Byrd’s] death,” and
“they also found out that [Redmond] gave [sic] the gun that killed [Byrd].” According to “rumors
on the street,” Redmond “was killed because of this but nobody knows who killed them.” When
Norwood heard what happened to Redmond, he “didn’t want to get involved” out of concern for
his safety. “[He] knew [Payton’s] younger brother [petitioner] was locked up for [Byrd’s] murder
and didn’t want to get involved.”
¶ 27 In addition, Norwood averred that he viewed the video surveillance tape of the shooting
and he was “positive” that Payton was “the man on the surveillance tape” because he was the
same height and weight and “had on the same exact clothes” that Payton was wearing when
Norwood saw him earlier that morning.
¶ 28 This time, the petition for leave to file a successive postconviction petition was heard by
Judge Jorge Luis Alonso, who has since been appointed to the federal bench in 2014. Although
Judge Alonso found that the affidavits were newly discovered evidence, he concluded that they
were not of such a conclusive character as would probably change the result on retrial. In its
written order denying petitioner leave to file, the trial court found:
“This evidence is not ‘of such conclusive character’ that it
would ‘probably change the result on retrial.’ Neither witness
states that he actually saw Payton commit the shooting or that
[petitioner] was not at the scene. Nothing in either affidavit might
explain why two eyewitnesses from the sub shop positively
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No. 1-15-0132
identified the shooter as [petitioner]. The theory that Payton
committed the murder remains directly rebutted by the record, as
[petitioner] was convicted based on positive eyewitness testimony
that [petitioner] was the shooter.” (Emphasis in original.)
¶ 29 On appeal, petitioner maintains that the trial court erred in denying his second motion for
leave to file a successive postconviction petition. He contends that the Austin and Norwood
affidavits show that he made a colorable claim of actual innocence that should be tested at the
second stage of a postconviction proceeding.
¶ 30 However, before turning to our analysis of petitioner’s issue on appeal, we note that this
court has become aware that petitioner has been pursuing the same claim as part of proceedings
on a federal habeas corpus petition, which petitioner initially filed in 2010 in the federal district
court for the Northern District of Illinois before Judge Virginia Kendall. Brown v. Gaetz, No. 10
C 1463, 2015 WL 1976366, at *1 (N.D. Ill. May 1, 2015) (certificate of appealability denied 7th
Cir. No. 15-2156 (Feb. 4, 2016)); see People v. Davis, 65 Ill. 2d 157, 161 (1976) (a court may
take judicial notice of facts capable of immediate and accurate demonstration by resort to easily
accessible sources of indisputable accuracy). Petitioner was appointed counsel in those
proceedings in February 2011 and supplemented his petition. Those proceedings were stayed
twice, due to petitioner’s proceedings in state court. The stay was lifted after our previous
appellate judgment, briefing was completed in the federal court, and petitioner requested a stay,
again, based on the proceedings on this second successive petition.
¶ 31 In 2015, Judge Kendall refused petitioner’s request to stay the habeas proceedings,
finding that those proceedings had “already been stayed twice to allow [him] to resolve pending
state law claims and a third stay is not warranted.” Among other claims made before the federal
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No. 1-15-0132
court, petitioner contended that he was actually innocent based on the affidavits of “Terrell
Austin, Randy Norwood, and Martell Halbert *** essentially claiming that Brown’s now-
deceased half-brother, [sic] David Payton, was the shooter in this case.” The federal court
utilized the “fundamental miscarriage of justice” actual innocence standard also used in Illinois
to review the totality of the evidence presented at trial and petitioner’s proffered evidence. It
questioned the timeliness of petitioner’s proffered evidence but found that it “need not rely
exclusively upon such dilatoriness” because petitioner’s evidence “d[id] not sufficiently rebut the
evidence presented by the state at trial.” The court noted that the “only ‘new’ eyewitness of the
shooting is Martell Halbert,” that Austin was only present outside of the sub shop, and that
Norwood was not present at or immediately near the scene of the crime. The federal court
concluded, “Against the state’s six witnesses and corroborating surveillance video, the affidavits
of these four witnesses simply do not warrant the application of the miscarriage of justice
exception or an evidentiary hearing. [Citations.] After reviewing the evidence, old and new, of
Brown’s guilt, this Court cannot conclude that ‘no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.’ ” Brown, 2015 WL 1976366, at *10 (N.D. Ill. May
1, 2015) (certificate of appealability denied 7th Cir. No. 15-2156 (Feb. 4, 2016) (quoting
Coleman v. Lemke, 739 F.3d 342, 254 (7th Cir. 2014)).
¶ 32 In light of the fact that another court has already considered the issue that petitioner
currently brings before this court, this court ordered the parties to brief the issue of whether
petitioner’s claim is barred by res judicata, collateral estoppel, or law of the case—preclusion
doctrines that prevent a litigant “from ‘taking two bites out of the same appellate apple.’ ”
People v. Tenner, 206 Ill. 2d 381, 395-97 (2002) (quoting People v. Partee, 125 Ill. 2d 24, 37
(1988)). Petitioner contends that the denial of his federal habeas petition has no preclusive effect
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because the question before this court is not identical to the one before the habeas court.
Petitioner alternatively requests that this court reach the merits of his claim “in the interest of
fundamental fairness.” The State contends that petitioner’s claim has already been decided
against him in a final judgment by the federal habeas court, and accordingly, this court should
apply collateral estoppel to bar his claim.
¶ 33 Although we would be inclined to find petitioner’s claim precluded, we need not reach
this issue. Even assuming that collateral estoppel does not apply or bar petitioner’s claim, or if
we were to accept petitioner’s request to reach the merits of his claim based on fundamental
fairness, we would reach the same conclusion that was reached by both the federal court and the
circuit court—that petitioner has failed to raise a colorable claim of actual innocence.
¶ 34 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)) provides a
tool by which those under criminal sentence in this state can assert that their convictions were the
result of a substantial denial of their rights under the United States Constitution or the Illinois
Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2010); People v. Coleman, 183 Ill. 2d 366,
378-79 (1998). Postconviction relief is limited to constitutional deprivations that occurred at the
original trial. Coleman, 183 Ill. 2d at 380. “A proceeding brought under the [Act] is not an
appeal of a [petitioner’s] underlying judgment. Rather, it is a collateral attack on the judgment.”
People v. Evans, 186 Ill. 2d 83, 89 (1999).
¶ 35 Only one postconviction proceeding is contemplated under the Act (Edwards, 2012 IL
111711, ¶ 22), and a petitioner seeking to file a successive postconviction petition must first
obtain leave of court (People v. Tidwell, 236 Ill. 2d 150, 157 (2010)). It is the petitioner’s burden
to obtain leave before further proceedings on his claims can follow and to “submit enough in the
way of documentation to allow a circuit court to make that determination.” Id. at 157, 161.
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“[L]eave of court should be granted when the petitioner’s supporting documentation raises the
probability that ‘it is more likely that not that no reasonable juror would have convicted him in
the light of the new evidence.’ ” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup, 513 U.S. at
327).
¶ 36 A petitioner faces “immense procedural default hurdles when bringing a successive post-
conviction petition,” which “are lowered in very limited circumstances,” as successive petitions
“plague the finality of criminal litigation.” Tenner, 206 Ill. 2d at 392. However, our supreme
court has found “the statutory bar to a successive postconviction petition will be relaxed when
fundamental fairness so requires.” People v. Lee, 207 Ill. 2d 1, 5 (2003). The bar against
successive postconviction proceedings should be relaxed when (1) a petitioner can establish
“cause and prejudice” for the failure to raise the claim earlier or (2) he can show actual
innocence under the “fundamental miscarriage of justice” exception. Edwards, 2012 IL 111711,
¶¶ 22, 23. Well-pleaded factual allegations of a postconviction petition and its supporting
evidence are taken as true unless they are positively rebutted by the record of the original trial
proceedings. People v. Sanders, 2016 IL 118123, ¶ 48 (citing Coleman, 183 Ill. 2d at 382).
¶ 37 Whether abuse of discretion or de novo review applies to decisions granting or denying
leave to file successive postconviction petitions is unclear. Edwards, 2012 IL 111711, ¶ 30. In
Edwards, the court pointed out that decisions granting or denying leave of court are generally
reviewed for abuse of discretion. Id. However, the Edwards court recognized that the
requirement that a successive postconviction petition based on a claim of actual innocence must
state a colorable claim, as a matter of law, suggests de novo review. Id. Although our supreme
court has not resolved the question, we need not address the issue here because petitioner’s claim
fails under either standard. See id.; People v. Calhoun, 2016 IL App (1st) 141021, ¶ 32.
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¶ 38 A petitioner is not entitled to an evidentiary hearing on a postconviction petition as a
matter of right; rather, a hearing is required only when the allegations of the petition, supported
by the trial record and accompanying affidavits, make a substantial showing of a violation of a
constitutional right. People v. Jones, 191 Ill. 2d 354, 361 (2000). Because “[c]redibility
determinations may be made only at a third-stage evidentiary hearing,” all well-pleaded factual
allegations of a postconviction petition and its supporting evidence must be taken as true unless
they are positively rebutted by the record of the original trial proceedings. Sanders, 2016 IL
118123, ¶¶ 42, 48.
¶ 39 “Actual innocence” does not involve an analysis of whether a petitioner had been proved
guilty beyond a reasonable doubt. People v. Savory, 309 Ill. App. 3d 408, 414 (1999) (citing
People v. Washington, 171 Ill. 2d 475, 479 (1996)). Actual innocence is not the same as
sufficiency of the evidence or reasonable doubt, nor mere impeachment of trial witnesses, but a
claim of vindication or exoneration. Id.; People v. House, 2015 IL App (1st) 110580, ¶¶ 41, 46.
The requirements of an actual innocence claim are “extraordinarily difficult to meet” (People v.
Coleman, 2013 IL 113307, ¶ 94), and “[c]ourts rarely grant postconviction petitions based on
claims of actual innocence.” People v. Wallace, 2015 IL App (3d) 130489, ¶ 14.
¶ 40 “The evidence of actual innocence must be (1) newly discovered, (2) not discoverable
earlier through the exercise of due diligence, (3) material and not merely cumulative, and (4) of
such conclusive character that it would probably change the result on retrial.” Sanders, 2016 IL
118123, ¶ 24. The conclusiveness of the evidence has been held to be the most important
requirement of an actual innocence claim. See Washington, 171 Ill. 2d at 489.
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¶ 41 As an initial matter, the State contends that petitioner did not establish that his proposed
evidence was newly discovered and that his claim to have recently learned of the affiants is
insufficient where he could have discovered their testimony with due diligence.
¶ 42 We also question whether petitioner’s proposed evidence could be considered newly
discovered. “Newly discovered evidence is evidence that was unavailable at trial and could not
have been discovered sooner through due diligence.” People v. Harris, 206 Ill. 2d 293, 301
(2002). Evidence is not newly discovered when it presents facts already known to a petitioner at
or prior to trial, though the source of those facts may have been unknown, unavailable, or
uncooperative. People v. Wideman, 2016 IL App (1st) 123092; People v. Jones, 399 Ill. App. 3d
341, 364 (2010); People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007). As the above recitation
of petitioner’s trial proceedings illustrate, petitioner’s defense is and always has always been that
his deceased brother, Payton, was the actual shooter. The proposed testimony of these new
affiants shows that they were known close associates of his brother, and as such, it is doubtful
that petitioner would not have known or been able to discover their testimony earlier. The
affiants offer only vague explanations about their whereabouts and unavailability since the
offense. Additionally, petitioner previously presented, as part of his prior successive
postconviction petition, the affidavit of Halbert, who averred that Payton dropped off Halbert
and Nixon at the sub shop, then returned later with a gun. In these circumstances, petitioner’s
proposed evidence, showing that Payton picked up a gun and was later outside the sub shop
before the shooting, would not be considered newly discovered.
¶ 43 Nonetheless, even assuming that the proposed evidence is newly discovered, we conclude
that petitioner’s claim fails because he is unable to establish “the most important element of an
actual innocence claim”—specifically, that it is “so conclusive that it is more likely than not that
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No. 1-15-0132
no reasonable juror would find him guilty beyond a reasonable doubt.” Sanders, 2016 IL
118123, ¶ 47 (citing Edwards, 2012 IL 111711, ¶ 40); Washington, 171 Ill. 2d at 489.
¶ 44 This standard has been recognized to be stronger than the showing necessary to establish
prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Edwards, 2012 IL 111711, ¶ 40
(citing Morales v. Johnson, 659 F.3d 588, 605 (7th Cir. 2011)). In making this determination, a
court must “make a probabilistic determination about what reasonable, properly instructed jurors
would do.” Schlup, 513 U.S. at 329. “It must be presumed that a reasonable juror would consider
fairly all of the evidence presented. It must also be presumed that such a juror would
conscientiously obey the instructions of the trial court requiring proof beyond a reasonable
doubt.” Id.
¶ 45 The United States Supreme Court, whose standard this state has adopted in Edwards,
2012 IL 111711, has said that the “fundamental miscarriage of justice” standard required to show
actual innocence:
“does not merely require a showing that a reasonable doubt exists in the light of
the new evidence, but rather that no reasonable juror would have found the
defendant guilty. It is not the district court’s independent judgment as to whether
reasonable doubt exists that the standard addresses; rather the standard requires
the district court to make a probabilistic determination about what reasonable,
properly instructed jurors would do. Thus, a petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.” Schlup, 513 U.S. at 329.
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No. 1-15-0132
¶ 46 The above standard “ ‘ensures that petitioner’s case is truly “extraordinary” [citation]
while still providing petitioner a meaningful avenue by which to avoid a manifest injustice.’ ”
See People v. English, 2014 IL App (1st) 102732-B, ¶ 44 (quoting Schlup, 513 U.S. at 327). This
court has also noted that “the supreme court did not intend for the colorable claim standard to be
‘a mere pleading standard,’ but a standard that restricts review of successive postconviction
petitions only to those that truly relate to an unjust incarceration of the defendant. Those cases
that are truly ‘extraordinary.’ ” (Internal quotation marks omitted.) Id. (citing Schlup, 513 U.S. at
327).
¶ 47 With these principles in mind, we turn to petitioner’s proffered evidence in this case.
Petitioner contends that he has raised a colorable claim of actual innocence based on the
affidavits of Halbert, Austin, and Norwood. We examine each affidavit in turn.
¶ 48 In Halbert’s affidavit, which was attached to petitioner’s first successive postconviction
petition, he alleged that he was in the sub shop and saw that Payton was the actual shooter.
Halbert further stated that he was never interviewed by police and was unaware that he had been
captured on the surveillance camera in the store.
¶ 49 Petitioner, however, did not attach Halbert’s affidavit to his second successive
postconviction petition, which is at issue here, and made no argument or reference to the
affidavit in his petition. Nevertheless, even if this affidavit were properly before us, this court has
previously considered whether Halbert’s affidavit supported an actual innocence claim and
resolved that question against petitioner. In concluding that petitioner “should have discovered
Halbert at or before trial through the exercise of minimal due diligence,” we reasoned that the
surveillance footage “was available to [petitioner] before trial, and was played at trial on at least
two occasions.” Brown, 2012 IL App (1st) 092597-U, ¶ 17. We also found that Halbert’s
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No. 1-15-0132
affidavit was not of such a conclusive character that it was likely to change the result on retrial
based on the strong trial evidence and the fact that the court rejected a similar set of facts at trial.
We thus concluded that the proffered evidence did not raise “ ‘the probability that “it is more
likely than not that no reasonable juror would have convicted him in the light of the new
evidence.” ’ ” Id. ¶ 19 (quoting Edwards, 2012 IL 111711, ¶ 24, quoting Schlup, 513 U.S. at
327). In these circumstances, we find that collateral estoppel precludes petitioner from
relitigating his actual innocence claim as it relates to Halbert’s affidavit. See Tenner, 206 Ill. 2d
at 396 (“The collateral estoppel doctrine bars relitigation of an issue already decided in a prior
case.”). Moreover, even if we were to conclude that petitioner could raise Halbert’s affidavit
again, in spite of our earlier rejection of it, we would continue to conclude that it does not
support an actual innocence claim for the same reasons stated previously.
¶ 50 Next, in Austin’s affidavit, he contended that around the time of the offense he saw
Payton drive up to the sub shop “and jump[ ] out with a gun in his hand.” After Payton went into
the sub shop, Austin heard gunshots, then saw “[Payton] run back to his car and drive off.”
Austin also contended that he was present when Byrd and Payton had a disagreement earlier that
day about drug sales.
¶ 51 Austin, however, was not present at the shooting and only heard the gunshots.
Accordingly, Austin did not, and cannot, exonerate petitioner, since he did not actually observe
what happened inside the sub shop. See House, 2015 IL App (1st) 110580, ¶ 41 (“A claim of
actual innocence is not a challenge to whether the defendant was proved guilty beyond a
reasonable doubt, but rather an assertion of total vindication or exoneration.”).
¶ 52 Moreover, even if we could construe Austin’s affidavit as implicating Payton in the
shooting, we conclude that the new account is directly rebutted by the evidence at trial, which
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No. 1-15-0132
included actual eyewitness testimony from two witnesses who saw the shooter and identified him
as petitioner, whom they knew from the neighborhood. Accordingly, this court need not construe
such allegations as true. See Sanders, 2016 IL 118123, ¶ 48 (“Well-pleaded factual allegations of
a postconviction petition and its supporting evidence must be taken as true unless they are
positively rebutted by the record of the original trial proceedings.”); Coleman, 183 Ill. 2d at 382
(“this court has consistently upheld the dismissal of a post-conviction petition when the
allegations are contradicted by the record from the original trial proceedings”).
¶ 53 Norwood’s affidavit fares no better. In his affidavit, Norwood states that around 12:30
a.m. on January 16, 2001, he was in an apartment when Payton arrived, borrowed a gun from
someone else at the apartment, and said that he was going to go scare Byrd. Norwood further
averred that he later heard that Payton shot Byrd.
¶ 54 Norwood is also not an eyewitness to the offense at issue and is even more removed than
Austin from the actual crime scene. He merely contends that Payton received a gun shortly
before the shooting. However, like Austin, Norwood did not and cannot say that petitioner did
not commit the crime because he has no personal knowledge of what happened in the sub shop.
Additionally, while Norwood subsequently “heard” that Payton shot Byrd, Norwood does not
claim to have any personal knowledge of this fact and does not even say from whom he “heard”
this information.
¶ 55 Neither Austin nor Norwood stated that petitioner was not present at the sub shop, where
he was identified at trial by eyewitnesses who were actually present at the scene and who
testified that it was petitioner who shot the victim. Neither affiant refuted the testimony at trial
that petitioner was seen in the red Buick before, during, and after the shooting, or that the car
used in the shooting belonged to petitioner’s child’s mother. At trial, Detective Delassandro
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No. 1-15-0132
testified that the car was recovered from petitioner’s child’s mother and subsequently identified
by Thomass, Gilmore, and Tenard. Since the affiants have no personal knowledge from which to
aver that petitioner was not the shooter, the affidavits do not raise the probability that “it is more
likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.”
Sanders, 2016 IL 118123, ¶ 47.
¶ 56 We also reject the idea that Norwood is now an “eyewitness” to the shooting, simply
because he viewed the video surveillance tape of the shooting and was “positive” that Payton
was “the man on the surveillance tape.” Norwood is not an eyewitness to the crime. There is
absolutely no question that Norwood was not in or near the sub shop when the shooting
occurred. Norwood’s review of a surveillance tape more than a decade after a shooting, cannot
make him an eyewitness to a crime he never observed.
¶ 57 Moreover, Norwood does not claim to be able to identify Payton based on any facial
recognition; instead, he contends that he can identify Payton based on his height, weight, and
clothing. However, this court has also repeatedly reviewed the surveillance tape and has
observed that it is grainy, in black and white, and noticeably distorted on the sides of the frame
as if it was taken with a wide-angle lens. Additionally, Norwood’s statement that the shooter in
the video was identifiable as Payton because of his height and weight is particularly lacking in
character given that petitioner is arguing that he was misidentified because he and his brother
look alike.
¶ 58 We thus conclude that petitioner has not asserted a colorable claim of actual innocence
and the trial court did not err in denying him leave to file his successive postconviction petition.
¶ 59 Unlike the circuit court, the federal district court, and this majority opinion, the dissent
contends that the new proposed evidence is not rebutted by the record. However, in doing so, the
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No. 1-15-0132
dissent overstates the proposed evidence at issue. Specifically, the dissent describes the witnesses
as “swearing under oath that the wrong person was convicted of this crime.” (Emphasis in
original.) Infra ¶ 98. However, as stated above, the two affiants that are at issue here are not
eyewitnesses to the crime. They did not see what happened inside the sub shop, and accordingly,
their proposed testimony is rebutted by the trial witnesses who were actual eyewitnesses to the
offense.
¶ 60 Additionally, although the dissent focuses on the requirement that we take all well-
pleaded factual allegations as true, we believe that it misconstrues that concept and relies upon it
so heavily that it effectively does away with the requirement that the new evidence be “so
conclusive in character as would probably change the result on retrial.”
¶ 61 On this issue, we find the supreme court’s decision in Sanders, 2016 IL 118123,
instructive. 2 In Sanders, our supreme court considered the successive postconviction petition of
the petitioner, who had been convicted of first degree murder and aggravated kidnapping and
claimed that he was actually innocent of those crimes. In his successive postconviction petition,
the petitioner submitted evidence purporting to show that Bingham, a co-offender, had acted
alone and that Bingham’s trial testimony was perjured.
¶ 62 At trial, Bingham had testified that he, petitioner, and a co-offender were in partnership
selling cocaine. On the day of the murder, he purchased cocaine from the victim, and, later, they
2
Although we recognize that Sanders arose from a slightly different procedural posture than this
case, in that it was an appeal from a second-stage dismissal of a successive postconviction petition (and it
was unclear whether the trial court in Sanders recognized that it was a successive petition before
docketing it for further proceedings), the requirement that all well-pleaded factual allegations are taken as
true applies equally in this case as in Sanders, and it is thus helpful to our analysis of this issue.
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No. 1-15-0132
discovered that “the amount of the cocaine was six grams short.” Id. ¶ 8. Bingham testified that
the petitioner retrieved three guns and the three men went to the victim’s house to confront him.
They put the victim in the trunk of a car and drove him to an abandoned building, and the
petitioner brought the victim inside and shot him while the other two men waited outside. Three
other witnesses testified to seeing the petitioner, Bingham, and the co-offender during the drug
buy and/or when the men returned and took the victim from the house.
¶ 63 In his successive postconviction petition, the petitioner attached a transcript of testimony
that Bingham had given during an evidentiary hearing on the co-offender’s postconviction
petition. In that testimony, Bingham recanted his prior testimony identifying the petitioner and
the other man as participating in the murder. He also denied being in the drug business with the
petitioner or co-offender. Bingham testified that he purchased cocaine from the victim and
discovered that the cocaine was “no good.” Bingham then went back to the victim, picked him
up by himself, and put him in the trunk of Bingham’s car. Bingham then drove to an abandoned
building, alone, and shot him. Bingham further claimed the State told him he would receive a 20
year sentence for his testimony and that that he “tried to tell the truth in the beginning but the
State wanted [the petitioner and the co-offender] for some reason.” Id. ¶ 16.
¶ 64 The petitioner also attached affidavits from two witnesses who claimed that Bingham had
admitted to killing the victim and another affidavit from Patricia DeRamus, who claimed to be
present with the victim when Bingham bought the cocaine and when Bingham returned, alone,
and “ ‘march[ed]’ ” the victim out the back door at gunpoint. Id. ¶ 15. DeRamus testified that she
never saw the victim again and that Bingham returned later that evening and said that he had
killed him. Id.
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No. 1-15-0132
¶ 65 In affirming the trial court’s dismissal of the petitioner’s successive postconviction
petition, the supreme court reaffirmed that “[a]ll well-pleaded factual allegations not positively
rebutted by the trial record must be taken as true for purposes of the State’s motion to dismiss.”
Id. ¶ 42. Accordingly, it concluded that the trial court’s consideration of its own credibility
determination it had made previously upon hearing the recantation testimony at issue at the co
offender’s evidentiary hearing was improper. Nonetheless, the supreme court found that the
petition was properly dismissed. Id. ¶ 55.
¶ 66 The court noted that Bingham’s “recantation conflicts with much of the evidence at [the
petitioner’s] trial.” Id. ¶ 48. The supreme court outlined the testimony of several witnesses at
trial who testified regarding the petitioner’s presence and involvement in kidnapping the victim
and stated:
“Bingham’s recantation is contrary not only to his own testimony at petitioner’s
trial, but also to the testimony of [two witnesses], who positively identified
petitioner as being with Bingham and May at Barfield’s house the night of the
murder and as having participated in the events leading up to Cooks’ murder. It is
also contradicted by the pathologist’s testimony that Cooks was shot twice in the
head, not once, as Bingham claimed in his recantation. Bingham’s recantation
testimony merely adds conflicting evidence to the evidence adduced at the trial.
Even taking the well-pleaded facts as true, we conclude that the recantation is not
of such conclusive character as would probably change the result on retrial.” Id.
¶ 52.
¶ 67 The supreme court also found that DeRamus’s “statements merely contradict the
testimony of other occurrence witnesses” and that her “statement that Bingham ‘marched’ Cooks
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No. 1-15-0132
out the back door *** directly contradicts Bingham’s recantation testimony when he said that he
picked up Cooks, threw him over his shoulder, and took him out the back door.” Id. ¶ 53. The
supreme court thus concluded that her “proposed testimony would merely add to the evidence
the jury heard at petitioner’s trial. It is not so conclusive in character as would probably change
the result on retrial, either by itself or in conjunction with Bingham’s recantation.” Id.
¶ 68 By our reading of Sanders, the supreme court did not take the above allegations as true.
They were not required to do so because they were not well-pleaded facts that were unrebutted
by the record. Although Bingham had testified that his earlier trial testimony was perjured, that
he acted alone, and that the State was pressuring Bingham to implicate the petitioner, the
supreme court did not take those allegations as true. Likewise, although DeRamus contended that
she saw Bingham, acting alone, purchase drugs then return and take the victim away at gunpoint,
and that she heard Bingham admit to killing the victim, the supreme court did not take those
allegations as true either. Instead, the court considered the trial record and the character of the
petitioner’s proposed new evidence and concluded that the new evidence was rebutted by the
evidence at the petitioner’s trial. Additionally, the court stated that, even taking the proposed
evidence as true, it was “not so conclusive in character as would probably change the result on
retrial.” Id. We reach the same conclusion here.
¶ 69 The dissent in this case appears to assume that we take all allegations as true, and
accordingly, because petitioner presented some proposed evidence tending to show that he was
not the actual offender, his petition must continue for further proceedings. We believe that the
dissent’s analysis misconstrues our supreme court’s decision in Sanders and turns the
requirement that the evidence must be “so conclusive that it is more likely than not that no
reasonable juror would have found him guilty” into a question of whether the proposed evidence
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No. 1-15-0132
could possibly create reasonable doubt in any juror, effectively doing away with the
conclusiveness standard altogether. It is for this reason that the dissent attacks the credibility of
the trial witnesses, essentially rehashing a reasonable doubt question as to petitioner’s underlying
conviction. However, a postconviction petition is not, and should not be, based on the reasonable
doubt standard. Savory, 309 Ill. App. 3d at 414 (citing Washington, 171 Ill. 2d at 479). As stated
previously, actual innocence is not the same as sufficiency of the evidence or reasonable doubt,
nor mere impeachment of trial witnesses, but a claim of vindication or exoneration. Id.; House,
2015 IL App (1st) 110580, ¶¶ 41, 46.
¶ 70 Moreover, the credibility of the witnesses at trial is no longer before this court. As much
as the dissent characterizes the witnesses and their testimony as “flaw[ed],” (infra ¶ 89), their
credibility has already been resolved by the fact finder, which concluded that they had no
motivation to lie and that they were “just two people from the neighborhood who happened to be
in the sub shop at the time of the shooting *** and rather than lie to the police[,] *** they
cooperate[d] and [told] the truth and identif[ied] [petitioner] because they did get a good enough
look at him and they had seen him before in the neighborhood.”
¶ 71 The dissent also mischaracterizes the testimony at trial regarding an allegedly “striking
resemblance” between petitioner and Payton. Infra ¶¶ 89, 91. No one testified at trial, not even
petitioner’s own mother, that petitioner and Payton bore a “striking resemblance” to each other.
Moreover, there was no testimony showing that Payton used petitioner’s photo identification at
the hospital, or otherwise that it was because they looked alike that Payton was able to identify
himself as petitioner when seeking medical treatment. Although Blackburn did testify that she
could not identify the shooter in the two photographs provided by the defense attorney, she later
clarified that it was because the photographs were not clear. Following this clarification, the
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No. 1-15-0132
defense attorney did not attempt to show those photographs to anyone else, including Thomass,
who also identified petitioner as the shooter, and all of the other witnesses who placed petitioner
at the scene, and in the car, before, during, and after the shooting.
¶ 72 In People v. Rivera, 2016 IL App (1st) 132573, the First Division of the First District of
this court considered a petitioner’s postconviction claim of actual innocence. There, the
petitioner had been convicted of first degree murder as the shooter in a gang-related shooting. In
his postconviction petition, the petitioner raised a claim of actual innocence based on an affidavit
from his codefendant. Id. ¶ 1. The codefendant had pleaded guilty to first degree murder under a
theory of accountability, and, in the affidavit, the codefendant stated for the first time that he was
the shooter in the murder, not the petitioner. Id. ¶¶ 6-7.
¶ 73 The reviewing court found that the codefendant’s affidavit was not of such conclusive
character that it would probably change the result on retrial. The court noted that the supreme
court on direct appeal described the evidence of the petitioner’s guilt as “ ‘overwhelming.’ ” Id.
¶ 31 (quoting People v. Rivera, 227 Ill. 2d 1, 26 (2007)). The court pointed out that the evidence
at trial consisted of witnesses who were with the petitioner before, during, and after the shooting
and that the petitioner was seen with a gun immediately after the shooting. Id. Moreover,
although the court observed that the codefendant’s affidavit did not say that the petitioner “was
present in the van, he does not say [the petitioner] was not present” during the shooting.
(Emphasis in original.) Id. ¶ 32.
¶ 74 As these cases clarify, this court can, and should, in our de novo review, consider the
character of the proposed evidence. Only by doing so can we determine whether the evidence is
so conclusive that it is more likely than not that no reasonable juror would have found him guilty
beyond a reasonable doubt. As the United States Supreme Court has emphasized, actual
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No. 1-15-0132
innocence claims “must be supported ‘with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.’ ” Edwards, 2012 IL 111711, ¶ 32 (quoting Schlup, 513 U.S. at 324). Although
neither the United States Supreme Court nor our Illinois Supreme Court has specifically limited
the type of evidence available to support an actual innocence claim to those delineated
categories, it is clear that the evidence here is so far removed in character from this type of “new
reliable evidence” that it could never support such a claim.
¶ 75 In this case, petitioner’s proffered evidence comes from two affiants who did not see the
actual shooting and whose statements came long after the offense at issue. The gist of their
statements—that petitioner’s brother Payton was seen picking up a gun and driving to and
entering the sub shop shortly before the shooting—does not exonerate petitioner from having
committed this crime.
¶ 76 Moreover, even if we excused the fact that these witnesses did not see the actual
shooting, we conclude, like the federal and circuit courts, that their statements are directly
rebutted by the evidence at trial. The proposed evidence does not explain why petitioner was
identified by two witnesses to the shooting, both of whom recognized him from the
neighborhood, and neither of whom have recanted their trial testimony. It also does not explain
why the car that was used in the offense belonged to petitioner’s child’s mother or why petitioner
was seen driving the car to the sub shop and returning it to his child’s mother shortly after the
offense. Petitioner’s proposed evidence merely impeaches or contradicts the trial testimony and,
accordingly, does not support a claim of actual innocence. See People v. Williams, 2016 IL App
(1st) 133459, ¶ 57 (“at best the evidence contained in the affidavit merely affects the issue of the
sufficiency of the evidence and therefore does not totally vindicate defendant”).
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No. 1-15-0132
¶ 77 In Wideman, 2016 IL App (1st) 123092, ¶ 31, the petitioner, who had been previously
convicted of murder and armed robbery of the victim, sought leave to file a successive
postconviction petition claiming actual innocence based on the recantation of a trial witness,
Anton Williams, who submitted an affidavit saying that others were attacking the victim and that
the petitioner was “only standing there” and “didn’t do anything at all” to the victim. This court
noted that the petitioner had been found guilty, in part based on a confession, and that the
proposed testimony was not of such conclusive character that it would probably change the result
on retrial. The court stated that:
“The defendant essentially asks us to find that it is more likely than not that the
jury would choose to entirely disregard the defendant’s detailed confession and
acquit the defendant, had the jury heard Williams testify that the defendant was
merely ‘standing there’ and ‘didn’t do anything’ to Thomas. The defendant does
not explain why the jury would completely disregard his own words detailing his
participation in the crime in favor of Williams’ testimony to the contrary. Such a
proposition is unreasonable. Clearly, even if the jury were presented with such
conflicting evidence, it could easily conclude that the defendant’s detailed, self-
incriminating statements were entitled to more weight and (along with the other
trial evidence) supported a finding of guilt. We certainly cannot say that an
acquittal on either the murder or armed robbery charge would be ‘probable’ had
Williams testified to the statements in his May 2010 affidavit. Thus, we do not
find that the defendant set forth evidence ‘of such conclusive character that it
would probably change the result on retrial’ as is required to allow leave to file a
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No. 1-15-0132
successive petition on the basis of actual innocence.” Id. ¶ 67 (quoting Edwards,
2012 IL 111711, ¶ 32).
¶ 78 So too here, we conclude that, even if a jury were presented with the testimony proposed
by Austin and Norwood, a juror “could easily conclude” that the evidence presented at
petitioner’s trial—which included unimpeached and uncontradicted eyewitness identifications
and other testimony that placed petitioner at or near the scene, and in the car that was used in the
offense—was “entitled to more weight and *** supported a finding of guilt.” Id. “We certainly
cannot say that an acquittal *** would be ‘probable’ had” Austin and Norwood testified
consistently with their affidavits. Id. We thus conclude, like in Wideman, that the proposed
evidence was not “ ‘of such conclusive character that it would probably change the result on
retrial’ as is required to allow leave to file a successive petition on the basis of actual innocence.”
Id.
¶ 79 The dissent, however, appears to believe that considering the character of the evidence
amounts to an improper credibility assessment. We disagree. Although some of the same
considerations may come into account when considering the character of the evidence and the
credibility of witnesses, we are explicitly required to consider the evidence’s character to
determine whether the proposed evidence “raises the probability that ‘it is more likely than not
that no reasonable juror would have convicted him in the light of the new evidence.’ ” Edwards,
2012 IL 111711, ¶ 24 (quoting Schlup, 513 U.S. at 327).
¶ 80 Nonetheless, even taking petitioner’s proposed evidence as true, it would be absurd to
think that, in light of that proposed non-eyewitness testimony, there is no reasonable juror who
would have convicted petitioner, when two other eyewitnesses inside the sub shop identified him
as the shooter, the car involved in the offense belonged to his child’s mother, and he was seen in
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No. 1-15-0132
that car before, during, and after the offense. We thus find that petitioner’s proposed evidence is
not so conclusive that it is more likely than not that no reasonable juror would have found him
guilty beyond a reasonable doubt. Sanders, 2016 IL 118123, ¶ 47.
¶ 81 The cases that the dissent relies on to support its position are clearly distinguishable from
the case at bar, most importantly because the postconviction petitions in those cases were
supported by new eyewitness testimony.
¶ 82 In People v. Adams, 2013 IL App (1st) 111081, the petitioner had been convicted of the
murder of his former girlfriend, who had been beaten to death on the street in Chicago. In
support of a successive postconviction petition, the petitioner presented affidavits from three
individuals who claimed to have seen the beating, who said that the petitioner was not the
perpetrator, and who either identified or described the actual perpetrator. In those circumstances,
the proposed affidavits, if believed, directly refuted the trial testimony of witnesses who
identified petitioner as the perpetrator, and accordingly, the new evidence “add[ed] to what was
previously before the jury in that the jury had heard [the petitioner]’s testimony that he left the
scene before the victim was killed, but had heard no evidence pointing to the identity of an
alternate perpetrator.” Id. ¶ 35.
¶ 83 In People v. Ortiz, 235 Ill. 2d 319, 322 (2009), and People v. Ortiz, 385 Ill. App. 3d 1, 2
4 (2008), the petitioner filed a successive postconviction petition challenging his murder
conviction based on actual innocence. At an evidentiary hearing, the petitioner presented
testimony from eyewitnesses who claimed to have seen the shooting and who identified other
individuals as the shooters. Additionally, the State’s witnesses who had previously identified the
petitioner as the shooter had recanted that testimony at trial. As the dissent notes, this court found
that these witnesses allowed the petitioner to “attack the credibility of the State’s eyewitnesses
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No. 1-15-0132
directly with his own eyewitnesses” instead of “rel[ying] solely on alibi testimony” (Ortiz, 385
Ill. App. 3d at 13), and the supreme court affirmed, finding that the new eyewitness testimony
“supplied a first-person account of the incident that directly contradicted the prior statements of
the two eyewitnesses for the prosecution” (Ortiz, 235 Ill. 2d at 335).
¶ 84 Unlike in Adams and Ortiz, the affidavits here are not from eyewitnesses to the offense at
issue because the affiants did not see the shooting or who pulled the trigger. Instead, the
proposed affidavits are from one person who saw Payton outside of the sub shop before the
shooting and another who saw Payton picking up a gun earlier that night. These proposed
affidavits do not “directly contradict[ ] the prior statements of the two eyewitnesses for the
prosecution” (Ortiz, 235 Ill. 2d at 335), namely Thomass and Blackburn, who were the actual
eyewitnesses to the shooting and who identified petitioner as the perpetrator. In these
circumstances, we find Adams and Ortiz unpersuasive.
¶ 85 We reiterate that, by our decision, we are not making credibility determinations regarding
the proposed evidence. We have, however, using a de novo review, examined the character of
that evidence and determined that it is not “so conclusive that it is more likely than not that no
reasonable juror would find him guilty beyond a reasonable doubt.” Sanders, 2016 IL 118123,
¶ 47.
¶ 86 For all the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 87 Affirmed.
¶ 88 JUSTICE ELLIS, dissenting.
¶ 89 Defendant was convicted of murder, not based on an accountability theory but on the
allegation that he shot Robert Byrd. Two witnesses, with all their flaws, testified at trial that
defendant was the shooter. Three witnesses have now testified through affidavits that he was
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No. 1-15-0132
not—that instead, the shooter was defendant’s half-brother David Payton, who bears a striking
resemblance to defendant and who would qualify as the first suspect in this case with a
demonstrable motive to kill Byrd. The majority holds that defendant should not even be given
leave to present this argument, to have an attorney appointed so that he can make a case for a
third-stage evidentiary hearing on his innocence, where the credibility and strength of this
evidence could be evaluated by a judge.
¶ 90 Defendant was convicted largely on the testimony of two longtime drug addicts, Walter
Thomas and Venice Blackburn, both of whom admitted to consuming narcotics and alcohol on
the day of the shooting and one of whom (Blackburn) admitted to being high on heroin and
vodka at the time of the shooting. These witnesses were familiar with defendant from around the
neighborhood but did not know him. Beyond that, the State presented evidence that defendant
was seen, before and after the fact, in the vehicle involved in the shooting. There was no physical
evidence tying defendant to the shooting. Defendant did not confess or make any inculpatory
statements. And the State conceded at trial that defendant could not be positively identified from
the sub shop’s surveillance video.
¶ 91 Defendant’s theory of defense, besides an alibi, was misidentification—specifically, that
his half-brother, David Payton, was the shooter. The evidence showed that defendant and Payton
bore a striking resemblance to each other, so much so that, at trial, Blackburn admitted that she
could not tell the difference between the two when shown photos of each. (And so much so that
Payton, on at least one occasion, had passed himself off as defendant when treated at a hospital.)
¶ 92 Since his conviction, defendant has put forward the following evidence to demonstrate
that Payton, not he, was the shooter:
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(i) Terrell Austin swore in an affidavit that Payton, not defendant, drove up to the
sub shop, got out of the car with a gun in his hand, and entered the sub shop. After
gunshots were fired, Payton left the sub shop, gun still in hand, and drove away in
the Buick. Austin was a “lookout” for drug dealers—for Payton and the victim,
Robert Byrd, who shared drug turf and each used Austin to watch out for police.
Earlier that day, before the shooting, Austin was present when Payton and Byrd
argued over their drug turf. After the shooting, Austin left the neighborhood,
fearing for his safety—fearing that he would be lumped in with Payton for Byrd’s
murder.
(ii) Randy Norwood swore in an affidavit that, earlier that day, Payton showed up at
an apartment and borrowed a gun from his friend because, Payton said, Robert
Byrd was at the sub shop, and Payton wanted to scare Byrd to keep him “off his
turf.” Norwood also viewed the restaurant’s surveillance video of the shooting
and swore that he was “positive” that the shooter captured on the video was
Payton, not defendant. He refused to come forward earlier out of fear, as the
murder of Byrd had spawned what he described as an “all out war” between the
“Payton crew” and “[Byrd] crew.”
(iii) Martell Halbert swore, years ago, that he was in the sub shop at the time of the
shooting, and that it was Payton, not defendant, who shot and killed Robert Byrd.
¶ 93 If a jury heard and accepted this evidence as true, as we must assume at this first stage, it
is unfathomable that the jury would still convict defendant of this crime. There is simply no way
a reasonable factfinder could believe both that (1) David Payton walked into the sub shop with a
gun and shot Robert Byrd and (2) defendant walked into the sub shop with a gun and shot Robert
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Byrd. One of those two options must be false. Because we are required to accept option (1) as
true at this stage, option (2)—defendant’s guilt—must be false. A reasonable juror could not
possibly convict defendant under those circumstances.
¶ 94 Of the three affidavits listed above, the majority would hold that the third one—the
Martell Halbert affidavit—cannot be considered, because it was not “newly discovered” at the
time it was offered by defendant years ago and was previously rejected by this court back then.
But even if we limited our focus to the new information defendant has proffered in his latest
petition—the Austin and Norwood affidavits—defendant has established a more than sufficient
basis for advancing this case to the second stage of postconviction proceedings, to have his
pro se claims investigated and presented to the circuit court by competent counsel.
¶ 95 Putting aside the contested Martell Halbert affidavit, the affidavits of Austin and
Norwood, when taken as true, establish the following key facts. Payton and Byrd were rival drug
dealers engaged in a turf war, including having engaged in an argument on the day of Byrd’s
murder. Shortly before the shooting, Payton borrowed a gun from Cedric Redmond. Payton said
that he had seen Robert Byrd at the sub shop on Cicero, and he needed the gun to scare Byrd into
“stay[ing] off his turf.” Later, Payton drove up to the sub shop, got out of the car, and walked
into the sub shop with the gun in his hand. After gunshots were fired, Payton left the restaurant,
ran back to his car, and drove away. And Norwood is “positive that the man on the surveillance
tape is David Payton.”
¶ 96 Neither Austin nor Norwood was inside the sub shop when Byrd was shot there, but that
does not mean these witnesses could not identify Payton as the shooter. Norwood, as just noted,
watched the surveillance video of the shooting inside the restaurant and positively identified
David Payton as the shooter. And Austin narrated precisely the same sequence of events as the
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State’s witnesses at trial—the shooter drove up; left the car; entered the sub shop, gun in hand;
and ran back out to the car after the shooting stopped—except that Austin identified Payton, not
defendant, as the actor in this story. Austin and Norwood, in short, plainly identify Payton as the
shooter and, in doing so, exonerate defendant.
¶ 97 The circuit court discredited Austin’s affidavit, as does the majority, noting that Austin
did not actually see Payton shoot Byrd—he only saw Payton enter the shop with the gun and
later exit the shop with the gun, after the shooting. But we can see the shooting, because it was
captured on surveillance video. And we know from that video that the same person who entered
the restaurant with a gun in his hand proceeded to pull the trigger multiple times and kill Byrd,
and then walk out with the gun. There was no handoff or exchange of the gun. The video does
not tell us much, but it does tell us that one person, and one person only, walked in with the gun,
shot Robert Byrd, and left with the gun. So when Austin swore that Payton walked in and out
with the gun, with gunshots fired during his time inside, the only thing it could possibly mean (in
conjunction with the video) is that Payton also shot and killed Robert Byrd—if Austin’s affidavit
is to be believed.
¶ 98 And if Norwood is to be believed when he swears that he is “positive” that the shooter on
the video is Payton, not defendant, he would be the second witness swearing under oath that the
wrong person was convicted of this crime.
¶ 99 Martell Halbert, who was inside the restaurant when the shooting occurred, also swore
that David Payton, not defendant, shot Robert Byrd, but his affidavit was previously rejected by
this court in 2010, so the State’s and the majority’s position is that we should ignore his affidavit
in conjunction with the two new ones we have now.
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¶ 100 We are required to accept the Austin and Norwood affidavits as true. People v. Sanders,
2016 IL 118123, ¶ 42. If taking these allegations “as true” means anything at all, it must mean
that a juror at a hypothetical retrial, hearing from Austin and Norwood, would believe their
testimony—that is, would accept it “as true.” We then ask whether it is more likely than not that
no reasonable juror, hearing and believing this new evidence, in conjunction with all the other
evidence presented at trial, could convict defendant. People v. Edwards, 2012 IL 111711, ¶ 24.
¶ 101 There can only be one answer to that question: If a reasonable juror believed Austin and
Norwood, that juror could only believe that David Payton, not defendant, shot and killed the
victim. No reasonable juror could convict defendant in that scenario.
¶ 102 The majority looks at the Austin and Norwood affidavits and determines that a
reasonable juror could still convict defendant, based on the evidence of the two intoxicated
eyewitnesses in the restaurant and the evidence of defendant’s association with the vehicle
involved in the crime. But that is not taking the Austin and Norwood affidavits “as true.” That
may be taking “as true” that Norwood and Austin would testify at a hypothetical retrial
consistent with their affidavits, but that is not taking “as true” the substance of their testimony.
The majority does not assume that a reasonable juror would believe Austin and Norwood.
Rather, the majority lines up the evidence from Norwood and Austin—that David Payton was
the shooter—against the evidence from the trial implicating defendant and determines that a
reasonable juror might not believe Austin and Norwood, in light of the other evidence.
¶ 103 There is simply no way that the majority’s analysis could be viewed as taking the
substance of the Norwood and Austin affidavits “as true.” But it is hard to imagine what taking
the affidavits as true could mean, other than assuming that the hypothetical juror would believe
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the new testimony at a retrial and then analyzing what effect that new, believed evidence would
have on the outcome.
¶ 104 Take, for example, the decision in Schlup v. Delo, 513 U.S. 298 (1995), the case that our
supreme court cited for the adoption of its test for first-stage successive petitions on actual-
innocence claims. See Edwards, 2012 IL 111711, ¶ 24. Schlup was convicted of murdering
another prison inmate. Schlup, 513 U.S. at 301-02. The State’s case was based on testimony by
two corrections officers who witnessed the killing. Id. at 302. Schlup’s defense included a video
showing him in the prison dining room, far from where the murder took place, 65 seconds before
a distress call sounded. Id. at 303. But there was conflicting evidence about whether the distress
call was delayed, and thus about whether Schlup would have had enough time to get from the
dining room to the murder scene. Id. at 303-05.
¶ 105 In his habeas proceeding, Schlup presented new evidence that another guard saw him
elsewhere in the prison right around the time of the murder, and statements of multiple
eyewitnesses who swore that Schlup did not commit the crime. Id. at 307-10. The Supreme Court
explained, “Those new statements may, of course, be unreliable. But if they are true *** it surely
cannot be said that a juror, conscientiously following the judge’s instructions requiring proof
beyond a reasonable doubt, would vote to convict.” Id. at 331.
¶ 106 The Supreme Court did not simply throw Schlup’s new evidence into the mix at a
hypothetical retrial and ask whether a reasonable juror would believe it in light of the evidence
from the original trial. The Supreme Court assumed that the jury in a hypothetical retrial would
believe the new evidence—it would believe the new witnesses who said Schlup didn’t do it—and
reasoned that, in that event, there was no way a reasonable juror could still convict Schlup,
notwithstanding the other evidence demonstrating Schlup’s guilt.
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¶ 107 So too here. If a reasonable juror believed Austin’s and Norwood’s affidavit testimony
that David Payton is the shooter, there is no way it could still convict defendant as the shooter,
notwithstanding other evidence in this case suggesting defendant’s guilt.
¶ 108 The citation to Schlup is important here for more than one reason. First, as just stated, it
shows how the Supreme Court interpreted the mandate to take the new evidence “as true,” which
is not how the majority has analyzed defendant’s new affidavits. But second, it also highlights
the difference between how Illinois analyzes successive postconviction petitions of actual-
innocence claims versus how federal courts analyze gateway-innocence claims on habeas
review—which also highlights the difference between the majority and this dissent.
¶ 109 Federal courts do more than simply ask the first question that the Supreme Court asked in
Schlup. They go further—they make threshold determinations about the trustworthiness,
credibility, and likely weight a reasonable juror would assign the new evidence, even without an
evidentiary hearing. Id. at 330-32. Look no further than the federal habeas decision concerning
our defendant; the federal judge expressly made threshold determinations of reliability in
rejecting defendant’s affidavits. See Brown v. Gaetz, No. 10 C 1463, 2015 WL 1976366, at * 9
10 (N.D. Ill. May 1, 2015).
¶ 110 But in Illinois, our supreme court has been clear that we do not engage in credibility or
reliability determinations of any kind at the initial stages of a successive postconviction petition.
Sanders, 2016 IL 118123, ¶¶ 37, 42. In Sanders, the State argued that the trial court, at the initial
stages of a successive postconviction petition, could engage in a threshold determination of
whether the evidence was “reliable” and whether new eyewitness accounts were “trustworthy,”
based on language from Edwards that quoted Schlup (language that the majority here includes in
its analysis as if it were settled law in Illinois). Id. ¶ 32. But our supreme court emphatically
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No. 1-15-0132
rejected that argument. Id. ¶ 37. The court emphasized that, when it adopted the Schlup test (i.e.,
that it is more likely than not that no reasonable juror could convict based on the newly-
discovered evidence) in Edwards, it had not intended to adopt the federal analysis part and parcel
and never meant to leave the door open to credibility determinations at the initial stages of a
successive postconviction petition. Id. (Which is why the federal habeas decision rejecting this
defendant’s affidavits, Brown, 2015 WL 1976366, decided as it was under a different standard,
does not collaterally estop defendant from presenting his claims to this court.)
¶ 111 The majority’s analysis here falls comfortably under the federal standard, but not under
the Illinois standard. The majority holds that a reasonable juror might choose to believe the
eyewitnesses who identified defendant at the original trial over the new affiants, who identify
David Payton as the shooter. The majority is saying, without saying it, that a reasonable juror
could find the original eyewitnesses more credible than defendant’s new ones, that a reasonable
juror could place more weight on the original eyewitnesses than the new ones. At the risk of
repetition, that is not taking the new evidence “as true.”
¶ 112 The trial court’s stated reason for rejecting this petition was that the new evidence was
“directly rebutted by the record, as [defendant] was convicted based on positive eyewitness
testimony that [defendant] was the shooter.” While it is true that newly-discovered evidence will
not be taken as true if it is affirmatively rebutted by the record (Sanders, 2016 IL 118123, ¶ 42),
the fact that Norwood and Austin would testify inconsistently with Thomas and Blackburn does
not render this new testimony “rebutted” by the record. If it did, then no newly-discovered
evidence would ever satisfy a successive postconviction hearing. Every conviction is supported
by some evidence of guilt, and evidence of innocence, by definition, will directly or indirectly
contradict evidence of guilt. If a contradiction between eyewitnesses were enough by itself to
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No. 1-15-0132
derail an actual-innocence petition, our postconviction proceedings for actual-innocence claims
would be a dead letter, something out of a Kafka novel. Contrary to the trial court’s reasoning,
the stark contradiction between the new eyewitnesses, identifying David Payton as the shooter,
and the old ones, implicating defendant, is not a reason to reject defendant’s claims—it is a
reason to give them a fair and complete airing.
¶ 113 Schlup, discussed above, should be a clear enough example of this point. The district
court there said what the trial court here said—that the eyewitness testimony at trial, implicating
the defendant, rebutted the defendant’s new witness testimony demonstrating innocence. Schlup,
513 U.S. at 309 n.19. As already noted, the Supreme Court, recognizing that the “new statements
may, of course, be unreliable,” remanded for further consideration because “if they are true,” it
“cannot be said that a juror *** would vote to convict.” Id. at 331.
¶ 114 As another example, in People v. Adams, 2013 IL App (1st) 111081, ¶¶ 36-38, we found
that affidavits from two new eyewitnesses, attesting that Adams was not the perpetrator and
either identifying or describing someone else who was, supported a colorable claim of
innocence. Adams’s conviction, like defendant’s, was based on the testimony of two
eyewitnesses who identified him as the perpetrator, with no physical evidence or confession to
corroborate it. Id. ¶¶ 36-38. In these circumstances, we reasoned, “[w]here the statement of a
witness is both exonerating and contradicts a State witness, it can be capable of producing a
different outcome on retrial.” Id. ¶ 36. That is equally true here, where Austin and Norwood
would contradict the State’s witnesses with exculpatory evidence that was not available at
defendant’s trial.
¶ 115 Likewise, in People v. Ortiz, 385 Ill. App. 3d 1, 2-4 (2008), the State’s case was based on
testimony from two witnesses who identified Ortiz as the shooter; and like defendant here,
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No. 1-15-0132
Ortiz’s defense at trial was an alibi. At a bench trial, the State’s witnesses recanted, though the
trial court did not find those recantations credible, and defendant was convicted. Id. at 3, 12. In a
successive postconviction petition, new eyewitnesses came forward, attesting that Ortiz did not
shoot the victim and positively identifying the people who did. Id. at 5. After a third-stage
evidentiary hearing in the successive postconviction proceeding, the trial court denied the
petition. We reversed and remanded for a new trial, because the new eyewitnesses contradicted
the original inculpatory testimony of the State’s witnesses. Id. at 12. Among other reasons, we
found that the evidence in favor of Ortiz’s innocence would be much stronger on retrial, and the
evidence of his guilt would be much weaker, because he could “attack the credibility of the
State’s eyewitnesses directly with his own eyewitnesses” instead of “rel[ying] solely on alibi
testimony.” Id. at 13.
¶ 116 Our supreme court affirmed. Noting that the new eyewitness testimony “supplied a first-
person account of the incident that directly contradicted the prior statements of the two
eyewitnesses for the prosecution,” and recalling that “[n]o physical evidence linked defendant to
the murder,” the supreme court reasoned that “the evidence of defendant’s innocence would be
stronger when weighed against the recanted statements of the State’s eyewitnesses.” People v.
Ortiz, 235 Ill. 2d 319, 335, 337 (2009).
¶ 117 Likewise, here, defendant would no longer have to rely solely on Jefferson’s alibi
testimony, because Austin and Norwood would identify Payton as the shooter, directly
contradicting the eyewitness testimony implicating defendant. It is hard to understand how our
supreme court would grant Ortiz a new trial, yet we deny defendant here a chance to merely file
his petition, when each petitioner’s new witnesses would bolster the defense case in essentially
the same way.
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¶ 118 In addition to identifying Payton as the shooter, Austin and Norwood would also testify
that Payton had a plausible motive to shoot Byrd: the two rival heroin dealers were feuding over
drug turf. At trial, the State did not offer any explanation for the shooting or any evidence that
defendant had a reason to shoot Byrd. Of course, motive is not an element of the State’s case, but
it is at least worth noting that on retrial, the only plausible account of why Byrd was shot in the
first place would come from the defense, and it would point squarely toward Payton as the
shooter.
¶ 119 To be sure, the State presented evidence linking defendant to the car that the shooter
drove to and from the sub shop. Thomas identified that car as a red Buick that belonged to Iesha
Rials, the mother of defendant’s child. In his pretrial statement to prosecutors, Corey Gilmore
said that, as he left the sub shop prior to the shooting, he saw defendant drive up, alone, in the
same car. Gilmore and defendant talked for a few minutes in front of the shop; defendant then
drove away, and Gilmore went to a strip club. Defendant did not mention Byrd, and Gilmore did
not see a gun in the car. Kevin Tenard testified that defendant drove up to Rials’s house in a red
car, not long after the shooting, and gave him the keys to return to Rials.
¶ 120 No doubt, this is circumstantial evidence of defendant’s guilt. But if we assume that a
rational trier of fact will believe the witnesses who implicate Payton as the shooter (which we
must, if we take their affidavits as true at this stage), the State’s case boils down to the evidence
provided by Gilmore and Tenard that defendant was seen driving Rials’s car shortly before and
shortly after the shooting. Assuming that Gilmore and Tenard reliably identified defendant, that
evidence might support an inference that defendant was accountable for the shooting—either by
casing the scene or by providing a getaway car for the shooter.
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¶ 121 But the State’s theory of guilt was not accountability; the State charged defendant as the
shooter. Had defendant been convicted under an accountability theory, the majority’s citation to
Edwards, 2012 IL 111711, might be more persuasive. There, defendant was convicted of murder
under an accountability theory. The new postconviction affidavit claimed that the petitioner
“ ‘had nothing to do with’ ” the shooting but did not assert “that petitioner was not present when
the shooting took place,” and thus the defendant still could have been culpable under an
accountability theory. (Emphasis in original.) Id. ¶¶ 10, 39. The new evidence was not likely to
change the outcome.
¶ 122 But here, given the State’s direct-shooter theory, and the new, direct evidence implicating
Payton as the shooter that we must take as true and reliable, I would have no “confidence in the
factual correctness of [a] guilty verdict” (People v. Coleman, 2013 IL 113307, ¶ 97) based
entirely on the circumstantial evidence that placed defendant in Rials’s car before and after, but
not at the time of, the shooting.
¶ 123 Understandably, the first stage of a successive postconviction procedure on an actual-
innocence claim is designed to screen out petitions that will obviously fail before expending
further judicial resources on them. Courts dismiss successive postconviction petitions when the
new evidence presented is not new at all—it was or should have been known to the defendant
earlier, or it may come from a new source but is cumulative to something the trier of fact already
heard at the original trial. See Ortiz, 235 Ill. 2d at 335. If a defendant can continually raise and
re-raise the same evidence, or essentially the same evidence with a different coat of paint, our
system would drown in “ ‘piecemeal post-conviction litigation.’ ” Id. at 332 (quoting People v.
Tenner, 206 Ill. 2d 381, 398 (2002)); see also People v. Davis, 2014 IL 115595, ¶ 14 (noting that
“successive petitions impede the finality of criminal litigation”).
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¶ 124 And once a defendant establishes that the evidence is new and noncumulative, the first
stage is further designed to screen out cases that are so deficient that we can be confident that an
evidentiary hearing on the new evidence is unnecessary. Unnecessary, because even if the
evidence is true, it is not conclusive—it does not directly negate the evidence of guilt and, thus,
would not likely change the outcome of a retrial. See, e.g., People v. Smith, 177 Ill. 2d 53, 83
(1997) (new evidence merely served to impeach main witness and was “insufficient to warrant a
new trial”). Or unnecessary, because we know conclusively that the new evidence is not true, as
it is positively rebutted by the record. See, e.g., Sanders, 2016 IL 118123, ¶ 48 (witness’s new
claim that he shot victim once, in back of head, was positively rebutted by trial record, where
pathologist demonstrated victim was shot twice in back of head and died of “multiple gunshot
wounds”).
¶ 125 That procedure, as interpreted by our supreme court, separates those petitions that afford
a defendant no meaningful chance of success from those that bear further scrutiny—not a new
trial, not even an evidentiary hearing, but merely the appointment of a lawyer to help the
defendant make the case for an evidentiary hearing.
¶ 126 This case is not one that should be screened out before determining the truth of the
factual allegations by Austin and Norwood. There is nothing cumulative or collateral about
defendant’s new evidence. It speaks directly to whether defendant did or did not shoot Robert
Byrd. And there is nothing in the record that affirmatively rebuts what Austin and Norwood are
saying.
¶ 127 I have no idea if defendant is actually innocent. Neither does the majority. That is not the
point. The point is that Austin and Norwood swear that he is. If they are telling the truth, the
wrong man is in prison. If they are not, then let’s find that out—let a judge hear from them and
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decide if their testimony is credible. Then we will know the answer, as best we can in our
adversarial system. But we should not close the courtroom door to defendant without even trying
to learn that answer.
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