People v. English

Illinois Official Reports

Appellate Court

People v. English, 2014 IL App (1st) 102732-B

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption ANTHONY ENGLISH, Defendant-Appellant.

District & No. First District, Third Division

Docket No. 1-10-2732

Filed June 18, 2014

Rehearing denied July 24, 2014

Modified upon

denial of rehearing July 30, 2014

Held Defendant was properly denied leave to file a successive

(Note: This syllabus postconviction petition alleging his actual innocence based on the

constitutes no part of the claim that the State’s three inculpatory witnesses recanted their trial

opinion of the court but testimony and claimed that the inculpatory testimony was the result of

has been prepared by the police abuse, since the allegations of defendant’s petition were not

Reporter of Decisions sufficiently specific to meet the procedural requirements of a

for the convenience of successive petition alleging actual innocence, the evidence defendant

the reader.) proposed to present did not qualify as newly discovered evidence for

purposes of the Post-Conviction Hearing Act, and there was no

evidence corroborating defendant’s claims of police misconduct.

Decision Under Appeal from the Circuit Court of Cook County, No. 96-CR-11509; the

Review Hon. James B. Linn, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier and Robert Hirschhorn, both of State Appellate

Appeal Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Tasha Marie Kelly, and Michele Grimaldi Stein, Assistant State’s

Attorneys, of counsel), for the People.

Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court,

with opinion.

Justices Pucinski and Mason concurred in the judgment and opinion.

OPINION

¶1 On mandate from the supreme court following its opinion in People v. Edwards, 2012 IL

111711, the supreme court directed us to vacate our earlier judgment in People v. English,

2012 IL App (1st) 102732-U, and reconsider whether Anthony English should have been

granted leave to file a successive petition under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2012)). People v. English, No. 115421 (Ill. Mar. 27, 2013). English

claims the trial court improperly denied him leave because he pled a colorable claim of actual

innocence by alleging that the State’s three inculpatory witnesses, all of whom recanted their

trial testimony, were the victims of police coercion.

¶2 In our earlier decision we affirmed the trial court’s denial of English’s request for leave to

file a successive petition under the Act. English sought to relax the bar against successive

postconviction petitions on the basis of actual innocence, claiming that newly discovered

evidence supported his claim that the State’s witnesses accused him because of police

coercion. English offered two dated newspaper articles discussing Detective Daniel

McWeeny’s role in the investigation of torture in Area 2 by former Commander Jon Burge, as

well as two affidavits that are years old from previously known witnesses. English also argued

the trial court lost the statutory power to dismiss his petition because it allowed the 90-day time

limitation to expire without action. People v. English, 2012 IL App (1st) 102732-U, ¶ 1.

¶3 We have considered the parties’ supplemental briefs, and after reconsidering the matter in

light of the supreme court’s remand order, we hold the trial court did not err in denying English

leave to file a successive petition. Although we agree that the trial court improperly considered

the results of the evidentiary hearing in the postconviction proceeding on a separate murder

conviction to deny English leave to file a successive petition in this case, a different result is

not warranted based on that error. From review of the successive petition and the supporting

documentation, as a matter of law, we must conclude that English could not set forth a

colorable claim of actual innocence. The affidavits of the State’s witnesses were not “newly

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discovered” evidence as required under the Act. The trial court properly denied English leave

to file a successive petition.

¶4 BACKGROUND

¶5 Trial

¶6 Both English and the victim, Bertram “Black” Scarver, were high-ranking members of the

New Breed street gang. The shooting was witnessed by fellow gang members Jerry Lawrence,

Dwight Sanders, and Joshua Cole. English’s arrest came several months later after police

connected English to the murder of rival gang member Keith Lewis, whose death resulted from

the same gun, in the same area, a month before Black’s murder. People v. English, No.

1-97-4521 (1999) (unpublished order under Supreme Court Rule 23) (following jury trial,

English found guilty of first-degree murder of Lewis and sentenced to natural life in prison).

¶7 Because the shootings of Black and Lewis involved the same gun, Detective Daniel

McWeeny investigated both incidents. During the investigation, McWeeny received a tip from

Joshua Cole on English’s whereabouts, which led to English’s arrest.

¶8 Lawrence, Sanders, and Cole testified on the State’s behalf at English’s trial for the murder

of Black. But all three witnesses were treated as hostile because Lawrence disavowed portions

of his statement to the police and Cole and Sanders disavowed portions of their grand jury

testimony. The State impeached the witnesses with their previous accounts. Lawrence’s

statement and Cole’s and Sanders’ grand jury testimony were introduced as substantive

evidence. The State also questioned the witnesses about their earlier statements that they were

afraid to testify against English.

¶9 At trial, Cole, then 16 years old, denied making a statement to the grand jury that English

and another gang member instructed him to get Black to exit a store onto the street “so they

could kill him.” Cole testified he refused their request, and all he saw English do was speak

with Sanders near the entrance of the grocery store and then shake Black’s hand when he

emerged. Cole denied telling the grand jury he told Detective McWeeny that English warned

him not to speak with the police or that English shot Black.

¶ 10 The State showed Cole pictures he had previously identified as English and Black. Before

the grand jury, Cole testified he viewed a lineup and identified English as the shooter; at trial,

he denied the earlier identification.

¶ 11 Jerry Lawrence testified that he was with Sanders on the evening of the shooting in an

apartment next to the grocery store. When Sanders left, Lawrence heard gunshots. Lawrence

looked outside and saw Black in a pool of blood. He testified he saw a man firing a gun at

Black but could not identify him.

¶ 12 Lawrence denied telling Detective McWeeny later that evening that English was the

shooter. He further denied telling the prosecutor that he saw English shoot Black. Lawrence’s

earlier testimony identifying English as the shooter, including his written statement, was

presented. Lawrence testified he told the officers he could not identify the shooter, but that

Detective McWeeny pressured him into implicating someone and that he ultimately picked

“the one that the detectives wanted [him] to pick” when shown a photographic array. Lawrence

denied telling the prosecutors that gang members had come to him several times to threaten

him about testifying.

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¶ 13 During cross-examination, Lawrence testified he believed he accused English wrongly or

had been forced to do so. He said that the police harassed him and he had been “roughed up” by

detectives accompanying McWeeny when they first came to his apartment.

¶ 14 Dwight Sanders denied knowing Cole, Lawrence, or English. He denied seeing English

shoot Black. Sanders acknowledged viewing a lineup but denied he identified English as the

shooter. The State elicited his grand jury testimony–that when Black came out of the store,

English shot him–which he repudiated.

¶ 15 Sanders claimed that in advance of testifying before the grand jury, an unidentified police

officer hit him on the hands with a flashlight, pushed him back into his chair and told him to

stop lying. He denied telling prosecutors the week before trial that an officer had hit his hands

with a big stick.

¶ 16 At trial, Lawrence and Sanders offered a number of reasons for the inconsistencies

between their trial testimony and earlier statements, including: tiredness, not paying attention,

drug use, pressure by police, a desire to get the police or prosecutors “off their backs,”

indifference, and impatience. Sanders acknowledged that he did not tell the grand jury he had

been mistreated by the police. Lawrence admitted that he told two prosecutors that he feared

for his safety and that of his family if he testified against English.

¶ 17 Procedural History

¶ 18 Following a bench trial, English was found guilty of first-degree murder for the 1995

shooting of Black. The court sentenced English to 40 years in prison. On direct appeal, this

court affirmed his conviction and sentence. People v. English, No. 1-97-2322 (1998)

(unpublished order under Supreme Court Rule 23).

¶ 19 Thereafter, English filed his initial pro se petition for postconviction relief, alleging (i)

ineffective appellate counsel for failing to raise issues counsel informed him were outside the

record; and (ii) ineffective trial counsel for failing to interview witnesses English claimed

would have exonerated him. English named three potential witnesses in his petition, but did

not include their requisite affidavits. English also claimed trial counsel incorrectly advised him

that he would avoid the death penalty if he waived his right to a jury trial. The trial court

dismissed the petition, finding it failed to state the “gist” of a meritorious constitutional claim.

On appeal, this court reversed, finding English’s claim that his trial counsel misadvised him

about the consequences of waiving his right to a jury trial stated the “gist” of a claim of

ineffective assistance of trial counsel. We remanded for second-stage proceedings. People v.

English, No. 1-00-2001 (2002) (unpublished order under Supreme Court Rule 23).

¶ 20 Appointed counsel, Dennis Urban, filed a supplemental petition refining English’s claim

regarding jury waiver in his pro se petition. Urban did not raise any other claims. Urban also

represented English in the postconviction proceedings related to the Lewis murder conviction.

The trial court dismissed the original and supplemental petitions, finding no merit to English’s

claim that trial counsel misled him about the consequences of his jury waiver. English

appealed, arguing he did not receive effective assistance on remand because his appointed

counsel failed to raise additional constitutional claims. This court affirmed the trial court’s

dismissal of English’s postconviction petition. People v. English, No. 1-05-2288 (2007)

(unpublished order under Supreme Court Rule 23).

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¶ 21 Lewis Murder Conviction

¶ 22 Following a jury trial, English was found guilty of first-degree murder and sentenced to

natural life in prison for the death of Keith Lewis. Keith Dickerson was among three people

with Lewis at the time of the murder. Dickerson had known English for years and they had

been friends before joining rival gangs. Dickerson identified English as the person who beat

and then shot Lewis several times in the gang-related incident. People v. English,

No. 1-97-4521 (1999) (unpublished order under Supreme Court Rule 23).

¶ 23 English filed a direct appeal regarding the Lewis murder conviction, claiming the State

failed to prove him guilty beyond a reasonable doubt and the trial court abused its discretion in

denying his request for a continuance to locate eyewitness William Brown. This court affirmed

the judgment on appeal, noting that two eyewitnesses testified they saw defendant shoot Lewis

in broad daylight and at close range and that proposed eyewitness Brown claimed that he did

not see who fired the gun. People v. English, No. 1-97-4521 (1999) (unpublished order under

Supreme Court Rule 23).

¶ 24 In February 2001, English filed a pro se postconviction petition regarding the Lewis

murder conviction, alleging that intended defense witness Brown’s testimony would have

contradicted the State’s witnesses. (Brown could not be located at the time of trial.) As support,

English attached an affidavit from Brown that at the time of the shooting, Cole and Lewis were

fighting and Brown and English were fighting. Brown claimed that when he heard gunshots, he

was struggling with English, who “never showed or fired a gun.” English also raised

discrepancies in the testimony of the State’s witnesses, Keith Dickerson and Joshua Cole.

English contended Cole identified him as the shooter in both cases due to threats from the

police and prosecutors that he would be charged with Lewis’s murder if he did not implicate

English. English attached Cole’s affidavit to the petition. The trial court dismissed the petition

after second-stage proceedings.

¶ 25 On appeal, English claimed the trial court erred in dismissing his petition without first

holding an evidentiary hearing on his claim of actual innocence based on newly discovered

evidence. Specifically, English argued Brown’s affidavit showed he could not have shot

Lewis. This court reversed the dismissal of defendant’s postconviction petition and remanded

for a third-stage evidentiary hearing, finding English made a substantial showing of a violation

of his constitutional rights. We held the information in Brown’s affidavit, when taken as true,

“is potentially exculpatory and calls into question the credibility of the State’s witnesses.”

People v. English, No. 1-05-2287 (2007) (unpublished order under Supreme Court Rule 23).

¶ 26 On remand, Brown and Cole testified at the evidentiary hearing. The trial court found both

of them “wholly lacking in credibility.” The court concluded “[t]he performances they put on

here in [this] courtroom [were] sad and not at all compelling.” The court noted that, since the

time of English’s trial, both Brown and Cole had “picked up quite a bit of additional baggage in

[that] they’re both now convicted murderers themselves.” The trial court dismissed English’s

petition. We affirmed. People v. English, 406 Ill. App. 3d 943, 948-51 (2010).

¶ 27 Successive Postconviction Petition at Issue

¶ 28 On May 4, 2010, English filed the successive postconviction petition at issue. English

alleged actual innocence based on newly discovered evidence regarding his conviction for

Black’s murder. Noting that the State’s witnesses recanted their trial accusations, English

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alleged that newly discovered evidence supported the witnesses’ claims that their accusations

were false by showing that the evidence against him was obtained through police misconduct

and coercion of the witnesses. The evidence included a copy of Cole’s 10-year-old affidavit

and Brown’s 5-year-old affidavit from English’s postconviction proceeding in the Lewis

murder and two newspaper articles naming Detective McWeeny as one of the police officers

granted immunity in the investigation of the torture in Area 2 by former Commander Jon Burge

and the officers under his command. The articles were published on December 2, 2005, and

June 15, 2006.

¶ 29 The trial court denied English leave to file his successive petition. The court noted that the

petition concerned one of two murder prosecutions against English and, in the other case (the

Lewis murder), English had filed a petition on similar grounds. In holding the petition

meritless, the court incorporated “by reference the evidentiary hearing on the other case, [the

Lewis murder].”

¶ 30 This court affirmed the trial court’s denial of leave to file, finding English’s petition failed

to establish a claim of actual innocence. People v. English, 2012 IL App (1st) 102732-U, ¶ 63.

We found: (i) English failed to provide the required documentation for his claims of coercion

regarding trial witnesses Lawrence and Sanders; (ii) the record affirmatively rebutted his

claims as to those witnesses; (iii) the documentation English provided for his claims of

coercion regarding trial witnesses Cole and Brown could have been presented in his initial

postconviction proceedings and, therefore, was not new; (iv) the documentation regarding

Cole and Brown did not support English’s allegations of coercion where it “merely impeached

or contradicted trial testimony”; and (v) English was collaterally stopped from claiming that

Cole’s testimony was coerced by the rejection of that same claim in a separate postconviction

proceeding after a full evidentiary hearing. Id. ¶¶ 47, 57-60.

¶ 31 English filed a petition for rehearing arguing the appellate court’s analysis and ruling was

improper in light of the supreme court’s decision in People v. Edwards, 2012 IL 111711, as

well as its decision in People v. Wrice, 2012 IL 111860. We denied English’s petition. The

supreme court denied English leave to appeal, but exercised its supervisory authority and

directed this court to vacate its previous judgment and reconsider in light of Edwards “to

determine if a different result is warranted.”

¶ 32 ANALYSIS

¶ 33 English contends he pled a colorable claim of actual innocence under Edwards to warrant

further inquiry. English argues he should have been granted leave to file his successive petition

for postconviction relief because he alleged a freestanding claim of actual innocence based on

his claim that Detective McWeeny coerced the State’s witnesses–Sanders, Lawrence, and

Cole–to implicate him.

¶ 34 In support, English cites Sanders’ trial testimony that he was hit in the hands with a

flashlight. And, Lawrence’s testimony that the police harassed and roughed him up when they

first came to his apartment. As new evidence, English attached to his postconviction petition

two newspaper articles, one from December 2005, the other from June 2006, naming Detective

McWeeny as one of three former Area 2 detectives granted immunity in the investigation into

police abuse at Area 2. English also attached affidavits from State witnesses Cole and Brown,

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both of which were filed in the postconviction proceedings for the Lewis murder. English

provided no affidavits from Lawrence or Sanders.

¶ 35 To be entitled to relief under the Act, a defendant must demonstrate a substantial

deprivation of his constitutional rights in the proceedings that produced his conviction. People

v. Morgan, 212 Ill. 2d 148, 153 (2004). The Act contemplates the filing of only one

postconviction petition. Morgan, 212 Ill. 2d at 153. “Any claim of substantial denial of

constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS

5/122-3 (West 2010). The supreme court, however, has carved out an exception to this rule,

relaxing the bar to successive postconviction petitions when fundamental fairness requires.

Morgan, 212 Ill. 2d at 153. Generally, for a reviewing court to consider a defendant’s

successive postconviction petition on its merits, the defendant must show both “cause” for his

or her failure to raise the claim in the initial postconviction petition and “prejudice” resulting

from this failure. People v. Pitsonbarger, 205 Ill. 2d 444, 459-60 (2002). Even if the defendant

cannot meet the cause-and-prejudice test, the court may consider the successive petition if the

defendant can show that consideration is “necessary to prevent a fundamental miscarriage of

justice.” Pitsonbarger, 205 Ill. 2d at 459. To demonstrate a fundamental miscarriage of justice,

the defendant must show actual innocence.

¶ 36 To obtain relief under a theory of actual innocence based on “newly discovered” evidence,

the defendant must offer evidence that was not available at the original trial and that could not

have been discovered sooner through diligence. Morgan, 212 Ill. 2d at 154. In order to be

considered, the evidence must be material, noncumulative, and of such a conclusive nature,

that it would probably change the result on retrial. People v. Washington, 171 Ill. 2d 475, 489,

(1996).

¶ 37 The supreme court’s decision in Edwards clarified the standard that applies to successive

petitions raising actual innocence and held that those petitions are not subject to first-stage

summary review, i.e., the “gist” standard analysis. Edwards, 2012 IL 111711, ¶¶ 26-30. The

supreme court explained that successive postconviction petitions raising actual innocence

“should be denied only where it is clear, from a review of the successive petition and the

documentation provided by the petitioner that, as a matter of law, the petition cannot set forth a

colorable claim of actual innocence.” Edwards, 2012 IL 111711, ¶ 24. A colorable claim of

actual innocence raises the probability that it is more likely than not that no reasonable juror

would have convicted the defendant in light of the new evidence. Edwards, 2012 IL 111711,

¶¶ 31, 33. In discussing the standard, the supreme court reiterated the well-settled rule that

successive postconviction actions are “disfavored.” Edwards, 2012 IL 111711, ¶ 29 (citing

People v. Wright, 189 Ill. 2d 1, 38 (1999) (Freeman, C.J., specially concurring, joined by

McMorrow, J.)). Edwards did not decide the question of the applicable standard to review a

trial court’s decision to deny leave to file a successive claim of actual innocence, finding the

result in that case would be the same under either an abuse of discretion or de novo standard.

Edwards, 2012 IL 111711, ¶ 30.

¶ 38 In Edwards, the defendant’s claim of actual innocence was based on three affidavits, two

from alibi witnesses and the third from an alleged witness who would exonerate him as the

shooter. Edwards, 2012 IL 111711, ¶¶ 12, 39. In rejecting the defendant’s claim of actual

innocence, the court assumed the truth of the affidavits, but found that because an alibi can

never be newly discovered evidence (the accused would know he was not present), even if true,

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the evidence was insufficient to raise a colorable claim of actual innocence. Edwards, 2012 IL

111711, ¶ 34. As to the third affidavit, the court found it would only be of value if the

defendant had been convicted as a principal, but Edwards was convicted based on

accountability and, therefore, he could not raise a colorable claim of actual innocence based on

the information in that affidavit. Edwards, 2012 IL 111711, ¶ 39.

¶ 39 Based on Edwards, assuming all the factual allegations in his successive petition are true,

English claims our review is limited to whether he presented a colorable claim of actual

innocence. According to English, the colorable claim test is a “portal to a hearing, and not the

hearing itself–as a pleading matter, it looks to see if the pleading alleges enough to create a

‘fair probability’ that an evidentiary hearing could produce a reasonable doubt exoneration.”

English suggests that factual disputes can only be resolved in an evidentiary hearing, not as a

matter of pleading “unless that result is compelled as a matter of law.”

¶ 40 English frames the question as whether the trial court, as the fact finder, should believe the

pretrial accusations of Lawrence, Cole, and Sanders or believe their trial recantations. In his

postconviction petition, English argues the defense theory that the State’s witnesses were

coerced into accusing him becomes more credible when considering Detective McWeeny’s

misconduct in light of the supporting evidence he included with his petition.

¶ 41 English argues the new evidence he presented is not that of a new and exonerating witness

or a new recantation (the State’s witnesses recanted at trial), but, instead, evidence that sheds

light on why the State’s witnesses initially accused English and then recanted–police

misconduct. Thus, says English, the evidence of the improper police tactics would not only

explain the State witnesses’ recantations, but bolster their credibility by showing the

recantations were truthful and that English was actually innocent. English claims the evidence

of the State’s witnesses’ motivation (police coercion) for recanting their testimony could not

have been obtained earlier.

¶ 42 English further argues that in denying him leave to file his successive petition, the trial

court erred by applying the results in the Lewis postconviction proceedings to deny the

successive petition in this case. By so doing, the trial court improperly evaluated the

sufficiency and weight of the evidence at stage one. English argues the trial court should have

advanced his successive petition to appoint counsel and hold an evidentiary hearing to

determine whether English should have been granted a new trial based on his claims of newly

discovered evidence of his actual innocence. Only then, at the third-stage hearing, could the

trial court weigh the evidence of police misconduct against the strength of the State’s evidence

and decide whether to order a new trial.

¶ 43 The State characterizes English’s argument as applying the “gist” standard, that is, the

allegations in his successive petition should be scrutinized to determine whether he

demonstrated a colorable claim of actual innocence, not his proofs. The State contends

English’s position is that if his allegations are sufficient, leave to file should have been granted

and further proceedings ordered.

¶ 44 The State argues that in Edwards, 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.’ ” See Schlup v. Delo, 513 U.S. 298, 327

(1995) (colorable claim standard “ensures that petitioner’s case is truly ‘extraordinary’

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[citation] while still providing petitioner a meaningful avenue by which to avoid a manifest

injustice”). We agree.

¶ 45 In holding that successive petitions alleging actual innocence are not subject to the

cause-and-prejudice test, the supreme court stated successive petitions were not to be treated as

an original petition under the Act and to proceed unless frivolous and patently without merit.

Edwards, 2012 IL 111711, ¶¶ 24-29. The supreme court looked to habeas law and adopted the

federal “colorable claim” standard to judge a request for a successive petition claiming newly

discovered evidence of actual innocence. Edwards, 2012 IL 111711, ¶ 24. The supreme court

held that to present a colorable claim of actual innocence, the “petitioner’s request for leave of

court and his supporting documentation [must] raise the probability that it is more likely than

not that no reasonable juror would have convicted him in light of the new evidence.”

(Emphasis added.) Edwards, 2012 IL 111711, ¶ 31. Accordingly, before leave to file a

successive postconviction petition can be granted, the petition must not only allege actual

innocence, but also must offer evidence “of such conclusive character that it would probably

change the result on retrial.” Edwards, 2012 IL 111711, ¶ 32 (citing People v. Ortiz, 235 Ill. 2d

319, 333 (2009)). The court continues, citing Schlup, “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).

¶ 46 The Act does not define what a court may consider in determining whether leave to file a

successive petition should be granted. As the State points out, a defendant’s satisfaction of the

Act’s cause requirement almost always involves consideration of facts de hors the record.

Thus, that the circuit court considered information outside of the court record is not, by itself,

impermissible. In fact, in his successive petition, English specifically requested the court

consider Cole’s testimony from the evidentiary hearing in the Lewis post conviction

proceedings to support his claims here. That being said, we agree with English that the trial

court erred by considering the results of the evidentiary hearing in the Lewis postconviction

proceedings to deny him leave to file a successive petition in the Black case. We do not,

however, find that error requires a different result under Edwards.

¶ 47 We turn now to our supreme court’s analysis of the evidence in Edwards to guide us in our

review of the trial court’s analysis of the evidence English presented to support his claim of

innocence. The Edwards court carefully considered each piece of supporting documentation

Edwards claimed met the legal standard for “newly discovered.” Edwards, 2012 IL 111711,

¶ 32. Finding some of the evidence was not new and the remainder would not have changed the

result on retrial, the supreme court held Edwards failed, as a matter of law, to show that leave

to file a successive petition should have been granted. Edwards, 2012 IL 111711, ¶¶ 34, 40-41.

¶ 48 The inquiry for us then becomes whether English’s request for leave of court to file a

successive postconviction petition and his supporting documentation raise the probability it is

more likely than not that no reasonable juror would have convicted him in view of the new

evidence. Edwards, 2012 IL 111711, ¶ 31. In the earlier appeal affirming the trial court’s

denial, we did not specifically address the “colorable claim of actual innocence” standard of

Edwards; however, a different result is not warranted based on that standard.

¶ 49 We have carefully examined English’s supporting documentation, and as before, find it

falls below the legal requirements of “newly discovered” evidence such that a valid claim of

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actual innocence could be made. To qualify as newly discovered evidence, the evidence must

have been unavailable at trial and could not have been discovered sooner through due

diligence. Morgan, 212 Ill. 2d at 154. Evidence is not newly discovered if it presents facts

already known to the defendant, even if the source of those facts was unknown, unavailable or

uncooperative. People v. Jarrett, 399 Ill. App. 3d 715, 723 (2010).

¶ 50 English’s claim of actual innocence based on newly discovered evidence was centered on

his allegation that the police coerced the State’s witnesses into implicating him in the shooting

of Black. To support his claim, English cited Sanders’ trial testimony that a police officer hit

him in the hand with a flashlight and Lawrence’s testimony that he was harassed and roughed

up by the police. The “newly discovered” evidence included two dated newspaper articles

naming Detective McWeeny as one of the former Area 2 detectives that had been granted

immunity in the investigation into police misconduct at Area 2. English also attached a copy of

a 10-year-old affidavit from State witness Cole, which English had filed in the Lewis

postconviction proceedings, and a copy of a 5-year-old affidavit from Brown, an alleged

witness to the murder of Lewis, which he had also filed in the Lewis postconviction

proceedings.

¶ 51 In his affidavit, Cole contradicted his statements to the police and grand jury regarding the

Black murder. He claimed he did not see the person who shot Black. He said the police told

him what to say from “day one” and that both the police and prosecutor threatened to charge

him with the murder of Lewis if he changed his testimony during trial. Cole did not allege that

he was physically abused by Detective McWeeny. We acknowledge that no one alleges that

McWeeny himself acted abusively.

¶ 52 Nevertheless, the evidence shows English could have presented the issue of the alleged

police coercion of the State’s witnesses during his initial postconviction petition. Both

affidavits were available to English before the second-stage dismissal of his initial

postconviction petition. Moreover, the newspaper articles do not support a finding that

Detective McWeeny abused any of the witnesses in this case. There is no link between the

information in the article and English’s case. Cole never claimed that Detective McWeeny

physically beat or abused him to coerce him into implicating English in the shooting.

¶ 53 As in Edwards, the alleged newly discovered evidence was “not ‘of such conclusive

character that it would probably change the result on retrial.’ ” Edwards, 2012 IL 111711, ¶ 40

(quoting Morgan, 212 Ill. 2d at 154). English’s successive petition and accompanying

documentation did not support his claims of coercion as to Lawrence and Sanders. Neither

Lawrence nor Sanders provided an affidavit supporting English’s allegations that their

accusations were coerced. At trial, Lawrence explicitly denied Detective McWeeny hit him.

Sanders testified a police officer hit him with a flashlight, but he did not identify Detective

McWeeny as the officer. Sanders’ testimony was impeached with his previous statement that

he was hit with a stick.

¶ 54 We recognize that our supreme court has found that allegations of police misconduct can

support granting leave to file a successive postconviction petition. People v. Wrice, 2012 IL

111860 (defendant granted leave to file second successive postconviction petition on basis that

newly discovered evidence supported prior claim that his confession was product of police

torture and brutality). Generalized claims of abuse do not suffice to support a claim of

coercion; there must be a direct link to specific abuses in defendant’s case. People v. Anderson,

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402 Ill. App. 3d 1017, 1036 (2010) (“We have previously held that ‘[g]eneralized claims of

misconduct, without any link to defendant’s case, i.e., some evidence corroborating

defendant’s allegations, or some similarity between the type of misconduct alleged by

defendant and that presented by the evidence of other cases of abuse, are insufficient to support

a claim of coercion.’ ” (quoting People v. Anderson, 375 Ill. App. 3d 121, 137-38 (2006))). In

Wrice, the defendant alleged and offered evidence of methods and abuse consistent with the

misconduct uncovered by the reports and cases defendant cited. Defendant provided consistent

claims of abuse “ ‘strikingly similar’ ” to the abuses discovered by the earlier investigations,

including the same officers and the same methods of abuse and torture. People v. Wrice, 406

Ill. App. 3d 43, 53 (2010), aff’d as modified, 2012 IL 111860.

¶ 55 Here, no “strikingly similar” claims of physical abuse exist, and the witnesses only claimed

a general threat, not that they were physically intimidated by the police. Moreover, unlike the

cases in which police misconduct has supported a claim of actual innocence, English did not

consistently claim that the police physically abused his accusers to coerce them into

implicating him. Nor did the witnesses claim as much. Before the grand jury, Cole testified that

he had not been threatened or promised anything in return for his testimony. At trial, although

he recanted his earlier testimony, Cole did not testify that he had been physically abused or

otherwise coerced by the police into implicating English. He only claimed that he had been

pressured into providing information against English to avoid being charged as the principal in

the Lewis murder. The allegations of police abuse arose for the first time in English’s

successive postconviction petition. Without “some evidence corroborating defendant’s

allegations, or some similarity between the type of misconduct alleged by defendant and that

presented by the evidence of other cases of abuse” (Anderson, 375 Ill. App. 3d at 137-38),

English has failed to provide the necessary support for his request to file a successive

postconviction petition.

¶ 56 Even assuming all of English’s supporting documentation to be true, the facts presented do

not warrant further proceedings under the Act. English’s allegations are too general to meet the

procedural requirements of a successive postconviction petition alleging actual innocence.

Accordingly, the trial court properly denied him leave to file a successive petition.

¶ 57 Just as in Edwards, we need not decide whether the standard of review is de novo or abuse

of discretion; under either standard, English’s supporting documentation is unavailing.

¶ 58 CONCLUSION

¶ 59 Applying the standard our supreme court devised in Edwards for evaluating claims of

actual innocence in a successive postconviction petition, the trial court properly denied English

leave to file; it is clear as a matter of law that English cannot assert a colorable claim of actual

innocence. English’s successive petition has not met the procedural requirements of a

successive postconviction petition alleging actual innocence in that the proposed evidence did

not qualify as newly discovered evidence under the Act.

¶ 60 Affirmed.

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