People v. Brown

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Appellate Court Date: 2018.01.30

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People v. Brown, 2017 IL App (1st) 150132

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

Caption PERNELL BROWN, Defendant-Appellant.

District & No. First District, Fourth Division

Docket No. 1-15-0132

Filed November 16, 2017

Rehearing denied January 4, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 01-CR-15671; the

Review Hon. Jorge Luis Alonso, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Patricia Mysza, and Gilbert C. Lenz, of State

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

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Christine Cook, and Clare Wesolik Connolly, Assistant State’s

Attorneys, of counsel), for the People.

Panel 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.

¶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 Thomass1 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. 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.

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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¶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. 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 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.

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¶ 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

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.

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?

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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

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 Illinois 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

attach an affidavit from him. Halbert’s affidavit was not newly discovered evidence because

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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 “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

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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.”

¶ 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 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, No. 15-2156 (7th Cir. 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

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law claims and a third stay is not warranted.” Brown, 2015 WL 1976366, at *7. Among other

claims made before the federal 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.” Id. at *9. 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.”

Id. at *10. 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. Id. 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.’ ” Id. (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 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

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enough in the way of documentation to allow a circuit court to make that determination.” Id. at

157, 161. “[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.

¶ 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,

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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.

¶ 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 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

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reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup,

513 U.S. at 329.

¶ 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

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

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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

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

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

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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 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.” 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 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.

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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¶ 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.

¶ 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 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.

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¶ 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 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 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.

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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

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”).

¶ 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

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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

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 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.

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¶ 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 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

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

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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:

(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 fact finder 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 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.

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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 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.

¶ 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

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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 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 307-12. 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.

¶ 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 he or she 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

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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 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 v. Gaetz, No. 10 C

1463, 2015 WL 1976366 (N.D. Ill. May 1, 2015)), 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 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

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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. 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,

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 12-13. 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.

¶ 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.

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¶ 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.

¶ 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 reraise 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, 395, 398 (2002)); see also

People v. Davis, 2014 IL 115595, ¶ 14 (noting that “successive petitions impede the finality of

criminal litigation”).

¶ 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

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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 us find that out—let a judge hear from them and

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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