People v. Robinson

2020 IL 123849

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 123849)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

RICKEY ROBINSON, Appellant.

Opinion filed June 18, 2020.

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Chief Justice Anne M. Burke and Justices Kilbride and Theis concurred in the

judgment and opinion.

Justice Michael J. Burke dissented, with opinion, joined by Justices Garman

and Karmeier.

OPINION

¶1 Petitioner, Rickey Robinson, appeals from an order of the circuit court of Cook

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

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). The pro se

petition alleged a claim of actual innocence based on newly discovered evidence.

The appellate court affirmed the decision of the circuit court in an unpublished

order. 2018 IL App (1st) 153547-U. For the reasons that follow, we reverse the

judgment of the appellate court.

¶2 I. BACKGROUND

¶3 Petitioner was charged with numerous offenses in relation to the December

1997 death of Nicole Giles. Two codefendants, Marques Northcutt and Peter

Andrew Ganaway, were also charged and tried for their involvement in Giles’s

murder.

¶4 A. Trial Proceedings

¶5 At trial, the State presented autopsy evidence establishing that Giles died of a

gunshot wound in her neck and that her body was subsequently burned. The State

also presented the testimony of several witnesses.

¶6 Sherrilyn Bivens, Giles’s mother, testified that Giles was supposed to pick her

up from work at 6 p.m. on December 28, 1997. When she failed to show up, Bivens

called Elsie Reed, Giles’s friend, to ask whether she had heard from her daughter.

Reed told Bivens that Giles had spoken with petitioner, who asked her to stop by.

Bivens later went to the home of petitioner, who stated that, although he had spoken

with Giles about coming to his house, she never arrived.

¶7 Elsie Reed testified that on December 28, 1997, she had participated in a three-

way telephone conversation with Giles and petitioner. During that call, petitioner

asked Giles to stop at his home before she went to Reed’s house. When Giles failed

to arrive at her house, Reed called petitioner to ask if he had seen her, and petitioner

responded that she had not shown up.

¶8 Anjanette Vance and Lavell Rogers testified that on the evening of December

28, 1997, they were in a car stopped at the intersection of 88th and Kingston Streets,

facing toward a viaduct. They observed two people standing over a person who was

sitting on the ground against a car when a third person exited the vehicle and shot

the person on the ground. The couple also saw a bag being placed over the head of

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the victim and the body being pulled into the back seat of the car. They then flagged

down a nearby police car and informed the officers of what they had observed. The

couple returned to the scene with the police officers and saw blood on the street.

¶9 Leonard Tucker testified that, on December 28, 1997, he was the boyfriend of

petitioner’s sister and was at her house when petitioner, Northcutt, and Ganaway

had a conversation about Giles, whom he had known for about seven years. When

he and petitioner were alone, petitioner stated that he had killed Giles and that he

had jumped out of the car and shot her in the head. After petitioner stated that he

did not wear gloves, Tucker responded that his fingerprints would be on Giles’s

body and the car. Petitioner also indicated that they had put a bag over Giles’s head,

put her in the car, drove off, and then put her body in a garbage can. Tucker further

testified that, as he left petitioner’s house, Ganaway handed him a green Pronto

pager, which he took home. Later that evening, Ganaway came to his home and

gave him a green box of AK-47 bullets to hide, which he knew was illegal. The

following day, he returned to petitioner’s home and saw him with a red gasoline

can. At that time, petitioner said “we burned her body.” Tucker further testified

that, on January 7, 1998, the police arrived at his school and escorted him to the

police station, where he was informed that he was a suspect. He then told the police

about the pager, the box of ammunition, and the conversations he had with

petitioner and the others.

¶ 10 Maisha Muhammad testified that she was the best friend of petitioner’s sister.

At about 10:30 on the morning of December 29, 1997, she received a call from

petitioner’s sister, who asked whether Muhammad could borrow her grandmother’s

car. After receiving permission, Muhammad drove her grandmother’s four-door

burgundy Corsica to petitioner’s house. When she arrived, petitioner’s sister was

there along with petitioner, Tucker, and Ganaway. Muhammad further testified that

she then left the house with Ganaway and petitioner, who was holding a gasoline

can. She drove to a gas station, where petitioner left the car with the gas can while

Ganaway remained in the car. Petitioner got back into the car with the gasoline can

and directed her to drive around several streets. Petitioner eventually told her to

stop the car, and he and Ganaway left with the gas can and headed toward an alley,

returning about 5 to 10 minutes later. She then drove them back to petitioner’s

house. In response to her question of what was going on, petitioner asked if she

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remembered “Nicky.” Muhammad answered that she did, and petitioner replied,

“that’s whose body we burned.”

¶ 11 D’Andre Weaver testified that at about 11:45 a.m. on December 29, 1997, he

was looking out of the second-story window in his bedroom waiting for his mother

to return from the grocery store. While looking out of his window, he saw a dark

reddish Chevrolet car parked at his neighbor’s house, and two guys got out of the

car and walked into the alley. He could not see their faces, but one was carrying a

gas can. After leaving the window for a few minutes, Weaver returned and saw the

same two guys running toward the red car with the gas can. They got into the car,

and the driver, who had remained in the car, drove off. Weaver further testified that

about 5 to 10 minutes after the car drove away, he heard fire engines, sirens, and

police cars. He returned to the window and saw smoke coming from the alley. Later,

a police officer rang his doorbell, and Weaver spoke with the officer about what he

had seen.

¶ 12 Michelle McClendon testified that, on December 29, 1997, she was petitioner’s

girlfriend and was at his house with him and Ganaway when they told her they had

burned Giles’s body. Later, when she and petitioner were alone, she asked whether

he had a conscience, and he answered that he did. McClendon further testified that

she asked how the gun was put in the victim’s car, and petitioner stated that one of

his friends asked for Giles’s keys to put something in her car and they then snuck

the gun in the car. According to McClendon, petitioner stated that, while they were

in Giles’s car, one of them said he had to urinate. When Giles pulled over and

stopped under the viaduct, they pulled her out of the car. Petitioner told her that he

shot Giles in the head, and she fell to the ground. McClendon testified that she did

not believe petitioner at the time but subsequently saw the murder reported on the

television news and began to believe what petitioner had been saying. On December

31, 1997, two police officers arrived at her home in the middle of the night and

escorted her to a police station. At trial, McClendon identified a picture of a rifle

and testified that she had seen that weapon twice within the month prior to the

shooting, once at Northcutt’s home and again at petitioner’s house.

¶ 13 Chicago police detective Michael McDermott testified that petitioner arrived at

the police station on December 30, 1997, and was advised of his rights. McDermott

also testified that he informed petitioner of the status of the investigation, including

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that witnesses had seen someone up against a car and another person shoot the

victim, that the shooting took place under a viaduct, and that a rifle had been

recovered. Petitioner then made a statement in which he admitted shooting and

robbing Giles.

¶ 14 Assistant State’s Attorney John Karnezis testified that he had advised petitioner

of his constitutional rights and that petitioner had answered his questions. Petitioner

agreed to make a court-reported statement, which he and Karnezis reviewed and

signed. Karnezis read petitioner’s 70-page statement into the record, without

objection.

¶ 15 In that statement, petitioner, who was 18 years old at the time, admitted his

involvement in the murder of Giles and the disposal of her body. Petitioner

indicated that sometime prior to December 28, 1997, he, Northcutt, and Ganaway

decided to rob Giles because they believed she would have a large sum of money

in her possession. They also decided that they would kill her because she knew

them. They formulated a plan for carrying out the robbery and murder. Pursuant to

the plan, petitioner contacted Giles on December 28, 1997, and asked her to come

over. After she arrived, petitioner asked Giles for her car keys, and he and Ganaway

put a semiautomatic rifle in her car. Later, while she was driving the three of them

around, Northcutt indicated that he had to urinate. Giles stopped under a viaduct,

and Northcutt exited the car. Ganaway pulled Giles from the car, and petitioner shot

her in the head. They placed a bag over her head and pushed her back into the car.

They removed $50 from Giles’s pocket and drove around before placing her body

into a garbage can. They then drove to a south suburb and parked Giles’s car on a

side street near a train station before taking the train back to the city. The following

day, after learning that fingerprints can be left on clothing, petitioner and Ganaway

returned to the garbage can in which they had placed Giles’s body. Ganaway poured

gasoline into the can, and petitioner lit a gasoline-soaked bandana that had been put

at the top of the garbage can. Petitioner’s statement also described conversations

that he had with Tucker, McClendon, and Muhammad in which he admitted his

participation in the shooting of Giles and burning of her body.

¶ 16 The State did not present any physical evidence directly linking petitioner to

the crime. Petitioner did not testify, and the defense rested without presenting

evidence.

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¶ 17 At the conclusion of the trial, petitioner was convicted of first degree murder,

aggravated vehicular hijacking, armed robbery, and concealment of a homicide.

The circuit court sentenced petitioner to a term of natural life for the murder

conviction, a consecutive 30-year term for armed robbery, a concurrent 30-year

term for aggravated vehicular hijacking, and a consecutive 5-year term for

concealment of a homicide.

¶ 18 Petitioner’s conviction and sentences were affirmed on direct appeal. People v.

Robinson, No. 1-00-2981 (2002) (unpublished order under Illinois Supreme Court

Rule 23). This court denied leave to appeal. People v. Robinson, 202 Ill. 2d 691

(2003) (table) (unpublished order under Illinois Supreme Court Rule 23).

¶ 19 B. Postconviction Proceedings

¶ 20 Petitioner filed a pro se postconviction petition in January 2005, asserting

various claims of ineffective assistance of counsel. The circuit court advanced the

postconviction petition to the second stage. The circuit court determined that

petitioner had failed to make a substantial showing of a constitutional violation and

dismissed his petition. The appellate court affirmed the second-stage dismissal of

the petition. See People v. Robinson, 2015 IL App (1st) 123360-U. This court

denied leave to appeal. People v. Robinson, No. 119184 (Ill. Sept. 30, 2015).

¶ 21 In May 2015, petitioner filed a motion for leave to file a successive

postconviction petition seeking relief under the Act. Petitioner’s motion alleged,

inter alia, a claim of actual innocence. In particular, petitioner asserted that he was

not involved in the crimes for which he had been convicted and that Giles had been

murdered by Tucker. In support, petitioner included his own affidavit as well as the

affidavits of Yasmyn Johnson, Andre Mamon, Donald Shaw, and Tavares Hunt-

Bey.

¶ 22 Petitioner’s affidavit averred that, on the day of Giles’s murder, he contacted

her for her assistance with transporting gang weapons but she never arrived at his

home. Petitioner further averred that, after spending the evening hours with Fatique

Williams, Yasmyn Johnson, and Michelle McClendon, he spent the night at the

apartment of Natasha Veasley-Boone and that she subsequently told him that she

would deny they spent that night together.

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¶ 23 In addition, petitioner’s affidavit averred that he and Tucker were members of

different sects of the same gang and had learned that Giles had received money

from her cousin, who belonged to a rival gang. According to petitioner’s affidavit,

Tucker considered Giles as “bait” in the ongoing war between the rival gangs.

Petitioner’s affidavit explained that he had not come forward with this information

previously because he feared for his safety and because a gang rule precluded him

from cooperating with the police against a fellow gang member. Lastly, petitioner

averred that his trial attorney as well as his counsel on direct appeal and initial

postconviction proceeding “were all made privy to this information” and that the

“majority of these details herein was actually in my initial statement while being

questioned by [d]etectives that was not used.”

¶ 24 The affidavit of Yasmyn Johnson, dated November 10, 2014, averred that she

was with petitioner, who was her boyfriend, on December 28, 1997. According to

Johnson’s affidavit, she and petitioner were at her sister’s apartment when the sun

went down, and they were together for one to two hours. Johnson’s affidavit further

averred that she remembered the date because it was three days after Christmas and

that was the night she suspected petitioner of cheating on her with another girl in

the same building.

¶ 25 Andre Mamon’s affidavit, dated December 19, 2014, averred that a few days

after Christmas in December 1997, he witnessed someone get shot and shoved into

a car. According to Mamon’s affidavit, he was with his father and three women on

the night of the shooting. The group had just left a liquor store at 87th Street and

South Colfax Avenue and was walking toward 88th Street to catch the bus on South

Chicago Avenue when they heard the horn from a car that was parked across the

street. The three women waved and yelled “hello” to a guy named “Lenny,” who

was sitting in the car with one other guy. Mamon and his companions continued

walking to the bus stop on Kingston Avenue. After standing there for a little while,

their attention was diverted to the viaduct across South Chicago “after a bright flash

and loud gun shot.” Mamon’s affidavit averred that he saw “Lenny shove an A.K.

into the back seat of the car” he had been sitting in. Mamon then observed that

“Lenny and two guys with him got in the car and disappeared through the viaduct.”

When the bus arrived, Mamon and his companions “got on it and out of there.”

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¶ 26 Mamon’s affidavit also averred that, in August 2014, he had a telephone

conversation with an individual who asked whether he knew a person named

“Ricky.” The caller explained that “Ricky” had been “locked up” for a murder on

South Chicago Avenue for a long time, but Mamon did not know petitioner as

“Ricky” because petitioner went by a nickname. According to his affidavit, Mamon

recalled the shooting incident he had witnessed years before, “but the name to go

with the face he saw was Lenny.” Later, while at a prison dining table, Mamon saw

the name “Ricky” on petitioner’s shirt, and he asked petitioner “if he had a murder

that happened under a viaduct right off South Chicago.” When petitioner answered

in the affirmative, Mamon told petitioner that he was at the bus stop when the

incident occurred and that petitioner’s face was not one of the faces he had seen

that night. Mamon averred that he prepared the affidavit knowing that he did not

see petitioner under that viaduct on the night of the shooting and that petitioner was

not guilty.

¶ 27 Donald Shaw’s affidavit, dated March 5, 2015, averred that from approximately

January 1995 to August 1999, he spent time “hang[ing] out on the block of 89th

Bennett” in Chicago. According to Shaw’s affidavit, an acquaintance recently told

him about some information on Facebook pertaining to petitioner, which caused

him to recall events that occurred on the evening of December 28, 1997. Shaw’s

affidavit averred that, while he was hanging out in the alley behind 8918 South

Bennett Avenue, a dark-colored Ford Contour drove past him and then stopped a

couple of garages further down the alley. When he approached, he recognized the

car’s occupants as “three guys that hung out with [petitioner].” One of the men was

Tucker, whom Shaw knew well, and they shook hands. During a brief conversation

with Tucker, Shaw observed another occupant, who was holding an AK-type

assault rifle, get out of the back seat of the car. That person ran down a gangway

on the other side of the alley toward Constance Avenue and, after a minute or two,

came back empty-handed. He then got into the back seat of the car, and the three

men drove off. Shaw’s affidavit averred that he could say “with absolute certainty

that [petitioner] was not in that Ford Contour with Tucker” on December 28, 1997.

The affidavit further averred that, during the ensuing years, Shaw had not realized

that this information could have been helpful.

¶ 28 The affidavit of Tavares Hunt-Bey, dated April 25, 2014, averred that he was

at a gas station on 87th Street and Exchange Avenue between 10 and 11 a.m. on

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December 29, 1997, when he observed a “red-maroonish color Chevy Corsica pull

into the gas station.” Hunt-Bey approached the car and recognized the driver as a

former fellow gang member whose name was Leonard “Lenny” Tucker. After

displaying a gang sign, Tucker and two other gang members exited the vehicle and

shook hands with Hunt-Bey. According to the affidavit, one of the men went to pay

for the gas, and the other person got back in the car while Tucker stood outside and

conversed with Hunt-Bey. In response to Hunt-Bey’s inquiry as to what the three

men were doing that morning, Tucker stated that he had killed the sister of a rival

gang member the night before under a viaduct on South Chicago Avenue and that

Hunt-Bey should be “on point” because that rival gang might seek revenge. Tucker

also said that he had borrowed the car from a friend “to tie up some loose ends.”

Tucker then removed a gas can from the floor of the front passenger side of the car

and began pumping gas into it while the person who paid for the gas got back into

the passenger seat. After Tucker finished pumping the gas, he exchanged gang signs

with Hunt-Bey and got into the driver’s seat and drove away with his two

companions in the car.

¶ 29 Hunt-Bey’s affidavit further averred that, the following day, he heard the news

that petitioner had confessed to the killing and setting the body on fire. Hunt-Bey

averred that he immediately knew petitioner was “taking the rap for Lenny” but the

“code of silence” imposed by their gang prevented him from contacting the police

because “snitching on a fellow member” was a “death violation.” According to

Hunt-Bey’s affidavit, he recently heard that Tucker had falsely testified against

petitioner and, because Tucker was no longer a gang member, Hunt-Bey felt

obligated to come forward with this information.

¶ 30 In ruling on petitioner’s motion, the circuit court determined that the affidavit

of Johnson was not newly discovered evidence because he would have been aware

of his own whereabouts on the night of the murder and could have presented his

girlfriend’s alibi evidence at trial. The circuit court also determined that, although

the affidavits of Shaw, Hunt-Bey, and Mamon were newly discovered and material

evidence, they did not totally vindicate or exonerate petitioner. The court observed

that, because none of the affiants witnessed the murder of Giles or the burning of

her body, their affidavits were not of such a conclusive character as to probably

change the outcome on retrial. The court also found that Hunt-Bey’s averments as

to Tucker’s confession would be inadmissible hearsay. The circuit court concluded

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that petitioner failed to raise a colorable claim of actual innocence and, therefore,

denied his request for leave to file a successive postconviction petition.

¶ 31 Petitioner challenged the circuit court’s decision, contending that he had alleged

a colorable claim of actual innocence that was supported by the affidavits of Shaw,

Mamon, and Hunt-Bey. 2018 IL App (1st) 153547-U, ¶ 3.

¶ 32 The appellate court held that petitioner’s confession, which was consistent with

the testimony of several State witnesses, overwhelmingly pointed to petitioner as

the person who murdered Giles and burned her body and that the new evidence

would not totally vindicate or exonerate petitioner. Id. ¶¶ 35-47. The court found

that the affidavits of Mamon, Shaw, and Hunt-Bey did little to exonerate petitioner,

noting that none of the affiants saw the murder take place or saw who burned the

body. Id. ¶ 36. The court noted that Shaw only observed someone apparently

disposing of a rifle. Id. ¶ 38. Mamon does not state that he actually saw the murder

and cannot point to any of the three men he saw as the shooter. Id. ¶ 40. The court

reasoned that Tucker’s statement to Hunt-Bey claiming a role in the murder was

rebutted by the evidence at trial, including petitioner’s confession and the testimony

of the State’s witnesses. Id. ¶ 42.

¶ 33 The court determined that the affidavits merely conflicted with the trial

evidence and were not of such a conclusive character as to probably change the

result on retrial. Id. ¶ 47. Given each affidavit’s individual deficiencies and in light

of the strong evidence of petitioner’s guilt presented at trial, the court could not find

that “ ‘no reasonable juror would have convicted him in light of the new

evidence.’ ” Id. (quoting People v. Edwards, 2012 IL 111711, ¶ 31). The court

concluded that petitioner failed to raise a colorable claim of actual innocence based

on the three affidavits. Id. The court affirmed the circuit court’s denial of

petitioner’s leave to file a successive postconviction petition. Id. ¶¶ 48-50.

¶ 34 Petitioner filed a petition for leave to appeal, which we allowed pursuant to

Illinois Supreme Court Rules 315 (eff. Apr. 1, 2018) and 612 (eff. July 1, 2017).

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¶ 35 II. ANALYSIS

¶ 36 Petitioner argues that the lower courts erred in denying him leave to file his

pro se successive postconviction petition because he alleged a colorable claim of

actual innocence. Thus, the sole issue presented is whether petitioner should be

granted leave to file his successive petition.

¶ 37 A. Standard of Review

¶ 38 This court has not previously articulated the standard of review applicable to

the denial of leave to file a successive postconviction petition premised on a claim

of actual innocence. In addressing this question, we are guided by the principles

that comport with the nature of that determination.

¶ 39 Where the issue on review is limited to the sufficiency of the allegations in a

postconviction petition, there is little justification for affording deference to the

circuit court’s decision. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). Given

that no factual findings or credibility determinations are required at the pleading

stage of postconviction proceedings, a reviewing court is as capable as the circuit

court of determining whether a petition and supporting documents contain adequate

allegations. Id. at 388. Because the sufficiency of a postconviction petition is a

purely legal question, de novo review is appropriate. People v. Sanders, 2016 IL

118123, ¶ 31 (holding the circuit court’s dismissal of a postconviction petition is

subject to plenary review); Coleman, 183 Ill. 2d at 389 (same); see also People v.

Chambers, 2016 IL 117911, ¶¶ 78-79 (holding that a ruling on the sufficiency of a

motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), is

reviewed de novo). Therefore, a ruling on a motion requesting leave to file a

successive postconviction petition claiming actual innocence parallels the

determination of whether to dismiss an initial petition based on the legal sufficiency

of the allegations. In addition, the denial of a motion for leave to file a successive

petition alleging cause and prejudice is reviewed de novo (People v. Wrice, 2012

IL 111860, ¶¶ 49-50), as is a similar ruling premised on statutory construction

(People v. Bailey, 2017 IL 121450, ¶¶ 12-13).

¶ 40 In light of these governing principles, this court recognized in Edwards, 2012

IL 111711, ¶ 30, that the assessment of whether, as a matter of law, a colorable

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claim of actual innocence has been asserted suggests the de novo standard of

review. Since Edwards, several appellate panels have applied the de novo standard

in similar cases. See People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 72-75;

People v. Adams, 2013 IL App (1st) 111081, ¶ 30; People v. Green, 2012 IL App

(4th) 101034, ¶ 30. Based on the reasoning set forth above, we now affirmatively

hold that the denial of leave to file a successive postconviction petition alleging

actual innocence is reviewed de novo.

¶ 41 B. The Post-Conviction Hearing Act

¶ 42 The Act provides a statutory remedy to criminal defendants who assert claims

for substantial violations of their constitutional rights at trial. Edwards, 2012 IL

111711, ¶ 21. The Act is not a substitute for an appeal but offers a mechanism for

a criminal defendant to assert a collateral attack on a final judgment. Id. Therefore,

where a petitioner has previously challenged a judgment of conviction on appeal,

the judgment of the reviewing court will serve to bar postconviction review of all

issues actually decided by the reviewing court as well as any other claims that could

have been presented to the reviewing court. Id. As a consequence, only one

postconviction proceeding is contemplated under the Act. Id. ¶ 22. However, the

bar against successive proceedings will be relaxed on two grounds. Id. The first is

where the petitioner can establish cause and prejudice for the failure to assert a

postconviction claim in an earlier proceeding. Id. (citing People v. Pitsonbarger,

205 Ill. 2d 444, 459 (2002)); see also 725 ILCS 5/122-1(f) (West 2014). The second

is where the petitioner asserts a fundamental miscarriage of justice based on actual

innocence. Edwards, 2012 IL 111711, ¶ 23 (citing Pitsonbarger, 205 Ill. 2d at 45,

and People v. Ortiz, 235 Ill. 2d 319 (2009)).

¶ 43 Prior to commencing a successive postconviction petition, a petitioner must

obtain leave of court. Id. ¶ 24 (citing People v. Tidwell, 236 Ill. 2d 150, 157 (2010)).

A request to file a successive petition based on actual innocence is reviewed under

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

only requires that the petition is not frivolous or patently without merit. Id. ¶¶ 25-

29; see also People v. Smith, 2014 IL 115946, ¶ 35 (holding that a higher standard

also applied to a successive petition based on cause and prejudice). If leave to file

is granted, a successive petition is docketed for second-stage proceedings, at which

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the petitioner must make a substantial showing of actual innocence to warrant an

evidentiary hearing. Sanders, 2016 IL 118123, ¶¶ 25-28, 37; Wrice, 2012 IL

111860, ¶ 90. The substantial showing required to avoid dismissal at the second

stage is greater than the standard that must be satisfied to obtain leave to file a

successive petition. See Smith, 2014 IL 115946, ¶ 29 (recognizing that the three-

stage process for postconviction proceedings should not be rendered superfluous);

see also People v. Morrow, 2019 IL App (1st) 161208, ¶ 51; People v. Lee, 2016

IL App (1st) 152425, ¶ 47.

¶ 44 A request for leave to file a successive petition should be denied only where it

is clear from a review of the petition and supporting documentation that, as a matter

of law, the petition cannot set forth a colorable claim of actual innocence. Sanders,

2016 IL 118123, ¶ 24 (citing Edwards, 2012 IL 111711, ¶ 24). Accordingly, leave

of court should be granted where the petitioner’s supporting documentation raises

the probability that it is more likely than not that no reasonable juror would have

convicted the petitioner in light of the new evidence. Id.

¶ 45 At the pleading stage of postconviction proceedings, all well-pleaded

allegations in the petition and supporting affidavits that are not positively rebutted

by the trial record are to be taken as true. Id. ¶¶ 42, 48; Pitsonbarger, 205 Ill. 2d at

455; Coleman, 183 Ill. 2d at 380-81, 385. In deciding the legal sufficiency of a

postconviction petition, the court is precluded from making factual and credibility

determinations. Sanders, 2016 IL 118123, ¶ 42; Coleman, 183 Ill. 2d at 390.

¶ 46 C. Actual Innocence

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

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

character that it would probably change the result on retrial. Edwards, 2012 IL

111711, ¶ 32; see also People v. Coleman, 2013 IL 113307, ¶ 96; People v.

Washington, 171 Ill. 2d 475, 489 (1996). Newly discovered evidence is evidence

that was discovered after trial and that the petitioner could not have discovered

earlier through the exercise of due diligence. Coleman, 2013 IL 113307, ¶ 96.

Evidence is material if it is relevant and probative of the petitioner’s innocence. Id.

Noncumulative evidence adds to the information that the fact finder heard at trial.

Id. (citing People v. Molstad, 101 Ill. 2d 128, 135 (1984)). Lastly, the conclusive

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character element refers to evidence that, when considered along with the trial

evidence, would probably lead to a different result. Id. ¶ 96 (citing Ortiz, 235 Ill.

2d at 336-37). The conclusive character of the new evidence is the most important

element of an actual innocence claim. Washington, 171 Ill. 2d at 489.

¶ 48 Ultimately, the question is whether the evidence supporting the postconviction

petition places the trial evidence in a different light and undermines the court’s

confidence in the judgment of guilt. Coleman, 2013 IL 113307, ¶ 97. The new

evidence need not be entirely dispositive to be likely to alter the result on retrial.

Id. (citing People v. Davis, 2012 IL App (4th) 110305, ¶¶ 62-64). Probability, rather

than certainty, is the key in considering whether the fact finder would reach a

different result after considering the prior evidence along with the new evidence.

Id.

¶ 49 D. Petitioner’s Motion and Supporting Documentation

¶ 50 The question in this case is whether petitioner has set forth a colorable claim of

actual innocence. Accordingly, we consider his motion for leave to file the

successive petition, along with the supporting affidavits, to ascertain whether he

has raised the probability that it is more likely than not that no reasonable juror

would have convicted him in light of the new evidence.

¶ 51 We first address the affidavit of petitioner, which was attached to his motion

for leave to file the successive petition. Petitioner’s affidavit averred that, on the

day of Giles’s murder, he contacted her for her assistance with transporting gang

weapons but she never arrived at his home. Petitioner further averred that, after

spending the evening hours with Fatique Williams, Yasmyn Johnson, and Michelle

McClendon, he spent the night at the apartment of Natasha Veasley-Boone and that

she subsequently told him that she would deny they spent that night together.

¶ 52 In addition, petitioner’s affidavit also averred that he and Tucker were members

of different sects of the same gang and had learned that Giles had received money

from her cousin, who belonged to a rival gang. According to petitioner’s affidavit,

Tucker considered Giles as “bait” in the ongoing war between the rival gangs.

Petitioner’s affidavit explained that he had not come forward with this information

previously because he feared for his safety and because a gang rule precluded him

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from cooperating with the police against a fellow gang member. Lastly, petitioner

averred that his trial attorney and his counsel on direct appeal and initial

postconviction proceeding “were all made privy to this information” and that the

“majority of these details herein was actually in my initial statement while being

questioned by [d]etectives that was not used.”

¶ 53 As set forth above, evidence is newly discovered where it was discovered after

trial and where the petitioner could not have discovered it earlier through the

exercise of due diligence. Id. ¶ 96; People v. Harris, 206 Ill. 2d 293, 301 (2002).

By its own terms, petitioner’s affidavit demonstrates that the information contained

therein was known to him before trial and had been communicated to police

detectives and to his trial counsel. Also, to the extent that the affidavit includes

information that can be construed as alibi evidence, petitioner obviously was aware

of that information prior to trial, and there is no indication that petitioner’s attorney

attempted to subpoena these witnesses to testify at trial, nor is there any explanation

of why subpoenas were not issued. See Edwards, 2012 IL 111711, ¶ 38 (citing

Harris, 206 Ill. 2d at 301). In addition, the prior gang rule against cooperating with

police against a fellow gang member did not inhibit petitioner’s ability to present

this alibi evidence. Moreover, petitioner’s averment that he was no longer bound

by that rule does not implicate Tucker in Giles’s murder or explain that petitioner

incriminated himself in order to take responsibility for crimes committed by a

fellow gang member. For all of these reasons, the content of petitioner’s affidavit

is not newly discovered and will not be considered in support of his claim of actual

innocence.

¶ 54 With regard to the affidavits of Mamon, Shaw, and Hunt-Bey, the appellate

court assumed the validity of the circuit court’s finding that they satisfied the newly

discovered and materiality elements of an actual innocence claim (2018 IL App

(1st) 153547-U, ¶¶ 30, 36), and the State does not challenge that determination

here. Accordingly, we review only the determination of whether the evidence set

forth in the affidavits of these three uninvolved and disinterested parties was of

such a conclusive character as would probably change the outcome on retrial.

¶ 55 We initially observe that the lower courts erred in applying an incorrect

standard when considering the sufficiency of those three affidavits. The circuit and

appellate courts cited People v. Barnslater, 373 Ill. App. 3d 512, 520 (2007), and

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People v. Collier, 387 Ill. App. 3d 630, 636 (2008), respectively, in employing a

standard that requires evidence of total vindication or exoneration to support a

claim of actual innocence. See 2018 IL App (1st) 153547-U, ¶¶ 35, 38. Both

Barnslater and Collier relied on the appellate court’s opinion in People v. Savory

for that proposition. 309 Ill. App. 3d 408, 414-15 (1999) (addressing the statutory

standard applicable to a postjudgment motion for DNA testing). However, in

reviewing Savory, this court specifically rejected the total vindication or

exoneration standard and explained that “evidence which is ‘materially relevant’ to

a defendant’s claim of actual innocence is simply evidence which tends to

significantly advance that claim.” People v. Savory, 197 Ill. 2d 203, 213 (2001).

¶ 56 As previously noted, the new evidence supporting an actual innocence claim

need not be entirely dispositive to be likely to alter the result on retrial. Coleman,

2013 IL 113307, ¶ 97. Rather, the conclusive-character element requires only that

the petitioner present evidence that places the trial evidence in a different light and

undermines the court’s confidence in the judgment of guilt. Id. Contrary to the

approach taken by the lower courts, we apply the standard set forth above. 1

¶ 57 We further note that the appellate court erroneously premised its decision on a

“conflicting evidence” standard. The appellate court held that the evidence in

petitioner’s supporting affidavits does not satisfy the conclusive character element

because it merely conflicts with the evidence presented at trial (2018 IL App (1st)

153547-U, ¶ 47), and the State argues for affirmance on this ground. But this is not

the proper inquiry at the leave-to-file stage of successive postconviction

proceedings. This court has never held that a request for leave to file a successive

petition must be denied if the new evidence conflicts with the trial evidence. And,

indeed, such a requirement would be fundamentally illogical. If the new evidence

of innocence does not contradict the evidence of petitioner’s guilt at trial, the filing

of the successive petition would be pointless, and the purpose of the Act would be

rendered meaningless, which is a result that must be studiously avoided. See 725

ILCS 5/122-1(f) (West 2014) (authorizing the filing of a successive postconviction

petition); see also Coleman, 183 Ill. 2d at 382 (recognizing that, where a petitioner’s

1

Although the State argues in its brief that petitioner’s supporting affidavits do not constitute

“conclusive proof” or “conclusive evidence” of his innocence, the State conceded at oral argument

that this court has never held that total exoneration is a requirement for an actual innocence claim.

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postconviction claims are premised on matters outside the record, the Act does not

contemplate that such claims will be adjudicated on the pleadings).

¶ 58 Although this court has occasionally made reference to the insufficiency of new

evidence that conflicts with trial evidence, we have not done so where the relevant

inquiry involved a request for leave to file a successive petition based on actual

innocence. Rather, those “conflicting evidence” references were made in cases that

decided whether a petition should advance to a third-stage evidentiary hearing (see

Sanders, 2016 IL 118123, ¶¶ 48, 52) or whether a new trial should be granted

following such a hearing (see Coleman, 2013 IL 113307, ¶¶ 105, 114; Ortiz, 235

Ill. 2d at 336-37). The difference between those cases and the procedural posture

of this case is critical because a petitioner who requests leave to file a successive

petition need not satisfy even the substantial showing burden to advance to the third

stage—let alone the evidentiary burden to obtain a new trial after a third-stage

hearing. As explained above, the standard for alleging a colorable claim of actual

innocence falls between the first-stage pleading requirement for an initial petition

and the second-stage requirement of a substantial showing. See Smith, 2014 IL

115946, ¶ 29; see also Morrow, 2019 IL App (1st) 161208, ¶ 51; Lee, 2016 IL App

(1st) 152425, ¶ 47.

¶ 59 In arguing for affirmance, the State places significant reliance on Sanders for

the proposition that new conflicting evidence is insufficient to justify granting leave

to file a successive petition. However, given its significantly different procedural

context, Sanders does not control the result here. 2 In Sanders, we held that the new

evidence presented in that case did not satisfy the substantial showing requirement

to avoid dismissal at second-stage proceedings. Sanders, 2016 IL 118123, ¶ 55.

But, as noted above, that standard is inapplicable here. Moreover, the decision in

Sanders was also premised on the fact that a critical aspect of the new evidence—

an assertion that the victim had been shot only once—was positively rebutted by

autopsy evidence at trial establishing that the victim had been shot twice and died

of multiple gunshot wounds. Id. ¶ 48.

2

We also summarily reject the assertion made by the State at oral argument that our precedent

holding that the allegations in supporting affidavits must be accepted as true applies only to the fact

that, if called as a witness, the affiant would testify consistently with the content of the affidavit.

This court has never held, or even suggested, that the “accept as true” principle is confined to that

limitation.

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¶ 60 In this case, the appellate court apparently believed that the evidence in the

supporting affidavits was positively rebutted simply because it was contradicted by

the evidence presented at trial. That was error because recognizing the existence of

a conflict with the trial evidence is not the same as finding that the new evidence is

positively rebutted. For new evidence to be positively rebutted, it must be clear

from the trial record that no fact finder could ever accept the truth of that evidence,

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

impossible—like the single-gunshot evidence in Sanders. We now clarify that the

inquiry applicable at the leave-to-file stage of successive proceedings does not

focus on whether the new evidence is inconsistent with the evidence presented at

trial. Rather, the well-pleaded allegations in the petition and supporting documents

will be accepted as true unless it is affirmatively demonstrated by the record that a

trier of fact could never accept their veracity. In assessing whether a petitioner has

satisfied the low threshold applicable to a colorable claim of actual innocence, the

court considers only whether the new evidence, if believed and not positively

rebutted by the record, could lead to acquittal on retrial.

¶ 61 With the proper standards and analytical framework in mind, we consider the

sufficiency of the supporting affidavits at issue here. The only disputed question is

whether the allegations in the affidavits of Shaw, Mamon, and Hunt-Bey, which

must be taken as true, are sufficient as a matter of law to establish a colorable claim

of actual innocence. Id. ¶¶ 40, 42. Resolution of that issue requires that we ascertain

whether the supporting affidavits raise the probability that it is more likely than not

that no reasonable juror would have convicted petitioner. Id. ¶ 24; Edwards, 2012

IL 111711, ¶ 24. Credibility findings and determinations as to the reliability of the

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

successive postconviction proceeding. Sanders, 2016 IL 118123, ¶ 42; Coleman,

183 Ill. 2d at 390-91.

¶ 62 The State argues that Mamon’s affidavit is insufficient because it is internally

inconsistent as to the number of people who were with Tucker on the night of the

shooting and because the trial testimony by two eyewitnesses indicates that Mamon

could not have been certain that petitioner’s “face wasn’t one of the faces he saw

that night.”

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¶ 63 We disagree. First, the averments regarding the number of Tucker’s

companions are not necessarily inconsistent. Those allegations reflect that Mamon

first saw Tucker with one man and then later observed him with two men under the

viaduct. The affidavit indicates that some time had elapsed between Mamon’s first

and second observations of Tucker and also that the location of the car had changed.

Considering the affidavit as a whole, it is clear that a third person could have joined

Tucker or could have been simply outside of Mamon’s initial field of vision. The

different references to the number of people present with Tucker is precisely the

type of factual allegation that may be explored at an evidentiary hearing, but they

are not an adequate reason to entirely reject the affidavit at the pleading stage of the

proceedings.

¶ 64 Next, we find the State’s argument that Mamon could not be certain that

petitioner was not under the viaduct at the time of the shooting to be without merit.

According to the State, Mamon could not have seen that petitioner was not present

because other occurrence witnesses testified that they could not discern the features

of the men underneath the viaduct.

¶ 65 As set forth above, Mamon averred that, in December 1997, just days after

Christmas, he witnessed someone get shot and shoved into a car. While standing at

a bus stop, immediately after the occurrence of a bright flash and a gunshot, Mamon

saw Tucker shove an AK-type weapon into the back seat of the car. Tucker and two

men then got in the car and disappeared through the viaduct. Mamon’s affidavit

includes an unqualified averment that petitioner’s face was not one of the faces that

he saw that night. The State offers nothing in support of its assertion that Mamon

could not have seen the faces of the men under the viaduct. The State fails to discuss

or explain the different vantage points of the other occurrence witnesses, their

positioning or distance involved with regard to the viaduct, and the lighting

conditions or any obstructions that may have also been present. Mamon’s affidavit

places Tucker, not petitioner, at the scene of Giles’s murder with an AK-type

assault rifle in his hand. Although these allegations conflict with the record, they

are not positively rebutted.

¶ 66 The State also challenges the sufficiency of Shaw’s affidavit, claiming that it

only concerned the concealment of evidence, in which Tucker was already

implicated. The State maintains that Shaw’s observation of someone disposing of

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a rifle would not exonerate petitioner. Further, the State argues that this evidence

would only serve to impeach Tucker, as the trial evidence already showed that he

was involved in hiding Giles’s pager and ammunition.

¶ 67 In his affidavit, Shaw averred that he saw Tucker on December 28, 1997,

driving a dark-colored Ford Contour in the alley behind the address of 8918 South

Bennett Avenue, with two of petitioner’s acquaintances. While Shaw conversed

with Tucker, one of the passengers got out of the car with an AK-type assault rifle,

ran down a gangway on the other side of the alley, and returned without the rifle

after one or two minutes. Shaw further averred that petitioner was not in the car.

¶ 68 Accepting these allegations as true, Shaw’s affidavit places Tucker in the same

type of car that Giles drove, on the night of her murder with the possible murder

weapon in the area where the gun was found. The police recovered the AK-type

assault rifle they believed to have been used in the murder in the alley of 8900 South

Bennett Avenue. Further, Shaw averred that petitioner was not in the car with

Tucker, which corroborates Mamon’s affidavit that petitioner was not in the car

with Tucker under the viaduct. More importantly, the affidavit directly contradicts

trial testimony by placing Tucker, and not petitioner, in Giles’s car on the evening

of the murder.

¶ 69 Finally, we reject the State’s argument with regard to the impeachment of

Tucker. The purpose of impeaching evidence is to attack the credibility of a witness

and not to establish the truth of the impeaching evidence. People v. Bradford, 106

Ill. 2d 492, 499 (1985). Credibility determinations are not relevant at the motion for

leave to file stage of successive postconviction proceedings. Coleman, 183 Ill. 2d

at 385 (1998).

¶ 70 The State similarly challenges Hunt-Bey’s affidavit as insufficient to provide

conclusive evidence of petitioner’s innocence. The State maintains that Hunt-Bey’s

affidavit is rebutted by Muhammad’s trial testimony and by petitioner’s

incriminating statement. The State also posits that Hunt-Bey’s affidavit is

consistent with petitioner’s guilt under an accountability theory. Lastly, the State

contends that this affidavit contains inadmissible hearsay.

¶ 71 The State concedes that Hunt-Bey’s averment, that he saw Tucker with two

others in a red-maroonish Chevy Corsica at a gas station filling a gas can, is

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consistent with trial testimony that the men who burned Giles’s body were in such

a car. The State maintains, however, that the fact that Hunt-Bey saw Tucker, and

not petitioner, in the car was rebutted by Muhammad’s testimony that she drove

petitioner and Ganaway. The State also maintains that Hunt-Bey’s affidavit was

further rebutted by petitioner’s statement that he and Ganaway were in the car with

Muhammad during the trip to the gas station before they lit the garbage can on fire.

¶ 72 Hunt-Bey avers that, between 10 and 11 a.m. on December 29, 1997, he

encountered Tucker and two other men in a red Corsica at a gas station. According

to Hunt-Bey’s affidavit, Tucker confessed to murdering a woman the night before

under a viaduct on South Chicago Avenue. Tucker also said that he had to “tie up

some loose ends” prior to filling a gas can and leaving the station. The next day

Hunt-Bey heard that petitioner had confessed to the murder and the burning of the

body. Hunt-Bey stated that he, Tucker, and petitioner were in the same gang and

that, because of its “code of silence,” he knew petitioner was “taking the rap” for

Tucker and he could not come forward with this information sooner.

¶ 73 We observe that Hunt-Bey’s affidavit is consistent with the trial record

regarding the location and timing of the murder. It is also consistent with the timing

of the burning of Giles’s body and the type of car the men used. Thus, this affidavit

substantiates, with detailed circumstantial evidence, the occurrences of Giles’s

murder and the burning of her body. Further, Tucker’s confession is an admission

of guilt by the culpable party and, therefore, identifies a different offender. See

Ortiz, 235 Ill. 2d at 337 (recognizing that the identification of a different offender

provides evidence that the facts and surrounding circumstances should be

scrutinized more closely to determine the petitioner’s guilt or innocence); see also

Molstad, 101 Ill. 2d at 136. The fact that the affidavit conflicts with, but is not

positively rebutted by, the State’s witnesses on the identification of the person who

killed Giles is insufficient to reject it. Instead, it is a reason to allow petitioner to

proceed, with counsel, on his colorable claim of actual innocence.

¶ 74 The State also posits that the averment of Tucker’s confession in Hunt-Bey’s

affidavit does not preclude petitioner’s guilt. According to the State, Tucker’s

confession does not unequivocally assert that he personally shot Giles and could be

construed as an admission that he was involved in her murder with accomplices,

including petitioner. The State also contends that petitioner’s admission that he

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planned the murder would make him accountable even if an accomplice had pulled

the trigger. In support, the State relies on our decision in Edwards, which held that

a codefendant’s affidavit stating that he was the principal offender was not

conclusive proof of innocence because petitioner could still have been accountable.

Edwards, 2012 IL 111711, ¶ 39.

¶ 75 This argument is entirely without merit. In Edwards, this court observed that

the newly discovered evidence did little to exonerate the petitioner, who was

convicted of the murder under the theory of accountability. Id. Here, the State never

introduced an accountability theory into the case. Petitioner was not charged or

indicted under such a theory, and accountability was not argued at trial.

¶ 76 We observe that Hunt-Bey’s affidavit is not only consistent with other evidence

in the record regarding the circumstances of Giles’s shooting and the burning of her

body, but it also presents new evidence of significant details that are missing from

the record. Further, the affidavit provides evidence that a different party is guilty,

which is of such a conclusive character as to lead to a different result on retrial. See

People v. White, 2014 IL App (1st) 130007, ¶ 29.

¶ 77 In considering the sufficiency of Hunt-Bey’s affidavit, we also address the

parties’ arguments as to the admissibility of his averment that Tucker confessed to

the murder. Petitioner argues that this averment must be considered in ascertaining

whether he has alleged a colorable claim of actual innocence. The State opposes

petitioner’s argument based on its assertion that Tucker’s confession would be

inadmissible hearsay at a new trial.

¶ 78 The parties acknowledge that Illinois Rule of Evidence 1101(b)(3) (eff. Sept.

17, 2019) specifically provides that the rules of evidence do not apply to

postconviction hearings. The State maintains, however, that the averment of

Tucker’s confession does not enhance the validity of petitioner’s actual innocence

claim. In the State’s view, because Tucker’s confession would be inadmissible

hearsay on retrial, it cannot be considered in assessing the conclusive character of

petitioner’s newly discovered evidence. In support of this argument, the State relies

on People v. Wallace, 2015 IL App (3d) 130489, ¶ 29, for the proposition that

inadmissible hearsay “is insufficient as a matter of law to support a claim of actual

innocence.” The State’s reliance is misplaced because Wallace cited People v.

Coleman, 2012 IL App (4th) 110463, ¶ 55, as authority for that proposition.

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Coleman, however, was decided before Rule 1101 was amended to include

postconviction hearings among the list of proceedings to which the rules of

evidence do not apply. Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013). Thus, cases

decided prior to the amendment of Rule 1101 do not govern a postconviction

court’s consideration of hearsay evidence. See People v. Velasco, 2018 IL App (1st)

161683, ¶¶ 119, 123 (taking as true, pursuant to Rule 1101(b)(3), hearsay allegation

that another gang member bragged to affiant about committing the murder and

advancing actual innocence petition to third stage); Warren, 2016 IL App (1st)

090884-C, ¶¶ 166-67; (Gordon, J., specially concurring) (finding that admissibility

is not the standard even at third-stage postconviction hearings and indicating that

this should apply more strongly at earlier stages where the imprisoned defendant

lacks ready access to counsel).

¶ 79 The State also relies on People v. Shaw, 2019 IL App (1st) 152994, ¶ 67, which

posited that, because the evidence supporting an actual innocence claim must be of

such a conclusive character that it would probably change the result on retrial, the

court’s assessment of that evidence “necessarily encompasses a determination of

whether that evidence would be admissible at a retrial.” However, the Shaw court

proceeded to consider the hearsay affidavit supporting the petitioner’s claim

because the amendment of Rule 1101 made the evidence rules inapplicable to

postconviction proceedings. Id.

¶ 80 In accordance with the dictates of Rule 1101(b)(3), Tucker’s confession, as set

forth in Hunt-Bey’s affidavit, must be considered in evaluating petitioner’s actual

innocence claim, and we hold that such evidence is of such a conclusive character

as to probably change the outcome at a retrial. See White, 2014 IL App (1st)

130007, ¶¶ 26-29 (finding that a new affidavit identifying someone else as the

murderer was sufficient to advance the successive petition to the second stage even

where the affidavit conflicted with trial evidence of multiple witnesses identifying

the defendant, noting that the affidavit would require credibility determinations that

the court could not make); People v. Adams, 2013 IL App (1st) 110081, ¶ 36

(finding that, where the statement of a witness is both exonerating and contradicts

a State witness, it can be capable of producing a different outcome at retrial).

¶ 81 We note that the parties have also presented opposing arguments as to whether

Tucker’s confession is reliable and trustworthy and would be admissible at a new

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trial. Those arguments are premised on Chambers v. Mississippi, 410 U.S. 284,

300-01 (1973), in which the United States Supreme Court articulated four factors

that are relevant in determining whether there are sufficient indicia of

trustworthiness to admit an extrajudicial confession. However, given the procedural

posture of this case, the parties’ reliability arguments are premature. See Sanders,

2016 IL 118123, ¶¶ 33, 42 (holding that credibility determinations are made at a

third-stage evidentiary hearing); Coleman, 183 Ill. 2d at 385 (same); Warren, 2016

IL App (1st) 090884-C, ¶¶ 96-97, 164; (holding that a determination as to the

trustworthiness of statements is an issue that should be considered first by the trial

court). The final determination as to the admissibility of Tucker’s extrajudicial

confession cannot, and should not, be made until after petitioner has overcome the

hurdles of second- and third-stage proceedings. Accordingly, questions regarding

the admissibility and reliability of such evidence are not relevant considerations at

the motion for leave to file stage of a successive postconviction proceeding.

¶ 82 Here, no physical or forensic evidence linked petitioner to the crimes, and no

eyewitness identified him as being involved or even present at the time of the

relevant events. The only trial evidence directly linking petitioner to the crimes was

his own inculpatory statement and the testimony of Tucker, Muhammad, and

McClendon, the State witnesses to whom petitioner allegedly confessed. We note,

however, that both Tucker and Muhammad themselves were implicated in the

offenses, where Tucker admittedly possessed physical evidence consisting of

Giles’s pager and the box of ammunition and Muhammad testified that she drove

petitioner and Ganaway to a gas station on the day Giles’s body was burned. Also,

McClendon admitted that she did not contact the police despite allegedly learning

of petitioner’s involvement in the crimes.

¶ 83 Although this testimony and petitioner’s lengthy, detailed statement provide

evidence of his guilt, that trial evidence is directly contradicted by the affidavits of

Mamon, Shaw, and Hunt-Bey, who were not involved in the crimes. Without

engaging in any credibility determinations, there is no way for this court—or any

court—to assess the reliability of those affidavits or the veracity of their assertions.

Taking as true the allegations in the supporting affidavits, as we must at the

pleading stage, we conclude that a fact finder could determine that the new evidence

exculpates petitioner from any involvement in the crimes and refutes the State’s

evidence at trial. Accordingly, we find that petitioner’s motion and supporting

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documentation contain evidence of such a conclusive character that, when

considered along with the trial evidence, would probably lead to a different result.

See Coleman, 2013 IL 113307, ¶ 96. In light of our conclusion, we hold that the

lower courts erred in denying him leave to file his successive postconviction

petition. Based on the foregoing, we need not address petitioner’s other contentions

of error by the appellate court.

¶ 84 III. CONCLUSION

¶ 85 In sum, the only issue presented in this case is whether petitioner may file his

successive postconviction petition that alleges he is actually innocent of the crimes

for which he has been convicted and sentenced. The new evidence supporting the

petition need not be completely dispositive of petitioner’s innocence. Rather, it

need only be of such a conclusive character as to probably change the result upon

retrial. Granting leave to file means that the petition advances to second-stage

proceedings, at which counsel will be appointed and the State can either move for

dismissal or file an answer. Because petitioner has satisfied the pleading

requirements for granting leave to file a successive postconviction petition, his

claim of actual innocence must be advanced to second-stage proceedings.

Accordingly, we reverse the judgments of the appellate and circuit courts and

remand the cause to the circuit court for further proceedings.

¶ 86 Judgments reversed.

¶ 87 Cause remanded.

¶ 88 JUSTICE MICHAEL J. BURKE, dissenting:

¶ 89 Reading the majority opinion, one would think that it is still an open question

what standard applies at the leave-to-file stage of postconviction proceedings when

a petitioner raises a freestanding claim of actual innocence. That is incorrect. In

People v. Edwards, this court explained that “leave of court should be granted when

the petitioner’s supporting documentation raises the probability that ‘it is more

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

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new evidence.’ ” People v. Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup v. Delo,

513 U.S. 298, 327 (1995)). This standard has been faithfully applied by Illinois

courts ever since. Today, a majority of this court holds that the correct standard is

something else entirely. According to the majority, the correct standard is “whether

the new evidence, if believed and not positively rebutted by the record, could lead

to acquittal on retrial.” Supra ¶ 60. This standard has no foundation in this court’s

case law. The appellate court correctly applied the Edwards standard and correctly

determined that petitioner failed to satisfy it. I therefore cannot join the majority

opinion.

¶ 90 Edwards

¶ 91 In Edwards, the petitioner was found guilty of first degree murder on an

accountability theory. Edwards, 2012 IL 111711, ¶ 3. His conviction was largely

based on his own statement placing him at the scene of the crime. Id. ¶ 7. After the

petitioner’s direct appeal and initial postconviction proceedings were unsuccessful,

the petitioner sought leave to file a successive postconviction petition. Id. ¶ 9. The

circuit court denied leave to file, finding that the petitioner could not establish cause

and prejudice. Id. The appellate court affirmed. Id.

¶ 92 The petitioner then sought leave to file his third postconviction petition. The

petition alleged actual innocence and was supported with two affidavits. Id. ¶ 10.

The circuit court once again denied leave to file. Id. ¶ 11. The petitioner then sought

leave to file his fourth postconviction petition, once again alleging actual innocence

based on newly discovered evidence and once again supported by two affidavits.

Id. ¶ 12. The circuit court denied leave to file the fourth postconviction petition. Id.

¶ 14. The appeals of the denials of his third and fourth petitions were consolidated.

Id. ¶ 15. The appellate court affirmed the circuit court’s denial of leave to file the

petitions, finding that the petitioner had failed to state a claim of actual innocence.

Id. ¶¶ 15-16. Justice Gordon dissented, arguing that the appellate court had applied

the wrong standard. According to Justice Gordon, a “low threshold” applied at the

leave-to-file stage of successive postconviction proceedings, and leave to file

should be denied only if the petition had no arguable basis in law or fact. Id. ¶ 17.

This court allowed the petitioner’s petition for leave to appeal. Id. ¶ 18.

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¶ 93 This court began its analysis by explaining that the parties’ dispute centered on

“the standard a petitioner claiming actual innocence must meet in seeking leave of

court to initiate a successive postconviction proceeding under the Act.” Id. ¶ 20.

This court then explained that the standard is as follows:

“With respect to those seeking to relax the bar against successive postconviction

petitions on the basis of actual innocence, we hold today that leave of court

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

and the documentation provided by the petitioner that, as a matter of law, the

petitioner cannot set forth a colorable claim of actual innocence. See People v.

Smith, 341 Ill. App. 3d 530, 536 (2003) (citing Sawyer, 505 U.S. at 339 (actual

innocence defined in context of federal habeas petitions as colorable claim of

factual innocence)); Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)

(habeas petitioner must initially come forward with new reliable evidence to

support ‘colorable claim of actual innocence’ under fundamental-miscarriage-

of-justice exception). Stated differently, leave of court should be granted when

the petitioner’s supporting documentation 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’ (Schlup v. Delo, 513 U.S. 298, 327 (1995) (characterizing

threshold standard as one of probability)).” Id. ¶ 24.

¶ 94 This court next gave several reasons why it was rejecting the position of the

petitioner and the appellate court dissent that the low threshold applicable to the

first stage of initial postconviction petitions should be applied to the leave-to-file

stage of successive postconviction proceedings. First, the “leave of court” language

in section 122-1(f) of the Act would be rendered superfluous if this court applied

the “frivolous or patently without merit” standard to a successive petition. Id. ¶¶ 25-

26.

¶ 95 Second, section 122-1(f) makes no mention of a frivolous or patently without

merit standard. Id. ¶ 27. Third, the legislative history of section 122-1(f) confirmed

that (1) the Act contemplates only one postconviction petition being filed without

leave of court and (2) the legislature intended to make Illinois law consistent with

federal law in this manner. This court explained that the legislative history

supported a conclusion that a “ ‘colorable claim of actual innocence’ ” standard

should apply and that this would be consistent with the standard federal courts use

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when applying the fundamental-miscarriage-of-justice exception. Id. ¶ 28. Finally,

this court explained that it is well settled that successive postconviction petitions

are disfavored and that applying a first stage standard to a successive petition would

be inconsistent with this principle. Id. ¶ 29.

¶ 96 The court then considered the supporting documentation that the petitioner

provided and determined that the petitioner had failed to establish that it was more

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

new evidence. Id. ¶¶ 31-40. The court explained that affidavits that the petitioner

provided from alibi witnesses were not newly discovered. Id. ¶¶ 34-37. That left

only the affidavit of a witness who said that the petitioner “ ‘had nothing to do with

this shooting’ ” and that the petitioner was neither “ ‘a part [of nor] took part in this

crime.’ ” Id. ¶ 39. This court agreed with the appellate court that this evidence did

“ ‘little to exonerate’ ” the petitioner because he was convicted on an accountability

theory. Id. Thus, the court held that the petitioner had failed to show that, in light

of the new evidence, it was more likely than not that no reasonable juror would

have convicted him. Id. ¶ 40. In other words, the petitioner’s evidence was not “ ‘of

such conclusive character that it would probably change the result on retrial.’ ” Id.

(quoting People v. Morgan, 212 Ill. 2d 148, 154 (2004)).

¶ 97 Thus, the very question facing the Edwards court was what standard applies at

the leave-to-file stage of successive postconviction proceedings when a petitioner

brings a freestanding claim of actual innocence. This court thoroughly analyzed

that question, adopted a standard, explained where that standard came from, and set

forth several reasons why a lower standard did not apply. This is not an open

question.

¶ 98 The Appellate Court’s Analysis

¶ 99 Contrary to what the majority claims, the appellate court did not apply an

improper standard. The appellate court properly applied Edwards and determined

that petitioner had failed to make the required showing. 2018 IL App (1st) 153547-

U, ¶¶ 36-47. The majority mischaracterizes the appellate court’s analysis in two

important ways. First, the majority claims that:

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“The appellate court held that petitioner’s confession, which was consistent

with the testimony of several State witnesses, overwhelmingly pointed to

petitioner as the person who murdered Giles and burned her body and that the

new evidence would not totally vindicate or exonerate petitioner.” (Emphasis

added.) Supra ¶ 32 (citing 2018 IL App (1st) 153547-U, ¶¶ 35-47).

Here is what the appellate court actually said in paragraph 47 of its opinion:

“Muhammad, McClendon, and Tucker all testified to defendant’s

involvement in Giles’s murder and corroborated defendant’s own court-

reported confession. This evidence overwhelmingly pointed to defendant as the

person who murdered Giles and burned her body. Accordingly, the affidavits

of Shaw, Mamon, and Hunt-Bey are not of such a conclusive character that they

would probably change the result on retrial, as they merely conflict with

defendant’s confession and other testimony presented at trial. See People v.

Mabrey, 2016 IL App (1st) 141359, ¶ 30. Given each affidavit’s individual

deficiencies and in light of the strong evidence of defendant’s guilt presented at

trial, we cannot find that ‘no reasonable juror would have convicted him in light

of the new evidence[.]’ Edwards, 2012 IL 111711, ¶ 31. Defendant therefore

has failed to present a colorable claim of actual innocence based on these

affidavits.” 2018 IL App (1st) 153547-U, ¶ 47.

¶ 100 In other words, the appellate court correctly applied the Edwards standard and

determined that petitioner failed to meet it. Rather than simply citing this paragraph,

the majority cites paragraphs 35 to 47. Supra ¶ 32. By using this 12-paragraph

citation, the majority brings in paragraph 35 of the opinion, where the appellate

court was citing boilerplate legal principles applicable to actual innocence claims

and said that the “ ‘hallmark of “actual innocence” means “total vindication,” or

“exoneration.” ’ ” 2018 IL App (1st) 153547-U, ¶ 35 (quoting People v. Collier,

387 Ill. App. 3d 630, 636 (2008), citing People v. Savory, 309 Ill. App. 3d 408,

414-15 (1999)). The majority later explains that a petitioner is not required to

demonstrate total vindication or exoneration. Supra ¶ 55. Nevertheless, as clearly

demonstrated above, when it came time to apply the law to the facts, the appellate

court held that petitioner had failed to meet the Edwards standard and therefore had

failed to present a colorable claim of actual innocence. 2018 IL App (1st) 153547-

U, ¶ 47.

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¶ 101 In further attempting to demonstrate that the appellate court applied an incorrect

standard, the majority states that, “The court found that the affidavits of Mamon,

Shaw, and Hunt-Bey did little to exonerate petitioner, noting that none of the

affiants saw the murder take place or saw who burned the body.” Supra ¶ 32 (citing

2018 IL App (1st) 153547-U, ¶ 36). Here is what paragraph 36 of the appellate

court opinion actually says:

“Here, even assuming that the attached affidavits of Shaw, Mamon, and

Hunt-Bey are newly discovered and material and noncumulative, they are not

of such a character as to probably change the result on retrial. As our supreme

court noted in People v. Edwards, 2012 IL 111711, to set forth a colorable claim

of actual innocence, a defendant’s ‘request for leave of court and his supporting

documentation [must] raise the probability that it is more likely than not that no

reasonable juror would have convicted him in the light of the new evidence[.]’

Edwards, 2012 IL 111711, ¶ 31. Defendant’s evidence cannot meet this

burden.” 2018 IL App (1st) 153547-U, ¶ 36.

Once again, the majority claims that the appellate court is applying an exoneration

standard when it is in fact applying the Edwards standard.

¶ 102 The appellate court’s only use of the word “exonerate” in its application of the

law to the facts was when it stated that Shaw’s affidavit did not exonerate petitioner

but merely provided circumstantial evidence to challenge the sufficiency of the

evidence supporting petitioner’s conviction. Id. ¶ 38. But this court also used

“exonerate” in this same fashion in Edwards when it stated that it agreed with the

appellate court that one of the petitioner’s affidavits did “ ‘little to exonerate

defendant.’ ” Edwards, 2012 IL 111711, ¶ 39. It is difficult to see why the appellate

court’s isolated use of the very same word this court used in Edwards amounts to

reversible error.

¶ 103 The majority’s second major mischaracterization of the appellate court opinion

is when the majority claims that the appellate court applied an improper

“conflicting evidence” standard. This misreading of the appellate court opinion is

significant, as the majority later uses it as justification to replace the Edwards

standard with a new one. The majority initially states—correctly—that the

appellate court held that the petitioner could not meet the conclusive-character

element because his evidence merely conflicted with the evidence presented at trial.

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Supra ¶ 57. However, the majority thereafter ignores the appellate court’s use of

the word “merely” and criticizes the appellate court for holding that a petitioner’s

evidence can be rejected on the basis that it conflicts with the trial evidence. Supra

¶ 57. The majority states that this court has “never held that a request for leave to

file a successive petition must be denied if the new evidence conflicts with the trial

evidence.” Supra ¶ 57. The majority then claims that the appellate court was taking

a “fundamentally illogical” position because rejecting new evidence of innocence

on the basis that it conflicts with trial evidence would make the filing of successive

petitions pointless and render the purpose of the Act meaningless. Supra ¶ 57.

¶ 104 With all due respect to my colleagues in the majority, this is simply not what

the appellate court was saying. By ignoring the appellate court’s use of the word

“merely,” the majority makes it sound like the appellate court was saying something

absurd when in fact the appellate court was saying something quite reasonable. The

appellate court did not hold that petitioner failed to meet his burden because his

evidence conflicted with the trial evidence. Rather, the court held that petitioner

failed to meet his burden because his evidence merely conflicted with the trial

evidence. The appellate court stated that, “the affidavits of Shaw, Mamon, and

Hunt-Bey are not of such a conclusive character that they would probably change

the result on retrial, as they merely conflict with defendant’s confession and other

testimony presented at trial.” 2018 IL App (1st) 153547-U, ¶ 47. The appellate

court did not find petitioner’s new evidence insufficient because it conflicted with

the trial evidence. Rather, it found it insufficient because that is all it did. In other

words, petitioner’s new evidence conflicted with the trial evidence but fell short of

being conclusive. Obviously, all evidence of actual innocence will necessarily

conflict with evidence that established a petitioner’s guilt beyond a reasonable

doubt. That is the whole point of such evidence. But it must do more than merely

conflict; it must be conclusive. The conclusiveness of the new evidence is the most

important element of an actual innocence claim. People v. Washington, 171 Ill. 2d

475, 489 (1996). Here, the appellate court held that petitioner’s evidence merely

conflicted with the trial evidence but was not conclusive as to his innocence.

¶ 105 There is nothing at all unreasonable or incorrect about what the appellate court

held. Indeed, this court has found newly discovered evidence insufficient on this

same basis. As the majority concedes, this court held in People v. Sanders, 2016 IL

118123, that a petitioner’s newly discovered evidence was insufficient when it

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merely conflicted with the trial evidence but was not conclusive. Here is this court

in Sanders explaining why it found the petitioner’s new evidence insufficient:

“This leaves the testimony of petitioner denying all involvement and that of his

girlfriend, Felicia Hollivay, who provided an alibi for petitioner starting at

midnight on the night of the murder. Thus, Bingham’s recantation is contrary

not only to his own testimony at petitioner’s trial, but also to the testimony of

Ramseur and Barfield, 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.

The same must be said of the factual statements in DeRamus’s affidavit.

Her statements merely contradict the testimony of other occurrence witnesses.

Further, we note that DeRamus’s statement that Bingham “marched” Cooks out

the back door of Barfield’s house 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. Like Bingham’s recantation, DeRamus’s

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.” (Emphases added.) Id. ¶¶ 52-53.

¶ 106 The majority tries to distinguish Sanders by arguing that it was decided in a

“significantly different procedural context” because it was decided at the second

stage rather than at the leave-to-file stage. Supra ¶ 59. But this is a distinction

without a difference, as both the leave-to-file stage and the second stage are stages

in which all well-pleaded factual allegations are taken as true. 3 In Sanders, this

3

The appellate court reached the same conclusion in People v. Brown, where it noted:

“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

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court, while acknowledging that it had to take all well-pleaded facts as true

(Sanders, 2016 IL 118123, ¶¶ 31, 33), still rejected the petitioner’s evidence on the

basis that all it did was add conflicting evidence to what the jury already heard (id.

¶¶ 52-53). Similarly, the appellate court here, although it was required to take the

affidavits as true, could still properly find that petitioner failed to meet his burden

when his new evidence merely added conflicting evidence to what the jury heard

but was not conclusive as to his innocence. The difference between the leave-to-

file stage and the second stage is that the petitioner must at the leave-to-file stage

raise the probability that it is more likely than not that no reasonable juror would

have convicted him in light of the new evidence (Edwards, 2012 IL 111711, ¶ 33),

while at the second stage the petitioner’s burden raises from a “probability” to a

“substantial showing” (Sanders, 2016 IL 118123, ¶ 37). If the majority believes

that the difference in the first- and second-stage burdens is relevant to whether a

court may find new evidence insufficient on the basis that it merely conflicts with

trial evidence, then it is incumbent on the majority to explain why. It is not

sufficient to simply state that the two are “significantly different procedural

contexts.”

¶ 107 The majority also distinguishes Sanders on the basis that a critical aspect of the

new evidence in that case was positively rebutted by autopsy evidence. Supra ¶ 59.

But, as the above block quote from Sanders demonstrates, other evidence was

found to be insufficient because it merely conflicted with the testimony of other

occurrence witnesses and was not conclusive. The majority simply ignores this

aspect of Sanders.

¶ 108 The appellate court recently interpreted Sanders to mean that leave to file may

be properly denied when a petitioner’s new evidence merely adds conflicting

evidence to what the jury heard but falls short of being conclusive. See People v.

Simms, 2020 IL App (1st) 161067. In that case, the court upheld the trial court’s

denial of leave to file a successive postconviction petition alleging actual

innocence. In discussing Sanders, the appellate court noted:

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.” (Emphases added.) People v. Brown, 2017

IL App (1st) 150132, ¶ 61 n.2, vacated on other grounds and appeal dismissed, No. 123252

(Ill. Jan. 24, 2019).

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“In Sanders, the codefendant stated he was alone when he committed the

offense and that his prior testimony identifying the petitioner as participating in

the crime was not true. Id. ¶ 16. A witness who provided an affidavit in support

of the successive postconviction petition averred that the codefendant acted

alone at all times when she was observing the commission of part of the offense

(aggravated kidnapping). Id. ¶ 15. If all that were required was to take the

recantation and averment as true and would be believed by a reasonable juror

and ask if the defendant could still be convicted, then the result of the

petitioner’s trial in Sanders would have to have been different: based on that

“true” evidence Sanders did not commit aggravated kidnapping and did not

participate in the murder. The only explanation for our supreme court’s holding

is that more is required of courts considering claims of actual innocence.” Id.

¶ 42.

The court followed Sanders and held that the trial court correctly denied leave to

file the successive postconviction petition because the petitioner’s newly

discovered evidence was not conclusive as to his innocence but merely added

conflicting evidence to the evidence heard at trial, including the petitioner’s

multiple confessions. Id. ¶¶ 43-47.

¶ 109 Presiding Justice Ellis dissented, arguing that his primary disagreement with the

majority was over what it meant to take an affidavit as true. Id. ¶ 53 (Ellis, P.J.,

dissenting). The dissent argued that the majority merely assumed that the affiant

would testify consistently with the affidavit at a new trial. Id. ¶ 54. By contrast, the

dissent argued that a court must assume that a reasonable juror would believe the

testimony at a new trial and that the proper inquiry is whether “it is more likely than

not that no reasonable juror, hearing and believing this evidence, alongside all the

other evidence presented at trial, could convict defendant.” (Emphasis omitted.) Id.

¶ 57. Applying this standard, the dissent concluded that the petitioner had presented

fully exonerating evidence. Id. ¶¶ 72-73.

¶ 110 The Simms dissent’s position simply cannot be reconciled with Sanders. If this

court in Sanders had assumed that a reasonable juror would believe the petitioner’s

newly discovered evidence, then this court would have had no choice but to reverse

the lower courts and remand for an evidentiary hearing. If a reasonable juror

believed the petitioner’s new evidence, then that juror would have no choice but to

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acquit the petitioner at a new trial. That is not what this court held. The majority

claims that this court has “never held, or even suggested,” that the taken-as-true

requirement means that an “affiant would testify consistently with the content of

the affidavit.” Supra ¶ 59 n.2. However, in People v. Coleman, 183 Ill. 2d 366

(1998), this court set forth what it meant to take an affidavit as true in the context

of a postconviction petition alleging ineffective assistance of counsel at the

aggravation/mitigation phase of a capital sentencing hearing. This court stated:

“We, therefore, will examine defendant’s assertions on their merits. In so doing,

we will assume the truth of all defendant’s well-pleaded allegations in

conformity with the procedural posture of this case. In other words, we will

presume that had defense counsel called these witnesses, they would have

testified in a manner consistent with their affidavits and that the proffered

evidence would have been considered by the sentencing judge as required under

our death penalty statute.” (Emphases added.) Id. at 403.

While the above statement was made in a slightly different context, the sense in

which it used “taken as true” must have been the sense in which this court was

applying the “taken as true” requirement in Sanders. If this court were assuming

that a reasonable juror would believe the new evidence, this court would have had

no choice but to reverse. Merely assuming that the affiant would testify consistently

with the affidavit is consistent with Edwards, which requires a court to make a

probabilistic determination about what a reasonable juror would do at a trial that

included the new evidence. See Edwards, 2012 IL 111711, ¶ 24; People v.

Coleman, 2013 IL 113307, ¶ 96 (“conclusive means the evidence, when considered

along with the trial evidence, would probably lead to a different result”).

¶ 111 Moreover, if the position of the Simms dissent is correct, then a petitioner

seeking leave to file a successive postconviction petition based on actual innocence

would have an extremely low burden. Indeed, an evidentiary hearing would be

available to any defendant who could find someone to file an affidavit telling a

story inconsistent with the trial evidence. Assume a case in which 20 eyewitnesses

who knew the defendant personally testified that they saw him commit a murder.

Years later, if the defendant could find someone in prison to sign an affidavit saying

that he saw the defendant in a different city at the time of the murder, that defendant

would automatically be granted leave to file, pass stage two, and be entitled to an

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evidentiary hearing. Any such outcome would be completely contradictory to the

leave-to-file standard adopted in Edwards.

¶ 112 In sum, the appellate court applied the correct standard—Edwards—and

concluded that leave to file was properly denied. The court explained that:

“Given each affidavit’s individual deficiencies and in light of the strong

evidence of defendant’s guilt presented at trial, we cannot find that ‘no

reasonable juror would have convicted him in light of the new evidence[.]’

Edwards, 2012 IL 11711, ¶ 31. Defendant therefore has failed to present a

colorable claim of actual innocence based on these affidavits.” 2018 IL App

(1st) 153547-U, ¶ 47.

The appellate court’s isolated use of the word “exonerate” in the same manner that

this court used that term in Edwards does not mean that the appellate court applied

an improper standard. Moreover, the appellate court did not apply an improper

“conflicting evidence” standard but rather rejected petitioner’s evidence on the

basis that it merely conflicted with the trial evidence but fell short of being

conclusive.

¶ 113 The Majority’s New Standard

¶ 114 Notwithstanding that the applicable standard at the leave-to-file stage of

postconviction proceedings when the petitioner raises a freestanding claim of actual

innocence was the precise issue considered and resolved in Edwards, the majority

holds that the correct standard is something else entirely. The majority, relying on

its mischaracterization of the appellate court opinion as adopting a “conflicting

evidence” standard, explains:

“In this case, the appellate court apparently believed that the evidence in the

supporting affidavits was positively rebutted simply because it was contradicted

by the evidence presented at trial. That was error because recognizing the

existence of a conflict with the trial evidence is not the same as finding that the

new evidence is positively rebutted. For new evidence to be positively rebutted,

it must be clear from the trial record that no factfinder could ever accept the

truth of that evidence, such as where it is affirmatively and incontestably

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demonstrated to be false or impossible—like the single-gunshot evidence in

Sanders. We now clarify that the inquiry applicable at the leave-to-file stage of

successive proceedings does not focus on whether the new evidence is

inconsistent with the evidence presented at trial. Rather, the well-pleaded

allegations in the petition and supporting documents will be accepted as true

unless it is affirmatively demonstrated by the record that a trier of fact could

never accept their veracity. In assessing whether a petitioner has satisfied the

low threshold applicable to a colorable claim of actual innocence, the court

considers only whether the new evidence, if believed and not positively rebutted

by the record, could lead to acquittal on retrial.” Supra ¶ 60.

¶ 115 There are several problems with this passage. First, the majority does not

“clarify” anything. This is the elimination of a standard that was previously settled

and the replacement of it with an entirely new one. It is difficult to see how this is

not an overruling of Edwards, given that the very issue in Edwards was the standard

for these types of claims and the majority now jettisons that standard in favor of a

different one. Moreover, the majority never explains why it believes the standard a

petitioner has to meet at the leave-to-file stage is an open question. The only

window into the majority’s thinking on this is when it asserts that,

“the standard for alleging a colorable claim of actual innocence falls between

the first-stage pleading requirement for an initial petition and the second-stage

requirement of a substantial showing. See Smith, 2014 IL 115946, ¶ 29; see also

Morrow, 2019 IL App (1st) 161208, ¶ 51; Lee, 2016 IL App (1st) 152425,

¶ 47.” Supra ¶ 58.

While this is true, that standard has already been determined by this court in

Edwards: leave of court should be granted when the petitioner’s supporting

documentation 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. The

cited paragraph of this court’s decision in Smith contains an observation by this

court that requiring a petitioner to conclusively establish cause and prejudice prior

to being granted leave to file a successive petition “may render the entire three-

stage postconviction process superfluous.” People v. Smith, 2014 IL 115946, ¶ 29.

But this is not an invitation to rewrite the standard a postconviction petitioner must

meet to obtain leave to file a postconviction petition alleging actual innocence.

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Smith distinguished Edwards on the basis that Edwards addressed the standard for

successive postconviction petitions alleging actual innocence and was not a cause

and prejudice case. Id. ¶ 32. The two appellate court cases that the majority cites—

Morrow and Lee—merely cite Smith for the proposition that the three-stage process

should not be rendered superfluous, but they then explain that the Edwards

“probability” standard applies at the leave-to-file stage and then the higher

“substantial showing” standard applies at the second stage. See People v. Morrow,

2019 IL App (1st) 161208, ¶ 51; People v. Lee, 2016 IL App (1st) 152425, ¶ 47.

Thus, the majority’s citations confirm that Edwards is the proper standard, and the

majority has provided no reason at all for why it believes that this court needs to

replace that standard with a new one.

¶ 116 Second, this court has never described the leave-to-file stage of successive

postconviction proceedings as being a “low threshold.” 4 The “low threshold”

language is how the court describes the first stage of initial postconviction

proceedings. See, e.g., People v. Brown, 236 Ill. 2d 175, 184 (2010) (explaining

that first stage of postconviction proceedings presents a low threshold “requiring

only that the petitioner plead sufficient facts to assert an arguably constitutional

claim”); People v. Robinson, 217 Ill. 2d 43, 60 (2005) (noting that a “postconviction

petition is frivolous or patently without merit when its allegations, taken as true and

liberally construed, fail to present the gist of a constitutional claim” and that the

gist standard presents a low threshold). In Edwards, the dissenting justice in the

appellate court had argued that a “low threshold” standard should also apply at the

leave-to-file stage of successive postconviction proceedings. Edwards, 2012 IL

111711, ¶ 17. As set forth earlier in this dissent, this court comprehensively rejected

that view and gave four independent reasons why it was incorrect. Id. ¶¶ 26-29. It

is well settled that successive postconviction actions are disfavored by Illinois

courts (id. ¶ 29; see also People v. Bailey, 2017 IL 121450, ¶ 39 (“successive

postconviction petitions are highly disfavored”)), and it is simply not the case that

a petitioner seeking leave to file a successive postconviction petition faces a “low

threshold.”

4

At oral argument, defense counsel asked this court to follow its “long-standing precedent

requiring a low threshold at this stage.” There is no such long-standing precedent.

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¶ 117 Nor does a postconviction petitioner bringing a freestanding claim of actual

innocence face a “low threshold.” Quite the opposite. In Coleman, this court stated:

“As we stated in Washington, ‘no person convicted of a crime should be

deprived of life or liberty given compelling evidence of actual innocence.’

Washington, 171 Ill. 2d at 489. That statement indicates that the standard we

adopted is extraordinarily difficult to meet. In fact, as amicus informs us and

our research confirms, courts of review have granted postconviction relief on

actual-innocence claims in only three reported cases since 1996. See People v.

Burrows, 172 Ill. 2d 169 (1996) (decided the same day as Washington); Ortiz,

235 Ill. 2d 319; People v. Starks, 365 Ill. App. 3d 592 (2006).” (Emphasis

added.) Coleman, 2013 IL 113307, ¶ 94.

Thus, petitioner was bringing a type of claim that is extraordinarily difficult to

succeed on and was doing so in a proceeding that is highly disfavored by Illinois

courts. Contrary to what the majority states, there is nothing about a freestanding

claim of actual innocence brought in a successive postconviction petition that

presents a “low threshold” for the petitioner.

¶ 118 Third, the standard “whether the new evidence, if believed and not positively

rebutted by the record, could lead to acquittal on retrial,” is virtually meaningless.

Supra ¶ 60. Anything could lead to an acquittal. The jury could vote to acquit even

in the face of overwhelming evidence of guilt, or the jury could engage in jury

nullification. Such a standard gives no guidance whatsoever for lower courts to

follow, and it is difficult to see how it is much different from the “frivolous or

patently without merit” standard rejected in Edwards. Previously, this court has

focused on probability. As this court said in Edwards,

“leave of court should be granted when the petitioner’s supporting

documentation 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’

(Schlup v. Delo, 513 U.S. 298, 327 (1995) (characterizing threshold standard as

one of probability)).” Edwards, 2012 IL 111711, ¶ 24.

Under the majority’s new standard, this court likely would have reached the

opposite result in Edwards. In that case, the petitioner supported his successive

petition with the affidavit of Eddie Coleman, a fellow gang member who

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participated in the shooting and said that the petitioner had nothing to do with it.

This court, applying its newly adopted standard, explained:

“[E]ven though Eddie’s affidavit contains newly discovered evidence, the result

is the same. In the affidavit’s specific references to petitioner, Eddie averred

petitioner ‘had nothing to do with this shooting,’ he (Eddie) ‘never saw or spoke

with [petitioner] after the funeral,’ petitioner was neither ‘a part [of nor] took

part in this crime,’ and he (Eddie) did not ‘share this information [about the

shooting] with [petitioner] after the crime.’ Though Eddie averred petitioner

‘had nothing to do with this shooting’ and was neither ‘a part [of nor] took part

in this crime,’ Eddie critically does not assert that petitioner was not present

when the shooting took place. As the appellate court correctly noted, Eddie’s

averment in his affidavit that he was the principal offender ‘does little to

exonerate defendant who *** was convicted of the murder under the theory of

accountability.’

Thus, even though Eddie Coleman’s affidavit could be considered new

evidence, it does not raise the probability that, in the light of the new evidence,

it is more likely than not that no reasonable juror would have convicted

petitioner. This evidence is not ‘of such conclusive character that it would

probably change the result on retrial’ (Morgan, 212 Ill. 2d at 154). See

Washington, 171 Ill. 2d at 489, (describing ‘conclusive character’ requirement

as the ‘most important[ ]’ element of an actual-innocence claim).” (Emphasis

omitted.) Id. ¶¶ 39-40.

However, if all that the petitioner had to show to get past the leave-to-file stage was

that the new evidence, if believed and not positively rebutted by the record, could

lead to an acquittal, it seems that the petitioner’s evidence met that standard. Surely

the testimony of a participant in the crime that the petitioner had nothing to do with

the crime and neither was a part of it nor took part in it, and was not even told about

it, could lead to an acquittal, even if the petitioner was charged under an

accountability theory. This is clearly not the standard this court was applying in

Edwards.

¶ 119 Application of the Edwards Standard

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¶ 120 I agree with the appellate court that petitioner cannot meet the Edwards

standard. Petitioner has not submitted evidence sufficient to raise a probability that

no reasonable juror would have convicted him. Petitioner’s newly discovered

evidence would add conflicting evidence for a trier of fact to consider, but it is far

from conclusive. This court reiterated in Edwards that the “ ‘conclusive character’

requirement is the ‘most important[ ]’ element of an actual-innocence claim” (Id.

¶ 40 (quoting Washington, 171 Ill. 2d at 489) and that the “ ‘no reasonable juror’

standard ‘requires a stronger showing than that required to establish Strickland

prejudice’ ” (id. (quoting Morales v. Johnson, 659 F.3d 588, 605 (7th Cir. 2011))).

In Schlup, the case from which the Edwards standard was derived, the United States

Supreme Court explained that the word “reasonable” in the above formulation

means that it “must be presumed that a reasonable juror would consider fairly all of

the evidence presented” and would “conscientiously obey the instructions of the

trial court requiring proof beyond a reasonable doubt.” Schlup, 513 U.S. at 329. A

court must “assess the probative force of the newly presented evidence in

connection with the evidence of guilt adduced at trial.” Id. at 332; see also supra

¶ 47 (“the conclusive character element refers to evidence that, when considered

along with the trial evidence, would probably lead to a different result”); Coleman,

2013 IL 113307, ¶ 96; People v. Ortiz, 235 Ill. 2d 319, 336-37 (2009).

¶ 121 I agree with the appellate court’s assessment of petitioner’s newly discovered

evidence along with the trial evidence, as set forth in paragraphs 36 through 47 of

its opinion, and I would affirm its decision. The appellate court properly noted the

deficiencies of each of the affidavits and concluded that they were not of such

conclusive character as would probably change the result on retrial, given the

overwhelming evidence of petitioner’s guilt that was introduced at trial, including

petitioner’s 70-page, court-reported statement. I wish to focus here on that

statement, as it is crucial to understanding why petitioner has failed to raise the

probability that it is more likely than not that no reasonable juror would have

convicted him in light of the new evidence. The majority, as did the appellate court,

summarizes that statement in one paragraph, and this does not give a full

appreciation of the story that petitioner told. In his statement, petitioner consistently

gave details that went far beyond those necessary to establish his guilt of the crime.

¶ 122 In his statement, petitioner explained that, in the weeks prior to December 28,

1997, he and two of his friends, Marques Northcutt and Andrew Ganaway,

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formulated a plan to get some money. They decided to rob Nicole Giles, whom they

had known for a few months, because they had heard that she had a lump sum of

money coming in. She was supposed to be receiving between $200 and $300 from

a cousin named Gerry. Initially, the plan was just to rob her, but once they realized

that Giles would turn them in to the police, they formulated a plan to kill her.

Petitioner explained that he planned to use a MAK-90 semiautomatic rifle to kill

Giles, and he identified a picture of the weapon. He said he obtained the weapon

from the brother of a man named Daniel Williams.

¶ 123 Petitioner said that he planned to use the $200 to $300 he would get from the

robbery to purchase three eight-balls of crack cocaine. He would then cut it down

and sell it at a profit. Petitioner believed that he could double his money. He would

then take the money he received from selling the crack cocaine and use it to buy a

pound of marijuana. He would then take this pound of marijuana to Minnesota to

sell it, where he would hopefully double or triple his money. Petitioner said that he

could receive a higher price for the marijuana in Minnesota than in Chicago.

¶ 124 On December 28, 1997, Northcutt and Ganaway were at petitioner’s house.

Petitioner called Giles and asked her to come over for a visit. Giles arrived at

petitioner’s house in her Ford Contour, which petitioner believed was either a ’97

or ’98 model. Petitioner described it as being purple or “kind of violet.” When Giles

arrived at the house, petitioner took her car keys, and then he and Ganaway slipped

out so that they could put the MAK-90 into the back seat of her car. They covered

the weapon with a laundry bag because they did not want Giles to see it. They

feared that, if she saw the weapon, she would know what was going to happen to

her.

¶ 125 Petitioner told Giles that it was time to go, and the four of them then got into

Giles’s car. Giles sat in the driver’s seat with Ganaway next to her. Petitioner and

Northcutt sat in the back. When they were getting into the vehicle, Giles wanted to

see if petitioner and Northcutt had enough room in the back seat. At this point, she

noticed the laundry bag. She reached down to touch it and wanted to know what it

was and where it came from. Petitioner said, “don’t trip,” which means “don’t

worry about it.” Ganaway initially told Giles to drive west on 87th Street, but then

petitioner took over giving her directions and eventually told her to drive to 88th

and Kingston Streets and to stop under a viaduct. This was around 4:45 p.m. The

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plan was for Northcutt to tell her that he had to get out of the car under the viaduct

so he could go to the bathroom. Northcutt exited the vehicle and went around the

back of the car to petitioner’s side of the car. Petitioner then opened the back door

and set the MAK-90 on the ground.

¶ 126 Northcutt went to a pillar and pretended to urinate. Ganaway exited the vehicle

and went around the car to try to open Giles’s door. She had locked it, so he was

not able to do so. Petitioner then unlocked Giles’s door. Ganaway opened it and

tried to force Giles out of the car. He was unsuccessful, so Northcutt reached in

from the passenger side of the car, grabbed Giles by the left arm, and dragged her

out of the car. She then fell to the ground. Petitioner picked up the MAK-90 and

approached Giles, who was sitting on the ground, facing away from him. Petitioner

then pointed the MAK-90 at Giles’s head and squeezed the trigger. Giles fell to the

ground, and petitioner did not see her move again. Petitioner then said that he

“threw the Mak-90 to the back of the car.” Northcutt pulled a plastic bag over

Giles’s head, and petitioner helped him drag her into the back seat of the car.

¶ 127 The three of them got back into the vehicle, with Ganaway driving. Petitioner

told Ganaway to “drive up 90th.” Petitioner was looking for a place to get rid of the

body. Eventually, petitioner spotted an alley between Crandon and Luella. They

drove down the alley, and petitioner noticed three garbage cans next to some

branches and twigs. Petitioner then examined the pile of branches to see if it could

be moved so that he could put the body under it. Petitioner determined that they did

not have time to move the branches, so they decided they would place the body in

a garbage can instead. Before placing the body into the garbage can, petitioner

reached into Giles’s pocket, hoping to find approximately $200. He found only $50,

which he handed to Northcutt.

¶ 128 Petitioner noticed that the bag was starting to come off of Giles’s face, so he

pulled it back over her face so that he would not have to look at her. Northcutt

helped him place Giles’s body headfirst into the garbage can. They then closed the

can and drove away.

¶ 129 The three men drove to the back of a house at 8918 South Bennett Avenue so

that Ganaway could get rid of the MAK-90. Petitioner explained that he did not

want it in his possession because he did not want to get caught for murder. Ganaway

exited the vehicle with the MAK-90 in his hands. He disappeared for “no longer

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than a minute,” and when he returned, he no longer had the weapon. Ganaway told

petitioner that he hid the gun on the side of the garage. Petitioner then drove Giles’s

car to Country Club Hills. He wanted to ditch the car far from his vicinity and then

take the Metra back. When they arrived in Country Club Hills, they went to the

house of a friend of Ganaway’s. The friend, Megan, was not home, so they drove

east on 175th Street and then ditched the car close to the Metra station. Before doing

so, the three of them tried to wipe down every surface of the car. Petitioner used his

jacket to wipe the car.

¶ 130 They then got rid of the laundry bag that had concealed the MAK-90. The bag

was now covered in blood. They placed it in the garbage can of one of the

residences in the area. Petitioner then hid the car keys across Dixie Highway by the

Metra station. The three of them then took a Metra train that was going north.

Petitioner said that it was the E-zone train that arrives at 6:06 p.m. They bought

their tickets on the train. Northcutt paid for them with the money they stole from

Giles. When Northcutt took the money out of his pocket, petitioner noticed that

there was blood on one of the $20 bills. Petitioner advised Northcutt to hand the

money to the conductor facedown. Petitioner said that they wanted to get rid of the

bill “so he would not be on to us.”

¶ 131 The three of them exited the train at 59th Street and University Avenue and then

switched over to the B-zone train. That train took them to “95th between

Commercial and Buffalo.” They got off the train at 91st Street. Petitioner then cut

through the park to Lenny Tucker’s house. Tucker was petitioner’s sister’s

boyfriend. Tucker lived at 87th and Marquette Streets. Lenny’s mother was home,

but Lenny was not, so petitioner decided to go home. Northcutt, Ganaway, and

petitioner all went to petitioner’s house at 87th Street and Colfax Avenue, where

they found petitioner’s mother, his siblings, and Lenny Tucker. Petitioner

proceeded to take off his clothes and advised Northcutt and Ganaway to do the

same. Petitioner explained that they had Giles’s blood on their clothes. Petitioner

placed their clothes in the washing machine. He also had Giles’s blood on a pair of

his shoes, so he decided to throw the shoes away. The shoes were red, white, and

blue Fila low tops, made from both leather and canvas. Petitioner threw them away

in the garbage can behind his house.

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¶ 132 Petitioner then spoke to Tucker in the kitchen. He told Tucker how they had

killed Giles, and Tucker did not believe him. He eventually gave Tucker enough

details that Tucker believed the story. Tucker asked about the bag they had kept the

MAK-90 in and warned petitioner that the police could get fingerprints off clothes.

Petitioner began to worry that they may have left their fingerprints on Giles’s body.

Petitioner then spoke to Northcutt and Ganaway about the possibility that they had

left their fingerprints on Giles’s clothing, and they decided that her clothes would

need to be burned.

¶ 133 Petitioner called his grandmother to tell her that he was coming over to her

house. Petitioner called his girlfriend, Michelle McClendon, and asked her to come

and take him to his grandmother’s house. He had previously called her and told her

how they had murdered Giles. Before the murder took place, he had told her the

entire plan about how they had decided to rob and murder Giles, but she was not

interested. McClendon came and picked up petitioner, Northcutt, and Ganaway and

took them to petitioner’s grandmother’s house. They stayed for 20 minutes and

“fixed left over Christmas plates.” They then went back home, where they stayed

for no more than two minutes before deciding to leave again to purchase marijuana.

They went to 72nd Street and Coles Avenue to buy it but ended up not buying any.

They then went to McClendon’s house to pick up two of her friends, Myesha and

Giovanni. Next, they went to the Shell station at 83rd Street and Stoney Island, after

which they dropped Giovanni off at his home in Riverdale. They then dropped off

Northcutt at 111th and Bell.

¶ 134 At this point, petitioner, Ganaway, McClendon, and Myesha were in the car.

Ganaway told McClendon to drive to 89th Street and South Bennett Avenue, where

they had hidden the gun. Ganaway wanted to rehide it because he did not believe

that he had hidden it well enough the first time. McClendon drove to 8918 South

Bennett Avenue, and Ganaway got out of the car. Ganaway was gone for less than

two minutes. When he returned, he explained that he rehid the gun across the alley

on the side of the garage. Petitioner then asked McClendon to drive him home.

Once they arrived at home, petitioner asked Ganaway and Myesha to exit the

vehicle so that he could talk to McClendon alone. Petitioner then told McClendon

that he loved her, and she told him that he was going to go to jail. He told her not

to think like that. He then went inside and “fixed a plate from [his] Grandma’s” and

fell asleep.

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¶ 135 On the following day, December 29, 1997, Northcutt called petitioner at around

10:30 or 11 a.m. Northcutt said to “get up so that yall could get on that business.”

Petitioner said that Northcutt was referring to the plan to burn Giles’s body to

remove any fingerprints. Petitioner decided that they would use gasoline to burn

the clothes. He told his sister to get the gas can out of the shed. His sister called her

best friend, Maisha Muhammad, to come over. Petitioner had known Muhammad

for around four years. She arrived sometime during the day in a four-door, maroon

Corsica. Muhammad, Ganaway, and petitioner all got into the vehicle. Petitioner

had the gas can with him, and he told Muhammad to drive to the Clark station at

87th Street and Exchange Avenue. Petitioner then bought $1 worth of gas, which

was enough to fill the gas can about three-quarters.

¶ 136 Petitioner directed Muhammad to the area of the viaduct, but they were not able

to locate the body quickly because petitioner had forgotten which alley they put her

in. It took them about 20 minutes to locate the body. They eventually found the

correct garbage can, and petitioner noticed that a garbage bag had been placed on

top of her. Petitioner said that the garbage can was black with wheels and a handle

on top. Ganaway took the gas can to the garbage can and drenched the body with

gasoline. Petitioner then closed the garbage can, and Ganaway gave him a bandana

to place on top of the garbage can. They soaked the bandana with gasoline, placed

one end of it inside the can, touching the body, and left one end hanging out of the

can. Ganaway handed him some matches, and petitioner lit the bandana on fire. He

then could see nothing but flames, and he and Ganaway ran back to the car. They

got in the car, and petitioner told Muhammad that they had just burned Giles’s

body. Muhammad asked why, and petitioner said that their fingerprints were on it.

Muhammad did not ask any more questions; she just wanted to go. Muhammad

then took petitioner back home.

¶ 137 At the end of his statement, petitioner reiterates that he came to the police

station of his own free will, that no one forced him to come there, and that he had

been treated fairly by the police officers, the detectives, and the assistant state’s

attorney. He said that he had been given food and water and been allowed to rest

and use the restroom. He said that no one had threatened him before giving this

statement and that no one had promised him anything in return for the statement.

He agreed that he gave the statement free of the influence of drugs or alcohol.

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¶ 138 What is notable about this statement is the level of detail. Petitioner shares

intimate details about all phases of the planning and execution of the crime.

Moreover, he consistently goes far beyond giving the facts necessary to establish

the crime. He does not merely set forth the basic facts of the crime, such as the

shooting of Giles under the viaduct, the disposal of her body in a garbage can, and

the subsequent burning of the body. Rather, he also offers such details as (1) the

plan to sell marijuana obtained from the proceeds of the robbery in Minnesota,

where he could get a better price than in Chicago; (2) Giles noticing the laundry

bag in the back of the car and wanting to know what it was; (3) Ganaway

unsuccessfully attempting to pull Giles out of the car before Northcutt eventually

had to do it; (4) that the initial plan was to dispose of the body under a pile of

branches rather than in a garbage can but that they ultimately decided that they did

not have time to move the branches; (5) that the bag began to fall off of Giles’s

face, so petitioner covered it back up so he would not have to look at her; (6) that

when they arrived in Country Club Hills, they first went to visit a friend of

Ganaway’s named Megan, but she was not home; (7) that when Northcutt needed

to give money to the Metra conductor, petitioner noticed blood on a $20 bill and

told Northcutt to turn the bill over; (8) that when they got off the Metra train, they

first went to Tucker’s home but found only Tucker’s mother there; (9) that when

they went to McClendon’s house to pick up Myesha, Giovanni was also there, and

they took Giovanni home to Riverdale before the rest of the group went to 8919

South Bennett Avenue so that Ganaway could rehide the gun; (10) that Ganaway

moved the gun to a different hiding spot because he did not believe he had hidden

it well enough he first time; (11) that before McClendon took petitioner and

Ganaway to 8918 South Bennett Avenue, she had taken Northcutt, petitioner, and

Ganaway to petitioner’s grandmother’s house, where they had leftover food from

Christmas; (12) that when petitioner got back home after the trip to 8918 South

Bennett Avenue, he told McClendon that he loved her, and she told him that he was

going to jail; (13) that when they went back to the area of the viaduct to burn the

body, they initially could not find it because petitioner had forgotten which alley

they had left her in, and it took them 20 minutes to find her; and (14) that when

they located the correct garbage can, petitioner noticed that someone had placed a

bag of garbage on top of Giles’s body.

¶ 139 Thus, a reasonable juror would hear that petitioner gave a complete confession

to his responsibility for the offense, consistently filling in details of the story that

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went far beyond what was necessary to establish his guilt. Additionally, a

reasonable juror would hear evidence that petitioner also confessed to Muhammad,

McClendon, and Tucker. Elements of petitioner’s statement were corroborated by

other witnesses. For instance, petitioner’s statement that it took a while to find

Giles’s body because he could not remember which alley he put her in was

corroborated by Muhammad, who testified that they rode around several blocks in

the area of the viaduct and that they changed directions two or three times.

Muhammad testified that petitioner was the one giving directions. Additionally,

McClendon corroborated petitioner’s statement about getting leftover food at his

grandmother’s house on December 28, 1997. McClendon testified that petitioner’s

“grandmother let us in and we went into the kitchen and she showed us where the

left over food was, and they began to fix themselves plates and they eight [sic].”

McClendon further corroborated petitioner’s statement that she drove Northcutt to

his home at 111th Street and Bell Avenue after they left petitioner’s grandmother’s

house. McClendon also testified to specific details of the crime that petitioner

shared with her, such as how he had asked Giles for her keys so that he could hide

the weapon in her car, how the plan was to get Giles to pull over by having one of

them say that he had to use the bathroom, how they used a bandana to ignite the

gasoline, and how someone had dumped garbage on top of Giles’s body.

¶ 140 Petitioner’s affidavits would give a reasonable juror conflicting evidence to

consider, but they were not even close to being conclusive. Hunt-Bey stated in his

affidavit that Tucker confessed to him at a gas station near 87th Street and

Exchange Avenue on December 29, 1997, filled a container of gas, and said that he

had to “tie up loose ends.” He then drove away with two unknown men. Hunt-Bey

stated that he knew petitioner was “taking the rap for Lenny.” However, Tucker

testified at trial that petitioner told him that petitioner had committed the crime.

Moreover, Muhammad testified that she was the driver of the vehicle in question

and that the people she drove to the gas station were Ganaway and petitioner. Hunt-

Bey’s affidavit was therefore not conclusive as to petitioner’s innocence. See

Sanders, 2016 IL 118123, ¶ 52 (“Bingham’s recantation is contrary not only to his

own testimony at petitioner’s trial, but also to the testimony of Ramseur and

Barfield, 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.”).

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¶ 141 Shaw testified in his affidavit that on December 28, 1997, he observed a dark

Ford Contour stop near 8918 South Bennett Avenue. In the vehicle were “three

guys that hung with Rickey,” including a man named “Lenny.” Petitioner was not

one of the men in the car. Shaw observed one man exit the car with an assault rifle

and run between the gangway toward Constance Avenue. The man returned to the

vehicle without the weapon and entered the back seat of the car. This affidavit is

not conclusive as to petitioner’s innocence. Shaw did not observe Giles’s murder

and did not reference it in any way. At best, he could add conflicting evidence for

the trier of fact to consider about the disposal of the weapon. And his testimony

about the disposal of the weapon is directly contradicted by petitioner’s statement

where petitioner states that he was in the Ford Contour with Northcutt when

Ganaway disposed of the weapon. Shaw’s affidavit was nowhere near being

conclusive as to petitioner’s innocence but merely would give a reasonable juror

conflicting evidence to consider about the disposal of the weapon.

¶ 142 Finally, Mamon testified in his affidavit that “just days after Christmas” in

December 1997 he observed a man named Lenny and another man sitting in a

parked car. Shortly thereafter, by a viaduct on South Chicago Avenue, he heard a

loud gunshot and saw a bright flash, following which he saw Lenny place an “A.K.”

in the back seat of a car. Lenny then drove away with two men. Mamon later met

petitioner in prison and asked if “he had a murder that happened under a viaduct

right off South Chicago.” In August 2014, Mamon received a call from someone

who asked whether Mamon knew a “Ricky” and explained that Ricky had been

locked up for a long time for a murder on South Chicago Avenue. Mamon did not

know petitioner as Ricky because he went by a nickname. Mamon stated in the

affidavit that petitioner was not one of the men he saw under the viaduct that night.

¶ 143 Mamon’s affidavit is internally inconsistent as to how many men were

involved. He first saw Lenny and one other man and then said that Lenny was with

two other men. Moreover, it is not conclusive as to petitioner’s innocence because

Mamon does not claim to have seen who shot Giles. It is also contradicted by

petitioner’s affidavit and petitioner’s statements to Muhammad, McClendon, and

Tucker. Thus, it would merely give a reasonable juror conflicting evidence to

consider.

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¶ 144 As the appellate court properly concluded, the evidence against petitioner was

overwhelming and included both petitioner’s detailed, 70-page statement

confessing to the murder and petitioner’s confessions to Muhammad, McClendon,

and Tucker. The information in petitioner’s new affidavits would give the trier of

fact conflicting evidence to consider, but petitioner has failed to demonstrate a

probability that it is more likely than not that no reasonable juror would have

convicted him in light of the new evidence. The majority treats petitioner’s detailed

confession as essentially equivalent to the statement of a disinterested witness.

Supra ¶ 82. But, presumably, a reasonable juror would assume that petitioner knew

whether or not he was responsible for shooting a woman under a viaduct and

burning her body to hide the evidence. As the United States Supreme Court has

noted, “a full confession in which the defendant discloses the motive for and means

of the crime” is powerful evidence of guilt. Arizona v. Fulminante, 499 U.S. 279,

296 (1991). The court explained in that case that:

“A confession is like no other evidence. Indeed, ‘the defendant’s own

confession is probably the most probative and damaging evidence that can be

admitted against him. . . . [T]he admissions of a defendant come from the actor

himself, the most knowledgeable and unimpeachable source of information

about his past conduct. Certainly, confessions have profound impact on the jury,

so much so that we may justifiably doubt its ability to put them out of mind

even if told to do so.” Id. (quoting Bruton v. United States, 391 U.S. 123, 139-

140 (White, J., dissenting, joined by Harlan, J.)

See also People v. Simpson, 2015 IL 116512, ¶ 36 (“It has been observed that ‘a

confession is the most powerful piece of evidence the State can offer, and its effect

on a jury is incalculable.’ ” (quoting People v. R.C., 108 Ill. 2d 349, 356 (1985))).

¶ 145 In People v. Wideman, 2016 IL App (1st) 123092, the defendant had given a

detailed confession to the crime but later sought leave to file a successive

postconviction petition alleging actual innocence. In upholding denial of leave to

file the petition, the appellate court stated:

“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

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not explain why the jury would completely disregard his own words detailing

his participation in the crime in favor of Williams’ testimony to the contrary.

Such a proposition is unreasonable. Clearly, even if the jury were presented

with such conflicting evidence, it could easily conclude that the defendant’s

detailed, self-incriminating statements were entitled to more weight and (along

with the other trial evidence) supported a finding of guilt. We certainly cannot

say that an acquittal on either the murder or armed robbery charge would be

“probable” had Williams testified to the statements in his May 2010 affidavit.

Thus, we do not find that the defendant set forth evidence ‘of such conclusive

character that it would probably change the result on retrial’ as is required to

allow leave to file a successive petition on the basis of actual innocence.” Id.

¶ 67 (quoting Edwards, 2012 IL 111711, ¶ 32).

Similarly, here, petitioner has failed to sufficiently explain why a reasonable juror

would disregard his own detailed confession to the crime, which was corroborated

by his confessions to three other people. Petitioner simply cannot meet the Edwards

standard, and he has thus failed to present a colorable claim of actual innocence. I

would therefore affirm the appellate court’s decision.

¶ 146 JUSTICES GARMAN and KARMEIER join in this dissent.

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