People v. Calderon

Opinion

2026 IL App (2d) 240527-U No. 2-24-0527 Order filed July 27, 2026

NOTICE: This order was filed under Illinois Supreme Court Rule 23(b) and is not precedential except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

JUAN CALDERON, Defendant-Appellant.

Appeal from the Circuit Court of Kane County. Honorable Alice C. Tracy, Judge, Presiding. No. 14-CF-258

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

ORDER

¶1 Held: The trial court did not err in denying defendant’s motion to file a successive postconviction petition alleging that his trial counsel was ineffective for failing to introduce surveillance videos that were allegedly exculpatory as to defendant’s sex- crime charges. Defendant did not establish cause for failing to include the ineffectiveness claim in his initial petition, as he was negligent for relying on a fellow inmate to prepare the petition. Nor did defendant establish prejudice from the omitted claim, given the strength of the trial evidence and his failure to include the videos with his proposed successive petition.

¶2 Defendant, Juan Calderon, appeals from an order of the circuit court of Kane County

denying his motion for leave to file a successive petition for relief under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). We affirm. ¶3 I. BACKGROUND

¶4 Following a jury trial in the circuit court of Kane County, defendant was convicted of two

counts of aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(2) (West 2014)). The trial

court sentenced defendant to an eight-year prison term for each count and ordered that the

sentences be served consecutively. At trial, M.C. testified that she married defendant in September

2013. By February 2014, the marriage was troubled. M.C. arranged to meet defendant on

February 15, 2014, to tell him that she wanted a divorce. She went in her pickup truck to a

convenience store to meet with defendant. Defendant got into the passenger seat, and they

proceeded to a liquor store, where defendant purchased alcohol. Defendant then took over driving,

and they traveled to a park. When they arrived, they began arguing. Defendant was drinking. He

forced M.C. to perform oral sex on him. Afterward, defendant drove from the park to a gas station.

As he was driving, he forced M.C. to perform oral sex on him again.

¶5 At some point after they arrived at the gas station, defendant hit M.C. in the mouth with

his hand. M.C. asked defendant to calm down, but he started hitting her face with his closed fist.

When M.C. tried to push defendant away, he bit her arm. He also choked her, preventing her from

breathing. When M.C. tried to open the passenger door, defendant grabbed the back of her pants,

pulled them partly down, and inserted his fingers into her rectum. He also penetrated her vagina

with one or more of his fingers. Ultimately, M.C. was able to escape from the truck, and someone

escorted her into the gas station, where she received assistance.

¶6 Thomas Burke testified that at about 7 p.m. on February 15, 2014, while at a Marathon gas

station in South Elgin, he encountered a woman crying in the parking lot. When he approached

her, he noticed that her face was bruised. After she said that she had been hit, Burke brought her

into the gas station, where the clerks contacted 911. Once inside, the woman continued to discuss

-2- the incident. According to Burke, “She said she had been hit or beat up and that the person had bit

her. She didn’t say who it was. She said ‘him,’ and she pointed out towards the outside[.]” Burke

testified that the woman pointed at defendant. She told Burke that defendant had her keys. Not

wanting defendant to leave, Burke went out to confront him. Defendant had an odor of alcohol.

He did not appear to have been injured. Burke retrieved the woman’s keys from defendant. Shortly

thereafter, the police arrived.

¶7 Two days after the incident, defendant wrote a letter to M.C.’s adult daughter. The letter

was in Spanish, and the court interpreter translated it for the jury. Defendant expressed regret for

“ ‘what happened’ ” between defendant and M.C. Defendant wrote, “ ‘I want the earth to swallow

me up, and I cannot find any word to explain what happened.’ ” Defendant indicated that he knew

M.C. was “ ‘very hurt,’ ” adding, “ ‘I know that there is no justification, but I swear to you that I

was just very drunk and [M.C.] knows that.’ ” Defendant asked for “an infinite amount of

forgiveness.”

¶8 Brian Polkinghorn, a detective with the South Elgin Police Department, testified that he

investigated the incident at the Marathon gas station. In the early morning hours of February 16,

2014, Polkinghorn interviewed defendant. Defendant told him that, the prior evening, he and M.C.

argued, M.C. hit him, and he “defended himself.” However, he denied hitting M.C. Initially, he

denied having any sexual contact with M.C. in the truck, but he later stated that he touched M.C.’s

vagina and she touched his penis and performed oral sex on him.

¶9 Called as a witness for the defense, Polkinghorn testified that, in connection with his

investigation, he asked M.C. why she had stepped out of her truck two or three times. He explained

that he asked the question because he had seen her do so on surveillance video from the gas station.

-3- ¶ 10 On direct appeal from his conviction, defendant argued that (1) the prosecutor’s rebuttal

argument was inflammatory; (2) the evidence supported convictions of criminal sexual assault but

not aggravated criminal sexual assault; and (3) the convictions of two counts of aggravated

criminal sexual assault violated the one-act, one-crime rule. People v. Calderon, 2018 IL App (2d)

160185-U, ¶ 2. We affirmed.

¶ 11 On July 26, 2019, defendant filed a petition for relief under the Act, alleging various

instances of ineffective assistance of trial counsel and appellate counsel. The petition included no

claims related to trial counsel’s failure to offer exculpatory surveillance videos into evidence. The

trial court summarily dismissed the petition, and we affirmed. People v. Calderon, 2022 IL App

(2d) 190968-U, ¶ 2.

¶ 12 On October 17, 2022, defendant filed a motion for leave to file a successive postconviction

petition. Defendant asserted that, while incarcerated, he sought assistance with the preparation of

his initial postconviction petition from the law librarian at his correctional facility. Defendant

alleged that the librarian “hire[d] and supervise[d] various prisoner-workers” who worked in the

law library. The law librarian “pushed [defendant] off to his prisoner-workers.” Those inmates

refused to assist defendant unless he paid them. Frederick Lambert, one of the inmates who

worked in the law library, approached defendant and offered to prepare defendant’s postconviction

petition for $400. Lambert claimed that he was a “licensed paralegal.” Defendant accepted

Lambert’s offer. Lambert did not speak Spanish. Defendant, a Spanish speaker, had a poor

command of English.

¶ 13 Defendant alleged that he wanted his postconviction petition to raise a claim of ineffective

assistance of trial counsel based on counsel’s failure to present surveillance videos from the gas

station that allegedly contradicted M.C.’s testimony. According to defendant, when Lambert

-4- completed the initial petition, defendant “questioned Lambert about the video evidence not being

included, and Lambert responded that it would be requested by the judge.”

¶ 14 The petition accompanying the motion included what defendant referred to as an “offer of

proof” of the contents of surveillance videos from three cameras at the gas station, one of which

defendant allegedly viewed with trial counsel. That video purportedly showed M.C. calmly exit

the pickup truck, walk to the driver’s side, and then calmly return to the passenger seat. She

repeated this movement two more times. She was fully dressed on each occasion. Finally, she

exited the truck, still fully dressed, and calmly walked out of the surveillance camera’s view. The

other videos also purportedly contradicted M.C.’s account of the incident.

¶ 15 Defendant attached to his petition a “Statement of Juan Carlos Calderon Supporting

Successive Petition for Post Conviction Relief” (Statement). The Statement, which was notarized,

reiterated the petition’s description of the surveillance videos.

¶ 16 On August 7, 2024, the trial court denied defendant’s motion. The court determined that

defendant did not establish “cause” for failing to include in his initial petition a claim that trial

counsel was ineffective for failing to introduce the surveillance videos into evidence. See 725

ILCS 5/122-1(f) (West 2020). Having found a lack of “cause” for the omission of the

ineffectiveness claim, the court declined to consider whether the omission caused defendant

“prejudice.” See id.

¶ 17 This timely appeal followed.

¶ 18 II. ANALYSIS

¶ 19 Defendant argues that he met the “cause” and “prejudice” requirements for filing a

successive postconviction petition alleging that trial counsel was ineffective for failing to introduce

the surveillance videos into evidence.

-5- ¶ 20 The Act “provides a remedy to a criminal defendant whose federal or state constitutional

rights were substantially violated in [the] original trial or sentencing hearing.” People v.

Pitsonbarger, 205 Ill. 2d 444, 455 (2002). Proceedings under the Act are divided into three stages.

People v. Janusz, 2024 IL App (2d) 220348, ¶ 21. At the first stage, the trial court independently

reviews the petition and, under section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West

2020)), must dismiss the petition if it is frivolous or patently without merit, i.e., if it has no arguable

basis in fact or law. Janusz, 2024 IL App (2d) 220348, ¶ 21. Section 122-2 of the Act (725 ILCS

5/122-2 (West 2020)) provides that the petition “shall have attached thereto affidavits, records, or

other evidence supporting its allegations or shall state why the same are not attached.” The failure

to comply with this requirement is grounds for summary dismissal of the petition. People v.

Delton, 227 Ill. 2d 247, 254-55 (2008).

¶ 21 It is well established that “[t]he Act contemplates the filing of only a single petition.”

People v. Jackson, 2021 IL 124818, ¶ 27. The Act requires leave of court for filing a successive

petition. 725 ILCS 5/122-1(f) (West 2020). Section 122-1(f) of the Act (id.) provides, in pertinent

part:

“Leave of court may be granted only if a petitioner demonstrates cause for his or her failure

to bring the claim in his or her initial post-conviction proceedings and prejudice results

from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by

identifying an objective factor that impeded his or her ability to raise a specific claim during

his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by

demonstrating that the claim not raised during his or her initial post-conviction proceedings

so infected the trial that the resulting conviction or sentence violated due process.”

-6- ¶ 22 The defendant has the burden of making a prima facie showing of cause and prejudice to

justify filing a successive petition. See People v. Bailey, 2017 IL 121450, ¶¶ 48-49. As our

supreme court has explained, “To meet the cause-and-prejudice test for a successive petition

requires the defendant to ‘submit enough in the way of documentation to allow a circuit court to

make that determination.’ ” People v. Smith, 2014 IL 115946, ¶ 35 (quoting People v. Tidwell, 236

Ill. 2d 150, 161 (2010)). Furthermore, because “the cause-and-prejudice test for a successive

petition involves a higher standard than the first-stage frivolous or patently without merit standard

that is set forth in section 122-2.1(a)(2) of the Act” (id. ¶ 35), a defendant cannot show prejudice

based on the failure to raise a claim in the initial petition if the claim would have been summarily

dismissed had it been raised. We review de novo the denial of leave to file a successive petition

alleging cause and prejudice. People v. Robinson, 2020 IL 123849, ¶ 39.

¶ 23 Whether there is cause for defendant’s failure to bring the surveillance-video claim in his

initial petition hinges on whether he established “an objective factor” based on his alleged reliance

on Lambert’s representations about his qualifications and his reassurances that the trial court would

consider the surveillance videos despite the failure to include them with the petition. Defendant

cites no case in which the acts or omissions of a non-attorney assisting a postconviction defendant

have been deemed cause for a successive petition. However, defendant contends that a case that

rejected such an argument—People v. Williams, 394 Ill. App. 3d 236 (2009)—is “instructive.”

Interestingly, it was Lambert who assisted the defendant in Williams with his initial postconviction

petition. Id. at 241.

¶ 24 The defendant in Williams contended that he had cause for filing a successive petition

because Lambert did not raise certain issues in the initial postconviction petition. Id. at 244. The

successive petition was accompanied by an affidavit from Lambert, who stated that he omitted the

-7- issues because he was “not getting along” with the defendant and he believed that if he did just

enough to “ ‘get by,’ ” the defendant would not notice that the issues had been omitted. Id. at 241.

In rejecting the defendant’s argument that he had shown cause for filing a successive petition, the

Williams court relied on People v. Lander, 215 Ill. 2d 577 (2005), which dealt not with the issue

of cause for filing a successive petition, but rather with the applicability of a provision of the Act

excusing a defendant’s failure to timely file a postconviction petition if the failure is not due to the

defendant’s culpable negligence. Id. at 586 (citing 725 ILCS 5/122-1(c) (West 2000)).

¶ 25 In Lander, the defendant blamed his untimely petition on several individuals at his

correctional facility—“ ‘jailhouse lawyers,’ ” a “law clerk,” and a “ ‘librarian or paralegal’ ”—

who allegedly misinformed him of the filing deadline for the petition. Id. at 587. The defendant

relied on People v. Rissley, 206 Ill. 2d 403, 421 (2003), which held that the defendant’s reliance

on his direct appeal counsel’s advice about his postconviction petition’s due date was not culpably

negligent. The Rissley court explained that “[the] [d]efendant’s conduct cannot fairly be labeled

blamable or censorious, nor can it be said that [the] defendant’s actions evince an indifference to

the consequences.” Id. The defendant “remained in constant contact with his direct appeal

counsel, whose advice and interpretation of the statute [the] defendant had no reason to question.”

Id. However, the Lander court concluded that Rissley’s reasoning did not apply to reliance on

“jailhouse lawyers, a prison law clerk, [or] a law librarian or paralegal,” absent an allegation that

those individuals “had any particular training in postconviction matters providing them with

specialized knowledge of the filing deadline for a postconviction petition.” Lander, 215 Ill. 2d at

588.

-8- ¶ 26 Informed by these decisions, the Williams court held that the defendant’s reliance on

Lambert to draft his initial petition was not cause for failure to raise the omitted issues. Williams,

394 Ill. App. 3d at 245. The court reasoned as follows:

“While the defendant alleges that he relied on Mr. Lambert to raise the claims in

his original petition that he now seeks to raise in his subsequent petition, there are no

allegations as to any expertise Mr. Lambert possessed in postconviction matters.

Moreover, Mr. Lambert stated in his affidavit that he did not raise [certain] claims ***,

despite the fact that the defendant had told Mr. Lambert that he wanted [them] raised. The

original postconviction petition states that it was ‘prepared and argued by’ Mr. Lambert.

However, the petition is signed by the defendant. While Mr. Lambert averred that the

defendant would not discover or know the difference, he did not state that he prevented the

defendant from reading the petition or that he told the defendant that the petition contained

all the claims the defendant wished raised. Likewise, the defendant did not allege that he

did not read or was prevented from reading the petition, at which point he would have

discovered that Mr. Lambert did not raise all of the claims as the defendant had instructed.”

Id.

¶ 27 Defendant argues that a different result is called for here because Lambert claimed to be a

licensed paralegal, defendant paid him to prepare the petition, and defendant “lacked sufficient

English skills to prepare the petition on his own or comprehend complex legal terminology.” We

disagree. By drawing analogy to Lander—which involved the question of whether failure to

timely file a postconviction petition was culpably negligent—Williams implicitly held that cause

for raising a claim in a successive petition does not exist if the failure to raise the claim was due

to the defendant’s culpable negligence. Here, the implicit premise of defendant’s argument is that,

-9- unlike in Williams, his reliance on Lambert was not culpably negligent. However, we would fall

prey to a logical fallacy if we simply inverted Williams’s reasoning to hold that cause necessarily

exists in the absence of culpable negligence. 1

¶ 28 In the present case, even if defendant’s reliance on Lambert’s assurances was not culpably

negligent, defendant was guilty of at least simple negligence—by which we mean the failure to

exercise due care—unless he confirmed Lambert’s credentials or there were circumstances

otherwise establishing that it was reasonable to entrust Lambert with the task of preparing the

postconviction petition. See Lander, 215 Ill. 2d at 587 (culpable negligence is more serious than

ordinary negligence and is akin to recklessness); People v. LaPointe, 365 Ill. App. 3d 914, 925

(2006) (the defendant’s reliance “on the legal advice of a prison law clerk, with no apparent

expertise in the area of post-conviction procedure,” was not cause under section 122-1(f) of the

Act). However, defendant alleges nothing to suggest that his reliance on Lambert was based on

anything other than his credulous acceptance of Lambert’s claim that he was a “licensed” paralegal.

We note that Illinois does not license paralegals, and, by definition, paralegals work under the

direction of attorneys (see 5 ILCS 70/1.35 (West 2020)). Defendant did not allege that Lambert

worked under the direction of attorneys, much less that such supervision could have extended to a

“side” agreement to prepare defendant’s petition in exchange for personal remuneration. To the

extent defendant claims “subjective ignorance” of Illinois requirements regarding paralegals, such

ignorance is no excuse. See People v. Evans, 2013 IL 113471, ¶ 13.

1 The fallacy is known as “denying the antecedent.” See generally Stephen M. Rice, Conventional

Logic: Using the Logical Fallacy of Denying the Antecedent as a Litigation Tool, 79 Miss. L. J. 669, 677-

82 (2010).

- 10 - ¶ 29 The question then (which Williams does not address) is whether defendant’s negligence in

entrusting preparation of his initial postconviction petition to Lambert negates the existence of

cause. We conclude that it does. Cause depends on the existence of “an objective factor that

impeded [the defendant’s] ability to raise a specific claim during his or her initial post-conviction

proceedings.” 725 ILCS 5/122-1(f) (West 2020). “An ‘objective’ impediment is one that is

‘external to the defense.’ ” People v. Brandon, 2021 IL App (1st) 172411, ¶ 45 (quoting

Pitsonbarger, 205 Ill. 2d at 462). A pro se petitioner’s negligent decisions are in no sense external

to the defense but rather lie at the very core of the defense. We must stress, however, that the

inverse is not necessarily true; we express no opinion on whether the omission of a claim from a

petition drafted by one inmate for another is external to the defense when the latter exercised due

care in choosing the former to do so.

¶ 30 Even if defendant had shown cause for the omission of the claim in question, he nonetheless

failed to show prejudice. In assessing prejudice, we must consider the strength of the evidence

against defendant, which, in this case, includes defendant’s own letter expressing remorse for his

conduct and thereby reflecting consciousness of his guilt. More importantly, the surveillance

videos on which defendant’s claim is based are not part of the record, and the only indication of

what the videos show is found in the petition’s allegations and defendant’s attached, notarized

Statement. We construe the latter as an affidavit. However, it does not qualify under section 122-

2 as corroboration of the petition’s allegations about the surveillance videos. A defendant cannot

meet section 122-2’s requirement by simply “ ‘transcribing the allegations in [the] petition into

another document called an affidavit.’ ” People v. Hunt, 2023 IL App (2d) 220153, ¶ 23 (quoting

People v. Moore, 2022 IL App (1st) 192290, ¶ 27). Not only did defendant fail to provide adequate

corroboration for his allegations about the surveillance videos, he also failed to indicate what effort

- 11 - he made to obtain such support. Thus, had defendant raised the claim in his initial postconviction

petition, it would have been subject to summary dismissal due to the unexplained absence of

affidavits or other evidence supporting its allegations. As noted, the failure to raise a claim in an

initial postconviction petition cannot satisfy the prejudice requirement if the claim would have

been summarily dismissed. See Smith, 2014 IL 115946, ¶ 35.

¶ 31 That defendant’s petition designated the unsupported allegations as an “offer of proof” does

not change this result. The purpose of an offer of proof is to make a record for a reviewing court

to determine the admissibility of evidence excluded by the trial court and to gauge the harm from

its exclusion. See Pardilla v. Village of Hoffman Estates, 2023 IL App (1st) 211580, ¶ 43. Here,

the trial court did not exclude from defendant’s successive petition any evidence of the contents of

the surveillance videos. Rather, defendant simply failed to provide any such evidence. Defendant

cannot circumvent the requirement of substantiating the allegations of his petition (or explaining

his failure to do so) by inaccurately framing the allegations as an offer of proof.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 34 Affirmed.

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