People v. Conway

2021 IL App (1st) 182158-U

Opinion

2021 IL App (1st) 182158-U

SIXTH DIVISION November 12, 2021

No. 1-18-2158

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

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County ) v. ) No. 04 CR 3241 ) ELBERT CONWAY, ) The Honorable ) Peggy Chiampas, Petitioner-Appellant. ) Judge, presiding.

PRESIDING JUSTICE PIERCE delivered the judgment of the court. Justices Harris and Mikva concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court denying petitioner’s motion for leave to file a successive postconviction petition.

¶2 Petitioner, Elbert Conway, appeals from the circuit court’s denial of his pro se motion for

leave to file a successive postconviction petition. We affirm. No. 1-18-2158

¶3 I. BACKGROUND

¶4 At a December 12, 2005, bench trial, 1 Chicago police officer Richard Federici testified that

on January 2, 2004, he and his partner received a radio dispatch reporting a narcotics sale near

West 105th Street and South Eggleston Avenue along with a description of the offender. Officer

Federici arrived in that area and observed petitioner reach toward the windowsill of 10451 South

Eggleston Avenue and remove a small plastic bag. Officer Federici exited his vehicle and saw

petitioner drop the plastic bag. Officer Federici’s partner detained petitioner while Officer Federici

retrieved the dropped item: a small, knotted plastic bag that contained a white rock substance, later

identified as cocaine. He then retrieved three more small, knotted plastic bags and a ziplock bag

from the windowsill, all containing cocaine. Petitioner did not present any evidence or testify on

his own behalf. During closing argument, defense counsel argued Officer Federici saw defendant

drop something, but he did not search the area where the item was dropped and did not conclusively

show defendant touching or controlling the items on the windowsill. The trial judge found Officer

Federici’s testimony “clear and consistent and convincing,” and found petitioner guilty. He was

sentenced to six years’ imprisonment to run consecutive to petitioner’s 25-year prison sentence for

attempted murder in a separate case. We affirmed petitioner’s conviction on direct appeal over his

contention that the circuit court abused its discretion by denying a continuance. People v. Conway,

1-06-0320 (2008) (unpublished order under Illinois Supreme Court Rule 23).

¶5 Petitioner filed a postconviction petition alleging ineffective assistance of trial counsel for

failing to allow petitioner to testify at trial, and further alleging he was denied his choice of counsel

1 The record on appeal does not contain a complete transcript of petitioner’s trial. Portions of Officer Federici’s trial testimony were attached as an exhibit to petitioner’s postconviction petition, but the record does not contain any of defense counsel’s cross-examination or closing argument. The petitioner’s and the State’s accounts of the trial evidence in their appellate briefs are substantially similar, and the issue before us does not require a detailed understanding of defense counsel’s cross-examination or closing argument.

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at trial. The circuit court dismissed the petition at the second stage and petitioner appealed. We

granted the Office of the State Appellate Defender’s motion to withdraw pursuant to Pennsylvania

v. Finley, 451 U.S. 551 (1987), and affirmed the circuit court’s dismissal of the postconviction

petition. People v. Conway, 1-12-0501 (2013) (unpublished summary order under Illinois Supreme

Court Rule 23(c)).

¶6 In June 2018, petitioner filed a motion for leave to file a successive postconviction petition,

which is the subject of this appeal. He alleged that, prior to his trial, the State committed a Brady

violation by failing to disclose Officer Federici’s complaint history and a federal lawsuit filed in

2000 containing allegations that Officer Federici “unlawfully searched [the plaintiff] and then

fabricated evidence of narcotics.” He also argued his trial counsel was ineffective for failing to

“request[ ] or search[ ] for any documents that could be used to discredit [O]fficer Federici’s

credibility at trial.” Petitioner asserted that, after his trial counsel was unable to locate potential

defense witnesses, his trial counsel told him his “testimony alone would not make a difference at

trial had [petitioner] been allowed to testify,” and that his counsel must not have investigated the

lawsuit. Finally, petitioner alleged there was newly discovered evidence, namely a 2014 federal

lawsuit in which the City of Chicago paid $205,000 due to Officer Federici’s and eight other police

officers’ illegal strip search and planting of narcotics. Petitioner alleged he was unable to discover

any of this evidence earlier because the Chicago Police Department repeatedly ignored or denied

his requests for Officer Federici’s complaint history until 2016. Petitioner further alleged he was

prejudiced because he could have used Officer Federici’s complaint history to impeach the

officer’s credibility at trial. Attached to the motion for leave to file a successive postconviction

petition were numerous exhibits, including Officer Federici’s complaint history documenting 21

alleged incidents between 1998 and 2016, a 2000 federal complaint against Officer Federici

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alleging unlawful arrest, and a newspaper article regarding the settlement in 2014 federal lawsuit,

as well as petitioner’s affidavit.

¶7 On July 27, 2018, the circuit court denied petitioner’s motion, finding he could not meet

the cause and prejudice test. Petitioner filed a timely notice of appeal.

¶8 II. ANALYSIS

¶9 On appeal, petitioner argues the circuit court erred by denying his motion for leave to file

a successive postconviction petition because he established cause and prejudice. As for cause, he

argues he could not have raised his Brady and ineffective assistance of counsel claims earlier

because the State failed to disclose Officer Federici’s complaint history, and his trial counsel never

conducted any investigation into Officer Federici’s complaint history or the lawsuits against him.

The Chicago Police Department refused to disclose Officer Federici’s complaint history until

2016. On the issue of prejudice, he contends his trial counsel was ineffective for failing to

investigate Officer Federici’s complaint history, which would have led to impeachable material.

Petitioner argues he repeatedly told his trial counsel that Officer Federici was lying, but counsel

took no steps toward finding impeaching material. He also contends his motion established

prejudice regarding his Brady claim where evidence of the complaint history would have been

favorable to him, the State knew or should have known of Officer Federici’s complaint history,

and the complaint history could have resulted in a different outcome at trial where Officer Federici

was the sole witness. We note petitioner does not allege the complaint history is exculpatory;

instead, he only argues the records could have been used to impeach Officer Federici’s credibility.

¶ 10 The Post-Conviction Hearing Act (Act) provides a mechanism for criminal defendants to

assert a substantial denial of their constitutional rights. 725 ILCS 5/122-1 et seq. (West 2018). The

Act generally contemplates one postconviction petition. Id. § 122-3. A court may, however, grant

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a petitioner leave to file a successive postconviction petition where the petitioner can satisfy the

“cause and prejudice” test. Id. § 122-1(f); People v. Davis, 2014 IL 115595, ¶ 14. The petitioner

must identify an objective factor that impeded the ability to raise a specific claim in the first

postconviction petition proceedings and demonstrate that the new claim “so infected the trial that

the resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f). A petitioner must

satisfy both prongs to prevail. Davis, 2014 IL 115595, ¶ 14.

¶ 11 Whether a petitioner has satisfied the cause and prejudice test is a legal question, and the

circuit court must determine whether the motion for leave to file a successive postconviction

petition adequately alleges facts demonstrating cause and prejudice. People v. Bailey, 2017 IL

121450, ¶ 24. The circuit court cannot make factual or credibility determinations; instead, the well-

pleaded factual allegations, taken together with the supporting affidavits, that are not positively

rebutted by the record are taken as true. People v. Robinson, 2020 IL 123849, ¶ 49. We review

de novo the circuit court’s denial of a motion for leave to file a successive postconviction petition.

Id. ¶ 39.

¶ 12 Petitioner argues his petition satisfied the cause requirement because he could not have

raised a Brady or ineffective assistance of counsel claim until he knew the contents of Officer

Federici’s complaint history. His trial counsel never obtained the complaint history, and the

Chicago Police Department did not respond to his FOIA request until 2016. The State responds

that this issue is forfeited because petitioner was aware of the existence of this potential claim

because “he was present during the recovery of the narcotics he was charged with; yet he failed to

raise it in his direct appeal or his first post-conviction petition.”

¶ 13 We agree with petitioner that he adequately alleged cause for not raising this issue

previously. Taking the allegations in his motion as true—as we must—his trial counsel never

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sought Officer Federici’s complaint history before trial, and the State never voluntarily produced

the complaint history. In other words, petitioner argues the complaint history was never made a

part of the record because of his trial counsel’s failure to obtain it and the State’s failure to produce

it. Nothing in the record suggests petitioner had any evidence to support either a Brady or

ineffective assistance of counsel claim prior to obtaining the records in 2016. Further, petitioner

alleged that he had attempted to obtain the records, but his previous requests were either ignored

or denied. We find petitioner’s motion adequately alleged cause.

¶ 14 We find, however, that petitioner did not adequately allege prejudice. To establish a

prima facie Brady claim, petitioner needed to allege facts showing “(1) the undisclosed evidence

is favorable to the accused because it is either exculpatory or impeaching; (2) the evidence was

suppressed by the State either willfully or inadvertently; and (3) the accused was prejudiced

because the evidence is material to guilt or punishment.” People v. Beaman, 229 Ill. 2d 56, 73-74

(2008). Here, petitioner failed to allege facts supporting the first element of a Brady claim.

Attached to his motion was Officer Federici’s complaint history showing 14 complaints between

June 1998 and December 2005, comprising all the complaints that occurred prior to petitioner’s

trial. Petitioner, however, did not allege—or present any documentation showing—that any of the

complaints were relevant to the issues in his case, any of the complaints were sustained, or Officer

Federici was disciplined because of any complaint against him. As noted above, petitioner argues

the complaint history would have been used to impeach Officer Federici’s credibility at trial. But

as this court has observed, “[m]ere allegations of misconduct, without evidence the officer was

ever disciplined, are not admissible as impeachment and do not raise an inference of bias or motive

to testify falsely.” People v. Porter-Boens, 2013 IL App (1st) 111074, ¶ 20. Petitioner failed to

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carry his burden of showing that the complaint history contained any material evidence that would

have been admissible at trial for impeachment purposes.

¶ 15 Petitioner argues the complaint history does not conclusively show whether Officer

Federici was disciplined or whether the complaints were sustained. He asserts there is no key or

legend explaining the notations and abbreviations on the complaint history, and “these are the

kinds of questions that deserve exploration and development at an evidentiary hearing, or at a

minimum, further investigation by post-conviction counsel at second stage proceedings.” We

disagree. As the movant, it was petitioner’s burden to plead sufficient facts tending to establish a

prima facie showing of cause and prejudice. Bailey, 2017 IL 121450, ¶ 24. Simply alleging that a

police officer had an undisclosed complaint history that is now available is insufficient; petitioner

needed to allege facts that the undisclosed complaint history contained material evidence that was

exculpatory or impeaching. Here, petitioner failed to include any evidence tending to show that

Officer Federici had been disciplined for conduct like the conduct alleged in petitioner’s motion,

or that any of the prior complaints against him had been sustained in any manner.

¶ 16 Furthermore, petitioner identified a 2000 federal lawsuit filed against Officer Federici

alleging it related to an illegal search. Petitioner alleged in his motion that Officer Federici was

accused of fabricating narcotics evidence, but the federal complaint attached to his motion alleged

an illegal search followed by an arrest in which Officer Federici failed to give Miranda warnings.

Additionally, the federal complaint would not have been admissible for impeachment purposes

because the allegations there—an illegal search—are unrelated to the petitioner’s primary

allegation that Officer Federici planted the drugs resulting in petitioner’s conviction. See People

v. Davis, 193 Ill. App. 3d 1001, 1005-06 (1990) (“[W]e find no case where mere evidence of a

civil suit against a law-enforcement officer charging dereliction of duty unrelated to the case in

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issue has been held to be proper impeachment.”). Finally, petitioner points to a 2014 federal lawsuit

in which the City of Chicago paid $205,000 to settle claims that nine police officers, including

Officer Federici, conducted an illegal strip search and planted narcotics in 2013. But that lawsuit

postdated petitioner’s trial by nine years, and petitioner makes no argument as to how the

underlying 2013 incident could have been material at the time of petitioner’s 2005 trial.

¶ 17 In sum, petitioner failed to adequately allege prejudice to support filing a successive

postconviction petition asserting a Brady violation because he failed to adequately allege facts

tending to show that undisclosed complaint history contained any evidence that could have been

used for impeachment purposes. His ineffective assistance of counsel claim fails for the same

reason, since he cannot show he was prejudiced by his trial counsel’s failure to investigate the

complaint history.

¶ 18 III. CONCLUSION

¶ 19 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 20 Affirmed.