2024 IL App (1st) 191101-C No. 1-19-1101 Second Division July 9, 2024 ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
) Appeal from the THE PEOPLE OF THE STATE OF ) Circuit Court of ILLINOIS, ) Cook County. ) Plaintiff-Appellee, ) ) No. 10 CR 1910 v. ) ) SHAMAR GRIFFIN, ) Honorable ) Michael B. McHale Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion. OPINION
¶1 On June 16, 2011, defendant-appellant Shamar Griffin pled guilty to one count of first
degree murder and was sentenced to 35 years’ imprisonment. On February 4, 2019, defendant filed
a motion for leave to file a successive postconviction petition pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), which advanced claims of ineffective
assistance of counsel and actual innocence supported by affidavits from himself, Lavonte Moore,
and Perrier Myles. The circuit court denied leave to file the successive postconviction petition.
Defendant appealed, arguing that (1) the court incorrectly held that he was not permitted to pursue No. 1-19-1101
a claim of actual innocence after entering a guilty plea and he had set forth a colorable claim of
actual innocence and (2) he demonstrated both cause and prejudice for his claim of ineffective
assistance of counsel.
¶2 In May 2022, we reversed, finding that defendant had set forth a colorable claim of actual
innocence based on the affidavits of Moore and Myles, and remanded the entire petition to the trial
court for further proceedings under the Act. 2022 IL App (1st) 191101-B. Our supreme court
granted the State’s petition for leave to appeal, and on March 21, 2024, the supreme court affirmed
our judgment as to defendant’s claim of actual innocence but reversed the portion of the judgment
declining to review defendant’s claim of ineffective assistance of counsel and remanding the entire
postconviction petition. 2024 IL 128587, ¶¶ 63-73. The supreme court remanded to this court “for
a determination of whether [defendant] satisfied the cause-and-prejudice test as to his ineffective
assistance of counsel claim.” Id. ¶ 73. In accordance with the supreme court’s direction, we vacated
in part our May 10, 2022, opinion in this case and now consider defendant’s claim of ineffective
assistance of counsel. As to defendant’s claim of ineffective assistance of counsel, we find that
defendant cannot establish the requisite prejudice.
¶3 Thus, we affirm the trial court’s denial of defendant’s motion for leave to file a successive
postconviction as to his ineffective assistance of counsel claim but, in accordance with the supreme
court’s mandate, remand for further proceedings under the Act as to his claim of actual innocence.
¶4 I. BACKGROUND
¶5 Defendant was charged with 29 counts related to two shootings that occurred on June 26,
2009. For the shooting death of Milissa Williams, he was charged with 24 counts of first degree
murder. For the shooting of Otis Houston, he was charged with four counts of attempted first
degree murder and one count of aggravated battery with a firearm. Assistant Public Defender
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(APD) Robert Strunck represented defendant throughout the proceedings. On March 23, 2011,
APD Strunck reported to the court that he had negotiated with the State and had tendered the
State’s offer to defendant.
¶6 On May 10, 2011, defendant requested the circuit court to appoint new counsel, stating that
APD Strunck was “ineffective” and had only visited him once during the 18 months he had been
in jail. APD Strunck responded that he had spent multiple hours at the jail with defendant and had
spoken to him on the phone on multiple occasions. APD Strunck had also informed defendant that
it was a very difficult case and explained that defendant could review the police reports in APD
Strunck’s presence later that week. The court determined that there was nothing to indicate that
APD Strunck could not continue to effectively represent defendant. The court further explained to
defendant that it did not have the ability to assign a different public defender and that defendant’s
only other option was to hire private counsel.
¶7 On June 16, 2011, defendant accepted the State’s offer to plead guilty to one count of first
degree murder in exchange for a 35-year prison term. At the time defendant entered the plea, he
acknowledged that he was giving up his right to trial and his right to a presentence investigation
report and that no one had threatened him or promised him anything in exchange for the plea. He
signed a written waiver form stating the same.
¶8 The State presented the factual basis for defendant’s plea as follows.
¶9 Lavertice Harmon provided a statement that he was playing dice on North LeClaire Avenue
in Chicago with Leroy Battle, Kevin Barnes, and others around 3 a.m. when defendant arrived in
a dark-colored vehicle with its headlights off. Defendant, who was armed with a handgun, told
Harmon that the car was stolen, that Williams had stabbed defendant in the past, and that he was
“fixin’ to merk that b***,” which Harmon knew meant to kill Williams. Harmon asked defendant
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to wait so that he could get his friends out of the area, and defendant drove around the block. In
the meantime, Harmon warned Williams and Houston. As Williams and Houston began walking
toward LaFollette Park, defendant returned, got out of his car, and approached Williams. Harmon
did not hear what defendant and Williams said to one another, but he did observe defendant fire a
single shot at Williams and multiple shots at Houston. Defendant fired once more at Williams
before getting back in his car and driving away.
¶ 10 Houston would testify that, at around 3:30 a.m. on June 26, 2009, defendant shot Williams
twice near 5101 West Hirsch Street in Chicago, then chased him down and shot him four times,
three times in the bicep and once in the right side of his chest. Houston would also testify that he
identified defendant in a physical lineup.
¶ 11 The State also submitted the grand jury testimony of Barnes and Battle, who both identified
defendant as the shooter. Further, the State submitted the grand jury testimony of Carlton Winters,
who testified that defendant admitted to the shooting in a phone conversation. 1
¶ 12 Though not part of the State’s factual basis, defendant’s confession to the police on
December 22, 2009, is relevant to the disposition of this appeal, and thus we summarize that
statement, as it is found in the police report, which is in the record on appeal. Defendant stated that
he was stabbed by Williams in April 2009 and, on the day of the shooting, he was only trying to
send her a message, not kill her. He admitted that he fired multiple shots at both Williams and
Houston, though he claimed he did not know their names prior to the shooting.
¶ 13 The circuit court accepted defendant’s plea and, in accordance with the negotiations,
sentenced him to 35 years’ imprisonment on June 16, 2011. The court advised defendant of his
1 None of the referenced grand jury testimony transcripts appear in the record on appeal.
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right to appeal and informed him that he would first have to file a motion to withdraw his guilty
plea within 30 days.
¶ 14 Defendant did not file a timely motion to withdraw his plea. He filed a notice of appeal on
August 31, 2011, which the circuit court denied. On November 16, 2011, this court allowed
defendant’s late notice of appeal. On September 6, 2012, we granted the parties’ agreed motion
for summary remand and directed the clerk of the circuit court to modify certain monetary
assessments imposed against defendant. People v. Griffin, No. 1-11-3210 (2012) (unpublished
summary order under Illinois Supreme Court Rule 23(c)).
¶ 15 On September 17, 2017, defendant filed an initial pro se postconviction petition in which
he claimed actual innocence based on his own affidavit and documents obtained through a
Freedom of Information Act (FOIA) request. See 5 ILCS 140/1 et seq. (West 2016). In particular,
defendant alleged that his inculpatory statement should have been suppressed because the police
officers who arrested him in Atlanta, Georgia, did not have a warrant or probable cause. He also
alleged mistreatment while in police custody and that for 30 hours he “was threatened and forced
to confess.” Finally, he claimed that his counsel was ineffective for failing to investigate his illegal
arrest. The circuit court summarily dismissed the petition. On appeal to this court, defense counsel,
appointed from the Office of the State Appellate Defender, filed a motion to withdraw pursuant to
Pennsylvania v. Finley, 481 U.S. 551 (1987). This court granted the motion as “there [were] no
issues of arguable merit to be pursued on appeal.” People v. Griffin, No. 1-18-0490 (2020)
(unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 16 On February 4, 2019, while his initial postconviction petition was still pending before this
court, defendant sought leave to file the successive postconviction petition that is the subject of
this appeal.
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¶ 17 The successive petition first makes a claim of ineffective assistance of counsel, alleging
that his trial counsel, APD Strunck, was ineffective for failing to investigate Butler as the actual
shooter, which defendant instructed him to do “after 14 months” of awaiting his trial because he
“was hearing around the jail that was the person who killed [Williams].” 2 Defendant stated that
APD Strunck informed him that “since [he] confessed to the murder there is no defense that can
help [him],” and defendant informed trial counsel that his confession was false and was the result
of duress, psychological abuse, and mental coercion.
¶ 18 The petition then sets forth a claim of actual innocence based on the newly discovered
evidence contained in the affidavits of Moore and Myles, both of whom spoke with defendant in
prison. In his petition, defendant alleged that he did not know about the information Moore and
Myles had until he spoke with them in prison.
¶ 19 Moore averred that he witnessed the shootings while sitting in his parked car across from
LaFollette Park. Moore stated that he observed Jerrell Butler emerge from an alley and walk past
his car toward a group of people. As Butler passed Moore’s car, he said “wassup” to Moore, and
then he pulled out a gun from his waistband. Moore heard five gunshots and saw Butler run past
his car again. Moore never mentioned this to anyone before encountering defendant in prison in
November 2018 because he was afraid of retaliation from Butler and Butler’s friends.
¶ 20 Myles, who was incarcerated at the time of the shooting, averred that he was aware that his
friends, Cornell McWilliams, Barnes, and Harmon, witnessed the shooting and informed the police
that defendant was the shooter. He further averred that after his release he spoke with McWilliams
and was told that defendant was a scapegoat “so that [Harmon] and [Barnes’s] drug business
2 We note that defendant does not identify the source of this information and now claims that he learned of Butler’s involvement specifically from Moore and Myles in prison after he pled guilty.
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[could] continue without further pressure from Chicago police.” McWilliams admitted to Myles
that they did not see the shooter’s face but said he was light-skinned with braids. This description
confused Myles because he knew that defendant is dark-skinned with dreadlocks. According to
Myles, McWilliams further stated that he, Harmon, and Barnes contacted the police to make false
accounts identifying defendant as the shooter and that he later learned that Houston owed Butler
money from drug sales and he believed that Butler was the actual shooter because Houston owed
Butler a drug debt. Myles was incarcerated again, and on June 29, 2018, he informed defendant of
the conversation with McWilliams.
¶ 21 Defendant’s petition also contains a section titled “Newly Discovered Evidence of Police
Misconduct” of Chicago police detectives John Folino and Tim McDermott and listed 11 lawsuits,
which were attached to the petition. Defendant makes no arguments regarding the police
misconduct lawsuits on appeal.
¶ 22 On April 5, 2019, the circuit court denied defendant’s motion for leave to file his successive
petition. Citing People v. Simmons, 388 Ill. App. 3d 599 (2009), the court stated that “petitioner
cannot make a claim of actual innocence after a proper constitutionally compliant guilty plea.” The
court further noted that defendant did not include any allegations that he was coerced into the plea.
The court made no reference to defendant’s claim of ineffective assistance of counsel.
¶ 23 On appeal, we found defendant had presented a colorable claim of actual innocence and
reversed and remanded the dismissal of his petition in its entirety without considering his
ineffective assistance claim. 2022 IL App (1st) 191101-B, ¶ 68. Our supreme court affirmed our
judgment as to defendant’s actual innocence claim but reversed and remanded in part for
consideration of whether defendant’s ineffective assistance claim could satisfy the cause-and-
prejudice test. 2024 IL 128587, ¶ 73. We now consider that question.
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¶ 24 II. ANALYSIS
¶ 25 Defendant argues that he established cause and prejudice for his ineffective assistance of
counsel claim, which alleged counsel’s failure to investigate whether Butler was the actual shooter
before allowing defendant to enter a guilty plea. As such, defendant contends that this court should
remand the entirety of his petition for second stage proceedings.
¶ 26 A. The Act
¶ 27 The Act provides a method for a criminal defendant to collaterally attack a conviction by
asserting that it resulted from a “substantial denial” of his constitutional rights. 725 ILCS 5/122-
1(a)(1) (West 2018); People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act contemplates the filing of
only one petition without leave of court. People v. Lusby, 2020 IL 124046, ¶ 27. There are two
bases upon which the bar against successive petitions will be relaxed: (1) where the petitioner can
establish cause and prejudice for the failure to assert a postconviction claim in an earlier
proceeding or (2) where the petitioner asserts a fundamental miscarriage of justice based on his
actual innocence. People v. Robinson, 2020 IL 123849, ¶ 42. Under either basis at this stage, we
must accept as true all well-pled allegations that are not positively rebutted by the record, and we
may not make fact or credibility determinations. Id. ¶ 45. Our review of the denial of leave to file
a successive petition is de novo. Id. ¶¶ 39-40. As previously noted, the supreme court affirmed our
reversal of the dismissal of defendant’s actual innocence claim (2024 IL 128587, ¶ 73), so we turn
our attention to cause and prejudice with regard to his ineffective assistance claim.
¶ 28 B. Ineffective Assistance of Counsel
¶ 29 In defendant’s successive petition, he alleged that plea counsel was ineffective for failing
to investigate Butler as an alternate suspect, and he claimed that he informed counsel that, while
he was in jail, he heard “around the jail” that Butler was the person who killed Williams. According
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to defendant, counsel informed defendant that his confession was fatal to any defense, to which
defendant responded that his confession was false and coerced, as he was detained for 30 hours by
Detectives Folino and McDermott. He supported this claim with the same affidavits from Moore
and Myles and a list of 11 lawsuits and corresponding complaints against Detectives Folino and
McDermott. 3
¶ 30 A defendant must make a prima facie showing of both cause and prejudice in order to be
granted leave to file a successive postconviction petition. See 725 ILCS 5/122-1(f) (West 2018);
People v. Vidaurri, 2023 IL App (1st) 200857, ¶ 33. To establish cause, defendant must identify
“an objective factor that impeded his or her ability to raise a specific claim during his or her initial
post-conviction proceedings.” 725 ILCS 5/122-1(f) (West 2018). To establish prejudice, defendant
must demonstrate “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.” Id. We reiterate
that leave should be denied “when it is clear, from a review of the successive petition and the
documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter
of law or where the successive petition with supporting documentation is insufficient to justify
further proceedings.” People v. Smith, 2014 IL 115946, ¶ 35. This court reviews the denial of leave
3 We note that defendant does not appear to be making a separate claim that his plea was involuntary because his confession was coerced; rather he suggests that his allegation that counsel should have investigated Butler should be “[t]aken in conjunction with his assertion that he falsely confessed to the charges.” However, he makes no particularized argument, in his petition or in his brief, regarding the police misconduct lawsuits and his allegedly coerced confession. Thus, to the extent that defendant separately claims that counsel’s erroneous or unreasonable advice, in light of his assertion that his confession was coerced, resulted in an involuntary guilty plea, we find that this claim is merely a conclusory allegation with no supporting argument and is therefore forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); see also People v. Valdez, 2016 IL 119860, ¶ 29 (holding that “[a] conclusory allegation that a defendant would not have pleaded guilty and would have demanded a trial is insufficient to establish prejudice”); People v. Williams, 376 Ill. App. 3d 875 (2007), judgment aff’d, 235 Ill. 2d 178 (2009) (where the defendant’s discussion of an issue in his brief was so lacking in analysis that it need not be considered).
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to file based on the failure to establish cause and prejudice de novo. Robinson, 2020 IL 123849,
¶ 39.
¶ 31 As to cause, defendant asserts that he could not have brought this claim earlier “because
he was unaware that Myles and Moore had information that Butler was the actual shooter until
they divulged it in 2018, nearly nine years after the shooting.” Additionally, he did not know that
Detectives Folino and McDermott had multiple lawsuits against them until he filed a FOIA request
in 2018. As to prejudice, defendant asserts that the affidavits support his allegation that counsel
should have investigated Butler as instructed, the lawsuits against law enforcement demonstrate
that his confession was coerced, and thus, counsel should not have advised him to plead guilty. He
therefore contends that the allegations of the motion, petition, and supporting documentation, taken
as true, “support that [his] plea counsel’s performance was objectively unreasonable and highly
prejudicial, as it resulted in an involuntary guilty plea.”
¶ 32 For the reasons that follow, we conclude that defendant has satisfied the cause prong of the
test but failed to establish the requisite prejudice. Therefore, his ineffective assistance of counsel
claim in his successive petition fails.
¶ 33 We find that the affidavits of Moore and Myles establish cause in this case. Here, as we
described earlier, the affidavits set forth that Moore witnessed the shooting and knew Butler to be
the shooter. Further, based on a conversation with McWilliams, who witnessed the shooting, Myles
learned that defendant was not the shooter and, at the time, the witnesses identified defendant
because “he was the perfect person to blame the murder on.” This information could not have been
discovered earlier where Moore averred that he “never mentioned what [he] saw out of fear of
[Butler] and his friends” and Myles did not have the conversation with McWilliams until 2015.
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These both constitute objective impediments to defendant’s ability to discover this supporting
documentation and promptly raise them in an earlier proceeding.
¶ 34 However, the State asserts that this claim could have been raised in defendant’s initial
postconviction petition because defendant would have been well aware of counsel’s alleged
ineffectiveness at all times following the entry of defendant’s guilty plea. Although it may be true
that defendant could have made this same argument in his initial petition, the advent of Moore and
Myles’s attestations, taken as true, lend the necessary credence for his claim. Had defendant argued
in his initial petition that counsel was ineffective for not investigating Butler without any
supporting documentation, this court likely would have considered the allegation baseless and
would have rejected the claim outright for lack of any support. It hardly comports with notions of
due process and fairness for this court to reject this claim now that defendant has actually acquired
support for the import of counsel’s failure to investigate Butler.
¶ 35 We find support for our position in People v. Johnson, 2019 IL App (1st) 153204, which
defendant cites in his reply brief. There, following a jury trial, the defendant was convicted of first
degree murder and aggravated battery with a firearm in connection with a 1998 shooting. Id. ¶¶ 3-
4. In 2011, the defendant filed a motion for leave to file a pro se successive postconviction petition,
and subsequently, the circuit court docketed the petition and appointed counsel to represent the
defendant. Id. ¶ 21. Later, counsel filed an amended petition, asserting claims of actual innocence
and ineffective assistance of counsel based on trial counsel’s failure to investigate a witness to the
shooting. Id. ¶ 26. An affidavit from this witness, Williams, was attached to the amended petition,
wherein he averred that he witnessed the shooting and the defendant was not the shooter and that
he came forward several years after the shooting when he learned that the defendant had been
found guilty. Id. The defendant also attached his own affidavit, averring that he asked trial counsel
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to send an investigator to the crime scene to find witnesses but counsel did not do so. Id. Another
affidavit was filed later from the defendant’s trial counsel, stating that she could not recall sending
an investigator to the scene of the shooting. Id. ¶ 28. The State filed a motion to dismiss the
petition, which the court granted following a hearing. Id. ¶¶ 27-28.
¶ 36 On appeal, another panel of this court concluded that the trial court erred in dismissing the
successive petition at the second stage under the Act. Id. ¶ 1. First, the court considered whether
the ineffective assistance of counsel claim satisfied the cause-and-prejudice test because the circuit
court below had not made specific findings as to cause and prejudice prior to docketing the petition
and the State sought dismissal based on the defendant’s failure to establish cause and prejudice.
Id. ¶ 37. The court found that the defendant had established cause because Williams did not come
forward until after the defendant’s direct appeal and initial petition. Id. ¶ 39. The court also stated
that, although Williams’s presence at the scene was known, counsel’s failure to investigate this
witness as allegedly directed by the defendant and the defendant’s lack of knowledge as to the
eyewitness’s testimony “relate[d] to his ineffective assistance of counsel claim, not his failure to
raise his claim in an earlier proceeding.” Id. ¶ 40. Similarly, in this case, defendant’s failure to
learn of the information known to Moore and Myles until after 2014 was an “objective factor” that
hindered his ability to adequately set forth his claim of ineffective assistance of counsel in his
initial petition. 725 ILCS 5/122-1(f) (West 2018). Thus, we conclude that defendant established
cause for his ineffective assistance of counsel claim.
¶ 37 We next consider whether defendant adequately alleged prejudice under the Act, i.e.,
whether APD Strunck’s alleged ineffectiveness in failing to investigate Butler as the shooter so
infected the proceedings that defendant’s guilty plea and accompanying sentence violated due
process. We must apply the requirements for claims of ineffective assistance of counsel to
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determine whether prejudice would result from application of the bar against successive
postconviction petitions. See People v. Pitsonbarger, 205 Ill. 2d 444, 464-67 (2002). “To prevail
on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s
performance was deficient and that the deficient performance prejudiced the defendant.” People
v. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To establish deficient performance, a defendant must show that his counsel’s performance fell
below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219 (2004) (citing
Strickland, 466 U.S. at 687). To establish prejudice, “a guilty-plea defendant ‘must show that there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.’ ” People v. Brown, 2017 IL 121681, ¶ 26 (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). “A ‘reasonable probability’ is defined as ‘a probability
sufficient to undermine confidence in the outcome.’ ” People v. Simpson, 2015 IL 116512, ¶ 35
(quoting Strickland, 466 U.S. at 694). A defendant’s failure to satisfy either prong is fatal to a
claim of ineffective assistance of counsel. People v. Jackson, 2020 IL 124112, ¶ 91.
¶ 38 In the case before us, we find that defendant’s claim of ineffective assistance of counsel as
alleged in his successive petition fails to show counsel’s performance was deficient, and thus, he
cannot establish the requisite prejudice for this claim.
¶ 39 In deciding whether counsel’s performance was deficient, the defendant must overcome a
“strong presumption” that his lawyer’s conduct constitutes sound trial strategy and falls within the
wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. A defendant is
entitled to competent, not perfect, representation. People v. Odle, 151 Ill. 2d 168, 173 (1992).
“Attorneys have an obligation to explore all readily available sources of evidence that might
benefit their clients” (People v. Morris, 335 Ill. App. 3d 70, 79 (2002)), and the failure to do so
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“may indicate ineffective assistance of counsel particularly where the witness was known to trial
counsel and his testimony may have been exonerating” (People v. Smith, 341 Ill. App. 3d 530, 544
(2003)). However, “the reasonableness of a decision to investigate is assessed applying a heavy
measure of deference to counsel’s judgment.” People v. Orange, 168 Ill. 2d 138, 149 (1995). An
attorney who forgoes further investigation is not ineffective “[w]here the circumstances known to
counsel at the time of his investigation do not reveal the sound basis for further inquiry in a
particular area.” Orange, 168 Ill. 2d at 150.
¶ 40 Based on the allegations in defendant’s motion and the record, we conclude that counsel’s
failure to investigate Butler was not unreasonable. Looking at defendant’s motion, his allegation
against counsel simply states that defendant heard around the jail that Butler was the shooter and
he instructed APD Strunck to investigate Butler. That is the entirety of his allegation regarding
counsel’s performance. It is unclear whether he directed counsel on where or how to find Butler
(who, even if found, would be unlikely to admit to being the shooter) or how an investigation of
Butler would lead to any exculpatory evidence. This bare allegation is insufficient to demonstrate
counsel’s deficient performance.
¶ 41 We further agree with the State that, even if APD Strunck had investigated Butler as
defendant requested, it is entirely speculative that he would have uncovered some new
eyewitnesses or other evidence to prove Butler was the shooter. In particular, it appears unlikely
that counsel would have found Moore, who was not mentioned by any of the State’s witnesses and
who stated in his affidavit that he was afraid to come forward with his information earlier. APD
Strunck could not have discovered Myles’s information, where Myles was in prison at the time of
murder and his conversation with McWilliams did not occur until 2015, nor would he have been
likely to find McWilliams, who was not mentioned by any of the State’s witnesses as being present
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at the crime scene. Thus, defendant failed to adequately allege that counsel’s failure to investigate
Butler constituted deficient performance. See People v. Morgan, 2015 IL App (1st) 131938, ¶ 77
(“Counsel cannot be deemed ineffective for failing to investigate witnesses that she did not know
existed.”).
¶ 42 We also disagree with defendant’s assertion that this argument is a “non sequitur,” stating
that “[c]ounsel cannot know what he does not investigate.” We might agree with defendant had he
made any specific allegations in his petition as to how counsel would have uncovered any evidence
that Butler was the shooter. According to the record, defendant did not even provide his counsel
with names of the inmates who stated that Butler was the shooter. With so little to go on, it would
seem harsh under these circumstances to deem APD Strunck’s failure to investigate unreasonable.
To illustrate our point, we contrast the situation before us with the circumstances in Johnson, 2019
IL App (1st) 153204, and People v. Smith, 2021 IL App (1st) 181635-U, wherein this court
determined that the prejudice prong had been satisfied.
¶ 43 In Johnson, discussed previously, the court made clear that the eyewitness Williams could
have easily been discovered by counsel where the defendant alleged that he specifically directed
his trial counsel to send an investigator to the crime scene to find witnesses and defendant averred
that Williams was known to frequent the corner where the shooting took place and could have
been easily found. Johnson, 2019 IL App (1st) 153204, ¶¶ 40-41. Additionally, another eyewitness
testified at trial that Williams was present during the shooting, but counsel did not call him as a
witness or even learn what his testimony might be. Id.
¶ 44 In Smith, the defendant, who was convicted of murder in relation to a shooting, claimed
ineffective assistance of trial counsel in his successive petition, which he supported with an
affidavit from Turner, an eyewitness whose testimony would have supported the defendant’s claim
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of self-defense. 2021 IL App (1st) 181635-U, ¶¶ 2, 4, 40. In assessing whether the defendant’s
successive petition met the prejudice prong of the cause-and-prejudice test, this court concluded
that the defendant had adequately alleged deficient performance of trial counsel. Id. ¶ 51. In so
concluding, this court rejected the State’s argument that Turner was an unnamed and unknown
witness and counsel did not have an obligation to attempt to identify other persons at the scene of
the shooting. Id. ¶ 48. Rather, the court concluded that the defendant’s petition and the affidavit
made “a prima facie allegation that Turner could have been located by counsel with reasonable
investigation” where other known witnesses were familiar with Turner and knew he was in the
apartment when the shooting took place. Id. ¶ 49.
¶ 45 In both Johnson and Smith, it was clear from each defendant’s petition how counsel could
have discovered the claimed exculpatory evidence prior to trial. The same is not true here. Here,
defendant merely alleges that he instructed counsel to investigate Butler because he heard around
the jail that Butler was involved in the shooting. However, defendant does not name any specific
individuals whom counsel should have sought out, and it is unclear how counsel would have
uncovered Myles’s and Moore’s attestations, considering defendant himself did not come by that
information until all three happened to be in the same facility during their respective incarcerations.
APD Strunck’s ability to discover this evidence based on an instruction to investigate Butler is
tenuous at best, and considering the number of eyewitnesses identifying defendant as the shooter,
a vague instruction to investigate an individual named Butler hardly constitutes a sound basis for
further inquiry. Thus, defendant’s allegation that counsel’s failure to investigate Butler constituted
ineffective assistance is not well taken.
¶ 46 As a final note, we point out that defendant’s allegation that counsel’s performance was
deficient for failure to investigate is belied by the record. On May 11, 2011, just a month prior to
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the entry of his guilty plea, defendant informed the court that APD Strunck was ineffective, but he
did not make any mention of a failure to investigate certain witnesses or alternative suspects. If
counsel had, in fact, been instructed to investigate and had failed to do so, we imagine defendant
would have mentioned that when the court had given him the opportunity to air his grievances
with APD Strunck.
¶ 47 In sum, defendant’s factual allegations do not adequately set forth an ineffective assistance
of counsel claim. Because defendant cannot show that counsel’s alleged ineffectiveness in failing
to investigate Butler as the shooter so infected the proceedings that defendant’s guilty plea violated
due process, the prejudice prong of the cause-and-prejudice test cannot be satisfied. Accordingly,
we conclude that defendant’s claim of ineffective assistance of counsel is barred by the Act, but
we remand defendant’s successive postconviction petition solely as to his claim of actual
innocence for further proceedings under the Act.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the judgment of the circuit court on the ineffective
assistance of counsel claim, and pursuant to the supreme court’s affirmance of our prior reversal
of the circuit court’s dismissal of defendant’s actual innocence claim, we remand for further
proceedings under the Act.
¶ 50 Affirmed in part and reversed in part.
¶ 51 Cause remanded.
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People v. Griffin, 2024 IL App (1st) 191101-C
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR- 1910; the Hon. Micheal B. McHale, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Rachel M. Kindstrand, for of State Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Joseph Alexander, and Brian K. Hodes, Assistant Appellee: State’s Attorneys, of counsel), for the People.
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