JUSTICE McDADE
delivered the opinion of the court:
In this case from the circuit court of Henry County, the defendant appeals from the dismissal of a petition for postconviction relief. The petition, which raised a claim of actual innocence, was summarily dismissed by the trial court as successive, untimely, and barred by res judicata. The defendant appeals and argues that it was improper for the trial court to dismiss the petition in the first stage of the postconviction review process. For the following reasons, we reverse.
FACTS
The defendant, Armando Manrique, was a passenger in a motor home traveling on Interstate 80 on November 6, 1995. Also in the motor home were the driver, Andres Elken Montoya, and passengers Guillermo Carvajal, Miguel Londono, Iriada Sanchez and Niurca Torres. The vehicle was pulled over for speeding by the Illinois State Police. After issuing a written warning, the officer asked Montoya for permission to search the home, which was granted. During the subsequent search, the police found several black plastic storage bags containing bricks of cocaine. The cocaine was hidden in storage cabinets and under several bunk beds. The officers stated that it was impossible to determine what was in the bags without opening them and that they did not smell like cocaine.
Manrique denied any knowledge of the cocaine and stated that he had encountered his friend Montoya in Los Angeles and that Montoya had invited him on a road trip in the motor home.
Manrique was convicted in the circuit court of Henry County of controlled substance trafficking (720 ILCS 570/401.1 (West 2002)), unlawful possession with intent to deliver a controlled substance (720 ILCS 520/401(a)(2)(D) (West 2002)), and possession of a controlled substance (720 ILCS 570/402(a)(2)(D) (West 2002)), and was sentenced to 56 years in prison.
On direct appeal, the defendant argued that it was error for the trial court to deny his pretrial motion seeking the suppression of the cocaine. People v. Manrique, No. 3 — 96 — 0744 (August 21, 1997) (unpublished order under Supreme Court Rule 23). The appeal was denied and the defendant’s conviction was affirmed.
The defendant, in 1998, filed a pro se petition for postconviction relief in which he alleged ineffective assistance of counsel because of his attorney’s failure to call Montoya as a witness at the suppression hearing and at trial to testify that the defendant did not know about the cocaine. The State filed a written response to the petition which contained an affidavit from the defendant’s original attorney. The affidavit stated that defense counsel had attempted to call Montoya as a witness, but that Montoya’s lawyer would not allow her client to testify and that he would have pled his fifth amendment right against self-incrimination if called as a witness.
At an evidentiary hearing on the petition, on January 18, 2001, the trial court found that the defendant did not receive ineffective assistance of counsel for failure to call Montoya, because Montoya was not available as a witness. The court denied the defendant relief.
On February 15, 2002, the defendant filed a second postconviction petition alleging a claim of actual innocence. The petition contained affidavits from both the defendant and Montoya stating that Montoya was willing to testify that the defendant had no knowledge of the cocaine. The dismissal of that petition resulted in this appeal.
ANALYSIS
The key question is whether the trial court may summarily dismiss a successive, untimely postconviction motion that raises issues that have been previously litigated. The parties have each cited a case in support of their position, People v. Morales, 339 Ill. App. 3d 554, 791 N.E.2d 1122 (2003), and People v. Smith, 341 Ill. App. 3d 530, 794 N.E.2d 367 (2003).
In Morales, the court stated in dicta that it would be improper for the court to summarily dismiss a successive postconviction petition on the basis of untimeliness or res judicata. Morales, 339 Ill. App. 3d at 560-61, 791 N.E.2d at 1128. However, the court found that the trial judge had properly dismissed the petition for being patently without merit. Morales, 339 Ill. App. 3d at 561, 791 N.E.2d at 1128-29.
In Smith, the court found that the trial court properly dismissed a petition in the first stage of the process when the petition was successive and raised issues that could have been raised in the first petition. In so deciding, the court applied the “cause and prejudice” test of People v. Britt-el, 206 Ill. 2d 331, 794 N.E.2d 204 (2002), which requires the defendant to show that an objective factor, external to the defense, impeded the defendant’s ability to raise the claim in the first petition and that the claimed error “so infected the entire trial that the resulting conviction violates due process.” Britt-el, 206 Ill. 2d at 339, 794 N.E.2d at 209.
While we agree with Smith that the “cause and prejudice” test is appropriate in determining whether a successive petition will be allowed when there has been a procedural error in prior proceedings on the case, we do not believe that the test is appropriate here. In this case, the defendant has not alleged error below but, rather, raises an independent claim of actual innocence.
In cases where the “cause and prejudice” test does not apply, the court will allow a successive petition when the denial of the petition would result in a fundamental miscarriage of justice. People v. Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d 609, 621 (2002). The defendant may show a miscarriage by alleging a claim of actual innocence. Pitsonbarger, 205 Ill. 2d at 459, 793 N.E.2d at 621. To show actual innocence, the defendant must “ ‘ “show with a fair probability that, in light of all the evidence, including that *** available only after the trial, the trier of facts would have entertained a reasonable doubt of [the defendant’s] guilt.” ’ [Citation.]” Sawyer v. Whitley, 505 U.S. 333, 339 n.5, 120 L. Ed. 2d 269, 280 n.5, 112 S. Ct. 2514, 2519 n.5 (1992).
In this case, the defendant has alleged actual innocence. The potentially exculpatory testimony of Andres Elken Montoya was not previously available to the defendant. Montoya was not called as a witness at the defendant’s trial. According to the defendant’s original trial counsel, this was because Montoya’s attorney maintained that Montoya would exercise his fifth amendment right if called as a witness. At that time and at the time of the first petition, Montoya’s testimony was unavailable to the defendant. Now, however, Montoya has stated that he would testify to the defendant’s lack of knowledge of the cocaine. The defendant had no control over Montoya’s willingness to testify.
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JUSTICE McDADE
delivered the opinion of the court:
In this case from the circuit court of Henry County, the defendant appeals from the dismissal of a petition for postconviction relief. The petition, which raised a claim of actual innocence, was summarily dismissed by the trial court as successive, untimely, and barred by res judicata. The defendant appeals and argues that it was improper for the trial court to dismiss the petition in the first stage of the postconviction review process. For the following reasons, we reverse.
FACTS
The defendant, Armando Manrique, was a passenger in a motor home traveling on Interstate 80 on November 6, 1995. Also in the motor home were the driver, Andres Elken Montoya, and passengers Guillermo Carvajal, Miguel Londono, Iriada Sanchez and Niurca Torres. The vehicle was pulled over for speeding by the Illinois State Police. After issuing a written warning, the officer asked Montoya for permission to search the home, which was granted. During the subsequent search, the police found several black plastic storage bags containing bricks of cocaine. The cocaine was hidden in storage cabinets and under several bunk beds. The officers stated that it was impossible to determine what was in the bags without opening them and that they did not smell like cocaine.
Manrique denied any knowledge of the cocaine and stated that he had encountered his friend Montoya in Los Angeles and that Montoya had invited him on a road trip in the motor home.
Manrique was convicted in the circuit court of Henry County of controlled substance trafficking (720 ILCS 570/401.1 (West 2002)), unlawful possession with intent to deliver a controlled substance (720 ILCS 520/401(a)(2)(D) (West 2002)), and possession of a controlled substance (720 ILCS 570/402(a)(2)(D) (West 2002)), and was sentenced to 56 years in prison.
On direct appeal, the defendant argued that it was error for the trial court to deny his pretrial motion seeking the suppression of the cocaine. People v. Manrique, No. 3 — 96 — 0744 (August 21, 1997) (unpublished order under Supreme Court Rule 23). The appeal was denied and the defendant’s conviction was affirmed.
The defendant, in 1998, filed a pro se petition for postconviction relief in which he alleged ineffective assistance of counsel because of his attorney’s failure to call Montoya as a witness at the suppression hearing and at trial to testify that the defendant did not know about the cocaine. The State filed a written response to the petition which contained an affidavit from the defendant’s original attorney. The affidavit stated that defense counsel had attempted to call Montoya as a witness, but that Montoya’s lawyer would not allow her client to testify and that he would have pled his fifth amendment right against self-incrimination if called as a witness.
At an evidentiary hearing on the petition, on January 18, 2001, the trial court found that the defendant did not receive ineffective assistance of counsel for failure to call Montoya, because Montoya was not available as a witness. The court denied the defendant relief.
On February 15, 2002, the defendant filed a second postconviction petition alleging a claim of actual innocence. The petition contained affidavits from both the defendant and Montoya stating that Montoya was willing to testify that the defendant had no knowledge of the cocaine. The dismissal of that petition resulted in this appeal.
ANALYSIS
The key question is whether the trial court may summarily dismiss a successive, untimely postconviction motion that raises issues that have been previously litigated. The parties have each cited a case in support of their position, People v. Morales, 339 Ill. App. 3d 554, 791 N.E.2d 1122 (2003), and People v. Smith, 341 Ill. App. 3d 530, 794 N.E.2d 367 (2003).
In Morales, the court stated in dicta that it would be improper for the court to summarily dismiss a successive postconviction petition on the basis of untimeliness or res judicata. Morales, 339 Ill. App. 3d at 560-61, 791 N.E.2d at 1128. However, the court found that the trial judge had properly dismissed the petition for being patently without merit. Morales, 339 Ill. App. 3d at 561, 791 N.E.2d at 1128-29.
In Smith, the court found that the trial court properly dismissed a petition in the first stage of the process when the petition was successive and raised issues that could have been raised in the first petition. In so deciding, the court applied the “cause and prejudice” test of People v. Britt-el, 206 Ill. 2d 331, 794 N.E.2d 204 (2002), which requires the defendant to show that an objective factor, external to the defense, impeded the defendant’s ability to raise the claim in the first petition and that the claimed error “so infected the entire trial that the resulting conviction violates due process.” Britt-el, 206 Ill. 2d at 339, 794 N.E.2d at 209.
While we agree with Smith that the “cause and prejudice” test is appropriate in determining whether a successive petition will be allowed when there has been a procedural error in prior proceedings on the case, we do not believe that the test is appropriate here. In this case, the defendant has not alleged error below but, rather, raises an independent claim of actual innocence.
In cases where the “cause and prejudice” test does not apply, the court will allow a successive petition when the denial of the petition would result in a fundamental miscarriage of justice. People v. Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d 609, 621 (2002). The defendant may show a miscarriage by alleging a claim of actual innocence. Pitsonbarger, 205 Ill. 2d at 459, 793 N.E.2d at 621. To show actual innocence, the defendant must “ ‘ “show with a fair probability that, in light of all the evidence, including that *** available only after the trial, the trier of facts would have entertained a reasonable doubt of [the defendant’s] guilt.” ’ [Citation.]” Sawyer v. Whitley, 505 U.S. 333, 339 n.5, 120 L. Ed. 2d 269, 280 n.5, 112 S. Ct. 2514, 2519 n.5 (1992).
In this case, the defendant has alleged actual innocence. The potentially exculpatory testimony of Andres Elken Montoya was not previously available to the defendant. Montoya was not called as a witness at the defendant’s trial. According to the defendant’s original trial counsel, this was because Montoya’s attorney maintained that Montoya would exercise his fifth amendment right if called as a witness. At that time and at the time of the first petition, Montoya’s testimony was unavailable to the defendant. Now, however, Montoya has stated that he would testify to the defendant’s lack of knowledge of the cocaine. The defendant had no control over Montoya’s willingness to testify. Even the trial court, ruling on the defendant’s initial postconviction petition, found that the testimony was not available. Only when Montoya changed his position was the defendant able to use the evidence to raise a claim of actual innocence.
The State argues that the evidence does not establish the defendant’s actual innocence and that its use would not have changed the outcome of the trial. The assertion is clearly specious. The evidence against the defendant was circumstantial and rested on the inference that the defendant must have known about the bales of cocaine hidden in the mobile home. The testimony from the driver of the van that the defendant was not told about the cocaine would seriously undercut the State’s case. The jury easily could have concluded that, absent being told that the cocaine was there, the defendant would not have known about it, especially in light of the fact that the cocaine was not observable by sight or smell but rather wrapped in black plastic and hidden. In any event, the State’s objection is premature, since all the defendant must do at this point is allege the gist of a claim. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996).
The absence of Montoya’s testimony calls into question the accuracy of the defendant’s conviction. Given the circumstantial nature of the State’s case, the omission of the testimony is sufficiently prejudicial to violate due process and raise concerns about a miscarriage of justice.
CONCLUSION
Clearly, Montoya’s evidence is potentially exculpatory. It supports a claim of actual innocence that may be brought in a postconviction proceeding. The defendant has presented the gist of a claim of actual innocence that implicates a fundamental miscarriage of justice. For these reasons, the ruling of the Henry County circuit court is reversed and the case remanded for further proceedings consistent with this opinion.
Reversed and remanded.
SLATER, J., concurs.