2021 IL App (1st) 172647-U
SIXTH DIVISION August 20, 2021
No. 1-17-2647
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Respondent-Appellee, ) Circuit Court of Cook County. ) v. ) 91 CR 21631 ) ANDREW MATTHEWS, ) Honorable Lawrence E. Flood, ) Judge Presiding. Petitioner-Appellant. )
JUSTICE CONNORS delivered the judgment of the court. Justices Harris and Oden Johnson concurred in the judgment.
ORDER
Held: Trial court properly denied petitioner’s motion for leave to file a successive postconviction petition despite a three-and-a-half-year delay between the date the motion was docketed and the date it was ruled on. Affirmed.
¶1 Petitioner, Andrew Matthews, appeals the denial of his 2014 motion for leave to file a
successive postconviction petition challenging his conviction for the first-degree murder of
Robert Brown, which took place in 1991. Petitioner argues that his motion was not brought
“promptly to the attention of the court” after it was docketed, resulting in a three-and-a-half-year
delay in being presented to the court. For the following reasons, we affirm. No. 1-17-2647
¶2 I. BACKGROUND
¶3 The evidence adduced at petitioner’s trial revealed that on August 5, 1991, at
approximately 9 p.m., the victim was shot five times while playing basketball in Cooper Park in
Chicago. Petitioner was identified as one of two shooters. The victim died from his gunshot
wounds. Petitioner was convicted of first-degree murder.
¶4 Petitioner filed a pro se motion for a new trial, alleging ineffective assistance of trial
counsel for failing to call certain witnesses. The motion was denied.
¶5 Following a sentencing hearing, the trial court sentenced petitioner to an extended term of
80 years in prison. The trial court found that petitioner’s conduct in committing the murder
qualified “for the extended term under heinous, that this course of conduct does outrage the
senses. It is devoid of mercy.”
¶6 On direct appeal, petitioner argued that he was denied a fair trial and that the court
abused its discretion in sentencing him to an extended term. See People v. Matthews, No. 1-93-
1889 (unpublished order pursuant to Illinois Supreme Court Rule 23). We affirmed petitioner’s
conviction and sentence. Id.
¶7 In 1996, petitioner filed a pro se postconviction petition pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). Petitioner argued that his trial
counsel failed to present an alibi defense and call witnesses who could testify that petitioner was
not at the scene of the crime on the night of the murder. Petitioner did not identify the witnesses
or provide affidavits of any witnesses. The petition was summarily dismissed by the trial court.
We affirmed the dismissal on appeal. See People v. Matthews, No. 1-97-0486 (October 28, 1998)
(unpublished order pursuant to Illinois Supreme Court Rule 23).
2 No. 1-17-2647
¶8 In 1999, petitioner filed a second pro se postconviction petition, alleging ineffective
assistance of appellate counsel for failing to investigate an August 5, 1998, affidavit submitted
by codefendant Mario Pearrie. Petitioner attached the affidavit which stated that petitioner was
“nowhere near” the scene of the shooting. The trial court dismissed the second pro se petition as
frivolous and patently without merit. It found that the petition was untimely and petitioner failed
to show he was not culpably negligent. The trial court noted that the affidavit came before the
court six years after petitioner’s trial, and that petitioner failed to provide an explanation for the
delay in uncovering the statement. The trial court also found that petitioner failed to show that
his constitutional rights were violated, or that there was a reasonable likelihood that the affidavit
could have changed the outcome of the trial. We affirmed the dismissal of petitioner’s second
pro se postconviction petition on appeal. People v. Matthews, 1-00-0555 (September 26, 2003)
(unpublished order pursuant to Illinois Supreme Court Rule 23).
¶9 On June 14, 2007, petitioner filed a petition for relief from judgment pursuant to section
2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2020)), alleging that his
sentence was constitutionally void. The trial court sua sponte dismissed the section 2-1401(f)
petition and petitioner appealed. We affirmed the dismissal on appeal. See People v. Matthews,
No. 1-07-2993 (unpublished order pursuant to Illinois Supreme Court Rule 23).
¶ 10 In 2009, petitioner filed a pro se motion for leave to file a successive postconviction
petition, alleging ineffective assistance of appellate counsel for failing to argue that his sentence
was disparate in comparison to his codefendant’s sentence. The trial court denied petitioner leave
to file a successive postconviction petition. On appeal, we affirmed the denial. See People v.
Matthews, No. 1-10-2598 (unpublished order pursuant to Illinois Supreme Court Rule 23).
3 No. 1-17-2647
¶ 11 On February 21, 2014, petitioner filed a pro se motion for leave to file a second
successive postconviction petition, alleging ineffective assistance of appellate counsel and
raising a claim of actual innocence based on newly discovered evidence. He attached
codefendant’s 1998 affidavit, as well as an affidavit by Candace Claybrooks, who stated that on
August 5, 1991, petitioner was at her house from 7 p.m. to 11 p.m.
¶ 12 On March 4, 2014, the clerk’s office docketed the petition and set a hearing date of
March 11, 2014. There is no indication from the record that a hearing was held on that date. On
July 10, 2017, petitioner filed a pro se motion requesting that a hearing on his motion for leave to
file a successive postconviction petition be held. In his motion, petitioner stated that he had sent
several letters to the clerk’s office “seeking a status report on said motion, but he either received
no response or he would receive a Certified Statement of Conviction/Disposition, which
indicate[d] that his motion for leave had been sitting dormant for three years.”
¶ 13 On July 19, 2017, petitioner’s motion was presented to the trial court. On August 25,
2017, the court denied petitioner’s motion for leave to file a successive postconviction petition,
holding that petitioner failed to demonstrate a cognizable claim of actual innocence and that
petitioner “had filed a previous petition and alleged basically the same information that he did in
this new petition.” In its written order, the court found that the ineffective assistance of trial
counsel and appellate counsel claims were based on conclusory and unsupported allegations that
were insufficient to merit relief. The court further found that petitioner’s actual innocence claim
was insufficient to merit relief. It noted that codefendant’s affidavit did not support a claim of
actual innocence, and that Claybrooks’ affidavit did not present newly discovered evidence and
that it was not so conclusive that it would have changed the outcome on retrial.
4 No. 1-17-2647
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2021 IL App (1st) 172647-U
SIXTH DIVISION August 20, 2021
No. 1-17-2647
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Respondent-Appellee, ) Circuit Court of Cook County. ) v. ) 91 CR 21631 ) ANDREW MATTHEWS, ) Honorable Lawrence E. Flood, ) Judge Presiding. Petitioner-Appellant. )
JUSTICE CONNORS delivered the judgment of the court. Justices Harris and Oden Johnson concurred in the judgment.
ORDER
Held: Trial court properly denied petitioner’s motion for leave to file a successive postconviction petition despite a three-and-a-half-year delay between the date the motion was docketed and the date it was ruled on. Affirmed.
¶1 Petitioner, Andrew Matthews, appeals the denial of his 2014 motion for leave to file a
successive postconviction petition challenging his conviction for the first-degree murder of
Robert Brown, which took place in 1991. Petitioner argues that his motion was not brought
“promptly to the attention of the court” after it was docketed, resulting in a three-and-a-half-year
delay in being presented to the court. For the following reasons, we affirm. No. 1-17-2647
¶2 I. BACKGROUND
¶3 The evidence adduced at petitioner’s trial revealed that on August 5, 1991, at
approximately 9 p.m., the victim was shot five times while playing basketball in Cooper Park in
Chicago. Petitioner was identified as one of two shooters. The victim died from his gunshot
wounds. Petitioner was convicted of first-degree murder.
¶4 Petitioner filed a pro se motion for a new trial, alleging ineffective assistance of trial
counsel for failing to call certain witnesses. The motion was denied.
¶5 Following a sentencing hearing, the trial court sentenced petitioner to an extended term of
80 years in prison. The trial court found that petitioner’s conduct in committing the murder
qualified “for the extended term under heinous, that this course of conduct does outrage the
senses. It is devoid of mercy.”
¶6 On direct appeal, petitioner argued that he was denied a fair trial and that the court
abused its discretion in sentencing him to an extended term. See People v. Matthews, No. 1-93-
1889 (unpublished order pursuant to Illinois Supreme Court Rule 23). We affirmed petitioner’s
conviction and sentence. Id.
¶7 In 1996, petitioner filed a pro se postconviction petition pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). Petitioner argued that his trial
counsel failed to present an alibi defense and call witnesses who could testify that petitioner was
not at the scene of the crime on the night of the murder. Petitioner did not identify the witnesses
or provide affidavits of any witnesses. The petition was summarily dismissed by the trial court.
We affirmed the dismissal on appeal. See People v. Matthews, No. 1-97-0486 (October 28, 1998)
(unpublished order pursuant to Illinois Supreme Court Rule 23).
2 No. 1-17-2647
¶8 In 1999, petitioner filed a second pro se postconviction petition, alleging ineffective
assistance of appellate counsel for failing to investigate an August 5, 1998, affidavit submitted
by codefendant Mario Pearrie. Petitioner attached the affidavit which stated that petitioner was
“nowhere near” the scene of the shooting. The trial court dismissed the second pro se petition as
frivolous and patently without merit. It found that the petition was untimely and petitioner failed
to show he was not culpably negligent. The trial court noted that the affidavit came before the
court six years after petitioner’s trial, and that petitioner failed to provide an explanation for the
delay in uncovering the statement. The trial court also found that petitioner failed to show that
his constitutional rights were violated, or that there was a reasonable likelihood that the affidavit
could have changed the outcome of the trial. We affirmed the dismissal of petitioner’s second
pro se postconviction petition on appeal. People v. Matthews, 1-00-0555 (September 26, 2003)
(unpublished order pursuant to Illinois Supreme Court Rule 23).
¶9 On June 14, 2007, petitioner filed a petition for relief from judgment pursuant to section
2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2020)), alleging that his
sentence was constitutionally void. The trial court sua sponte dismissed the section 2-1401(f)
petition and petitioner appealed. We affirmed the dismissal on appeal. See People v. Matthews,
No. 1-07-2993 (unpublished order pursuant to Illinois Supreme Court Rule 23).
¶ 10 In 2009, petitioner filed a pro se motion for leave to file a successive postconviction
petition, alleging ineffective assistance of appellate counsel for failing to argue that his sentence
was disparate in comparison to his codefendant’s sentence. The trial court denied petitioner leave
to file a successive postconviction petition. On appeal, we affirmed the denial. See People v.
Matthews, No. 1-10-2598 (unpublished order pursuant to Illinois Supreme Court Rule 23).
3 No. 1-17-2647
¶ 11 On February 21, 2014, petitioner filed a pro se motion for leave to file a second
successive postconviction petition, alleging ineffective assistance of appellate counsel and
raising a claim of actual innocence based on newly discovered evidence. He attached
codefendant’s 1998 affidavit, as well as an affidavit by Candace Claybrooks, who stated that on
August 5, 1991, petitioner was at her house from 7 p.m. to 11 p.m.
¶ 12 On March 4, 2014, the clerk’s office docketed the petition and set a hearing date of
March 11, 2014. There is no indication from the record that a hearing was held on that date. On
July 10, 2017, petitioner filed a pro se motion requesting that a hearing on his motion for leave to
file a successive postconviction petition be held. In his motion, petitioner stated that he had sent
several letters to the clerk’s office “seeking a status report on said motion, but he either received
no response or he would receive a Certified Statement of Conviction/Disposition, which
indicate[d] that his motion for leave had been sitting dormant for three years.”
¶ 13 On July 19, 2017, petitioner’s motion was presented to the trial court. On August 25,
2017, the court denied petitioner’s motion for leave to file a successive postconviction petition,
holding that petitioner failed to demonstrate a cognizable claim of actual innocence and that
petitioner “had filed a previous petition and alleged basically the same information that he did in
this new petition.” In its written order, the court found that the ineffective assistance of trial
counsel and appellate counsel claims were based on conclusory and unsupported allegations that
were insufficient to merit relief. The court further found that petitioner’s actual innocence claim
was insufficient to merit relief. It noted that codefendant’s affidavit did not support a claim of
actual innocence, and that Claybrooks’ affidavit did not present newly discovered evidence and
that it was not so conclusive that it would have changed the outcome on retrial.
4 No. 1-17-2647
¶ 14 The trial court denied petitioner’s motion for leave to file a successive postconviction
petition, and petitioner now appeals.
¶ 15 II. ANALYSIS
¶ 16 On appeal, petitioner raises no issue regarding the merits of his petition. Rather, he
contends that we should reverse the circuit court’s denial of his motion for leave to file a
successive postconviction petition because the clerk failed to bring the motion “promptly to the
attention of the court” after it was docketed, and remand for appointment of counsel and second-
stage proceedings. The State responds that the trial court properly denied petitioner’s motion for
leave to file a successive postconviction petition.
¶ 17 Section 122-1(b) of the Act states:
“(b) The proceeding shall be commenced by filing with the clerk of the court in
which the conviction took place a petition (together with a copy thereof) verified
by affidavit. Petitioner shall also serve another copy upon the State’s Attorney by
any of the methods provided in Rule 7 of the Supreme Court. The clerk shall
docket the petition for consideration by the court pursuant to Section 122-2.1
upon his or receipt thereof and bring the same promptly to the attention of the
court.” 725 ILCS 5/122-1(b) (West 2020).
¶ 18 Petitioner acknowledges that his motion for leave to file a successive postconviction
petition was filed on February 21, 2014, docketed on March 4, 2014, and set for hearing on
March 11, 2014. Accordingly, it seems that the clerk of the court did indeed docket the petition
for consideration upon its receipt thereof and “bring the same promptly to the attention of the
court” by setting it for hearing. It is unclear, looking at the limited information contained in the
record, why there was not a hearing on March 11, 2014, but we cannot conclude that it was due
5 No. 1-17-2647
to a failure to docket the motion or promptly set it for hearing. Even if we were to find, however,
that the circuit court clerk failed to promptly bring petitioner’s motion for leave to file a
successive postconviction petition to the attention of the court, we would nevertheless find,
relying on People v. Shief, 2016 IL App (1st) 141022, that the statute is directory and not
mandatory in nature, and the failure to promptly alert the court of a motion for leave to file a
successive postconviction petition is not reversible error.
¶ 19 In Shief, the defendant was convicted of first-degree murder in 2009. He mailed a
postconviction petition to the clerk of the circuit court of Cook County, but the clerk did not
docket his petition. Id. ¶ 1. After inquiring into the status of his petition several times, defendant
refiled his petition one year later. Id. The trial court summarily dismissed the petition. Id. The
defendant argued on appeal that we should vacate the dismissal of his petition and remand for
second-stage postconviction proceedings because the clerk failed to promptly docket his petition
pursuant to section 122-1(b) of the Act. Id. ¶ 2. The parties agreed that the clerk did not
promptly docket the petition but disputed whether the statutory provision calling for prompt
docketing was mandatory or merely directory. Id. ¶¶ 21-25. This court noted that statues issuing
procedural commands to government officials are presumed to be directory unless: 1) the statute
specifies a consequence for noncompliance, or 2) the right being protected by the command
provision would be injured by a directory reading of the statute. Id. ¶ 27.
¶ 20 Regarding the first point, we noted that section 122-2(b) prescribes no consequence for
not promptly docketing a petition, in contrast to section 122-2.1, prescribing that a petition not
summarily dismissed within 90 days must be docked for further consideration. Id. ¶¶ 28-30. “The
fact that section 122-2.1 prescribes a consequence for noncompliance, but section 122-1(b) does
not, demonstrates that the General Assembly did not intend the same consequence – automatic
6 No. 1-17-2647
advancement of the petition to the second stage – for the clerk’s violation of section 122-2(b).”
Id. ¶ 31. We further stated:
“Section 122-2.1 serves as an incentive to circuit judges to swiftly adjudicate
postconviction petitions by automatically advancing those cases on their dockets
if the judge fails to promptly act. Section [122-2(b)], on the other hand, does not
concern the actions of the circuit judge but rather those of the clerk. The remedy
of automatic advancement would force the hand of the judge based on the actions
of a distinct government official, the clerk. Circuit judges would lose control of
their docket based on something entirely outside of their control.” Id. ¶ 32.
¶ 21 Regarding the second exception – the right being protected by the statutory command
would be injured by a directory reading – we noted that a directory reading would have to be
generally prejudicial, not just prejudicial to a particular defendant under particular
circumstances. Id. ¶ 34. We concluded “that the likelihood of prejudice is not so great that we
must consider the prompt-docketing requirement to be mandatory under the second exception.
Even if the clerk fails to docket a petition promptly, a defendant could simply refile his
postconviction petition in order to have it considered.” Id. ¶ 38. As we stated in Shief, “[w]hile a
delay in docketing is by no means desirable, and the clerk’s delay in this case was wholly
unreasonable, such a delay is not likely to preclude a defendant from having the substance of his
petition heard.” Id. ¶ 41. We therefore concluded “that the prompt-docketing requirement of
section 122-1(b) is directory, rather than mandatory.” Id. ¶ 44.
¶ 22 Here, following Shief, we also conclude that the requirement in section 122-1(b) to
promptly bring the petition to the court’s attention is merely directory. The failure to promptly
7 No. 1-17-2647
alert the court after docketing a petition is not reversible error, and this petition cannot proceed to
the second stage on that basis.
¶ 23 While petitioner argues that we should not follow Shief and instead find reversible error
in the clerk’s failure to promptly notify the court of petitioner’s motion for leave to file a second
successive postconviction petition, we see no reason not to follow Shief.1 Here, we do not know
what the circumstances of the delay was, and why a hearing was not held on March 11, 2014.
We do know that petitioner filed a motion on July 10, 2017, requesting a hearing on his motion
for leave to file a successive postconviction petition, and that the motion was presented to the
court on July 19, 2017. The trial court then addressed the merits of petitioner’s motion and issued
a written order on August 25, 2017.
¶ 24 As we noted in Shief, it is true that even where a provision is directory, a defendant may
still be entitled to relief if he was prejudiced by the violation of the provision. Id. ¶ 42 (citing
People v. Geiler, 2016 IL 119095, ¶ 24). “Thus, a directory reading would not preclude a
defendant from obtaining relief where he suffered prejudice due to a delay in docketing his
petition.” Id. Here, petitioner is not making such a claim, but rather arguing that the unreasonable
delay in the consideration of his motion for leave to file a successive postconviction petition, in
and of itself, was sufficiently prejudicial to warrant advancement to second-stage proceedings.
As we held in Shief, while we are sympathetic with petitioner’s claim, and as much as we join
him in condemning the unacceptable delay, we do not find the delay sufficient to warrant a
reversal. Id. ¶ 43.
¶ 25 III. CONCLUSION
1 The defendant in Shief filed a pro se petition for writ of habeas corpus in the Northern District of the United States District Court. See Sheif v. Lashbrook, 2019 WL 1773357. The Northern District noted that it could not substitute its judgment for that of the Illinois courts on a state-law issue, and found that “the purported errors in Petitioner’s post- conviction proceedings do not rise to a violation of a constitutional right.”
8 No. 1-17-2647
¶ 26 For the foregoing reasons, we affirm the circuit court of Cook County.
¶ 27 Affirmed.