People v. Nichols

2023 IL App (1st) 220096-U

• Court: Appellate Court of Illinois
• Decided: October 10, 2023
• Docket: 1-22-0096
• Status: Unpublished

Opinion

2023 IL App (1st) 220096-U No. 1-22-0096 FIRST DIVISION October 10, 2023

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 Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 2170001 ) AR-RAAFI NICHOLS, ) Honorable ) Neera Lall Walsh, Defendant-Appellant. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

¶1 Held: We affirm the denial of defendant’s motion for leave to file a successive petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.). The instant claim of trial counsel’s ineffective assistance is barred by res judicata, given our decision on direct appeal. Moreover, defendant did not satisfy the Act’s requirements of “cause” and “prejudice” for either his ineffective assistance of trial counsel or false testimony claims. Further, he did not demonstrate a viable claim of actual innocence to allow him to bring a successive petition.

¶2 Defendant-appellant Ar-Raafi Nichols appeals from the denial of his motion for leave to

file a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2020)). For the following reasons, we affirm. No. 1-22-0096

¶3 BACKGROUND 1

¶4 Following a jury trial, defendant was convicted of first degree murder for the July 2001

shooting death of Victor Manriquez. Defendant was sentenced to a 50-year prison term, including

25 years for the murder and a 25-year firearm enhancement.

¶5 Trial Evidence

¶6 The evidence at trial demonstrated that on July 23, 2001, defendant got into an argument

with Sarina Leighty. Leighty subsequently contacted Manriquez and spent the day with him at a

motel. That evening, Manriquez and Leighty were driving from the motel when Leighty heard

defendant and asked Manriquez to stop the car. Defendant then approached the car and demanded

money from Manriquez before shooting him twice. Sherman James, a neighborhood resident,

observed the shooting and called police.

¶7 Leighty testified at trial that defendant was her “off-and-on boyfriend.” At the time of the

shooting, she had known Manriquez for “about a month.” On July 23, 2001, she argued with

defendant and called Manriquez. Defendant saw Manriquez pick her up in his car. She and

Manriquez proceeded to a motel, where they talked, drank beer, and had sex. That evening, they

were leaving in Manriquez’s car to get more beer when Leighty heard defendant call her name.

She got out of Manriquez’s car and spoke to defendant. However, defendant passed her and walked

up to Manriquez, who was in the driver’s seat.

¶8 Leighty recalled that defendant told Manriquez to “drop down”, which she understood to

be a demand for money. Defendant shot Manriquez as his hands were in the air. She saw defendant

1 Additional factual background of the trial proceedings can be found in our opinion on direct appeal, People v. Nichols, No. 1-05-0050 (Sep. 6, 2006) (unpublished order under Rule 23).

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reach into the car and heard another shot. Defendant fled the scene. Leighty left and returned to

the motel without calling police. She was questioned by police at the motel that evening, but at

that time she did not tell them that she witnessed the shooting.

¶9 On August 4, 2001, Leighty was taken into police custody in East Moline, Illinois. She was

brought to a police station in Chicago, where she spoke with Chicago Police Detective Brian

Johnson and other detectives. After police accused her of being involved in the shooting, she told

them that defendant was the shooter. On August 5, 2001, she signed a handwritten statement

implicating defendant. Leighty testified that she remained in police custody from August 4 until

August 6, when she testified before a grand jury.

¶ 10 James testified that he lived near the site of the shooting and was outside of his home when

he noticed a vehicle parked on the corner. He had a clear view of the car and saw a woman (whom

he later identified as Leighty) standing near the driver’s side of the car talking to the male in the

driver’s seat. He then saw a man outside of the car, whom James subsequently identified in court

as defendant. 2 James heard defendant say “Mother f***er give it up” and heard Leighty say, “I

got it under control.” Defendant then walked to the car and “reached in the driver’s side and shot

twice.” Defendant ran away. James called police and spoke to them after they arrived.

¶ 11 James further testified that on August 2, 2001, James viewed two photographic arrays, in

which he identified Leighty and defendant. He also testified that on August 4, 2001, he positively

identified both Leighty and defendant in lineups.

2 After James identified defendant in court, defense counsel remarked: “Can the record reflect that the witness took approximately a minute looking around the courtroom before he pointed to the defendant.” The court responded: “You can argue that, that will be noted it took some time.”

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¶ 12 Detective Brian Johnson testified that he was assigned to investigate Manriquez’s shooting

on the day it occurred, July 23, 2001. After police spoke to James on the evening of the shooting,

they were looking for a white female and a black male in connection with the shooting. On August

1, 2001, Manriquez’s brother provided police with a bill from Manriquez’s cell phone, which

revealed that certain calls had been made from the phone after Manriquez’s death. Detective

Johnson then met with Melissa Phillips. After speaking with Phillips, Detective Johnson was

looking for Leighty and defendant.

¶ 13 On August 2, 2001, Detective Johnson went to James’ residence and showed him two

photographic arrays, one with photos of five women and one with photos of five men. At that time,

James identified Leighty as the woman who was at the scene of the shooting and defendant as the

shooter. Detective Johnson identified the photo arrays during his testimony.

¶ 14 Detective Johnson testified that Leighty was located in East Moline on August 4, 2001. He

spoke to her that morning, and she was brought back to Chicago. Later that day, Leighty brought

police to a residence in Chicago, where defendant was found and arrested. Also on August 4, 2001,

James identified Leighty and defendant in physical lineups.

¶ 15 In closing argument, defendant’s trial counsel argued that the photo array from which

James identified defendant was unduly suggestive. The jury found defendant guilty of first degree

murder.

¶ 16 Defendant’s Post-Trial Motion Alleges Ineffective Assistance

¶ 17 Defendant (through new counsel) filed a motion for judgment notwithstanding the verdict

or a new trial. In that motion, defendant argued, inter alia, that his trial counsel was ineffective for

failing to file pre-trial motions to suppress James’ identification of defendant, including with

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respect to the photo array. Specifically, he averred he was denied effective assistance when trial

counsel “fail[ed] to file any Pre-Trial motion to suppress the identification of the Defendant ***

by witness, Sherman James”; that trial counsel “failed to file any Pre-Trial motion to challenge

the photo array in which *** Sherman James, utilized [sic] to identify the Defendant” and “failed

to file any Pre-Trial motion to challenge the lineup composition” in which James identified

defendant.

¶ 18 At a subsequent hearing, trial counsel testified that, as a matter of trial strategy, she chose

not to move to suppress the photographic array identification, because she wanted the jury to have

a chance to view it and possibly determine that the array was improperly suggestive. The trial court

denied the post-trial motion, rejecting defendant’s ineffective assistance claims. The court

thereafter sentenced him to a 50-year prison term.

¶ 19 Direct Appeal

¶ 20 On direct appeal, this court affirmed. People v. Johnson, No. 1-05-0500 (Sep. 6, 2006)

(unpublished order pursuant to Rule 23). We rejected defendant’s arguments that the evidence was

insufficient to prove him guilty beyond a reasonable doubt. In so doing, we rejected his claim that

James’ identification was unreliable, explaining:

“In the instant case, James’ identification of defendant was reliable.

He left his home late in the evening and had an unobstructed view

of the well-illuminated corner, which was located only one house

and one vacant lot away. James observed defendant approach the car

that Leighty had exited. James heard defendant demand the victim’s

money and then saw him shoot the victim twice at close-range.

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There was contradicting testimony regarding James’ initial

description of what defendant was wearing; however, he generally

described defendant’s height and that he was a black male.”

¶ 21 Also on direct appeal, we rejected defendant’s claims that trial counsel was ineffective,

including with respect to her decision not to move to suppress James’ identification. We

determined that, pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668

(1984), defendant could not establish that he was prejudiced by the alleged ineffectiveness:

“In the instant case, review of the record demonstrates that

defendant cannot establish that he was prejudiced by his counsel’s

performance. *** The hearing on defendant’s motion for judgment

notwithstanding the verdict or, in the alternative, for a new trial

succinctly demonstrates that defendant’s ineffective assistance

claims were merely based on trial counsel’s strategic choices made

after thorough investigation of the case. However, even assuming,

arguendo, that the alleged errors demonstrated deficient

performance, the jury’s findings have not been rendered unreliable

because the evidence in the record overwhelmingly supports

defendant’s guilt. Therefore, defendant’s ineffective assistance of

counsel claim fails.” (Emphasis added.) Nichols, No. 1-05-0500

(Sept. 6, 2006) (unpublished order under Rule 23) at 14.

¶ 22 We also rejected his claim that his 50-year sentence was excessive. Id. at 15-16.

Defendant’s petition for leave to appeal to our supreme court was denied.

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¶ 23 Initial Pro Se Postconviction Petition

¶ 24 In November 2007, defendant filed his initial pro se petition under the Act. He alleged,

inter alia, that his trial counsel was ineffective in failing to discredit Leighty’s testimony. He

claimed that Leighty had contacted him by phone and stated that “ ‘she was forced to lie on me.’”

He faulted trial counsel for not bringing to light “recorded conversations” in which Leighty

allegedly admitted she lied in her testimony. He also faulted appellate counsel for not raising this

issue on direct appeal.

¶ 25 In February 2008, the circuit court summarily dismissed the initial pro se petition. On

appeal, this court affirmed that dismissal. People v. Nichols, No. 1-08-2162 (May 4, 2010)

(unpublished order under Rule 23). In that order, we noted that defendant did not submit an

affidavit from Leighty attesting that she had falsely implicated him. We also reasoned that his

ineffective assistance claim was meritless because defendant “was not prejudiced by the absence

of Leighty’s recantation because James, an independent eyewitness, provided an account of the

shooting and identified defendant in a police photo array and a lineup.”

¶ 26 First Successive Postconviction Petition and Leighty’s Written Recantation

¶ 27 In December 2012, defendant moved for leave to file a successive post-conviction petition,

attaching a proposed successive petition. He alleged that his conviction and sentence were

unconstitutional and void on various grounds, including that the State solicited Leighty’s false

testimony and that his trial counsel “failed to investigate the facts behind witness Leighty[’s]

admission that she was being forced to lie against [defendant.]” Also in December 2012, defendant

filed a motion to have to have counsel appointed to represent him.

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¶ 28 In July 2013, defendant (through counsel) moved to amend the first successive petition to

include a claim of actual innocence. That amendment relied on two statements by Leighty: an

unnotarized handwritten statement dated February 26, 2009 and a notarized affidavit dated August

16, 2010. In the 2009 statement, Leighty claimed that police took her into custody and coerced her

into signing a statement that implicated defendant in the shooting. She claimed she did not know

what happened. In the August 2010 affidavit, Leighty stated that she was “threatened[,] coerced

and mislead by detective Brian Johnson” to sign a statement implicating defendant, although she

did not know the identity of the shooter. She claimed she was told she would be “booked for

murder” if she did not name the person who committed the crime, and defendant was “the only

one I knew in Chicago at that time that I could state did this and make the story seem legit.” She

stated: “it has been eating away at me knowing that the person that actually committed this murder

is possibly out free while an innocent man is behind bars.”

¶ 29 In October 2013, the circuit court denied leave to file the successive petition, finding

defendant did not establish a claim of actual innocence. Although it found Leighty’s affidavits

were newly discovered and non-cumulative, it reasoned they were not of such conclusive character

that they would probably change the result on retrial.

¶ 30 On appeal, this court affirmed the denial of leave to file the first successive petition, finding

that defendant had not met the requirements for an actual innocence claim. People v. Nichols, No.

1-14-0560 (March 30, 2016) (unpublished order under Rule 23). We reasoned that Leighty’s

statements of recantation were “not so conclusive that they would probably lead to a different

result at retrial. [Citations.]” Id. ¶ 31. We explained that “Leighty’s recantation do[es] not

exonerate defendant because in a potential retrial, the State would be able to again present the

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testimony of James, who witnessed the offense and identified defendant to police in a photo array

and lineup.” Id. ¶ 32. We also noted that James’ testimony that he saw Leighty at the scene of the

shooting corroborated Leighty’s trial testimony. Id. We also recognized that “[r]ecantation

testimony is ‘inherently unreliable’.” Id. ¶ 34.

¶ 31 Defendant’s Petition Under Section 2-1401(f) of the Code of Civil Procedure

¶ 32 In February 2014, defendant filed a pro se petition for relief pursuant to section 2-1401(f)

of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2014)), claiming that his conviction

and sentence were void due to defects in the charging instrument and other “unconstitutional acts”,

including prosecutorial misconduct. Within the section of that petition entitled “Argument Two”,

he argued that the prosecutor mislead the jury to believe James “pointed out petitioner on the same

night of the incident” when in fact, James did not view a photo array until several days later, on

August 2, 2001. He also argued that James’ identification testimony was “contradictory, unreliable

and general at best.”

¶ 33 In October 2014, the circuit court dismissed the section 2-1401 petition, reasoning that (1)

a section 2-1401(f) petition was not the proper procedure to raise constitutional violations, and (2)

defendant’s claims were otherwise waived or barred by res judicata. Defendant appealed (no. 1-

14-3459), and his appointed counsel filed a motion for leave to withdraw pursuant to Pennsylvania

v. Finley, 481 U.S. 551 (1987). This court granted that motion and affirmed the denial of the section

2-1401 petition. People v. Nichols, no. 1-14-3459 (Oct. 26, 2016) (unpublished summary order

under Rule 23(c)(2)).

¶ 34 In January 2018, defendant filed a pro se “Motion to Vacate a Void Judgment and

Memorandum of Law”, asserting the conviction was void for lacked subject matter jurisdiction,

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because detective Johnson “did not have legal authority to initiate any prosecution.” That petition

was denied in February 2018. Defendant appealed (appeal no 1-18-1061). Defendant’s appointed

appellate counsel moved for leave to withdraw pursuant to pursuant to Finley, 481 U.S. 551 (1987).

In March 2020, this court granted the Finley motion and simultaneously dismissed the appeal as

untimely. People v. Nichols, No. 1-18-1061 (March 3, 2020) (unpublished summary order under

Rule 23(c)(1)).

¶ 35 The Instant Motion for Leave to File A Successive Petition

¶ 36 On September 29, 2012, defendant filed another motion to file a successive postconviction

petition, the denial of which is the subject of the instant appeal. In that motion, defendant asserts

that his trial counsel provided ineffective assistance by failing to file a motion to suppress James’

identification “to expose the police misbehavior” and prove his innocence.

¶ 37 Defendant claims that in 2016, the Freedom of Information Act (FOIA) “was revamp[ed]”

to allow him to obtain information on his case, although he provides no statutory citation and does

not state whether he is referring to Illinois or federal law. He states that he filed a FOIA request

“for the chain of evidence in this case” and “[u]pon review of these documents petitioner found

that trial [counsel] was ineffective for failure to file a motion to suppress the identification of a key

state witness,” that is, James. Defendant asserts that had trial counsel done so, she “could have

confronted the identification of this witness statement and enlighten the court on this detective

misconduct and prosecution conduct for placing [James] on the stand.”

¶ 38 Defendant’s motion claims the documents he obtained through FOIA show police

misconduct and the falsity of James’ photo array identification. Specifically, he asserts that

whereas detective Johnson and James testified that James identified defendant in a photo array on

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August 2, 2001, the documents he obtained show that Chicago police did not yet possess any

photograph of defendant until two days later, August 4, 2001.

¶ 39 The motion attached a number of supporting documents as exhibits. These include a

Chicago Police Department “Request for Identification Photos” referencing defendant, which was

dated August 1, 2001. That request form states that Chicago Police had “No ICAM or CHRIS

photos available.” In an “Investigative Information” form dated the following day (August 2,

2001), Detective Johnson stated that defendant had been “positively identified” as the person who

shot Manriquez. That “Investigative Information” report includes a handwritten notation stating

“No Photo Available.”

¶ 40 Defendant’s exhibits also include a document that contains two photographs of defendant’s

face, including a frontal view and a profile view. That document bears a time-stamp indicating it

was sent on August 4, 2001 at 4:14 a.m.3 Its heading states “Rock Island County” and indicates it

was generated by “User: S6656” but does not otherwise identify the sender or recipient. Defendant

avers that this document was faxed by the police department in East Moline, Illinois to Chicago

police. Defendant’s motion also attaches the five photographs purportedly used in the male photo

array that the State relied on at trial, including a frontal view of defendant’s face. Defendant claims

that the image of him used in the array was derived from the image provided in the August 4, 2001

fax from East Moline Police.

¶ 41 According to defendant, these documents establish that Detective Johnson was not in

possession of defendant’s photo until August 4, 2001, which in turn proves that James’ purported

3 The time stamp states: “08/04/01 04:14:33”

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August 2, 2001 photo array identification of him “never took place.” Thus, defendant asserts that

both Detective Johnson and James gave false testimony about that specific photo identification.4

He asserts that this false testimony was “important to the State’s case” and that without it, he would

not have been convicted of murder.

¶ 42 Elsewhere in the motion, defendant suggests that James was coerced into testifying for the

State, claiming that James had pending theft charges against him when he testified at trial and that

James had a number of prior convictions. According to defendant, after James testified as a State’s

witness in defendant’s case, he “entered into a plea deal in the theft case and was sentenced only

to four months of supervision” and a $200 fine. Defendant asserts this “calls into question whether

Sherman James was coerced into testifying for the State.”

¶ 43 Defendant suggests that Detective Johnson similarly coerced Leighty to implicate him in

the shooting. Defendant suggests that Detective Johnson’s handling of his case is part of a pattern

of misconduct, claiming Detective Johnson has been accused of fabricating evidence in other

cases. Defendant cites three cases in which Johnson was accused of mistreating and coercing

detained persons. 5

¶ 44 In addition to the above-referenced documents, defendant’s motion attached a copy of

Leighty’s notarized August 2010 affidavit (which was previously submitted in support of his first

successive petition) as well as an affidavit from Melissa Maxwell dated July 31, 2021. In her

affidavit, Maxwell acknowledged that Detective Johnson interviewed her on August 1, 2001 about

4 Notably, the motion does not dispute the testimony that James identified a photo of Leighty on August 2, 2001; that James identified both defendant and Leighty in physical lineups on August 4, 2001.

5 The three federal cases referenced in the motion are Aguilar v. City of Chicago, No. 1:09 cv 01993; McRoy v. Johnson, case no. 1:04 cv 02764, and Wells v. City of Chicago, no 1:06 cv 06284.

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two acquaintances, “Sarina and Raphie.” Maxwell averred that she did not know defendant’s last

name at that time and thus did not tell police “Raphie’s” last name.

¶ 45 The Trial Court Denies the Motion for Leave to File the Successive Petition

¶ 46 On December 10, 2021, the trial court denied the motion. First, insofar as defendant

claimed trial counsel’s ineffectiveness for failing to suppress James’ photo identification, the trial

court found that defendant could not meet either the “cause” or “prejudice” requirements for leave

to file a successive petition under section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2016).

Regarding “cause”, the court acknowledged defendant’s assertion that the documents were

obtained through a FOIA request. However, the court pointed out that defendant did not specify

the date of his FOIA request, nor did he explain why he could not have obtained the same evidence

earlier.

¶ 47 Moreover, the trial court found that defendant did not satisfy the prejudice prong of the

Act’s cause-and-prejudice test, with respect to the claimed ineffective assistance in failing to seek

suppression of James’ pre-trial identification. The trial court reasoned that, to maintain the

underlying ineffective assistance claim, defendant would need to show he was prejudiced pursuant

to the standard in Strickland v. Washington, 466 U.S. 668 (1984), meaning a reasonable probability

of a different result if trial counsel moved to suppress James’ identification testimony on the basis

of the photo array. The court concluded he could not do so, finding that James’ identification of

defendant was “independently reliable” even without the photo array. The court emphasized

James’ trial testimony that he observed defendant tell Manriquez to “give it up” before he shot

Manriquez twice. The court reasoned that James’ testimony and in-court identification showed he

had “ample opportunity” to view defendant during the offense. The court also found it was

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“improbable” that a motion to suppress James’ photo array identification would have changed the

outcome at trial, because James had identified defendant at two other points: during a physical

lineup and at trial. In turn, the court reasoned that defendant was not prejudiced by his trial

counsel’s alleged failure to seek suppression of James’ photo array identification.

¶ 48 The trial court next addressed defendant’s suggestion that the State engaged in

prosecutorial misconduct by using pending charges against James to coerce him to testify against

defendant. The trial court pointed out that the motion did not attach documentation of any specific

charges. The court also noted that, in his trial testimony, James mentioned a pending traffic court

case but specified that he had not discussed that matter with the State in relation to his trial

testimony. Thus, the court concluded that there was insufficient evidence to support his claim of

prosecutorial misconduct.

¶ 49 The trial court went on to reason that the new evidence regarding the photo array did not

support a claim of actual innocence, because it was not sufficiently “conclusive” of innocence.

The court reiterated that, even without evidence of James’ August 2, 2001 photo array

identification, there were “two later identifications” of defendant by James that the jury could have

relied on as evidence of guilt. Finally, the court determined that the motion did not state a claim

of actual innocence premised on alleged police coercion of Leighty.

¶ 50 On January 3, 2022, defendant filed a notice of appeal.

¶ 51 ANALYSIS

¶ 52 On appeal, defendant seeks reversal of the denial of his motion for leave to file the

successive postconviction petition and remand for further proceedings. He asserts that he has

shown the requisite “cause” and “prejudice” under section 122-1(f) of the Act to be entitled to a

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successive petition, with respect to two claims: (1) ineffective assistance of trial counsel and (2)

the State’s use of false evidence. First, he claims he made a prima facie showing that his trial

counsel was ineffective in “fail[ing] to investigate, discover, and use evidence” undermining

Detective Johnson and James’ testimony that James identified defendant in a photo array on

August 2, 2001. He claims that, had trial counsel obtained the relevant documents, counsel could

have impeached Johnson with the report indicating there was “No Photo Available” as of August

2, 2001. Defendant similarly asserts that, had counsel obtained the document showing that his

photograph was not faxed to Chicago police until August 4, 2001, trial counsel could have

undermined the testimony of James and Detective Johson regarding the purported August 2, 2001

photo array identification. He avers that, given the importance of James’ identification testimony

to the State’s case, his trial counsel’s failure to use these documents caused him “prejudice”, within

the meaning of both the Strickland test for ineffective assistance of counsel, as well as the Act’s

cause-and-prejudice test.

¶ 53 Separately, defendant claims he made a prima facie showing that the State knowingly used

false and material testimony that James identified him in a photo array on August 2, 2001, because

the documents he submitted show that no such photo was received until August 4, 2001. He avers

that the false testimony was material, i.e., that it is reasonably likely that it affected the jury’s

verdict. In the alternative, if we do not find that he met the Act’s cause and prejudice test, he

contends that leave to file the successive petition should have been granted because he asserted a

colorable actual innocence claim.

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¶ 54 For the following reasons, we find that defendant has not met the cause and prejudice test

under the Act, and he has not set forth a viable claim of actual innocence. Thus, the motion for

leave to file a successive petition was properly denied.

Standard for Leave to File a Successive Petition

¶ 55 The Act “permits incarcerated defendants to collaterally attack their convictions by

asserting that they suffered a substantial violation of their constitutional rights at trial. [Citations]”

People v. Bailey, 2017 IL 121450, ¶ 17. The Act “contemplates the filing of only one

postconviction petition.” Id. ¶ 15. However, there are “two bases upon which the bar against

successive proceedings will be relaxed. [Citations.]” People v. Edwards, 2012 IL 111711, ¶ 22.

“The first basis for relaxing the bar is when a petitioner can establish ‘cause and prejudice’ for the

failure to raise the claim earlier.” Id. The second exception is known as the “ ‘fundamental

miscarriage of justice’ exception” which requires a petitioner to show “actual innocence.” Id. ¶ 23.

¶ 56 The General Assembly “codified the cause-and-prejudice exception in section 122-1(f) of

the Act.” Id. Section 122-1(f) of the Act “permit[s] a successive petition, but only if the defendant

first obtains permission form the court and demonstrates to the court cause and prejudice for not

having raised the alleged errors in his or her initial postconviction petition.” Bailey, 2017 IL

121450, ¶ 15. The statute includes definitions for “cause” and “prejudice”:

“Only one petition may be filed by a petition under this Article

without leave of the court. 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): a prisoner

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shows cause by identifying an objective factor that impedes 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.” 725 ILCS 5/122-1(f)

(West 2020).

¶ 57 “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.”

(Internal quotation marks omitted.) People v. Smith, 2014 IL 115946, ¶ 35. “[L]eave of court to

file a successive postconviction petition 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 petition fail as a matter of law or where the successive petition with supporting document is

insufficient to justify further proceedings.” Id.

¶ 58 Both prongs of the cause and prejudice test must be satisfied in order to obtain leave to file

a successive petition under section 122-1(f). Edwards, 2012 IL App (1st) 091651, ¶ 32. Where, as

here, denial of a motion for leave to file a successive postconviction petition implicates “purely

legal issues”, our review is de novo. People v. Wrice, 2012 IL 111860, ¶ 50.

¶ 59 The State’s Res Judicata Argument Regarding the Ineffective Assistance Claim

¶ 60 Defendant asserts that he has satisfied the Act’s cause and prejudice test with respect to his

claims. However, as a threshold matter, we first address the State’s argument that defendant’s

claim of trial counsel’s ineffectiveness is forfeited or barred by res judicata.

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¶ 61 The State points out that defendant has already raised an unsuccessful ineffective assistance

of trial counsel claim concerning James’ identification testimony. Specifically, in defendant’s

posttrial motion (argued by different counsel than trial counsel) and on direct appeal, defendant

asserted that his trial counsel was ineffective in failing to file motions to undermine James’

identification, including the purported photo array identification that is the subject of the instant

motion. The State emphasizes that in our 2006 decision on direct appeal, this court determined that

the ineffective assistance claim failed because defendant could not show resulting prejudice from

the alleged ineffectiveness. People v. Nichols, No. 1-05-0500 (Sept. 6, 2006) (unpublished order

under Rule 23) at 14 (“even assuming arguendo, that the alleged errors demonstrated deficient

performance, the jury’s findings have not been rendered unreliable because the evidence in the

record overwhelmingly supports defendant’s guilt.”)

¶ 62 The State’s res judicata argument is persuasive. Although we acknowledge that the instant

motion relies on new documents, our court previously determined on direct appeal that defendant

could not show Strickland prejudice by claiming trial counsel failed to suppress any of James’

identification testimony, including the same photo array. As explained below, this is fatal to the

claim of trial counsel’s ineffectiveness that defendant now seeks to assert.

¶ 63 We reiterate that the “ ‘scope of [a postconviction proceeding is limited to constitutional

matters that have not been, nor could have been, previously adjudicated.” People v. Woods, 2020

IL App (1st) 162751, ¶ 64 (quoting People v. Harris, 224 Ill. 2d 115, 124 (2007)). “ ‘Any issues

that could have been raised on direct appeal, but were not, are procedurally defaulted, and any

issues that have previously been decided by a reviewing court are barred by res judicata.’ ” Id.

¶ 64 “It is true that ‘the doctrines of res judicata and forfeiture are relaxed where *** the facts

relating to the issue do not appear on the face of the original appellate record.” Woods, 2020 IL

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App (1st) 162751, ¶ 66 (quoting People v. English, 2013 IL 112890, ¶ 22). However, “[a]

defendant cannot overcome a res judicata bar simply by bolstering a previously rejected claim

with additional evidence.” Id. ¶ 67 (res judicata applied where defendant offered evidence that

was not part of the original appellate record, but the “basic factual predicate of her claim remains

the same.”).

¶ 65 Here, the record reflects that defendant previously raised (and lost) a claim of ineffective

assistance premised on trial counsel’s failure to seek suppression of James’ identification

testimony, after defendant argued that the photo array was unduly suggestive. In seeking leave to

file a successive petition, defendant again faults trial counsel for failing to attack James’ photo

identification, albeit on different factual grounds: namely, that James’ photo identification could

not have happened on August 2, 2001 because Chicago police allegedly did not receive the

photograph until two days later.

¶ 66 While the specific factual basis for the instant claim regarding the photo array is new, the

viability of both the prior and instant ineffectiveness claims share a common determinative issue

when it comes to the requisite showing of prejudice to satisfy Strickland, 466 U.S. 668 (1984).

“Under Strickland, to prevail on a claim of ineffective assistance of counsel, a defendant must

show both that counsel’s performance was deficient and that the deficient performance prejudiced

the defendant.” People v. Cherry, 2016 IL 118728, ¶ 24. The prejudice prong requires a showing

of a “reasonable probability” that, but for counsel’s errors, “the result of the proceeding would

have been different.” Id. (quoting Strickland, 466 U.S. at 687). A “reasonable probability” means

a “probability sufficient to undermine confidence in the outcome of the proceeding.” (Internal

quotation marks omitted.) People v. Peterson, 2017 IL 120331, ¶ 79.

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¶ 67 With this standard in mind, it becomes clear that the prior unsuccessful ineffective

assistance claim and that in the instant appeal involve a common question. As both claims fault

trial counsel for not challenging the same photo array evidence (albeit on different grounds) the

prejudice prong inquiry is essentially identical—whether there is a “reasonable probability” that

trial counsel’s failure to exclude James’ photo array identification affected the ultimate result at

trial. In other words, to succeed on the instant claim, defendant would need to show that there is a

reasonable probability that he would not have been convicted, without James’ photo array

identification of defendant. However, our 2006 decision on direct appeal indicates that this court

already determined that question, in the course of addressing defendant’s prior claim that trial

counsel was ineffective in failing to challenge James’ identification of defendant. 6 Indeed, whereas

the instant motion is directed only to James’ photo array identification, our decision on direct

appeal indicated our view that the evidence of guilt was “overwhelming,” even without any of

James’ identification testimony. Johnson, No. 1-05-0500, at 14 (“Even assuming, arguendo, that

the alleged errors demonstrated deficient performance, the jury’s findings have not been rendered

unreliable because the evidence in the record overwhelmingly supports defendant’s guilt.”).

¶ 68 In short, the question of whether defendant could satisfy Strickland prejudice based on trial

counsel’s failure to suppress James’ photo array identification has already been decided against

defendant, albeit in the context of a factually different challenge to the same photo array.

Accordingly, his instant ineffectiveness challenge is barred by res judicata.

6 The record shows that defendant’s posttrial motion alleged trial counsel’s ineffectiveness for failing to suppress any of James’ identification testimony, including with respect to the photo array.

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¶ 69 Regardless of Res Judicata, Defendant’s Ineffective Assistance Claim Does Not

Satisfy the Act’s “Cause and Prejudice” Test

¶ 70 We write further to explain that, even if we were to find that res judicata did not apply, we

would nonetheless conclude that the ineffective assistance claim premised on James’ photo array

identification fails the Act’s cause and prejudice test. We keep in mind that “[t]o 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.” (Internal quotation marks

omitted.) Bailey, 2017 IL 121450, ¶ 21. “Cause” requires defendant to identify an “objective factor

that impeded” his ability to raise this specific claim during his initial post-conviction proceedings.

725 ILCS 5/122-1(f) (West 2020). “Prejudice” requires him to “demonstrat[e] that the claim not

raised during his *** initial post-conviction proceedings so infected the trial that the resulting

conviction or sentence violated due process.” Id. Defendant does not satisfy either with respect to

his claim that trial counsel was ineffective for failing to discover and use the documents attached

to the instant motion to undermine the photo array identification.

¶ 71 Defendant Has Not Shown “Cause” for Failing to Bring This Claim Earlier

¶ 72 We agree with the State that defendant’s motion and supporting documentation do not

establish “cause” for not raising this specific challenge in prior postconviction proceedings. The

current claim relies on documents that purportedly show that it was not until August 4, 2001, that

Chicago police received the photograph of defendant used in the array that James claimed to have

viewed two days earlier. As his explanation for why this specific contention was not raised in his

prior postconviction filings, defendant asserts that FOIA was “revamp[ed]” in 2016 so as to allow

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him to obtain such documents. He claims that he filed a FOIA request “for the chain of evidence”

in his case, which led to his discovery of the documents he relies on.

¶ 73 We find these unsupported assertions are insufficient to establish cause. First, defendant

provides no citation or other support for the assertion that he could only obtain the documents he

relies on after a FOIA amendment in 2016. 7 In other words, he offers no explanation why he was

not permitted (under FOIA or otherwise) to request the same evidence at any earlier time, including

before he filed his initial postconviction petition in November 2007. Further, as noted by the trial

court in denying the motion, defendant has not specified the date of his alleged FOIA request or

included a copy of such request. Indeed, he has not submitted any documentation showing when

he requested or received the documents that form the basis for his assertion that James’ photo array

identification could not have occurred on August 2, 2001. As he offers only a conclusory,

unsupported assertion for failing to raise this claim earlier, we find he has not identified an

“objective factor that impeded his ability” to raise his ineffective assistance claim during his initial

postconviction proceedings. 725 ILCS 5/122-1(f) (West 2020).

¶ 74 Defendant Otherwise Cannot Show “Prejudice” Within the Meaning of Strickland

or Section 122-1(f) of the Act

¶ 75 The failure to establish “cause” under section 122-1(f)’s cause and prejudice test is

sufficient to affirm the denial of defendant’s motion with respect to the ineffective assistance claim

related to James’ photo array identification. Nonetheless, we also explain our agreement with the

7 As the State points out, the federal FOIA Improvement Act of 2016 (Public Law No. 114-185) was enacted in 2016, but there is no reason to believe this would have any impact on defendant’s ability to obtain documents from Chicago Police Department, as the federal FOIA governs disclosure from federal government agencies. 5 U.S.S.C. § 552(a) (eff. June 30, 2016); see also foia.gov/about.html (accessed Sep. 25, 2023) (“Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency.”)

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trial court that the claim would nevertheless fail the “prejudice” requirement of section 122-1(f).

To satisfy the prejudice requirement, he must “demonstrat[e] that the claim not raised during his

*** initial post-conviction proceedings so infected the trial that the resulting conviction or sentence

violated due process.” 725 ILCS 5/122-1(f) (West 2020). He cannot do so, as he cannot establish

the prejudice prong of the two-part Strickland standard that governs the ineffective assistance

claim.

¶ 76 To prevail on his ineffective assistance claim related to counsel’s failure to investigate and

use the documents relating to the date of the photo array, defendant must show that “counsel’s

performance fell below an objective standard of reasonableness and that counsel’s deficient

performance resulted in prejudice.” People v. Johnson, 2021 IL 126291, ¶ 52. The failure to show

either deficient performance or prejudice will defeat a claim. Id. ¶ 53 (“If it is easier to dispose of

an ineffective-assistance claim on the ground that it lacks a showing of sufficient prejudice, a court

*** need not determine whether counsel’s performance was deficient. [Citation.]”).

¶ 77 As previously noted, satisfaction of the prejudice prong under Strickland means

demonstration of a “reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. [Citation.]” Id. ¶ 52. This is “a probability sufficient to

undermine confidence in the outcome—or put another way, that counsel’s deficient performance

rendered the result of the trial unreliable or fundamentally unfair.” People v. Harris, 206 Ill. 2d

293, 304 (2002). Given the totality of the trial evidence, defendant cannot meet this standard.

¶ 78 First, we agree with the State that the documents submitted do not prove that James’ August

2, 2001 photo array identification did not, in fact, take place. It is true that defendant has provided

an August 1, 2001, report by Detective Johnson indicating that no photo of defendant was

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available. We also recognize there is a document reflecting a transmission of defendant’s

photograph from “Rock Island County” on August 4, 2001. The latter document does not specify

the source, recipient, or reason for the transmission. Even assuming that trial counsel had such

documents in her possession before trial, we are not convinced they would create a “reasonable

probability” that James’ August 2, 2001 photo array identification would be suppressed before

trial, or that trial counsel could otherwise rely on them to convince the jury that James’ photo array

identification did not, in fact, occur.8

¶ 79 More importantly, even assuming that trial counsel could have successfully suppressed the

testimony that James identified defendant in the photo array, there was ample additional evidence

of defendant’s guilt. Importantly, defendant’s motion is limited to James’ photo array

identification of defendant; it does not purport to undermine the remainder of James’ trial

testimony, which clearly and repeatedly implicated defendant. James identified defendant as the

person who told Manriquez to “give it up,” approached Manriquez’s car, and “reached in the

driver’s side and shot twice.” James also identified Leighty as the woman who was outside

Manriquez’s car just before the shooting. James additionally testified that he identified Leighty in

a photo array on August 2, 2001, and that he separately identified both Leighty and defendant in

physical lineups. Thus, James’ testimony about the photo array identification of defendant was

8 We note that defendant assumes the documents he submitted prove that James never identified him in a photo array, such that Detective Johnson’s and James’ testimony about the photo array was entirely fabricated. Although we do not know what actually happened, we recognize the possibility that Detective Johnson and James were simply mistaken about the precise date that James viewed the photo array in question. For example, had trial counsel brought the documents in question to the State’s attention, it may simply have resulted in the discovery that James viewed the photo array in question on August 4, 2001, rather than August 2, 2001. That is far different from the intentional fabrication that defendant suggests is the only explanation for the chronology of the documents he submitted.

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only a small part of his overall testimony, which also included his identification of defendant in a

lineup identification and his in-court identification.

¶ 80 Moreover, the trial evidence included Leighty’s testimony that she and defendant argued

the day of the shooting, that defendant saw her when she was picked up by Manriquez, and that

defendant called her name when she was with Manriquez just before the shooting. Corroborating

James’ account, Leighty testified that she was outside of Manriquez’s car when defendant

approached the driver’s side, told Manriquez to “drop down”, and fired two shots. 9 Thus, even had

the jury never heard that James viewed a photo of defendant, there was ample evidence from which

the jury could have easily concluded that defendant was proven guilty beyond a reasonable doubt.

Indeed, either James’ or Leighty’s identification was sufficient, as both indicated they had a clear

view of the shooting. See People v. Slim, 127 Ill. 2d 302, 307 (1989) (“A single witness’

identification of the accused is sufficient to sustain a conviction if the witness viewed the accused

under circumstances permitting a positive identification”).

¶ 81 In sum, even if we were to conclude that trial counsel should have been able to exclude or

impeach James’ photo array identification of defendant, it would not raise a reasonable probability

of a different outcome at trial, given the other evidence of guilt. We are confident that the jury’s

verdict would have been the same, even without any testimony about the photo array that is the

subject of defendant’s motion. Thus, defendant cannot meet the prejudice prong of the Strickland

9 Defendant’s brief suggests that for Strickland purposes, we should now discount the strength of Leighty’s trial testimony because she subsequently recanted in prior postconviction submissions. He argues that “had the jurors also known that Leighty recanted, they would have been more likely to doubt the array’s integrity.” Yet he does not cite precedent suggesting that, on a claim of ineffective assistance in a successive petition, the “prejudice” inquiry under Strickland requires involves consideration of not just the actual trial evidence, but evidence submitted in prior (unsuccessful) postconviction petitions. In any event, even without Leighty’s testimony or James’s photo identification testimony, James gave detailed testimony implicating defendant.

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standard. See Harris, 206 Ill. 2d at 304 (“Regarding the second Strickland prong, a reasonable

probability is a probability sufficient to undermine confidence in the outcome” [Citation.]”).

¶ 82 As we conclude that defendant’s ineffective assistance claim cannot meet the prejudice

prong, it fails regardless of whether he could prove trial counsel’s performance was deficient with

respect to James’ photo array identification of defendant. See id. (“If this court concludes that

defendant did not suffer prejudice, the court need not decide whether counsel’s performance was

constitutionally deficient. [Citation.]”). As the ineffective assistance of trial counsel claim fails the

Strickland standard, we in turn conclude that defendant cannot show “prejudice” under section

122-1(f) of the Act with respect to this claim. Thus, the trial court correctly denied defendant’s

motion, with respect to this particular claim.

¶ 83 Defendant’s False Testimony Claim Also Does Not Satisfy the Cause and Prejudice

Test

¶ 84 Apart from his claim of ineffective assistance of counsel, defendant asserts that the

documents he submitted regarding the chronology of the photo array show that the State knowingly

introduced false testimony that James viewed the array on August 2, 2001. We recognize that “the

cause-and-prejudice test must be applied to individual claims, not to the petition as a whole.”

People v. Pitsonbarger, 205 Ill. 2d 444, 462 (2002). However, for many of the reasons discussed

with respect to the ineffective assistance claim, we also find that the false testimony claim does

not meet the “cause” and “prejudice” requirements of section 122-1(f). 725 ILCS 5/122-1(f) (West

2020).

¶ 85 With respect to “cause”, defendant’s conclusory assertion that he was unable to obtain the

documents until FOIA was “revamp[ed]” in 2016 is insufficient to show an “objective factor that

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impeded his ability” to raise the false testimony claim during his initial postconviction

proceedings. 725 ILCS 5/122-1(f) (West 2020). The “revamp[ing]” of the FOIA is the only

asserted basis for cause in the petition.

¶ 86 We recognize that defendant’s brief suggests additional grounds for us to find “cause” for

the false testimony claim. Specifically, he now claims that before his 2007 initial postconviction

petition, he had no reason to know of Detective Johnson’s misconduct in his case, but he became

aware of this possibility after Leighty stated in 2009 that Detective Johnson coerced her into

implicating defendant. Defendant now asserts that, only after Leighty’s statement did he have

reason to discover that Detective Johnson had a history of alleged misconduct, which led him to

seek additional documentation regarding his case. Regardless of whether these specific assertions

are true, however, they were simply not included in defendant’s motion for leave to file a

successive petition. Our precedent requires us to assess “cause” based upon the contents of the

motion and supporting documentation. See Bailey, 2017 IL 121450, ¶ 24 (the cause and prejudice

determination asks “whether defendant’s pro se motion for leave to file a successive

postconviction petition adequately alleges facts demonstrating cause and prejudice.”); People v.

Smith, 2014 IL 115946, ¶ 34 (a motion for leave to file a successive petition “will meet the section

122-1(f) cause and prejudice requirements if the motion adequately alleges facts demonstrating

cause and prejudice.”). 10 The new reasons for “cause” set forth in defendant’s brief do not suffice,

10 Defendant’s brief argues that we can consider this new theory of cause, even if not alleged in the motion, because his motion contained sufficient facts from which this theory could be derived. In support, he cites three decisions concerning the first-stage dismissal of an initial pro se postconviction petition, under which dismissal is improper if the petition contains the “gist” of a meritorious claim, i.e., sufficient facts that could form the basis for a valid claim. See People v. Patton, 315 Ill. App. 3d 968 (2000); People v. Donley, 314 Ill App. 3d 671, 674 (2000); People v. Lemons, 242 Ill. App. 3d 941, 946 (1993). These decisions are irrelevant to the cause and prejudice test. They do not suggest that we may piece together

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insofar as they rely on new facts not contained in defendant’s motion. Defendant’s failure to

include allegations showing “cause” is sufficient to affirm the denial of the motion for leave to

assert the false testimony claim in a successive petition.

¶ 87 Moreover, we also find that defendant cannot show “prejudice” within the meaning of

section 122-1(f) with respect to the false testimony claim. This is because, even if it could be

proven that Johnson and James falsely testified about the August 2, 2001 photo array identification

of defendant, it would not impact the verdict given the other evidence of guilt, including James’

other identification testimony.

¶ 88 We recognize that “[a] conviction obtained through the use of false testimony implicates

due process concerns and is subject to reversal. [Citations.]” People v. Lucas, 203 Ill. 2d 410, 422

(2002). Importantly, however, even the presence of some false testimony does not automatically

warrant reversal. “[W]here the State’s case includes perjured testimony, and the State knew, a

strict standard of materiality applies, and a court of review must overturn the conviction if there is

a reasonable likelihood that the false testimony could have affected the judgment of the jury.”

(Emphasis added and internal quotation marks omitted.) Id. at 422. “This standard is equivalent to

the harmless error standard.” Id. (quoting People v. Olinger, 176 Ill. 2d 326, 349 (1977)).

¶ 89 Reviewing all the evidence at trial, we cannot say there is a “reasonable likelihood” that

the allegedly false photo array testimony at issue affected the judgment of the jury. As discussed

above in our explanation as to why no Strickland prejudice could result from trial counsel’s failure

to exclude the same photo array testimony, there was ample additional testimony that supported

facts to form a new basis for “cause” not actually asserted in a motion for leave to file a successive postconviction petition.

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the jury’s verdict. Regardless of the disputed photo array in question, James also testified that he

identified defendant in a lineup and again identified him in court. And James’ account of

defendant’s actions was consistent with Leighty’s detailed testimony about the shooting. Thus,

even assuming arguendo that defendant could show that the August 2, 2001 photo array testimony

was false, it would not warrant reversal under the applicable harmless error standard. In turn, we

conclude that the false testimony claim fails to meet either the “cause” or “prejudice” requirements

for a successive petition under section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2020).

¶ 90 Defendant Does Not Present a Colorable Actual Innocence Claim

¶ 91 Having determined that defendant’s motion did not meet the cause and prejudice test, we

address his alternative contention that his successive petition should be allowed because it presents

a colorable claim of actual innocence. See Edwards, 2012 IL 111711, ¶ 23 (apart from the Act’s

cause-and-prejudice test, a showing of actual innocence is a second basis by which the bar to

successive postconviction proceedings is relaxed.) For the following reasons, we conclude that

defendant does not meet the requirements for such a claim.

¶ 92 A request for leave to file a successive petition on the basis of actual innocence “should be

denied only where it is clear from a review of the petition and supporting documentation that, as a

matter of law, the petition cannot set forth a colorable claim of actual innocence. [Citation.]”

People v. Robinson, 2020 IL 123849, ¶ 43. In other words, “leave of court should be granted where

the petitioner’s supporting documentation raises the probability that it is more likely than not that

no reasonable juror would have convicted the petitioner in light of the new evidence.” Id. We keep

in mind that well-pleaded allegations not rebutted by the record shall be taken as true, and we are

“precluded from making factual and credibility determinations.” Id. ¶ 45.

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¶ 93 “To establish a claim of actual innocence, the supporting evidence must be (1) newly

discovered, (2) material and not cumulative, and (3) of such conclusive character that it would

probably change the result on retrial.” Id. ¶ 47. Newly discovered evidence is evidence discovered

after trial that the defendant “could not have discovered earlier through the exercise of due

diligence. [Citation].” Id. “Evidence is material if it is relevant and probative of the petitioner’s

innocence. [Citation.]” Id. The “conclusive character element refers to evidence that, when

considered along with the trial evidence, would probably lead to a different result. [Citation.]” Id.

¶ 94 The “conclusive character of the new evidence is the most important element of an actual

innocence claim.” Id. Such new evidence “need not be entirely dispositive to be likely to alter the

result on retrial.” Id. ¶¶ 47-48. Rather, the ultimate question is “whether the evidence supporting

the postconviction petition places the trial evidence in a different light and undermines the court’s

confidence in the judgment of guilt. [Citation.]” Id. ¶ 48. “Probability, rather than certainty, is the

key in considering whether the fact finder would reach a different result after considering the prior

evidence along with the new evidence.” Id.

¶ 95 Even taking the allegations as true, we do not find that defendant presents a colorable claim

of actual innocence premised on the documents purporting to refute the testimony about James’

photo array identification. First, we do not find he has submitted well-pleaded allegations or

documents to demonstrate that the documents he relies on are “newly discovered,” i.e., both

discovered after trial “and that the petitioner could not have discovered earlier through the

exercise of due diligence.” (Emphasis added). Id. ¶ 47. As previously discussed in conjunction

with the “cause” requirement of the cause and prejudice test, defendant simply offers a conclusory

assertion that he could not have obtained the documents regarding the photo array until FOIA was

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“revamp[ed]” in 2016, without any supporting citation. Moreover, he does not offer anything to

show when he actually requested or received the documents at issue. Thus, we cannot determine

that he could not have obtained the documents earlier through the exercise of due diligence.

¶ 96 Further, even assuming arguendo that the newly submitted documents met the “newly

discovered” and “material and not cumulative” elements of an actual innocence claim, we do not

find they meet the third and most important element: they are not “of such conclusive character

that [they] would probably change the result on retrial. [Citations.]” Id. That is, we do not find that

the new documentation regarding the photo array is so conclusive that it “places the trial evidence

in a different light and undermines [our] confidence in the judgment of guilt.” Id. ¶ 48.

¶ 97 We reach this conclusion for essentially the same reasons discussed with respect to the lack

of a showing of “prejudice” for purposes of Strickland and the Act’s cause and prejudice test. We

again emphasize that the newly submitted evidence focuses on James’ purported August 2, 2001

photo array identification of defendant. Yet, even if defendant could successfully exclude or cast

doubt on that specific piece of evidence, the jury could still rely on James’ other testimony

identifying defendant as the shooter, including a lineup identification and an in-court

identification. And the jury would still be able to rely on the detailed testimony of Leighty

explaining the day’s events, which aligned with both (1) James’ photo identification of Leighty at

the scene and (2) James’ independent recollection of defendant’s actions.

¶ 98 In arguing that the new documentation he relies on is of sufficiently conclusive character

to state an actual innocence claim, defendant again urges that we should consider that Leighty

recanted her trial testimony in his prior postconviction proceedings. However, he does not cite any

case holding that we are to also consider evidence from prior postconviction submissions (in

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addition to trial evidence) in deciding whether new evidence satisfies the “conclusive character”

element of an actual innocence claim. We will not do so, as Robinson instructs simply that “the

conclusive character element refers to evidence that, when considered along with the trial

evidence, would probably lead to a different result.” (Emphasis added.) Robinson, 2020 IL 123849,

¶ 47. That is, our supreme court did not instruct that we should also review evidence from prior

unsuccessful postconviction submissions in assessing whether newly submitted evidence meets

the “conclusive character” element of an actual innocence claim. 11

¶ 99 In short, insofar as defendant asserts an actual innocence claim based on James’

purportedly false photo array identification, he does not “raise[] the probability that it is more

likely than not that no reasonable juror would have convicted the petitioner in light of the new

evidence.” Id. ¶ 43. We cannot say that the new documentation purportedly undermining the

August 2, 2001 photo identification detracts from our “confidence in the judgment of guilt.” Id. ¶

48. Accordingly, he has not stated a viable actual innocence claim upon which to bring a successive

postconviction petition.

¶ 100 CONCLUSION

¶ 101 In sum, we conclude that defendant’s motion for leave to file a successive petition was

properly denied. The new ineffective assistance claim was barred by res judicata. Moreover, he

11 Even if we were to consider the contents of Leighty’s recantation statements, it would not change our conclusion that the new documentation regarding James’ identification of defendant’s photograph does not undermine our confidence in the jury’s verdict. First, recantation testimony is “regarded as inherently unreliable.” People v. Sanders, 2016 IL 118123, ¶ 33. Moreover, James’ independent testimony identifying Leighty at the scene and identifying defendant as the shooter plainly supported the jury’s verdict, regardless of the photo array identification.

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did not satisfy the Act’s cause and prejudice test for either his ineffective assistance of trial counsel

or false testimony claims. Further, he did not demonstrate a viable claim of actual innocence.

¶ 102 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 103 Affirmed.

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