People v. Oliver

2024 IL App (1st) 220521-U

Opinion

2024 IL App (1st) 220521-U

No. 1-22-0521

Order filed June 28, 2024

FIFTH DIVISION

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 ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 89 CR 5408 ) HAROLD OLIVER, ) Honorable ) Tyria Walton, Petitioner-Appellant. ) Judge, presiding.

PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Lyle and Justice Navarro concurred in the judgment.

ORDER

¶1 Held: The circuit court’s dismissal of defendant Harold Oliver’s successive post-conviction petition is reversed and remanded for new second stage post-conviction proceedings where Oliver’s post-conviction counsel provided unreasonable assistance by failing to amend Oliver’s petition to include a claim of actual innocence.

¶2 Defendant Harold Oliver appeals the circuit court’s dismissal of his successive post-

conviction petition. The issue on appeal is whether Oliver’s post-conviction counsel provided

unreasonable assistance by failing to amend the petition. For the reasons below, we reverse and

remand. No. 1-22-0521

¶3 BACKGROUND

¶4 Oliver appeals from the dismissal of his fifth successive petition for post-conviction relief

from his 1997 conviction for aggravated sexual assault (Ill. Rev. Stat. 1989 ch. 38, ¶ 12-14(A)(1))

and armed robbery (Ill. Rev. Stat. 1989, ch. 38, ¶ 18-2(A)). At trial, the victim, S.S., testified that

defendant Harold Oliver raped and robbed her at gunpoint. She stated that she had been on her

way to class early in the morning when Oliver came up behind her, grabbed her, and threatened

her with a gun. According to S.S., Oliver led her to the vestibule of a nearby apartment building

where he vaginally and orally assaulted her. Mildred Williams, a tenant of the building, witnessed

the encounter and shouted at the assailant, who took the victim’s leather jacket and fled the scene.

Ms. Williams then called the police. She was later unable to identify Oliver in a lineup. Three of

Oliver’s co-workers testified that Oliver had been at work at approximately the time of the assault.

However, the State presented a DNA expert who testified that there was a high probability that

Harold Oliver was the man who had assaulted S.S.

¶5 Oliver was initially convicted of these offenses in March 1991, but this court reversed and

remand for a new trial. People v. Oliver (Oliver I), 265 Ill. App. 3d 543, 552 (1994). Upon retrial,

a jury once again found Oliver guilty of both offenses, and he was sentenced to 60 years for

aggravated criminal sexual assault and 30 years for armed robbery, to run consecutively. This court

then affirmed his convictions and sentence on appeal. People v. Oliver (Oliver II), 306 Ill. App.

3d 59 (1999). Since 2000, Oliver has continued to challenge those convictions with petitions for

post-conviction relief, alternative methods of collateral attack, and requests for further DNA

testing.

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¶6 Most recently, Oliver was granted leave to file a successive post-conviction petition

alleging that the State had committed a fraud upon the court by failing to disclose the inadequacy

of the FBI DNA database that the State’s expert, Dr. Harold Deadman, had relied on in Oliver’s

first trial. He further alleged that the testing methods used by Dr. Deadman at both the first and

second trials were not probative of Oliver’s guilt. The circuit court appointed post-conviction

counsel for Oliver who filed a certification that she consulted with Oliver, examined the record,

and submitted supplemental exhibits after learning more information about Oliver’s claims. Ill. S.

Ct. R. 651(c) (eff. July 1, 2017). Post-conviction counsel chose to stand on Oliver’s petition rather

than amend it.

¶7 The State moved to dismiss the petition based on res judicata or, alternatively, because

Oliver had not shown cause and prejudice. Post-conviction counsel argued that the supplemental

exhibits, including a letter from the FBI confirming that the DNA database that the State’s expert

had used had included numerous duplicate DNA samples, constituted new evidence that Oliver

could not have discovered sooner. Thus, because Oliver could never have included this information

in his prior filings, his claim should not be barred by res judicata. Similarly, because the

information was newly discovered and could not have been raised earlier, Oliver could show cause

for why he did not argue it earlier. Oliver was prejudiced because “this new information went to

the integrity of the forensic testing that was done and brought to light errors that existed in the

testing.” The circuit court rejected these arguments and dismissed Oliver’s petition. This timely

appeal followed. Ill. S. Ct. R. 604(d) (eff. Oct. 19, 2023).

¶8 ANALYSIS

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¶9 Oliver argues that his appointed post-conviction counsel provided him with an

unreasonable level of assistance because, among other issues, she failed to amend his petition to

state a claim of actual innocence. The State contends that there was “no reason to think that

petitioner wanted to pursue an actual innocence claim.” On this issue, we are aided by our supreme

court’s decision in People v. Addison, 2023 IL 127119, which offered a helpful framework for

analyzing claims of unreasonable assistance stemming from counsel’s failure to amend a post-

conviction petition to properly present a petitioner’s claims.

¶ 10 The Post-Conviction Hearing Act allows a prisoner to collaterally challenge his conviction

on state or federal constitutional grounds. 725 ILCS 5/122-1, et seq. (West 2018); see also People

v. Hatter, 2021 IL 125981, ¶ 22. Such a challenge involves a three-stage process. In the first stage,

the circuit court reviews the petition, taking all allegations as true, and dismissing if the petition is

“frivolous or patently without merit.” 725 ILCS 5/122-2.1(a)(2). If the petition survives the first

stage, it advances to the second, where the State has the opportunity to “file a motion to dismiss

or an answer to the petition.” People v. Cotto, 2016 IL 119006, ¶ 27. The circuit court must then

determine whether the “petition’s well-pled allegations of a constitutional violation, [] if proven at

an evidentiary hearing, would entitle petitioner to relief.” People v. Domagala, 2013 IL 113688,

¶ 35. At the third stage, “the court may receive ‘affidavits, depositions, oral testimony, or other

evidence,’ to weigh the merits of the petition and determine whether the defendant is entitled to

relief.” People v. Allen, 2015 IL 113135, ¶ 22 (quoting 725 ILCS 5/122-6 (West 2008)). Because

the case was dismissed at the second stage, we review the dismissal de novo. People v. Sanders,

2016 IL 118123, ¶ 31.

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¶ 11 It is well-settled that there is no constitutional right to post-conviction counsel. See Cotto,

2016 IL 119006, ¶ 29. However, the Act provides a statutory right to post-conviction counsel in

the second stage of proceedings. 725 ILCS 5/122-4. This statutory right is limited; a petitioner is

entitled only to reasonable assistance rather than effective assistance. People v. Hardin, 217 Ill. 2d

289, 299 (2005). Thus, the statutory standard is “significantly lower than the one mandated at trial

by our state and federal constitutions.” People v. Custer, 2019 IL 123339, ¶ 30.

¶ 12 In order to ensure reasonable assistance, the Illinois Supreme Court requires post-

conviction counsel to satisfy three obligations. Ill. S. Ct. R. 651(c). First, the attorney must consult

“with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions

of deprivation of constitutional rights ***.” Id. Second, the attorney must examine “the record of

the proceedings at the trial ***.” Id. Third, the attorney must make “any amendments to the

petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”

Id. Failure to satisfy any of these three obligations results in automatic reversal without

consideration of the merits of the underlying claim. Addison, 2023 IL 127119, ¶ 33 (“Because

counsel did not comply with Rule 651(c), our case law dictates that the cause should be remanded

without a consideration of whether the petition’s claims have merit.”).

¶ 13 Counsel may file a certificate stating that she complied with the rule, “or the record as a

whole may demonstrate counsel’s compliance.” People v. Pabello, 2019 IL App (2d) 170867, ¶ 25.

Compliance creates “a presumption that counsel provided reasonable assistance.” Id. ¶ 24. The

burden is then on the defendant to demonstrate “his attorney’s failure to substantially comply with

the duties mandated by Rule 651(c).” People v. Profit, 2012 IL App (1st) 101307, ¶ 19. Oliver’s

post-conviction counsel filed a certificate stating that she complied with the Rule 651(c)

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requirements, thus, we presume that she provided reasonable assistance, and Oliver must overcome

this presumption. Pabello, 2019 IL App (2d) 170867, ¶ 25. We review whether post-conviction

counsel complied with Rule 651(c) de novo. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).

¶ 14 Oliver contends that (1) his petition clearly showed his intent to argue that the DNA

evidence at trial was meaningless and that he was actually innocent, and (2) post-conviction

counsel was unreasonable for failing to amend the petition and shape his claim into one of actual

innocence. To comply with Rule 651(c), post-conviction counsel must make “any amendments to

the petitions filed pro se that are necessary for an adequate presentation of petitioner’s

contentions.” Ill. S. Ct. R. 651(c); see also People v. Turner, 187 Ill. 2d 406, 412 (1999).

Importantly, “[p]ost-conviction counsel is only required to investigate and properly present the

petitioner’s claims.” (Emphasis in original.) People v. Davis, 156 Ill. 2d 149, 164 (1993). In fact,

Rule 651(c) does not contain a “requirement that post-conviction counsel must amend a

petitioner’s pro se post-conviction petition” at all, so long as any amendment would be

unnecessary. People v. Turner, 187 Ill. 2d 406, 412 (1999). Nor must post-conviction counsel

“scour the record to uncover claims that were not raised by the defendant.” People v. Milaw, 2012

IL App (1st) 100832, ¶ 33. Thus, post-conviction counsel was excused from “exploration,

investigation and formulation of potential claims,” but she was not excused from amending the

petition to properly raise Oliver’s existing argument. Davis, 156 Ill. 2d at 163.

¶ 15 Oliver’s case is closely analogous to Addison. There, Addison’s pro se post-conviction

petition had included 15 claims, each framed as a claim of ineffective assistance of counsel. 2023

IL 127119, ¶ 23. When the petition advanced to second-stage proceedings, Addison was appointed

counsel. Id. ¶ 8. His post-conviction counsel determined that only five of Addison’s claims were

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worth pursuing, and his post-conviction counsel also eliminated any reference to ineffective

assistance of counsel. Id. ¶ 24. The court determined that counsel acted unreasonably because

Addison could only avoid “the procedural bar of forfeiture by casting his claims as ineffective

assistance of appellate counsel” and post-conviction counsel had “eliminated the necessary

allegations that defendant had included in the pro se petition.” (Emphasis in original.) Id. ¶¶ 23,

25.

¶ 16 Here, Oliver’s post-conviction counsel was aware that Oliver wanted to advance an actual

innocence claim. Throughout his pro se petition, Oliver repeatedly referenced his innocence. In

the third paragraph he insisted that he has “consistently maintained his innocence for crimes he

did not commit.” And in the following paragraph he asserted that he “now seeks simple relief to

rectify this almost 30 year wrongful conviction.” Further, Oliver’s argument rests on the belief that

newly developed DNA testing methods “exclude[] Petitioner as a suspect;” that is, demonstrate

his actual innocence. Moreover, if Oliver did not intend to assert a claim of actual innocence, then

his petition would fail to allege any constitutional violation. Therefore, Oliver’s post-conviction

counsel did not need to search for the actual innocence claim; Oliver raised the argument, even if

he raised it inartfully.

¶ 17 In order 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. People v. Robinson, 2020 IL 123849, ¶ 47; see also People

v. Jackson, 2021 IL 124818, ¶ 41. “Newly discovered evidence is evidence that was discovered

after trial and that the petitioner could not have discovered earlier through the exercise of due

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diligence.” Robinson, 2020 IL 123849, ¶ 47. Evidence is material if it is relevant and probative of

the petitioner’s innocence. Id.

¶ 18 Oliver contends that there is new evidence regarding the efficacy of DNA testing methods

that would prove his innocence. He asserts that he could provide “case law and literature supportive

of the apparent claim that a DNA analysis at only six-loci was ‘totally lacking in probative value,’”

and ‘ha[s] a great potential for prejudice and for confusing the jury.’” See People v. Smith, 2012

IL App (1st) 102354, ¶¶ 175, 179 (Gordon, J., dissenting). This court has repeatedly noted that

DNA evidence is “a type of evidence that juries and courts alike find highly persuasive.” People

v. Wright, 2012 IL App (1st) 073106, ¶ 96. Given the public confidence in the probative value of

DNA evidence, if Oliver could cast doubt on the validity of that evidence, he would “place[] the

evidence presented at trial in a different light and undercut[ our] confidence in the factual

correctness of the guilty verdict.” People v. Coleman, 2013 IL 113307, ¶ 97.

¶ 19 Without the DNA evidence to corroborate the State’s arguments, the evidence against

Oliver becomes less convincing. The gun that was used in the robbery and assault was never found,

nor was the leather jacket that the assailant took from the victim. Oliver had an alibi defense; three

of defendant’s coworkers testified that Oliver was at work the morning of the assault. And the only

witness to the crime other than the victim was unable to identify Oliver in a lineup. However, even

if Oliver could successfully undermine the DNA evidence against him, we make no comment

about whether these arguments will be successful on remand. We conclude only that Oliver’s

actual innocence claim is not “frivolous or patently nonmeritorious;” therefore, amending the

petition to include that claim was “necessary” within the meaning of Rule 651(c). People v. Greer,

212 Ill. 2d 192, 205 (2004) (“If amendments to a pro se postconviction petition would only further

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a frivolous or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of the

rule.”).

¶ 20 As in Addison, Oliver’s post-conviction counsel’s failure to shape the claim into its proper

form resulted in the claim being procedurally barred. The Post-Conviction Hearing Act provides

one post-conviction petition as a matter of right. 725 ILCS 5/122-1(f) (West 2022). If a defendant

fails to raise an argument in the first petition, it is generally waived for any subsequent petition.

Id. § 5/122-3. A defendant may bring a successive post-conviction petition if he can demonstrate

cause and prejudice. People v. Taliani, 2021 IL 125891, ¶ 55. But “in a nondeath case, where a

defendant sets forth a claim of actual innocence in a successive postconviction petition, the

defendant is excused from showing cause and prejudice.” People v. Ortiz, 235 Ill. 3d 319, 330

(2009). Therefore, if Oliver’s post-conviction counsel had properly shaped Oliver’s claim into a

claim of actual innocence, he would not have needed to demonstrate cause and prejudice.

¶ 21 As to its alternative basis for dismissal, the circuit court erred in concluding that the DNA

claim was barred by res judicata. For res judicata to apply, three requirements must be met: there

must be “(1) a final judgment on the merits rendered by a court of competent jurisdiction; (2)

identity of cause of action; and (3) identity of parties or their privies.” Wilson v. Edward Hospital,

2012 IL 112898, ¶9. The court concluded that each of these requirements was met; therefore,

Oliver’s case could not move forward.

¶ 22 The first and third requirements are easily met here. There are myriad final judgments on

the merits rendered by courts of competent jurisdiction in this case. Oliver, on numerous occasions,

has availed himself of the various procedures for challenging a conviction. Additionally, the

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identity of the parties is the same as in every previous challenge that Oliver has brought. The cases

have all involved the State against Oliver, with Oliver challenging the validity of his conviction.

¶ 23 The circuit court found that identity of causes of action was satisfied because the case was

“still about the fraud misrepresentation with the testimony of Dr. Deadman and the test samples,

test results, test findings.” But “[a] cause of action is defined by the facts that give rise to a right

of relief.” Wilson, 2012 IL 112898, ¶10. This means that “[i]f the same facts are essential to the

maintenance of both proceedings or the same evidence is needed to sustain both ***” then there

is identity between the causes of action and the claim is barred. Id. Thus, if the causes of action

can only be sustained with different facts or different evidence, then there is not identity between

them.

¶ 24 The circuit court here found that these causes of action were previously disposed of during

Oliver’s first petition for post-conviction relief. In that case, Oliver alleged that Dr. Deadman had

“deviated from the FBI protocol using testing procedures that violated the required FBI testing

guidelines and standards ***.” Oliver made no mention, however, of a DNA database, nor did he

provide detail on how the expert had deviated from protocol. This is not the same cause of action

as the one presented here. While the circuit court correctly determined that the claims all revolved

around DNA evidence, the facts and evidence needed to sustain the claims is different. Where

before, Oliver attempted to show that Dr. Deadman’s deviation from protocol was improper and

led to his conviction, he now seeks to prove that new, exculpatory evidence proves his innocence.

In the former cause of action, Oliver needed evidence of Dr. Deadman’s methodology and of the

actions he took. The claim he now asserts is that the DNA testing methodologies used in his trials

are no longer viable. Instead of claiming that Dr. Deadman broke from established standards,

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Oliver now argues that Dr. Deadman’s testimony could never have been probative of his guilt.

Therefore, because each claim involves different facts and different evidence is necessary to prove

each claim, the state cannot show identity of causes of action, and Oliver’s actual innocence claim

is not barred by res judicata.

¶ 25 We are careful to reiterate that we make no comment on the merits of Oliver’s actual

innocence claim, but, consistent with Addison, Oliver must be afforded the opportunity to have his

argument heard. In light of this conclusion, we need not reach the other issues raised on appeal.

Accordingly, we reverse and remand for the appointment of new post-conviction counsel to make

the necessary amendments to Oliver’s petition to adequately present his claims.

¶ 26 III. CONCLUSION

¶ 27 The judgment of the circuit court of Cook County is reversed and remanded with directions.

¶ 28 Reversed and remanded with instructions.

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