2020 IL App (1st) 171200-U
THIRD DIVISION September 30, 2020
No. 1-17-1200
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 05 CR 6983 ) DANIEL RODRIGUEZ, ) ) Honorable Defendant-Appellant. ) Stanley J. Sacks, ) Judge Presiding. _____________________________________________________________________________
JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Burke concurred in the judgment.
ORDER
¶1 Held: Denial of defendant’s motion for leave to file a successive postconviction petition reversed and remanded for further proceedings where defendant presented a colorable claim of actual innocence.
¶2 Defendant, Daniel Rodriguez, was convicted of first-degree murder and sentenced to 45
years’ imprisonment in connection with the July 26, 2003 stabbing death of the victim, Alberto
Marinez. This appeal arises from the circuit court’s denial of his motion for leave to file a
successive postconviction petition. No. 1-17-1200
¶3 The evidence elicited at trial was set out extensively in the Rule 23 order filed in
defendant’s direct appeal. We will summarize that evidence below to the extent relevant to this
appeal.
¶4 The evidence at trial established that on July 26, 2003, at approximately 3:00 a.m., multiple
Chicago police personnel were assigned to investigate a homicide outside a restaurant known as
“Raymond’s Tacos” at 2653 West Cermak Street. The body of the victim was found at that location
with multiple stab wounds. The parties stipulated that the medical examiner would testify that the
cause of death was multiple stab wounds and the manner of death was homicide.
¶5 Also at approximately 3:00 a.m. on July 26, 2003, Chicago police officers were following
a grey Chevy Lumina that traveled at a “high rate of speed” through a stop sign at the intersection
of 22nd Place and California Street. As the officers prepared to “head off” the vehicle, the driver
jumped out and fled on foot, and the car crashed into a fence. One officer pursued the driver of the
vehicle but ultimately lost sight of him. The three other suspects in the vehicle were detained, and
they included two male suspects, Carlos Estrada and Andreas Bahena (also known as Antonio
Abarca) (hereinafter “Abarca”), and a female suspect, Anali DeLeon. After speaking to the three
suspects, a detective issued an investigative alert for “Daniel Rodriguez.” Defendant was
eventually arrested on February 16, 2005.
¶6 Estrada, who had pled guilty to the second-degree murder of the victim and was serving a
sentence of 20 years’ imprisonment, testified at defendant’s trial, and his videotaped statement
made on July 27, 2003, was entered into evidence.
¶7 In the videotaped statement, Estrada was advised of his rights, and thereafter told
investigators that in the early morning hours of July 26, 2003, Estrada was robbed by a man after
Estrada left a party. After the robbery, Estrada got into his car and went to get his “brother Daniel
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Rodriguez,” who he identified in a photograph. Estrada told defendant about the robbery, and
defendant became upset and asked Estrada if he wanted to find the person who had robbed him.
Estrada stated that he did and then he and defendant, along with defendant’s girlfriend and Abarca,
entered Estrada’s car. Estrada drove while defendant sat in the front passenger seat and the others
sat in the rear.
¶8 As they were driving, defendant saw the victim near Raymond’s Taco Restaurant and asked
Estrada if that was the person who robbed him. Estrada responded affirmatively, and he and
defendant then exited the vehicle and approached the victim. As he got out of the car, Estrada
grabbed his “club,” which he used to lock the steering wheel of the car, from the rear floor of the
car.
¶9 Estrada saw defendant hitting the victim in the stomach and Estrada began to hit the victim
in the shoulders with the club. Estrada then noticed that the victim had blood on his hands, that
defendant had a knife, and that the victim did not have a weapon in his hands. Estrada returned to
his vehicle carrying the club and got into the driver’s seat while defendant got into the front
passenger seat. Estrada drove down Washtenaw Street to 22nd Place and, after Estrada almost
collided with another car, defendant told Estrada that he would drive. Estrada and defendant
switched places and defendant drove down 22nd Place and turned into an alley when they were
approached by a police car. Defendant jumped out of the car while it was still moving and ran
away, and the car crashed into a fence.
¶ 10 Near the conclusion of the videotaped statement, Estrada stated that he had been treated
“okay” by the detectives and the assistant state’s attorney (ASA), that he had eaten, and that he
had been allowed to use the restroom. Estrada also stated that he was not under the influence of
3 No. 1-17-1200
drugs or alcohol and that no threats or promises had been made to him in order to obtain his
statement.
¶ 11 At defendant’s trial, Estrada essentially recanted the above videotaped statement. Estrada
testified that during the early morning hours of July 26, 2003, Estrada was robbed by three men,
one of whom was the victim. Estrada then testified that he did not remember anything that
happened after the robbery because he was “very drunk.” Estrada did not remember if he went to
get defendant after the robbery, if he saw defendant punching the victim while holding a knife in
his hands, or if he gave a videotaped statement. Estrada did not remember being arrested at 3:00
a.m. on July 26, 2003, but he did remember that he was “captured” by the police and that the police
“beat [him] up” at the police station. Before Estrada spoke to an ASA and a detective, the police
hit him in order to “tell [him] what to say” and the ASA told him he was going to be charged with
first-degree murder. Estrada testified that he lied in his videotaped statement because the police
had accused him of stabbing the victim and he was worried he would get “in a lot of trouble for
that.” Estrada did not try to correct the false statement, because his attorney told him the statement
could be used to convince someone that he committed only second-degree murder. Estrada
explained that he “came up” with the story because he was the only person being charged with the
crime and was therefore willing “to say whatever [he] needed to say in order to get the deal.”
¶ 12 During his testimony at defendant’s trial, Estrada described the relevant events in a variety
of ways. He testified that defendant was not his brother and that he had never seen defendant
before, but later stated that he knew defendant from “the street.” Estrada then acknowledged that
he lied on direct appeal when he said he did not remember what happened during the murder, and
he thought he could get through his testimony by claiming that he did not remember what
happened. Estrada then testified that he, Estrada, was the one who actually robbed and stabbed the
4 No. 1-17-1200
victim. Estrada further testified that he joined a gang prior to his incarceration, that Abarca was
also a member of that gang, and that people in that gang would be upset if he talked about someone
else in the gang having committed a crime. Finally, Estrada testified that the police did not tell him
to name defendant as the person who stabbed the victim, that the police simply told him to name
someone else as having stabbed the victim, and that it was his idea to name defendant as that
person.
¶ 13 The court found defendant guilty of first-degree murder and sentenced him to 45 years’
imprisonment. The court noted that the Estrada gave a “pretty detailed account of what
happen[ed]” in his videotaped statement, and concluded that Estrada was not “smart enough to
make up” that account.
¶ 14 On direct appeal, defendant argued that the State failed to prove him guilty beyond a
reasonable doubt and that trial counsel was ineffective for eliciting damaging identification
evidence during his cross-examination of Estrada. This Court affirmed, finding the evidence was
sufficient to prove defendant’s guilt and the testimony defense counsel elicited on cross did not
impact the outcome of the trial. People v. Rodriguez, No. 1-06-3525 (June 27, 2008) (unpublished
pursuant to Rule 23).
¶ 15 Thereafter, in January 2010, defendant filed a pro se petition for postconviction relief. In
that petition, defendant alleged, among other things, that his trial counsel was ineffective for failing
to investigate and present various alibi witnesses. In support, defendant attached unsigned
“affidavits” attributed to six named witnesses, asserting that defendant had been living with them
in Mexico on July 26, 2003. Defendant also included his own signed statement, which explained
that, due to the circumstances of his incarceration, he had limited phone contact with an individual
who had contact with the witnesses in Mexico, and that defendant had been unable tell the
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witnesses where to mail their signed affidavits. On March 5, 2010, the court dismissed defendant’s
petition as frivolous and patently without merit, on the basis that the purported witness statements
were not affidavits “in compliance with the postconviction act.” This Court affirmed the summary
dismissal of defendant’s post-conviction petition. People v. Rodriguez, 2011 IL App (1st) 100945-
U.
¶ 16 On August 3, 2011, while the first post-conviction appeal was pending, defendant filed a
pro se motion for leave to file a successive postconviction petition alleging actual innocence,
ineffective assistance of counsel, and a due process violation based on the State’s knowing use of
perjured testimony to secure his conviction. The motion purported to attach an affidavit from
Abarca, however, there was no affidavit attached to the petition. The trial court denied defendant
leave to file a successive petition, and this court granted counsel’s Finley motion to withdraw from
the appeal of that order and affirmed the judgment below. People v. Rodriguez, 2013 IL App (1st)
113200-U.
¶ 17 In November 2011, defendant filed a second pro se motion for leave to file a successive
postconviction petition. Defendant alleged that he was actually innocent based on the “voluntary
declaration” of Abarca. Defendant attached an unnotarized “voluntary declaration” of Abarca, in
which Abarca stated generally that that on July 26, 2003, he was a passenger in a car with Estrada;
DeLeon; and Estrada’s brother, Daniel “Dreamer” Estrada (”Dreamer”). Estrada further stated that
it was Estrada and Dreamer who exited the car at Raymond’s Tacos and Estrada returned with a
bloody knife. Abarca stated that it was Dreamer who was driving the car and fled from police.
¶ 18 Abarca further stated that he was not cooperative at the police station, so the police
physically abused him. Eventually, the police showed him a picture of the person DeLeon “said
did it,” so Abarca agreed to identify that person. Later, the police told him that they had “picked
6 No. 1-17-1200
up the guy from the picture,” and they knew he “wasn’t the one that did it.” The police then showed
Abarca a statement that DeLeon signed and showed him pictures of defendant, who Abarca stated
that he knew from the neighborhood. The police threatened to charge Abarca with murder if he
did not agree with DeLeon’s story that defendant did it. According to Abarca, the police “said that
[defendant] was a piece of s***” who they suspected of “committing another previous gang
murder,” and that they had “been wanting to get him off the streets.” Due to the threats and the
physical abuse, Abarca agreed to implicate defendant.
¶ 19 Abarca stated, however, that “[o]ver the last couple of years of [his] incarceration,” Abarca
had been trying to “get closer to God by reading the bible,” and wanted to tell the truth. Abarca
reiterated that defendant was not in the car with him, Estrada, Dreamer, and DeLeon. Abarca stated
that he would have been willing to testify at trial to these facts if only a lawyer had contacted him,
and that he would still be willing to so testify.
¶ 20 On December 2, 2011, the circuit court denied defendant leave to file his second successive
petition, noting that Abarca’s non-notarized “voluntary declaration” was not an affidavit within
the meaning of the Post-Conviction Act. Defendant did not appeal that denial.
¶ 21 Thereafter, on June 20, 2012, defendant filed a third pro se motion for leave to file a
successive post-conviction petition, which is the subject of the instant appeal. As grounds for relief,
defendant claimed that he is actually innocent based on newly discovered evidence. In support,
defendant attached a notarized affidavit of Abarca. Defendant asserted various difficulties in
locating and obtaining an affidavit from Abarca, who was “in the federal prison system.”
Defendant stated that prison rules prohibited defendant from communicating with Abarca without
the warden’s permission, which he sought to no avail. Additionally, defendant maintained that the
7 No. 1-17-1200
Illinois Department of Corrections (IDOC) had provided him with inadequate forms, and denied
him the services of a notary.
¶ 22 In Abarca’s affidavit, he averred to substantially the same sequence of events described in
his “voluntary declaration” submitted as part of defendant’s second pro se petition for leave to file
a successive post-conviction petition. Abarca, however, added that when Estrada pulled the car up
to Raymond’s Tacos, Estrada told Dreamer “let’s go talk to [the victim].” Estrada and Dreamer
got out of the car, and Abarca drove to a nearby parking lot and then walked back toward Estrada,
Dreamer and the victim. Abarca saw the victim holding a knife. Estrada told Dreamer to hit the
victim and Dreamer complied. The victim dropped the knife, and Estrada grabbed it and stabbed
the victim. Abarca stated that he could not stop any of this because he did not know it was going
to happen and he did not want Estrada or the victim to kill him. When he returned to the car,
Estrada was holding the bloody knife. Estrada told DeLeon he would kill her if she told, and
instructed Abarca to get in the car. Abarca got in because he was scared Estrada would kill him.
Estrada initially drove, but then pulled over and told Dreamer to drive. Estrada wiped off the
bloody knife and threw it out the window. After they were blocked in by the police in the alley,
and Dreamer got out and ran away, Estrada told Abarca and DeLeon not to tell the police anything.
Abarca stated that Estrada was a “gang Chief” and Estrada’s family could have easily murdered
Abarca’s family in Mexico. Abarca did not tell the police any of this because he did not want to
get charged with murder or put himself or his family in danger.
¶ 23 Defendant also attached his own notarized affidavit, in which he averred to a telephone
conversation he had with DeLeon, in which she stated that the police coerced her into identifying
another individual, and thereafter, defendant, after it was determined that the first man was not
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involved. DeLeon also related to defendant that Estrada is a “powerful gang member” who
threatened to kill her if she talked, and that he was capable of having her family in Mexico killed.
¶ 24 In addition to his claim of actual innocence, defendant also raised claims that the State
committed a Brady violation by failing to disclose evidence that Abarca and DeLeon initially
identified a different person as the assailant, and evidence that the police used improperly coercive
tactics. Defendant also contended that he received ineffective assistance of trial counsel where,
among other things, counsel did not sufficiently investigate Abarca as an eyewitness.
¶ 25 Thereafter, defendant filed supplements to his petition on September 6, 2013, December
18, 2013, and May 9, 2014. Among other claims, defendant reiterated his claim of actual innocence
and presented two signed and notarized affidavits from Jorge Flores and Jose Salinas.
¶ 26 Flores averred that he saw Estrada stab someone in front of Raymond’s Tacos and Flores
did not see defendant anywhere in the area at the time of the murder. The man who was with
Estrada at the time showed up at Flores’s house later that day and told Flores not to say anything.
Flores had since learned that defendant was convicted of the murder that he saw Estrada commit,
and Flores knew that defendant was not involved in the crime. Flores stated that he would be
willing to testify to the above, and he did not come forward sooner because he was afraid Estrada
would kill him.
¶ 27 Salinas averred that he was present for the murder of the victim on July 26, 2003. Salinas
saw Dreamer hit the victim with an object and saw Estrada stab the victim. Dreamer later showed
up at Salinas’s house with some of the “Insane Deuces” from Aurora and threatened to kill Salinas
if he said anything. Salinas further averred that he did not see defendant anywhere in the area on
the night of the victim’s murder. Salinas stated that he did not come forward with this information
9 No. 1-17-1200
sooner because Dreamer threatened him and because he knew Estrada would have gotten his fellow
gang members to kill Salinas or his family.
¶ 28 On February 11, 2016, counsel entered an appearance on behalf of defendant. Defendant,
through counsel, filed another supplement to his petition on December 6, 2016, expanding on the
claims in defendant’s earlier pro se filings. Defense counsel also attached police records showing
that on July 26, 2003, police initially arrested a different individual, who was also named David
Rodriguez, based on DeLeon’s identification of him as the victim’s assailant, but the police ended
up releasing that individual without any charges.
¶ 29 On March 9, 2017, the circuit court ruled on defendant’s motion for leave to file a
successive post-conviction petition without argument from the parties. The court found that
Abarca’s affidavit was not newly discovered evidence where he was listed in the police reports
and his testimony could have been obtained sooner through due diligence. The court further found
that Abarca’s testimony was not so conclusive that it would have changed the result on retrial
where, had he testified, he would have been impeached by his previous statements to police naming
defendant as the person who stabbed the victim. The court also pointed out that the affidavit was
internally inconsistent where Abarca stated he would not tell police what really happened because
he feared Estrada, but also stated that he would have been willing to testify had he been contacted
to do so.
¶ 30 The circuit court further found that the affidavits of Flores and Salinas were not material
to defendant’s guilt or innocence because they only indicated they did not see defendant at the
scene, which did not rule out his involvement. The court additionally found the proposed testimony
was not so conclusive as to probably change the result on retrial where they provided only vague
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observations, or generalized information, about the events, which did not outweigh the evidence
presented at trial.
¶ 31 With regard to the Brady violation, the circuit court found that defendant’s claim that the
police withheld Abarca’s and DeLeon’s initial statements and identifications of someone else was
not exculpatory or impeaching, and defendant’s claim was unsupported and conclusory. Finally,
the court found defendant’s claim of ineffective assistance of trial counsel meritless where there
was no basis for counsel to believe that Abarca had any relevant information that would aid in
defendant’s defense when he named defendant as the perpetrator in his statements to police, and
even if counsel’s performance was deficient, Abarca’s testimony would not have changed the
outcome of the trial.
¶ 32 Accordingly, the circuit court concluded that defendant failed to raise a cognizable claim
of actual innocence, or to satisfy the cause and prejudice test necessary to advance his claims. The
court denied defendant leave to file his successive post-conviction petition.
¶ 33 Defendant filed a motion to reconsider on April 7, 2017, which was denied on April 26,
2017. Defendant filed a timely notice of appeal from that denial.
¶ 34 In this appeal, defendant argues that he made a colorable claim of actual innocence, and
asks this court to reverse the denial of his motion for leave to file a successive petition and remand
for second stage proceedings. We initially note that by limiting his challenge to his actual
innocence claim, defendant forfeited review of the remaining claims in his petition. Ill. S. Ct. R.
341(h)(7) (eff. May 25, 2018); People v. Guest, 166 Ill. 2d 381, 414 (1995); People v. Enis, 194
Ill. 2d 361, 376 (2000) (a reviewing court will “consider only those claims that defendant raised
on appeal”).
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¶ 35 The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a
penitentiary to challenge his conviction or sentence on the grounds that it was the result of a denial
of his constitutional rights. 725 ILCS 5/122-1 (West 2016); see also People v. Robinson, 2020 IL
123849, ¶ 42 (“The Act provides a statutory remedy to criminal defendants who assert claims for
substantial violations of their constitutional rights at trial.”). The Act ordinarily contemplates the
filing of a single postconviction petition (id.) and a defendant must obtain leave of court before
filing a successive petition (725 ILCS 5/122-1(f) (West 2018)). A court should grant leave where
a defendant can show either (1) cause and prejudice for failure to raise the claim earlier, or (2) a
“fundamental miscarriage of justice” based on actual innocence. Robinson, 2020 IL 123849, ¶ 42;
People v. Edwards, 2012 IL 111711, ¶¶ 22-23. We review de novo a trial court’s denial of leave
to file a successive postconviction petition. People v. Bailey, 2017 IL 121450, ¶ 15.
¶ 36 Here, defendant maintains that leave should have been granted based on his actual
innocence claim. A request for leave to file a successive petition 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. Robinson, 2020 IL 123849, ¶ 44.
Accordingly, 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. The determination of whether a postconviction
petition sets forth a colorable claim of actual innocence is a question of law that we review de
novo. Id. ¶ 40.
¶ 37 At the pleading stage of postconviction proceedings, all well-pleaded allegations in the
petition and supporting affidavits that are not positively rebutted by the trial record are to be taken
as true, and the court is precluded from making factual and credibility determinations, which can
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“be made only at a third-stage evidentiary hearing.” Id. ¶¶ 45, 61. Moreover, evidence is not
“positively rebutted simply because it was contradicted by the evidence presented at trial.” Id. ¶
60. “For new evidence to be positively rebutted, it must be clear from the trial record that no fact
finder could ever accept the truth of that evidence, such as where it is affirmatively and
incontestably demonstrated to be false or impossible ***.” Id.
¶ 38 The supreme court recently explained the standard for actual innocence claims in Robinson,
2020 IL 123849, ¶¶ 47-48, as follows:
“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. [Citations.] Newly
discovered evidence is evidence that was discovered after trial and that the
petitioner could not have discovered earlier through the exercise of due diligence.
[Citation.] Evidence is material if it is relevant and probative of the petitioner’s
innocence. [Citation.] Noncumulative evidence adds to the information that the fact
finder heard at trial. [Citation.] Lastly, the conclusive character element refers to
evidence that, when considered along with the trial evidence, would probably lead
to a different result. [Citation.] The conclusive character of the new evidence is the
most important element of an actual innocence claim. [Citation.]
Ultimately, the 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.] The new evidence need
not be entirely dispositive to be likely to alter the result on retrial. [Citation.]
Probability, rather than certainty, is the key in considering whether the fact finder
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would reach a different result after considering the prior evidence along with the
new evidence. [Citation.]”
¶ 39 In this case, defendant contends that he presented a colorable claim of actual innocence
based on the affidavits of Abarca, Salinas, and Flores. Those affiants generally aver that they were
present for the murder of the victim, that defendant was not present, and that Dreamer was the
second perpetrator along with Estrada. The affiants also aver to their prior unwillingness to come
forward with this information in light of threats by Estrada and/or Dreamer, and fear that they or
their families would be killed if they did so. Abarca also avers that his identification of defendant
was procured by threats, physical abuse, and coercion by the police.
¶ 40 The proposed testimony of Abarca, Salinas, and Flores is material, where all three averred
that they were eyewitnesses to the victim’s stabbing, that it was Estrada and Dreamer who
participated in the murder, and that defendant was not present. See People v. Coleman, 2013 IL
113307, ¶ 103 (testimony that witnesses were “present for or involved in the attack” and “that the
defendant was not” is “relevant, and probative of the defendant’s innocence.”); People v. Adams,
2013 IL App (1st) 111081, ¶ 35 (“viewing the facts alleged in [the] affidavits as true, evidence that
someone other than defendant killed the victim and that defendant was not present at the scene is
certainly material”). Moreover, the proposed testimony is not cumulative to any evidence
presented at defendant’s bench trial, as it contradicts the videotaped statement of Estrada and
implicates an alternative perpetrator in the murder of the victim. See People v. Ortiz, 235 Ill. 2d
319, 335-336 (2009) (where “testimony supplied a first-person account of the incident that directly
contradicted the prior statements of the two eyewitnesses for the prosecution,” it “added to what
was before the fact finder” and was “not merely cumulative.”); Adams, 2013 IL App (1st) 111081,
¶ 35 (affidavits pointing to the identity of an alternate perpetrator for the first time would “add to
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what was previously before the jury.”). Accordingly, the proposed testimony here is
noncumulative, and would add to the information that the jury heard at defendant’s trial.
¶ 41 Assuming the truth of all well-pleaded allegations in the petition and supporting affidavits
not positively rebutted by the trial record, as we must do at this stage in proceedings, we also
conclude that the proposed testimony would probably change the result on retrial. To be of such a
conclusive character, the evidence supporting a postconviction petition need not be entirely
dispositive to probably change the result on retrial. Robinson, 2020 IL 123849, ¶ 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. If a trier of fact on a retrial
believed the testimony that defendant was not present at the murder, and that it was Estrada and
Dreamer who perpetrated the crime, that testimony would be dispositive, as Estrada was the only
eyewitness at defendant’s trial that linked him to murder. There was no other eyewitness testimony
or physical evidence connecting the defendant to the crime.
¶ 42 Finally, the proposed testimony of Salinas and Flores meets the standard for newly
discovered evidence because both witnesses indicated in their affidavits that they did not come
forward sooner due to their fears of Estrada. Furthermore, neither was listed by either side as a
possible witness at the time of trial. Thus, there is no basis for concluding that defendant could
have discovered their exculpatory testimony sooner through due diligence. See Adams, 2013 IL
App (1st) 111081, ¶ 24, 27, 33 (eyewitness evidence was newly discovered where the witnesses’
proposed testimony identifying a different perpetrator “was not discovered until years after the
offense, when they came forward and signed their affidavits.”).
¶ 43 Abarca, however, was arrested near the scene of the crime and listed as a possible trial
witness by both the prosecution and defense. Accordingly, the State contends that defendant
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cannot show that Abarca’s testimony could not have been discovered sooner through due
diligence. Defendant, on the other hand, contends that he carefully detailed the various obstacles
that prevented him from investigating the substance of Abarca’s observations in his petition, and
further argues that he should not be denied relief where it was his trial counsel who did not attempt
to contact Abarca. Nevertheless, this court need not determine whether Abarca’s testimony is
newly discovered, since the affidavits of Salinas and Flores alone are sufficient to require remand
for second stage proceedings.
¶ 44 For the reasons stated, we reverse the circuit court of Cook County’s denial of the
defendant’s motion for leave to file a successive postconviction petition alleging actual innocence
and remand the case for second stage proceedings.
¶ 45 Reversed and remanded.