2022 IL App (2d) 210431-U No. 2-20-0431 Order filed January 11, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 84-CF-188 ) HECTOR REUBEN SANCHEZ, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court. Justices Hutchinson and Brennan concurred in the judgment.
ORDER
¶1 Held: Appointed counsel established that no nonfrivolous arguments could be raised on defendant’s behalf; motion granted.
¶2 Defendant, Hector Reuben Sanchez, appeals the trial court’s order denying him leave to
file a successive postconviction petition. The trial court appointed the Office of the State Appellate
Defender.
¶3 Per Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63
(1993), the appellate defender moves to withdraw as counsel. In her motion, counsel states that
she read the record and found no issue of arguable merit. Counsel further states that she advised 2022 IL App (2d) 210431-U
defendant of her opinion. Counsel supports her motion with a memorandum of law providing a
statement of facts, a list of potential issues, and arguments why those issues lack arguable merit.
We advised defendant that he had 30 days to respond to the motion. That time has passed, and
defendant has not responded.
¶4 In 1984, defendant was convicted of the murder (Ill. Rev. Stat. 1983, ch. 38, ¶ 9-1(a)(1),
(a)(3)), aggravated kidnapping (id. ¶ 10-1(a)(1)), rape (id. ¶ 11-1(a)), and deviate sexual assault
(id. ¶ 11-3(a)) of Michelle Thompson and the attempted murder (id. ¶¶ 8-4(a), 9-1(a)(1)) of Rene
Valentine. He received a death sentence, later commuted to life imprisonment, for the murder and
concurrent 60-year prison terms for the other offenses.
¶5 Briefly summarized, the evidence at trial was as follows. Valentine testified that, around
1:30 a.m. on February 4, 1984, as he and Thompson were leaving a Gurnee bar called D. Laney’s,
they were approached by two men, one black and one Hispanic. The black man took Thompson
into a vehicle while the Hispanic man produced a gun. The Hispanic man took Valentine to a
remote area of the parking lot and shot him twice. Valentine later identified that man as defendant.
¶6 Warren Peters Jr., “the black man in Valentine’s narrative” (People v. Sanchez, 115 Ill. 2d
238, 252 (1986)) (Sanchez I) testified that he had been convicted of Thompson’s murder and was
awaiting sentencing. He identified defendant as his accomplice. Peters described how he and
defendant took the handcuffed Thompson in Peters’s car to defendant’s house, where defendant
raped her.
¶7 Thompson, half-naked, escaped at some point. Peters and defendant found her in the
backyard of the house next door, and defendant dragged her back to his house. Defendant was
concerned because she had been knocking on the door, so he returned to the neighbor’s house.
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When defendant came back to his house, he told Peters that he had explained the disturbance to
the neighbor.
¶8 Defendant killed Thompson with a nylon strap and a coat hanger. Defendant and Peters
drove defendant’s car to Wisconsin where they disposed of the body.
¶9 Peters testified that he left his car in defendant’s garage for several days. When it was
returned, the formerly white top had been painted black.
¶ 10 Gene Gonyo, defendant’s neighbor, testified that, around 1:30 a.m. on February 4, 1984,
he was awakened by his dog barking. He parted his drapes and saw a man and a woman near his
back door. The woman was nude from the waist down and referred to the man as “ ‘Larry,’ ” which
Gonyo knew as defendant’s nickname. The pair walked back toward defendant’s house. Defendant
later returned and apologized for the disturbance, explaining that the woman had a seizure or was
on drugs. Gonyo was awakened again around 2:30 a.m. by his dog barking. This time, he saw
defendant’s car leaving his driveway with the headlights off. At the intersection of 21st Street and
Delany Road, the car turned north on Delany toward Route 173.
¶ 11 Harold Deadman, an FBI microanalysis expert, compared hairs, fibers, and other material
collected from Thompson’s body, the crime scene, and other areas. He testified that fibers found
on her body were consistent with sources in defendant’s home and car. Thompson’s hair was
consistent with hair found in defendant’s house and car, in Peters’s car, and on Gonyo’s property.
Finally, buttons and fibers consistent with Thompson’s clothing were found in defendant’s house.
Another FBI expert testified that the paint on Peters’s car was consistent with paint found in
defendant’s garage.
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¶ 12 On direct appeal to the supreme court, defendant raised several trial and sentencing issues,
including that the evidence was insufficient. The court, having recounted the evidence at some
length, found it sufficient. Sanchez I, 115 Ill. 2d at 261-62.
¶ 13 Defendant also filed a petition for relief from judgment under section 2-1401 of the Code
of Civil Procedure (Ill. Rev. Stat.1983, ch. 110, ¶ 2-1401). Defendant attached an affidavit from
an investigator who interviewed a witness, Oscar Cartagena, who reported that he observed the
shooting of Valentine and the kidnapping of Thompson in the parking lot of D. Laney’s and that
defendant was not present. The trial court dismissed the petition, and the supreme court affirmed.
People v. Sanchez, 131 Ill. 2d 417 (1989) (Sanchez II).
¶ 14 In April 1990, defendant filed a postconviction petition raising numerous claims of
ineffective assistance of counsel at both the guilt and sentencing phases. One such claim was that
counsel was unprepared to cross-examine Deadman about his hair and fiber analysis. The trial
court dismissed the petition, and the supreme court affirmed. People v. Sanchez, 169 Ill. 2d 472
(1996) (Sanchez III). The court concluded that, even if it was deficient, defense counsel’s cross-
examination of Deadman did not prejudice defendant, because the other evidence of his guilt was
“overwhelming.” Id. at 499.
¶ 15 Defendant filed a motion for DNA testing of material found on Thompson’s body and at
the crime scene. The trial court denied the motion, but we reversed and remanded for further
proceedings. People v. Sanchez, 363 Ill. App. 3d 470, 471, 480 (2006) (Sanchez IV). On remand,
the trial court granted the motion. However, an independent laboratory found no biological
material that could be tested.
¶ 16 In March 2019, defendant, through appointed counsel, filed the pleading at issue in this
appeal: a motion for leave to file a successive postconviction petition. Defendant attached a
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proposed petition raising three main claims. First, the evidence of defendant’s guilt was
insufficient, as much of the testimony came from Peters, his alleged accomplice, who was awaiting
sentencing for Thompson’s murder. Second, recent scientific studies cast doubt on the accuracy of
eyewitness identification testimony such as Valentine’s. Third, much of the scientific evidence
against defendant at trial had since been discredited in federal reports. The trial court denied the
motion.
¶ 17 In her motion to withdraw, counsel submits that it would be frivolous to challenge the
denial of defendant’s motion for leave to file. We agree.
¶ 18 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides
a statutory remedy for criminal defendants who claim that substantial violations of their
constitutional rights occurred at trial. People v. Edwards, 2012 IL 111711, ¶ 21. The Act
contemplates the filing of only one petition. People v. Coleman, 2013 IL 113307, ¶ 81. Illinois
courts permit the filing of a successive postconviction petition only where fundamental fairness so
requires. Id. There are two recognized instances. The first is where the defendant establishes “cause
and prejudice” for failing to raise the claim earlier. Id. ¶ 82. Second, even without a showing of
cause and prejudice, a defendant may bring a claim of actual innocence to prevent a miscarriage
of justice. Id. ¶ 83.
¶ 19 To establish “cause,” the defendant must show that some objective factor external to the
defense impeded his ability to raise the claim in the initial postconviction proceeding. Id. ¶ 82; 725
ILCS 5/1-122(f) (West 2016). To establish “prejudice,” the defendant must show that the claimed
constitutional violation so infected his trial that the resulting conviction violated due process.
Coleman, 2013 IL 113307, ¶ 82; 725 ILCS 5/122-1(f) (West 2016).
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¶ 20 A proceeding under the Act is a collateral attack on a final judgment. Edwards, 2012 IL
111711, ¶ 21. Issues that were raised and decided on direct review are barred by the doctrine of
res judicata, and issues that could have been presented on direct review, but were not, are
procedurally defaulted. People v. Young, 2018 IL 122598, ¶ 16. Also, any claim that was not
included in the original or an amended petition is forfeited. Id.; 725 ILCS 5/122-3 (West 2016).
As noted, a forfeited claim may be raised in a successive postconviction petition if the defendant
satisfies the cause-and-prejudice test. Young, 2018 IL 122598, ¶ 16; 725 ILCS 5/122-1(f) (West
2016).
¶ 21 The first claim in defendant’s proposed petition is an attack on the sufficiency of the
evidence. He argues that Peters was an accomplice who likely sought to curry favor with the
prosecution on the eve of his sentencing hearing and that Gonyo never specifically identified
Thompson as the woman he saw with defendant. We discuss separately below defendant’s
challenges to Valentine’s identification and the scientific evidence. We note, however, that the
sufficiency of the evidence to convict is not an appropriate subject for a postconviction proceeding,
the function of which is not to redetermine the defendant’s guilt or innocence. People v. Greer,
212 Ill. 2d 192, 203 (2004). In any event, as counsel notes, most of defendant’s arguments were
made in some form to the jury, which nevertheless convicted him. The supreme court held on
direct appeal that the evidence was sufficient. Sanchez I, 115 Ill. 2d at 261-62. On appeal from the
denial of defendant’s initial postconviction petition, the supreme court went a step further and
characterized the evidence as “overwhelming.” Sanchez III, 169 Ill. 2d at 497, 499. Thus, we agree
with counsel that any argument concerning the sufficiency of the evidence would be barred by
res judicata. Young, 2018 IL 122598, ¶ 16.
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¶ 22 Defendant’s second claim is that new scientific developments have questioned the
reliability of eyewitness identification. He contends that, had the jury been properly advised about
the inherent weaknesses of such identifications, it might have rejected Valentine’s testimony.
¶ 23 Defendant specifically references a 2014 report by the National Research Council of the
National Academy of Sciences, Identifying the Culprit: Assessing Eyewitness Identification
(2015), (2014 NRC report) “summarizing dozens of studies and years of research.” Defendant also
cites People v. Lerma, 2016 IL 118496, ¶ 32, in which the supreme court held that the trial court
abused its discretion in denying the defendant’s request to call expert witnesses on the reliability
of eyewitness identification. The Lerma court recognized that previously, in People v. Enis, 139
Ill. 2d 264 (1990), it had expressed skepticism toward expert testimony on that subject. However,
the court observed:
“The decades since Enis *** have seen a dramatic shift in the legal landscape, as expert
testimony concerning the reliability of eyewitness testimony has moved from novel and
uncertain to settled and widely accepted. *** The reason for this trend is that, although
findings of the sort described in [the proposed expert witnesses’] reports are now ‘widely
accepted by scientists,’ those same findings ‘are largely unfamiliar to the average person,
and, in fact, many of the findings are counterintuitive.’ [Citation.] At the same time,
advances in DNA testing have confirmed that ‘eyewitness misidentification is now the
single greatest source of wrongful convictions in the United States, and responsible for
more wrongful convictions than all other causes combined.’ [Citation.] In other words, in
the 25 years since Enis, we not only have seen that eyewitness identifications are not always
as reliable as they appear, but we also have learned, from a scientific standpoint, why this
is often the case.” Lerma, 2016 IL 118496, ¶ 24.
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¶ 24 Defendant contends that these recent developments establish cause for his failure to raise
the issue in his initial postconviction petition. Counsel concludes however, that defendant cannot
show cause as to this issue, and we agree. It is hardly novel to suggest that witnesses might not
accurately describe what they observed, whether because of inattention, distorted memory,
deliberate fabrication, or simply difficulties in describing. Nor is the scientific study of this
phenomenon of only recent vintage. Indeed, the proposed petition refers to “[d]ecades of research”
and cites a litany of studies dating back to 1982, before defendant’s trial. Defendant acknowledged
that the 2014 NRC report merely summarized earlier work.
¶ 25 We have rejected a similar argument that new scientific studies and the United States
Supreme Court’s decision in Miller v. Alabama, 576 U.S. 460 (2012), established “cause” for
failing to raise earlier a claim that the defendant’s young age when he committed the crime should
have precluded a life sentence. We stated:
“Defendant’s argument that there was cause for his failure to raise his
proportionate-penalties claim in his first petition cannot be sustained on the basis
that Miller had not yet been decided. Miller’s nonexistence did not prevent defendant from
contending that the trial court’s alleged failure to consider his youth as a factor in mitigation
violated the proportionate-penalties clause. Miller’s nonexistence as of 2002 merely
deprived defendant of some helpful support for that claim. Surely, defendant’s contention
that this created ‘cause’ proves too much. If the acquisition of new scientific knowledge to
support an already viable claim were all that a defendant needed to show in order to raise
the claim years late, then the ‘cause’ requirement of section 122-1(f) would be a weak
threshold indeed. It is one thing to hold, as the Court did [in Miller], that a substantive rule
of law applies retroactively to a case that has completed the direct-appeal process.
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[Citation.] It is quite another to hold that everything written in support of that new rule also
applies retroactively and thus requires reopening a judgment that did not even implicate
the new rule.” People v. LaPointe, 2018 IL App (2d) 160903, ¶ 9.
¶ 26 So too here. Lerma did not create a new constitutional rule as Miller did (see People v.
Davis, 2014 IL 115595, ¶ 41). Indeed, the court acknowledged that, as early as 1990, it had at least
grudgingly approved the use of expert witnesses on the subject of eyewitness identification. Lerma,
2016 IL 118496, ¶ 24; see also People v. Guerrero, 2012 IL 112020, ¶ 20 (“[T]he lack of precedent
for a position differs from ‘cause’ for failing to raise an issue, and a defendant must raise the issue,
even when the law is against him, in order to preserve it for review.”). And despite defendant’s
attempts to characterize the 2014 NRC report as groundbreaking, he acknowledges that it merely
summarizes earlier work. Thus, the later arrival of Lerma and the 2014 NRC report do not excuse
defendant’s failure to include the issue in his initial postconviction petition.
¶ 27 Counsel further argues that defendant cannot establish prejudice as to this issue, and we
agree. Counsel notes that, at most, expert testimony on the subject of eyewitness identification
might have provided the jury with a new perspective on Valentine’s testimony. However,
defendant proffered no evidence tending to prove that Valentine was mistaken in his identification
of defendant.
¶ 28 The final main contention in the proposed petition is that recent United States Department
of Justice (DOJ) reports discredit much of the scientific evidence. However, defendant attached
only one report, which was dated 2013 and addressed Deadman’s testimony about his hair
comparison (2013 DOJ report). The 2013 DOJ report concluded that Deadman made
“Inappropriate Statements” during his testimony. Deadman committed “Error Type 2” and “Error
Type 3.” “Error Type 2” was in “assign[ing] to the positive association a statistical weight or
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probability or provided a likelihood that the questioned hair originated from a particular source, or
an opinion as to the likelihood or rareness of the positive association that [could/would] lead the
jury to believe that valid statistical weight can be assigned to a microscopic hair association.” His
“Error Type 3” was in “cit[ing] the number of cases of hair analyses worked in the lab and the
number of samples from different individuals that could not be distinguished from one another as
a predictive value to bolster the conclusion that a hair belongs to a specific individual.” Both
assertions “exceed[ed] the limits of science.” The DOJ noted, however, that it was taking “no
position on the materiality of the error in this case.”
¶ 29 Counsel concludes that, while the 2013 DOJ report arguably provides cause for defendant’s
failure to raise the issue in his initial postconviction petition, defendant cannot show prejudice on
this issue. We agree.
¶ 30 First, the 2013 DOJ report suggests only that Deadman exaggerated the weight of the
“positive association” he found; it does not question his methodology or suggest that the “positive
association” itself was erroneous. Moreover, the scientific evidence was a relatively small part of
the State’s case against defendant. Three separate eyewitnesses connected him to the crime.
Indeed, when defendant, in his initial postconviction petition, faulted defense counsel’s cross-
examination of Deadman, the supreme court found that defendant was not prejudiced by the error
because the remaining evidence of his guilt was “overwhelming.” Sanchez III, 169 Ill. 2d at 499.
It is inconceivable that the evidence would be found any less overwhelming in this context.
¶ 31 As counsel notes, defendant also claimed to have reports repudiating the fiber and paint
analysis, but defendant did not supply those reports. Thus, they do not merit consideration. See
People v. Blair, 215 Ill. 2d 427, 453 (2005).
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¶ 32 Finally, counsel argues that defendant has not made an arguable claim of actual innocence.
“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. “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.” Id. “Evidence is material if it is relevant and probative of
the petitioner’s innocence.” Id. “Noncumulative evidence adds to the information that the fact
finder heard at trial.” Id. Finally, evidence is conclusive if, together with the trial evidence, it
“would probably lead to a different result.” Id.
¶ 33 In addition to the 2014 NRC report and the 2013 DOJ report, defendant submitted two
affidavits. First, he provided a 1990 affidavit from an investigator who claimed that Gonyo
reported that “he could not provide a physical description of the person he observed in his yard.”
Gonyo said that he “did not see the person’s hair color, face, or height, because he was looking
through sheer curtains that restricted his view.” Gonyo also told the investigator that “he could not
tell what color clothing the person was wearing.” Second, defendant provided the May 2016
affidavit of Travis Davis, defendant’s nephew, who averred that he had been to Gonyo’s home and
that, from inside the home, “no one could reasonable [sic] tell the make, model, year, or color of
any vehicle at [the] intersection [of 21st Street and Delany Road] at night.”
¶ 34 The reports and the affidavits do not arguably support a claim of actual innocence. First,
only the 2013 DOJ report can be considered newly discovered evidence. The 2014 NRC report is
newly generated, but its content is, as noted, hardly novel. As for the affidavits, defendant, who
had the burden to make a showing of actual innocence to obtain leave to file, did not assert that he
could not have obtained the information earlier with reasonable diligence.
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¶ 35 Moreover, the submissions do not constitute conclusive evidence of innocence. Nothing in
them suggests that someone else committed the crime or that defendant is otherwise innocent. The
1990 affidavit purports to question Gonyo’s ability to identify the hair color, color of clothing, or
height of the “person” he saw outside his home, but the affidavit does not challenge his ability to
ascertain the most damning details, namely that the person was a woman, half-naked, standing in
the snow. Nor does the affidavit discredit Gonyo’s testimony that defendant later came to Gonyo’s
house acknowledging that a woman had been on Gonyo’s property and explaining that she was on
drugs or had a seizure. The 2016 affidavit challenges Gonyo’s ability to identify, at night, the
details of a car in a nearby intersection, but this did not undercut Gonyo’s testimony that he saw
defendant pull away from his house about 2:30 a.m.
¶ 36 The 2013 DOJ report calls into question part of the scientific evidence, which itself was a
relatively small portion of the evidence submitted. The 2014 NRC report merely suggests that, if
the case were tried today, the jury might have received expert testimony on the reliability of
Valentine’s identification.
¶ 37 After examining the record, the motion to withdraw, and the memorandum of law, we agree
with counsel that this appeal presents no issue of arguable merit. Thus, we grant the motion to
withdraw, and we affirm the judgment of the circuit court of Lake County.
¶ 38 Affirmed.
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