2021 IL App (1st) 200041-U 

SECOND DIVISION

Rule 23 Order Filed June 30, 2021

Modified Upon Denial of Rehearing November 16, 2021

No. 1-20-0041

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 

 ) Cook County. 

 Plaintiff-Appellee, ) 

 ) 

v. ) No. 10 CR 691 

 ) 

MICHAEL MOORE, ) 

 ) Honorable Carol M. Howard, 

Defendant-Appellant. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court.

Justices Ellis and Burke concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err when it dismissed defendant’s postconviction 

petition at the first stage. Defendant did not state an arguably meritorious claim

for relief where he failed to attach required evidence to his postconviction petition

and did not allege facts that would establish prejudice. Defendant failed to state an 

arguably meritorious claim that counsel was ineffective for failing to file a motion 

to dismiss on speedy trial grounds. 

¶ 2 Defendant Michael Moore was tried in a bench trial and found guilty of first-degree 

murder. He was sentenced to 45 years in prison. Defendant filed a postconviction petition 

alleging that his trial counsel was ineffective for failing to investigate two witnesses that 
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defendant claims would have been helpful to his defense. Defendant further alleged in his 

postconviction petition that his trial counsel was ineffective for failing to assert his constitutional 

right to a speedy trial and file a motion to dismiss on speedy trial grounds. The trial court 

dismissed defendant’s postconviction petition at the first stage. Defendant now appeals, arguing 

that he is entitled to proceed to the second stage of postconviction proceedings. We find that the 

trial court did not err when it dismissed defendant’s postconviction petition and, accordingly, we 

affirm. 

¶ 3 BACKGROUND

¶ 4 Damion Roy was shot and killed on July 16, 2009 at the corner of West 21st Street and 

Karlov Avenue in Chicago. Roy was at that location socializing with several other individuals 

after finishing playing basketball at Mason Park. A red or maroon van approached the group at 

the intersection. Marcus Green, who was Roy’s friend and was part of the group at that location, 

approached the van and started arguing with the occupants about a stolen car radio. The van 

began to pull away, but then quickly parked nearby. Three or four individuals exited the van, and 

a fight broke out between the two groups of people. 

¶ 5 The fight ended after a few minutes. One of the individuals who had arrived in the van

returned shortly thereafter and had a gun. Roy was shot several times, and the occupants of the 

van reentered the vehicle and fled the scene. Roy was taken from the scene in an ambulance and 

was pronounced dead thereafter. The cause of death was multiple gunshot wounds and the 

manner of death was determined to be a homicide. 

¶ 6 Defendant was positively identified as the shooter by five eyewitnesses. Deshon Roy and

Christopher Smith, who were hanging out with Damion Roy at the 21st Street intersection

identified defendant as the shooter. Two uninterested individuals who were not involved in the 
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dispute also identified defendant as the shooter. One of those uninterested individuals, 

Dominique Brown, who lived at the location of the shooting, heard the commotion from the fight 

from inside her house. As she watched the events unfold, she saw defendant pull a gun from his 

pocket and shoot Roy. Terrell Rollins was on the porch of his aunt’s house when he saw the 

fighting and saw defendant shoot Roy. Each of the four witnesses who identified defendant as 

the shooter knew him from before the incident and they consistently identified defendant as the 

shooter throughout the course of the investigation and the trial. 

¶ 7 Defendant was also implicated as the shooter by Orlando Hampton, who admitted to 

being the person driving the red or maroon van. Hampton provided a statement to investigators 

that was consistent with the version of events described by the other eyewitnesses. Hampton also 

told investigators that defendant made statements following the shooting that confirmed 

defendant’s identity as the shooter. At trial, however, Hampton testified that he was not present 

the day of the shooting and he denied the accuracy of the content of the written statement he had 

given to investigators. Hampton did, however, admit that his signature on the statement was 

genuine. Two other witnesses, Ivan Smith and Nathan Crockett testified that they were present 

and saw defendant at the scene, but they did not witness the shooting itself or see who the 

perpetrator was. 

¶ 8 Defendant was arrested and tried for first-degree murder. The testimony at trial was 

consistent with the narrative set forth above.1 The trial court found defendant guilty of firstdegree murder and sentenced him to 45 years in prison. Defendant appealed his conviction. We 

affirmed defendant’s conviction, explaining that we found the evidence of his guilt to be 

“overwhelming.” People v. Moore, 2018 IL App (1st) 143713-U, ¶ 58. Defendant filed a petition 

1 For further recitation of the testimony presented in this case, see our order addressing 

defendant’s direct appeal. People v. Moore, 2018 IL App (1st) 143713-U, ¶¶ 6-50. 
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for leave to appeal with the supreme court which was denied. People v. Moore, 108 N.E.3d 854 

(Table) (September 26, 2018).

¶ 9 A year and a half after we affirmed his conviction, defendant filed the postconviction 

petition that is the subject of this appeal. In his postconviction petition, defendant claims that his 

trial counsel was ineffective for two reasons. Defendant claims that he was denied his 

constitutional right to a speedy trial, and he maintains that his counsel was ineffective for failing 

to assert his right and file a motion to dismiss. Defendant also claims that his trial counsel failed 

to investigate two witnesses who would have given favorable testimony to support his defense.

The trial court dismissed defendant’s postconviction petition at the first stage. Defendant now 

appeals the dismissal of his postconviction petition.

¶ 10 ANALYSIS

¶ 11 The Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq.) provides a process by 

which a criminal defendant may challenge his or her conviction by filing a petition for relief in 

the trial court. 725 ILCS 5/122–1 (West 2012). The Act provides for a three-stage process for 

adjudicating postconviction petitions. People v. Harris, 224 Ill. 2d 115, 125 (2007). At the first 

stage of postconviction proceedings, the trial court independently assesses the merits of the 

petition. 725 ILCS 5/122–2.1 (West 2012). If the court finds the petition to be “frivolous” or 

“patently without merit,” the court shall dismiss the petition. 725 ILCS 5/122.1(a)(2) (West 

2012). If the trial court dismisses a postconviction petition at the first stage, we review the 

propriety of that dismissal de novo. People v. Boyd, 347 Ill. App. 3d 321, 327 (2004).

¶ 12 At issue in this appeal are two claims that defendant was denied the effective assistance 

of trial counsel. The Constitution of the United States guarantees criminal defendants the right to 

effective assistance of counsel. U.S. Const. Amend. VI (West 2018). Thus, where a criminal 
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defendant is convicted of an offense but did not receive constitutionally adequate representation, 

he can seek relief to vindicate his constitutional right to counsel. People v. Burnett, 385 Ill. App. 

3d 610, 614 (2008). To be entitled to relief on a claim of ineffective assistance of counsel, a 

defendant must show that his counsel’s representation fell below an objective standard of 

reasonableness and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 

694 (1984); People v. Scott, 2015 IL App (1st) 131503, ¶ 27. “An error by counsel, even if 

professionally unreasonable, does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691 (citing United 

States v. Morrison, 449 U.S. 361, 364–65 (1981)). “Accordingly, any deficiencies in counsel’s 

performance must be prejudicial to the defense in order to constitute ineffective assistance under 

the Constitution.” Id. at 692. 

¶ 13 At the first stage of postconviction proceedings, the defendant alleging ineffective 

assistance of counsel must plead facts which, when taken as true, render it arguable that counsel 

performed deficiently, and arguable that the defendant suffered prejudice as a result of that 

deficient performance. People v. Hodges, 234 Ill. 2d 1, 9 (2009). We analyze claims of 

ineffective assistance of counsel by considering the entire record. People v. Hommerson, 399 Ill. 

App. 3d 405, 415 (2010).

¶ 14 Defendant sets forth two discrete grounds on which he claims he was denied his right to 

effective assistance of counsel. Defendant argues that his trial counsel was ineffective for failing 

to assert his right to a speedy trial, and defendant argues his trial counsel was ineffective for 

failing to investigate two witnesses who he claims would have provided favorable evidence to

support his defense. 
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¶ 15 As to defendant’s claim that trial counsel should have investigated two specific witnesses

who allegedly would have been helpful to his defense, defendant contends that it is arguable that 

counsel’s failure to investigate the witnesses fell below an objective standard of reasonableness. 

The two witnesses at issue are Laoneda Clay and Tiffany Brown. In his postconviction petition, 

defendant alleges that Clay was present in the van driven by Orlando Hampton. Defendant 

opines that Clay would have testified that defendant did not have a gun or kill Damion Roy. As 

for Brown, defendant alleges that Brown is Terrell Rollins’s cousin. Defendant opines that 

Brown would have testified that Rollins fabricated his trial testimony under the belief that it 

would help him receive a beneficial disposition of his own drug charge. Defendant contends that 

both witnesses would have supported his defense at trial. 

¶ 16 With regard to the witness issue, defendant failed to demonstrate a right to go forward 

under the Post-Conviction Hearing Act. The Act requires the petitioner to attach affidavits, 

records, or other evidence that supports the claim for postconviction relief. 725 ILCS 5/122-2 

(West 2018). In the absence of attaching the required supporting evidence, the petitioner must 

explain why the evidence is not attached. Id. The failure to either attach the necessary affidavits, 

records, or other evidence or explain their absence is fatal to a postconviction petition. People v. 

Collins, 202 Ill. 2d 59, 66 (2002); People v. Delton, 227 Ill. 2d 247, 258 (2008).

¶ 17 In this case, defendant did not attach the required evidence to his petition or adequately 

explain its absence. He did not attach affidavits from Clay or Brown to support his allegations 

about what their testimony might have been. In fact, defendant has not supplied any evidence or 

pointed to any evidence in the record that supports his claims in any way. The sole support for 

defendant’s claims is his own allegations. “To support a claim of failure to investigate and call 

witnesses, a defendant must introduce affidavits from those individuals who would have 
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testified. Without affidavits, this court cannot determine whether these witnesses could have 

provided any information or testimony favorable to defendant.” People v. Guest, 166 Ill. 2d 381, 

402 (1995); see also People v. Dupree, 2018 IL 122307, ¶¶ 40, 42 (where a defendant seeks to 

“introduce new evidence that could only be verified by an affidavit from the proposed witness,” 

the failure to attach any supporting evidence leaves the petition lacking “proof that such evidence 

actually existed or that it would have been helpful to the defense.”). 

¶ 18 Defendant recognizes that he failed to support his claim with the evidence required by the 

Act. So defendant instead relies on the provision in the Act that excuses the failure to attach 

supporting evidence if a petitioner states why the evidence is not attached to the petition. See 725 

ILCS 5/122-2 (West 2018). Defendant states in his postconviction petition that the alleged 

witness affidavits are forthcoming. He claims that he has met his first-stage requirements under 

the Act because he alleged in his petition that he did not attach affidavits from the witnesses 

“because they have not sent them to me yet.” Defendant’s allegation is insufficient to remedy the

shortcoming of his petition. Collins, 202 Ill. 2d at 66-67. 

¶ 19 Defendant attempts to use his own verification and the first-stage pleading standard in 

place of supplying the required evidence. Our supreme court has explained that a petitioner’s 

verification is not a substitute for the evidence required by the Post-Conviction Hearing Act. Id. 

Moreover, defendant does not explain what efforts he made to secure the witnesses’ statements, 

nor does he attempt to explain when the statements might be forthcoming. People v. Brown, 

2014 IL App (1st) 122549, ¶ 48 (“If at first-stage review the affidavits do not comply with the 

evidentiary requirements of section 122–2, then the petition must comply with the pleading 

requirements of section 122–2 by at least providing an explanation as to why the documents or 

affidavits are unobtainable.”); see also People v. Allen, 2015 IL 113135, ¶ 26. A petitioner 
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cannot completely circumvent the evidentiary requirement of the Act by merely supplying his 

own unsupported allegation that an affidavit is forthcoming at some indefinite point in the future. 

While we acknowledge the lenient standard at the first stage of postconviction proceedings, the 

interpretation of the Act that defendant urges us to accept is an interpretation that the evidentiary 

requirement simply does not exist. 

¶ 20 Defendant asks us to excuse his failure to supply evidence, arguing that his burden to 

supply evidence should be applied at the second stage where his counsel can attempt to obtain 

affidavits from the witnesses. That request is at odds with the Post-Conviction Hearing Act’s 

first-stage requirements. See 725 ILCS 5/122-2 (West 2018). A petitioner is required to supply 

the supporting evidence at the first stage in order to avoid dismissal. Brown, 2014 IL App (1st) 

122549, ¶ 46. Without affidavits from the witnesses that defendant claims counsel should have 

investigated or a valid explanation as to why the affidavits were not supplied, defendant’s 

postconviction petition was subject to dismissal at the first stage. Guest, 166 Ill. 2d at 402. 

Defendant’s failure to attach any evidence to his postconviction petition, or even point to 

evidentiary support in the record, is fatal to his claim that counsel was ineffective for failing to

investigate the two alleged witnesses.

¶ 21 As to the testimony that Brown would have allegedly provided, defendant’s own 

allegations demonstrate that he could not have provided the information to his attorney prior to 

trial. Defendant alleges that Brown told him that she knew Rollins had testified at trial and lied 

during his trial testimony. Defendant alleges that Brown told him that Rollins gave false 

testimony at trial in an effort to secure leniency in a criminal case of his own. The allegations 

indicate that they consist of information that defendant could have only learned from talking to 

Brown after trial. Defendant could not have informed his trial counsel about his conversation 
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with Brown before trial as defendant now alleges. So as to Brown, defendant does not even 

allege facts to show an arguably deficient performance by counsel.

¶ 22 At the first stage of postconviction proceedings, the petitioner must allege facts to 

demonstrate that counsel’s representation was arguably deficient, and that the petitioner arguably 

suffered prejudice as a result of that deficient representation. Hodges, 234 Ill. 2d at 17. To 

demonstrate arguable prejudice, a petitioner must demonstrate that but for counsel’s 

unprofessional errors, there is a reasonable probability the result of the proceedings would have 

been different. People v. Coleman, 2011 IL App (1st) 091005, ¶ 43. As we already held when we 

ruled on defendant’s direct appeal, the evidence against him in this case was overwhelming. 

Moore, 2018 IL App (1st) 143713-U, ¶ 57. Even if defense counsel had done what defendant 

now claims he should have done, there is no reasonable probability that the result of the 

proceedings would have been different. 

¶ 23 Seven different witnesses put defendant at the scene of the crime. Five of those seven 

witnesses positively identified defendant as the shooter. Two of those five identifying witnesses 

were uninterested persons who were just present at the location and not involved in the dispute. 

And one of the identifying witnesses was defendant’s own friend who drove him to the scene of 

the crime and who then also received inculpatory statements from defendant following the 

shooting. Even when the allegations defendant makes in his postconviction petition are taken as 

true, defendant has not set forth an arguable claim of prejudice. The unsupported allegations 

defendant makes in his postconviction petition fail to show that he was arguably prejudiced, so 

his petition was properly dismissed at the first stage. See People v. Richardson, 2015 IL App 

(1st) 113075, ¶ 21; People v. Dobbey, 2011 IL App (1st) 091518, ¶¶ 68-69. 
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¶ 24 As to defendant’s claim that he was denied his right to a speedy trial, defendant argues 

that his trial counsel’s failure to file a motion to dismiss on speedy trial grounds arguably 

constituted ineffective assistance of counsel. In particular, defendant points to the fact that it took 

22 months from the time he was arrested to the time discovery was completed, most of which 

was occasioned by a delay to perform and process DNA testing. Defendant alleges that he 

informed his trial counsel that he wanted to be tried within the speedy-trial term, but that his 

counsel’s agreement to several continuances deprived him of that right. 

¶ 25 Defendant makes clear that he is not asserting a claim for speedy trial under Illinois 

statute, but is instead relying on his constitutional right to a speedy trial. The Sixth Amendment 

right to a speedy trial is fundamental and is made applicable to state proceedings through the due 

process clause of the Fourteenth Amendment. People v. Gay, 387 Ill. App. 3d 424, 428 (2008). 

The constitutional right to a speedy trial cannot be defined in terms of an absolute or precise 

standard of time within which an accused must be tried. People v. Crane, 195 Ill. 2d 42, 47–48 

(2001) (quoting People v. Henry, 47 Ill. 2d 312, 316 (1970)). Instead, whenever a constitutional 

speedy trial claim has been raised, the record in its totality must be examined to ascertain 

whether the defendant has enjoyed the right guaranteed by the constitution. Id. at 48 (quoting 

People v. Bazzell, 68 Ill. 2d 177, 181 (1977)). 

¶ 26 The Supreme Court of the United States has identified four factors that provide a 

structure for a court’s inquiry into whether an accused has been denied his constitutional right to 

a speedy trial. Id. The four factors the Supreme Court has identified for a court to weigh in 

assessing a violation of the right to a speedy trial are: the length of the delay; the reasons for the 

delay; the prejudice, if any, to the defendant; and defendant’s assertion of his right. Barker v. 

Wingo, 407 U.S. 514, 530 (1972).
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¶ 27 In this case, defendant had a private attorney that he chose and retained to represent him. 

Defendant did not discharge his attorney or ever voice displeasure on the record about his 

counsel agreeing to the discovery extensions. Even when defendant appeared in court in an 

instance without his counsel present, at a time when the speedy trial period could have been at 

issue, defendant made no effort to assert his right or voice displeasure with his representation. 

Instead, defendant consented to an additional continuance. The record also shows that defense 

counsel was investigating several witnesses with the input of defendant’s family in an effort to

prepare for trial at the same time the State was requesting continuances to complete its discovery 

obligations. There is no indication in the record that the delay in completing discovery created a 

tactical advantage for the State. 

¶ 28 The one specific extension defendant identifies as most problematic was the extension

that his counsel agreed upon for the State to perform DNA testing. As it turned out, the DNA 

evidence was actually helpful to defendant. It formed the basis for defendant’s defense at trial. 

Even in this appeal, defendant relies significantly upon the DNA evidence and that fact that it did 

not inculpate him as support for his argument that he suffered prejudice. Viewing the entirety of 

the record and balancing the factors set forth in Barker, defendant has not alleged facts to 

demonstrate that he was denied a timely and fair trial in violation of his right to a speedy trial

under the Sixth Amendment. The trial court did not err when it dismissed defendant’s 

postconviction petition. 

¶ 29 CONCLUSION

¶ 30 Accordingly, we affirm. 

¶ 31 Affirmed.