SIXTH DI VISI ON July 20, 2007 No. 1-05-1577

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County , Illi nois. ) ) ) No. 90 CR 11979. v. ) ) TONY ANDERSON, ) Honorab le ) James B. Linn, Defendant-Appellant. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: Defendant, Tony

Anderson, appeals from the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 I LCS 5/122-1 et seq (West 2002)). He contends that the circuit court erred in summarily dismissing his petition where he set forth the gist of meritorious claims that (1) his due process rights wer e violated when detectives at Area 2 violent crimes coerced him into giving a conf ession to offenses he did not commit; (2) he was provided ineffe ctive as sistance

of counse l becaus e counse l “coer ced” him into plea ding g uilty and (3) the State violated his right to due process by failing to disclose the existence of voluminous claims of Area 2 police torture pursuant to Brady v. Maryland , 37 3 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). I. BACKGROUND De fe nd an t w as in di ct ed on ov er 10 0 c ha rg es in 13 di ff er en t c as es in Co ok Co un ty,No. 1-05-1577

1 The motion to suppress appears to have encompassed all of def endant’s charges in all 13 cases. T he State a vers tha t defend ant’s tes timony

and his cl aim that hi s inculpa tory statemen ts were the product of coercion we re made with respect to only one of his indictments in case No. 90 CR 11984. The resolution to this factual dispute is not readily discer nable from the face of the record. However, beca use, as shall be demonstrated, we resolve this case in fa vor of affirmance in either event, we shall conside r the testimony introduced at the suppr ession hearing to apply across the boa

rd as urged by

the defendant, appellant.

2 stemming from offenses he committed in March and April 1990. Case N o. 90 CR 11984 was tried to a judge; c ase No. 9 0 CR 11985 wa s tried to a jury ; and def

endant pl eaded g

uilty to charg es in 11 re

maining cases. I n case N o. 90 CR 1197 9, the subj ect of th is appea l, an eightcount indictment charged defendant with three counts of first degree murder, two c ounts of burglary , attempted armed robbery , attempted residential burglary, and attempted home invasion. Defendant pleaded guilty to two counts of first degree murder, and the State nol prossed

the remaining counts. The court sentenced de fendant to 50 yea rs’ imprisonment. Motion to Suppress Confession Prior to de fendant ’s guilty pleas, Will iam Heenan, defe ndant’s origina

l trial co unsel, moved to suppress defendant’s inculpatory statements, alleging that they were the product of police coercion. 1 At a pretrial hearing on that motion, the State called its own witnesses first. Detective Sellers testified that on April 18, 1990, he and his partner, Patrick B rosnan, arrested defendant for possession of a stolen automobile. Detective Sellers fur ther testified that later that afternoon, around 6 p.m. he and his partner spoke with def endant at the auto theft section of theNo. 1-05-1577

3

Chicago police department located at 1121 South State Street, in Chicag o. Detective Sellers testifie d that prior to spea king with defenda nt, he adv ised def endant of his Miranda

rights f rom a Fraternal Order of Police (F .O.P.) book and that defendant indicated that he understood eac h right. According to Detective Sellers, defendant did not request an attorney or indicate that he wished to remain silent. Detective Sellers further testified that he then questioned def endant about the circumstances of his arrest. According to Detective Sellers, during the interview, defe ndant was seated and handcuffed to the wall toge ther with another suspect, Robert Allen. Detective Sellers denied defendant’s allegations that he used a police stick to strike defendant in the ribs and thighs or that he placed a gun in defe ndant’s hand or that he put it to the side of his head. He also stated that neither he nor his partner used phy sical or psychological coercion to force defendant to speak. On cross-examination, Detective Sellers stated that the interview lasted for approximately 1 hour and 15 minutes. He also stated tha t upon request defendant was given

water a nd was al lowed to u se the re stroom. Detective Brosnan next testified that he was present at de fendant’s arrest early in the afternoon of April 18, 1990, but stated that he did not advise defendant of his constitutional rights at that point. Detective Brosnan stated that he ne xt saw and then proceeded to question defendant in an interview room of the auto theft section of the Chica go police department at 1121 South State Street, in Chicago. Detective Brosnan acknow ledged that before that intervie w, he obse

rved Detective S ellers r

ead def endant hi s Miranda

rights from an F. O. P. bookNo. 1-05-1577

4

and that defendant indicated that he understood those rig hts. Detective Brosnan also testified that defendant did not request an attorney . Detective Brosnan denied having struck defendant with a billy club, using a g un, or making any

verbal threats against defenda nt. He further denied having seen any

other officers participate in any such coercion. On cross -examinat

ion, Dete ctive Br

osnan conceded

that when

defenda nt was re ad his individual rights from the F.O.P. book, on many occasions, he merely

nodded to show that he understood. Detective Brosnan also testified that after responding to questions about the stolen vehicle he had been driving when a rrested, defendant indicated that he wished to re main silent. Detective Brosnan indicated that he could not state with ce rtainty when this occur

red, but believe d it was “w

hile def endant w as being

read some of his c onstitutional righ ts,” abou t 20 to 25 minutes after Detective Brosnan arr ived at the station to interview him. Detective Brosnan also stated that he did not recall if defendant asked for a telephone call but upon further questioning conceded that “he may have” done so. Detective Brosnan next described the interview room a s being about 14 by 19 feet and explained that, dur ing que stioning , Allen an d defend ant were handcuf fed to the wall in the

same handcuf f ring. Detecti

ve Brosnan ack

nowledg ed that de fendant was in the

room for about two

to three hours and that he was not given food. Ac cording to Detective Brosnan, de fendant was periodically unhandc

uffed so that he could drink water from a wate r fountain located next to the wall ring. Detective Michael McDermott testified that about 9 p.m., on April 18, 1990, togethe r with Dete ctive Ga

llaghe r, he picked up de fendant from the a

uto theft s ection a

t 1121 South

StateNo. 1-05-1577

5

Street a nd broug ht him to an i

ntervie w room at A

rea 2 vio lent crimes locat ed at 111t h Street in Chicag o. Detective McDe rmott testi fied tha

t office rs at the S tate Stre et police station did

not tell him that defendant had invoked his right to remain silent. Rather, they told him that defendant was “eager to talk.” Detective McDermott stated that once at Area 2, at about midnight, he advised defendant of his Miranda

rights from an F.O.P. book, which defendant indicate d he understood. Detective McDermott then proceeded to interview defe ndant in increments totaling about four to five hours. The detective acknowledge d that defendant was in the interview room the entire nig ht and that the last conversation he had with him was on August 19, 1990, at 4 p.m. The dete ctive described the interview room as being “e ight by ten foot, [with] beige wa lls *** [a] bench, a table, chairs,” and a “three by -three foot plaque on the wall with ... Miranda warning s in Engli sh and in Spanish.” According to Detective McDe rmott, during the interview, defendant was not handcuffed, was given snac ks, and water, and was allowed to use the washroom. De tective McDermott also testified that Detective Gallagher from Area 2, and Detectives Maslanka a nd Paladino from Area 3, participated in parts of the interview . Detective McDermott finally stated that eve n though he was a rmed with

a .38 revolver tha

t night, he never

threate ned defe ndant with the gun or used a police stick to jab him. Detective John Gallagher next testified that around midnight on April 18, 1990, togethe r with Detective McDermott, he picked up defendant f rom the auto theft police station at 1121 South State Street and brought him to an interview room at Area 2 headqua rters. Detective Gallag her testi fied tha

t he witne ssed Dete ctive Mc Dermott a dvise def endant of his MirandaNo. 1-05-1577

6

rights from his F.O.P. book and that defendant indicated that he unde rstood those rights. Detecti ve Galla gher a lso stated that durin

g this inte rview no one struc k defend ant, poke d him with a billy club, put a gun to his hea d or threatened him in any way. Detective Maslanka testified that on April 19, 1990, he was assig ned to Area 3 violent crimes and proceeded to Area 2 violent c rimes headquarters in order to conduct lineups and several investigations pertaining to a homicide re levant to Area 3. Detective Maslanka testified that aro und 4:10 p. m., he met

defenda nt in an inte

rview ro om at Are a 2 violen t crimes w

ith his partner John Paladin

o. He adv

ised def endant of his Miranda

rights from an F.O.P. handbook, and defendant indicated that he understood. Accor ding to Detective Maslanka, defendant did not request an attorney

and did not ask to make a telephone call. Detective Maslanka also stated that no one advised him that defendant had previously indicated that he did not wish to speak. The detective then proceeded to question defenda nt. Detective Maslanka denied placing a gun to defendant’s head, striking him with a police stick, coercing him phy sically or psy chologically , or seeing any other officer threaten defe ndant in any manner. D etective Maslanka also stated that although he wa s armed with a Smith and Wesson 9 millimeter gun and his partner had a revolver, during the interview, neither of them removed the weapons from their holsters. Detective Paladino testified that on August 19, 1990, he was assig ned to Area 3 violent crimes w hen he re ceived a

telephone call fr

om Area 2indicatin

g that one of the s

ubjects in custody had “some know ledge of a homicide that occurre d at Area 3.” Detective Paladino stated that he proceed to Area 2 with his partner, De tective Maslanka. He averred that a fter DetectiveNo. 1-05-1577

7

Maslanka read de fendant

his Miranda

rights, defendant indicated he understood them, did not request an attorney

and did not indicate that he wished to remain silent. The officers then proceeded to interview defendant. Ac cording to Detective Paladino, during this interview, no one put a gun to defendant’s head, and no one struck him with a billy club. After the State presented its witnesses, defendant took the stand on his own beha lf. Defendant testified that while he was at the auto theft division, he was not thre atened or hit by any police of ficers, but he tes tified tha t once at Area 2 h eadqua

rters at 111th Street, he was coerced into making incriminatory statements relating to numerous crimes. Defenda nt stated that at Area 2, he was placed in a room that wa s about 10 by 7 fee t, with no windows, and that he was questioned by numerous police of ficers throughout the night. Defenda nt averred that after Detective Gallagher left the r oom, Detective McDermott placed a gun to his hea d and threatened that he would “blow [his] damn brains out” if he did not confess. Defendant also averre d that Detective Maslanka jabbed him in the chest, rib, and back w ith his night stick. Although he could not say exactly

how many times he was ja bbed, defendant estimated it was “over 12 times,” because he was cry ing in pain. Defendant acknowledg ed that he was given a phy sical examination prior to his admission to the county jail, but that no bruises were prese nt at that time. Defendant further allege d that he was not permitted to use the bathroom at either the State Stre et or 111t

h Street police stations and that the first time he used a bathroom was when he was transferred to the county jail. Defendant also stated that during the interview, he ma de seven request s for per

mission to ma

ke a tele phone ca ll, but was

denied e ach time. Defend ant alsoNo. 1-05-1577

8

testifie d that no one ever a dvised him

of his Miranda

rights and that there was no plaque on the wall of the interview room indicating them. At the clo se of the

hearing , the cour

t denied d efenda nt’s motion

to suppre ss his incriminating statements, finding that they were given “free ly and voluntarily without coercion or threat or compulsion of any kind.” In doing so, the court f ound that based on the totality of evidence, defendant “was advised of his rights numerous times” and was “not in any way threatened or abused.” The court a lso noted that “the evidence we choose to acc ept *** [is] the testimony of the pol ice off

icers ind icating that he wa s at no time

abused or phy sically threatened.” Guilty Pleas In Au gust 199 1, defen

dant’s ne wly retaine d counse l, Thomas H offa, f ailed to a ppear in court for three consecutive day s, and the trial court issued a bench warrant for his arrest. On August 7, 1991, the assistant State’s Attorney informed the trial court that she had spoken to an investigator who visited Hoffa’s apartment, and that he reported that Hoffa had “a g ash in the side of his head, ***bruises and swelling to his face, that he wa s intoxicated, that he was disorien ted and that he wa s unable t o move or walk.” All

of this inf

ormation was rela

ye d to defenda nt and the court ad vised him that “I

t would be

this Court’ s opinion [], a nd it is just my opinion, that Mr. Hoffa is not now nor will he be in the near future in a position to represe nt you in this cas e.” Def

endant ne verthel ess opted

to continu

e with Hof

fa as his counsel. On August 9, 1991, Hoffa finally appeared in court, and represe nted defendant as he pleaded guilty to first de gree m

urder ( in case N o. 90 CR 1197 9), two c ounts of a ttempted f

irstNo. 1-05-1577

9

degre e murder

(in case Nos. 90 CR 11 983, 90 CR 11 986), seven counts of arme d robber

y ( in case Nos. 90 CR 11780, 90 CR 11987, 90 CR 11988, 90 CR 11989, 90 CR 11990, 90 CR 11991, and 90 C 660648), and one count of attempted escape (in ca se No. 90 CR 11982). Following the submission of factual bases for each charge, the court admonished defendant reg arding the potential sentences for each offense , and he acknowledged that he unde rstood what rights he was surrend ering. With reg ard to ca se No. 90 C R 11979, the State pro ffere d that the

evidenc e would show that on March 30, 1990, defendant fired two shots from a .25-c aliber handgun, striking the victim, Leonard Cox, in the left chest and causing his death. Eyewitnesse s would identify defendant in open court and testify that they had identified him in a lineup shortly after the shooting. The evidence would further show that the same .25-caliber handgun used in the incident was found in defendant’s possession upon his arrest. Further more, defendant’s statement confessing involvement in this incident would be introduced. Following this proff er, defendant pleaded guilty

to first degree murder, the trial cour t accepted his plea and sentenced him to 50 years’ imprisonment. On November 1, 1991, defendant moved to vacate his g uilty pleas, in each of

the foreg oing ca ses, arg

uing tha t he did not

understa nd the ple a agre ement, th e nature of the charges , or that the potential sentences could run consecutively . Defendant also argued that his attorney had “coerced” him into pleading g uilty by telling him that if he did not do so, he would likely g et the deat h penalty . On Dec ember 17 , 1991, the circuit c ourt sua sponte

indicate d that it wo

uld treat defendant’s motion as a postconviction petition because it was untimely as it was filed 30 day s after d

efenda nt had ent ered his pleas of guilty . The cou

rt then we nt on to dismi ssNo. 1-05-1577

2 At a hearing on this motion, the public defender repr esenting defendant appeare d and explained that he did not realize that, at the time of the previous hearing, defe ndant had already retained private counsel, and thus now moved to withdraw. Private counse l had indeed filed an appearance, but did not appear at the pr evious hearing because she wa s unaware of its date. The court ruled that private counsel could proceed with an a ppeal of the dismissal of the petition, but held that the dismiss al would st

and. Def endant di d not appe al the dism issal. 10 defenda nt’s postc onviction

petition, f

inding that his cla

ims were “spuriou s and witho

ut basis in law and fact.” I

n doing so, the court noted that defendant had been a dvised “as to each and every case the possible penalties, the nature of the char ges, the factual basis for eac h case,” and “at no time indicated any he sitation.” Defendant appealed the circuit cour t’s dismissal of his petition arguing that it was improper ly d ismissed without an e

videntia ry hearing more tha n 30 day s after i ts filing . The State confessed error. On May 4, 1992, we remanded the cause solely for appointment of counsel and a hearing to determine whether the allegations in defendant’s petition were frivolous. On remand, the circuit court ruled that the claims raised in def endant’s petition could have been raised on direct appeal and were thus frivolous and patently without merit. At this time, the court also denied defense counsel’s request for a continuance to enable him to interview witnesses about defendant’s allegations that counsel coe rced him into pleading guilty . Defendant filed a motion to re consider

this ruling , and the c ourt deni ed it. 2 On April 28, 2000, defendant filed a single pro se postconviction petition encompassing case Nos. 90 CR 11979, 90 CR 11980, 90 CR 11982, 90 CR 11983, 90 CR 11986, 90 CR 11987,No. 1-05-1577

11

90 CR 11988, 90 CR 11990, 90 CR 11991 and 90 CR 60648, in which he alleged that he was depri ved of

effect ive as sist ance of

couns el whe n coun sel “co erced” h im to plead guilt y through repeated statements that if he proceede d to trial, he would receive the death penalty . Defendant also argued that counsel was ineffe ctive for failing to file any motions, and for appearing drunk in court on the day of

his guilty pleas. On May 16, 2000, the circuit court dismissed defendant’s second petition as untimely and fr ivolous. In doing so, the court noted that the trial cour t had issued a bench warrant for defe nse counsel Hoffa and that defendant wa s made aware that when located by a

n investigator, counsel appeared to be intoxicated. Defe ndant, however, persisted that Hoffa remain his lawy er, rejecting all offers of r epresentation by

the public defender. The court thus held that petitioner “intelligently waived his chance to have a differ ent lawyer represent him” and that the resolution his counsel reache d for him was “fair and just and reasonable.” On March 19, 2002, we uphe ld the dismissal of defendant’s petition, noting that defendant’s claims of ineffective assistance of counsel were barred by the doctrine of res judicata because “even though the

y w ere cou

ched in te rms of ine ffectiv e assista

nce of c ounsel, they [were] identical in substance to suc h claims raised [and rejected] in defendant’s original petition.” People v. Anderson , No. 1-00 -2338 (20 02) (unpu blished or

der purs uant to Supr

eme Court Rule 23). On December 9, 2004, defendant filed the instant “Petition for Leave to File a Successive Petition for Post-Conviction Relief” only with rega rd to case No. 90 CR 11979. In this petition, defenda nt alleg ed that hi s plea wa s made as a result o f police

coerci on, and th at he mad e his incriminating statement at Area 2 violent crimes as a re sult of torture inflicted by Ar ea 2 andNo. 1-05-1577

3 We note that while the Certified Report of Disposition indicates that the circuit court denied defendant’s motion on February 16, 2005, the Report of Proceedings shows that the denial occurred on Februar y 15, 2005. 12 Area 3 detectives. Defendant spec ifically identified De tectives McDermott and Maslanka as having coerced a conf

ession from him. According to the petition, Detective McDermott held a gun to defendant’s head and threa tened to “blow [his] brains out” if he did not sign a confession. Detective Maslanka then repeatedly jabbed defendant with his nightstick in the back and chest. Defendant stated that as a result of these tactics, he made a statement implicating him in various crimes, including the murder of L eonard Cox to which he pleaded guilty

. In his petition, d

efenda nt also contended t

hat couns el “coe

rced” h im into plea

ding g uilty to the crimes to which he confessed. Defenda nt further argued that in violation of Brady v. Maryland , 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the State failed to disclose to him that De

tectives Maslanka

and McDe

rmott had b een acc

used of torture by

other de fendant s and that there were numerous instances of similar police a buse at Area 2 and Area 3 under the command of Jon Burge. On January 4, 2005, the circ uit court dismissed the instant petition without a written order. On February

16, 2005, 3 the circuit court denied defendant’s motion to reconsider the denial of his motion for leave to file a successive postconviction petition. I n doing so, the court noted: “The voluntariness of [defendant’s] confession was adjudicated, ha ndled pre-tri al or pre -plea. H is same al legati ons have been ra ised in va rious fa shions inNo. 1-05-1577

13 prior petitions. He is talk ing abo ut things that have [been] adju

dicated throughthe postconviction proceedings as well as in a pre- trial motion, and I think he’s waived. This was [a] negotiated plea. I fin d this petit

ion to be without mer

it. Motion to

reconsi der, as he puts it, dismissal of his sessive [ sic ] post-conviction petition denied.” II. AN ALYS IS 1. Violation of Due Process Because of Coerc ed Confession Defendant first contends that the court erre d in summarily dismissing his postconviction petition be cause “ all [his] alle gations taken as true” sta ted the gist of a me

ritorious claim tha t his rights to due process were violated when the police used coercion to extract an oral confession from him, which later served as a basis for his guilty pleas and subsequent convictions for murder, attempted murder, armed robbery and attempted escape. The State initially notes that, unlike defenda nt’s first and second post-conviction petitions, defendant’s current petition only encompasses case No. 90 CR 11979 and, thus, does not challenge his guilty

pleas for attempted murder (case Nos. 90 CR 11983, 90 CR 11986), armed r obbery (case N os. 90 CR 117 80, 90 CR 119 87, 90 CR 119 88, 90 CR 119 89, 90 CR 11990, 90 CR 11991, 90 C 660648) or attempted escape (case No. 90 CR 11982). The notice of appeal in this case refers only to case No. 90 CR 11979, and defendant provides us with no notice of appeal for the other cases. I t is an incontrovertible rule that a reviewing cour t has no jurisdiction over an appeal absent a properly filed notice of appeal (see Niccum v. Botti,No. 1-05-1577

14

Marinaccio, DeSalvo & Tameling, L td. , 182 Ill . 2d 6, 7, 694 N.E.2 d 562, 563 (1 998) ( “fili ng a notice of appeal i s the juris dictiona l step whic

h initiate s appella

te revie w”); Childers v . Kruse , 297 I ll. App. 3d

70, 73, 696

N.E 2d 125 3, 1255 (1 998) (“[a ] timely notice of appeal i s both jurisdictional and mandatory” ) ), and we are obliged to dismiss an appeal if we lack jurisdiction, even if no party

to the appeal has raised the issue (see Shanklin v. Hutzler , 277 Ill. App. 3d 94, 99, 660 N.E.2d 103, 106 (1995)). As such, we find that the only case that is properly

before us on appeal is case No. 90 CR 11979 and therefore must rejec t defendant’s attempt to extend our review bey

ond the limits of our jurisdiction. Moreover, even if we could consider these cases, we have long held that alleg ations not raised in the postconviction petition cannot be considered on appeal. See People v. Smith , 352 Ill. A pp. 3d 1095 , 1112, 817N.E.2d 98 2, 998 (20 04); People v. Griffin , 321 Ill. App. 3d 425, 428, 748 N.E.2d 1235, 1238 (2001) (the Act does not permit a defendant to ra ise an issue on appeal from the dismissal of a postconviction petition that he never raised in the petition)). Therefore, we find that, in the present ca se, defendant is limited to challenging his guilty plea solely in case N o. 90 CR 1197 9, involvin g a plea of guilt y f or first d egree murder o f the vic tim, Le onar d Cox. The State next responds that defendant’s claim of coercion is barr ed by the doctrine s of waiver and res judicata . We agree. The Post-Conviction Hearing Act (725 IL CS 5/122-1 et seq

. (West 2004)) provides a means by which a defendant may

challenge his conviction for substantial “violations of federal or state constitutional rights.” People v. Tenner , 175 Ill. 2d 372, 377, 677 N.E.2d 859, 862 (1997). At the first stage of postconviction procee dings, theNo. 1-05-1577

15

circuit court must determine whether the petition is “frivolous or is patently without merit.” 725 IL CS 5/122-2. 1(a)(2 ) (West 200 4); People v. Boclair, 202 Ill. 2d 89, 99, 789 N.E.2d 734, 740 (2002). In order to avoid dismissal at this stage , defendant need only present the gist of a meritorious constitutional claim. People v. Gaultney , 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996). Defendant need only present a limited amount of detail and all well-pleaded alleg ations in his petition must be taken as true and liberally c onstrued. People v. Edwards , 197 Ill. 2d 239, 244, 757 N .E.2d 442, 445 (2001 ). We review the c ircuit co urt's su mmary dismissal de novo

. People v. Coleman , 183 Ill. 2d 366, 387-88, 701 N.E.2d 1063, 1075 (1998). Because an action seeking postconviction relief is a collateral proceeding , not an appeal from the underlying

judgment, the Act contemplates the filing of only one postconviction petition. People v. Evans , 186 I ll. 2d 83, 89 , 708 N.E. 2d 1158, 11 61 (1999) . Conseque ntly , all issues actually dec ided on direct appeal or in the original postconviction petition are ba rred by the doctrine of res judicata , and a ll is sues t hat co uld h ave bee n rais ed in t he ori ginal p roceed ing, or original postconviction petition, but were not, are waived. People v. Blair , 215 Ill. 2d 427, 443, 831 N.E.2d 604, 615 (2005). Where res judicata and waiver preclude defenda nt from obtaining relief, such a claim will necessarily be frivolous and patently w ithout merit. Blair , 215 Ill. 2d at 445, 831 N.E.2d at 615. In the present case , we find that defe ndant’s c laim of pol ice coe rcion is w aived be cause defendant could have raised it in his original and sec ond postconviction petitions. Defendant’s affidavit attached as part of his successive postconviction petition states that Detectives McDermott and Maslanka coerced him into signing a confession. In that aff

idavit, defendantNo. 1-05-1577

16

specifically a

vers that after he was arreste d, he was never read his rights, that he r equested an attorney but was not provide d one, and that, instead, the two police officers “bea t and threatened [him] with a gun into making the coerced confessions.” We note that defe ndant made the exact same alle gations

in his testi

mony at a pre -trial he aring on his motion t o suppres s his state

ments in 1991, and the trial court found that his confession was not coerced. De fendant was thus aware of the co ercion a

t the time that it alle gedly took plac e in 1990, and at the time he en

tered hi s guilty pleas in 1 991. Howe

ver, af ter the d enial of his motion to

suppress , defend

ant chose to abandon these allegations and did not address them in his motion to vacate his g uilty pleas, on direct a ppeal, or in his sec ond postconviction p etition. I nstead, d efenda nt waited 13 years, un

til December 2004, to raise them in this, his third successive postconviction petition. As we find that defendant could have brought this claim ear lier, his failure to do so results in the forfeiture of this claim. See Blair , 215 Ill. 2d at 445, 831 N.E.2d at 615; 725 I LCS 5/122-3 (West 2004). Furthermore, we find that defendant’ s claim of coercion is waived because a voluntar y guilty plea waives all nonjurisdictional errors or irregularities, including constitutional ones. See People v. Townsell , 209 I ll. 2d 543, 5 45, 809 N. E.2d 103, 1 04 (2004) ; People v. Peeples , 155 I ll. 2d 422, 491, 616 N.E.2d 294, 326 (1993) (issues waived by a plea of guilty

include the admissibility of defendant’s conf ession). The record indicates that the circuit court f ound on at least three occasions that defendant’s g uilty plea was enter

ed voluntarily (first, at the time of defendant’s plea, second, in deny ing defendant’s motion to vacate his plea, and third, when denying defendant’s second postconviction petition). As defendant’s plea was entered voluntarily, he has wa

ived his right to raise this issue here. Defendant neve rtheless contends thatNo. 1-05-1577

17

his guilty plea wa s not voluntarily entered be cause his counsel “coerced” him into pleading guilty, and that he

has not waived the issue of coercion for purposes of this appe al. We disagree and address this contention below with regard to defe ndant’s claim of ineffective assistance of counsel. With reg ard to the

argume nt that he forfeit ed his rig ht to addr ess this iss

ue by not raising it in an earlier postconviction proceeding, defe ndant nevertheless argues that his petition is not procedurally

barred because the sources r elied on by him now constitute “newly discovered evi den ce, ” wh ich cor rob ora te h is cla im th at h is con fes si on w as c oer ced and in vol unt ary. In suppo rt of h is con tenti on def endan t reli es on ( 1) a bo dy of feder al and state cases i ndica ting a pattern of practice of torture at Are a 2 and Area 3; (2) the report of the Chica go Police Department’s Office of Professional Standards (O PS); (3) his own affidavit; (4) a copy of a party’s re sponse to a motion to bar the depositions of Mayor Richa rd M. Daley a

nd other officials in the case of Patt erson v. Burge , No. 03-C-4433 (Cir. Ct. Cook Co.) ( Patterson pleading); and (5) the report of the spe cial State’s attorney ’s investigation into allegations of

torture o rdered by t he Circui t Court of Co ok County

on April 24 , 2002, wh

ich was c ompleted

in July 2006 ( Report of the Special State’s Attorney ). For the r easons that follow , we find defenda nt’s cont ention wit hout merit . We first n

ote th at in th e c on te xt of

a s uc ce ss iv e p os tc on vi ct io n p et it io n, th e r ul e o f w ai ve r i s n ot me re ly a principle of judicial administration, but rather an express requirement of the statute. See People v. Pitsonbarger , 205 I ll. 2d 444, 4 58, 793 N. E.2d 609, 6 20-21 (20 02); 725 I LCS 5/1 22-3 (Wes t 2002)) (“[a]ny claim of substantial denia l of constitutional rights not raised in the original orNo. 1-05-1577

18

amended petition is

waived” ); People v. Smith , 341 Ill. App. 3d 530, 539, 794 N.E.2d 367, 377 (2003) (because there is less interest in providing a forum for the vindication of defendant’s constitutional rights in a successive proceeding, “ waiver, which would be a procedural affirmative defense for purposes of the first petition, becomes a substantive consideration going to the merits of a successive postconviction petition”). As such, waiver is g enerally f atal to a

success ive postc onviction petition, l ike the one befor e us today . Howeve

r, our co urt has he ld that the statutory bar to a suc cessive postconviction petition may be relaxed where “fundamental fairness so requires.” People v. Morgan , 21 2 Ill . 2d 148 , 15 3, 8 17 N .E. 2d 5 24, 527 (20 04) . In order to show that “fundamental fairness” re quires that defendant be allowed to file a succe ssive postconvi ction pet

ition, def endant mu st demonstr

ate both caus e and pre

judice wi th respe ct to each claim. Morgan , 212 Ill. 2d at 153-54, 817 N.E.2d at 527. To establish cause, de fendant must identi fy

an objective factor that im peded his ability to raise a specific claim dur

ing his initial postconviction proceedings. Morgan , 212 Ill. 2d at 153-54, 817 N.E.2d at 527. To establish prejudice, defendant must demonstrate that the error not raised in his initial postconviction proceedings so infected the trial that the re sulting conviction violated due process. Morgan , 212 Ill. 2d at 154, 817 N.E.2d at 527. We initially

note that defenda nt does not

attempt to

demonstr

ate cau se and pr

ejudice with regard to this particular claim. I nstead, he relies upon People v. Cannon , 293 Ill. App. 3d 634, 640, 688 N.E.2d 693, 696 (1997), for the proposition that “new evidence” a nd “special circumstances” warrant the re laxation of the procedural bars of waiver and res judicata . We find defendant’s reliance on Cannonmisplace d. In that cas e, a cri

minal def endant w as allowe d toNo. 1-05-1577

19

relitig ate the is sue of a c oerced confess ion afte

r 16 other arreste es filed c omplaints i n the OPS alleging torture by

police detectives, and we set forth two exceptions to the gene ral rule that bars relitigation of a decided motion to suppress evidence: new e vidence that would have been pertinent to the trial court’s rulings, and “special circ umstances” that would warrant relitigation of the motion. Cannon , 293 Ill. App. 3d at 640, 688 N.E.2d at 696. However , defendant here specifically state s that “he does not request relitigation of his initial motion to suppress as did the defendant in Cannon ,” but merely a sks us to apply the standard in Cannonto allow hi s successive postconviction petition to proceed to the second stage of review. Our supreme court clearly a rticulated in Pitsonbarger that the sole “analy

tical tool” that is to be used to determine whether fundamental fairness require s an exception to the statutory proce dural bar of waiver to a successive postconviction petition is the cause-and-prejudice test. Pitsonbarger , 205 Ill. 2d at 459, 793 N.E.2d at 621. Our legislature has rece ntly adopted the ca

use-and-prejudice test as defined in Pitsonbarger

as a separate procedural hur dle that defendant must overcome before filing a successive postconviction petition. See 725 ILCS 5/122-1(f) (West 2004) (“Only one petition may be field by

a petitioner under this [a]rticle without leave of the court. Le ave of court may be gra nted only if a petit ioner de monstrate d cause f

or his or h er failu

re to brin g the cl aim in his or her initial pos t[]conviction procee dings an d prejudi ce resu

lts from th at failur

e”). We n

ote that while the cause-and-prejudice test and the “ special circumstances” test may at least in part overlap, the Cannontest is reserved for relitigating motions to suppress, which we re denied during the pendency

of an actual trial. However, beca use in the case at bar, we are de aling with a successive postconviction petition, the appropriate test is the cause-and-pr ejudice test, and weNo. 1-05-1577

4 The OPS investigation began in 1989, following internal investig ation of police mi sco ndu ct a t Ar ea 2 . “T he f irs t s ect io n of

th e OP S re por t i s kn own as t he G ol dst on r epo rt. It documents the allegations of 50 different suspects conc erning misconduct by Area 2 personnel 20 will proceed with our analy sis using that test, even though defendant does not identify it as such. We next note that defendant has failed to satisfy the “cause” prong of the test be cause he has failed to point to an objective factor that impeded him from raising a claim of coercion in an earlier proceeding. De fendant originally gives no reason for not raising his claim ea rlier, and only later, in his reply

brief, he attempts to circumvent the cause prong by simply

stating that “this objective factor is consistently identified as the newly

discovered nature of the evidence [defendant] relies on.” However, arguments raised for the first time in a reply brief on appeal are considered waived. Smith , 352 Ill . App. 3d at 1 112, 8 17 N.E .2d at 998, c itin g People v. Brown , 169 Ill. 2d 94, 108, 660 N.E.2d 964, 970 (1995). Moreover, e ven if we were not to consider defenda nt’s arg ument wai

ved, his c onclusor

y st atement p rovides n o plausibl e “caus e” for h

is failure to obtain the evidence earlier. See People v. Mahaffey , 194 Ill. 2d 154, 185, 742 N.E.2d 251, 2 68 (20 00), c itin g People v. Frankli n , 167 Ill. 2d 1, 15, 656 N.E.2d 750, 758 (1995). Evidenc e of sy

stematic torture was alre ady

widely availab le in 2000 w

hen defe ndant file d his second post-conviction petition. Most of the cases that defendant cites to in his postconviction petition were decided between 1987 and 2000. See , e.g., People v. Wilson , 116 Ill. 2d 29, 506 N.E.2d 57 1 (1987); People v. Banks , 192 I ll. App. 3d 986, 549 N .E.2d 766 ( 1989); Wilson v. City of C hicago , 6 F.3d 12 33 (7th Cir. 1993) ; United States ex rel. Maxwell v. Gilmore , 37 F. Supp. 2d 1078 (N.D. Ill. 1999). Similarly , the OPS report 4 to which d efenda nt cites in hisNo. 1-05-1577

from 1973 to 1986. The allegations included 27 incidents of beating s, 13 incidents where a plastic bag or ty

pewriter cover was placed ove r a suspect’s head, 11 incidents where a f irearm was used to threaten or strike a suspect, 9 incidents of elec troshock, and 2 hanging incidents. The rep ort conc luded tha

t Area 2 p olice, [he aded by commandi

ng offi cer Jon B urge], e

ngag ed in systematic abuse of

suspects during the 13-y

ear period, which included planned torture.” People v. Oran ge , 195 Ill. 2d 437, 445- 46, 749 N. E.2d 932, 9 37 (2001) . The sec ond secti on of the O PS report is the Sanders report, which is an analysis of the Andrew Wilson case. That report found that “Burge [himself] actively participated in the ‘mistreatment’ of Wilson, burned Wilson with a radiator, repeatedly

shocked him, and ‘engage d [him] in several unjustified physical altercations during which Mr. Wilson was handcuffed and incapa ble of providing any

resistance.’” People v. Patterson , 192 Ill. 2d 93, 141, 735 N.E.2d 616, 643 (2000).

21 curren t petition was comple

ted on Sep tember 2 8, 1990, te n ye ars bef

ore def endant f iled his second postconviction petition. See Orange , 1 95 Ill . 2 d a t 4 45 , 7 49 N. E. 2d at 93 7. Si mi la rl y, defendant’s affidavit, attached to his curre nt successive post-conviction petition, does not provide any ne

w evidence, as the allegations of coe rcion are exactly

the same as those he raised in his motion to suppress his statements in 1991. Thus, defendant has not shown cause for not raising this issue in an earlier proceeding . See Orange , 195 Ill. 2d at 445, 749 N.E.2d at 937. We recognize, however, that a copy of a party ’s response to a motion to bar the depositions of Mayor Richard M. D aley and othe r officials in the case of Patt erson v. Burge , No. 03-C-4433 (Cir. Ct. Cook Co.) (the Pattersonpleading ) on whic h defend ant relie s as newlyNo. 1-05-1577

22

discover ed evide nce bec ame ava

ilable on ly a fter he filed his s econd po stconvic tion petiti on in 2000. This

document

is dated Se

ptember 24, 2004, a

nd presumably

filed by Aaron Pa tterson in his section 1983 (42 U.S.C. §1983 (2000)) case against former Area 2 commander Jon Burge. However, even though defe ndant objectively could not have obtained this documents before filing his second postconviction petition, we find there was ample evidence of police torture available to him in 2000 that would have allowed him to raise a claim of police coer cion at that time. Moreover, defendant points to no objective reason that would explain why he could not raise this claim without this additional piece of evidence, and we there fore find that he has failed to show cause. However, even if the unavailability of the Pattersonpleading is suffic ient to est

ablish cause for failing to raise his claim ear lier, defendant cannot establish that he suffere d any prejudic e in conne ction with his claim o f coerc ion beca use this pie ce of al legedl

y “ newly discovered evidence” does not satisfy the standard for granting a new trial. See Orange , 195 I ll. 2d at 450, 749 N.E.2d at 940. “For new evidence to wa rrant a new trial, the evidence (1) must be of such conclusive character that it will probably change the result on retrial; (2) must be mater ial to the issue, not merely cumulative; and ( 3) must have been discovered since trial and be of such character that the defendant in the e xercise of due diligence could not have discovere d it earlier.” Orange , 195 Ill . 2d at 450-5 1, 749 N.E.2 d at 94 0, cit ing People v. Molstad , 101 Ill. 2d 128, 134, 461 N.E.2d 398, 402 (1984). In light of the overwhe lming evidence of defendant’s g uilt proffered by

the State at defendant’s plea hearing, the re is no probability that the Pattersonpleadingwould change theNo. 1-05-1577

23

result of defendant’s proceeding on retrial. As the factual basis for defenda nt’s guilty plea, the State pro ffere d that the

evidenc e would show that on March 30 , 1990, de fendant fired tw o shots from a .25-caliber handgun, killing the victim, and that the same .25-caliber handgun used in the incident was found in defendant’s possession upon his arrest. The State also proff ered that eyewitnesse s to the incident would identify defe ndant in open court and testify about the incident. The same ey

ewitnesses would testify that they had already

picked defendant out of a lineup. In light of this evidence, ther e is no reasonable probability that, if defendant’s confession

were excluded, he

would not h

ave plea ded gui lty, and inste ad would have bee n found no t guilty of the murder charged. Moreove r, beca use we ha ve previ ously

recog nized that d

ocuments prepar ed in anticipation of litigation “generally lack the earmarks of trustworthiness and reliability ” ( People v. Smith , 141 Ill. 2d 40, 73, 565 N.E.2d 900, 914 (1990)), we find that the Pattersonanswer is unrel iable . This docum ent is merel y a pleadi ng that detai ls all egatio ns of t he Cit y of Chica go withholdin

g documents per

taining to 14 electric shock cases d iscover ed by the OPS re

port in 1984. In addition, a review of the Pattersonpleading reveals that it contains no information that would supp ort defe

ndant’s a llegat ions that D etective s Maslank a and McD ermott ja

bbed him with a billy club and threa

tened him with a gun. Neither officer is mentioned in that pleading , and the allegations there involve the use of electric shock which differ from the coercive ta ctics which defenda nt claims w ere dep loy ed by Detecti ves Masla

nka and M cDermot

t to coer ce his confession. Generalized claims of misconduct, without any link to defendant’s case, i.e., someNo. 1-05-1577

24

evidence corroborating def endant’s allegations, or some similarity between the ty

pe of misconduct alleged by

defendant and that presented by the evidence of other cases of abuse , are insufficient to support a claim of coercion. See People v. Maxwell , 173 Ill. 2d 102, 120-21, 670 N.E.2d 679, 687 (1996) (holding that without some evidence that defendant wa s injured, evidence of the treatment of other suspects, throug h reports of physica

l abuse and coercion of confessions at Area 2, could not, by itself, be the basis for a postconviction evidentiary hearing); People v. Hinton , 302 Ill. App. 3d 614, 626, 706 N.E.2d 1017, 1022-23 (1998) (re jecting defendant’s contention that he was entitled to an evidentiary hearing on his postconviction petition be cause he

had new e

vidence which showed “sy

stematic torture” at Area 2, specif ically an affidavit from an I llinois attorney, OPS reports, findings fr om the Chicago police board, and his own affidavit asserting that he was beaten, pistol-whipped, shocked and suff ocated, because defendant did not present sufficient evidence of his own injury ); People v. Hobley , 159 Ill. 2d 272, 311-12, 637 N.E.2d 992,1009-10 (1994) (holding it was not error for trial court to bar testimony of three witnesses w ho claimed they ha

d also been abused by

the same officer who abused defendant because there was no evidence that the defendant had sustained injuries consiste nt with his c laim of pol ice brut ality ); People v. Hobley , 182 Ill. 2d 404, 448-49, 696 N.E.2d 313, 335-36 (1998) ( Hob ley II ) (deny ing postc onviction

petitione r’s req uest to pr oceed to an evide ntiary hearing , holding

that “ne w eviden ce” con sisting o f the OPS r eport an d transcripts of testimony from other alleged victims of abuse did not alter the court’s determination that defenda nt did not suffer inj uries consistent with his cla ims of abu se); People v. Murray , 254 I ll. App. 3d 53 8, 553, 626

N.E.2d 11 40, 1150 ( 1993) (ho lding tha t defend ant’s all egations of abus eNo. 1-05-1577

5 We further note that even if we were to hold that the fa ctual allegations in the Patterson pleading constitute

evidenc e of sy

stematic misconduc

t at Area 2, the evi dence is , at best, cumulative of previous evidence of Area 2 ta ctics and therefore not “new.” See Orange , 195 I ll. 2d 450-51, 749 N.E.2d at 940

. 25 of other suspects were pr operly excluded b ecause

they were “ gener

al in natu re”); Mahaffey

v. Schomig , 294 F.3d

907, 917 ( 7th

Cir. 2002) (noting that defendant’s failure to produce any corroborating ey

ewitness testimony, medical re cords or supporting evidence dealing with the injuries he alleges he sustained while in custody significantly unde

rmined his involuntary confession claim). 5 We further find that defendant cannot in this appeal rely on the Report of the Special State’s Attorney

for evid ence of coerci on in his ca se. Althou gh we g ranted d efenda nt’s req uest to cite to that report as additional authority , we find that it would be wrong for us to consider that report for the first time on appeal without it first being attache d to defendant’s postconviction petition f or initial scrutiny and eva luation a t the tria l court le vel. See 7 25 IL

CS 5/122-2 (

West 2002) (“[a postconviction] petition shall have attached thereto affidavits, records, or other evidence, supporting

its allegation

s (emphas is added) ”); People v. Collins , 202 Ill. 2d 59, 66-69, 782 N.E.2d 195, 199-200 (2002) (holding that postconviction petitioner cannot be excused from the pleading require

ments of se ction 122- 2); People v. Turner , 187 Ill. 2d 406, 414, 719 N.E.2d 725, 730 (1999) (holding that failure to attach the nece ssary af fidavits, records or other evidence or explain its absence is “f

atal” to a post-con viction pe tition); Coleman , 183 Ill. 2d at 380, 701 N.E.2 d at 10 71, qu otin g Peopl e v. J ennin gs , 411 Ill. 21, 102 N.E.2d 824 (1952) (holding thatNo. 1-05-1577

6 In a n earlie r appea l from a de

nial of a differe nt postcon

viction pe tition file d by

the same defendant with respect to another conviction (ca se No. 90 CR 11984), we did consider, with the apparent acquiescence of both pa rties, the impact of the Report of the Special State’s Attorney , without it first having been filed in the trial court. See People v. Tony Anderson , No. 1-05-1379 (2006) (unpublished order under Supreme Court Rule 23). I n that decision, we found that under the facts of that case coupled, among other things, with the explicit refusal of the Report of the Special State’s Attorney

to support

defenda nt’s cont entions wi

th respe ct to any

of his convicti ons, that d

efenda nt did not sufficien

tly c ross the th

reshold o f cause

and prej udice for his petition to proceed to the second stage of postconviction proce edings. See People v. Tony Anderson , No. 1-05-1379 (2006) (unpublished order under Supreme Court Rule 23). However, we recognize in this decision that the better practice would have been not to have considered that 26 failure to attach the necessary documentation by itself justifies the petition’s summary dismissal); People v. Jefferson , 345 I ll. App. 3d 60, 71, 801 N.E.2d 55 2, 560 (20 03) (hold ing that , at the f

irst stage of post-conviction proceeding s, “‘[t]he circuit court is required to make an independent assessment *** as to whether the allegations in the petition, liberally construed a nd taken as true, set forth a constitutional claim for relief.’ (Emphasis added) [Citation.] Issue s that are raised for the first time on ap

peal ar e by definition not ‘alle gations in the pet ition’”) ; People v. Montgomery , 327 I ll. App. 3d 180, 186, 7 63 N.E.2d

369, 375 ( 2001) (ho lding tha t affida vit attache d on appe al but not a s part of defenda nt’s postc onviction

petition a s requir

ed by the Act is stricken because “appellate re view is generally

limited to what has been properly presented and preserved of record in the trial cour t”). 6 Although the Report of the Special State’s Attorney didNo. 1-05-1577

report in any e

vent for the first time on appeal without it first having been prese nted to the trial court, for the reasons heretofore indica ted.

7 The Report of the Special State’s Attorney was completed pursuant to a court order of the chie f judge

of the ci rcuit co urt crimi nal division entere d on April 2 4, 2002, a nd relea sed in July 2006, six yea

rs after defendant filed his second postconviction petition, and afte r defendant filed the reply br

ief in the current cause.

8 See People v. Coleman , 206 Ill. 2d 261, 272-73, 278, 794 N.E.2d 275, 283-84, 286-87 (2002) ( listing se

veral torture c omplaints l odged a gainst D etective

Maslanka

); People v. Brown , 169 Ill. 2d 132, 145-46, 661 N.E.2d 287, 293-94 (1996) (althoug h defendant alleged that Detecti ves Masla

nka and Pa

ladino we re among the Area 3 detect ives who ig

nored his request to speak to a n attorne y a nd “struc k him repe atedly

on the che st, hands a

nd legs u ntil he ag reed to make a statement,” court held that there was a mple support for the trial court’s finding that defenda nt’s will w as not ove

rborne w hen he ma

de his inc ulpatory statemen ts); People v. Clemon , 27 not materialize until after the circuit court had already ruled on defendant’s postconviction petition, 7 we note that neither by statute nor case law is there any limit to the number of successive postconviction petitions that can be filed with the trial court, so as to enable that cour t to first c onsider a

ny a lleged ly newly discover ed evide nce bef ore it is su

bmitted for appell ate review. Likewise, the same applies to defe ndant’s argument raised for the first time on appe al that “several other cases have [rec ently] emerg ed” which show Detectives Maslanka’s and McDermott’s involvement in allegations of abuse at Area 2. 8 Becau se defe

ndant never cited

toNo. 1-05-1577

259 Ill. App. 3d 5, 11, 630 N.E.2d 1120, 1121 (1994) (defe ndant alleged Detective Maslanka was one of the officers who coerce d a confession from him in September 1991, and court held that “[a]lthough a [10 1⁄2 - hour] detention generally is not considered unreasonable in itself, when, as here, the detent

ion is comb ined with p eriodic scream ing thro ugh the night, it supports defendant’s theory

of a coercive environment”).

28 these cases in his present successive postconviction petition, and as alrea dy discussed above, he cannot in troduce them as ne

w evidence for t

he first t ime on app eal. See

725 I LCS 5/1 22-2 (Wes t 2002) (“[a postconviction] petition shall have attached thereto affidavits, records, or other evidence, supporting

its allegation

s (emphas is added) ); People v. Collins , 202 Ill. 2d 59, 68-69, 782 N.E.2d 195, 199-200 (2002) (holding that postconviction petitioner cannot be excused from the pleading require

ments of se ction 122- 2); People v. Jefferson , 345 Ill. App. 3d 60, 71, 801 N.E.2d 552, 560 (2003) (holding that, at the first stage of post-c onviction proceedings, “‘[t]he circuit court is required to make an independent assessment *** a s to whether the alleg ations in the petition, liberally construed a nd taken as true, set forth a constitutional claim for relief.’ (Emphasis added) [Citation.] Issues that are raised for the first time on appeal are by definition not ‘allegations in the petition’”). Defendant may

well contend that even without considering the Report of the Special State’s Attorney , this case is similar to Patterson , 192 Ill. 2d 93, 735 N.E.2d 616, and People v. King , 192 I ll. 2d 189, 7 35 N.E.2d 569 (2000 ), case s holding that def endants were ent

itled to evidentiary he arings based on allegations of new ly discovered e

vidence of police abuse at AreaNo. 1-05-1577

29

2. We find these cases inapposite. We first note that both King and Pattersoninvolved newly discovered evidence presented in a first post-conviction petition and not one raised in a successive post-conviction petition. More importantly , both King and Pattersoncontinue to require a defendant to show some similarity between his allegations of coercion a nd the generalized evidence of police tortur e at Area 2. See Patterson , 192 Ill. 2d at 118, 73 N.E.2d at 631. In addition, although in Pattersonthe court specifically addressed whether the OPS report was “newly

discovered evidence” entitling defe ndant to an evidentiary

hearing to evaluate the credibi lity

of defe ndant’s a llegat ions of pol ice abus e, and fo und that th e repor

t was mate

rial to defend ant’s claim of coer cion b ecause it cou ld cha nge the outco me of d efenda nt’s p roceed ings on retria l ( Patterson , 192 Ill. 2d at 145, 73 N.E.2d at 645), the evidence used to convict defendant in that case consisted solely of the testimony of the arr

esting officer and the State’s Attorney regarding the substance

of defendant’s confession (see Patterson , 192 Ill. 2d at 104-106, 73 N.E.2d at 624-25). Unlike in Patterson , defendant here pleaded g uilty to the offense in question, and the State’s proffer at defendant’ s plea hearing indicated that ey ewitnesses would identify defendant in open court as the perpetrator and testify that they

had already

identified him in a lineup shortly after the

shooting, and that evidence would show that the same .25-ca liber handgu n used in the incide

nt was fou

nd in defe ndant’s p ossession

upon his ar

rest. Furthermore, unlike here, the Pattersoncourt found that defendant’s allegations that Jon Burge threate ned him wit

h a revol ver wer e “striki ngly similar” to alleg ations of

sys tematic torture found in the Goldston report, which indicated that “a firea rm was [often] used to threatenNo. 1-05-1577

30

or strike the victim” and that Burge was ide ntified as participating in “51% of the cases.” See Patterson , 192 I ll. 2d at 14 4-45, 73 N .E.2d at 6 43, 645 (the question of rele vancy “is a determination to be made by the trial court after a consideration of, inter alia , the defendant’s allegations of torture and their similarity to the prior allegations”). I n the present case, as already discussed above Detectives Maslanka and McDe rmott are nowhere mentioned in the Patterson pleading, and the allegations of torture in that pleading are different fr om defendant’s allegations here. Similarly, in King , the court followed the rationale in Pattersonand allow ed defe ndant to procee d to an evi dentiar

y he aring, where d

efenda nt alleg ed that B urge w as prese nt during his interrogation, and cited to the OPS report and the decision by the Chicago police board dismissing Burge from his employ ment as a Chicago police officer a s newly discovere d evidence. See King , 192 Ill. 2d at 198-99, 735 N.E.2d at 575-76. Unlike King , where the defendant’s inculpatory

statements “supplied the primary evidence of his guilt” ( People v. King , 109 I ll. 2d 514, 5 21, 488 N. E.2d 949, 9 53 (1986) (defen dant’s di rect ap peal)) , as noted

above, in the case at bar, in light of the overwhe lming evidence proffered by the State at defendant’s plea hearing , there i s no likelihood that, had additi onal evid ence of brutality allega tions come

to light, prevent ing the i ntroduct ion of def endant’ s inculpa

tory statemen ts, he wou

ld have pr oceede d to trial and been acquitted. 2. Ineffective Assis tance of Counsel for “Coerc ing” De fendant to Plead G

uilty Defend ant next contends tha

t the tria l court e rred wh en it summa

rily dismissed h

is petition because he stated the gist of a claim of inef fective assistance of counsel in violation ofNo. 1-05-1577

31

his sixth and fourteenth amendment rights (U.S. Const., amends. VI, XI V), where counsel deprived him of his right to due process by “coercing” him to plead guilty . Claims of ineffective assistance of counsel are analy zed under the two-prong test established in Strickland v. Washington , 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), and People v. Bloomingburg , 346 Ill. App. 3d 308, 316-17, 804 N.E.2d 638, 645 (2004), which require defendant to show that (1) his attorney 's performance fell below a n objective standard of reasonableness and (2) that the deficient pe rformance so prejudiced the defe nse as to deny the defendant a fair trial. Failure to make the requisite showing of either deficient perf ormance or sufficient prejudice defeats an ineff ectiveness claim. People v. Palmer , 162 Ill. 2d 465, 475-76, 643 N.E.2 d 797, 801 ( 1994). We r eview the decision of the ci rcuit co urt de novo

. Coleman , 183 Ill. 2d at 387-88, 701 N.E.2d at 1075. Defend ant asse rts that c ounsel “c oerced

” him into pl eading

guilty because he contin ually told defendant that he “would be put to death if [he] took the case to trial” and beca use he failed to investigate defendant’s claims that his confession was coe rced. The State argues that defendant’s claim is barred by the doctrine of res judicata . We agree. Defendant raised the same exact alleg ations in both his original and second postconviction petitions, where he alleged that he was de prived of effective assistance of c ounsel when cou nsel “co erced”

him to plea

d guilty through repeat ed state ments that

if he pro ceeded

to trial, he would receive the death penalty . Each time, the court found defendant’s alleg ations without merit. As this claim has been raised and rejected by the circuit court twice, we find that defendant is barred by

the doctrine of res judic ata from relitigating it here. Blair , 215 Ill. 2d atNo. 1-05-1577

32

443, 831 N.E.2d at 615. However, even if we were to relax this procedural bar, and consider the merits of defendant’s claim, we would find that he cannot state the g ist of a meritorious claim of ineffective assistance of counsel, beca use his assertion that his guilty plea was made involuntarily as a result of c ounsel’s “coercion” is directly refuted by

the record below. See People v. Greer , 212 I ll. 2d 192, 2 11, 817 N. E.2d 511, 5 23 (2004) ; People v. Jones , 144 Ill.2d 242, 263, 579 N.E.2d 829, 838 (1991). The record reflects that at the Aug ust 9, 1991, plea hearing, counsel informed the cour t that purs uant to the

July 2 6, 1991 an

d July 30, 1991 c onfere

nces, de fendant

wished to c

hange his pleas to guilty. The

following colloquy r

egarding case no. 90 CR 11979 then took place : “THE COURT: Next is 90-11979 which states that on or about March 30 of 1990 at and within the County of Cook, y ou, Tony Anderson, c ommitted the offense of first d egree murder in

that y ou without l awful jus tification intention ally and knowingly

shot and killed Leonard Cox with a gun. To that count of that ind ic tme nt d o y ou w ish to e nte r a ple a? MR. ANDERSO

N: Yes. G

uilty *** THE COURT: Before I

accept y our pleas of guilty

in these various matters I want to advise y ou of your rig

hts and attempt to determine if you understa nd them. I have rea d the various counts of these various indictments and/orNo. 1-05-1577

33 informat ions to y ou. Do y ou under stand the

m? MR. ANDERSO

N: Yes. THE COURT : Do y

ou under stand tha

t on a plea

of guilt y to these co unts of these indictmen

ts you could b e senten

ced as f ollows: As t

o the cha rge of first degre e murder

the possib le penal

ties are not less tha

n twenty nor more than sixty years in the I

llinois Department of Corrections or under certain circumstanc es an extended term of not less than sixty nor more than one hundre d years in the Illinois Department of Corrections. As to the - State, this is not a possible - That was not a possible death penalty? (Emphasis added) [THE STATE ]: No, Your Honor

. THE COURT: Okay, All rig ht.” (Emphasis Added). The rec ord furt

her ref lects tha t the cour t explained

to defen dant wha t jury and benc h trials are and what he would be giving up by waiving

his right to either or both. The court further advised d efenda nt that by enterin g a gu ilty plea, he would be g

iving up other rig

hts, inclu ding his right to remain silent, his right to confront the witnesses ag ainst him, his right to cross-examine them, his right to present evidence on his own behalf, his rig ht to object to unreasonable searches and seizur

es and his right to object to identific ation test

imony . Defen

dant ack nowledg ed these admonishments and signed a jury waiver form in open court before the judg e. The record also shows that the court further re minded defendant that there had been “some *** very

lengthy discussions” be

tween defense counsel, the assistant State’s Attorney and the cour t, conce rning the facts

of the ca se, and d

efenda nt’s backgroun

d. After these dis cussions,No. 1-05-1577

34

the State had indicated that if defendant chose to plead g uilty, it would recommend a sentenc e of 50 years. D efendant indicated that he understood. The court fina lly asked defe

ndant if anybody had threatened him in any way, made

him any other promises, or f orced him to plead guilty , and defendant responded in the negative. Thus, the record itself refutes defenda nt’s contention that he was “coerced” into pleading guilty when cou

nsel told h

im that he would other

wise rec eive the

death se ntence. The State made it clear during plea neg otiations that “this was not a possible death penalty,” and defendant ackno wledge d that he und ersto od. Mo reover , when asked if he w as thr eatene d int o ente ring a guilty plea, de fendant stated “No.” Therefore , we find that the record demonstrates that defendant’s postconviction allegation of ineffe ctive assistance of counsel is frivolous on its face and patently without merit. See Jones , 144 Ill. 2d at 263, 579 N.E.2d at 838 (defenda nt’s acknowledgment in open court, at a plea pr oceeding, that there were

no agreements or promises regarding his sentence

served to contradict his postconviction petition assertion that he pleaded guilty in relian ce upon a n alleg ed, undisc losed promise by defense counsel r egard ing sent encing); People v. Rissley , 206 Ill. 2d 403, 454, 795 N.E.2d 174, 202 (2003) (defe ndant’s allegations were “totally contrad icted by the rec ord of the

plea”) ; People v. Maury , 287 Ill. App. 3d 77, 83, 678 N.E.2d 30, 34 (1997) (defendant’s declara tion in his postconviction petition that his plea was involuntarily entered ba sed on the erroneous advice of trial counsel wa s directly ref uted by the record, which indicated that defendant answered “no” when the circuit court inquired w hether any extraneous promises had be en made to him). We next consider defendant’s assertion that counsel “coerc ed” him to plead guilty byNo. 1-05-1577

35

failing to investigate his allegations of police c oercion. We first note that, as already discussed above, a claim of i

neffec tive assis tance of

counsel i s barre d, if def

endant f ails to dem

onstrate cause and prejudice or actual innoce nce for not raising it in his earlier postconviction petitions. Morgan , 212 Ill. 2d at 153, 817 N.E.2d at 527. I n the present case, defendant has not made a showing of eithe r cause or preju dice. De fendant

merely asserts t hat the ob jective r eason for his failure to raise t his claim e arlier i s the “ne wly discover ed natur e of the e vidence that he c ites, attache s and rel ies upon in his petition.” As not

ed above , we have

alread y f ound that t

his information was not “newly discovered evidence” at the time defe ndant filed his second postconviction petition in 2000. However, even if we were to relax the rule of waiver and consider purely the merits of defendant’s claim that counsel was ineffective for failing to investigate his claims of coerc ion, we would find that he cannot state the gist of a meritorious claim of ine ffective assistance of counsel, because counsel’s failure to investig ate defendant’s claim of police misconduct did not fail to me et reas onable pr ofessional standa

rds. The right to effec tive assis tance r

efers to competent and not perfect representa tion ( People v. Odle , 151 Ill. 2d 168, 173, 601 N.E.2d 732, 735 (1992)), and mistakes in judgment will not, of themselves, render the re presentation incompet ent ( Palmer , 162 Ill. 2d at 476, 643 N.E.2d at 801-02). We acc ord a heavy measure of deference to counsel’s decision regarding whether to investigate allegations of abuse (see People v. Deloney , 341 Ill . App. 3d 621 , 636, 793 N. E.2d 1 89, 20 1 (200 3), ci ting Orange , 168 Ill. 2d at 149, 659 N .E.2d at 9 40-41), a nd counse l only

has a duty

to make “

reasona ble inves tigation s or to make a reasonable decision which makes pa rticular investigations unnecessary ” (see Orange , 168No. 1-05-1577

36

Ill. 2d a t 149 , 659 N .E.2d at 940 , citi ng People v. Harris , 129 Ill. 2d 123, 158, 544 N.E.2d 357, 372 (1989)). Where the circumstances known to counsel at the time of inve stigation do not reveal a soun d basi s for i nqui ry into a c ertai n iss ue, it is no t inef fecti ve for c ounse l to fo rgo further inquiry. Hinton , 302 Ill. App. 3d at 619-24, 706 N.E.2d 1021-24 (holding tha t defendant had not established there was a sound basis for further inquiry where there was no evidence of injury other tha n defend ant’s testimony

and his al legati on that co unsel fa iled to intr

oduce his bloody shirt); Orange , 168 Ill. 2d at 150, 659 N.E.2d at 940-41 (not ineffe ctive to forgo inquiry where the only

evidence supporting defendant’s allegation of abuse was his testimony and a questionable entry on a

paramedic’s report). In the present case, de fendant ’s initial d efense counsel f iled a moti on to suppr

ess defendant’s inculpatory

statements and a hearing was held. De fendant himself admitted at the hearing on that motion that he was given a phy sical examination after his interrogation and that this examination revealed no bruises or phy sical injuries corroborating his allegations of a buse. Moreover, there was no witness to the allege d brutality. In addition, at the time defendant ente red his guilty plea s, the only evidence to support defendant’s allegation of coer cion were generalized claims of torture at Area 2. Because, as noted above, generalized alleg ations of coercive activity in Area 2, without other corroborative evidence, would not establish that this defendant was coerce d into confessing, we find that it was

not unrea sonable f

or plea hearing

counsel t o curtai l his invest

igation after the motion to s

uppress was denied. See People v. Titone , 151 Ill. 2d 19, 30, 600 N E.2d 1160, 1165 (1992) (our supreme court affirmed the circuit court' s dismissal of defendant's postconviction petitionNo. 1-05-1577

37

alleging bribery

between defense counsel and the trial judg e because an investigation into the judge' s conduc t in unrela ted case s was not g ermane to defen dant's c laim); People v. Zambrano , 266 Ill. App. 3d 856, 864, 640 N.E.2d 1334, 1340 (1994) (in affir ming the dismissal of defendant's postconviction petition alleging inef fective assistance of counsel, this court found that the fact that defendant's attorney was being investigated for improprieties in non-r elated

cases w as insuff

icient to t aint othe r cases counsel had worke d on); Hinton , 302 Ill. App. 3d at 625, 706 N .E.2d at 1 024 (cou rt held tha

t it was not

reasona bly probable that a moti on to suppr

ess defenda nt’s state ment would

have be en gra

nted had t rial cou nsel inve stigate d furthe

r, beca use there were no medical reports to bolster def endant’s claim of abuse, nor any photographs of injuries or supporting witness testimony). Obviously , the competency

of counsel cannot be measured in hindsigh

t by matters w

hich may have co me to ligh

t after he was ca

lled upon t

o act, but must be viewed under the circumstances present at the time his ac tion, or for that matter, inaction, took place. Finally, we c oncluded earlier in this opinion that in light of the overwhelming evidenc e proffered by

the State at defendant’s plea hearing , it is not likely that, had additional evidence of brutality alleg ations come to light and prevented the introduction of defenda nt’s confession, defendant would have proceeded to trial a nd been acquitted. Accordingly , we cannot find here that the outcome of defendant’s proceeding s would have been different, but for counsel’s f ailure to obtain the same information, under the second prong of Strickland , 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. 3. Brady ViolationNo. 1-05-1577

38

Defendant next contends that his petition states the gist of a meritorious claim under Brady v. Maryland, 373 U.S. 83 , 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), b ecause

the State violated his due process right by failing to disclose, prior to his guilty plea, exculpatory evide

nce of voluminous claims of Area 2 police torture “echoing ” defendant’s claims of coercion. Defendant specifically

alleges that the State withheld evidence that Detec tives McDermott and Maslanka committed misconduct at Area 2, and that Assistant State’s Attorney Kip Owen, who litigated defendant’s suppression hearing , had knowledge of this evidence at the time of defendant’s plea hearing. D efendant specifically alleges that Owen “was intimately acquainted with Area 2 for the relevant time period, worke d in felony revie w when many c laims of Area 2 torture were filed and even participa ted in the questioning in the Patterson case.” We disagre e. Illinois courts have long rec ognized that a criminal defendant’s right to due pr ocess and a fair trial is violated by the pr osecution’s failure to disclose material evidence fa vorable to the defense and that such claims are cog nizable in postconviction proceedings. People v. Harris , 206 Ill. 2 d 1, 44, 794

N.E.2d 31 4, 341 (20 02); Hob ley II , 182 Ill. 2d at 429-32, 696 N.E.2d at 326-32. To establish a Brady

violation, defenda

nt must show

that the su

ppresse d evidenc e was bot h materia l and favorable t

o his defe nse. Evid

ence is material

if there is a rea sonable probabilit y that the result of defendant’s trial would have been diff erent had the prosecution disclosed the evidence. People v. Thomas , 364 Ill. App. 3d 91, 101, 845 N.E.2d 842, 852-53 (2006). A reasonable probability

of a differing result is one sufficient to undermine c onfidence in the actual

outcome. Thomas , 364, Ill. App 3d at 101, 845 N.E.2d at 852-53. Accor dingly, to succe ed on a claimed Brady

violation, a defen

dant must d

emonstra te that (1 ) the undi sclosed e vidence isNo. 1-05-1577

39

favorable to him because it is either exculpatory or impeaching, (2) the evidence was either willfully or inadve rtently withheld by th e State, a

nd (3) wit hholding the evide nce res ulted in prejudice to him. People v. Rapp , 343 Ill. App. 3d 414, 418, 797 N.E.2d 738, 741 (2003). The State first argues that the disclosure require ment of Brady

applies only to a trial and not to a ple a heari

ng, and cites to c ases fr

om the Eig

ht, Fifth , and Nint

h Circuits which ha ve held that a guilty plea

waives a Brady

violation claim. Defendant responds that the Second, Sixth and Tenth Circuits allow a defendant to proceed with a Brady claim despite the entry

of a guilty ple a. We note bot

h that our courts ha ve not add

ressed t his issue a

nd that the

United Sta

tes Supre me Court has y

et to answ er whether the du e proce ss clause

require s Brady

disclosures outside of the context of trial. However, for purposes of this appeal, we find that we need not decide this issue because defenda nt has wa ived his Brady

claim by failing

to raise it in his original and second postconviction petitions. As detailed above, the exhibits submitted in support of defendant’s claim were discoverable prior to his filing his second postconviction petition in 2000. Moreover, even assuming that the State did possess such evidence of misconduct at Ar ea 2 at the time of defenda nt’s plea hearing , and that

defenda nt could no t have dis covere d it at the t ime he fil ed his original postconviction petition, defendant cannot meet the Brady materiality test beca

use, as discussed above, there is no reasonable probability that, had such evidence of systematic torture at Area 2 been disclosed to the defense, the r esult of defendant’s proceedings would ha ve been different. CONCLUSIO N For the f orego ing rea sons, we f

ind that de fendant's postc onviction petition w as prope

rly dismissed for failing to state any meritorious claims. Accordingly , we affirm the order of theNo. 1-05-1577

40

circuit court of Cook County. AFFIRMED. FITZG ERALD SMITH, P. J., and McNULTY, J., concur.