2013 IL 113307



### IN TH E
SUPREME COURT
OF
THE STATE OF IL LI NOI S

(Doc ket No. 113307)
THE PEOPL E OF THE STATE OF I L L I NOI S, App el l ee, v. CHRI STOPHER COL EMAN, Appe llant.

Opinion filed October 3, 2013.

J USTI CE THEI S deliver ed the judgme nt of the court, with opinion.
Chief J ustice Kilbride and J ustices Fr eem an , Thomas, Gar man, Kar meier, a nd Bur ke conc urre d in the judgme nt and opinion.

OP INION

¶ 1 T h e ce n tral issue in this appea l is whether the circ uit cour t o f

P eo ri a County ’s decision to deny relief to defe ndant Christophe r Coleman followingan evide ntiary hearing on his second succ essive postconviction petition, whic h r ais e d a claim of actua l innocenc e, was manifestly err oneous. In resolving that iss u e, we also must addre ss whether People v. W

ashington
, 171 I ll. 2d 475 (1996 ), wh i ch

announce d the s t an dard in I llinois for evaluating postconviction claims of actua l i n n o ce nce, should be discarde d in favor of a more rig orous standar d with roots in feder al law. ¶ 2 Today
, we rea ff irm our holding in W

ashington
, and reve rse the judgme nts of t he circuit court and the ap p el late court (2011 I L App (3d) 100419- U) a

nd rema nd for a new tria l.¶ 3 BA CKGROUND

¶ 4 On August 22, 1994, sever al m en en t er ed a h o u s e i n Peoria,

wher e Be rtha Miller lived with her two daughter s, Tequilla and Teke lia, and her two sisters, My re L ott and Ang ela Stim ag e. The men demande d mo n ey , then threatened and beat the occupa nts of the house. Two of the men took Teke lia into a bathroom, and one of them sexually assaulted her. She was 17 y ear s old. When the police arr ived,

some of the men es cape d. J ames Coats, Teke lia’s assailant, and Robert Nix on wer e arr ested at the house. At the p o l ice station that night, Tequilla saw Nix on and the defe ndant, who had been arr ested
at his g irlfriend ’s near

by apar tment in connec tion with the attack, walking with police office rs. Tequilla subsequent l y identified the defe ndant in a phot o arra y an d a lineup as one of the men. He was indicted for arme d robber

y , ag g ravated criminal sexual assault, home invasion, and reside nti a l b u rg la r y

. Severa l months later, the defe ndant was tried be fore a jury

. ¶ 5 Be cause our decision ultimately rests on the evidence prese nted

at the defe ndant’s trial and his postconviction evidentiar y hearing, a thoroug h revie w of the r ecor d is nece ssary

. ¶ 6 The St at e’ s ca s e co n s i s t ed o f testimony from sever al of the

victims, as well as two police office rs an d a 1 3 -year -old named Anthony Br ooks. ¶ 7 At trial, the State called 10 wi t n es s es , an d offe red stipulations

from 4 other

witnesses. ¶ 8 L ott testified that there wer e six men wea ring bandana s and a boy in the house during the attack. Thoug h L ott descr ibed what happene d
t h roughout the house, she was in the living room with her h ea d

wr apped in a blanket for most of that time. Her acc ount was base d larg ely on what she hear d for approximately two hours. She only saw the fac e of one of the men, whom she did not rec og nize, a nd she did not identify

any of them. ¶ 9 Tequilla testified that on the night of the attack she was sleeping

in her bedroom wh en s he hear d a noise. She awoke and ran to the living room, wher e she saw seve n m en, six of whom had guns, standing over L ott

. T h e m en pointed a gun at Tequilla, frisked her, and threw her to the floor, wher e they attempted unsucce ssfully to put

a leather cou ch p illow over her head. They wore dark clothes and bandana s, so Tequilla could see only their eyes. Acc ording to Tequilla, the men order ed her to l ie still on the floor, then started beating her and L ott and demanding money

. A tall man came into the

-2-living room, grabbe d Tequilla by the hair, threa tened to har m h er if L ott did not give the men money , and cut L ott’s leg

. Tequilla st ated the men kicked L ott in the fac e and pushed Tequilla back to the floor, wher e “a l i ttle boy” tripped over her on his way to run outside to

serve as “a watch- out.” The boy announce d that he was tired of waitingoutside, and that he did not see anyone coming

. ¶ 10 Tequilla testified that two of the men took the bandana s off their

fac es. She did not rec og nize “the kind of light skin one” beca use she did not know him, but she rec ognized “the dark ski n one” as “F ats” beca use her family had g rown up with him over a five- o r s i x -y ear period. Tequ i l la stated that she saw his fac e for a “g ood three minutes.” In court, she ide ntified this man as the def endant. ¶ 11 Tequilla testified that the boy returne d to the house and sa id “5-

o,” meaning the police wer e coming to the house. The light-skinned

man and the dark- skinned man, t h e defe ndant, fled toge ther out the front door. The rema ining f ive men locked the door and or dere d the victims to g o upstairs to Stim ag e’s bedroom. Tequilla s en s ed the police we re inside the house when the me n beg an to hide their guns by wra pping them in Stim ag e’s clothes. Prior t o the police enter ing the house, two of the men jumped out the upstairs window, and “[t] he other one was trying to g et into the closet,” then “some of them” tried to jump out aga in, but “didn’t g et to.” ¶ 12 Tequilla further testified that she did not know whether Fats had

a gun on the nig ht of the attac k beca use she wa s looking a

t his face

. He was telling the other men what to do, and when he asked them to hurry and g et the money , they beat the victims. Tequilla stated that on the day afte r the attack, she went to the pol ice station, wher e P eoria Police Detec tive Rabe showed h er “a whole bunch,” more than a hundred, of photogr aphs of possible suspects. Fr om the photogr aphs she picked out “[e]veryone that was there,” including Fats. L ater , Tequilla view e d a li n e

- u

p o f Afric an-America

n men. Fr om the line-up she picked out “[t] he ones that wer e there that night that I picked out in the phot o[s] ,” including Fats. Tequilla st ated that she picked him out “bec ause his fac e stood out from the other ones.” His fac e stood
out beca use she reme mbere d it; she reme mbere d it beca use she knew him. ¶ 13 On cross-e x amination, Tequil l a t es t i fi ed t h at the attack la sted

approximately 30 minutes. She confirme d that there wer e seven men, who wer e all wea

ring bandana s. When she came into the living room, it was ransa cked. Acc ording to Tequilla, L ott and two family friends

-3-wer e lying o n t h ei r chests on the floor, but their heads wer e not

wra pped in blankets. Six of t h e men wer e standing
, and one was sitti ng , while the boy re p ea tedly exit ed and enter ed the front door. Tequilla stated that once the boy y elled “5-o,” he and two men ran out the front door. After that, when the police knocked on the door, five

men rema ined in the house. Tequilla explained that she did not count the boy among the men. But later she stated that during the attack, “It

was six dudes left in the house, and one went outside, which he was a little boy .” ¶ 14 T equilla testified th at o n l y t wo o f t h e m en re m o v ed t h ei r

bandana s, and only for three mi nutes, then t hey left. Tequilla s tated that Fats, the defe ndant, stayed in the living room chair “most of the time” during t he attack. He only remove d his bandana

when he was in the living room. Acc ording to Tequilla, Miller was not in the living

room during the attack. Def ense couns el asked Tequilla how she could have picked out all of the men if only two had remove d t h eir bandana s, and she stated that the two men who fled out the front door had remove d their bandana s in the living room, but the rema ining men did so upstairs. ¶ 15 Tequilla testified that at the police station she did not disclose she

had seen the fa ces of two of the men. She stated that sever al wee ks afte r the attack she testified befor e the grand jury
, wher e she wa s asked if she rec og nized any of the men, and answe red that she

rec og nized one of them, Nix on. Acc ording to Tequilla, she did not g ive the g rand jury the defe ndant’s name “bec ause I didn’t reme mber until then—until now, I mean.” She “just forg ot” his name. Tequilla acknow ledg ed that she picke d out Elbert Nicker son in the photogr aphs and the line-up at the police station, a nd told the police that he was one of t h e m en

. Tequilla insisted that she mentioned to police at the line-up that she was unsure about whether Nicker son

wa s one of the men. L ooking at the photogr aphs ag ain on the day befor e trial, she said that Nicker son was not one of the men “bec ause he looked diff

ere nt from it personally

fac e-to-f ace .” ¶ 16 Tequilla testified that she identified six of the men in the line-up,

including the defe ndant, Nicker son, and Mark Roberson. Acc ording
to Tequilla, the po l i ce told her that in the line-ups they had “volunteer s, and then there wer e people that I named out that wer e in the line-up.” When asked whether it was easy for her to pick out suspects from the line-up beca use she had alre ady seen their photos,

-4-Tequilla answe red, “Ye s, it was, beca use, hey
, t his, people have a look simi lar to wha

t the people in the pictur e.” ¶ 17 De fe n s e co u nsel turned his questioning to the boy and as k ed

whether the boy wore a bandana

. Tequilla stated that she g ot “a r eal
g ood look” at him when he tripped over her, but she could not deter mine whe th er he had a bandana over his fac e, even though he

was a fe w i nches away from her. She was lying down, and her eyes

wer e looking at his e yes. Tequilla testified that she could look at the defe ndant’s face without the bandana from the fl oor, and she saw it
ag ain when she was pulled off the floor to g o upstairs. At that point, she “g ot to see him be fore he left beca use he was sitti ng in the chair still .” ¶ 18 On redire ct examination, Te quilla testified that she was positive

that the man in the chair was the defe ndant, and that she had seen his whole fac e. She did not tell the g rand jury the defe ndant’s nickname beca use she did not know hi s n ame. She also did not tell the police the defe ndant’s nickname. Tequilla stated that s he picked out Nicker son in the line-up, even though she was unsure he was one of the men, “[b] eca

use him and the dude look simil ar to eac h other.” She picked out the defenda

nt beca use she was posit ive t hat hi s fac e was the fa ce she saw on the night of the attac k. ¶ 19 Detric e Fr iend, Teke lia’s boy friend who wa s at M i l l er’s house

during the attack, and Edwar d Gaf fney
, a Peoria police depar tment office r who responde d to a call about the attack, testi fi ed. Neither identified the de fenda

nt. ¶ 20 Miller testified that on the night of the attack s h e wa s aslee p in

her bed, when one o f h er daughters shook her and said they wer e being robbed. Miller awoke to see a gun in her daughter’s mouth. Ac cording to Miller, she followed the direc tions of the men and handed them her purse. S he st ated that s h e g ave it to the defendant. The State a sked Miller about him.

“Q. And as you sit here today
, h o w d o you know Christopher Coleman?
A. B eca use I know his voice, a

nd Iknow how he w alk. Q. What is dist inctive about his walk?
A. Walk kind of crooke d l ike. He doesn’t walk like a regular wa lk. Q. And what about his voice wa s familiar to you?

-5-A. I know hi s voice. He done g rowe d up, but I know hi s voice f rom beinga kid. Q. How do you know him from beinga kid?
A. I used to run around the street with his mom when we was young er. H e wa s, he at my house and what happe ned. Q. So how long ha

ve you known Christopher Coleman? A. About 19 or 20 year s.” ¶ 21 Miller g ave the men her purse beca use they had threatened to kill her daug hter. The men asked her fo r m ore money , and she said that L ott had it. The men thought Miller was l y i ng , so they flipped her
mattress and found more money

. Acc ording to Miller, the men started beating her, struck her head, and p ut a knife to her back. They threatened to hurt her daugh t er s i f s h e did not g ive them all of her
money

. Miller sug g ested th at the man g et a job, and he smashed a

vase on her head. Miller testified t h at s h e pleade d for the men to leave
, but they insisted that they expected to find $1,500 in the house. The men then repe atedly beat and kicked Miller, while she had a foot in her ba ck and a

gun in her fa ce. She he ard c rying, a s the men took Teke lia into the bathroom and ra ped her

. ¶ 22 M i l l er t es t ified that there wer e six or seven men in the h o u s e

when the police arr ived. The police called for her and said they would not le ave until they spoke with her. She told them that she could not g et up beca

use she was u n der her mattress. The police eventua lly h el p ed her to her fee t, and she ran to the back door with Teke li a, whom the men had r elea sed to stop the police fr om coming thr oug h that door. The police order ed Miller and Teke lia to take cover behind

a truck sitti ng in the yard. Miller saw t wo men jump from the window, and she scre amed to tell the police. Those two men esca ped, but a third man who jumped from th e wi ndow was appre hended. Acc ording to Miller, the t h i rd m an was Coats. The police
appre hended N ix on inside the house. ¶ 23 On cross-e x amination, Miller testified that during the attack she

did not leave her bedroom until she ran to the back door. Miller stated that the men had scar

ves over their fac es and hats on their heads. Two

or three of the men stayed in her room at all times dur ing the attack. She could not rec all “how many hours” the att ac k lasted, but she knew it was a

long time. ¶ 24 Miller stated that she kn ew th e defe ndant “re al well” from his

walk. She did not see his fac e, or any o f the men’s fac es, until she

-6-saw Nix on’s fac e afte r he was appre hended and brought out of the house by the police. During the attack the defe ndant was standing in her bedroom doorwa

y while other men beat and kicked her. He took her purse and order ed one of the men to hit her with the vase. Miller insisted to defe nse counsel that the defe ndant was one of t h e m en: “You understand me, *** he was there

. Do you understand what I am

s ay i n g? I know hi m. Can nobody doubt me t hat I would know hi m

. Thank you, sir. Iknow that he wa s there.” She added:
“I know that from his voice, and I know that from his walk. I was not blind. * * * I know his voice from being an individual; I know hi s voice from being an adult, too. I seen Chris Coleman a lot of time. I don’t associate with him beca use I have no rig ht. He’ s a kid t o m e, but I know Chris Coleman.” ¶ 25 Miller testified that she did not g ive the police details about the

men beca use she was “shook up” afte r the attack, and she did not g ive the police the defe ndant’s name beca use they did not ask her in detail about him. She would have told the police more if they had asked her

more questions. On re- cross-e x aminati on, defe nse counsel asked Miller if, when questioned befor e the g rand jury about the identity of the men, she reme mbere d saying, “I know Chris Coleman from a littl e kid, but I didn’t know at the time that wa s him.” She stated t hat s he might have g iven that answe r. ¶ 26 Teke lia testified that she did not know how many men wer e in the

house during the attack, but mentioned that a boy was with them. She stated that one of the men smashed a vase o v er h er mother’s head, then forc ed her into the bathroo m, wher e another man sexually assaulted her. She identified t hat man as Coats, but she did not identify any of the other

men. ¶ 27 Stim ag e testified that she was upstairs when the attack beg an, and

that it lasted for approximately one hour. She saw the fac es of four of the men, including a light-skinned man, who threw her int o a wa l l and cause d her to lose consciousness for sever al seconds. L ike L ott, Stim ag e did not identify

any of the men. ¶ 28 Peoria police depa rtment Off

icer Walter J atkowski testified that he proce ssed the inside of the house for evidenc e on the night of the attack. Acc ording to Offic er J at kowski, fing erprint and palm prints that he lifted from the floor of the bathroom indicated Coats was the

man who s ex ually assaulted Teke lia. On cross-e x amination by defe nse cou

n s e l, Offic er J atkowski stated that none of the fing erpr ints

-7-he lift ed from the house matched the defe ndant. On redire ct examination, Offic er J atkowski explained, “I don’t have fing erpr ints that match up to Chris Coleman. I can’ t put him at the scene , but I am not eliminating him from beingat the sce ne, just phy sical evidence, there ’s nothing that shows.” ¶ 29 The State offe red stipulations from two nurses and a d o ct o r at

Methodist Hospital in Peoria, as well as a fo re n s i c scientist at the Morton Crime L ab, who would have tes t ified reg arding the sexual assault on Teke lia. None of these witnesses wou l d h ave testified
reg ardingthe def

endant. ¶ 30 Anthony Bro o k s t es t i fi ed that he was 13 y ear s old and was on

juvenile probation for the home invasion of Miller’s h o u s e. Acc ording to Br ooks, he went to the house on the night of the attack with “B ug ,” Nix on, and “lig ht skin” Fats. Br ooks stated that there was another Fats. He also stated that the Fats who was at M iller’s house

was not in the courtroom, but that Fats, “the light ski n o n e, k i nd of chubby ,” wa s in a holding c ell at the cour thouse that morning

. ¶ 31 Br ooks testified that he was interviewe d by Detec tive Pat Rabe of

the Peoria police depar

tment on the day

of the attack. “Q. At that time, did you or did you not tell Detec tive Pat Rabe that Christopher Coleman was with you on the morning of August 22, 1994? A. Ther e wa s two Fats on that day when he showed me. Q. Pardon me? A. They had two dudes. Both of them name was Fats on that paper , a lig ht skin one and a da rk skin one. Q. Which Fats did you tell him that was with you on the morningof August 22, 1994? A. Told both of them. Q. Both of them. Well, who is the dark skin Fats that you told Office r Rabe that was with you?
A. B ut it was the light skin one. Q. Are you saying you told Offic er Rabe on August 22, 1994, there wer e two F ats with you?
A. He showed me two p i ct u re s of—He showed me the light skin picture of t h e other Fats, and he showed me that picture of him.

-8-Q. Who of him? Who is the other Fa ts picture he showed
you? A. Some lights skins Fats. Idon’t know his rea l name.”
Br ooks identified the dark skin Fa ts from the police p i ct u res as the defe ndant, and stated that he was at Miller’s house on the night of the attack. ¶ 32 On cross-e x amination, Br ooks tes t i fi ed t h at h e knew two men

n i ck named Fats. One is light-skinned with braids, and he was i n a holding c ell at the cour

thouse. “Q. And did you say on when [t he prosec utor] was questioning you, that was the person that was wi t h you this night [at Miller’s house] on August 22?
A. Yea h, I said that.
* * * Q. All right. And then you said, did I hear you just now to say that this person was with you [at Mil ler’s house ]?
A. J ust said it. Q. So are you saying that both people nicknamed Fats

wer e [at Miller’s house] now?
A. I ’m saying it was one of them, and it was that light skin one with the bra ids in his head.

* * * Q. And you’re saying the dark skin Fats was not with you [at Mil ler’s house ]?
A. Yea h.”
Br ooks stated that he told Detec tive Rabe that dark- skinned Fats was at Miller’s house, but that statement was untrue. Br ooks further stated that Detec tive Rabe showed him the picture of dark- skinned Fats and told him to identify him as one of the men at Miller’s house, or Br ooks would never see his family ag ain. On redire ct exa mination, Br ooks testified that only three men went with him to Miller’s house: Bug , Nix on, and F ats. ¶ 33 Detec tive Rabe testified that he investigated the attack at Miller’s

house and spoke to Br ooks the next afte rnoon. Detec tive Rabe stated that Br ooks descr ibed the def en d an t as “the ring leade r in charg e of the g rou p ” behind the attack. Acc ording to Detec tive Rabe, Br ooks picked t h e defe ndant’s photogr aph from an arr ay

. Detec tive Rabe

-9-conduc t ed a line-up of five persons, which Tequilla viewed. She identified the de fenda

nt as one of the men without hesitation. ¶ 34 On re- cross-e x amination, Detec tive Rabe testified that Miller did

not view photog raphs. The police did a computerized “cold searc h” of photogr aphs of arr estee s in Peoria County fitting the a g e, weight,

a n d h e ig ht of possible suspects. The defe ndant’s photogr aph a p p e a r e d inadver tently
, and Miller identified him. On redire ct examination, Detec tive Rabe testified that Tequilla viewed photogr aphs of juveniles and adults. In t h e 8 t o 10 photogr aphs of juveniles, she identified Br ooks. On re- cross-e x amination, Detec tive Rabe testified that Tequilla identified Nicker son, Ma r k Robe rson, and the defe ndant afte r viewingthe re sults of the cold sear ch. ¶ 35 The de fenda nt called f

our witnesses. ¶ 36 Nix on testified that he pleade d guilty afte r th e at t ack and wa s

sentenc ed to 12 y ea rs’ imprisonment. Nix on stated that he was questioned by the pol ice, b ut did not tell the t ruth. He admitted that he partici p at ed in the attack. Acc ording to Nix on, he knew the defe ndant, but the def

endant wa s not at Miller’s house that night. ¶ 37 On cross-e x amination, Nix on testified that “Mer k, L amont, Bug
, Dre y , and Rob” wer e with him on the night of the attack. L amont was L amont L ee. Bug was Coats. Dre y was a person that Nix on knew from the Warner Ho using Project in Peoria, who had come there
p ossibly from Detroit. Merk was Robert M cKa y

. Rob was “anot h er dude” that Nix on knew “ throug h somebody else.” ¶ 38 Shondra Dunn, the d e fenda nt’s fianc ee, testified that she was with him at a frie n d ’s apar

tment on the night of the attack from around 10:30 p.m. until he wa s arr ested ther e ar ound 3 a.m. ¶ 39 T am i k a Yo u n g t es t ified that she had known the defe ndant for

ap proxi mately five y ear s, and that she saw him on the night o f t h e attack at that apar

tment. Acc ording to Young
, the defe ndant was there from 12:15 a.m. until the police arr ived at 2 a.m. On cro s s

examination, Young testified that she ca l l ed the defe ndant by his nickname, F ats. ¶ 40 The defe ndant testified that on the night of the attack he was with

Dunn at the apar

tment on the night of the attack from 10 p.m. until 3 a.m., when he was a

rre sted. He de nied par

ticipating in the a

ttack. ¶ 41 On cross-e x amination, the defen d an t testified that some people

called him Fa

ts. He stated that he g rew up in Peoria, and that he knew Miller: “I know Be rtha Miller, but I don’t know Be rtha Miller like she

-10-say I know her. I didn’t even know, I don’t even know how she look until y esterda

y .” The defe ndant furthe r stated that he knew Te quilla when they wer e children, but not well enough to speak to her. He also knew B rooks from their

neighborhood. ¶ 42 In rebuttal, the State called Tequ i l l a b ac k as a wi tn es s

. She

testified about her err oneous identification of Elbert Nicker son. She stated, “B eca

use at the line-up I was unsure, and I wa n t ed to make

sure that ever

y thing was okay beca

use I didn’t want him to g o to jail for something he didn’t do. So Ihad them re call his picture ba ck up
to me so I can look at it ag ain o r any mistakes be made.” After she

ree x amined Nicke rson’s picture , she dec ided that he wa s not one of the m en in her

mother’s house on the ni g ht of t he attack. S he st ated that she had no doubt that the de fenda nt was one of

the men. ¶ 43 The jury found the defe ndant guilty of home invasion, ag g ravated

criminal sexual assault, arme d robber y , and r e s id e ntial burg lary

. Prior
t o s entencing the defe ndant filed a posttrial motion in which he
argued, inter alia
, that the State had failed to prove him guilty beyond

a rea sonable doubt. The trial court conduct ed a hearing on that motion. ¶ 44 At that hearing, Coats testified that he had plea d ed gu i l t y i n

connec tion with the attack. He stat ed t h at Nix on, L ee, McKa y , and “some guy named Dra

y” wer e with him at Miller’s house, wher e they
went to obtain money

and drug s. Acc ordingto Coats, the defe ndant

was not there

. On cross-e x amination, Coats testified that Br ooks also
was not there

. Coats admitted that afte r h i s arrest he did not tell the police about Nix on, McKa y , L ee, a n d D r a y

. O n re- cross-e x amination, Coats stated that the defe ndant, throug h his attorney , had asked Coats
to testify at the defe ndant’s trial and that Coats had ref used on fifth amendment grounds. ¶ 45 The defenda nt testified that defe nse counsel was concer ned that Nix on and Coats would say differ ent things, and convince d him that they should not be called as witnesses. The defe ndant s tated that he talked to defe nse counsel about M ar k Roberson. Acc ording to the defe ndant, Roberson’s nickname was also Fat s , and, like the defe ndant, he was “misidentified” by Tequilla as o n e o f the men. When the defe ndant t al k ed to defe nse counsel about Nicker son, another person misidentified in c onnection with this case , it was too late to ca ll him as a witness. ¶ 46 In denying the posttrial motion, the trial court stated that “the acts

of the victims misidentifying people was thoroughly place d b e f o r e the

-11-jury .” The court st at ed t hat the case was not “par ticularly unique” beca use the outcome hinge d on whether the jury found the State’s witnesses or the defe nse’s witnesses more cre dible. Th e trial court sentenc ed the defe ndant to co n s ecutive terms of 30 y ear s’ imprisonment for arme d robber y and ag gravated crim i nal sexual assault. The appellate court affirmed h is convictions and sentences. People v. Coleman
, No. 3-95-0576 (1997) (unpublished order under Supreme Court Rule 23). ¶ 47 The defe ndant filed a postconviction petition
, al l egi n g th at he

rec eived ineffe ctive assistance of trial and appellate counsel. The trial
court dismiss ed that petition, and the ap p el late court aff irmed that decision. People v. Coleman
, No. 3-99-0414 (2001) (unpublished order under Supre me Court Rule 23). ¶ 48 T h e d ef

en d an t t h en filed a pro se succe ssive postconvict i o n petition, alleg ing that he re ceive d ineffe ctive assistanc e of a ppellate counsel on the appea l of his postconviction petition. T h e trial court dismiss ed t h e succe ssive petition as frivolous and patently without merit. The defe ndant filed a notice of appea l, but then filed a motion to dismi ss the appea l, which was grante d. ¶ 49 In 2009, the defendant filed a second succe ssi v e p o s t conviction

petition, claiming actua l innocenc e. The petition was supported by 1 aff idavits from McKa

y , the defe ndant’s bro t h er Deondr e Coleman (De ondre)
, Coat’s brother Robert Coat s (Robert), Roberson, Nicker son, Br ooks, Nix on, and Coats. In response , the State did not ask the trial court to deny that motion, but, instead
, d en ied the alleg ations in the petition a nd reque sted an evidentiar y hearing. T he trial court dockete d the case for further p roce eding s and held a hearing. ¶ 50 The de fenda nt called e ight witnesse s. ¶ 51 Coats testified that on the night of the attack he was at the Warner

Housing Project “hang ing out with friends”—Robert, L ee, “a homie named Dr e,” who was the de fenda nt’s brother D eondre , Nix on, and McKa y

. Acc ording to Coats, McKa y walked with a limp. Coats stated that he and his friends went to Miller’s h o use t hat ni g ht looking for
money and drug s. The def

endant wa s not with them.

T he pet it ion was si gned by K ar en Dani el of the Cent er on Wr ongful 1 Convict ion s, Bluh m Legal Cli nic
, Nort hwes te rn Univer si ty Scho ol of Law.

-12-¶ 52 Coats s t at ed t h at h e knew Br ooks, Nicker son, and Roberson, whose nickname i s “F ats.” Non e o f them wer e at Miller’s hous e on the night of the att ac k

. Coats further stated that the defe ndant’s nickname is also “F ats,” and he walks with a limp. Coats testified that he pleade d guilty to arme d robber y in connec tion with the attack and

rec eived a sentenc e of 15 year s’ imprisonment. Accor ding to Coats, his attorney told h i m t h at he could rec eive a sentenc e of six y ear s’ imprisonment if he testified that the defe n d an t was involved in the attack. Coats reje cted that offe r beca use the defe n d an t “didn’t have
any involvement.” ¶ 53 On cross-examination, Coats testified t h at h e wa s cu rr en t l y

incar cer ated for fe l ony possession of a controlled substance. He
repe ated that both McKa

y and the defe ndant walk with a limp. Coats stated that when McKa

y proposed g oing to Miller’s h o u s e, he and

some friends wer e drinking beer and smoking marijuana

. Coats admitted that he told Detec tive Rabe a differ ent story on the night of the attack. He said that he and a friend wer e for ced into the house at gunpoint, but that s t o ry was untrue. When Detec tive Rabe asked whether th e d efe ndant was involved in the attack, Coats answe red that the def

endant wa s not involved. ¶ 54 The State revi ew ed C o at s’ aff idavit with him. He stated that he

was first contac ted about signing it in 2006 or 2007 by a student from Northwe stern University law school. He told the student th at the defe ndant was not involved in the attack. He also told his pare nts and brother, Phill ip Gra

ham, and “just numerous of other people” that asked him about it. ¶ 55 On redire ct examination, Coats stated th at De t ec t ive Rabe fir st

ment i o n ed the defe ndant’s name. Coats’ aff idavit did not implicate his brother Rob for fea

r of g etting him in trouble, and h e d i d not implicate his brother at the hearing on the defe ndant’s p o sttrial motion for the same r eason. ¶ 56 L ee testified that he was curr ently incar cer ated for arme d robber y

. Ac co rdi ng to L ee, he was at Miller’s house with Coats, Robert, Nix on, and McKa

y

. Coats enter ed the house by the back window, and opened the door for the other men. Then L ee stated t h at an arme d robber y t o o k p l ace

. There wer e one or two guns involved, though

some of t he men prete nded to have guns. Their faces were covered, and some wore hats. L ee estimated that seven or eight p eo p l e occupie d the house when the men enter ed it. When the police arr ived, the men went upstairs. L ee stated that h e an d Robert esca ped by

-13-jump i n g from an upstairs window. McKa y left befor e the police

arr ived. ¶ 57 L ee testified that the attack lasted about an hour. After he esca ped, L ee returne d to the Warner Housing Project, and saw the police arr est the defe ndant. L ee had seen the defe ndant earlier that night with Dunn, and they went inside an apar tment betwee n 11 p.m. and midnight. Acc ording to L ee, the defe ndant was not at Miller’s house “in no form or fashion,” he was just inside the apar tment. L ee did not speak to t h e d ef

endant’ s attorney , only to law students around Fe bruar y 2007. L ee did not testify at the defe ndant’s trial beca use that would have be en “ha

ng ing” himself. ¶ 58 On cross-e x amination, L ee stated he knew Deondr e, but he knew

the defe ndant better. Neither was at Miller’s house; only L ee, Coats, Robert, Nix o n , an d M cKa y

. L ee stated that if he would have been called to testify at t he defenda nt’s trial, he would have “pleade d the Fifth, pe riod.” ¶ 59 The trial judge then ask e d L ee some questions. L ee confirme d that

befor e the attack, he was with Coats, Robert, Nix on, and McKa y

. He

saw the defe ndant at the Warner Housing Project sometime ea rlier that day

. ¶ 60 Deondr e testified that he is the defe ndant’s brother. On the night

of the attack, he saw the defe ndant, but he lat er l ef t the Warner Housing Pr o

j ec t with Nix on, McKa

y , Coats, Robert, and another

man. Acc ording to Deondr e, McKa y walked with a limp, as does the defe ndant. The defe ndant did not acc ompany the men to Miller’s house. McKa

y planned to rob the occupa nts o f t h e house, but Deondr e ref

used to participate and stood acr oss the street from the house during the attack. Deondr e stated that the defe ndant and Br ooks

wer e not at the house that night. Deondr e intended to tes t i fy at the defe ndant’s trial, but befor e it occur red he was shot three times and left Peoria f

or a hospital in Detr oit, Michiga n. ¶ 61 On cross-e x amination, Deondr e stated that the orig inal plan on

the nig ht of the attac k was to g o to Miller’ s house to buy drug s with
money that he and Nix on had. When they rea ched the house, McKa y chang ed the plan. Deondr e did not participate in the attack beca use he “don’t about to rob nobody .” When the men went around Miller’s house toward the back door, Deondr e bega n walking back to the Warner H ousing Projec t. ¶ 62 Deondr e testified that the next day
, he was stopped at the Warner

Housing Project by Ba

rbar a Stim ag e, Ang ela Stim ag e’s daughter. He

-14-lear ned that the def

en d an t had been arr ested in connec tion with the attack. Deondr e told Nix on, M cK ay , and Robert that he planned to testify that the defe ndant was not at Miller’s house. Deondr e was shot three day s later. When he lear ned that the defe ndant was in prison, Deondr e “fe lt bad,” but did not tell the police or the defendant’s attorney that he was not at Miller’s house that night. Deondr e did tell his fathe r on the day befor e he was shot. De o n dre added that, althoug h he did not tell anyone else that the defe ndant was not involved, he would have told someone if he had been in Peoria at the time of trial. ¶ 63 Br ooks testified that he wa s curr ently incar cer ated. On the night

o f t h e attack, he was 12 y ear s old, and he was arr ested and charg ed with home invasion and robber y

. At the police station, office rs questio n ed Br ooks. Acc ording to Br ooks, “The y started pulling out pictures. They said they knew I was there an d they wanted me to point out Mr. Coleman and kept pointing at h i s picture, you know what I ’m saying?” Br ooks stated that he told police that he was not at Miller’s house, and the police, i n cluding Detec tive Rabe, told him that he would never see his family ag ain. In response , Br ooks pointed
to the defe ndant’s picture and said he was at the house. Br ooks stated, “I *** didn’t know if he was there or not, I just was doi n g i t so I could g o home.” He also told police that he was the lookout at the house. ¶ 64 On cross-e x amination, Br ooks testified that he was in prison f or ag g ravated unlawful use of a wea pon. He was also convicted twice of felony p ossession of a controlled subst ance and was imprisoned for those offe nses. Acc o rd ing to Br ooks, Detec tive Rabe said that he would never see his family and would be in prison for the rest of his life if he did not tell police who was at Miller’s house on the night of the attack. Be cause Br ooks was not involved in the attack, he did not know who wa s. Howeve r, he told Detective Rabe that he wa s there, and that the defe ndant direc ted t h e o ther men during the attack. Br ooks repe ated that his trial testimony implicati n g the defe ndant was untrue: “[ E]very

thing about it was a lie.” On redire ct examination, Br ooks stated that he “[f]elt kind of wrong beca use it wasn’t true that

an o t h er p er son was g oing to g o to jail beca use from the lies I was telling just to g o home.” Br o o k s lied beca use he did not car e about
anyone except himself, but ca red only about g oing home

. ¶ 65 Nicker son testified th at h e wa s curr ently incar cer ated. He wa s

arr es t ed and char g ed with home invasion, arme d robber y , burg lary
,

-15-and sexual assault in connec tion with the attack. He stated that he was

never involved. Acc ording to Nicker son, th e d e f e n d a nt, Co a ts , Nix on, and some other men wer e also charg ed in connec tion with the attack. Nicker son stated that on the day of his tria l, the charg es ag ainst him

wer e dismissed. Nicker son testified that while he and Coats w ere in the same pod at the Peoria County jail, awa iting trial, Coats said that he knew Nicker son and the defe ndant wer e not involved. Coats a lso said that some men involved wer e his brother Robert, Nix on, and “a couple of their other friends,” including L ee and McKa y

. Nicker son stated that McKa

y walked w ith a limp. ¶ 66 On cross-e x amination, Nicker son stated that he was incar cer ated

for ag grava

ted unlawful use of a wea pon and was serving a 41⁄2-year sentenc e. He was also convicted for violating an order of protec tion, for forg ery , and for a bail bond vio l at i o n

. Nicker son saw the defe ndant in jail. After he was rele ased, Nicker son left Peoria, and did
not lear n that t h e defe ndant was convicted until he returne d sever al months later. He never told the police that the defe ndant was not involved in the attack beca use “they alre ady knew.” Nicker son talked
to the defe ndant’s lawyer in 2009, and would have testified sooner if he would have been c ontacted soone r. ¶ 67 Robert testified that he was Coats’ young er brother. He stated that

he knew Nix on, Deondr e, and McKa y

. McKa y wa l k ed with a li mp. Wh en p o s t conviction counsel asked Robert about the night of the attack, he asked for an attorney

. A public defe nder was appointed and consulted with him. The trial court held a hearing, and conclude d that
t h e l i m i t at ions period had run on any of t he offenses with which he could be c harg ed and or dere d him to resume his testimony

. ¶ 68 Robert testified that on the d ay b ef o re t he attack, he was with Coats, L ee, Nix on, McKa y , and Deondr e. The g roup wa l k ed to Miller’s house. The defe ndant, who walks with a limp, was not with them. Br ooks, Nicker son, and Roberson, whose nickname is “ Fats,”

wer e also not with them. Robert s tated that afte r hi s brother opened the back d o o r of Miller’s house, the men enter ed and robbed the vict i m s

. R o b ert was the only one with a gun. The men all wore bandana s to cover their faces. Robert did not reme mber Deondr e being inside the house. Acc ording to Robe rt, he went into the living
room, and “[p] ut the people down” at gu np oint and collecte d the
money and the marijuana

. He tried to g et into the bathroom, but could not beca use L ee was i nside holding the door closed. At some point,
t h e p o l i ce arrived at the house. L ee went to the door and told them

-16-“eve ry thing was cool,” and they wer e “just having a party .” Everyone in the hous e then went upst airs. Robert stuff ed his gun in a box and jumped out the window. L ee and Coats also jumped out the window. Robert esca

ped, and he was never arr ested or qu es t i oned in

connec tion with the attack. He stated that he would not have testified at the def endant’ s trial for f

ear of imprisonment. ¶ 69 On cross-e x amination, Robert t es t i fi ed t h at h e wa s s m o king

marijuana all day befor e the attack, and he was under the influence of marijuana when he left the Warner Housing Project for Miller’s house. Acc ording to Robert, the men went t o t he house to buy marijuana

. Be fore that night, Robert had been there “a few times” to buy marijuana

. He estimated that the attack lasted around 10 minutes. Robert stated that he probably told Deondr e that the defe ndant was not involved. He told other s the same story : “I said there is only one person t h at ’s in jail and they didn’t do it and that’s Christopher Coleman. I said th at t o a lot of people in the j oint, out of t he joi nt.” He added, “I didn’t say it was too bad. I said it’s messed up that he is in there
, but sometimes that’s how lif e g oes. You g et a bad brea k.” On redire ct exam ination, Robert testified that, even though he was under the influence of marijuana on the nig ht of the attack, he knew that the def

endant wa s not at Miller’s house. ¶ 70 McKa

y testified that he was curr ently incar cer ated. His nickname is Me rk. McKa

y walks with a limp, afte r jumping out a window and injuring his leg in 1993. Hours b ef ore the attack, McKay was at the Warner Housing Project with L ee, Ni x on, Robert, and Deondr e. Coats joined them s h o rtly

. McKa y testified that the defe ndant was with the m initially
, but w ent “in the house with his g irlfriend” when the men left for Miller’s house. Acc ordingto McKay , the men we nt to Miller’s house to buy marijuana
, but a robber y took place afte r they
enter ed the house. McKa

y stated that the men “g ot ree fer and money and left.” The money and marijuana wer e in a bedroom. M cK ay

cover ed his fac e with a shirt that was in the house. The defe ndant was not there at any

time duringthe attac k. ¶ 71 McKa

y testified that he knew Nicker son and Roberson, and they

wer e not at the house that night. Acc ording to McKa y , Br ooks was with him when he went there

. McKa y was arr ested o n an un rela ted char g e a few day s afte r the attack
, and was incar cer ated for approximately a y ear

. He would not have testified at the defe ndant’s trial bec ause that testimony would have implicate d himself.

-17-¶ 72 On cross-e x amination, McKa y testified that he had smoked “two

or three dime bag s” of marijuana with L ee, and when he left for Miller’s house, he h ad a “mi ld buzz .” L ee had the idea to turn the purcha se of marijuana

into a robber

y . McKa y stated that he thought L ee was the first person to b re ak i nto the house. And L ee, Coats, Nix on, Robert, and Deondr e all went in the house. They wer e inside the house for “[p] robably about almost two minutes.” McKa y found
money and marijuana on the floor o f a bedroom beside the bed. He picked up the money and marijuana and left the house with Deondr e. He stated that he did not g o upstairs, and L ee was the only man with
a gun. ¶ 73 McKa

y testified that he did not speak with Roberson or Nicker son abo u t t h e attack. He learned that the defendant had been arre sted in

connec tion with the attack a couple of day s later. He spoke to Nix on about the defe ndant and his lack of involvement, while the two wer e in ja il tog ether

. McKa

y car ed that the defe ndant was g oing to prison for crimes he did not commit, but McKa y “wa s fac ing some trouble” himself. ¶ 74 Roberson testified that he was a rre sted in October or November 1994 in connec tion with t h e attack. Acc ording to Roberson, “I was told that I supposed to p articipated in arme d robber y and home invasion and rape

. And they [t he police] asked me wher e I was at, and I t o l d h i m—I g ave them my alibi and told them I was at work and they called my alibi and confirme d it.” At t h e time, Roberson was working at a fast food restaur ant in Glendale Heights, I llinois
, near Chicag o. He wa s relea sed three day s later. ¶ 75 The State c alled a sing le witness, Dete ctive Rabe

. ¶ 76 Detec tive Rabe testified that in the course of his investigation into

the attack, h e i n t erviewed Br ooks. He did not threaten Br ooks, and did not tell him that he would never see his family ag ain if he did not

answe r questions about the attack or if he did n o t i d entify the defe ndant as one of the men. Acc ording to Detec tive Rabe, Br ooks stated that the defe ndant was at Miller’s house and participated in the attack. On cross-e x amination, Detec tive Rabe testified that Coats and Nix on both denied involvemen t in the attack when they wer e interviewe d, and neither identified any acc omplices. Be cause the victims said that sever al m en were involved, and one of the vi ctims

rec og nized one of the men from th e W arne r Housing Project, Detec tive Rabe spoke to office rs who worke d that beat. The office rs identified the defe ndant, Br ooks, Roberson, and Nick er s o n as

-18-possible suspects. Detec tive Rabe assembled some photo arr ay s with pictures of t h e m en , and Tequilla identified all four as being in her mother’s house on the night of the attac k. ¶ 77 In a written order
, the tri al co u rt denied relief to the def endant. The trial co urt revie wed the postconviction evidenc e in light of the trial evidenc e. The court noted that sever al of the defe nse witnesses, who claimed that the defe ndant was not involved in t h e at t ac k
, had

ex t ensi ve criminal rec ords, and that they “g ave signific antl y conflicting acc ounts on what h ap p en ed and who was prese nt.” Additional l y , none of them mentioned the sexual assault. The trial
court c oncluded:
“I s it possible that that the Petitioner is actua lly i n n o cent? Yes, even the most ef

fi cac ious court sy stem in the world
cannot achie ve absolute truth. I s it possible that these cohort witnesses are now coming forth with nothing to lose in order
to help Pe t itioner—the person g iving the order s during the home invasion? [ ] y es. I s the evidenc e offe red at this hearing of such a conclusive char acte r that it would probably chang e the re sult on retrial? No.” ¶ 78 T h e appellate court aff irmed. 2011 I L App (3d) 100419-U. Th e appellate court agree d with the trial court’s “we ll rea soned decision, finding the informat i o n provided to the court during the postc o n viction hearing would not be li kely to aff ect the outcome of

a new trial.” Id. ¶ 55. Acc ording to the appellate court, that decision was not ag ainst the manifest we ight of the evidenc e. Id. ¶ 79 T h i s co urt allowed the defe ndant’s petition for leave to appea l

.

See I ll. S. Ct. R. 315(a) (e ff. F eb. 26, 2010). The court a lso allowed 40 I llinois attorney s to file a joint amicus curiae brief in sup p o rt of the def endant. See I ll. S. C t. R. 345 (eff. Sept. 20, 2010)

.

¶ 80 ANALYSI S ¶ 81 The Post-Convi ction Hea ring Act allows a criminal defe ndant to

asser t that “in the proce eding s which resulted in his or her conviction there was a substantial denial of hi s o r her rig hts under the Constitution of t he United St ates or of the State of I llinois or bot h.” 725 I L CS 5/122-1(a) (West 2010). The Act contemplates the filing of

a single petition: “Any claim o f substantial denial of constitutional rig hts not raised in the orig inal or an amende d petition is waived.” 725 I L CS 5/122- 3 (W es t 2010). That statutory bar will be relax ed

-19-only “whe n fundame ntal fairness so require s.” People v. Pit s onbarger
, 205 I ll. 2d 444, 458 (2002) (citing People v. Flores
, 153 I ll. 2d 264, 274 (1992)). ¶ 82 We have stated that, outside the context of capital litigation, there

are two such instances, or two exceptions, to thi s proce dural defa ult rule. See People v. Edwards
, 2012 I L 111711, ¶ 22. First, a defe ndant
may raise a defa

ulted constitutional claim by satisfying the so-ca lled “ca use-a nd-pre judice” test. See Pitsonbarger
, 205 I ll. 2d at 459; 725 I L CS 5/122-3 (West 2010). To establish “ca use,” the defe ndant must show s o m e objective fac tor external to the defe nse impeded his ability to raise the claim in the init i al postconviction proce eding

. Pit s o nbarger
, 205 I ll. 2d at 460. To establish “pre judice,” the defe ndant must show the claimed constitutional err or so infec ted his trial that the re sulting convic tion violated due proc ess. Id. at 464. ¶ 83 Second, eve n without showing c ause a nd prejudice , a def

endant
may bring a claim of actua l innocenc e to preve nt a fundame ntal miscarr iag e ofjustice. People v. Ortiz
, 235 I ll. 2d 319, 329 (2009). In People v. W

ashington
, 171 I ll. 2d 475 (1996), we considere d whether

a claim of actua l innocenc e implicates a fede ral or state constitutional rig ht, which would allow a defe ndant to raise that claim in a postconviction p roceeding

. In addre ssing fede ral due proce ss, we examined Herrera v. Colli ns , 506 U.S. 390 (1993). There
, the United States Supreme Court used t he terms “fr eesta nding” and “gat eway”
to descr ibe two ty

pes of actua l-innocenc e claims raised in succe ssive fede ral habeas corp u s p etitions. Acc ording to the Court, a fre estanding actua l-innocenc e claim is independe nt of any claims of constitutional err or at trial and focuse s solely on a defe ndant’s fac tual innocenc e in light of new evidenc e. Id. at 400. A g atewa y ac tu al

innocenc e claim is ancillar y to any claims of constitutional trial err or. Such a claim is “not itself a const i tu t i o n al claim, but instead a g atewa y throug h which a habea s petitioner must pass to have his otherwise barre d constit u tional claim considered on the m erits.” Id.
at 404. In closing
, the Court stated that assuming, arguendo
, t h e execution of a capital defe ndant who made a “truly persua sive demonstration of ‘ac tual innocenc e’ ” would violate the Constitution, the evidentiar

y burden on such a de fenda nt to obtain feder al habeas relief would be “e x traordina

rily high.” Id. at 417. ¶ 84 I

n W a s h in gto n , w e c o n c luded that despite this comment, “ He r re r a clea rly states *** that a fre estanding claim of innocenc e is not cognizable as a fo u rt eenth amendment due proce ss claim.”

-20-W ashington
, 171 I ll. 2d at 485. But beca use “we labor under no selfimposed constraint to follow fede ral prec edent in ‘lockstep’ [citation] in defining I llinois ’ due proce ss protec tion,” we turned to o u r state const i tu t i on. Id. We observe d that there are decisions in which this
court has “per functorily eva l u ated” new evidenc e claims under the Post-Convi ction Hea

ring Act as if they wer e raised in a motion for a

new trial. Id. at 4 8 6 (c i t ing People v. Silagy
, 116 I ll. 2d 357, 368 (1987), citing People v. Molstad
, 101 I ll

. 2 d 1 2 8
, 134 (1984))

. But
t h o se decisions have never expressly identified the constitutional basis for such claims. We clar ifi ed that actua l-innocenc e claims are g rou n d ed in due proce ss and depar ted from Herrera
, holding “as a matter of I llinois constitutional jurisprudenc e that a claim of newly discovere d evidenc e showinga def endant to be a ctually innocent of the crime for which he was convicted is cognizable as a matter of due
proce ss.” Id. at 488-89. Procedur ally
, a trial court should treat such a claim like any

other postconviction cla im. Id. at 489. Substantively
, a co urt should g rant relief only if the defe ndant has prese nted supporting evidenc e that is “new
, materia l, noncumulative and, most importantly
, ‘ “of such conclusive char acte r” ’ as would ‘ “proba bly chang e the result on retria l.” ’ ” Id. (quoting Silagy
, 116 I ll. 2d at 368, quoting Molstad , 101 I ll. 2d at 134). 2 ¶ 85 But befor e we can discuss the defe ndant’s evidenc e and r ev iew

the trial court’s decision on that evidenc e, we mu s t addre ss a threshold issue raised by the State. In its response brief, the State contends for the first time in this case that W ashington is fundame ntally flawe d and its s ub s t antive standard should be discarde d. Acc ording to the State, that standard is too lenient beca use it excuses the defe ndant from making a truly persua sive demonstration of actua l innocenc e. The S tate proposes a stricter standard, wh i ch p urportedly derive s from Schlup v. Delo
, 513 U.S. 298 (1995). ¶ 86 In Schlup
, the Court, as it had i n He r r er a , ag ain distinguished

betwee n fre estanding an d gateway claims of actua l innocenc e. The Court held that to obtain habeas relief on a g atewa y actua l-innocenc e claim, a defe ndant must show that “it is more likely than not that no

In Peop le v. Cabal le s , 221 I ll

. 2d 282, 314 (20 06)
, we not ed tha t 2 W ash ing ton m odi fi ed the “l imite d loc kstep app roa ch” ado pte d in Peop le v. Tis le r , 103 I ll

. 2d 226 (19 84)
, “t o al low for con si der at ion of st at e tr adi ti on andvalue s a s r ef

le ct ed b y long- st and ing st at e c ase pr ece den t.”

-21-rea sonable j uror would have convicted him in the light of the new evidenc e.” Id. at 327. Although t h e Court has never rec og nized the viability of a fre estanding actua l-innocenc e claim, and, conseque ntly
, has n ot decide d which standard would apply to such a claim, it has

s p eculated that such a standard would theore tically require mor e convincingproof. See House v . Bell , 547 U.S. 518, 555 (2006). ¶ 87 T he State expands upon this p o i n t , ar gu i n g th at t h e p ro p er

substantive standard for a postconviction fre estanding claim of actua l innoce n c e in I llinois is an “enha nced Schlup showing .” That proposed standard would forc e the defe ndant to prove that no rea sonable juror

wo u l d have found him guilty in light of the new evidenc e, whic h i s what Schlup require s, and do so b y cl ea r and convincing evidenc e, which would enha

nce w hat Schlup require s. Acc ordingto the State, the so-ca lled enhanc ed Schlup standard is appropriate bec ause ( 1) it demands a truly persua sive demonstration of innocenc e, so it fits the

rea soning of W

ashington better than the s tandar d we adopted there ; (2) it trac ks the prac tice for litigating actua l-innocenc e claims in other states; and (3) “adopting the enhanc ed S ch lup standard for fre estanding inn o ce n ce claims, while rese rving the Schlup standard fo r g atewa

y claims, will cure the curr ent anomaly in this Court’s
actua l innocenc e jurisprudenc e, under which fre estanding actua l innocenc e claims ar e easie r to establish than g atewa y actua l innocenc e cla ims.” ¶ 88 We rejec t the State’s argument for se vera l rea sons. ¶ 89 The State’s arg ument rests larg ely on a faulty initial premise. The State simply assumes that this court, like the United States Supreme Court, has rec ognized two ty pes of actua l-innocenc e claims. We have not. To the Court, the distinction betwe en fre estandingand g atewa y claims hinge s on fundame ntally differ ent “a s s umptions about the validity of the proce eding s” and concomita n t l y differ ent levels of
respe ct aff

orded to the resulting convictions. Schlup
, 513 U.S. at 315. W hen fac ed with a fre estanding claim, in which a defe nd an t challeng es only his fac tual innocenc e, a habeas court may have confide nce in the r e s u lt beca use the underly

ing trial was err or-f

ree

. Id. When fac ed with a g atewa y claim, in which the defe ndant challeng es both his fac tual innocen ce and the fairne ss of his trial, a court may have less confide nce in t h e re s ult. Id. at 316. That, in the Court’s view, cha ng es the e videntiary

burden:
“In Herrera (on the assumption that petitioner’s claim was, in principle, leg ally well founded)
, the evidenc e of innocenc e

-22-would have h ad to be strong enough to make his execution ‘constitutionally intolerable’ eve n if his conviction was the product of a fair trial. For [t h e p eti tioner in Schlup ], the evidenc e must establish sufficie nt doubt about his guilt to justify the conc l u sion that his execution would be a miscarr iag e of justice un l es s his conviction was the product of a f air trial.” (Emphase s in origina l.) Id. ¶ 90 We depar

ted from prec isely this approa ch in W ashington

. There
, we state d:
“The Supreme Court reje cted substantive due proce ss as a

means to rec ognize fre estanding innocenc e claims beca use of the idea that a person convicted in a constitutionally fair trial
must be viewed as guilty

. That made it impossibl e for such a person to claim t h at he, an innocent person, was unfairly convicted.
We think that the Court overlooke d that a ‘t rul y persua sive demonstration of innocenc e’ would, in hindsight, undermine the leg al construct prec lud i n g a substantive due
proce ss analy sis. The strong er the claim—the more likely it is that a convicted person is actua lly innocent—the weaker is the leg al construct dictating that the perso n b e viewed as guilty

. A ‘truly persua sive demonstration of in n o c e n c e ’ w o u ld eff ectively reduc e the idea to leg al fiction. At the point wher e the construct falls ap art, application of substantive due
proce ss principles *** is invited.” W ashington
, 171 I ll. 2d at 488. The assumptions that led the Court to dis t i nguish betwee n fre estanding and g atewa

y claims, and the leg al construct that spring s from those assumptions, are integ ral parts of the fede ral due proce ss rubric that we decline d to follow, as a matter of state constitutional law. We may have used the label “fr eesta nding” to descr ibe the claim in W ashington , but not as an alter native to the labe l “g atewa y .” ¶ 91 In I llinois
, a postconviction actua l-innocenc e claim is just that—a

postconviction actu al -i nnocenc e claim. Where a defe ndant m akes a claim of trial erro r, as well as a claim of actua l innocenc e, in a successive postconviction petition, the former claim must meet the

cause -and- prejudice standard, and the latter claim m u s t meet the W ashington standard

. S ee Ortiz
, 235 I ll. 2d at 330 (“where a defe ndant sets forth a claim of ac tu al i nnocenc e in a succe ssive postconviction petition, the defe ndant is excused from showing cause

-23-and prejudice ”). There is no anomaly in o u r case law beca use the evidentiar y burden for an actua l-innocenc e claim is always the same whether or not it would be considere d a fre estanding o r gat eway claim under

fede ral law

. ¶ 92 Wit hout the benef it of that disti n ct i o n , t h e S t at e’ s ar gument

u n ra v els

. Schlup
, as well as any case s from other states that have chosen to alig n themselves with fede ral law in this context, are irrele vant. Fur

ther, beca

use the Co u rt has never rec og nized the viability o f a fre estanding actua l-innocenc e claim raised in a

succe ssive habeas corpus petition, its comments in Herre r a o n the evidentiar y burden require d to advanc e such a claim are pure obiter d ic ta , and unpersua sive. Finally
, the State’s proposed standard, wh ich would impose a “cle ar and convincing ” burden of proof and make an actua l-innocenc e claim harde r to prove than any other postconviction claim, is inappropria

te. An actua l-innocenc e claim should be trea ted
p r o c e durally like any other postconviction claim ( W a s h in gto n , 1 7 1 I ll

. 2d at 489), and “[i] n a post-conviction hearing the burden of proof is
upon the petitioner to show a denial of [a] constitutional ri g ht by a preponde ranc e of the evidenc e.” People v. Stovall
, 47 I ll. 2d 42, 47 (1970). ¶ 93 The State’s a rg u ment e s s e nti a lly repa ckag es an argument made by then-Chief J ustice Bilandic in his dissent upon denial of rehe aring in W ashington

. See W

ashington
, 171 I ll. 2d at 505-10 (B i l an dic, C.J
., dissenting upon denial of rehe aring
, joined by M i l l er , J .). That
argument was reje cted by a majority of this court. In the 17 y ear s since we decide d W

ashington
, n o th in g has chang ed. Our commitment
to that holding is unwave ring

. We have not diluted the substantive standard for actua l-innocenc e claims
, as the State thinks we did in Ortiz

. And we have not streng thened that standard, as the State hopes

we did in Ed

w ards

. In both case s, we reiter ated that W ashington provides the appropr iate standard for ultimate relief

. S ee Edwards
, 2012 I L 111711, ¶ 32 (stating th e “e l ements of a claim of actua l innocenc e” a

nd citing W

ashington ); Ortiz , 235 I ll. 2d at 333. ¶ 94 As we stated in W ashington
, “no person co n v i ct ed o f a cr ime should be deprive d of life or liberty gi v en compelling evidenc e of
actua l innocenc e.” W

ashington
, 171 I ll. 2d at 489. T h at statement indicates that the standard we adopted is extraordinar ily difficult to meet. In fac t, as amicus informs us and our rese arc h confirms, courts of revie w have g rante d postconviction relief on ac tu al -innoce nce claims in only three repor ted case s sinc e 1 9 96. See People v.

-24-Burrows
, 172 I ll. 2d 169 (1996) (dec ided the sam e d ay as W ashington ); Ortiz
, 235 I ll. 2d 319; People v. Starks
, 365 I ll. App. 3d 592 (2006). ¶ 95 Although W ashi n g t o n is now familiar to the bench and bar, w e take this opportunity

to clarify how it should be applied. ¶ 96 Substantively
, in order to succe ed on a claim of actua l innocence
,

the defe ndant must prese nt new, materia l, noncumulative evidenc e that is s o conclusive it would probably chang e the result on retria l. W ashington
, 171 I ll. 2d at 489. New means th e ev i dence was discovere d afte r trial and could not have been discovere d earlier throug h the exercise of due diligenc e. See Burrows
, 172 I ll. 2d at 180. M at eria l means the evidenc e is rele vant and probative of the petitioner’s innocenc e. People v. Smith
, 177 I ll. 2d 53, 82-83 (1997). No ncumulative means the evidenc e adds to what the jury heard

. Mol s tad
, 101 I ll. 2d at 135. And conclusive means the evidenc e, when c onsidered a long w ith the trial evidenc e, would proba bly lead to a diffe rent re sult. Ortiz , 235 I ll. 2d at 336-37. ¶ 97 In p ra ct i ce , th e t ri al co u rt ty pically will revie w the evidenc e prese nted at the evidentiar y hearing to deter

mine first whether it was new, materia l, and noncumulative. I f any of it was, the trial court then
must consider whether that evidenc e place s the evidenc e prese nted at trial in a differ ent light and un d er cuts the court’s confide nce in the fac tual corr ectne ss of the guilty verdic t. This is a compre hensive
approa ch and involves cre dibilit y deter minations that are u niquely
appropr iate for trial judge s to make. But the trial court should not rede cide the defe ndant’s guilt in deciding whether to g rant relief

. See Molstad
, 101 I ll. 2d at 136 (“this does not mean that [t he defe ndant] is innocent, mere ly that all of the fac ts and surrounding circ umstances *** should be scrutinized more closely to deter mine [hi s ] gu i lt or innocenc e”)

. Indeed, the sufficie ncy of the State’s evidenc e to convict beyond a rea sonable doubt is not the deter mination that the trial court must make. I f i t we re , t he reme dy would be an acquittal, not a new t ri al. See W

ashington
, 171 I ll. 2d at 497 (McMorr ow, J
., specia ll y

concur rin g) (“where a revie wing court deter mines that no rational trier of fac t could find the defe ndant guilty beyond a rea sonab l e doubt, the proper reme dy is not a new trial but an ac quittal”). Probability
, not cer

tainty
, is the key as the trial court in eff ect predic ts what another jury would likely do, considering all the evidenc e, both

new and old, toge ther. See People v. Davis
, 2 0 1 2 I L App (4th)

-25-110305, ¶¶ 62-64 (“N ew evidenc e need not be completely dispositi ve of an issue to be likely

to chang e the r esult upon retria l.”). ¶ 98 Turning to the cent ra l i s s u e i n t h i s ca s e, t he merits of the

defe ndant’s petition a

nd actua l-innocenc e claim, we revie w the trial court’s dec i s i o n to deny relief following an evidentiar y hearing for manifest err or. People v. Mor ga n , 212 I ll. 2d 148, 155 (2004). Manifest err or is “cle arly evident, plain, and indisputable.” Id. at 155. Thus, a decision i s m an ifestly err oneous when the opposite conclusion is clea

rly evident. In re Cutright
, 2 3 3 I l l

. 2 d 474, 488 (2009). On this point, the parties’ positions are clea r and simply

s t at ed. The defe ndant contends that the trial court’s decision wa s manifestly err oneous under the W ashington st andard. The State summarily disag ree s, responding in the last few pag es of its brief that the trial court’s dec ision was not manifestly err oneous under that standard. The State, howeve r, does not dispute that the defe ndant’s evidenc e wa s new, mate rial, and nonc umulative. ¶ 99 The trial court found that the evidenc e was new, excep t fo r t h e

testimony of Bro o k s , wh o testified at trial, and C oats, who t estified
at the hearing on the defe ndant’s posttrial mo t i on. The trial court further found that the evidenc e was materia l, except the testimony of Nicker son and Roberson, who did not state that the defe ndant was not involved in the attack. Finally
, the trial court found that the rema ining evidenc e—name ly
, the testimony from Coats, L ee, Deondr e, Robert, and McKa

y —was cumulat ive of the trial testimony of Nix on, who stated that the de fenda

nt was not involved. ¶ 100 Re g a

r d in g th e te s ti mo ny of Nicker son and Roberson, we c onclude that it was not new beca use i t could have been discovere d earlier throug h the exercise of due diligenc e. None of the eight defe nse witnesses, except Br ooks, testified at trial, but Nicker son and Roberson wer e arr ested in connec tion with the attack. Pres u m ably
, the defe nse knew this befor e trial, but chose n o t to call them as witnesses, even to undermine Tequilla’ s cre dibilit y afte r misidentifying them. In the hearing on the def endant’s posttrial motion, defe nse counsel explained that he did not call Roberson as a witness beca

use his testimony would not have helped the defe ndant. Additionally
, the defe ndant stated that he t al k ed to defe nse counsel about Nicke rson, but by

then it was too late to ca ll him. 3

We not e tha t Nic kerson te st if ie d tha t whil e he was inc ar cer at ed and 3 awai ti ng tri al
, he spo ke wi th Coat s, who sai d he knew Nic ke r s o n a nd the

-26-¶ 101 Reg ar ding the testimony of Brooks, we conclude that it was not materia l. At the defe ndant’s trial, Br ooks’ testimony was nearly incomprehe nsible, particula rly his answe rs to quest i o n s about two men ni ckname d “F ats.” Brooks st ated tha t h e was at M iller’s house on the nig ht of t he attack, and he seeme d to impli cate the def endant on direc t examination, t hen exculpate him on cross-e x amination. In the evidentiar

y hearing, Br ooks was less equivoca l. He stated that he was not involved in the attack and did not know who wa s. This was

a d i ffe rent story from the one he offe red at trial, but it was not rele vant or probative of the de fenda nt’s innocenc e. ¶ 102 That leave s the testimony of the five men who admitted that they

wer e involved in, or prese nt for, the attack: Co ats, L ee, Deondr e, Robert, an d McKa

y

. Nix on’s trial testimony implicating these men

seems to indicate that the defe nse may have known about their roles befor e trial, but they likely would have asser ted their fifth amendment privileg es if called to testify

. L ee, Robert, and M cK ay said they would have done so, and, i n h is testimony at the hearing on the defe ndant’s posttrial motion, Coats also said he would have done so. Only Deondr e did not say this, a nd he asser

ted that he never enter ed Miller’s house and left the are a befor e the attack beg an. The testimony of these witnesses was new evidenc e. See Molstad
, 101 I ll. 2d at 134-35. ¶ 103 T h e t es t i m o n y o f these witn es s es wa s al s o m at er i al an d

noncumulative. All five of them stated t hat t hey wer e present for or involved in the attack, and all of them insisted that the defe ndant was not. This evidence wa s relevant, and probative of the defe ndant’s innocenc e. Additionally
, althoug h they
, like Nix on at trial, stated that the defe ndant was not at Miller’s ho u s e o n the night of the attack, their test i m o n y was not befor e the jury at trial. The uncorr oborate d testimony of one of the men does not rende r the testimony of five of them mere ly cumulative, particula rly wher e four of them wer e never char g ed in c onnection with the attack. Their testimony corroborate d Ni x on’s testimony reg arding the defe ndant, but also off er ed signific ant details that we re missing from his a ccount, including the

def end ant wer e not invol ved in the at ta ck. Nic kerson ’s te st imony abo ut tha t

con versa ti on was hea rs ay. Robe rs on’ s af fi da v it in clud ed a si mil ar st at ement abo ut a con versa ti on he had wit h Mc K ay af te r the at ta ck. Robe rs on did not t e s t i f y abo ut tha t con versa ti on, but te st imony abo ut it woul d al so b e hea rs ay.

-27-fac t that McKay and the de fenda

nt both walk with a limp. Thus, we

co n cl ude that the testimony of Coats, L ee, Deondr e, Robert, an d McKa y was ne w, mater ial, and noncumulative e vidence

. ¶ 104 Next, we must deter mine whether th e t rial court’s decision that that evidenc e was not conclusive enough to probably chang e the result on re trial was manif estly err oneous. ¶ 105 The trial court noted that Coats, L ee, Robert, and McKa y all had extensive criminal rec o rd s, and that Coats, Robert, and McKa y admitted drinking alcohol and smoking marijuana befor e the attack. The court observe d that these witnesses offe red conflicting acc ounts, particula rly reg arding the defe ndant’s involvement, but none of them mentioned the sexual assault of Te kelia. ¶ 106 Although we agree that their voluntary intox ication and criminal

rec ords would aff

ect their cre dibility on retria l, as would the discrepa ncies in their acc ounts nearly 16 y ear s afte r the attack, these

men wer e rema

rkably consistent on cer tain key details: they socialized at the Warner Housing Project befor e the attack; they went to Miller’ s house to ste al drug s and money ; Coats entere d the house first throug h the back window, then opened the back door fo r t h e other men; the men had their fac es cover ed during the attack; the men order ed many of the victims to lie on the living room floor, then took them upstairs; and three of the men jumped from the upstairs window when the police arr ived. Most significa ntly , they wer e consistent on the issue of who was involved in, or prese nt for, the att ac k

. L i k e 4 Nix on, who testified at trial, they all stated t hat six men—Nixon, Coats, L ee, Deondr e, Robert, and McK ay —wer e at Miller’s house that night, and the defe ndant was not. L ee, Deondr e, and McKa y even

corr oborate d the defe ndant’s ali b i. And althoug h none of the men mentioned the sexual assault, neither did T equilla, whose sister was the victim o f a terrible crime. The men wer e not asked about the sexual assault because that was not rele vant t o the ul t i m at e is sue of whether the def endant wa s there. ¶ 107 The trial court stated that these witnesses had “nothing to lose,”

a veiled ref

ere nce to the fac t that the limit ations period had passed on the offenses commit ted during t he attack. But in his t rial testimony
, Nix on implicated himself, McKa y , L ee, Coats, Deondr e, and Robert. And Coats, in his testimony at the hearing on the defe ndant’s posttrial

Only Lee te st if

ie d tha t Dondr e was not the re

. T he oth er m en, inc lud ing 4 Deond re hi m sel f, s ta te d t hathe was pre sen t a t M il le r’ s ho use

.
-28-motion, implicated Nix on, who had alre ady pleade d guilty
, as well as L ee, McKa

y , and Deondr e. Despite this testimony
, the State neve r 5 pursued char g es ag ainst any of these men in connec ti o n with the attack, and criminal liability weighed on th ei r minds. L ee even ref used to provide an aff

idavit, a nd Robert had to be c ounseled by a public defe n d er that his testimony would not have penal
conseque nces. This lends c rede nce to their acc ounts. ¶ 108 Ad d i t i o n al l y , Detec tive Rabe’s testimony at th e ev i d en t i ar y

hearing was inconsistent with his trial testimony reg arding his investigation. At trial, Detec tive Rabe d e s c rib e d a c o mpu teriz ed “cold

sear ch” that produce d the photogr aphs Tequil l a saw. But Detec tive Rabe provided more details at the evidentiar y hea ri n g. Be cause the
two men arr ested at the crime scene , Coats and Nix on, ref used to

name their acc omplices, Detec tive Rab e t alked to office rs who worke d around the Warner Housing Project. These off i cers offe red the names of four possible suspects

—t h e defe ndant, Br ooks, Nicker son, and Roberson—all of whom still maintain that they wer e not involved in the attack, and two of whom wer e actua lly rele ased by the police. Detective Rabe assembled a photo arr ay with pictures of those men, and Te quilla identified them all. ¶ 109 T h e S t at e’ s ev i d en ce at trial was sufficie n t t o co n v i ct t h e

defe ndant, but it was far from overwhelming. There was no fore nsic evidenc e to link the defe ndant to the attack, and t h e S tate offe red three identifications, all of whic h wer e sig nificantly impeache d. ¶ 110 B r o o ks’ testimony on direc t examination may have implicated t h e defe ndant as dark-skinned Fats, but his testimony on crossexamination definitely

exonerated him. ¶ 111 M i l l er an d T eq u i l la offe red differ ent versions of t h e at t ac k

b ec au s e they wer e in differ ent place s. In Miller’s version, the defe ndant orche strated the attack from her bedroom doorwa y , not the living room. Miller did not see the defe ndant’s fac e during the attack beca use it was cover ed, but she ident i fi ed h im from his voice as a child and as an adult, a char acte ristic she knew even though she denied associating with him, and his limp, a char acte ristic he share d with McKay . Miller did not give the defe ndant’s name to the police afte r the attack bec ause the y did not ask about him. And she did not

At the eviden ti ary hea ri ng, Coat s exp la ine d tha t he did not inc lud e 5 Robe rtin th is group b ecause he want ed t o pr ote cthi m

.
-29-name him to the grand jury beca use she did not know at the t ime of the attac k that was him. ¶ 112 In Tequilla’s version, the defe ndant sat o n a ch air in the living

room for most of the attack, direc ting the other men. Tequilla did not mention that the defe ndant was ever near Miller’s bedroom. Tequilla

saw the fac es of two men while she was lying on the l i v i n g room floor and they remove d their bandana s. She identified one of them as the defe ndant, who, like Roberson, wa s n i ckname d Fats. Howeve r, like her mother, she di d not g ive t he def endant’ s name or nic kname
t o the police. And she named only Nix on to the g rand ju ry b ec au s e she had forg otten the def endant’ s name, and presumably his nickname. Of the six men she picked out from the photo arr ay and the lineup, two—Coats and Nix on—wer e arr ested at the scene , t w o

—N i c k e r s o n a n d R o b e r s o n

—w e r e m i s i d e n t i f i e d
, a n d
tw o

— B r o o k s and the defe ndant—continue to deny thei r in v o lv e ment. Tequilla never identified any of the four men who wer e implicated by Nix on and Coats, who wer e n ev er arr ested in connec tion with the attack, a nd who now asse rt they

wer e at Miller’ s house that nig ht. ¶ 113 The testim ony of C oats, L ee, Deondre
, Robert, and McKay was discredited by their criminal backgrounds, i n t o x ication, and
acqua intance wi th the defe ndant. Those men, howeve r, all direc tly
contra dicted Miller and Tequilla on the ultimate issue befor e the jury : who was involved in the attack. We beli ev e t hat the evidenc e prese nted by the defendant at th e ev identiary hearing, toge ther with the evidenc e pre sented by the defe ndant at trial, plac es the e vidence
prese nted by the State in a new light and undermines our confide nce in that evidenc e an d the result it produce d. Weighe d ag ainst the State’s evidenc e, the defe ndant’s new evidenc e is conclusive enough that another

trier of fac t would probably

rea ch a dif

fer ent re sult. ¶ 114 This case is strik i n gl y s i m i l ar t o Mo l s ta d

. T h er e, the State
prese nted testimony from an eyewitness who identified the defe ndant and his five code fe n dants as participa nts in the battery of her boy friend. The defe ndant denied that he was pre s en t for the attack, and he prese nted alibi testimony from his pare nts. This court grante d the defe ndant a new trial

. He re, we rea ch the same conclusion. Be cause the tri al court’s decision was manifestly err oneous, the defe ndant is entitled to postconviction relief in the f orm a new tria l. As we stated in Ortiz
, 235 I ll. 2d at 337, on rema nd, “[t] he fac t finder will be char g ed with deter mining the cre dibilit y of the witnesses in

-30-light o f the newly discovere d evidenc e and with balanc ing the conflictingeyewitness ac counts.”

¶ 115 CONCLUSI ON ¶ 116 For

the re asons that we ha

ve st ated, the judgme nts of t he circuit and appell ate courts are reve rsed, and the cause is rema nded to the circ uit court for f

urther pr ocee dings.

¶ 117 J udgments reve rsed. ¶ 118 Cause re manded.

-31-