## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Nicholas , 2013 IL App (1st) 103202

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ANTON I O NI CHOLAS, Defe ndant-Appe llant.

District & N o. First District, Third Division Docke t No. 1-10-3202

Filed Marc h 27, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Although defe ndant’s aff idavit asser

ting a claim of actua l innocenc e was insuffi ci en t to allow defe ndant to proce ed on his succe ssive postconviction petiti o n , his alleg ation that he was coer ced into confe ssing
to participating in a fata l shooting was sufficie nt to establi s h the cause and prejudice require d to rema nd the cause for second- stag e proce eding s on his successive pe tition.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 91-CR-16 3 7 3 ; the Hon. Matthew E. Coghlan, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d with instructions.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and David C. Holland, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Stuart A. Nudelman, Speci al State’s Attorney
, of Chicag o (Myles P. O’Rourke
, Andre w N. L evi ne, Rafae l A. Bombino, and Brian J

. St e f a n ic h
, Special Assistant State’s Attorney s, of counsel), for the Pe o p le

.

Panel J USTI CE PI ERCE delivered the judgme nt of the cour t, with opinion. Presiding Justice Neville and Justice Hy man concur

red in the judgme nt and opinion.

OP INION

¶ 1 De fe n d ant appea ls from the circ uit court’s denial of his reque st for leave t o fi l e a

succe ssive postconviction petition. In this court, defenda nt argues that the trial court erre d in denying him leave to file hi s petition beca use: (1) his alleg ation that his confession wa s phy sically coer ced established the requisite cause and prejudice nece ssary to ove rcome the bars of res judicata and waiver ; and (2) he made a colora ble claim of actua l innocenc e supported by an aff

idavit of an eyewitness. We find that petitioner’s succe ssive petition should have been allowed beca use he has established cause and prejudice for failing to raise the issue in an ea

rlier pr ocee ding. D efe ndant fa iled to establish a colorable claim of actual innocenc e supported by the submitt ed aff idavit of an eyewitness. For the following rea sons,

we aff irm the judgme nt of the circ uit court in part, and we reve rse the judgme nt of the circ uit court in par

t and re mand with direc tions.

¶ 2 BA CKGROUND ¶ 3 Def

endant, along with codef

endant David Washington, was charg ed in connec tion with

a shooting that occur

red on J une 9, 1991, which resulted in the death of Kathry n Miles a nd the injury of Eric Burg in, Sylvester Porch and Billy Warren. We will discuss only those fac ts rele vant to the disposition of thi s appea l. ¶ 4 P ri o r to trial, defe ndant filed a motion to suppress his statement to pol i ce b as ed o n alleg ed phy sical and psycholog ical coer cion. Def endant testified that he was arr ested for the offe nse in the instant case on J une 11, 1991, and was handcuf fed by Detec tive O’B rien of the Chicag o police depar

tment. Detec tive O’B rien “smac ked” defe ndant i n the fac e when defe ndant told Detec tive O’Bri en t h at he did not know any thing about the shooting. Def endant was taken to Are a 3 headqua rters and was place d in an intervi ew ro o m wi th Detec tives O’B rien, Stehlik and other office rs. When defe ndant stated that he did not know
any thing about the shooting, Detec tive O’B rien punched defe ndant in the middle of the chest with such for ce that he was knocked to the ground. W hile he was on the ground, the other

-2-detec tives hit and kicked him. One of the office rs had a red bat wi t h k ey s on the end, but

defe ndant did not know whether he was beate n with the bat. The beating lasted about 20 to 30 minutes. ¶ 5 At some point during the beating
, another unnamed office r enter ed the room and told the detec tives to leave

. T h i s office r told defe ndant the beating s would stop if he cooperated. Def endant agree d to cooperate and was shown Gre g ory Reed’s statement. Def endant and the office r went over Reed’s statement for about 30 minutes. L ater , defe ndant g ave a courtrepor ted statement admitting his involvement. Def endant did not complain about the beating beca use Detec tive O’B rien was prese nt when he g ave the statement. Simi larly
, defe ndant did
not complain of being beate n to the intake para medic at Cook County jai l beca use police office rs wer e prese nt. Def endant eventua lly com p l ai n ed t o a para medic that he had been beate n, and X- rays were taken of his torso on J uly

19, 1991. No fra cture s were reve aled. ¶ 6 David Washington testified that he was also arr ested on J une 11, 1991
, b y De t ec t i v e O’B rien for his involvement in thi s case . Washington wa s taken to Are a 3 and handcuffe d
to a wall. Detec tive O’B rien yelled at him and threatened to hit him with a littl e red bat with key s on it. Detec tive O’B rien then pulled Washington’s overa lls halfwa y down his body and took out an elec trical device and told Washington that he would shock his g enitalia if he did
not cooper ate. Washington g ave a court-r eporte d statement and did not make any complaints in his statement about beingmistreated by the police. ¶ 7 De t ec t i v es O’ Br i en and Stehlik denied that they ever hit or threatened de fenda nt

. Assistant State’s Attorney (ASA) Brian Grossman testified that he spo k e wi th defe ndant befor e defe ndant gav e his court-r eporte d statement and defe ndant was g iven his Miranda rights and did not complain of being abused. ASA Charles Bur ns testified that he was prese nt for Washing ton’s statement and that he neve r complaine d about beingthreatened. ¶ 8 Ba sed on a repr esentation made by defe nse counsel, the court agree d to ha ve De tective O’B rien’s Office of P rofe ssi onal S tandar ds (OPS) rec ords s ubpoenae d and returned to the
court for an in came ra inspection. The court later tender ed sever al of the OPS files to defe nse counsel. There afte r, defe nse counsel ca l l ed Maurice L ane to testify

. L ane testified that Detec tive O’B rien phy sically abused him and threatened him in an attempt to g et L ane to confe ss to the murder of

his sist er. ¶ 9 The court denied defendant’s motion to suppress, finding defendant’ s statements wer e not the product of c oerc ion and there was no e vidence to support his alleg ations of abuse

. ¶ 10 At t rial, defe ndant’s statement was published to the jury

. In his statement, de fe n d an t explained that on J une 9, 1991, he was at his friend Gre g ’s house with Dave and some other friends when Ge org e ar

rived. Af ter he spoke with Georg e, Gre gasked de fenda nt if he wa s interested in do i n g a “s t ain,” meaning a stickup. Georg e offe red to fix defe ndant’s car if defe ndant would shoot some men who had “ jumped on him.” ¶ 11 Def

endant, Geor g e, Gre g and Da v e t h en discussed the logistics of the shooting. The y decide d that defe ndant and Dave would shoot the men who “jumped on” Georg e, while Gre g watche d their bac ks. Defe ndant was shown who his targ ets wer e. ¶ 12 T h e gro up drove to an alley near the crime scene

. Def endant car

ried a .380 automati c gun. Def endant, Gre g and Dave walked from the car to 66th and Wolcott and stood by a store

-3-on the corne r. Def endant fired about five shots toward 65th Street at three men on the corne r. Dave turned a

nd started shootingat the same men that def endant ha d targ eted. ¶ 13 J erma ine Aver hart, an eyewitness to the shooting on J une 9, 1991, testified on behalf of the State. Aver

hart observe d three men near the store at the corne r of 66th and Wolcott. The

corne r was lit by streetlights. Two of the men raised their guns and beg an shooting north, in the direc tion of a play lot on 65th Stre et. Then, one of the men turned and shot in the other direc tion and the other shooter followed. Aver hart identif

i ed defe ndant and David Washington in a lineup. ¶ 14 The testimony of J ohn Buc hanan, an eyewitness, and Eric Burg in, a victim, substantially

corr oborate d Aver

hart’s testimony

. Bu ch an an also testified that during the day on J une 9, 1991, he obser

ved a f ight be tween G eorg e, Jerome and Da vid J enkins. ¶ 15 Detec tive J ames O’B rien testified that on J une 11, 1991, he and his partne r interviewe d Gre g ory Reed at the police station. Following that interview, he arr ested d e f e n d a nt. D e te ctive O’B rien interviewe d defe ndant at 11 p.m. on J une 11, 1991, afte r informing defe ndant of his rights. Def

endant agree d to g ive a court repor ted statement. Assistant State’s Attorney Brian Grossman corr oborate d Detec tive O’B rien’s testimony that defe ndant voluntarily agree d to g ive a c ourt-reported stateme nt. ¶ 16 Detec tive O’B rien testified reg ar d i n g t h e we ap o ns and piece s of wea pons that wer e

rec overe d following the shootings. After David Washington was arr ested, he led the police
to sever al locations, including are as along the lake, wher e office rs rec overe d sever al parts of we apons and a

mmuniti on, including a .380 automatic and eight car tridg es, the ba

rre l of a .22-c aliber I

nter-T ech se miautomatic gun, a pistol grip and 100 rounds of a mmuniti on. ¶ 17 Detec tive J ames Trea cy , a firea rm expert, testified that the bullet remove d from Kathry n Miles was fire d from the .380- caliber automatic we apon re cover ed by the offic ers. ¶ 18 After the State rested, the defe ndant called David J enning s to testify

. J enning s stated that

on J une 9, 1991, his friends fought with a man named J erome and his friend Georg e. Georg e attempted to fire a gun during the fight, but it failed to discharg e. Ge org e had driven awa y threateningthat he would be ba ck. ¶ 19 Wil liam Friedman, an investigator with the public defe nder’ s offi ce , t es t i fied that he interviewe d J erma ine Aver hart on April 23, 1993. During that interview, Aver hart t old Friedman that he saw defe ndant running with a gun but did not reme mber if he saw defe ndant shooting. ¶ 20 Def

endant testified that in J une of 1991, he was working for “Stevio” Movers. On J une 9, 1991, he we nt to GregReed’s house to watch a basketball g ame. W hen Georg e ar rived, he asked defe ndant to g o to 66th and Wolcott to pick up Eric beca use Georg e had “g ot into it with some guy s there earlier.” Def endant testified that he did not have a gun. After Georg e dropped him off near 66th Street, he hear d some men say , “ther e’s Georg e,” and they beg an shooting. ¶ 21 Def

endant a lso testified that after the police officer s arr ested and questioned him, they beg an hitting and kicking him until another detec tive came in and told t h em t o s t o p

. The detec tive announce d that he had a statement from Gre g ory Reed. Def endant testified that the office rs coer ced him into g iving a statement and that he mere ly repe ated Reed’s statement.

-4-When defe ndant arrived at the jail, he asked to see a doctor. He testified that no one

examined him unti l months l ater

. ¶ 22 After hearing all of the evidenc e, the j ury fo u n d d efe ndant guilty of one count of first degree murder, three counts of attemp t ed fi rs t degree murder, three counts of ag gravated battery with a firea

rm and one count of conspirac y to commit first degree murder. The trial
court sentenc ed defe ndant to two consec utive prison terms of 60 year s for first degree murder and 25 year s for attempted first degree murder. ¶ 23 On direc t appea l, defe ndant argued that: (1) the trial court err ed in ref using to instruct the jury on the issue of manslaughter; (2) the State failed to prove h i m gu ilty beyond a

rea sonable doubt; (3) the State violated Brady when it failed to disclose an informant’s statement; (4) the State’s improper closing argument denied defe ndant a fair trial; and (5) the trial court abused its discretion in g iving the jury a Prim instruction. We aff irmed defe ndant’s conviction on May 2, 1996. People v. Nicholas
, No. 1-93-4215 (May 2, 1996) (unpublished order pursuant to Supreme Court Rule 23). ¶ 24 Def

endant filed a pro se pos t co n v i ct i o n petition on September 19, 2007, wher ein he alleg ed the 2006 Report of the Special State’s Attorney (2006 Report) corr oborate d his claim that his confe ssion was coer ced and that the evidenc e, apar t from th e co nfession, was insufficient to support his convictions. Specifica lly
, defe ndant claimed that the 2006 Report established that “ n

u mer o u s a r r e s te e s c o mp laine d of being beate n and/or tortured by Detec tive O’B rien and other

detec tives at Are a 3.” I

n addition, defe ndant noted that the 2006 Repor t conclude d that beca

use Co m m an d er J on Burg e abused suspects at Are as 2 and 3, “it

nece ssar i l y fo l l o ws that a number of those serving under his command rec ognized that, if their comman d er could abuse persons with impunity
, so could they .” Def endant attache d

sever al pag es of the 2006 Re port to his petition. ¶ 25 On November 27, 2007, the circ uit co u rt s u m m ar i l y d i s m i ssed defe ndant’s pro se petition. The court found that defe ndant had waived his coercion claim beca use the issue was not raised on direc t appea l. On appea l of the denial of his postconviction petition, appellate counsel filed a motion to withdraw under Pennsylv ania v. Finley
, 481 U.S. 551 (1987), and

aver red that there wer e no meritorious issues to be prese nted on appeal. Counsel stated that the 2006 Re p o rt did not add to or detra ct from defe ndant’s coer cion claims. Def endant responde d by arguing that the compac t disc of the 2006 Report containe d d et ai l s of the alleg ations of abuse ag ainst Detec tive O’B rien corr oborative of his claims but that defe ndant

was unable to obtain the compac t disc due to prison regulations. This court revie wed the

rec ord, counsel’s brief and defendant’s response and found that t h er e wer e no meritorious issues on appea l and aff

irmed the judgme nt of the circ uit court. People v. Nicholas
, No. 1-08- 0670 (De c. 17, 2008) (unpublished order pursuant to Supreme Court Rule 23). ¶ 26 Def

endant also filed a pro s e p et i tion for a writ of habeas corpus in the United States District Court, Norther

n District o f I l linois. In the petition, defe ndant alleg ed that he was beate n by Chicag o police office rs pri or to g iving his statement and that the 2006 Report

co rrobor ated his alleg ations. The district court dismiss ed defe ndant’s petition in Au gu s t 2009, finding that the one-year period of limit ations had run by the time defe ndant had filed his petition.

-5-¶ 27 Def en d an t filed the ins tant pro se succe ssive postconviction petition on Dec ember 14, 2 0 0 9
, wher ein he raised the following claims: (1) his confe ssion was coer ced and n ew l y discovere d evidenc e supported this claim; and (2) he was actua lly innocent and provided an aff idavit of an individual who allege d l y s up ported this claim. The circ uit court denied defe ndant leave to fi l e h i s succe ssive petition. The court found that defe ndant failed to establish the requisite cause and prejudice nece ssary to be grante d leave to file a succe ssive postconviction petition. Specifica lly
, the court found that defe ndant had claimed in his prior postconviction peti t i o n that his confe ssion was coerc ed based on the conduct of Detective O’B rien, wher eas in this petition defe ndant raised the exact same claim with the additional detail of now being able to name the previously unnamed “g ood cop”: Detec tive McWeeny

. The court conclude d that defe ndant’s discovery of Detec tive McWeeny ’s name did not constitute new evidenc e. Simi larly
, the court reje cted defe ndant’s claim of actua l innocenc e based on the aff

idavit of Delber

t Hea rd. Whil e the cou rt s t ated that the content of his aff idavit may be considere d newly discovere d, it was not of such a nature that would entitle him to relief under the Act. It is from the circ uit c ourt’s rulingthat defe ndant now appea ls.

¶ 28 ANALYSI S ¶ 29 Def

endant first argues that the circ uit court err ed when it denied him leave to file his pro

se succe ssive postconviction petition beca use his well-pled alleg ations of phy sical coer cion satisfied the c ause a

nd prejudice test. ¶ 30 The Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2010)), allows prisoners to collater ally attack a prior conviction and sentenc e wher e there was a substantial violation of his or her constitutional rights. People v. Gosier
, 205 I ll. 2d 198, 203 (2001). In orde r for a defe ndant to succe ssfully challeng e a conviction or sentenc e pursuant to the statute, he or she must demonstrate that there was a substantial deprivation of fede ral or state constitutional rights. People v . Morgan , 187 I ll. 2d 500, 528 (1999). ¶ 31 The Act contemplates the filing of only one postconviction petition. People v. Evans
, 186 I ll

. 2 d 8 3
, 8 9 (1999); 725 I L CS 5/122-1(f) (West 2010). Consequently
, all issues actua lly decide d on direc t appea l or in an orig inal postconviction petition are barr ed by the doctrine of res j udicata and al l issues that could have been raised on direc t appea l or i n an original postconviction petition, but wer e not, are waived. People v. B l air
, 215 I ll. 2d 427, 443 (2005); 725 I L CS 5/ 122-3 (West 2010). ¶ 32 Successive postconviction petitions are only al l o we d wh en fundamental fairne ss so require s or when a defe ndant can establish cause and prejudice for failing to r aise the issue in an earlier p ro ce ed i n g. People v. Lee
, 207 I ll. 2d 1, 4-5 (2003). The cause- and-pr ejudice
test is the analy

tical tool that is to be used to deter min e wh ether fundame ntal fairne ss require s that an exception be made to section 122-3 (725 I L CS 5/122-3 (West 2010)), so that

a claim raised in a succe ssive peti t i o n m ay be considere d on its merits. People v. Pitsonbarger , 205 I ll. 2d 444, 459 (2002); 725 I L CS 5/122-1(f) (West 2010). A de fenda nt must meet a “more exacting” or “substantial” showing of cause and prejudice to be grante d leave to file a succe ssive postconviction petition. People v. Edwards
, 2012 I L 111711, ¶¶ 22, 32. A “g ist” of a c laim of ca use and pr ejudice is insuffic ient. Id. ¶¶ 25, 29.

-6-¶ 33 Pursuant to the cause -and- prejudice test, the petitioner must show g ood cause for f ailing
to raise the claimed erro rs i n a prior proce eding and actua l prejudice resulting from the claimed err ors. Pitsonbarger
, 205 I ll. 2d at 460; 725 I L CS 5/122-1(f) (West 2010). “Cause” is defined a s “any

objective f

actor , external to the defe nse, which impede d the petit ioner’s ability to raise a specific claim at the initial post-conviction proce eding .” Pitsonbarger
, 205 I ll. 2d at 462; 725 I L CS 5/122-1(f) (W es t 2010). “Prejudice ” is define d as an err or so infec tious to the proce e d in g s th a t th e r esulting conviction violates due proce ss. Pitsonbarger
, 205 I ll. 2d at 464; 725 I L CS 5/122-1(f) (West 2010). A defe ndant must establish cause and prejudice as to eac h individual claim asser ted in a succe ssive postconviction petition to

esca pe dismiss al under res judicata and waiver principles. Pitsonbarger
, 205 I ll. 2d at 463; 725 I L CS 5/122-1 (f) (West 2010). We revie w the trial court’s denial of a motion to file a

succe ssive postconviction petition de novo

. P eo p l e v. L aPointe
, 365 I ll. App. 3d 914, 923 (2006). ¶ 34 Def

endant arg

ues that his alleg ation of phy sical coer cion satisfies the prejudice prong of the cause -and- prejudice test beca use the use of a phy sically coer ced confe s s io n a s s u b s ta ntive evidenc e of guilt is never harmless err or. In support of his a rgument, defe ndant cites to the

rec ent I llinois Supreme Court dec ision in People v . W rice , 2012 I L111860. ¶ 35 In W

rice
, the defe ndant sought leave to file a second succe ssive postconviction petition challeng ing his conviction s for rape and deviate sexual assault on the basis that newly discovere d evidenc e supported his prior claim that his confe ssion was the product of police
torture a nd brutality

. W

rice , 2012 I L111860, ¶ 1. ¶ 36 Prior to trial, Wrice had filed a motion to suppress statements he made to police arguing that he had been tortured at Are a 2. His motion to suppress was denied. The defe ndant was there afte r convicted of multipl e crimes, which wer e aff irmed on direc t appea l. The defe ndant filed an initial postconviction p et i t i o n in 1991 alleg ing abuse, but his petition was denied. The defe ndant also alleg ed abuse in his first succe ssive postconviction petition that he had been de nied leave to file in 2000. People v . W rice , 406 I ll. App. 3d 43, 52-53 (2010). ¶ 37 L ater , defe ndant sought leave to f ile a sec ond succe ssive petition, where in he relied on the 2006 Report. That petition was also denied. On appea l, this court reve rsed and rema nded for a third-stage ev i d en tiary hearing, holding that the defendant had established cause and prejudice for a succe ssive postconviction petition. W rice
, 406 I ll. App. 3d at 52. This court conclude d that the defe ndant had established cause beca use, while he may have raised torture claims in previous proce eding s, he could not have cited the 2006 Report as corr oboration beca use the 2006 Report had not been rele ased. This court simil arly found that the defe ndant satisfied the prejudice prong of the test becaus e “ ‘[ t] he use of a defe ndant’s coer ced confe ssion a s substantive evidenc e of his guilt is neve r harmless e rror .’ (Emphasis added.) People v. W

ilson
, 116 I ll. 2d 29, 41 (1987).” W rice
, 406 I ll. App. 3d at 53. Specifica lly
, we found that the defe ndant consistently claimed that he was tortured, his claims of being beate n

wer e striking ly

simil ar to those of

other prisone rs i n Are as 2 and 3, the of fice rs implicated by the defe ndant wer e identified in other alleg atio n s o f to r tu re and the defe ndant’s alleg ations

wer e consistent with the 2006 Report’s finding s of torture under the standard of proof beyond

a rea sonable doubt. W

rice
, 406 I ll. App. 3d at 53 (citing People v. Patterson
, 192 I ll. 2d 93 (2000))

. Our supreme court grante d the State’s petition for leave to a ppeal. W rice
, 2012 I L

-7-111860, ¶ 44.

¶ 38 On appea l to the supreme court, the State conce ded that the defe ndant had satisfied the

cause prong of the cause -and- prejudice test beca use the defe ndant had alleg ed and this court had found that the defe ndant could n o t have argued that the 2006 Report corr oborate d his claims of police torture in his prior postc o n v i ct i o n petitions beca use the repor

t was not rele ased until 2006, afte r he f iled his previous petitions. W rice , 2012 I L

111860, ¶ 43. The State only challeng ed this court’s deter mination that the defe ndant had satisfied the prejudice
prong , ar gu i n g that the admission of a coer ced confe ssion was subject to harmless-e rror revie w and that the admission of the defe ndant’s alleg edly coer ced confe ssion was harmless beyond a re asonable doubt. Id . ¶ 49. ¶ 39 After a leng thy discussion of whether a harmless-e rror analy sis should apply to coer ced confe ssions, the court deter mined that its prior holding in W i l s o n was no longe r constitutionally

sound:
“In light of Fulminante
, the rule set forth in W ilson
, that ‘use of a defe ndant’s coer ced confe ssion a s substantive evidenc e of his guilt is never harmless error’ ( W ilson ,116 I ll. 2d at 41), cannot stand as a matter of fede ral constitutional law. That said, we conclude that Fulminante does not mandate that we abandon t h e ru l e in its entirety

. Rather, we

m ay recast the rule as follows: use of a defe ndant’s physically coer ced confe ssio n as substantive evidenc e of h i s gu i l t is never harmless error.” (Emphasis in orig inal). Id. ¶ 71.
In so doing, the court held that a harmless-e rror analysis wa s i n ap plicable to defe ndant’s postconviction claim that h i s confe ssion was phy sically coer ced by police officer s at Area 2. There fore
, defe ndant had satisfied the prejudice prong and the court rema nded the cause to the trial court for the appoint ment of postconviction counsel and second- stag e postconviction proce eding s. Id. ¶¶ 85, 90. ¶ 40 Def

endant contends, like the defe ndant in W rice
, his phy sically coer ced confe ssion was used as substantive evidenc e of his guilt at trial. In addition, he has consistently claimed that he was tortured. His claim of being beate n and the manner in which the alleg ed beating

occur red are strikingly simil ar to the phy sical abuse documented in the 2006 Report as to the
t i m e p eriod, location, manner , method, participa nts and the role of the participa nts in

securi n g co er ced statements from other prisoners in Are as 2 and 3. Detec tives O’B rien, Stehlik and now Detec tive McWeeny wer e identified by the defe ndant. T h es e s ame detec tives wer e also identified in other alleg ations of torture advanc ed by other prisoners in the 2006 Report, which found that tortu re o cc u rr ed under the standard of proof beyond a

rea sonable doubt. Th ere fore
, we agree with defe ndant that based on W rice
, he has established prejudice

. ¶ 41 Howeve r, prejudice alone is not sufficie nt. D efe ndant must a lso e stablish c ause: that is he mu s t i d enti fy an objective fac tor, external to the defe nse, which impeded his ability to raise a specific claim at the initial postconviction proce eding

. Pitsonbarger
, 205 I ll. 2d at 462. Def endant argues that he has satisfied the cause prong

. First, he claims that he rec ently identified Detec tive McWeeny as the unknown office r who s t o p p ed t h e beating and threatened him and this new ev i d en ce supports a new claim. Second, defe ndant contends

-8-that, although he raised the issue that his confe ssion was phy sic al ly coer ced by Detec tive

O’Bri en i n his initial pro se petition, the proce eding s on his petition wer e fundame ntally defic ient. ¶ 42 De fe n d an t ’s ex p l anation that he rec ently identified Detec tive McWeeny i n j ec t s a signific ant fac t into our resolution and analysis of whether he has established the cause prong of the test. Def

endant has alleg ed an objective fac tor that impeded h i s ab i l i ty to raise this claim in an earlier postconviction proce eding

. Although he was not identified by name, Detec tive McWeeny ’s actions wer e asse rt ed in defe ndant’s first postconviction petition wher e he stated that an unknown office r stopped the beating
, told defe ndant to cooper ate or the beating s would continue, and rehe arse d Gre g ory Reed’s stat em en t with him. I dentification of the office r by name would have car ried more weight than simply claiming

an “unknown” detec tive participa ted in the phy sical abuse. Def endant has sufficie ntly pled a consistent claim of abuse at the hands of Detectives O’Brien a n d Stehlik, along with the intervention of a “g ood cop,” McWeeny
, who induced him to cooper ate in order to terminate the beating

. There is littl e doubt that the later identification, by name, of the “g ood cop” adds

a signific ant detail that, when compar ed to the other simil ar abuse claims involving the same named office rs, lends considera ble corr oborative weight to defe ndant’s claim. There fore
, we find that defe ndant has e stablished cause with respec t to his claim. ¶ 43 Def

endant acknow ledg es that he argued that his confe ssion was phy sically coer ced in his initial petition. Def

endant urg es that he has alway s contende d that he was phy sically coer ced into g iving a statement at Are a 3 in 1991. Neve rtheless, defe ndant arg ues that his claim was

never decide d on its merits beca use the proce eding s on his initial petition wer e fundame ntally defic ient in that the trial court err ed in summarily dismiss ing the petition and postconviction appellate counsel was ineffe ctive for failing to raise this issu e o n ap p eal. Specifica lly
, defe ndant contends that he was de nied the opportunity for his postconviction claims to be hea

rd bec ause postconvic tion appellate c ounsel failed to rea d the s uppression hearing transcripts and the 2006 Re p o rt and then argued ag ainst defe ndant in a Finley motion, claim i ng falsely that Detec tives O’B rien and Stehlik wer e not mentioned in the
repor t and that there was not even an arguable link betwee n defe ndant and the Burg e torture scanda l. Consequently
, defe ndant arg ues, cause is established by the defic iency in the prior
proce eding s. ¶ 44 The State c laims that defenda nt cannot now, f

or the fir st tim e, argue the inade quacy of prior postconviction appe llate counse l beca use he did not ra ise this issue in the petition he filed in the circ uit court. Whil e the circ uit court did not addre ss the issue beca use it was not expounded upon, defe ndant clea rly alleg ed ineffe ctive assistance of counsel as an alterna tive basis on which relief could be grante d. We acknow ledg e that we are holding defe ndant to a low pleading threshold here
, but we do so in consideration of the most serious alleg ations of police misconduct raised by defe ndant. See People v. Patterson
, 192 I ll. 2d 93, 139-45 (2000); People v. King
, 192 I ll. 2d 189, 193-99 (2000); People v. Cannon
, 293 I ll. App. 3d 634, 640 (1997) (cour

ts rec onsidering the voluntariness of alleg ed confe ssions that would otherwise be barr ed by res judicata in sever al case s due to the perva sive pattern of criminal conduct by

police off

icer s in Area

2). ¶ 45 In order

to determine whether

defe ndant ca

n establish cause by

arguing a defic iency

in

-9-the prior proce eding s in this case , we must dete rm i n e whether postconviction appellate

counsel provided eff

ective assistance

. We tur

n to the two-par

t test articulated in Strickland

v. W a s hington
, 466 U.S. 668, 687 (1984). People v. Hayne s , 192 I ll. 2d 437, 476 (2000). First, the defe ndant must show that appellate counsel’s failure to raise the issue complained of was objectively unrea sonable. Hayne s , 192 I ll. 2d at 476. Second
, t he defe ndant must demonstrate that appellate co u n sel’s decision not to raise the issue prejudice d defe ndant. Hayne s , 192 I ll. 2d at 476. Appellate counsel is not, howeve r, obligated to raise ever y issue

on appea l. People v. Easley
, 192 I ll. 2d 307, 329 (2000). Moreove r, appellate counsel is not incompetent for failing to raise issues that, in his or her judgme nt, are without merit. Easley
, 192 I ll. 2d at 329

. I n other words, if the underly ing issue is without merit, defe ndant can suffe r no pre

judice from appellate c ounsel’s fa ilure to raise the issue. Id. ¶ 46 We can ea s i l y s ay that postconviction appellate counsel’s failure to raise de fenda nt’s claims on appea l was unreasona ble and that d ef

endant suffere d prejudice

. Def endant filed

a pro se petition in the circ uit court ag ain alleg ing that his confe ssion was phy sically coer ced. That petition was summarily dismiss ed. On appea l, postconviction appellate counsel sought leave to withdraw under Pennsylv ania v. Finl ey , 481 U.S. 551 (1987), on the grounds that there was no link betwee n the documented m i s co n duct under Commander Burg e and defe ndant’s coer cion claim that would chang e the outcom e o f t h e suppression hearing beca use Detec tive O’B rien was not ref ere nced i n t h e Bu rge repor t and defe ndant did not “show that any office r who was investiga ted for misconduct questioned him.” Def endant responde d to postconviction appellate counsel’s Finley motion by stating that the 148 individual compl ai n t s o f p olice brutality ag ainst office rs in Are as 2 and 3 that wer e investigated wer e contained on a compac t disc, which defe ndant could not obtain due to his imprisonment. There fore , he wa s unable to attac h detailed a lleg ations of brutality by other suspects ag ainst Detec tive O’B rien and other detec tives under Burg e’s command. Def endant stated that t his ex p lanation as to the absence of the m issing evidence was ex plained in the
pro se petition he filed in the circ uit court. Notwithstanding, postconviction a p p e ll a te c o u n s el

was grante d leave to withdraw under Finley and the d ismiss al of defe ndant’s petition was aff irmed on appea l. People v. Nicholas
, No. 1-08-06 7 0 (u np ublished order pursuant to Supreme Court Rule 23). Def endant has persua sive l y d emonstrated that eff ective postconviction appellate repr esentation would have established the 2006 Report ref ere nced investigation of Detec tive O’B rien’s phy sical misconduct and, like the defe ndant in W rice
, the failure t o investigate and raise t h e s pecif ic claim on appea l resulted in prejudice to the defe ndant. Had counsel pr o v i d ed effective assistance, it is likely that defe ndant’s first pro

se petition would have been rema nded for second- stag e proce eding s. For the sake of clarity
, our finding that postconviction appellate counsel was ineffe ctive is rele vant to this case only as it establishes ca

use. ¶ 47 Def

endant has established the requisi te c a u s e a nd prejudice nece ssary to esca pe dismissal of his claim that his confe ssion was the result of phy sical coercion. Nicholas has consistently claimed his confe ssion was the product of phy sical abuse which occur red during a period of time and un d er circumstances strikingly simil ar to those documented in the 2006 Report. Howeve r, he has not been aff orded a revie w of his claim that others in simil ar circ umstances have rec eived. We find the interest of justice is best serve d by re manding this issue to the

-10-circ uit court for se cond-stag e proc eeding s and the a ppointment of counsel. ¶ 48 Def

endan t al s o ar gu es that he should have been grante d leave to file his successive petition for postconviction relief beca use he alleg ed a fre estanding claim of actua l innocenc e based on the aff

idavit of Delber

t Hea rd. Hea rd’s aff idavit, defe ndant claims, established his innocenc e beca

use he contra dicted the State’s theory of the case and named J enning s as the shooter. ¶ 49 There are two bases on which the b ar t o s u cce ssive postconviction petitions will be relax ed. The first basis for relax ing the bar is when a petitioner can establish cause and prejudice for the failure to raise the claim earlier. Pitsonbarger
, 205 I ll. 2d at 459. The second basis by which the bar to succe ssive postconviction proceedings m ay be relaxed is known as the “funda

mental miscarriag e of justice” exception. Id. In order to de monstrate a miscarriag e of

justice to excuse the application of the proce dural bar, a petitioner must show

ac tu al i nnocenc e. Id. See also People v. Ortiz
, 235 I ll. 2d 319 (2009) (acknow ledg ing th at leave to f ile a succe ssive postconviction petition may be based on actua l innoc ence alone)

. Under the “funda

men t al miscarriag e of justice” exception, leave to file a succe ssive postconvicti o n petition should be denied only wher e it is clea r, from a revie w of the

succe ssive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colora ble claim of actua l innocenc e. People v. Edwards
, 2012 I L 111711, ¶ 24. In other words, leave to file shoul d only be gra nted when the petit ioner’s supporting d o cumentation raises the probability that “it is more likely than not that no

re as o n ab le j uror would have convicted him in the l ight of the new evidenc e.” Id. (quot i n g Schlup v. De lo , 513 U.S. 298, 327 (1995)). ¶ 50 Evidence is co n s i d er ed newly discovere d when: “(1) it has been discovere d since the trial; (2) it is of such a c hara cter that it could not have been discovered prior to the trial by the ex erc ise of due diligenc e; (3 ) it is materia l to the i ssue but not mere ly cumulative; and (4) it is of such a conclusive char acte r that it will probably chang e the result on retria l.” People v . W

illiams , 295 I ll. App. 3d 456, 462 (1998) (c iting People v

. Molstad
, 101 I ll. 2d 128, 134 (1984))

. “Ge nera lly
, evidenc e is not ‘new ly discovere d’ wh en i t p rese nts fac ts alre ady known to the def

endant at or prior to trial, though the source of the fa cts may have been unknown, unavailable
, or uncooper ative.” People v. Barnslater
, 373 I ll. App. 3d 512, 523-24 (2007)

. ¶ 51 In his affidavit, Hea rd st ated that he overhea

rd defendant talking about the s hooting in the prison law library

. Hea rd aver red that he told defe ndant that in 1991, afte r the Bulls won the NB A Championship, he was driving with his friend to 65th and Wolcott to talk to a man named Michae l Ander son. Whil e sitti ng in the passeng er seat of his friend’ s car at 65th and Wolcott, he saw two men on the corne r of 66th Street shooting at eac h other. One of the men was dark complected and wea ring dark clot h ing and he was about 5 fee t 5 inches to 5 fee t 6 i n ch es tall and weighed about 135 pounds. He was shooting while running backwar d s down 65t h and W olcott until he ran into the pl ay lot. He t h en l ea n ed over the fenc e of the play lot a nd beg an shooting in the direc tion of the gunman on the corne r. The gunman who was shootingover the fenc e in the play lot shot a littl e g irl who was runningin front of the play lot. When the shooting ended, Ander son stated th at it was “Da vid who just shot Tootoo.”

-11-¶ 52 Contrary to de fenda nt’s asser tions, He ard ha s no persona l knowledg e of the identity of either of the two men doing the shooting. At best, his aff idavit sug g ests that he hear d Anderson, in an out-of-c ourt statement, identify David J enning s as one of the shooters. Acc ording ly
, the circ uit court corr ectly ruled that Hea rd’s aff idavit is insufficient to relax the bar to a llow defe ndant to proce ed on this claim.

¶ 53 CONCLUSI ON ¶ 54 Ba sed o n t h e fo re go ing, we aff irm the judgme nt of the circ uit court with respe ct to defe ndant’s actua l innocenc e claim; we reve rse the judgme nt o f t h e circuit court that defe ndant failed to show cause and prejudice for failing to raise in a prior proce eding h i s claim that his confe ssion was phy sically coer ced and rema nd to the circ uit court for secondstag e proc eeding s and direc t the circ uit court to appoint counsel.

¶ 55 Affir

med in part a

nd reve rsed in par

t; cause r emande d with instructions.

-12-