2024 IL App ( 1st ) 220521-U
No. 1-22-0521
O rder filed June 28, 202 4
FIF TH DIVISION NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff

- Appellee,

v. HAROLD OLIVER , Petitioner -Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.
No. 89 CR 5408 Honorable Tyria Walton, Judge, presiding.

PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Lyle and Justice Navarro concurred in the judgment

. O RDER ¶ 1 Held : The circuit court’s dismissal of defendant Harold Oliver’s successive post -conviction petition is reversed and remanded for new second stage po st

- conviction proceedings where Oliver’s post

- conviction counsel provided unreasonable assistance by failing to amend Oliver’s petition to include a claim of actual innocence

. ¶ 2 Defendant Harold Oliver appeals the circuit court’s dismissal of his successive postconviction petition. The issue on appeal is whether Oliver’s post

- conviction counsel provided unreasonable assistance by failing to amend the petition

. For the reasons below, we reverse and remand

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- ¶ 3 BACKGROUND ¶ 4 Oliver appeals from the dismissal of his fifth successive petition for post

- conviction relief from his 1997 conviction for aggravated sexual assault (Ill. Rev. Stat. 1989 ch. 38, ¶ 12 -14(A)(1)) and armed robbery (Ill. Rev. Stat. 1989, ch. 38, ¶ 18

- 2(A))

. A t trial, the victim, S.S. , testified that defendant Harold Oliver raped and robbed her at gunpoint. She stated that she had been on her way to class early in the morning when Oliver came up behind her, grabbed her, and threatened her with a gun. According to S.S., Oliver led her to the vestibule of a nearby apartment building where he vaginally and orally assaulted her. Mildred Williams, a tenant of the building, witnessed the encounter and shouted at the assailant, who took the victim’s leather jacket and fled the scene. Ms. Williams then called the police . S he was later unable to identify Oliver in a lineup. Three of Oliver’s co

- workers testified that Oliver had been at work at approximately the time of the assault. However, the State presented a DNA exper t who testified that there was a high probability that Harold Oliver was the man who had assaulted S.S. ¶ 5 Oliver was initially convicted of these offenses in March 1991, but this court re versed and remand for a new trial

. People v. Oliver ( Oliver I ), 265 Ill. App. 3d 543, 552 (1994). Upon retrial, a jury once again found Oliver guilty of both offenses , and he was sentenced to 60 years for aggravated criminal sexual assault and 30 years for armed robbery, to run consecutively

. This court then affirme d his convictions and sentence on appeal. People v. Oliver ( Oliver II ), 306 Ill. App. 3d 59 (1999). Since 2000, Oliver has continued to challenge those convictions with petitions for post- conviction relief, alternative methods of collateral attack, and req uests for further DNA testing.No. 1 -22-0521

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- ¶ 6 Most recently, Oliver was granted leave to file a successive post

- conviction petition alleging that the State had committed a fraud upon the court by failing to disclose the inadequacy of the FBI DNA database that the State’s expert , Dr. Harold Deadman, had relied on in Oliver’s first trial . He further alleged that the testing methods used by Dr. Deadman at both the first and second trials were not probative of Oliver’s guilt. The circuit court appointed post -conviction

couns el for Oliver who filed a certification that she consulted with Oliver, examined the record, and submitted supplemental exhibits after learning more information about Oliver’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Post -conviction counsel chose to stand on Oliver’s petition rather than amend it. ¶ 7 The S tate moved to dismiss the petition based on res judicata or, alternatively, because Oliver had not shown cause and prejudice. Post -conviction counsel argued that the supplemental exhibits, includin g a letter from the FBI confirming that the DNA database that the State’s expert had used had included numerous duplicate DNA samples, constituted new evidence that Oliver could not have discovered sooner . Thus, because Oliver could never have included thi s information in his prior filings, his claim should not be barred by res judicata . Similarly, because the information was newly discovered and could not have been raised earlier, Oliver could show cause for why he did not argue it earlier. Oliver was prejudiced because “this new information went to the integrity of the forensic testing that was done and brought to light errors that existed in the testing.” The circuit court rejected these arguments and dismissed Oliver’s petition. This timely appeal follow ed. Ill. S. Ct. R. 604(d ) (eff. Oct. 19 , 20 23). ¶ 8 ANALYSISNo. 1 -22-0521

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- ¶ 9 Oliver argues that his appointed post

- conviction counsel provided him with an unreasonable level of assistance because, among other issues, she failed to amend his petition to state a claim of actual innocence. The State contends that there was “no reason to think that petitioner wanted to pursue an actual innocence claim.” On this issue, we are aided by our supreme court’s decision in People v. Addison , 2023 IL 127119, which offered a helpful framework for analyzing claims of unreasonable assistance stemmi ng from counsel’s failure to amend a post

conviction petition to properly present a petitioner’s claims. ¶ 10 The Post

- Conviction Hearing Act allows a prisoner to collaterally challenge his conviction on state or federal constitutional grounds. 725 ILCS 5/122 -1 , et seq. (West 2018) ; see also People
v. Hatter , 2021 IL 125981, ¶ 22. Such a challenge involves a three

- stage process. In the first stage, the circuit court reviews the petition, taking all allegations as true, and dismissing if the petition is “frivolou s or patently without merit.” 725 ILCS 5/122

- 2.1(a)(2). If the petition survives the first stage, it advances to the second, where the State has the opportunity to “file a motion to dismiss or an answer to the petition.” People v. Cotto , 2016 IL 119006, ¶ 27. The circuit c ourt must then determine whether the “ petition’s well

- pled allegations of a constitutional violation, [] if proven at an evidentiary hearing, would entitle petitioner to relief.” People v. Domagala , 2013 IL 113688, ¶ 35. At the third stage, “the court may receive ‘affidavits, depositions, oral testimony, or other evidence,’ to weigh the merits of the petition and determine whether the defendant is entitled to relief.” People v. Allen , 2015 IL 113135, ¶ 22 (quoting 725 ILCS 5/122

- 6 (West 200 8)). Because the case was dismissed at the second stage, we review the dismissal de novo

. People v. Sanders , 2016 IL 118123, ¶ 31.No. 1 -22-0521

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- ¶ 11 It is well

- settled that there is no constitutional right to post

- conviction counsel. See Cotto , 2016 IL 119006, ¶ 29. However, the Act provides a statutory right to post

- conviction counsel in the second stage of proceedings. 725 ILCS 5/122

- 4. This statutory right is limited; a petitioner is entitled only to reasonable assistance rather than effective assistance. People v. Hardi n , 217 Ill. 2d 289, 299 (2005). Thus, the statutory standard is “significantly lower than the one mandated at trial by our state and federal constitutions.” People v. Custer , 2019 IL 123339, ¶ 30. ¶ 12 In order to ensure reasonable assistance, the Illinois Sup reme Court requires postconviction counsel to satisfy three obligations. Ill. S. Ct. R. 651(c). First, the attorney must consult “with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights ***.” Id. Second, the attorney must examine “the record of the proceedings at the trial ***.” Id. Third, the attorney must make “any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” Id. Failur e to satisfy any of these three obligations results in automatic reversal without consideration of the merits of the underlying claim. Addison , 2023 IL 127119, ¶ 33 (“Because counsel did not comply with Rule 651(c), our case law dictates that the cause should be remanded without a consideration of whether the petition’s claims have merit.”). ¶ 13 Counsel may file a certificate stating that she complied with the rule , “or the record as a whole may demonstrate counsel’s compliance.” People v. Pabello , 2019 IL App (2d) 170867, ¶ 25. Compliance creates “a presumption that counsel provided reasonable assistance.” Id. ¶ 24. The burden is then on the defendant to demonstrate “his attorney’s failure to substantially comply with the duties mandated by Rule 651(c).” People v. Profit , 2012 IL App (1st) 101307, ¶ 19. Oliver’s post- conviction counsel filed a certificate stating that she complied with the Rule 651(c)No. 1 -22-0521

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- requirements, thus, we presume that she provided reasonable assistance, and Oliver must overcome this presumptio n. Pabello , 2019 IL App (2d) 170867, ¶ 25. We review whether post -conviction counsel complied with Rule 651(c) de novo

. People v. Suarez , 224 Ill. 2d 37, 41

- 42 (2007). ¶ 14 Oliver contends that (1) his petition clearly showed his intent to argue that the DNA

e vidence at trial was meaningless and that he was actually innocent, and (2) post-conviction counsel was unreasonable for failing to amend the petition and shape his claim into one of actual innocence. To comply with Rule 651(c), post

- conviction counsel mus t make “any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c) ; see also People v. Turner , 187 Ill. 2d 406, 412 (1999)

. Importantly, “[p]ost

- conviction counsel is only required to investigate and properly present the petitioner’s claims.” (Emphasis in original.) People v. Davis , 156 Ill. 2d 149, 164 (1993). In fact, Rule 651(c) does not contain a “requirement that post

- conviction counsel must amend a petitioner’s pro se post- conviction petition” at all, so long as any amendment would be
unnecessary. People v. Turner , 187 Ill. 2d 406, 412 (1999). Nor must post

- conviction counsel “scour the record to uncover claims that were not raised by the def endant.” People v. Milaw , 2012 IL App (1st) 100832, ¶ 33. Thus, post- conviction counsel was excused from “exploration, investigation and formulation of potential claims,” but she was not excused from amending the petition to properly raise Oliver ’s existin g argument. Davis , 156 Ill. 2d at 163. ¶ 15 Oliver’s case is closely analogous to Addison

. There, Addison’s pro se post-conviction petition had included 15 claims, each framed as a claim of ineffective assistance of counsel. 2023 IL 127119, ¶ 23. When the petit ion advanced to second

- stage proceedings, Addison was appointed counsel. Id. ¶ 8. His post

- conviction counsel determined that only five of Addison’s claims wereNo. 1 -22-0521

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- worth pursuing, and his post

- conviction counsel also eliminated any reference to ineffective

as sistance of counsel. Id. ¶ 24. The court determined that counsel acted unreasonably because Addison could only avoid “the procedural bar of forfeiture by casting his claims as ineffective assistance of appellate counsel” and post

- conviction counsel had “ el iminated the necessary allegations that defendant had included in the pro se petition.” (Emphasis in original.) Id. ¶¶ 23, 25. ¶ 16 Here, Oliver’s post

- conviction counsel was aware that Oliver wanted to advance an actual innocence claim. Throughout his pro se petition, Oliver repeatedly reference d his innocence. In the third paragraph he insist ed that he has “consistently maintained his innocence for crimes he did not commit.” And in the following par agraph he assert ed that he “now seeks simple relief to rectify this almost 30 year wrongful conviction.” Further, Oliver’s argument rests on the belief that newly developed DNA testing methods “exclude [] Petitioner as a suspect;” that is, demonstrate his a ctual innocence

. Moreover, if Oliver did not intend to assert a claim of actual innocence, then his petition would fail to allege any constitutional violation. Therefore, Oliver’s post -conviction counsel did not need to search for the actual innocence clai m; Oliver raised the argument, even if he raised it inartfully

. ¶ 17 In order to establish a claim of actual innocence, the supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would
pro bably change the result on retrial. People v. Robinson , 2020 IL 123849, ¶ 47; see also People v. Jackson , 2021 IL 124818, ¶ 41. “Newly discovered evidence is evidence that was discovered after trial and that the petitioner could not have discovered earlier through the exercise of dueNo. 1 -22-0521

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- diligence.” Robinson , 2020 IL 123849, ¶ 47. Evidence is material if it is relevant and probative of the petitioner’s innocence. Id. ¶ 18 Oliver contends that there is new evidence regarding the efficacy of DNA testing methods that would prove his innocence. He asserts that he could provide “case law and literature supportive of the apparent claim that a DNA analysis at only six

- loci was ‘to tally lacking in probative value,’” and ‘ha[s] a great potential for prejudice and for confusing the jury.’” See People v. Smith , 2012 IL App (1st) 102354, ¶¶ 175, 179 (Gordon, J., dissenting). This court has repeatedly noted that DNA evidence is “a type o f evidence that juries and courts alike find highly persuasive.” People v. Wright , 2012 IL App (1st) 073106, ¶ 96. Given the public confidence in the probative value of DNA evidence, if Oliver could cast doubt on the validity of that evidence, he would “pl ace[] the evidence presented at trial in a different light and undercut[ our] confidence in the factual correctness of the guilty verdict.” People v. Coleman , 2013 IL 113307, ¶ 97. ¶ 19 Wi thout the DNA evidence to corroborate the State’s arguments, the evidence against Oliver becomes less convincing. The gun that was used in the robbery and assault w as never found, nor was the leather jacket that the assailant took from the victim. Oliver had an alibi defense; three of defendant’s coworkers testified that Oliver was at work the morning of the assault. And the only witness to the crime other than the victim was unable to identify Oliver in a lineup. However, even if Oliver could successfully undermine the DNA evidence against him, we make no comment about whether these arguments will be successful on remand. We conclude only that Oliver’s actual innocence claim is not “frivolous or patently nonmeritorious;” therefore, ame n ding the petition to include that claim was “necessary” within the meaning of Rule 651 (c). People v. Greer , 212 Ill. 2d 192, 205 (2004) (“If amendments to a pro se postconviction petition would only furtherNo. 1 -22-0521

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- a frivolous or patently nonmeritorious claim, they are not ‘necessary’ within the meaning of the rule.”). ¶ 20 As in Addison , Oliver’s post

- conviction counsel’s failure to shape the claim into its proper form resulted in the claim being procedurally barred. The Post

- Conviction Hearing Act provides one post

- conviction petition as a matter of right. 725 ILCS 5/122

- 1(f) (West 2022). If a defendan t fails to raise an argument in the first petition, it is generally waived for any subsequent petition. Id. § 5/122

- 3. A defendant may bring a successive post

- conviction petition if he can demonstrate cause and prejudice. People v. Taliani , 2021 IL 125891, ¶ 55. But “in a nondeath case, where a defendant sets forth a claim of actual innocence in a successive postconviction petition, the defendant is excused from showing cause and prejudice.” People v. Ortiz , 235 Ill. 3d 319, 330 (2009). Therefore, if Oliver ’s post

- conviction counsel had properly shaped Oliver’s claim into a claim of actual innocence, he would not have needed to demonstrate cause and prejudice. ¶ 21 As to its alternative basis for dismissal , the circuit court erred in concluding that the DNA claim was barred by res judicat a . For res judicata to apply, three requirements must be met: there must be “(1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) identity of cause of action; and (3) identity of parties or their p rivies.” Wilson v. Edward Hospital , 2012 IL 112898, ¶9. The court concluded that each of these requirements was met; therefore, Oliver’s case could not move forward. ¶ 22 The first and third requirements are easily met here. There are myriad final judgments on the merits rendered by courts of competent jurisdiction in this case. Oliver, on numerous occasions, has availed himself of the various procedures for challenging a conviction. Additionally, theNo. 1 -22-0521

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- identity of the parties is the same as in every previous cha llenge that Oliver has brought. The cases have all involved the State against Oliver, with Oliver challenging the validity of his conviction. ¶ 23 The circuit court found that identity of causes of action was satisfied because the case was “still about the fraud misrepresentation with the testimony of Dr. Deadman and the test samples, test results, test findings.” But “[a] cause of action is defined by the facts that give rise to a right of relief.” Wilson , 2012 IL 1128 98, ¶10. This means that “[i]f the same facts are essential to the maintenance of both proceedings or the same evidence is needed to sustain both ***” then there is identity between the causes of action and the claim is barred. Id. Thus, if the causes of a ction can only be sustained with different facts or different evidence, then there is not identity between them. ¶ 24 The circuit court here found that these causes of action were previously disposed of during Oliver’s first petition for post

- conviction relief . In that case, Oliver alleged that Dr. Deadman had “deviated from the FBI protocol using testing procedures that violated the required FBI testing guidelines and standards ***.” Oliver made no mention, however, of a DNA database, nor did he provide detail on how the expert had deviated from protocol. This is not the same cause of action as th e one presented here. While the circuit court correctly determined that the claims all revolved around DNA evidence, the facts and evidence needed to sustain the claim s is different. Where before, Oliver attempted to show that Dr. Deadman’s deviation from protocol was improper and led to his conviction, he now seeks to prove that new, exculpatory evidence proves his innocence

. In the former cause of action, Oliver neede d evidence of Dr. Deadman’s methodology and of the actions he took. T he claim he now asserts is that the DNA testing methodologies used in his trials are no longer viable. Instead of claiming that Dr. Deadman broke from established standards,No. 1 -22-0521

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- Oliver now argues that Dr. Deadman’s testimony could never have been probative of his guilt. Therefore, because each claim involves different facts and different evidence is necessary to prove each claim, the state cannot show identity of causes of action, and Oliver’s actual innocence claim is not barred by res judicata

.

¶ 25 We are careful to reiterate that we make no comment on the merits of Oliver’s actual innocence claim , but, consistent with Addison , Oliver must be afforded the opportunity to have his argument heard. In light of this conclusion, we need not reach the other issues raised on appeal. Accordingly, we reverse and remand for the appointment of new post

- conviction counsel to make the necessar y amendments to Oliver’s petition to adequately present his claims. ¶ 26 III. CONCLUSION ¶ 27 The judgment of the circuit court of Cook County is reversed and remanded with directions. ¶ 28 Reversed and remanded with instructions.