## 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 . Brown , 2013 IL App (1st) 091009

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. ANTHO NY B ROWN, Defenda nt-Appellant.

District & N o. First District, Second D ivision Docke t No. 1-09-1009

Filed Rehea ringdenied April 16, 2013

May 16, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by 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

. ) The dismiss al of defe ndant’s succe ssive postconviction petition alleg ing his actua l innocenc e based on new DNA evidenc e was aff irmed, since an insufficient showing of actua l innocenc e was mad e and postconviction counsel provide d rea sonable a ssistance.

Dec ision Under Review App eal from the Circuit Court of Cook County
, No. 94-CR-4431 (01); the Hon. Vince nt M. Gaughan, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Sean Col lins-Stapleton, all of State Appe llate Def

ender ’s Off

ice, of Chicag o, for a

ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Amy Watroba, and Mary P. Nee dham, Assistant State’s Attorney s, of counsel), for the People

.

Panel PRES IDI NG J USTI CE HARRI S delivere d the judgme nt of the court, with opinion.
J ustices Quinn and Simon concur red in the judgment and opinion.

OP INION

¶ 1 Def

endant, Anthony Br own, appea ls the dismiss al of his succe ssive pet i t i on for r elief under the Post-Convi ction Hea ring Act (Ac t). 725 I L CS 5/122-1 et seq. (West 2010). In his petition, defe ndant made a fre estand ing claim of actua l innocenc e based on new deoxy ribonucleic acid (DNA ) testing perf ormed on sever al piece s of evidenc e in acc ordanc e with section 116-3 of the C o d e o f C ri minal Procedur e of 1963 (Code). 725 I L CS 5/116-3 (West 2000)). After an evidentiar y hearing, the circ uit court found the new evidenc e was not of such a conclusive nature that it would have chang ed the result of defe ndant’s t ri al or aff ecte d any jury ’s deter

mination. In addition to challeng ing the circ uit court’s dismiss al of his postconviction petition, defe ndant alt ernatively arg ues that his postconviction counsel

was ineffe ctive. At issue is whether the circ uit court’s decision is manifestly err oneous and whet h e r p o s tc o nv ic ti on counsel provided defe ndant with a rea sonable level of assistance

. We hold the circ uit court’s finding that defe ndant di d not make a showingof ac tual innocenc e substantial enough to war rant a new trial is not manifestly err oneous. Additionally
, we hold that defe ndant’s postconviction counse l provided a r easona ble level of

assistance

.

¶ 2 J URI SDI CTI ON ¶ 3 On Marc h 11, 2009, the circ uit court d en i ed d ef en d an t ’s succe ssive postconviction petition after c onductingan evide ntiary hearing. O n April 8, 2009, the circ uit court denied defe ndant’s motion to rec onsider. On that same date, defe ndant timely filed his notice of
appea l. Acc ording ly
, this court has jurisdiction pursuant t o I llinois Supreme Court Rule 651(a) . I ll. S. C t. R. 651(a) (e ff. F eb. 6, 2013).

¶ 4 BA CKGROUND ¶ 5 Following a jury trial, defe ndant was convicted of two counts of first degree murder, one count of ag gravated v ehicular hijacking
, one count of ag gravated criminal sexual assault, and one count of

arme d robber

y

.

-2-¶ 6 Def endant’ s Trial and I

nitial Appeal ¶ 7 A detailed acc ount of defe ndant’s trial and initial appea l is wel l s t at ed in our supre me court’s 1998 opinion. People v. Brown
, 185 I ll. 2d 229 (1998). Be low we will discuss those details from defe ndant’s trial and init i al appeal as they perta in to his succe ssive postconviction petition. ¶ 8 On J anuar

y 12, 1994, Reg inald Wil son, Fe licia L ewis, and Steven Fitch wer e in Wi lson’s Chevrolet Blazer automobile when they stopped at a g as station to allow Wil son and Fitch
to use the restrooms. When Fitch returne d to the car , he noticed someone outside the Blazer letting another person in on the passeng er side. When he approa ched the Blazer, the person outside the car asked him what h e wa s looking at. Another person, not Wil son, was in the driver’ s seat. TheBlazer drove of f and F itch called the police. ¶ 9 Z aric e J ohnson, a codef endant and friend of defe ndant’s, testified on behalf of the State
at defe ndant’s trial. J ohnson testified that defe ndant picked him up from his apar tment in the evening

. Alrea dy inside def en dant’s car , a Chevrolet Caprice
, wer e codef endants Scott Chambers, Stanley Hamelin, and Ca rl Wil liams. Hamelin sug g ested that they steal a c ar, a plan defe ndant agree d to. They then stopped at a g as station. As they wer e leaving
, they saw

a Chevrolet Blazer automobile. Hamelin, Chambers, and Wil liams g ot out and went back to the g as station. J ohnson did not noti ce what Will iams was doing , but he did see Chambe rs enter the Blazer whil e Ha m el in stood by the passeng er side. J ohnson also saw a person approa ch the passeng er side of the Blazer bef o re quickly walking back to the g as station. Aft er driving around the block in his Caprice
, defe ndant returne d to the g as station. Def endant, with J ohnson in the backse at, drove awa y

. The Blazer followed defe ndant’s car

. Eventually
, both car s pulled to the s i d e o f the highway

. Def endant left his car and went to talk to the people in the Blazer. J ohnson stayed in def endant’ s car , but de fenda

nt inf ormed him on his return that a pretty woman and a man wer e inside the Blazer. Both car s drove off. ¶ 10 L ater , both car s pulled into a parking lot. Def endant g ot out of his Caprice and talked to Hamelin and Wil liams. Hamelin told defe ndant that a car alar m and stereo wer e in the Blazer while Wil liams told defe ndant there was a compac t disc (CD) player. Def endant asked Hamelin and Wil liams if there was any money inside, to which neither Wil liams nor Hamelin immediately responde d. Def endant then returne d to his car

. Hamelin then walked over and
g ave defe ndant a bundle of money , which defe ndant put in his pocket. Hamelin also showed defe ndant a ring he had take n. ¶ 11 Def

endant, while laughing, told J ohnson that he was g oing to make the woman perf orm oral sex on him. He then g ot the woman from the Blazer and brought her to his car

. He made J ohnson move to the front passeng er seat whi l e d ef en d an t forc ed the woman into the b ackse at of the Caprice

. Hamelin handed J ohnson a Kenwood stereo and a portable C D player stolen from the Blazer. After defe ndant forc ed the woman to perf orm oral sex on him, defe ndant told her to remove her pants. The woman was cry ing. J o h n s o n t o l d her to cooper ate with defe ndant and to stop crying. The woman stated that s he was menstruating and that she had g iven birth in N ovember

. When defe ndant told he r that she was lying, she replied that she was wea

ring a sanitary pad. Def

endant had the woman place her coat on the

-3-car seat befor e having sexual intercour se with h er. Def endant forc ed the woman to have intercour se and oral sex with him sever al more times. Def endant stated that he was g oing to driv e around to find a spot to take W ilson and L ewis t o kill them. Hamelin and Chambers later killed L ewis and Wil son. The fi v e o ffe nders eac h took part of the money rec overe d from the Blazer. After returning to the Blazer, 20 to 25 compac t discs and casse tte tapes wer e

rec overe d, place d in a plastic bag
, an d gi v en to defe ndant. J ohnson and defe ndant wer e

arr ested tog ether

on J anuar

y 13, 1994. ¶ 12 J ohnson acknow ledg ed that he was also charg ed with the crime, but that he enter ed into

a plea agree ment with the State. J ohnson agree d he would plead guilty to one count eac h of first degree murder, arme d robber y , vehic u l ar hijacking
, and criminal sexual assault. In exchang e for

his truthful testimony , the State agree d it would recommend a prison term of 35 year s. Acc ording to J ohnson, he would be elig ible for rele ase, if he rec eived day-for -day
g ood-time cre dit, in 17 1/2 year s. For five months befor e testif yi n g, J o h nson lived in the county jail’s witness protec tion program. He ac kn o wledg ed that when the police first questioned him, he denie d any involvement in the crime. ¶ 13 Other evidenc e prese nted at trial showed t h at at t h e t i m e o f h is arr est, defe ndant possessed approximately $500 in cash on him. Compact discs, casse tte tapes, a Kenwood stereo, a Panasonic CD player, a

n adapte r, an ear

ring stud, a casse tte radio, and videotape s

wer e rec overe d from def

endant’ s Caprice . Found inside the B lazer was an earing, a plastic

came ra, a Panasonic C D player case , and an instruction manual and storag e case for a Kenwood ste reo. ¶ 14 Pamela Fish, from the Chicag o police depar tment crime laboratory , testified that swabs taken from L ewis wer e all neg ative for the prese nce of semen. Fish testified that this was not unusual beca

use “of the three thousand or so criminal sexual assaults that are submitt ed into the laboratory

per y ear , approximately half of them areneg ative for the pre sence of semen or spermatozoa.” She deter mined L ewis to have blood ty pe O. She found a small are a that tested positive for human blood taken from the seat cushions of defe ndant’s Caprice
, but was not able to further test the blood due to its small siz e. She believed it to be a smear- ty pe stain, possibly place d there by a hand. Inside the underw ear defe ndant was wea ring at the time of his arr est, Fis h found a nickel-sized reddish-br own stain. She conclude d this was a smear stain and was a mix ture of seminal materia l and human blood. Fish deter mined defe ndant’s blood ty pe was ty pe O. She attempted to te st the underw ear stain for g enetic marking s, but

was una ble to do so. She testified that the inability to obtain a re sult in the test is g ener ally from one of two cau s es : either the DNA material has degrade d or the sample is too small. She opined that it was “a human bloodstain that contains some seminal materia l.” Half of the United State’s population has ty pe O blood. She could not dete rmine whe n either the stain or the blood wa s place d in the car seat or de fenda

nt’s underw ear

. ¶ 15 Dr. Ba

rry L ifschultz, a staff patholog ist with the Cook County medical examiner’s of f ic e, testified reg arding the autopsies he perf ormed on the two victims. S wab s were taken of L ewis’s oral, rec tal, and vag inal cavities. A sanitary napkin was also rec overe d. He did not find any evidenc e of se x ual trauma to L ewis’s g enital ar ea. ¶ 16 Scott Roc h o wi cz , a m em b er o f t h e m i croscopic trac e evidenc e unit of the crime

-4-laboratory o f t h e C hicag o police depar tment, testified that hairs rec overe d from L ewis’s cl o t hing wer e simil ar to her own hairs. Hairs rec overe d from defe ndant’s clothi n g we re simil ar to his own hair s, including ha irs found in his underwe ar. ¶ 17 The jury found defe ndant guilty of the first degree murd er s o f W i l s o n and L ewis; the

arm ed robber

y and aggravated vehicular hi jacking of W ilson, and the ag gravated criminal

s ex u al assault of L ewis. The circ uit court sentenced defe ndant t o death for hi s first degree murder convictions, and concur rent 30-year prison terms for h is ag gravated vehicular hijacking and ag gravated criminal assault convictions. The circ uit court merg ed defe ndant’s conviction for a

rmed robbe ry

with his vehicular hijac king c onviction. ¶ 18 On ap p ea l, defe ndant alleg ed the State failed to prove him guilty beyond a re asonab l e doubt. In particula

r, he alleg ed that J ohnson’s testimony was insufficient to support the jury ’s verdic t. Def

endant additionally argued that the State made improper comments during both opening and closing argument, that several err ors occur red at his sentenc ing hearing, and that the I llinois death penalty statute (720 I L CS 5/9-1 (West 1994)) was unconstitutional. Our
supreme court aff

irmed defe ndant’s convictions and senten c e

. O n June 24, 1999, defe ndant’s petition for writ of certiorariwas de nied. Brown v. Illinois , 527 U.S. 1041 (1999) (ta ble).

¶ 19 First Postconviction Petiti on ¶ 20 On J anuar

y 15, 1998, defe ndant filed his first postconv i ct i o n p et i t i o n challeng ing his
sentenc e. The circ uit court dismissed the pe tition, and de fenda nt appea led. On January

10, 2003, defe ndant’s sentenc e was commuted to natura l life in prison. Def endant’ s appea l was dismiss ed as moot.

¶ 21 Motion for For ensic Te sting ¶ 22 On August 1, 2001, defe ndant filed a motion for fore nsic DNA testing of his box er shor ts pursuant to section 116-3 of the Code. 725 IL CS 5/116-3 (West 2000). The circ uit court grante d defe ndant’s motion. On J une 18, 2002, defe ndant filed a motion seeking additional DNA testing on the vag inal, oral and rec t al s wab s taken from L ewis, and the sanitary pad taken from her clothing. The circ uit court grante d defe ndant’s motion. On J une 27, 2002, defe ndant requ es t ed addit ional DNA testing be done on the car seat of the C apric e, which the circ uit court grante d.

¶ 23 Def endant’ s Successive Petition ¶ 24 On J une 4, 2001, defe ndant filed a succe ssive postc o n v i ct i o n p et i t i o n , i n which he alleg ed actua l innocenc e based on the new DNA testing. He amende d his succe ssive petition

on Marc h 21, 2003. In his succe ssive petition, defe ndant outlined the new DNA evidenc e that he alleg ed supported his position. First, DNA testing was perf ormed on defe ndant’s blue and white box er shorts and a materia l cutting from those box er shorts. Reg arding the non-sper m fra ction of the blue a

nd white boxer shorts, the data indicated the following : “that DNA from more than one individual was obtained from the non-sper m fra ction of the blue and white box er shorts. The DNA obtained from this sample contains DNA from

-5-a male. The primary DNA profile obt ained from this sample m atche s the DNA profile obtained from th e swab labeled [defendant]. Fe licia L ewis is excluded as the primary

source of the DNA obtained from this sample. Using nine of thirteen loci, Fe licia L ewis
cannot be excluded as a seconda ry source of the DNA obtained from this sample. No conclusion can be made reg arding Fe licia L ewis and this sample at the rema ining loci.” The approximate fre quencie s in the Cauca sian, Afric an Americ an, and Hispanic populations of the combination of all possible ty pes of the nine loci included in the DNA ty pes repor ted, making no assumptions reg arding the number of DNA source s, wer e 1 in 330,000 unrelated Cauca sian individuals; 1 in 510,000 unrelated Afric an Americ an individuals; and 1 in 330,000 unrelated Hispanic individuals. ¶ 25 The DNA obtained from the sperm fra ction of the blue and white box er shorts was fr om

a male. The DNA profile of this sample matched defe ndant’s DNA profile. L ewis was excluded as the source of the DNA from the sperm fra ction of the blue and white box er shorts. ¶ 26 The DNA from the non- sperm fr action of the materia l cutting showe d the following :

“That DN A fr o m more than two individuals was obtained from the non-sper m fra ction of the material cutt i n g l ab el ed ext. box er shorts. The DNA obtained from this sample contains DNA from a m al e an d DNA from a fema le. Fe licia L ewis cannot be excluded as a source of the DNA obtained from this sample. U sing te n of thirteen loc i, [defendant] cannot be excluded as a source of DNA ob tained from this sample. No conclusion ca

n be made reg arding[defendant] and this sample at the re maining loc i.” The approximate fre quencie s in the Cauca sian, Afric an Americ an, and Hispanic populations for this sample, making no assumptions reg arding the number o f DN A source s, wer e 1 in 71,000 unrelated Cauca sian individuals; 1 in 18,000 unrela te d A f ric a n Americ a n in dividua ls; and 1 in 88,000 unre lated Hispanic individuals. ¶ 27 The DNA obtained f rom the sperm fra ction of the mate rial cuttingshowed it was f rom a male. T he report stated:
“Data wer e obtained from this sample at four of nine loci. Using three of these four loci, [defendant] cannot be excluded as the source of the DNA obtained from this sample. No conclusion can be made reg arding [defendant] and this sample at the rema ining loci. Fe licia L ewis is excluded as a sour ce of the DNA obta ined from this sample.” ¶ 28 For ensic DNA testing was also done on the car seat from defe ndant’s Caprice ; the ora l,
vag inal, and rec tal swabs taken from L ewis; and the sani t ary napkin rec overe d from the autopsy

. The repor

t contained no conclusions reg arding the car seat, “du e t o insufficient
amount of amplified product.” The non-sper m fra ctions of the oral swab, vag inal swab, rec tal swab, and sanitary napkin matched L ewis. The DNA obtained from the sperm fra ction of the oral swab matched L ewis. “No DNA profile deter mined to be fore ign to Fe licia L ewis was detec ted” from the sperm fra ction of the oral swab. The DNA from the sperm fra ction of the
vag inal swabs indi cate d “DNA from more than one individual,” a m al e and a fema le. The primary DNA profile matched L ewis, while defe ndant was “excluded as a source of the DNA obtained” from the sperm fra ction o f t h e v agi n al swabs. The DNA testing of the sperm fra ction of the rec tal swab was from a fema le, but no further conclusions wer e made “due to

-6-an insufficient amount of amplified product.” The DNA testing of the sperm fra ction of the

sanitary napkin showed the following : “DNA from more than one individual was obtained from the sperm fraction o f t h e sanitary napkin. The DNA obtained from this sample contains DNA from a male and DNA f rom a fe male. The primary DNA profile obt ained from this sample m atche s the DNA profile obtained from the blood sw at ch l ab eled Fe licia L ewis. [Defenda nt] is excluded as the sourc e of the DNA obtaine d from this sample.” ¶ 29 Def

endant alleg ed that the DNA evidenc e was new, it having been discovere d in 2002 and 2003. He asser

ted it was noncumulative and that the DNA technology used in the new
tests was not a

vailable at his tria l. D efe ndant also arg ued that he used r easona

ble dilige nce in obtaining the new evidenc e. He argued that it would probably chang e the result of his trial
upon retria l beca

use it “is n o t m ere ly impeaching Z aric e J ohnson’s cre dibility , but is also
p ro b at i v e of a fac tual situation differ ent from the one prese nted in Z aric e J ohnson ’s testimony ; wher eas Z aric e J ohnson testified [defendant] rape d Fe lici a L ewis, the DNA evidenc e is probative of a fac tual situation wher e someone other than [defendant] rape d Ms. L ewis.” Def

en d an t as s erted this evidenc e went to the ultimate issue of whether he was prese nt and involved in the crimes charg ed. He char acte rized J ohnson’s testimony as “the

corne rstone of the State’s case ag ainst” h i m

. He pointed to statements made by the
prosec ution in opening and cl o sing arguments reg arding J ohnson’s testimony

. Def endant pointed out that at trial, Fish testified that she did not find any sper m o n the vag inal swab taken from L ewis. Howeve r, the new DNA evidenc e showed sperm, from a man, but not defe ndant, on the vag inal swab. Def endant argued that the sperm found on the sanitary napkin during the new DNA t es t s t h at did not match his DNA showed that he was not prese nt during the commission of the crime. Reg arding the stain on defe ndant’s box er shorts, defe ndant argued th at “[w]hi le the DNA evidenc e cannot exclude Fe licia L ewis as a contributor to th e DN A found in the stain on the box ers, she cannot be included either.” Ba sed on this evidenc e, defenda nt reque sted an evidentiary hearing, that his conviction be

vacated, and that a

new tria l be orde red. ¶ 30 On April 21, 2003, the State moved to dismiss defe ndant’s second petition arguing that the new DNA testing prese nted an even strong er case of defe ndant’s guilt in the crimes for which he was convicted. The State attache d to its motion a st atement from C h am b er s that he made to the police on J anuar y 14, 1994. In the statement, Chambers states both defe ndant and Wil liams sexually assaulted L ewis on the date of the crime. The State argued that the fac t that defe ndant’s DNA was excluded from the sanitary napkin, and the vag inal, oral, and

rec tal swabs was inconclusive and did not show that he did not sexually assault L ewis. The State pointed out that defe ndant may have worn a condom or not ejac ulated and argued that the emission of semen is not nec essar y to prove sexual penetr ation. ¶ 31 On J une 5, 2003, the circ uit court dismiss ed defe ndant’s second petition. The court found that the new evidenc e would not ha ve had a meaning ful eff

ect on the trial. The court made the following fi n d i n g “[l] ooking at the totality of the fac ts that wer e prese nted, the

corr oboration of Mr. J ohnson’s testimony
, and ag ain, the evidenc e that was in this case , I find there is not a substantial showing of a violation of [defendant’ s] constitutional rights to merit relief

.” De fenda

nt timely appea led.

-7-¶ 32 Appea l of Def endant’ s Successive Petition ¶ 33 On De ce mb er 2
, 2005, this court reve rsed the order of the circ uit court dismissing defe ndant’s succ essive postconviction petition and re manded the matter f or an e videntiary hearing. People v. Brown
, No. 1-03-1895 (2005) (unpublished order under Supre me Court Rule 23). Def

endant argued that he had made a substantial s h o wi ng of a violation of his constitutional rights which established his actua l innocenc e based on the new DNA results. This c ourt noted that the DNA testing showing neg ative or nonmatch results excluding the victim as the source of the DNA from the spe rm fra ction of the material cutting and box er shorts, in a ddition to the DNA results excluding defe ndant as the source of the DNA found in the vag inal swabs and sanitary napkin, wer e favor able to defe ndant an d war rante d an evidentiar y hearing. This court agree d wi th t h e State that the results wer e “not clea rly exculpatory .” This court, howeve r, char acte rized t he evidenc e “as being ‘somewhe re inbetwee n’ clea

rly exculpatory and clea

rly inculpatory .” Id. (quoting People v. Dodds
, 344 I ll. App. 3d 513, 519 (2 003). In conclusion, this court direc ted the circ uit court to conduct an evidentiar y hearing to “conside r the trial evidenc e in ligh t o f t h e n ew DNA results to deter mine whether they are so conclusive to war rant a new trial” and to “dec ide whether the DN A ev i d en ce was a signific ant fac tor at trial and whether it was more likely than not t o have a ffe cted the jur

y ’s deter mination.”

¶ 34 Remand Proce eding s ¶ 35 On rema

nd, at the evidenti ary h eari n g, d efendant prese nted six stipulations that he
enter ed into with the State befor e resting

. We will discuss eac h stipulation in turn, below. Meg an Nef

f, a DNA analy st at “the I SP For ensic Service s Center” and an expert in fore nsic DNA an al y s i s , would have testified that it was her opinion, within a rea sonable degree of scientific certainty
, that defe ndant’s codef endants Hamelin, Chambers, J ohnson, and Wil liams can all be excluded as the source of the male DNA found on the vag inal swabs and the sanitary

napkin. ¶ 36 Tom Fe dor, a fore nsic serolog ist at t h e s er o l o gi ca l re s ear ch institute in Richmond, C al i fo rn i a, an expert in the field of fore nsic DNA analy sis, would have testified that h e conducte d statistical calc ulations in this case

. He rec eived DNA data from the vag inal swabs, sanitary napkin, and blood standard from L ewis and DNA data from a bucca l swab standard collected fr o m Hu dson. Fe dor would have opined, with a rea sonable degree of scientific

cer tainty
, “that a minor male DNA profile can be deduce d from the mix ture of DNA profiles identified in the vag inal swabs” a nd that “Hudson is not excluded as the sole sourc e of the minor profile from the vag inal swabs.” Fur ther, “[a]pprox imately 1 in 117,000 unrelated individuals is not excluded as the sole minor contributor in the vag inal swabs.” He would have further opined “that a minor male DNA profile can be deduce d fr o m t he mix ture of DNA profiles identified in the sanitary napkin” and that “Hudson is not excluded as the sole

source of the mi nor profile from the sanitary napkin.” He would have further testified that “[a]pprox imately 1 in 400,000 unrelated individuals is not excluded as the sole m i n or contributor in the sanitar

y napkin.”

-8-¶ 37 Kathy Kozak, a fore nsic scientist in the fore nsic biology and DNA section of the fore nsic

scienc e cente r of the I llinois State Police fore nsic scienc es command, an expert in f orensic DNA analy sis, would have testified that she rec eived the DNA data for the vag inal swabs and sanitary napkin. She would have testified that “[a] search of the DNA ty pes attributed to the minor male DNA donor in these samples indicated that an individual by the name of Antoine Hudson may

be a possible donor

of the minor male DNA profile identified” in the vaginal swabs and sanitary napkin. Fur ther, “[t] he minor male DNA profile sear ched from this case

was not linked to any other convicted offe nders or case samples stored in the DNA databa ses

sear ched.” ¶ 38 Amber Moss, a DNA analy st from Orc hid Cellmark, an expert in fore nsic DNA a naly sis, would have testified that i n 2 0 07 she rec eived the bucca l swab standard from Hudson. Cellmark personne l g enerated a DNA p ro fi l e from the swab suitable for comparison
purposes. She also obtained the vag inal swabs, sanitary napkin, and blood st an d ar d from L ewis. M o s s woul d have opined, with a rea sonable degree of scientific cer tainty
, that “Hudson cannot be excluded as a possible donor to the mix ture of DNA profiles identified in the vag inal swabs.” She would have further stated that “[u] sing all possible combinations of all possible ty

pes in the mix ture *** approximately 1 in 515 Bla ck, 1 in 2,703 Cauca sian, 1 in 2,300 Southwest Hispanic, 1 in 2,159 Southeast Hispanic, or 1 in 8,741 Gene ral Asian unrelated individuals cannot be excluded from h av i n g contributed to the mix ture of DNA profiles identified on the vag inal swabs.” Moss would also opine that Hudson could not “be excluded as a possible d o n o r to the mix ture of DNA profiles identified in the sanitary napkin.” Moss would have stated “that approxim ately 1 in 360 Bla ck, 1 in 493 C auca sian, 1 in 676 Southwest Hispanic, 1 in 466 Southeast Hi s p an i c, o r 1 in 2,535 Gene ral Asian unrelated individuals cannot be ex cl u d ed from having contributed to the mix ture of DNA profiles identified in the sa nitary napkin.” ¶ 39 Br adfor d L ee, an i nvestig ator employ ed by the C ook County State’s Attorney ’s offic e, would have testified that he collecte d the bucca l swab standard taken from Hudson’s mouth, and inventorie d it in the proper va ult, before sendingit to Orchid Cellmark. ¶ 40 W en dy M agee , a DNA analy st at Cellmark Diagnostics, an expert in fo re n s i c DN A analy sis, would have testified that she receive d, among other items, the vag inal swabs and
t h e sanitary napkin. Cellmark personne l conducte d DNA analy sis on these items. Mage e would have te stified that “[a]n extraction technique was used in an attempt to separate the
sperm cells contained in these items from the o t h er ty pes of cells in eac h sample. This technique results in a ‘non-spe rm’ sample tube and a ‘sper m’ sample tube which are profiled
separ ately .” For comparison purposes, she obtained L ewis’ blood standard and defe ndant’s bucca l swab. Mag ee would have made, within a rea sonable degree of scientific cer tainty
, the following opinions: “that a fema le DNA profile was identified in the non-sper m fra ctions of the vag inal swabs and sanitary napkin which matches the DNA profile from Fe licia L ewis”; “that a mix ture of DNA profiles was identified from the sperm fra ction of the vag inal swabs which contains DNA from a male and a fema le”; “that the primary profile from the s perm fra ction of the vag inal swabs matches the DNA profile of Fe licia L ewis”; “that [defendant] can be ex cluded as the s ource of the male DNA obtained from the v agi nal s wabs” ; “that a mix ture of DNA profiles was identified in the sperm fr action of the sanitary napkin which

-9-contains DNA from a male and a fema le”; “that the primary profile from the sperm fra ction

of the sanitary napkin matches the DNA profile of Fe licia L ewis”; and “that [defendant] can be excluded as the source of the male DNA obtaine d from the sa nitary napkin.” ¶ 41 The State provided an aff idavit from Antoine Hudson, L ewis’s husband. Hudson attested that he marrie d L ewis in S ep t ember of 1992 and that L ewis was in the Army during their marria g e and stationed outside of I llinois

. He stated that “[a]lthough we rema ined leg ally marrie d, we went through periods of time wher e we did not see one another .” They did, howeve r, see eac h other when L ewis was in the Chicag o are a. Hudson attested that “L ewis and I maintained a sexual relationship in spite of the times we lived apart.” He made the following statement: “I rec all Fe licia L ewis returning to the Chicag o are a from milit ary service in late 1993. I did see Fe licia L ew i s af t er her return home. We eng ag ed in sexual intercour se periodica lly from the time she returne d until she was murdere d in J anuar y 1994.” The State argued that Hud s o n ’s affidavit rea sonably explained the prese nce of Hudson’s DNA on the va g inal swab a nd sanitary

napkin. ¶ 42 Af

t er t h e evidentiar

y hearing, the circ uit court denied defe ndant’s petition. The c ourt noted “[t] here is nothing linking Mr. Hudson with any of the events on the day of the trag edy

or th e following early morning s” befor e finding that the new evidenc e does not impeach J ohnson’s t ri al t est imony

. In conclusion, the circ uit court judge stated: “Weighing all the evidenc e and in light of the DNA r esults, I do not find that the evidence [ is] so conclusive *** to war

rant a new trial. I al s o find that it’s not likely that this would aff ect any jury ’s deter mination.” ¶ 43 On April 9, 2009, defe ndant filed a motion to rec onsider, which the circ uit court de nied on April 8, 2009. Def

endant timely

appea led.

¶ 44 ANALYSI S ¶ 45 Be fo re t h i s court, defe ndant argues that he should be g iven a new t ri al b ec au s e postconviction DNA testing produce d evidenc e that would have undermined the testimony of the State’s key witnesses, Pamela Fish and Z aric e J ohnson, thus a ltering the outcome of h i s t ri al. Specifica lly
, defe ndant claims that the postconviction DNA testing contra dicted Fish’s testimony that no seminal materia l w as prese nt on Fe licia L ewis’s vag inal swab and J ohnson’s testimony that defe ndant repe atedly sexually assaulted L ewi s

. Acc ording to defe ndant, Fish’s te stimony would be under

mined due to the new DNA evidence showing that Antoine Hudson, L ewis’s husband, was the source of the DNA on the vag inal swab and sanitary pad. Reg arding J ohnson’s testimony
, defe n d an t asser ts that at a new trial, jurors would lear

n that although the new DNA evidenc e could not exclude L ewis as the source of the DNA found on Br own’s underw ear , the DNA could have been from a woman of Cauca sian, Afric an Americ an, or Hispanic orig in. Def endant asser

ts that our revie w should b e de n ovo beca

use no live witness testimony was prese nted at his evidentiar y heari n g. Acc ording to defe ndant, the circ uit court was not require d to make any cr ed i b ility deter minations because the evidenc e pre sented c ame in the f orm of stipulations. ¶ 46 In the alternative
, d ef en d an t ar gu es t h at we should rema nd the matter for a new evidentiar y hearin g d

u e to h is p o s tc o nviction counsel’s “unre asonable prese ntation of critica l

-10-DNA evidenc e.” Specifica lly
, defe ndant argues that “[t] o the extent post-conviction counsel

failed to contra st the critica l probative differ ence betwee n a nine-loci match and a thirteenloci match, counse l rende red unr easona ble assistance at the evide ntiary hearing.” ¶ 47 In response , the State argues that the circ uit court properly denied defe ndant’s succe ssive postconviction petition beca use defe ndant failed to make a substan t i al showing of actua l innocenc e. Specifica lly
, the State argues that the new DNA evidenc e does not substantially show that def

en d an t did not commit the s exual assaults or the other offe nses for which he

was convicted. The State stresses that there is no require ment that defe ndant’s DNA has to be among the evidenc e of the crimes to establish his guilt. Fur thermore
, there is no conflict in the results of the new DNA testing that would lead to a differ ent o u t co me at trial. The State disputes defe ndant’s contention that our review shoul d be de novo

. The S tate asserts that the manifest err or standard of revie w is proper wher e this court revie ws the circ uit court’s postconviction finding s af t er an evidentiar

y hearing. The State also maintains that defe ndant’s postconviction counse l rende red de fenda nt rea sonable a ssistance.

¶ 48 Actual Innocenc e ¶ 49 The Act allows criminal defendants to challeng e their conviction or sente nce ba sed on substantial deprivations of their constitutional rights. People v. Pee ples
, 205 I ll. 2d 480, 509. (2002). Petitions under the Act are considere d a collater al attack on a fin al j u d gm ent as opposed to a substitut e for an appea l. People v. Edwards
, 2012 I L 111711, ¶ 21. There fore
, res j udicata bars issues previously decide d o n ap peal. People v. W illiams
, 209 I ll. 2d 227, 232 (2004). Simi larly
, issues not raised, even though they could have been raised on appea l,

are waived. Id. The Act contemplates the filing of only one postconviction proce eding
, and I llinois courts disfavor succe ssive postconviction actions. Edwards
, 2012 I L 111711, ¶¶ 22, 29. The relax ation of the prohibition of succe ssive postconviction proce eding s, howeve r, is
proper in two instances. Id. ¶ 22. Under the cause -and- prejudice test, as codified by section 122-1(f ) of the Act, a petitioner must establish cause -and- prejudice for not raising the claim

earlier. Id. ; 725 I L CS 5/122-1(f) (West 2010). In the second instance, under the “ ‘fundamental miscarriag e of justice’ exception,” a petitioner has to show actua l innocenc e. Edwards
, 2012 I L 111711, ¶ 23 (quoting People v. P itsonbarger
, 205 I ll. 2d 444, 459 (2002)) ; see also People v. Ortiz
, 235 I ll. 2d 319, 330 (2009) (“where a defe ndant sets forth

a claim of actua l innocenc e in a succe ssive petition, the defe ndant is excused from showing

cause and pre

judice”) . In this case, de fenda nt makes an a ctual innoce nce c laim. ¶ 50 The due proce ss clause of the I llinois Constitution a llows postconviction petitioners to make fre estanding claims of actua l innocenc e based on newly discovere d evidenc e. People

v. W ashington
, 171 I ll. 2d 475, 489 (1996). “F or new evide nce to war rant a new trial, the evidenc e (1) must be of such conclusive char acte r that it will probably chang e the result on retria l; (2) must be materi al t o the issue, not mere ly cumulative; and (3) must have been discovere d since trial and be of such char acte r that th e d efendant in the exercise of due diligenc e could n o t h av e discovere d it earlier.” People v. Orange
, 195 I ll. 2d 437, 450-51 (2001). “Evidenc e is considere d cumulative when it adds nothing to what was alre ady befor e the jury .” Ortiz
, 235 I ll. 2d at 335. De fe n d ant bear s the burden of making a substantial

-11-showing of a deprivation of constitutional righ t s at an evidentiar y hearing. People v. Coleman , 206 I ll. 2d 261, 277 (2002).

¶ 51 Standard of Re view ¶ 52 Ty

pically
, the standard of revie w for the dismissal of a postc onviction petition without

an evidentiar

y hearing is de novo , wher eas the dismiss al of a postconviction petition afte r an evidentiar y hearing is re viewed f

or manife st error

. People v. Johnson
, 206 I ll. 2d 348, 357 (2002). Recently
, our supreme court held in People v . English that de novo revie w may be
appropriate in some circ umstances. P eo p le v. English
, 2013 I L 112890, ¶¶ 23-24. Our
supreme c ourt explained:
“The Act provides a three -stag e proce ss for adjudicating postconviction petitions. [C itation.] *** After an evidentiar y hearing wher e fac t- fi n ding and cre dibility deter minations are involved, the circ uit court’s decision will not be reve rsed unless it is manifestly erroneous. [C itation]

. Howeve r, if no such deter minations are nece ssary at the third stag e, i.e.
, no new evidenc e is prese nted and the issues prese nted are pure questions of law, we will apply a de novo standard o f re view, unless the judge presiding over postconviction proce eding s has some specia l expertise or familiarity wit h defe ndant’s trial or sentenc ing and that familiarit y has some bearing upon dispositi on of the postconviction petition. [ Citation.]
At the th i rd-stage hearing in this case , the circ uit court heard no new evidenc e; instead, the court revi ew ed t h e trial transcripts and heard arguments of counsel. In addition, the judge presiding over the hearing did not preside over defe ndant’s trial and, thu s , h ad no specia l expertise or familiarity with defe ndant’s trial. Under these circ umstances, the sta

ndard of revie w is de novo . [C itations.] ” Id. ¶¶ 23- 24. 1 ¶ 53 I n t h i s ca s e, the parties do not dispute that an evidentiar y hearing was held. Unlik e i n English
, the circ uit court in this case did revie w new evidenc e, i.e.
, the new DNA evidenc e prese nted by defe ndant. Additionally
, the circ ui t j u d g e presiding over defe ndant’s postconviction proce eding s was the same circ uit judge who presided over defe ndant’s orig inal trial. Acc ording ly , we hold that for this case, the a

ppropriate standard of

revie w is the manifestly err oneous standard of revie w. “Manife st err or is that which is ‘cle arly evident, plain, and indi sputable.’ ” People v. Johnson
, 206 I ll. 2 d 348, 360 (2002) (quoting People v. Ruiz , 177 I ll. 2d 368, 384-85 (1997)). ¶ 54 We hold the circ uit court’s fi n d i n g th at d ef endant did not make a showing of ac tual innocenc e substantial en o ugh to war rant a new trial is not manifestly erroneous. The new

J ust ic e Fre eman, i n h is con curri ng o pin ion in Engl is h
, dis put ed tha t the pro cee din gs h ad 1

even re ach ed the eviden ti ary hea ri ng st age unde r the Act

. Peop le v. Engl is h
, 2013 I L 1128 90, ¶ 60 (Fr eeman, J
., spe ci al ly con curri ng, j oin e d by Burke, J .). J ust ic e Fre eman cha ra ct er ized the
p r o c e e d i ngs as sec ond-stage pro cee din gs, whic h app ly de nov o re view to the ci rc uit cou rt ’s le gal det erm ina ti on m ade on the ple adi ngs. Id

. J ust ic e Fre eman add it ion al ly st at ed tha t “the fa ct tha t the j udge di d no t p re si de o ver the o ri ginal tr ia l h as no rel evance to the st and ar d of review employed.” Id.

-12-DNA evidenc e does not exonerate defe ndant beca use it does not show that he did not commit the crimes he wa s charg ed with. We note that “DNA, in and of itself, does not c onfirm the commission of a crime; rathe r, it confirms an individual’s identity .” People v. Rivera
, 2011 I L App (2d) 091060, ¶ 31; see also P eo p l e v. Hunter
, 358 I ll. App. 3d 1085, 1093 (2005) (quoting People v. Hall
, 352 I ll. App. 3d 537, 549 (2004))

. Fur thermore
, DNA evidenc e that does not match a defe ndant’s DNA does not exonerate the defe ndant. Rivera
, 2011 I L App (2d) 091060, ¶ 31; see also P eo p l e v. Allen
, 377 I ll. App. 3d 938, 944 (2007) (stating that “[t] he absenc e of defe ndant’s DNA on the gun would not conclusively establish that he did not ha ndle the gun or that he did not commit the *** robber y”). I n this case, the ne w DNA evidenc e, at best, only establishes that the DNA of Hudson, L ewis’s husband, was found on the vaginal swab an d the s anitary napkin and that defe ndant can be ex cluded as a possi ble contributor of DNA on the vag inal swab and sanitary napkin. Def endant prese nted no other evidenc e that Hudson had any involvement at all in the crime s

. The State, howeve r, prese nted Hudson’s aff

idavit in whic h he atteste d that, upon L ewis’s return to the Chicag o

ar ea in late 1993, Hudson and L ewis “eng ag ed in sexual intercour se periodically fr o m t h e time she returne d until she was murdere d in J an u ary o f 1994.” The State prese nted a plausible explanation for the prese nce of Hudson’s DNA on the swab and the sanitary napkin that defe ndant did not ref ute. W e reiter ate that defe ndant has the burden of making a substantial showing of a deprivation of constitutional rights at an evidentiar y hearing. Coleman , 206 I ll. 2d at 277. Defe ndant fa iled to meet that burde n here

. ¶ 55 Additionally
, we hold that the new DNA evidenc e did not undermine either J ohnson’s

or Fish’s testimony from the trial. Fish testified that she was unable to find seminal materia l. The discove ry of Hudson’s DNA doe s not undermine F ish’s testimony beca use it does not help or harm defe ndant. All it shows is that DNA from an admitted sexual partne r of L ewis’s

was found. Fur

thermore
, Fish testified that it was not unusual to not find the prese nce of

semen beca

use “of the three thousand or so criminal sexual assaults that are submitt ed ***, approximatel y h al f of them are neg ative for the prese nce of semen or spermatozoa.” Def endant in no way ref

utes this proposition. He does not show that the absenc e of his DNA exonerates him. ¶ 56 We also fail to see how the new DNA evidence u n d erm i nes J ohnson’s testimony . We
note that defe ndant alre ady challeng ed J ohnson’s testimony on direc t appea l. Brown
, 185 I ll. 2d at 247-51. Our supreme court held that J ohnson’s testimony was sufficie ntly corroborate d
to provide a sufficie nt basis for the jury ’s verdic ts. Id. at 249. Nonethele ss, defe ndant argues that the new DNA evidenc e imp eaches J ohnson’s testimony that defe ndant repe atedly sexually assaulted L ewis. Howeve r, like defe ndant’s argument reg arding Fish’s testimony
, defe ndant has not prese nted any eviden c e th a t r ep e a te d s e xu al assaults incre ase the likelihood that defe ndant’s DNAwould be found. Rather, defe ndant’s argument is pur ely speculative which does not e stablish that the outcome of his trial would have be en diffe rent. People v

. P ec o raro , 175 I ll. 2d 294, 315 (1997) (holding that a claim based on speculati o n “i s insufficient to establish a rea sonable probability that the outcome of defe ndant’s trial would have been differ ent”)

. We hold that the new DNA evidenc e does not undermine either Fish’s or Johns on’s trial testimony

. ¶ 57 Def

endant has failed to produce evidenc e o f s uch a conclusive char acte r that it would

-13-chang e the outcome of his trial upon retria l. We cannot say that the circ uit c ourt’s decision

to deny defe ndant post co n v i ct ion relief “is ‘cle arly evident, plain, and indisputable.’ ” Johnson , 206 I ll. 2d at 360 (quoting Ruiz
, 177 I ll. 2d at 384-85). Accordingly , we hold the circ uit court’s dec ision is notmanifestly erroneous and, the ref

ore, must be uphe ld.

¶ 58 Ineff ective A ssistance of Counsel ¶ 59 A postco n v i ct i o n p et i t i oner does not have a constitutional right to the assistance of counsel; rathe r, a petitioner only has the right to counsel as provided b y s t at u t e. People v. Suarez
, 224 I ll. 2d 37, 42 (2 0 0 7 ). “Bec ause the source of the right to counsel in a postco n v i ct i o n m atter is statutory rathe r then constitutional, the degree of skill and car e that a lawyer must exercise in repr esenting a post-conviction petitioner is not controlled by the six th a mendment standard announce d by the Supreme Court in Strickland v. W ashington .” People v. McNeal
, 194 I ll. 2d 135, 142 (2000) (citing Strickland v. W ashington
, 466 U.S. 668 (1984))

. Under the Act, petitioners are only entitled to “a rea sonable l ev el of assistance .” Suarez , 224 I ll. 2d at 42. I llinois Supreme Court Rule 651(c ) addr esses the duties imposed on postconviction counsel. Id. Rule 651(c) provides, in re levant par t: “(c ) *** [I ]f the trial court deter mines that the petitioner is indige nt, it shall order that

a transcript of the rec ord of the post-conviction proce eding s, including a transcript of the evidenc e, if any , be prepa red and filed with the cler k of the court to which the appea l is taken and shall appoint counsel on appea l ***. The rec ord filed in that court shall contain

a showing
, which may be made by the cer tificate of petitioner’s attorney , that the attorney has consulted with petitioner by phone, mail, elec tronic means or in person to asce rtain his or her contentions of deprivation of constitutional rights, has examined the rec ord of
proce eding s at the trial, and has made any amendments to the petitions filed pro se that

are nece ssary for an adequate prese ntation of petitioner’s contentions.” I ll. S. Ct. R. 651(c) (ef f. F eb. 6, 2013).
Our supreme court “has consistently held that rema nd is requi red wher e postconviction counsel failed to fulfill the duties of consultation, examining the rec ord, and amendment of the pro se petition, reg ardle ss of whether the claims raised in the petition had merit.” Suarez
, 224 I ll. 2d at 47. ¶ 60 In this case , we cannot say that defe ndant’s postconviction counsel failed to provide him

a rea sonable level of assistance

. Def endant focuse s on his counsel’s failure “to contra st the critica l probative differ ence betwee n a nine-loci match and a thirteen-loc i match” o f the DNA results. As stated above, the new DNA evidenc e prese nted by defe ndant does not show that he did not commi t t h e crimes of which he was convicted. He neither ref utes nor undermines J ohnson’s testimony at trial l inking him to the crime. Although differen ce s i n DNA analy sis testing results may be critica l in many instances, this i s not one of them beca use the new DNA evidence d ef en d ant prese nted does not show defe ndant’s actua l innocenc e in this case

. Fur thermore
, defe ndant has made no argument befor e this court that his postconviction counsel failed in the duties imposed upon him by I llinois Supreme Court Rule 651(c)

. I ll. S. Ct. R. 651(c) (ef f. Fe b. 6, 2013). Def

endant only has the right to counsel as provided by statute. Suarez
, 224 I ll. 2d at 42. Def endant has not shown in this case that

-14-his counsel acte d unrea sonably o r t hat his counsel failed to fulfill his duties acc ording to

I llinois Supreme Court Rule 651(c)

. I ll. S. Ct. R. 651(c) (ef f. Fe b. 6, 2013). Acc ording ly
, we hold that defe ndant’s postconviction counse l provided a r easona ble level of

assistance

.

¶ 61 CONCLUSI ON ¶ 62 The judgment of the c ircuit court is af firmed.

¶ 63 Affir

med.

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