2020 IL App (1st) 171508-U

No. 1-17-1508 

Order filed September 23, 2020 

Third Division 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

RASHEEM JACKSON, 

 Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 09 CR 18427 

Honorable 

Carol M. Howard, 

Judge, presiding. 

JUSTICE BURKE delivered the judgment of the court.

Justices Lampkin and Reyes concurred in the judgment. 

ORDER

¶ 1 Held: The circuit court’s second-stage dismissal of defendant’s postconviction petition

is affirmed where defendant failed to make a substantial showing of actual 

innocence based on the recanted testimony of a witness.

¶ 2 Defendant Rasheem Jackson appeals from an order of the circuit court of Cook County 

granting the State’s motion to dismiss his petition for relief filed under the Post-Conviction 

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, defendant contends that 

the court erred in dismissing his petition because he presented a cognizable claim of actual 
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innocence based on newly discovered evidence that a key witness recanted her trial testimony. 

We affirm.

¶ 3 Following a 2011 bench trial, defendant was found guilty of attempted first degree 

murder and aggravated battery with a firearm for shooting cab driver Martial Fifen in the face. 

The trial court merged the offenses and sentenced defendant to the minimum term of 6 years’ 

imprisonment for attempted murder and an additional 25-year sentencing enhancement for 

personally discharging the firearm that caused great bodily harm to Fifen, for an aggregate 

sentence of 31 years’ imprisonment.

¶ 4 At trial, 17-year-old DeShawteya Butler testified that on September 19, 2009, she was 

living at a specific address in the 101st block of South Emerald Avenue. Shortly after 10 p.m., 

Butler was standing outside on her front porch with one of her cousins while her other cousins 

and their friends were in her basement. Defendant, who was her sister’s cousin, was there. Butler

knew defendant since she was a young child, and he had been at her house numerous times.

Butler observed a white taxicab arrive and stop next to the neighbor’s house. The cab driver was 

a dark-skinned man. Butler observed defendant and two young men approach and enter the cab 

together, and the cab drove away. 

¶ 5 On cross-examination, Butler acknowledged that defendant was not actually her cousin, 

but she repeatedly told the police that he was. More than 12 people were at her house that night, 

about 3 were women and the rest were men. She could not recall what defendant was wearing. 

The other two men who entered the cab were at her house, but Butler did not know them, did not 

know their names, had never seen them before, and did not recall what they were wearing. There 

was no writing or emblem on the white vehicle indicating it was a cab, but she knew “they” had 
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called someone and were waiting for a ride. Defendant had arrived at her house about 8 a.m. and 

remained there the entire day. Defendant never showed her a gun that day, nor did she observe 

him with a gun that evening. Butler did not know what happened after the cab left her house. 

¶ 6 Martial Fifen testified that he drove a white Lincoln for a livery cab service. On 

September 19, about 10 p.m., he picked up a fare at the subject house in the 101st block of South 

Emerald. When he arrived, Fifen saw a young girl, about 15 to 18 years old, standing on the 

porch talking to some young boys. One of the boys came down the front steps and asked Fifen if 

he was the cab. Fifen replied “yes.” The boy returned to the porch and continued talking with the 

girl. Three young men came from the back of the house and entered the rear seat of the cab. In 

court, Fifen identified defendant as one of the three men. 

¶ 7 The men asked Fifen to drive them to 99th Street between State Street and Perry Avenue. 

When they arrived, the men directed Fifen to drive into the alley to drop them off. Fifen drove 

into the alley and stopped the cab. The three men jumped out of the cab and told Fifen to exit the 

vehicle, which he did. There was artificial lighting in the area from the nearby expressway.

Defendant stood three to four feet from Fifen and pointed a gun at him while the other two men 

searched inside the cab. Fifen asked the men what they were looking for and tried to negotiate 

with them. Defendant told Fifen to “shut up” and wait for them to finish what they were doing.

The two men who had been searching the cab began hitting Fifen and he became engaged in a 

physical fight with both men. Defendant continued pointing the gun at Fifen and told him to stay 

away from the cab. Fifen jumped inside the cab, which was still running, and attempted to leave. 

Defendant fired two or three gunshots at Fifen. One bullet struck the left side of Fifen’s nostril, 

another struck near his right eyebrow, and the last struck his left eyebrow. 
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¶ 8 Fifen could not recall exactly what happened next but drove himself to Roseland 

Hospital. Hospital personnel removed Fifen from his vehicle and brought him into the 

emergency room. Fifen was transferred to Stroger Hospital where he underwent three surgeries. 

During the third surgery, doctors removed the last bullet. Defendant was the only person with a 

gun during the offense. Fifen did not have a gun. 

¶ 9 At Stroger Hospital, Detective Killeen1 interviewed Fifen. On September 22, Killeen 

returned to the hospital and showed Fifen a photo array. Fifen did not identify anyone in that 

array. On September 24, Killeen came to Fifen’s home and showed him a second photo array.

Therein, Fifen identified defendant as the man who shot him. On September 30, 2009, Fifen 

viewed a lineup at the police station and identified defendant as the man who shot him.

¶ 10 On cross-examination, Fifen testified that there was no writing or insignia on his vehicle 

that indicated it was a cab. The young man talking to the girl on the porch was not defendant. 

Fifen looked at the three men before they entered his cab. Fifen did not see any of the men with a 

gun when they entered the cab. Defendant sat in the middle of the other two men in the back 

seat. Defendant was not wearing a hat or glasses and did not have any facial hair. The first time 

Fifen got a good look at the three men was in the alley. Defendant drew the gun when defendant 

exited the cab. Fifen observed the gun when he exited the cab. After exiting, Fifen stood in front 

of his vehicle while defendant pointed the gun at him and the other men searched the cab. Fifen 

estimated that he looked at defendant holding the gun for two to three minutes. Fifen was shot as 

he began driving away. Fifen told police that the gunman was a short man. On redirect 

examination, Fifen testified that he was sitting inside his vehicle when he was shot.

1 Detective Killeen’s first name does not appear in the record.
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¶ 11 Detective Killeen testified that on September 19, he went to Stroger Hospital and met 

with Fifen. Killeen spoke briefly with Fifen but continued their discussion another day because 

Fifen appeared groggy, in pain, and sedated. After speaking with Fifen, Killeen searched for

possible suspects at the Emerald address. He found two possible suspects and created a photo 

array including their photographs. Killeen showed the photo array to Fifen on September 22. 

Fifen did not identify anyone. After obtaining further information from Fifen, Killeen spoke with 

Butler and obtained defendant’s name as a possible suspect. Killeen created a second photo array

including defendant’s photograph and showed it to Fifen on September 24. Fifen “immediately” 

identified defendant as the man who shot him. Defendant was arrested on September 29. Fifen 

subsequently identified defendant in a lineup. 

¶ 12 Defense counsel offered to stipulate that Killeen could identify defendant in court, and 

the State accepted the stipulation. On cross-examination, Killeen testified that the two suspects 

who were included in the first photo array were suspected of possibly being the shooter or two of 

the men who entered the cab.

¶ 13 The trial court found that based on the evidence, including Butler’s testimony that 

defendant was one of the three men who entered the cab, coupled with Fifen’s identification of 

defendant as the shooter, defendant was guilty of attempted first degree murder and aggravated 

battery with a firearm. In denying defendant’s posttrial motion, the court reiterated that the 

evidence showed that defendant was the man who shot Fifen and that he had an intent to kill. 

¶ 14 This court granted defendant’s motion to dismiss his direct appeal. People v. Jackson, 

No. 1-12-0166 (2013) (dispositional order). 
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¶ 15 On September 12, 2013, defendant mailed to the court a pro se petition for postconviction 

relief filed under the Act asserting, inter alia, a claim of actual innocence. Defendant alleged that 

he had newly discovered evidence that Butler had been coerced by her mother to commit perjury

when she testified at trial.

¶ 16 Defendant attached to his petition an affidavit from Butler dated April 16, 2013. Butler 

averred that at the time of the offense she was underage, did not understand the law, and was 

scared because she was on probation and supervision due to a fight. Butler stated “[t]hat nite I 

never really seen where none of those young man [sic] went when the cab driver approached my 

house in a white cab.” The cab driver asked if anyone had called a cab, and Butler answered 

“yes” because she was standing at the door and overheard defendant’s two friends, whose names 

she did not know, say they were going home. Butler stated that her mother told her to tell the 

police “that I saw them all get into the cab. But I really didn’t. I had already closed the door.” 

Butler and her mother thought that if Butler told the police whose friends were involved it would 

clear her name. Butler stated that she followed her mother’s instructions because “we both didn’t 

need anymore situations.” Butler stated that she was older now and realized that life in jail was 

not suitable for someone who had not committed a crime.

¶ 17 Defendant also attached an affidavit from Maurice Williams dated April 15, 2013, 

averring that defendant was “not around” on September 19 and had nothing to do with the 

incident. On the day of the offense, defendant told Williams that he was at his cousin’s house for 

the weekend and would return on Monday. Williams stated that he was defendant’s closest 

friend, they had known each other since they were children, and they were together almost every 

day so he “knew for a fact” that defendant had nothing to do with the shooting. Defendant was a 
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kind, respectful and generous person who never had a problem with anyone and would never 

hurt anyone. Williams further stated that consideration should be given to the fact that defendant 

had been in and out of the hospital due to sickle cell. 

¶ 18 The circuit court advanced defendant’s postconviction petition to second-stage

proceedings under the Act and appointed counsel to represent him. On July 1, 2016, counsel filed 

an amended postconviction petition and certificate of compliance in accordance with Supreme 

Court Rule 651(c) (eff. Feb. 6, 2013). The amended petition restated the claims in defendant’s 

pro se petition including, inter alia, his claim of actual innocence based on Butler’s recantation. 

Attached to the petition were the original affidavits from Butler and Williams, and a new 

affidavit from Butler dated June 29, 2016. In her new affidavit, Butler restated that she was 

underage at the time of the offense and testified in accordance with her mother’s advice. She told 

the cab driver that someone from her house had called for a cab, but she did not know the names 

of the men who did so. Butler averred “I did not see who got in the cab because I had already 

closed the door.” She further stated, “At the time I did not see Rasheem Jackson although he is 

often at my house.” 

¶ 19 The State moved to dismiss defendant’s petition arguing that the affidavits from Butler 

and Williams were insufficient to support his claim of actual innocence as neither of them were 

present during the shooting. The State argued that defendant was ostensibly asserting an alibi

defense, which did not constitute newly discovered evidence, and thus, his actual innocence 

claim was invalid. The State asserted that Butler’s partial recantation was not newly discovered 

evidence where she was thoroughly cross-examined at trial and her testimony was corroborated 

by the State’s other evidence. The State further argued that Butler’s recantation did not raise a 
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constitutional issue where defendant did not allege that the State knowingly used false testimony, 

and therefore, it was not a cognizable claim under the Act. The State also claimed that Butler’s 

recantation was not of such conclusive character that it would change the outcome of trial where

Fifen’s testimony alone was sufficient to convict defendant.

¶ 20 In response, defendant argued that Butler’s recantation was newly discovered evidence 

because it was not available until after trial. Defendant further argued that the recantation was 

probative of his innocence because Butler averred that he was not one of the men who called for 

the cab and she did not see who entered the cab. Defendant asserted that he did not have to argue 

that the State knowingly used perjured testimony because he was not making a freestanding 

claim of a due process violation on that basis. He noted that during second-stage proceedings, the 

truth of the factual allegations in Butler’s affidavit must be presumed, and pointed out that the 

trial court referenced Butler’s testimony when it found him guilty. 

¶ 21 At the hearing on its motion to dismiss, the State argued that defendant did not meet the 

requirements for a showing of actual innocence. The State repeated the arguments in its motion 

and maintained that Butler’s partial recantation was not of such conclusive character that it 

supported a claim of actual innocence. The State argued that defendant did not present 

conclusive proof that he did not enter the cab and was not the shooter. Defense counsel argued 

that the trial court relied on Butler’s testimony and that the recantation could change the court’s 

decision. The trial court remarked that Butler’s testimony was “one of the key components” of its 

guilty finding because it was “basically an identification case.” The court stated that it found 

Fifen’s identification of defendant reliable because it was corroborated by Butler who knew 

defendant and identified him as one of the men who entered the cab. The court further stated that 
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the only doubt it had was resolved because Butler testified that she saw defendant enter the cab.

The court continued the case to consider its ruling. 

¶ 22 On April 27, 2017, the circuit court stated that it reviewed the evidence, gave the case 

serious thought, and granted the State’s motion to dismiss. In its written order, the court found 

that Butler’s and Williams’ affidavits did not support a claim of actual innocence. The court 

explained that, even assuming Butler’s recantation was true, it did not disprove that defendant 

was present at the shooting or provide him with an alibi. At best, Butler’s affidavits undermined 

only part of the State’s case, but there was still overwhelming evidence of defendant’s guilt 

based on Fifen’s credible and consistent testimony. The court found that Williams’ affidavit did 

not provide any personal knowledge of defendant’s whereabouts on the date of the shooting, but 

instead, merely recited unverified information defendant allegedly told him and provided his 

personal opinion of defendant’s character. The court concluded that defendant failed to 

demonstrate a cognizable claim of actual innocence and dismissed his petition.

¶ 23 On appeal, defendant contends that the circuit court erred when it dismissed his petition 

because he presented a cognizable claim of actual innocence based on newly discovered 

evidence that Butler recanted her trial testimony. Defendant claims that Butler’s recantation 

provided new evidence that he did not enter the cab, and therefore, he was not at the scene of the 

crime and could not have been the shooter. Defendant points out that at the hearing on the State’s 

motion to dismiss, the circuit court stated that Butler’s testimony that she saw defendant enter the 

cab was a key component of its guilty finding and corroborated Fifen’s identification of 

defendant. Defendant argues that Butler’s recantation critically undercuts the reliability of 

Fifen’s identification and would probably lead to a different result at retrial.
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¶ 24 The State responds that Butler’s recantation is not conclusive evidence of defendant’s 

actual innocence where it only rebuts her testimony that she saw him enter the cab. The State 

argues that Butler does not allege that defendant was not in the cab or that he was not at her 

house when the cab was called. The State asserts that Fifen’s identification of defendant alone 

was reliable, and although Butler’s testimony bolstered the identification, it was not necessary 

for the guilty finding. 

¶ 25 We review the circuit court’s dismissal of a postconviction petition without an 

evidentiary hearing de novo. People v. Sanders, 2016 IL 118123, ¶ 31 (citing People v. Coleman, 

183 Ill. 2d 366, 388-89 (1998)). The Act provides a process whereby a prisoner can file a petition 

asserting that his conviction was the result of a substantial denial of his constitutional rights. 725 

ILCS 5/122-1 (West 2012); People v. Robinson, 2020 IL 123849, ¶ 42. On appeal from the 

second-stage dismissal of a postconviction petition, the question is whether the allegations in the 

petition and any supporting documentation, liberally construed in favor of the defendant and 

taken as true, are sufficient to invoke relief under the Act. Sanders, 2016 IL 118123, ¶ 31. For 

purposes of the State’s motion to dismiss, all well-pleaded factual allegations that are not 

positively rebutted by the trial record must be taken as true. Id. ¶ 42. 

¶ 26 When a defendant raises a claim of actual innocence, an evidentiary hearing is warranted 

only where the petition demonstrates a substantial showing of actual innocence. Id. ¶ 37. “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 probably change 

the result on retrial.” Robinson, 2020 IL 123849, ¶ 47. Newly discovered evidence is that which 

was discovered after trial and could not have been discovered by the defendant earlier through 
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due diligence. Id. Evidence is material when it is relevant and probative of the defendant’s 

innocence. Id. Evidence is noncumulative when it adds to the information heard by the fact 

finder at trial. Id. Finally, evidence is considered to have conclusive character if, when 

considered together with the trial evidence, it would probably lead to a different result. Id.

¶ 27 “The conclusive character of the new evidence is the most important element of an actual 

innocence claim.” Id. The ultimate question is whether the new evidence supporting the 

postconviction petition places the trial evidence in a new light and undermines the court’s 

confidence in the guilty finding. Id. ¶ 48. It is not necessary that new evidence be completely 

dispositive of an issue to be likely to change the result on retrial. Id. Probability, not certainty, is 

the key when determining whether the fact finder would reach a different result when 

considering the trial evidence and new evidence together. Id.

¶ 28 Recanted testimony is considered inherently unreliable and a court will not grant a new 

trial on that basis unless there are extraordinary circumstances. Sanders, 2016 IL 118123, ¶ 33.

However, when the State moves to dismiss a petition during the second stage of postconviction 

proceedings, the credibility of recanted testimony is not considered because all well-pleaded 

facts must be taken as true. Id.

¶ 29 Here, even if we presume that Butler’s affidavits constitute newly discovered evidence, 

taking her assertions therein as true, we find that they do not support a claim of actual innocence. 

At trial, Butler testified that on the night of the shooting, defendant was at her house and she 

observed him enter the white cab with two other young men. In her first affidavit dated April 16, 

2013, Butler stated that when the cab driver asked if anyone had called for a cab, she answered 

“yes” because she overheard defendant’s two friends, whose names she did not know, say that 
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they were going home. Butler stated that she did not see where the young men went when the 

cab arrived. Butler further averred that her mother told her to tell the police “that I saw them all 

get into the cab. But I really didn’t. I had already closed the door.” In her second affidavit dated 

June 29, 2016, Butler again confirmed that she told the cab driver that someone at her house had 

called for a cab, but she did not know the names of the young men who did so. Butler averred “I 

did not see who got in the cab because I had already closed the door.” She further stated, “At the 

time I did not see Rasheem Jackson although he is often at my house.” 

¶ 30 Butler’s affidavits merely contradict her testimony that she observed defendant enter the 

cab with two other young men. She did not see who entered the cab because she had closed the 

door. In other words, Butler did not know whether or not defendant entered the cab. Her 

affidavits do not provide any evidence that defendant did not enter the cab. Taking her 

statements as true, it is still possible that defendant entered the cab with the two young men, and 

Butler merely did not see them.

¶ 31 Moreover, Butler’s statement that she did not see defendant “at the time” is vague and is 

not evidence that he was not, in fact, at her house and did not enter the cab. Butler testified at 

trial that there were more than 12 people at her house that night, only 3 were women, and she 

was standing on her front porch with one of her cousins while the rest of her cousins and their 

friends were in her basement. She also testified that defendant arrived at her house at 8 a.m. that 

day and remained there the entire day. Butler’s statement could mean that she did not see 

defendant because he was in the basement while she was on the porch, or again, that she did not

see him enter the cab because she closed the door.
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¶ 32 The record shows that Fifen testified that defendant was one of the three men who 

entered his cab. Defendant sat in the middle of the other two men in the back seat, he was not 

wearing a hat or glasses, and he did not have any facial hair. In the alley, there was artificial 

lighting from the expressway. Defendant stood three to four feet from Fifen and pointed a gun at 

him while the other men searched the cab. Fifen estimated that he looked at defendant with the 

gun for two to three minutes. Fifen testified that as he drove away, defendant fired two to three 

gunshots at him, striking him in the face. Fifen identified defendant in a photo array, a lineup, 

and in court. Killeen testified that when he showed Fifen the second photo array, Fifen 

“immediately” identified defendant as the man who shot him. The trial court found Fifen’s 

identification of defendant as the shooter credible.

¶ 33 Based on this record, when Butler’s affidavits are considered together with the trial 

evidence, we cannot find that her recantation is of such conclusive character that it would 

probably lead to a different result at retrial. Robinson, 2020 IL 123849, ¶¶ 47-48. Her recantation 

does not remove defendant from the cab, nor does it provide any evidence that defendant was not 

the gunman who shot Fifen. Accordingly, defendant’s postconviction petition failed to make a 

substantial showing of actual innocence, and an evidentiary hearing was not warranted. Sanders, 

2016 IL 118123, ¶ 37. We therefore conclude that the circuit court’s order granting the State’s 

motion to dismiss defendant’s petition during second-stage proceedings was proper. 

¶ 34 For these reasons, the judgment of the circuit court of Cook County is affirmed. 

¶ 35 Affirmed.