2023 IL App (1st) 210777-U 

SECOND DIVISION

March 31, 2023

No. 1-21-0777 

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, 

Respondent-Appellee, 

v. 

JEREMIAH T. LEE, 

Petitioner-Appellant. 

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Appeal from the 

Circuit Court of 

Cook County.

No. 03 CR 24859

Honorable 

Carl B. Boyd, 

Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.

Justices Ellis and Cobbs concurred in the judgment.

O R D E R

¶ 1 Held: Appointed postconviction counsel rendered unreasonable assistance (Ill. S. Ct. 

651(c) (eff. July 1, 2017)) by failing to amend the pro se petition to include an 

allegation of ineffective assistance of appellate counsel to avoid dismissal of the 

petition on the basis of waiver. The matter is reversed and remanded for new 

second-stage proceedings and the appointment of new postconviction counsel. 

¶ 2 After a jury trial in the circuit court of Cook County, the petitioner, Jeremiah T. Lee, was 
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2 

convicted of home invasion (720 ILCS 5/12-11(a)(3) (West 2002)) and sentenced to 25 years’ 

imprisonment. After the petitioner filed a pro se petition pursuant to the Post-Conviction Hearing 

Act (725 ILCS 5/122-1 et seq. (West 2008)), the petition was automatically advanced to the second 

stage of postconviction proceedings, and the circuit court appointed counsel to represent him. After 

appointed counsel filed a certificate pursuant to Rule 651(c) (Ill. S. Ct. 651(c) (eff. July 1, 2017)) 

stating that he would not amend the pro se petition, the State filed a motion to dismiss arguing that 

the issues raised in the petition were waived because they were not addressed on direct appeal. The 

circuit court agreed and granted the State’s motion. The petitioner now appeals contending that his 

postconviction counsel failed to provide a reasonable level of assistance as required under Illinois 

Supreme Court Rule 651(c) (eff. July 1, 2017) by failing to amend his pro se petition to include 

an allegation of ineffective assistance of appellate counsel so as to circumvent waiver. The 

petitioner requests that we reverse the dismissal of his pro se petition and remand for further 

second-stage proceedings with the appointment of new and competent postconviction counsel. For 

the following reasons, we reverse and remand with directions. 

¶ 3 I. BACKGROUND 

¶ 4 The record before us reveals the following relevant facts and procedural history. In 

November 2003, the petitioner was charged with, inter alia, numerous counts of armed robbery, 

aggravated battery, and home invasion for his involvement in the October 19, 2003, attack on two 

victims, Horace Timms (Horace) and Eric Timms (Eric), at their home. The petitioner proceeded 

with a jury trial at which the following evidence was adduced. 

¶ 5 One of the victims, Eric, testified that in the early morning hours of October 19, 2003, he 

returned home from a date with his girlfriend, Tashuanda Clayton, and parked his car in the 

driveway. Eric then exited his car to retrieve a handgun that he kept hidden in a nearby flowerpot 
No. 1-21-0777 

3 

before manually lifting his garage door open. He then returned to his vehicle and drove it into the

garage. Eric explained that he performed this ritual when he returned home because of a previous 

“car-jacking.”

¶ 6 Eric stated that as he pulled into his garage, the petitioner appeared next to him, and another 

individual appeared next to Tashuanda. Both men brandished their handguns and demanded that 

Eric and Tashuanda exit their car. Eric described the petitioner as “black and ugly” and the 

codefendant as “skinny and light-skinned.” He testified that he was able to view the petitioner 

“several” times as there was a “shop light” on in the garage. 

¶ 7 After complying with the petitioner’s request to exit the car, Eric and Tashuanda were 

ordered to lie on the ground and give the offenders their money and jewelry. While removing 

Eric’s money, the petitioner noticed Eric’s handgun, took it from him and struck Eric in the head.

Eric then told the petitioner that he had an additional $15,000 in his father’s room inside the house. 

Eric explained that he said this because he wanted to “get them both apart,” believing that he could 

“handle one.” The petitioner then put a gun to the back of Eric’s head and ordered him into the 

house to retrieve the additional money. 

¶ 8 After climbing the stairs, Eric turned on a hallway light, and near his father’s bedroom, 

attempted to gain control of the petitioner’s handgun. During the struggle, the petitioner fired the 

weapon into the room where Eric’s father, Horace, was sleeping. When he saw that the petitioner 

had shot his father, Eric grabbed at the petitioner’s handgun and succeeded in wrestling it out of 

his hand. 

¶ 9 Eric testified that although Horace was struck with a bullet in his back and arm, he joined 

the struggle and tried to secure the petitioner, but the petitioner escaped from his grasp. While the 

petitioner was running away, Eric shot at him. The petitioner hit his head on a mirror at the end of 
No. 1-21-0777 

4 

the hallway and escaped. 

¶ 10 Eric testified that in the next several days he identified the petitioner from a photo array 

and later from a line-up as the person who attacked him. 

¶ 11 On cross-examination, Eric acknowledged that the police took “samples” from the mirror 

where the petitioner hit his head, even though there was no visible blood there.

¶ 12 Eric’s father, Horace, next testified that on the night in question he was asleep in his bed 

when he heard a loud gunshot from inside his bedroom and felt numbness underneath his arm. 

Horace stumbled out of his bed and walked towards “shadows” that were “tussling” in the room. 

He joined the fight and tried to grab the offender, whom he could not see because it was “pitch 

dark” in the room with only some light coming in from the hallway. According to Horace, Eric 

was standing behind him, when the offender escaped from Horace’s grasp and ran out into the 

hallway. Eric then shot at the offender, but the offender just “banged” his head against the hallway 

mirror and ran down the stairs. Horace testified that when the ambulance arrived, he was taken to 

the hospital where he was treated for gunshot wounds to his back and arm. 

¶ 13 Tashuanda next testified consistently with Eric. She added that after the offenders took Eric 

into the house to get the money, she remained on the garage floor until she was certain that she 

was alone. She then stood up and called the police. Tashuanda further averred that while in the 

garage, she heard one gunshot, followed by additional gunshots and running footsteps from inside 

the house. Tashuanda was unable to identify either offender because she kept her head to the 

ground and her eyes closed the entire time the perpetrators were inside the garage, as instructed by 

the offender who approached her side of the vehicle. 

¶ 14 Markham Police Detective Mike White next testified that at about 2:30 a.m. on October 

19, 2003, he was assigned to investigate the home invasion and shooting that took place at Eric’s 
No. 1-21-0777 

5 

home. Once at the scene, Detective White first spoke with Eric, who described what happened to 

him. After his conversation with Eric, Detective White notified nearby hospitals to be on the 

lookout for possible gunshot victims as Eric had told him that he may have shot the petitioner. 

¶ 15 At about 8 a.m. that same morning, Detective White received notification of a possible 

victim from one of the local hospitals. The victim was identified as the petitioner. Detective White

requested that a photo of the petitioner be sent to him from the hospital and then placed that 

photograph in a photo array. Detective White then showed that photo array to Eric, who identified 

the petitioner as his attacker. 

¶ 16 Detective White also testified that while at the crime scene, he recovered a revolver and

shell casings from the bedroom and the hallway of Eric’s home. In addition, he took several swabs 

from inside the house. Specifically, he took swabs from the rear door and the floor right next to 

the door because he observed dried blood on them. In addition, he took “a swab and scraped it 

along the [hallway] mirror” on the second floor “in the event there was some DNA evidence that 

would match with [the petitioner’s] because there was a cracked corner” there. Detective White 

admitted that he did not observe any blood on the mirror. 

¶ 17 On cross-examination, defense counsel unsuccessfully attempted to elicit information from 

Detective White regarding the results of the DNA tests performed on those three swabs. After the 

State’s objections were sustained, the jury was excused, and the parties argued the issue before the 

trial judge. The State offered to stipulate that the DNA results revealed that both blood samples 

recovered from the scene did not come from the petitioner, but rather from the victim, Horace, but 

defense counsel rejected that stipulation. 

¶ 18 Illinois State Police Crime Laboratory expert forensic biologist, William Anselme, was 

next called as a witness for the State. He testified that on March 3, 2004, he received three swabs 
No. 1-21-0777 

6 

with seals, which were collected from various locations at the crime scene. Anselme testified that 

the swabs marked “rear door” and “off floor,” indicated the presence of blood and that the swab 

marked “off mirror” did not. 

¶ 19 On cross-examination, Anselme was asked whether he was able to determine whose blood 

was indicated on the two swabs, and he responded that he did not perform any testsfor that purpose

and that the swabs were sent to an independent lab for DNA testing. 

¶ 20 No testimony was offered by either party at trial as to the results of that DNA testing.1

¶ 21 Nurse Doug Foglietta next testified that he treated the petitioner in the emergency room of 

St. James Hospital in Olympia Fields, on the morning of the offense. The petitioner told Foglietta 

that he was robbed and had been shot. Foglietta testified, however, that the petitioner had no 

gunshot wounds on his body and only sustained a laceration to his right eyelid. 

¶ 22 After the State rested, the petitioner presented an alibi defense, offering the testimony of 

three witnesses. First, the petitioner himself testified that in 2003 he lived in Matteson, Illinois. On 

the morning of October 18, 2003, the petitioner’s friend, John Hopkins, picked him up and brought 

him to a barbeque in Justice, Illinois, where they stayed until about 9 p.m. Afterwards, at about 11 

p.m., they picked up another friend, Parnell Williams, from Chicago. While they were with 

Williams, Hopkins received a telephone call from another friend, Billy Grindle, Jr., after which 

they drove to Northern Illinois University to party. According to the petitioner, there were many 

events on campus that night, including a Ludicrous concert, and fraternity and Sweetest Day 

parties. 

¶ 23 The petitioner averred that they arrived in DeKalb, Illinois at about 1 a.m., and met with a 

group of friends, which included Grindle. After trying to get tickets to the Ludicrous concert they 

1 As shall be more fully explained below, these DNA results were available at the time of the petitioner’s trial. 
No. 1-21-0777 

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realized it had already finished and instead “hung out” with some girls in front of the concert 

venue. After being invited to a fraternity party, they followed the girls to the parking lot of the

fraternity house where they continued to party for about three hours. Somewhere between 2 and 3 

a.m., while in that parking lot, the petitioner began talking to a girl. According to the petitioner, 

this upset another man who was present, because he had attempted to talk to the same girl. The 

petitioner and the man then “exchanged words” and threw “a couple of punches,” which resulted 

in injuries to the petitioner’s nose and his right eye. Although the petitioner considered his injuries

to be serious, he waited until he returned home to Matteson before going to the hospital. The 

petitioner explained that he did not seek medical treatment in DeKalb because he was on parole

and feared that he would be reported for a parole violation for leaving Cook county. 

¶ 24 On cross-examination, the petitioner admitted that he did not tell his treating nurse at St. 

James Hospital that he sustained his injuries during a fight in DeKalb. In addition, he 

acknowledged that he never told the police that he was in such a fight. The petitioner, however, 

denied stating that he was robbed and shot.

¶ 25 Two of the petitioner’s friends, John Hopkins and Billy Grindle, Jr., both testified

consistently with the petitioner. They stated that they were with the petitioner in DeKalb on the 

night of the shooting and that they were present during the fight in which he sustained his injuries. 

Hopkins and Grindle both also professed the petitioner’s innocence. 

¶ 26 Hopkins further stated that when, on October 20, 2003, he learned from the petitioner’s 

mother that the petitioner had been arrested for a shooting in Markham, he went to the police 

station with her to speak to the police. Hopkins averred that when he told the police officer at the 

station what he knew, he was told to wait, but that no one came out to speak with him. 

¶ 27 On cross-examination, Hopkins admitted that after an hour, he left the police station and 
No. 1-21-0777 

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did not speak to anyone until the petitioner’s trial. On cross-examination, Gridle similarly admitted 

that he did not speak to anyone about the incident in DeKalb until the instant trial. Both, however, 

averred that they have been in court with the petitioner’s mother since the beginning of the 

proceedings against the petitioner. 

¶ 28 After the defense rested, in rebuttal, the State called Matteson Police Officer Brown, who 

testified that he interviewed the petitioner at St. James Hospital in Olympia Fields at 7:30 a.m. on

October 19, 2003. According to Officer Brown, at that time, the petitioner reported to him that he 

was a victim of a robbery and that he had been shot. 

¶ 29 After the defense rested, the parties proceed with closing arguments. The trial judge then 

instructed the jury with, inter alia, two separate instructions for home invasion, one including 

Horace and the other Eric, as victims. 

¶ 30 After deliberations, the jury found the petitioner guilty on only one count of home invasion 

against Horace, but not guilty on all other counts, including home invasion against Eric. 

¶ 31 After the circuit court denied the petitioner’s motion for judgment notwithstanding the 

verdict, or in the alternative, for a new trial, the parties proceeded with sentencing. After hearing 

evidence in aggravation and mitigation, the circuit court sentenced the petitioner to 25 years’ 

imprisonment.

¶ 32 On appeal, the petitioner argued that: (1) he was erroneously charged with two counts of 

home invasion; (2) the jury returned inconsistent verdicts; and (3) he was not proven guilty beyond 

a reasonable doubt. See People v. Lee, No. 1-05-0707 (June 8, 2006) (unpublished order pursuant 

to Illinois Supreme Court Rule 23). On June 8, 2008, this court affirmed his conviction. 

¶ 33 On February 25, 2008, the petitioner filed the instant pro se postconviction petition, which 
No. 1-21-0777 

9 

alleged in its entirety:

“The court abused its discretion and by doing so they denied me effective assistance of 

counsel. By not allowing my lawyer to properly defend me. The sole issue at trial was 

identity and I was not allowed to present the evidence that showed my innocence. The State 

made false arguments and allowed State witness Mike White to only answer questions 

about blood and evidence that appeared to make me look guilty. Had the jury been allowed 

to hear that none of my DNA was ever found on the rear door or mirror. [sic] The outcome 

of the trial would have been different.”

In support of his petition, the petitioner attached a report from the Joliet Forensic Science 

Laboratory indicating that a buccal swab was taken from the petitioner and compared to the male 

profile identified in the swabs of blood taken from the rear door and mirror of the victims’ home, 

and that the DNA profile did not match the petitioner.2

 

¶ 34 On May 6, 2011, the postconviction court advanced the pro se petition to the second stage 

of postconviction proceedings because it had not been ruled upon within 90 days. On June 11, 

2011, the court appointed the Officer of the Public Defender to represent the petitioner. For the 

next ten years, the petitioner was represented by three different attorneys from that office.

¶ 35 First, on July 22, 2011, Assistant Public Defender (APD) Jeffrey Walker appeared on the 

petitioner’s behalf. On July 20, 2012, APD Walker stated that he had received the record in the 

2 As shall be more fully elaborated below, our review of the Joliet Forensic Science Laboratory (Joliet Laboratory) 

Report completed prior to the petitioner’s trial, reveals that the report inaccurately, or in the very least, 

inconsistently, reflects the items that were tested against the petitioner’s DNA, and which excluded the presence of 

his blood at the scene of the crime. The report concludes that DNA testing performed on the swabs taken from the 

“rear door” (Exhibit 5A1) and the “mirror” (Exhibit 5B1) reveals identical male DNA, which does not match that of 

the petitioner. However, a subsequent page differently identifies the swabs sent to the laboratory for DNA testing. 

Namely Exhibit 5A is identified as a swab taken “off rear door,” while Exhibit 5B is identified as a swab taken “off 

floor.” The report next identifies Exhibit 5C as a swab taken “off mirror.” The report further indicates that blood was 

present only in Exhibits 5A and 5B (the rear door and the floor, but not on the mirror). Thus, it is unclear which 

items (the floor or the mirror) were tested for DNA prior to trial and excluded the presence of the petitioner’s blood 

at the crime scene. 
No. 1-21-0777 

10 

case and was “going to engage in some investigation concerning several witnesses in this matter.” 

For the next three years the case was continued so that postconviction counsel could obtain the 

trial file, conduct his investigation, and interview witnesses. On January 16, 2015, APD Walker 

filed a section 116-3 motion (725 ILCS 5/116-3 (West 2014))) for DNA and fingerprint testing. 

According to that motion, the DNA from the blood recovered from the rear door and the floor of 

Eric’s home excluded the petitioner, but there was no evidence about who it belonged to.3 The 

motion therefore sought to have those two swabs tested against the State’s DNA database. In 

addition, the motion sought fingerprint testing of the firearm recovered from the scene of the crime 

that Eric allegedly took from the petitioner. The case was then continued and turned over to the 

State’s DNA Unit. 

¶ 36 On June 5, 2015, APD Walker appeared in court and indicated that after speaking with 

attorneys from the State’s DNA Unit “concerning a couple of issues” regarding “both the DNA 

and fingerprint testing” he did not think there was anything more the State could do “as far as the 

forensic part was concerned.” When asked by the State, whether he was withdrawing his motion 

for forensic testing, APD Walker first indicated that he was not, but that “based on [their] 

conversation we kind of alleviated all the concerns that it would raise. So, it’s kind of moot at this 

point.” The State then requested that the motion be withdrawn procedurally, and APD Walker 

agreed, stating: “No problem. We resolved the issues that were raised in the motion.” After 

withdrawing his section 116-3 motion for DNA testing, APD Walker stated that he needed to do

“some more investigation” “outside of the forensic testing part” and requested another 

3 We note that APD Walker’s representations regarding what was tested contradict the DNA results completed by 

the Joliet Laboratory, which, as already noted above, state that DNA from the blood collected on the rear door and 

mirror were tested and excluded the petitioner. 
No. 1-21-0777 

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continuance. 

¶ 37 Following several more continuances, however, on February 17, 2017, the State informed 

the court that APD Walker had passed away and that the case needed to be reassigned. On June 2, 

2017, the petitioner’s newly appointed postconviction counsel APD Mary Duchatellier appeared 

in court. On September 22, 2017, APD Duchatellier asked for a continuance to refile the motion 

for forensic testing, indicating that her file “shows that there was an issue with respect to 

fingerprints on a door and DNA on a mirror.” On June 15, 2018, APD Duchatellier filed a new 

section 116-3 motion (725 ILCS 5/116-3 (West 2016)) requesting the same DNA and fingerprint 

testing originally sought by APD Walker.

¶ 38 On September 14, 2018, the State filed a motion to dismiss the petitioner’s request for 

DNA testing, indicating that the testing had already been completed. According to the State’s 

motion to dismiss the results of that testing showed that the DNA recovered from the blood on the 

rear door and floor of the victims’ home matched Horace, while the revolver recovered from the 

scene of the crime contained no latent fingerprints suitable for testing. The State then tendered 

copies of these reports, which were completed by the Joliet Forensic Laboratory prior to trial, to 

the court and to postconviction counsel.4 After APD Duchatellier requested time to review the 

reports and speak with her client, the court granted the State’s motion to strike the petitioner’s 

section 116-3 motion for DNA testing and continued the case. 

¶ 39 On March 22, 2019, APD Duchatellier informed the court that there was a “forensic issue” 

in that “the State is saying that there was a mirror that there was no blood found on, and my client 

is challenging that.” APD Duchatellier then sought a continuance so that the Forensics Unit of the 

Public Defender’s Office could look at the case. She also informed the court that the Unit was 

4 Again, the State’s position contradicts the results of the DNA results contained in the reports from the Joliet 

Laboratory. 
No. 1-21-0777 

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“kind of backed up.” 

¶ 40 On November 8, 2019, another new postconviction counsel, APD Frank Adams, appeared 

on behalf of the petitioner because APD Duchatellier had retired. APD Frank filed a supplemental 

section 116-3 motion (725 ILCS 5/116-3 (West 2018)) seeking, inter alia, that DNA testing be 

performed on the swab taken from the mirror inside of the victim’s home. The State requested, 

and was given time, to review the supplemental motion and to file its response. On July 13, 2021, 

the State informed the court that it would agree solely to the testing of an additional “ear swab” 

that had been found at the scene of the crime and that had not been previously tested. APD Adams 

then stated:

“We have no objection to the agreed order that I just reviewed that the State sent me. And 

it is our position that the DNA testing might corroborate the –defense’s theory at trial 

because there was no DNA – there was no DNA testing of the swab that was taken from a 

mirror. And this testing is necessary to corroborate our theory at trial and discredit the 

eyewitness testimony.”

The circuit court then entered an agreed order to the testing of the DNA swab collected from the 

mirror.

5

¶ 41 On February 23, 2021, APD Adams filed a Rule 651(c) certificate, declaring that he had 

consulted with the petitioner to ascertain his contentions of constitutional deprivations, obtained 

the record on appeal, conducted further investigations, and was not going to file an amended or 

supplemental petition because “the petitioner’s previously filed pro se petition for postconviction 

relief adequately sets forth the petitioner’s claims of petitioner’s deprivation of his constitutional 

5 It appears from this order that the parties eventually agreed that contrary to the reports from the Joliet Laboratory, 

the swab collected from the mirror was never tested for DNA and that the swabs of blood previously tested, which 

excluded the petitioner’s presence form the crime scene, were from the floor and the rear door. 
No. 1-21-0777 

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rights.” 

¶ 42 At this same hearing, the State informed the court that the DNA testing was completed and 

that the results were tendered to postconviction counsel and APD Adams acknowledged receipt of 

the test results. Those test results, however, are not part of the record on appeal, and we do not 

know what they reveal. 

¶ 43 On March 3, 2021, the State filed a motion to dismiss the pro se petition. At the hearing on 

that motion, on June 21, 2021, the State first pointed out that the pro se petition was untimely 

because it was filed on either March 11, 2007, or February 25, 2008, and should have been filed 

by December 8, 2006. The State further argued that the issues raised by the petitioner (i.e., that (1) 

the circuit court erred in allowing Detective White “to testify to only certain questions about blood 

evidence” and (2) that the jury did not hear evidence that the petitioner’s DNA was not found on 

the rear door or mirror) were waived because they were not addressed on direct appeal. At this 

point in the proceedings, the circuit court reminded the State that the pro se petition had also raised 

a concise “one-liner” claim of ineffective assistance of trial counsel. The State responded that this 

issue was “not well-pleaded” and therefore should not be considered. 

¶ 44 In response, APD Adamsfirst addressed the timeliness issue and indicated that even though 

he “had done additional research, an additional investigation” he had “nothing additional to add.” 

With respect to waiver, APD Adams argued that waiver could be excused where “fundamental 

fairness so required.” In addition, as to the merits, counsel reminded the court that he had “done 

additional testing, additional investigation, additional research” and “although [he] d[idn]’t have 

anything additional to add on [the petitioner’s] behalf *** there was an alibi defense and there 

were numerous witnesses indicating that the petitioner was in DeKalb at the time of the alleged 
No. 1-21-0777 

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offense.” 

¶ 45 The circuit court granted the State’s motion to dismiss, finding that all the issues raised by 

the pro se petition were waived. The petitioner now appeals. 

¶ 46 II. ANALYSIS

¶ 47 On appeal, the petitioner solely contends that he was denied his right to reasonable 

assistance of postconviction counsel. For the following reasons, we agree.

¶ 48 At the outset, we note that the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et 

seq. (West 2008)) provides a method for criminal defendants to challenge their convictions on the 

basis of a substantial denial of federal or state constitutional rights. People v. Cotto, 2016 IL 

119006, ¶ 26; see also People v. Tate, 2012 IL 11214, ¶ 8; see also People v. Hodges, 234 Ill. 2d 

1, 9 (2009); People v. Peeples, 205 Ill. 2d 480, 509 (2002). In noncapital cases, the Act provides a 

three-stage process. Cotto, 2016 IL 119006, ¶ 26; see also People v. Johnson, 2017 IL 120310, ¶ 

14. At the first stage of the proceedings, within the first 90 days, the circuit court must 

independently review the petition and determine whether the allegations therein, taken as true, 

demonstrate a constitutional violation or whether they are frivolous or patently without merit. 

Cotto, 2016 IL 119006, ¶ 26; 725 ILCS 5/122–2.1(a)(2) (West 2008); Tate, 2012 IL 112214, ¶ 9. 

If the circuit court affirmatively determines that the petition is neither frivolous nor patently

without merit or if it takes no action on the petition within 90 days after the petition is filed and 

docketed, the petition must be advanced to the second stage. Cotto, 2016 IL 119006, ¶ 26. 

¶ 49 At the second stage of the proceedings, counsel may be appointed to represent an indigent 

defendant. 725 ILCS 5/122–2.1(a)(2), (b), 122-4, 122-5 (West 2008); Cotto, 2016 IL 119006, ¶ 

27; Tate, 2012 IL 112214, ¶ 10; People v. Brooks, 221 Ill. 2d 381, 389 (2006). After appointed 

postconviction counsel amends the petition, if necessary, the State is allowed to file responsive 
No. 1-21-0777 

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pleadings and may either answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2008); 

People v. Pendelton, 223 Ill. 2d 458, 472 (2006). The circuit court must then determine whether 

the petition and any accompanying documentation make a substantial showing of a constitutional 

violation. 725 ILCS 5/122-6 (West 2008); Tate, 2012 IL 11214, ¶ 10; Pendelton, 223 Ill. 2d at 

473. In doing so, the court must not engage in fact-finding or credibility determinations but must 

take as true all well-pleaded facts that are not positively rebutted by the original trial record. People 

v. Domagala, 2013 IL 11368, ¶ 35. If no substantial showing of a constitutional violation is made, 

the petition is dismissed. Tate, 2012 IL 11214, ¶ 10. If, however, a substantial showing of a 

constitutional violation is set forth, the petition must be advanced to the third stage for the circuit 

court to conduct an evidentiary hearing. Tate, 2012 IL 11214, ¶ 10. 

¶ 50 The right to counsel at the second stage of postconviction proceedings is not guaranteed by 

either the state or federal constitutions; rather it is “ ‘a matter of legislative grace.’ ” Cotto, 2016 

IL 119006, ¶ 28 (quoting People v. Hardin, 217 Ill. 2d 289, 299 (2005)). Accordingly, a petitioner

is entitled only to the level of assistance provided for by the Act. Cotto, 2016 IL 119006, ¶ 28. 

¶ 51 Our supreme court has repeatedly held that under the Act, petitioners are entitled only to a

“reasonable” level of assistance. Cotto, 2016 IL 119006, ¶ 28. To assure this level of assistance, 

Supreme Court Rule 651(c) (Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)) imposes three duties on 

postconviction counsel. Cotto, 2016 IL 119006, ¶ 28; see also People v. Perkins, 229 Ill. 2d 34, 42 

(2007). Pursuant to that rule, either the record or a certificate filed by the attorney, must show that 

counsel: (1) consulted with the petitioner to ascertain his contentions of constitutional 

deprivations; (2) examined the record of the trial proceedings; and (3) made any amendments to 

the filed pro se petition necessary for an adequate representation of the petitioner’s contentions. 

See Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013); see also Cotto, 2016 IL 119006, ¶ 28; Perkins, 229 Ill. 
No. 1-21-0777 

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2d at 42. A certificate pursuant to rule 651(c) (Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013)) creates a 

rebuttable presumption of compliance with that rule. People v. Profit, 2012 IL App (1st) 101397 

¶ 19. Where a certificate is filed, the petitioner bears the burden of overcoming this presumption 

by demonstrating his attorney’s failure to substantially comply with the duties mandated by the 

rule. Profit, 2012 IL App (1st) 101307, ¶ 19. We review postconviction counsel’s compliance with 

supreme court rules de novo. Id. ¶ 17. 

¶ 52 In the present case, on appeal, the petitioner acknowledges that postconviction counsel 

filed a Rule 651(c) certificate. He nonetheless asserts that he was denied his statutory right to 

reasonable assistance when postconviction counsel failed to amend his pro se petition to include a 

claim of ineffective assistance of appellate counsel to avoid the procedural bar of waiver. 

According to the petitioner, his pro se petition alleged that his trial counsel was ineffective for 

failing to establish that none of his DNA was recovered from the blood collected at the scene of 

the crime. The petitioner contends that because this issue could have been addressed on direct 

appeal, postconviction counsel’s failure to argue ineffective assistance of appellate counsel for 

failing to raise that issue resulted in dismissal of his claim on the basis of waiver and therefore

constituted unreasonable assistance under the Act. The petitioner therefore seeks remand for a new 

second-stage proceeding with the appointment of competent counsel.

¶ 53 In response, the State argues that the petitioner has failed to rebut the presumption of 

reasonable representation created by postconviction counsel’s filing of the Rule 651(c) certificate. 

In addition, the State asserts that because the petitioner did not “sufficiently plead” an ineffective 

assistance of trial counsel claim in his pro se petition, postconviction counsel would have had to 

add an entirely new claim, rather than simply amend the petition, to present the argument that the 

petitioner now raises on appeal. Lastly, the State points out that, in any event, the petitioner’s claim 
No. 1-21-0777 

17 

of ineffective assistance of trial counsel was meritless and therefore appellate counsel had no duty 

to raise it on direct appeal. The State therefore asserts that the petitioner cannot establish prejudice 

stemming from postconviction counsel’s failure to amend the petition to raise the ineffective 

assistance of appellate counsel claim. For the following reasons, we disagree with the State. 

¶ 54 Because most petitions under the Act are filed pro se by prisoners without any access to 

legal counsel, the purpose of Rule 651(c) is to ensure that postconviction counsel shapes the 

petitioner’s claims into a proper legal form and presents them to the court. Perkins, 229 Ill. 2d at 

44. Accordingly, Supreme Court Rule 651(c) requires the record on appeal to show that counsel 

made amendments to the pro se petition which were necessary for an adequate presentation of the 

petitioner’s contentions. People v. Johnson, 154 Ill. 2d 227, 243 (1993); People v. Turner, 187 Ill. 

2d 406, 412 (1999). Our supreme court has repeatedly held that the duty to adequately or properly 

present the petitioner’s substantive claims “necessarily includes attempting to overcome 

procedural bars *** that will result in dismissal of a petition if not rebutted.” Perkins, 229 Ill. 2d 

at 44; see also Turner, 187 Ill. 2d at 412; Johnson, 154 Ill. 2d at 243. Postconviction counsel must 

meet these procedural requirements in order to adequately present a constitutional claim under the 

Act. See Turner, 187 Ill. 2d at 412; Johnson, 154 Ill. 2d at 246; Perkins, 229 Ill. 2d at 44.

¶ 55 In the present case, the record rebuts the presumption of reasonable assistance created by 

postconviction counsel’s filing of the Rule 651(c) certificate. The record affirmatively shows that 

the circuit court dismissed the pro se petition because the claims raised in that petition were 

“waived” since they could have, but were not, raised on direct appeal. However, waiver could have 

been avoided by a simple and routine amendment alleging ineffective assistance of appellate 

counsel. See Turner, 187 Ill. 2d at 414. Because postconviction counsel did not make this 

necessary amendment to the pro se postconviction petition, counsel did not provide reasonable 
No. 1-21-0777 

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assistance to the petitioner. See Turner, 187 Ill. 2d at 414; People v. Schlosser, 2012 IL App (1st) 

092523, ¶¶ 25-26. 

¶ 56 In coming to this conclusion, we find the decisions in Turner, 187 Ill. 2d 406, and 

Schlosser, 2012 IL App (1st) 092523 to be directly on point. 

¶ 57 In Turner, our supreme court held that Rule 651(c) requires postconviction counsel to 

amend a pro se petition to allege ineffective assistance of appellate counsel to avoid the procedural 

bar of waiver. Turner, 187 Ill. 2d at 412-14. In that case, after the petitioner filed a pro se

postconviction petition, his postconviction counsel elected to stand on the pro se petition, and in, 

doing so, inter alia, failed to amend the petition to allege ineffective assistance of appellate counsel 

to avoid the bar of waiver, which triggered the circuit court’s dismissal. Id. at 412-13. On appeal, 

our supreme court held that this failure by postconviction counsel constituted unreasonable 

representation under the Act. Id. at 413. The court noted “the ease with which a petitioner may 

evade the operation of waiver simply by arguing ineffective assistance of appellate counsel,” and 

held that postconviction counsel’s failure to file such a routine amendment prevented the trial court 

from considering the merits of the petitioner’s claims. Id. In doing so, the court explicitly rejected 

the State’s suggestion that because the petitioner’s underlying claims lacked merit, postconviction 

counsel’s failure to amend the petition did not prejudice the petitioner. Id. The court held that the 

prejudice to the petitioner was “palpable” because counsel’s failure to amend the petition to

“overcome the procedural bar of waiver” “precluded consideration of [the] petitioner’s claims on 

the merits and directly contributed to the dismissal of the petition without an evidentiary hearing.” 

Id. The court further refused to speculate as to whether the trial court would have dismissed the 

petition if counsel had adequately performed his duties under Rule 651(c). Id. at 416. 

¶ 58 More recently, this appellate court in Schlosser reaffirmed the holding in Turner and found 
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that postconviction counsel renders unreasonable assistance under the Act when he fails to amend 

a pro se postconviction petition to allege ineffective assistance of appellate counsel to avoid 

waiver. Schlosser, 2012 IL App (1st) 092523, ¶ 26. In that case, the petitioner filed a pro se

postconviction petition alleging that he had not been proven guilty beyond a reasonable doubt and 

that his sentence was unfair. Id. ¶ 2. After the circuit court advanced the petition to the second 

stage of postconviction proceedings, appointed counsel filed a Rule 651(c) certificate and stood 

on the pro se petition. Id. Although counsel did not amend the petition to include a claim of 

ineffective assistance of appellate counsel, at the hearing on the State’s motion to dismiss, for the 

first time, counsel argued that appellate counsel was ineffective. Id. Despite counsel’s arguments 

at the hearing, the circuit court dismissed the petition finding that the claims were waived. Id.

¶ 59 On appeal, this court held that postconviction counsel’s failure to amend the pro se petition 

to allege ineffective assistance of appellate counsel, which could have “overcome the procedural 

bar of waiver” constituted unreasonable representation under the Act. Id. ¶ 26. In doing so, we 

reiterated that adequately presenting a pro se petitioner’s claims pursuant to Rule 651(c) 

“necessarily includes attempting to overcome procedural bars *** that will result in the dismissal 

of the petition if not rebutted.” Id. ¶ 21 (quoting Perkins, 229 Ill. 2d at 44). We held that counsel’s 

failure to make this routine amendment “directly contributed” to the dismissal of the petition. Id. 

¶ 24. Accordingly, we reversed and remanded for further second-stage proceedings. Id. ¶ 35.

¶ 60 In the present case, just as in Turner and Schlosser, the petitioner’s claim regarding trial 

counsel’s failure to introduce the results of DNA testing that would have established that his blood 

was never found at the scene of the crime could have been raised on direct appeal, as it was 

available at the time of the petitioner’s trial. In fact, the petitioner attached the results of that DNA 

evidence obtained prior to trial to his pro se petition. Absent postconviction counsel’s amendment 
No. 1-21-0777 

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to the petition to allege ineffective assistance of appellate counsel, however, the issue was waived. 

Moreover, just as in Schlosser, here, postconviction counsel not only failed to make the requisite 

routine amendment that would have avoided waiver, but also certified that no amendments were 

necessary. Counsel then contradicted himself by arguing, for the first time at the hearing on the

State’s motion to dismiss, that waiver could be relaxed where “fundamental fairness so requires.”

Under this record, we are compelled to conclude that postconviction counsel’s failure to routinely 

amend the petition to avoid waiver clearly demonstrates that he did not comply with the duties 

imposed by Rule 651(c). See Schlosser, 2012 IL App (1st) 092523, ¶ 32 (“Counsel cannot fulfill 

his Rule 651(c) duties simply by filing a certificate if he has not provided adequate assistance.”).

We therefore find that counsel provided unreasonable assistance under the Act and that this cause 

must be remanded for further second-stage proceedings and the appointment of new

postconviction counsel. Id. 

¶ 61 The State nonetheless asserts that postconviction counsel substantially complied with the 

requirements of Rule 651(c) because the petitioner never actually raised the issue of ineffective 

assistance of trial counsel in his pro se petition. As such, the State contends that postconviction 

counsel had no duty to amend the petition to include an allegation of ineffective assistance of 

appellate counsel to avoid waiver. We disagree.

¶ 62 Contrary to the State’s position, the record below reveals that while not perfectly 

articulated, the pro se petition raised an ineffective assistance of trial counsel claim. The pro se

petition explicitly alleged that the petitioner was “denied effective assistance of counsel” by the 

circuit court’s rulings because “[t]he sole issue at trial was identity *** Had the jury been allowed 

to hear that none of my DNA was ever found on the rear door or mirror the outcome of the trial 

could have been different.” In support, the petition attached the DNA report prepared prior to trial, 
No. 1-21-0777 

21 

which indicated that the blood recovered from the scene was not the petitioner’s. Because it was 

trial counsel’s duty to present the results of the DNA evidence to the jury, and according to the 

petitioner, that evidence would have shown that none of the DNA recovered from the blood at the 

crime scene was his, the petition sufficiently, albeit inartfully, pleaded both defense counsel’s 

ineffective representation and prejudice stemming from counsel’s inactions. What is more, the 

record reveals that the circuit court itself believed that the pro se petition raised an ineffective 

assistance of trial counsel claim, as evidenced by its question to the State at the hearing on the 

State’s motion to dismiss. The court specifically noted that the petitioner had raised a brief “oneliner” ineffective assistance of counsel claim and asked the State to respond to that issue. Under 

this record, and liberally construing the pro se petition, we reject the State’s contention that the 

petitioner insufficiently pleaded ineffective assistance of trial counsel so as to have excused 

postconviction counsel from fulfilling his duties under Rule 651(c) and making a routine 

amendment that would have avoided waiver.

¶ 63 The State next argues that even if the pro se petition alleged ineffective assistance of trial 

counsel, because that claim has no merit, postconviction counsel had no duty to amend the petition 

to allege ineffective assistance of appellate counsel to avoid waiver. In this vein, the State contends 

that trial counsel sufficiently attempted to challenge the DNA evidence at the petitioner’s trial and 

informed the jury in closing that no evidence was presented establishing that the petitioner’s blood 

was found at the scene of the crime. The State then speculates that because postconviction counsel 

chose not to amend the petition, the new postconviction DNA results necessarily contradict the 

petitioner’s contentions regarding what was found at the scene of the crime and therefore directly 

rebut the petitioner’s claim of ineffective assistance of trial counsel. For the following reasons, we 
No. 1-21-0777 

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disagree. 

¶ 64 At the outset, we note that the State’s arguments regarding the results of the postconviction 

DNA testing are at best disingenuous. First, because those results are not part of the record on

appeal, we have no way of knowing what, if anything, they revealed about the DNA, if any was 

even present, on the mirror inside the victim’s home. Any speculation regarding why 

postconviction counsel chose not to amend the petition after the receipt of these results is 

inappropriate at this stage of the proceedings. What is more, the results of the new DNA testing 

have absolutely no bearing on the petitioner’s claim of ineffective assistance of trial counsel for 

counsel’s failure to introduce DNA evidence that would have conclusively shown that his blood 

was not found at the scene of the crime. It is counsel’s representation at trial, with the knowledge 

that counsel would have had at trial, that the petitioner challenges. His contention is that trial 

counsel failed to inform the jury that the results of the DNA collected from the blood in the victim’s 

home conclusively established that the blood was not his. In support, the petitioner attached the 

DNA report prepared prior to trial. Accordingly, any new DNA evidence regarding what, if 

anything, was found on the mirror, which had no blood on it, has no impact on the petitioner’s 

claim. 

¶ 65 More importantly, contrary to the State’s position on appeal, our supreme court has 

repeatedly held that when a petitioner has been deprived of his right to reasonable assistance of 

postconviction counsel, he need not establish any further prejudice, and courts of appeal must 

remand for further proceedings without regard to the merits of the underlying claims. See People 

v. Suarez, 224 Ill. 2d at 47 (“This court has consistently held that remand is required where 

postconviction counsel failed to fulfill the duties of consultation, examining the record, and 

amendment of the pro se petition, regardless of whether the claims raised in the petition had merit. 
No. 1-21-0777 

23 

[Citations]" (Emphasis added.)); Turner, 187 Ill. 2d at 416 (“This court will not speculate whether 

the trial court would have dismissed the petition without an evidentiary hearing if counsel had 

adequately performed his duties under Rule 651(c).”); Johnson, 154 Ill. 2d at 246 (“We cannot 

simply presume *** that the trial court would have dismissed the petition without an evidentiary 

hearing if counsel had adequately performed his duties under Rule 651(c). It is the duty of the trial 

court *** to determine on the basis of a complete record whether the postconviction claims require 

an evidentiary hearing.”). As our supreme court has explained its rationale: 

“Our Rule 651(c) analysis has been driven, not by whether a particular defendant’s claim is 

potentially meritorious, but by the conviction that where postconviction counsel does not 

adequately complete the duties mandated by the rule, the limited right to counsel conferred 

by the Act cannot be fully realized. See [People v.]Brown, 52 Ill. 2d [227,] 230 [(1972)], *** 

(‘[T]he purpose underlying Rule 651(c) is not merely formal. It is to ensure that all indigents 

are provided proper representation when presenting claims of constitutional deprivation 

under the Post–Conviction Hearing Act. [Citation.] The fulfillment of this design would not 

be encouraged were we to ignore the rule’s nonobservance in those cases appealed to this 

court’); *** We have [therefore] consistently declined the State’s invitation to excuse 

noncompliance with the rule on the basis of harmless error.” Suarez, 224 Ill. 2d at 51. 

¶ 66 On appeal, the petitioner acknowledges that this rationale applies where postconviction 

counsel has not filed a Rule 651(c) certificate but that the issue of whether it applies when counsel 

does file such a certificate is currently pending before our supreme court. See People v. Addison, 

2021 IL App (2d) 180540, pet. for leave to appeal granted, 447 Ill. Dec. 724 (2021); see also

Patton, 2021 IL App (1st) 192148-U, ¶¶ 28-30 (holding that where postconviction counsel files a 

Rule 651(c) certificate, if the petitioner cannot establish that his underlying claims have merit, he 
No. 1-21-0777 

24 

cannot overcome the presumption of reasonable assistance since counsel is required only to amend 

the petition where “necessary.”). He, nonetheless, urges us to follow the line of cases that have 

applied this rationale regardless of the filing of a Rule 651(c) certificate. See e.g., Schlosser, 2012 

IL App (1st) 092523; Addison, 2021 IL App (2d) 180540; People v. Milam, 2012 IL App (1st)

100832, ¶¶ 36, 40; People v. Kluppelberg, 327 Ill. App. 3d 939, 947-48 (2002); see also People v. 

Nitz, 2011 IL App (2d) 100031, ¶ 18 (“a defendant is not required to make a positive showing that 

his counsel’s failure to comply with Rule 651(c) caused prejudice); see also People v. Russell, 

2016 IL App (3d) 140386, ¶ 12 (“where postconviction counsel failed to fulfill the duties of Rule

651(c), remand is required regardless of whether the claims raised in the petition had merit.”). 

¶ 67 We agree with the petitioner, and find that the rationale of Suarez, Turner, and Johnson, 

apply to the present circumstances. In that respect, we reiterate that our supreme court has “not 

*** suggest[ed] that an attorney’s Rule 651(c) certificate is conclusive compliance and can never 

be rebutted.” Perkins, 229 Ill. 2d at 52. Instead, it has made clear that the purpose of Rule 651(c) 

is not merely formal. Suarez, 224 Ill. 2d at 47. 

¶ 68 As already explained above, in the present case, when postconviction counsel chose to 

stand on the petitioner’s pro se petition certifying that no amendments were necessary, but later 

changed course and argued waiver during the hearing on the State’ motion to dismiss the petition, 

he demonstrated his failure to comply with the requirements of Rule 651(c). See Schlosser, 2012 

IL App (1st) 092523. Counsel’s “failure to amend the postconviction petition precluded 

consideration of petitioner’s claims on the merits and directly contributed to the dismissal of the 

petition without an evidentiary hearing.” Turner, 187 Ill. 2d at 415. “In such situations, our 

supreme court has declared ‘it is improper to affirm the dismissal of a postconviction petition ***.’ 

” Turner, 187 Ill. 2d at 415-16. Accordingly, we must reverse the dismissal of the petition and 
No. 1-21-0777 

25 

remand for further second-stage proceedings and the appointment of competent counsel. See e.g., 

Schlosser, 2012 IL App (1st) 092523; see also People v. Kirk, 2012 IL App (1st) 101606, ¶ 36 

(holding that appointed postconviction counsel rendered unreasonable assistance in violation of 

Rule 651(c) when he failed to amend the pro se petition to include the oral claim of ineffective

assistance of appellate counsel claim that he asserted during the hearing on the State’s motion to

dismiss the petition.) 

¶ 69 In coming to this decision, we express no opinion on the merits of the petitioner’s 

underlying claim or whether an evidentiary hearing on his claim would be appropriate in this case. 

See Johnson, 154 Ill. 2d at 246 (holding that it is the duty of the trial court, not the reviewing court, 

to determine based on a complete record whether the postconviction claim requires an evidentiary 

hearing). 

¶ 70 

¶ 71 III. CONCLUSION

¶ 72 For the aforementioned reasons, we reverse the judgment of the circuit court dismissing 

the pro se petition and remand for further second-stage proceedings. On remand, we direct the 

circuit court to appoint new counsel and to allow the petitioner to replead his postconviction 

petition to assert a claim of ineffective assistance of appellate counsel. Turner, 187 Ill. 2d at 417.

¶ 73 Reversed and remanded with directions.