## 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 . Gray , 2011 IL App (1st) 091689

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DOIAKAH G RAY, Def

endant- Appellant.

District & N o. First District, Second D ivision Docke t No. 1-09-1689

Filed Rehea ringdenied Dec ember 6, 2011
Marc h 8, 2012

Held (Note : Thi s syl lab us

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

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

o r t h e

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

f t h e

rea der

. ) The tri al court’s sua sponte denial of defe ndant’s petition to file a

succe ssive postconviction petition was aff irmed, but the dismiss al of defe ndant’s petition under section 2-1401 of the Code of Civil Procedur e for relief from the judgme nt finding him guilty of first degree murder was

vacated and the cause was rema nded for further proce eding s, since even though the S t at e was prese nt at the hearing, it rema ined silent, and the trial court’s premature dismiss al of the petition deprive d the State of the time duringwhich it was e ntitled to answer or otherwise ple ad.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 96-CR-10 5 5 2 ; the Hon. Michele M. Sim mons, J udg e, pre siding.

J udg ment Vac ated in par t and af firmed in par

t; cause r emande d.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Adrien n e N. River, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

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

. Spellberg
, Michelle Katz, and Miles J

. Kelehe r, Assistant State’s Att o rn ey s, of counsel), f

or the People.

Panel J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion. Presiding J ustice Quinn and J ustice Cunnin gh am concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant Doiakah Gra

y appea ls from an order of the circu i t co u rt o f Cook County denying his petition for leave to file a succe ssive pro se petition for relief under the PostConviction Hea

ring Act (Act) (725 I L CS 5 / 1 2 2 -1 et seq. (West 2008)) and dismiss ing his petition for relief from judgme nt under section 2-1401 of the Code of Civil Procedur e (Code) (735 I L CS 5/ 2-1401 (W est 2008)). He contends that the circuit cour t erre d in denying him leave to file a succe ssive postconviction petitio n wh er e he prese nted newly discovere d evid ence establishing the g ist of a claim of ineffe ctive assistance of trial counsel. He also contends that the sua sponte dismis s al o f h is section 2-1401 petition within 30 day s of its filing w as er

roneous. ¶ 2 A jury fo u n d d ef en d an t gu i l t y of first degree murder in connec tion with the 1994 shooting death of Don Rietveld. He was then sentenc ed to an ex t en d ed t erm of 80 year s’ imprisonment afte r the trial court found that the murder was acc ompanied by exceptionally brutal and heinous behavior indicative of wanton crue lty

. This court aff irmed that judgme nt

on direc t appea l, wher e defe ndant challeng ed his sentenc e and contende d that he was denied a speedy t ri al and discriminated aga inst in jury selec tion. People v. Gray
, 326 I ll. App. 3d 906, 908 (2001). ¶ 3 On J une 24, 2002, defe ndant, repr esente d b y co u n s el
, filed an initial post conviction petition, alleg ing a

sentenc ing violation pursua nt to Apprendi v. New Je rsey , 530 U.S. 466 (2000), a nd ineffe ctive assistance of trial and appellate counsel reg arding the failure to file

a postsentencing motion or to prese rve as erro r the sentenc ing court’s considera tion of various ag g rava

ting fac tors. The trial court g rante d the State’s motion to dismiss his petition, and we aff

irmed t hat order of dismis s al i n P eople v. Gray
, No. 1-04-1771 (F eb. 17, 2006) (unpublished orde r under Supreme Court Rule 23). ¶ 4 Def

endant then pe titioned the United States District Court f or a writ of habeas corpus
,

-2-which was denied. That decision was aff irmed by the United States Court of Appea ls, which
not ed t h at defe ndant had proce durally defa ulted his ineffe ctive assistance claims. Gray v. Hardy , 598 F.3d 324, 333 ( 2010). ¶ 5 In Dec ember 2008, defe ndant filed the instant pro se motion for leave to file a succ essive petition and succe ssive pro se postconvicti o n p et i t i on, alleg ing that the State failed to disclose favor able evidenc e to him, in violation of Brady v. Maryland
, 373 U.S. 83 (1963);
t h at the State knowing ly prese nted false trial testimony ; and ineffe ctive assistance of trial counsel based on newly discovere d evid en ce

. He maintained that these constitutional violations could not have been prese nted in his orig inal postconviction petition beca use they

wer e not known to him at that time. ¶ 6 I n s up p o rt o f h i s alleg ations, defe ndant appende d an undated, ty pewr itten statement bearing the signature and stamp of a notary and the signa ture of an individual named Milton Marsha ll. Marsha ll is not named in the statement, and there is no indication in the statement that the decla

rant made it under oath. The decla rant maintains that h e s p o k e to Troy Montgome ry , an eyewitness for the State, in September 1997 and that Montgome ry told him he did not know who killed the victim and the only rea son he said that defe ndant did it “wa s becaus e t hey signe d a statement saying they did it.” The decla rant and Montgome ry then
went to the office of defe ndant’s trial counsel and told him that defe ndant “did not shoot the white guy and that he himself wa s not even ther e on that night.” Montg omery told counsel that he was afr aid that he could be charg ed with the mur d er i f h e h ad come forwa rd, but counsel did not take a statement from Montgome ry , and shortly there afte r, Montgome ry left town beca

use he did not wa

nt to go to cour

t and “lie.” ¶ 7 I n h i s p l ea d i n gs , defe ndant asser ted that his trial counsel failed to inform him of the
statement from Montgome ry or use the statement to impeach Montgome r y a t trial. Def endant alleg es t hat t his failure was not a st rate g ic decision and that he was prejudice d b ec au s e he was not allowe d to present a full defe nse. ¶ 8 On Februa

ry 6, 2009, while hi s postconviction petition was pending, de fe n d ant filed a section 2-1401 petition for relief from judgme nt. He alleg ed there in that his indictment and conviction wer e void beca use he had not been indicted within 30 d ay s of his arr est as require d by

statute. ¶ 9 On Fe bruar

y 20, 2009, the circ uit c ourt considere d both petitions and denied defe ndant leave to file the succe ssive petition, finding that he failed to satisfy the cause and prejudice
t est. The court also dismiss ed his section 2-1401 petition, finding that defe ndant did n o t show that the judgme nt is void and should be vacated. The transcript shows that an assistant State’s Attorney (ASA) was prese nt for the proce eding s, but did not speak, file a motion to dismiss , or ra ise any

aff irmative def

enses to def

endant’ s petition. ¶ 10 In this appea l, defe ndant challeng es both ruling s. He first claims that the trial court e rre d in deny ing his reque st for leave to file a succe ss i v e p et ition, wher e he had alleg ed that

rec ently discovere d evidenc e showed that the State’s eyewitness rec anted his statement to trial counsel, who did not use it to impeach the witness’s trial testimony that defe ndant was one of the shooters. ¶ 11 The Act contemplates the filing of only one postconviction petition ( People v. Ortiz , 235

-3-I ll. 2d 319, 328 (2009))
, and succe ssive petitions are g overne d by section 122-1(f ) of the Act (725 I L CS 5/122-1(f) (West 2008)). L eave of court must be ob t ai n ed to file a succe ssive petition, and this permission is expressly conditioned on defe ndant’s satisfac tion of the cause and prejudice t es t (

People v. LaPointe
, 227 I ll. 2d 39, 44 (2007))
, or wher e fundame ntal fairne ss so require s (725 I L CS 5/122-1(f ) (West 2008) ; People v. Pitsonbarger
, 205 I ll. 2d 444, 459 (2002))

. ¶ 12 “Cause” has been define d as “any objective fac tor, extern al t o t h e d ef en s e, wh i ch impeded the petitioner’s ability to raise a specific claim at the in i t ial postconviction
proce eding .” P i t

s onbarger
, 205 I ll. 2d at 462. Prejudice, in this context, is the denial of consideratio n o f an error that so infec ted the entire trial that the resulting conviction or sentenc e violates due proce ss. Pitsonbarger
, 205 I ll. 2d at 464. Our re v i ew o f t h e order denying defe ndant’s motion for leave to file a succe ssive postconviction petition is de novo

. People v . Simmons , 388 I ll. App. 3d 599, 606 (2009). ¶ 13 Def

endant maintains that he demonstrated cause for not raising his ineffe ctiveness claim in his initial petition through the “new ly discovere d” evidenc e provided by Milton Marsha ll which he cl ai m s was not available and was unknown to him at the time. This “new ly discovere d” evidenc e is contained in an attachme nt th a t d e f e n d a nt d e s c ribes as an “af

fidavit.” We observe that an aff

idavit is a decla

ration, on oath, in writing
, and sworn to be fore some person who has authority under the law to administer oaths. People v. Smith
, 22 I ll. App. 3d 377, 380 (1974). ¶ 14 In this case , the “af fidavit” offe red by defe ndant consists of a ty pewr i t t en p ar agraph purportedly signe d by “Milton Marsha ll” and witnessed by a notary

. The document bear s no date, attestations, identifiers in the s tatement, or signature blocks to indicate that Marsha ll is the deponent or a person taking an oath. Although it bear s the purported signature and stamp of a notary , there is also no indication that the notary verifie d Marsha ll’s identity or that his statement was verifie d upon oath or aff irmation (5 I L CS 312/6-102(b) (West 2008)), leading us to que stion its leg al eff ectivene ss ( see People v. Niezgoda
, 337 I ll. App. 3d 593, 597 (2003) ( setting f

orth requir ements for

an af fidavit filed under

the Act) ). ¶ 15 M o reove r, nothing in this document establishes the identity of Milton Mar s h al l
, h i s relatio n s h i p to defe ndant or Montgome ry , or how it is, or when, defe ndant lear ned of the information t he dec lara

nt purportedly sets forth, and why he could not have presente d this information earlier. It is, thus, clea r that defe ndant failed to establish the cause prong of the test to permit the filing of a succ essive postconviction petition. ¶ 16 Def

endant is simil arly unable to establish prejudice

. The “af fidavit” relied upon mere ly
states that Montgome ry told the decla rant that he did n o t s ee t he shooting and that he and Montgome ry told this to trial counsel. In his pleading s, defe ndant alleg ed prejudice resulting from trial counsel’s failure to use t his statement to impeach Montgomery at t rial. The trial

rec ord shows that Montgome ry testified to seeing defe ndant shoot the victim at close rang e at least three times in the head. There is no sug g estion in the “af fidavit” or the pleading s to indicate when M o ntgome ry supposedly provided this contra dictory information to trial counsel or his availability to provide thi s new version of events. People v. Brown
, 3 7 1 I l l. App. 3d 972, 982 (2007). Additionally
, the content of the “af fidavit” is no more than hear say ,

-4-which, as a g ener al rule, is insuff icient to suppor

t a claim. People v. Morales
, 339 I ll. App. 3d 554, 565 (2003). We conclude
, there fore
, that defe ndant cannot establish the prejudice
prongand that his motion for leave to f ile a succe ssive petition wa s proper ly denied by the circ uit court. ¶ 17 Def

endant next contends that the sua sponte dismiss al of his petition fo r re l i ef fr om j u d gment under section 2-1401 of the Code was erroneous beca use the court enter ed t h e dismiss al befor e the expiration of the 30-day time period during which the State may move to dismiss or o t h erwi s e p l ead. Our revie w is de novo

. People v. Vincent
, 226 I ll. 2d 1, 18 (2007). ¶ 18 Section 2-1401 of the Code provides that “[r]elief from final order s and judgme nts, a fter 30 day s from the e ntry

there of, m ay be had upon pe tition as provided in this S ection.” 735 I L CS 5/2-1401(a) (West 2008). Procee dings under this section are subject to the usual rules of civil proce dure and a petiti on filed under this s ection is essentially a complaint inviting responsive pleading s. Vincent
, 226 I ll. 2d at 8. The petition is subject to dismiss al for want of l eg al or fa ctual suff

iciency and may be cha lleng ed by a mot ion to dismiss

. Vincent
, 226 I ll. 2d at 8. I f t he respondent does not answe r t he petiti on, this constitutes an admissi on of all well-plea ded fac ts and the tri al co urt may decide the case on the pleading s, aff idavits,

ex hibits, and supporting materia l befor e it, including the rec ord from prior proce eding s

. Vincent , 226 I ll. 2d at 9. ¶ 19 Section 2-1401 further provides that “[a]ll par t i es t o t h e p et i t i on shall be notified as provided by rule.” 735 I L CS 2-1401(b) (West 2008). I llinois Supreme Court Rules 105 (ef f. J an. 1
, 1989) and 106 (ef f. Aug

. 1, 1985) require that such notice “shall state *** that a judgme nt by defa

ult may be taken ag ainst [t he other party] for the *** relief unless he files

an answe r or otherwise files an appea ranc e in the office of the cler k of court within 30 day s afte r ser vice” of the notice

. ¶ 20 Her e, defe ndant filed his section 2-1401 petition on Februar y 6, 2010, and the court sua sponte dismiss ed it at a proce eding on Fe bruar y 20, 2010. The parties acknow ledg e, and the

rec ord indicates, that the State was prese nt for this proce eding
, but did not speak or file any motions, objections, or aff irmative defe nses related to defe ndant’s petition at or prior to this
proce eding

. ¶ 21 In People v. Laugharn
, 233 I ll. 2d 318, 323 (2009), the supreme court held that the circ uit court’s dismiss al of a section 2 -1 4 01 petition befor e the expiration of the 30-day period “short-c ircuited the proce eding s and deprive d the State of the time it was entitled to answe r

or otherwise plead.” A division of this court rec ently applied t h at holding in People v. Clemons
, 2011 I L App (1st) 102329, ¶ 17, finding
, under circ umstances indisti nguishable from the case at bar, that the S tate’s sil ence did not rende r the sec tion 2-1401 petition ripe for a djudication and vac ated the or der of dismiss al. ¶ 22 Her e, as in Clemons
, the State was prese nt at the hearing, but rema ined silent. In light of this authority
, we likewise conclude that the State was deprive d of the time during which it

was entitled to a

nswer or otherwise plead. We, there fore
, vacate the trial court’s premature denial of defe ndant ’s s ec t i on 2-1401 petition and rema nd for further proce eding s. In so holding, we are not acc epting Laugharn
, wher e there was no ind i cation that the State was

-5-prese nt, as a bright-line rule for vacating section 2-1401 dismiss als enter ed sua sponte prior

to the statutory 30-day period. W e b el i eve that Laugharn and Clemons would not apply wher e the State, prese nt at the hearing, expressly repr esents to the court its waiver of the 30- day time period and c onsents to a sua sponte decision on the merits. ¶ 23 Acc ording ly
, we vaca te the ord er o f t h e ci rc u i t co u rt of Cook County dismiss ing defe ndant’s sec tion 2-1401 petition and aff irm the order

in all other re spects.

¶ 24 Vac ated in par t and af firmed in par

t; cause r emande d.

-6-