ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Gray, 2011 IL App (1st) 091689

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

DOIAKAH GRAY, Defendant-Appellant.

 District & No. First District, Second Division

Docket No. 1-09-1689

Filed

Rehearing denied

December 6, 2011

March 8, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The trial court’s sua sponte denial of defendant’s petition to file a

successive postconviction petition was affirmed, but the dismissal of

defendant’s petition under section 2-1401 of the Code of Civil Procedure

for relieffrom the judgment finding him guilty of first degreemurder was

vacated and the cause was remanded for further proceedings, since even

though the State was present at the hearing, it remained silent, and the

trial court’s premature dismissal of the petition deprived the State of the

time during which it was entitled to answer or otherwise plead.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 96-CR-10552; the

Hon. Michele M. Simmons, Judge, presiding.

Judgment Vacated in part and affirmed in part; cause remanded.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of

State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Michelle Katz, and Miles J. Keleher, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Cunningham concurred in the

judgment and opinion.

OPINION

¶ 1 Defendant Doiakah Gray appeals from an order of the circuit court of Cook County

denying his petition for leave to file a successive pro se petition for relief under the PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) and dismissing his

petition for relieffrom judgment under section 2-1401 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-1401 (West 2008)). He contends that the circuit court erred in denying him

leave to file a successive postconviction petition where he presented newly discovered

evidence establishing the gist of a claim of ineffective assistance of trial counsel. He also

contends that the sua sponte dismissal of his section 2-1401 petition within 30 days of its

filing was erroneous.

¶ 2 A jury found defendant guilty of first degree murder in connection with the 1994

shooting death of Don Rietveld. He was then sentenced to an extended term of 80 years’

imprisonment after the trial court found that the murder was accompanied by exceptionally

brutal and heinous behavior indicative of wanton cruelty. This court affirmed that judgment

on direct appeal, where defendant challenged his sentence and contended that he was denied

a speedy trial and discriminated against in jury selection. People v. Gray, 326 Ill. App. 3d

906, 908 (2001).

¶ 3 On June 24, 2002, defendant, represented by counsel, filed an initial postconviction

petition, alleging a sentencing violation pursuant to Apprendi v. New Jersey, 530 U.S. 466

(2000), and ineffective assistance of trial and appellate counsel regarding the failure to file

a postsentencing motion or to preserve as error the sentencing court’s consideration of

various aggravating factors. The trial court granted the State’s motion to dismiss his petition,

and we affirmed that order of dismissal in People v. Gray, No. 1-04-1771 (Feb. 17, 2006)

(unpublished order under Supreme Court Rule 23).

¶ 4 Defendant then petitioned the United States District Court for a writ of habeas corpus,

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which was denied. That decision was affirmed by the United States Court of Appeals, which

noted that defendant had procedurally defaulted his ineffective assistance claims. Gray v.

Hardy, 598 F.3d 324, 333 (2010).

¶ 5 In December 2008, defendant filed the instant pro se motion for leave to file a successive

petition and successive pro se postconviction petition, alleging that the State failed to

disclose favorable evidence to him, in violation of Brady v. Maryland, 373 U.S. 83 (1963);

that the State knowingly presented false trial testimony; and ineffective assistance of trial

counsel based on newly discovered evidence. He maintained that these constitutional

violations could not have been presented in his original postconviction petition because they

were not known to him at that time.

¶ 6 In support of his allegations, defendant appended an undated, typewritten statement

bearing the signature and stamp of a notary and the signature of an individual named Milton

Marshall. Marshall is not named in the statement, and there is no indication in the statement

that the declarant made it under oath. The declarant maintains that he spoke to Troy

Montgomery, an eyewitness for the State, in September 1997 and that Montgomery told him

he did not know who killed the victim and the only reason he said that defendant did it “was

because they signed a statement saying they did it.” The declarant and Montgomery then

went to the office of defendant’s trial counsel and told him that defendant “did not shoot the

white guy and that he himself was not even there on that night.” Montgomery told counsel

that he was afraid that he could be charged with the murder if he had come forward, but

counsel did not take a statement from Montgomery, and shortly thereafter, Montgomery left

town because he did not want to go to court and “lie.”

¶ 7 In his pleadings, defendant asserted that his trial counsel failed to inform him of the

statement from Montgomeryor use the statement to impeach Montgomeryat trial. Defendant

alleges that this failure was not a strategic decision and that he was prejudiced because he

was not allowed to present a full defense.

¶ 8 On February 6, 2009, while his postconviction petition was pending, defendant filed a

section 2-1401 petition for relief from judgment. He alleged therein that his indictment and

conviction were void because he had not been indicted within 30 days of his arrest as

required by statute.

¶ 9 On February 20, 2009, the circuit court considered both petitions and denied defendant

leave to file the successive petition, finding that he failed to satisfy the cause and prejudice

test. The court also dismissed his section 2-1401 petition, finding that defendant did not

show that the judgment is void and should be vacated. The transcript shows that an assistant

State’s Attorney (ASA) was present for the proceedings, but did not speak, file a motion to

dismiss, or raise any affirmative defenses to defendant’s petition.

¶ 10 In this appeal, defendant challenges both rulings. He first claims that the trial court erred

in denying his request for leave to file a successive petition, where he had alleged that

recently discovered evidence showed that the State’s eyewitness recanted his statement to

trial counsel, who did not use it to impeach the witness’s trial testimony that defendant was

one of the shooters.

¶ 11 The Act contemplates the filing of only one postconviction petition (People v. Ortiz, 235

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Ill. 2d 319, 328 (2009)), and successive petitions are governed by section 122-1(f) of the Act

(725 ILCS 5/122-1(f) (West 2008)). Leave of court must be obtained to file a successive

petition, and this permission is expressly conditioned on defendant’s satisfaction of the cause

and prejudice test (People v. LaPointe, 227 Ill. 2d 39, 44 (2007)), or where fundamental

fairness so requires (725 ILCS 5/122-1(f) (West 2008); People v. Pitsonbarger, 205 Ill. 2d

444, 459 (2002)).

¶ 12 “Cause” has been defined as “any objective factor, external to the defense, which

impeded the petitioner’s ability to raise a specific claim at the initial postconviction

proceeding.” Pitsonbarger, 205 Ill. 2d at 462. Prejudice, in this context, is the denial of

consideration of an error that so infected the entire trial that the resulting conviction or

sentence violates due process. Pitsonbarger, 205 Ill. 2d at 464. Our review of the order

denying defendant’s motion for leave to file a successive postconviction petition is de novo.

People v. Simmons, 388 Ill. App. 3d 599, 606 (2009).

¶ 13 Defendant maintains that he demonstrated cause for not raising his ineffectiveness claim

in his initial petition through the “newly discovered” evidence provided by Milton Marshall

which he claims was not available and was unknown to him at the time. This “newly

discovered” evidence is contained in an attachment that defendant describes as an “affidavit.”

We observe that an affidavit is a declaration, on oath, in writing, and sworn to before some

person who has authority under the law to administer oaths. People v. Smith, 22 Ill. App. 3d

377, 380 (1974).

¶ 14 In this case, the “affidavit” offered by defendant consists of a typewritten paragraph

purportedly signed by “Milton Marshall” and witnessed by a notary. The document bears no

date, attestations, identifiers in the statement, or signature blocks to indicate that Marshall

is the deponent or a person taking an oath. Although it bears the purported signature and

stamp of a notary, there is also no indication that the notary verified Marshall’s identity or

that his statement was verified upon oath or affirmation (5 ILCS 312/6-102(b) (West 2008)),

leading us to question its legal effectiveness (see People v. Niezgoda, 337 Ill. App. 3d 593,

597 (2003) (setting forth requirements for an affidavit filed under the Act)).

¶ 15 Moreover, nothing in this document establishes the identity of Milton Marshall, his

relationship to defendant or Montgomery, or how it is, or when, defendant learned of the

information the declarant purportedly sets forth, and why he could not have presented this

information earlier. It is, thus, clear that defendant failed to establish the cause prong of the

test to permit the filing of a successive postconviction petition.

¶ 16 Defendant is similarly unable to establish prejudice. The “affidavit” relied upon merely

states that Montgomery told the declarant that he did not see the shooting and that he and

Montgomery told this to trial counsel. In his pleadings, defendant alleged prejudice resulting

from trial counsel’s failure to use this statement to impeach Montgomery at trial. The trial

record shows that Montgomery testified to seeing defendant shoot the victim at close range

at least three times in the head. There is no suggestion in the “affidavit” or the pleadings to

indicate when Montgomery supposedly provided this contradictory information to trial

counsel or his availability to provide this new version of events. People v. Brown, 371 Ill.

App. 3d 972, 982 (2007). Additionally, the content of the “affidavit” is no more than hearsay,

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which, as a general rule, is insufficient to support a claim. People v. Morales, 339 Ill. App.

3d 554, 565 (2003). We conclude, therefore, that defendant cannot establish the prejudice

prong and that his motion for leave to file a successive petition was properly denied by the

circuit court.

¶ 17 Defendant next contends that the sua sponte dismissal of his petition for relief from

judgment under section 2-1401 of the Code was erroneous because the court entered the

dismissal before the expiration of the 30-day time period during which the State may move

to dismiss or otherwise plead. Our review is de novo. People v. Vincent, 226 Ill. 2d 1, 18

(2007).

¶ 18 Section 2-1401 of the Code provides that “[r]elief from final orders and judgments, after

30 days from the entry thereof, may be had upon petition as provided in this Section.” 735

ILCS 5/2-1401(a) (West 2008). Proceedings under this section are subject to the usual rules

of civil procedure and a petition filed under this section is essentially a complaint inviting

responsive pleadings. Vincent, 226 Ill. 2d at 8. The petition is subject to dismissal for want

of legal or factual sufficiency and may be challenged by a motion to dismiss. Vincent, 226

Ill. 2d at 8. If the respondent does not answer the petition, this constitutes an admission of

all well-pleaded facts and the trial court may decide the case on the pleadings, affidavits,

exhibits, and supporting material before it, including the record from prior proceedings.

Vincent, 226 Ill. 2d at 9.

¶ 19 Section 2-1401 further provides that “[a]ll parties to the petition shall be notified as

provided by rule.” 735 ILCS 2-1401(b) (West 2008). Illinois Supreme Court Rules 105 (eff.

Jan. 1, 1989) and 106 (eff. Aug. 1, 1985) require that such notice “shall state *** that a

judgment by default may be taken against [the other party] for the *** relief unless he files

an answer or otherwise files an appearance in the office of the clerk of court within 30 days

after service” of the notice.

¶ 20 Here, defendant filed his section 2-1401 petition on February 6, 2010, and the court sua

sponte dismissed it at a proceeding on February 20, 2010. The parties acknowledge, and the

record indicates, that the State was present for this proceeding, but did not speak or file any

motions, objections, or affirmative defenses related to defendant’s petition at or prior to this

proceeding.

¶ 21 In People v. Laugharn, 233 Ill. 2d 318, 323 (2009), the supreme court held that the circuit

court’s dismissal of a section 2-1401 petition before the expiration of the 30-day period

“short-circuited the proceedings and deprived the State of the time it was entitled to answer

or otherwise plead.” A division of this court recently applied that holding in People v.

Clemons, 2011 IL App (1st) 102329, ¶ 17, finding, under circumstances indistinguishable

from the case at bar, that the State’s silence did not render the section 2-1401 petition ripe

for adjudication and vacated the order of dismissal.

¶ 22 Here, as in Clemons, the State was present at the hearing, but remained silent. In light of

this authority, we likewise conclude that the State was deprived of the time during which it

was entitled to answer or otherwise plead. We, therefore, vacate the trial court’s premature

denial of defendant’s section 2-1401 petition and remand for further proceedings. In so

holding, we are not accepting Laugharn, where there was no indication that the State was

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present, as a bright-line rule for vacating section 2-1401 dismissals entered sua sponte prior

to the statutory 30-day period. We believe that Laugharn and Clemons would not apply

where the State, present at the hearing, expressly represents to the court its waiver of the 30-

day time period and consents to a sua sponte decision on the merits.

¶ 23 Accordingly, we vacate the order of the circuit court of Cook County dismissing

defendant’s section 2-1401 petition and affirm the order in all other respects.

¶ 24 Vacated in part and affirmed in part; cause remanded.

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