1-08-3016 a nd 1-10-0702 ( Cons.) THI RD DIVI SI ON Dec ember 29, 2010

Nos. 1-08-3016 1-10-0702

THE PEOPL E OF THE STATE OF I L L I NOI S, ) Appea l from

) the Circuit Court Plaintiff-Appellee , ) of Cook County

. ) v. ) ) Honora

bles J ERRY GI L L ESPI E, ) Nicholas R. For d, ) Stanley

Sacks, Def endant- Appellant. ) J udg es Presiding

. PRES I DI NG JUS TI CE QUI

NN deliver ed the opinion of the c ourt: Def endant Jerry

Gillespie appe als from orde rs of the c ircuit court de nying him leave to file his third and four

th succe ssive petitions for relief under the Post-Convi ction Hea ringAct (Ac t) (725 I L CS 5/ 122-1 et seq. (West 2008)) and dismissing two pe titions for r elief unde r section 2-1401 of

the I llinois Code of Civil P roce dure ( Code) (735 I L CS 5/ 2-1401 (West 2008)). For the followingrea sons, we af firm. I . BA CKGROUND Followinga 1994 jury

trial, defe ndant was c onvicted of f irst deg ree murder ba sed on a theory of ac countability

for his par

ticipation in the fatal shootingof bea uty shop employee J eff rey Rodge rs. On F ebrua

ry 13, 1993, at about 9 p.m., six masked men e ntere d the bea uty shop and orde red e veryone to the g round. Thre e of the masked men use d guns to shoot and kill1-08-3016 a nd 1-10-0702 ( Cons.) Rodge rs in reta liation for the murde r of the br other of a g angmember. Followinghis arre st, on Febr uary 22, 1993, codef

endant Antwa

n Holiday provided a court-r eporte d statement. Holiday admitted that he held the r ank of c hief of se curity for his stree t g angand that KB (Johnell Alex ander) orde red a hit on the victim because the victim was involved in the murder of a g angmember. H oliday implicated def

endant a nd stated that defe ndant had a

.38-ca liber we apon, while c odefe ndant J eff rey Clarkson had a

9-millim eter

gun and anothe r g angmember ha d a Glock. H oliday stated that he a cted a s a sec urity ag ent at 56th and Rac ine while the a

rmed men e ntere d the bea uty shop and killed the victim. A 9-millimeter gun was re cover ed fr om Clarkson’s bedroom. Holiday and code fenda

nt Gera ld Earl we re trie d simult aneously

befor e sepa

rate juries. B oth Holiday and Ea rl wer e convic ted of fir st deg ree murder a nd sentenc ed to 60 y ear s in prison. On direc t appea l, this court corre cted the mittimus to reflec t only one count of

first degree murder a nd aff irmed Holiday ’s conviction and se ntence . People v. Holiday , No. 1-94-4185 ( J une 20, 1997) (unpublished orde r under Supreme Court Rule 23). On dire ct appe al, this court

reve rsed Ea

rl’s convic tion and rema

nded for a new trial bec ause the State failed to pre sent evidenc e, which w as appa rently available , to connec t Earl to the guns and ammunition admitted into evidence . People v. Ear l, No. 1-94-3449 ( J anuar y 23, 1998) (unpublished orde r under Supreme Court Rule 23). Two other c odefe ndants wer e convic ted of the f irst deg ree murder of

Rodge rs in separ ate trials. Wil lie Hug hes wa s convicted a nd sentenc ed to 60 y ear s in prison. On direct a ppeal, this court a ffirme d the judg ment. People v. Hughes, Nos. 1-94- 4184, 1-95-0340 & 1-95-2942, c ons.
-2-1-08-3016 a nd 1-10-0702 ( Cons.) (June 30, 1997)(unpublished order under Supre me Court Rule 23). J eff rey Clarkson was convicted a

nd sentenc ed to 40 y ear s in prison and this court aff irmed the judg ment on direc t appea l. People v. Clarkson, No. 1-94- 4398 (June 27, 1997) (unpublished order under Supre me Court Rule 23). In defe ndant’s ca se, police of fice rs initially

treated def

endant a s a witness duringtheir investigation of the Rodge rs homicide. On F ebrua ry 18, 1993, at about 2 p.m., def endant

acc ompanied De tectives McD onald and Rajkovich to the police station. Followingan intervie w with Detec tive Clancy , defe ndant provided a n exculpatory

statement which implicate d codefe ndant Clarkson. De fenda nt then repe ated the statement to an assistant State’s Attorne y who reduc ed it to writing. A fter tha t interview, whic h conclude d at appr ox imately 3 a.m., the assistant State’s Attorney asked de fenda

nt whether

he would testify

befor e the grand jury

. Def endant a gree d, and, citingsafe ty fac tors, defe ndant opted to spend the night at the police station. The ne x t morning, on F ebrua ry 19, 1993, Detec tive Rajkovich took defe ndant to testify befor e the grand jury . Duringhis gr and jury testimony , defe ndant stated that on F ebrua ry 11, 1993, he wa s walkingdown the stree t and met “Ray Ray” (c odefe ndant Clarkson). De fenda nt testified that he a sked Clarkson what happene d with the shooting a t the beauty

salon and Clarkson replied that he did not know. Def endant testified that later that da y he spoke w ith a boy named Micha el, who told defe ndant that Ray Ray (Clarkson), Tw an (Antwan Holiday ), and Six

Point (W illie W ilson) were responsible for the bea uty shop shooting. De fenda

nt testified that when he saw Clarkson a g ain that day , defe ndant told Clarkson that he hea rd that Clarkson,

-3-1-08-3016 a nd 1-10-0702 ( Cons.) Holiday , and Wilson were r esponsible for the shooting. De fenda nt testified that Clarkson agree d and told defe ndant that they shot the victim in t he bea uty salon while the victim was on the phone. De fenda

nt also testified that he ha d known Clarkson for about five year s, Clarkson was a member of

the Gang ster Disciples, a nd Clarkson usually

car ried a 9-millim eter

gun. After the g rand jury , Detec tive Rajkovich was dr iving de fenda nt to defenda

nt’s residenc e when the de tective r ece ived a pa g e. The detec tive returne d the pag e and le arne d that defe ndant had bee n implicated in the murder by codef endant Hughes. De tective Rajkovich r eturne d defe ndant to the police station. At the station, Dete ctive McD onald spoke with def endant a nd told him t hat it appea

red that defe ndant had lied in his previous stateme nt. Defe ndant admitted that he had lied a

nd subsequently

provided a

n inculpatory , court-r eporte d statement. In the cour

t-repor ted statement, de fenda

nt admitted that he was a

member of

the Gang ster Disciples stree t ga

ng . Def endant state d that KB (Alexander) was in control of his neig hborhood for the G ang ster Disciples a nd that KB ’s duties included dire ctingmembers, holdingmeeting s, and tellingmembers to be on se curity . Def endant state d that on the day of the Rodg ers murde r, at about 7 p.m., he met with code fenda nts Holiday

and Clarkson at his house. Defe ndant stated that Holiday

and Clarkson we re a lso members of the G ang ster Disciples a nd they informed defe ndant that they

wer e g oing to kill a riva l ga ngmember who worke d at the bea uty shop beca use that per son was involved in the murde r of one of the Ga ng ster Disciples’ leade rs. Holiday and Clarkson told defe ndant to meet them at 55th and Ra cine be tween 8 a nd 8:30 p.m., and that def

endant’ s role wa s to act as se curity while they

shot the rival g angmember. A t about 8 p.m., defe ndant went to the de signated cor ner, which was loc ated a cross the stre et from the

-4-1-08-3016 a nd 1-10-0702 ( Cons.) beauty shop, and Alexander dir ecte d defe ndant to his security post. Defe ndant stated that Alexander wa s directingever y one re g ardingwhat to do duringthe murder . Def endant notice d that Holiday

was c arr ying a Glock, and Clar

kson was ca

rry ing a .38- or .357- caliber

revolve r. Def endant watched six gangmembers, includingthree members who w ere arme d, walk towar d the bea uty shop. A short time later, de fenda nt hear d gunshots from inside the bea uty shop, and defe ndant left the sc ene a nd went home. De fenda

nt stated that he ha d not been thre atene d by police off icer s or an a ssistant S tate’s Attorne y and that he pr ovided the stateme nt under his own fre e will. Prior to trial, defe ndant filed a motion to quash arre st and to suppress his inculpatory statements. At the hea

ringon his moti on, defe ndant testified that on F ebrua ry 18, 1993, at about 3 p.m., he was dr iving in his ca r whe n police off

icer s pulled in front of him and blocke d his way

. Def endant testified that detectives g ot out of their vehicle s with weapons dr awn, or dere d defe ndant out of his car , handcuf fed de fenda

nt, and place d defe ndant in a police c ar a nd took him to the police station. Def endant testified that he was not a dvised of his Miranda rights and was held incommunicado. Def endant testified that the detec tives did not ask him whether he wanted to testify befor e the g rand jury

and no one pr ovided him with the option to s leep a t home on the eve ning be fore testifying be fore the g rand jury . After he testified be fore the g rand jury , defe ndant was r eturne d to the police station and de fenda nt testified that he wa s phy sically and psycholog ically

abused by police off icer s. Defe ndant testified that he w as told he would g o to jail for 100 y ear s if he did not cooper ate with the murde r investig ation. After he denie d involvement in the Rodge rs murder , -5-1-08-3016 a nd 1-10-0702 ( Cons.) defe ndant testified that De tective F oley slapped him in the fac e, grabbe d him by the throat, a

nd then slapped him ag ain. Def endant a lso testified that Detec tive McDona ld knocked ove r the chair that defe ndant was sitting on. O n cross-e x amination, defe ndant testified that he voluntar ily signe d the statement whic h said that he wa s well-tre ated by the police, but def

endant r efute d the

vera city of his signe d statement. The State a lso presente d sever al witnesses to testify at the suppression hea

ring . After

hear ing a rguments, the circ uit court made le ng thy finding s of fa ct. The c ircuit court f

ound that defe ndant voluntarily went to the police station to assistin the murder inve stigation and was not advised of his Miranda rights init ially beca use he w as considere d to be a witness at that time. W ith reg ard to the phy sical coe rcion c laim, the circ uit court found no c redible e vidence of police br utality . Acc ording ly , the circ uit court denied defe ndant’s motion to quash arr est and suppre ss his statements. At defe ndant’s trial, Colleen L ashley testified that on Fe bruar

y 10, 1993, she wa s working at the bea uty salon when six masked men enter ed the sa lon and fatally shot Rodger s. L ashley testified that the shooters use d a re volver, a Glock semiautomatic pistol, and a T ec- 9 pistol. On Fe bruar y 20, 1993, defe ndant’s mother r etrieve d and provide d police off icer s with a .38-ca liber revolve r fr om the family

home. L ashley

testified that the re volver wa s simil ar to the one used in the shooting. F irea

rm technic ian Richard Che now testified, among other thing s, that he inspected the bullets recove red f rom the victim and opined that they wer e fire d from either

a 9 milli meter or

.38-ca liber gun, though the bullets had class c hara cter istics consistent with being fired f rom the .38-c aliber r evolver

. Def endant testified that on Febr uary 10, 1993, he wa s at home with his friend, Te rre nce
-6-1-08-3016 a nd 1-10-0702 ( Cons.) Parks. At about 7 p.m., def endant lef t with Parks to take a dr ive. Def endant testified that he and Parks re turned to the ne ighbor hood around 9:30 p.m., whe re “ Pete” f lag g ed them down a

round the cor ner f rom wher e the shootinghad take n place . Def endant testified that “Pete” told him about the shootingthen advised de fenda nt that he should g o home. Def endant identifie d a photo of Johnell Alex ander

as being“Pete” and “K

B.” Def endant testified that he went home a nd spent the re st of the eve ning the re. Par ks testified and c onfirmed that he was with def endant dur ing this ti me. Def endant then te stified consistent with his pretrial testimony reg ardingthe eve nts that prec eded his a

rre st. W ith respec t to his claim of phy sical coe rcion, de fenda nt raised a

new alleg ation that unidentified police of fice rs had thre atene d to burn him with a cig are tte and beat him if he did not give an inculpator y statement. De fenda

nt testified that Detec tive Foley slapped him in the face twice a

nd g rabbe d him by

the throat. De fenda

nt also testified that another detec tive knocked ove r the c hair that he was sitting on. De fenda nt denied that he pr ovided g ang members with a gun from his house to use in the murde r. De fenda nt testified that a fe male assistant State’s Attorney told him t he deta ils of the murder a nd instructed him to repe at those details when the court re porter a rrived. On cr oss-examination, defenda nt testified that he, Holiday , Clarkson and “ Main Main” (Hughes) we re a ll members of the G ang ster Disciples. De fenda nt testified that another

member of the Ga ng ster Disciples, Insane Way ne Wilson, codefenda

nt Wi llie Wi lson’s brother, ha d been murdere d prior to the Rodg ers shooting . Def endant f urther te stified that Clarkson was laughing when he confe ssed to defe ndant the day afte r the Rodg ers shootingthat he, Wilson and Holiday

-7-1-08-3016 a nd 1-10-0702 ( Cons.) had par ticipated in the murde r. De fenda nt testified sever al times that he told the truth in the handwr itten statement he g ave the first assistant State’s Attorney and duringhis gr and jury testimony . Def

endant testified that after

testifying be fore the grand jury , he wa s phy sically abused by police off

icer s some three to four hours a fter a rrivingat Are a One police hea dquarte rs. Def endant maintaine d that it was afte r this abuse that he g ave the court-r eporte d statement containingthe inculpatory details g iven to him by

the police a

nd the fe male assistant State’s Attorney . In defe ndant’s cour t-repor ted statement, he stated that he ha d not been thre atene d by an assistant State’s Attorne y or police of

fice rs and that he g ave the statement under his own fre e will. Def endant’ s mother testified that she ke pt the .38-ca liber gun locked in a gun case and that she wa s the only

person who ha d a key

to the case . Def

endant’ s mother also testified that on Fe bruar y 18, 1993, she lea

rned that defe ndant was a rre sted by the police a

nd went to the police station, but she was not allowed to spea k to defe ndant until two day s later. Detec tive Foley

testified that he wa s involved in the Rodge rs murder investigation and prese nt in the interview room whe n defe ndant made the inculpatory statement. De tective F oley testified that he did not slap or grab de fenda nt by the throat duringthe interview . Detec tive Foley also testified that he did not see any other police office rs phy sically abuse de fenda

nt. After deliberations, the jury

found def

endant g uilty of first degree murder. D efe ndant was subseque ntly

sentenc ed to 40 y ear s in prison for the fir st deg ree murder of Rodge rs. On direc t appea l, defe ndant ar gued that: (1) the circ uit court err ed in deny ing his motions to quash his arre st and suppress his inculpatory statement; (2) the circ uit court err ed in admitting two g uns
-8-1-08-3016 a nd 1-10-0702 ( Cons.) into evidence ; (3) the c ircuit court e rre d in allowing te stimony reg ardinga ca

r into evidenc e; (4) a witness’s testimony

violated a motion in limine ; (5) def endant wa s denied a

fair tr ial due to prosec utorial misconduct; (6) the c ircuit court e rre d in allowing guns and photographs to g o back to the jury

duringdeliberations; and (7) def endant wa s not proven guilty beyond a re asonable doubt. This court resolve d defe ndant’s dire ct appe al and a ffirme d his conviction and sentenc e. People v. Gillespie, No. 1-94- 4135 (June 30, 1997) (unpublished order under Supre me Court Rule 23). In J une 1997, while his direc t appea l was pending , defe ndant filed his initial pro se postconviction petition, which was summarily dismiss ed by

the circ uit court. Counsel was appointed to re prese nt defe ndant in his appea l of the summary dismiss al. That c ounsel, Erika Cunliffe, filed a

motion requestingthat this court dismiss defe ndant’s postconviction appe al without prejudice be cause counsel ne eded a dditional tim e to obtain and r eview the Offic e of Professional Standar ds (OPS) repor t which detailed police brutality at Are a 2 police headqua rters. This c ourt g rante d that motion and dismi ssed the appe al without prejudice . People v. Gillespie, No. 1-97- 3075 (1998) ( dispositi onal orde r). In J anuar y 1999, with the assistance of that same c ounsel, defe ndant filed a n amende d postconviction petition in t he trial c ourt alleg ing that: (1) he wa s innocent of the c rime; (2) ne wly discovere d evidenc e cor

roborated his claim that his confe ssion was induced by phy sical and psy cholog ical coe rcion; (3) the State violated its duties under B rady v. Maryland, 373 U.S. 83, 10 L . Ed. 2d 215, 83 S. Ct. 1194 (1963), by failingto provide the de fense with evidence of a pattern and pra ctice of

police bruta lity ; (4) trial c ounsel was inef fec tive for not investig atingand

-9-1-08-3016 a nd 1-10-0702 ( Cons.) prese nting e vidence of police br utality at Are a 2 police he adquar ters; (5) tr ial counsel wa s ineffe ctive for

failingto subject the guns and ammunition admitted into evidence to a ny meaning ful testing; a

nd (6) the a dmission of the guns a nd ammunition int o evidenc e pre judiced defe ndant. On September

1, 1999, defe ndant’s motion for substitution of judges wa s g rante d and his

case was tra

nsfer red to Judge Ma

ry Ellen Coghla

n. After hear ing a rguments from the pa

rties, on May 18, 2000, J udg e Cog hlan issued an 11 pa g e wr itten ruling r ejec ting de fenda nt’s claims. In that order , the circ uit court found that def endant f ailed to establish a f

ree standingclaim of his actua l innocence , citing People v. Washington, 171 I ll. 2d 475, 479 (1996). Rather, the circ uit court, re lying on People v. Hobley , 182 I ll. 2d 404, 444 (1998) (Hoble y I I ), held that de fenda

nt’s newly discovere d evidenc e cla im, that police office rs at Ar ea 2 he adquar ters eng ag ed in a pattern and pra ctice of

police torture , was be ing use d to supplement the asser tion that defenda

nt’s confe ssion was coe rce d and involuntary and that the introduc tion of his confession at trial violated his constitutional rights. Ther efor e, def endant’ s alleg ations failed to support a fre estandingclaim of a ctual innoce nce. With respec t to defenda nt’s alleg ed B rady

violation, the circ uit court held that def endant f ailed to demonstrate that the prior a lleg ations of police br utality

wer e: (1) not unduly

remote, ( 2) we re a g ainst the same of fice rs, and ( 3) we re similar to the alleg ations put forth by

defe ndant. Also, there was no e vidence of injury consistent with police brutality . The c ircuit court f urther f ound that defe ndant’s cla ims of ineffe ctive assistanc e of tria l counsel we re ba

rre d from re view pursua

nt to the doctrines of w aiver and res judicata

. Consequently , the circ uit court dismissed defenda nt’s amende d petition without conducting a n
-10-1-08-3016 a nd 1-10-0702 ( Cons.) evidentiar y hear ing. On appe al, this court af

firmed the c ircuit court’ s judgme nt. People v. Gillespie, No. 1- 00-3524 ( De cembe r 31, 2003) ( unpublished order under Supre me Court Rule 23). In aff irming, this court held that def

endant’ s amende d postconviction claim of new ly discovere d evidenc e to support his claim that his confession wa s coer ced w as for feited where the issue had be en fully adjudicate d and whe re de fenda nt’s proff ere d evidenc e wa s neither “ new” nor of suc h conclusive evidenc e that it would probably chang e the r esult on retria l. The I llinois Supreme Court denie d defe ndant’s petition for lea ve to appe al. People v. Gillespie, 208 I ll. 2d 545 (2004). On August 1, 2007, defenda nt filed a pro se second postconvic tion petition allegingthat the statute authorizing ma ndatory supervised r elea se wa s unconstitutional. On September 20, 2007, the circ uit court found that def endant f ailed to meet the c ause a

nd prejudice test for

succe ssive postconviction petitions and denied him leave to file the petition. On J uly 28, 2008, defe ndant, with the assistance of his attorney Erika Cunliffe , filed a third succe ssive postconviction petition and for re lief pursua nt to section 2-1401 of the Code (735 I L CS 5/ 2-1401 (West 2008)). In his petition, defendant a sserted that: (1) he is ac tually innocent; (2) the State withheld evidenc e in violation of Br ady , 373 U.S. at 87, 10 L . Ed. 2d at 218, 83 S. Ct . at 1196-97; and ( 3) trial counse l was ineff ective f or fa iling to investig ate a

nd call witnesses who c ould have c orrobor ated his cla im of innocenc e. On Oc tober 20, 2008, the c ircuit court de nied def

endant lea

ve to file his third postconviction petition and found that def endant failed to a dvance a cla im or defe nse establishingentitlement to relief unde r sec tion 2-1401, conseque ntly

dismiss ing the petition. Defe ndant filed a timely notice of a

ppeal f rom that

-11-1-08-3016 a nd 1-10-0702 ( Cons.) judgme nt (No. 1-08- 3016). On May 20, 2009, while def

endant’ s appea l was pending , defe ndant, throug h curr ent postconviction counsel Profe ssor Andre a Lyon, filed a f ourth postconviction petition and a second pe tition for relief unde r sec tion 2-1401. In that petition, defenda nt alleg ed that: (1) ne wly discovere d evidenc e supports his claim of a ctual innoce nce; ( 2) the State withheld e vidence in violation of Br ady , 373 U.S. at 87, 10 L . Ed. 2d at 218, 83 S. Ct. at 1196-97; (3) trial counse l was ineffe ctive for

failingto interview Johnell Alex ander as a w itness; and (4) pr evious postconviction counsel, Erika Cunliffe, wa s ineffe ctive whe re she failed to investig ate a nd interview Johnell Alex ander

. On Fe bruar

y 17, 2010, the circ uit court dismissed defenda nt’s petition under sec tion 2- 1401 and denie d defe ndant leave to file his fourth postconviction petition. I n the circ uit court’s 23-pag e wr itten order, the court e x plained def endant’ s alleg ations of a pattern and pr actice of abuse a s follows:

“The methods of abuse in [ defe ndant’s] attachments ar e as f ollows: (1) Smit h filed a c omplaint in 2003, allegingthat detec tives used ‘e x cessive f orce ’ ag ainst him; (2) Wiley claimed F oley

shouted and c ursed at him and told him that he knew who killed these women; (3) Kittler alleg ed Rajkovich suppre ssed evidenc e; (4) Jackson’s alleg ations of abuse are unclea r; and (5) McDorma

n’s alleg ations ag ainst McDonald involve his alleg ed knowledg e that anothe r off icer was inebr iated whe n he drove into McDorma

n’s ca r and f alsified docume nts to cover up this fac t.” The c ircuit court f

ound that these a lleg ations were not simi lar to the a lleg ations prese nted by

-12-1-08-3016 a nd 1-10-0702 ( Cons.) defe ndant. Specific ally , defe ndant alleg ed in his petition that on Februa ry 19, 1993, he had be en detained a

t Area 1 since the pr evious day

without being inf

ormed of his Mira

nda rights. Def endant a lleg ed that De tective F oley handcuf fed him to a c hair then slappe d defe ndant in the fac e, g rabbe d defe ndant’s throat, and knocke d defe ndant to the g round. De fenda nt also alleg ed that Detec tive Foley

told him t hat if he did not “g o alongwith what was ha ppening ,” it would only g et worse and def

endant would r ece ive a “ hundred year s in prison” if he did not implicate himself in the murder of

Rodge rs. The c ircuit court a lso held that defe ndant’s alleg ations of abuse wer e fa r too remote to be materia l. The cour

t noted that defe ndant’s interr og ation had take n place in Febr uary 1993; wher eas, a lmost all of the incidents contained in de fenda nt’s fourth postconviction petition

occur red w ell afte r def

endant’ s trial had conc luded. The c ourt furthe r noted that a lthough Smit h’s alleg ations ag ainst Detec tive Foley occur red in 1992, that incide nt alone would not

war rant g iving de fenda

nt a new tr ial. The c ircuit court f

urther he ld that even if de fenda nt were to demonstrate that the e vidence of a pattern of a

buse wa s material, de fenda nt failed to establish that the e vidence was of suc h a conclusive c hara cter

that it would probably

chang e the r esult on retria l. The cour t expl ained: “I f the jury

wer e appr ised of the f

act that F oley

shouted duringhis interrog ation of Wil ey , there is scant likelihood they would have de cided the issue of [defendant’ s] guilt differ ently . Simi larly , none of the rema ining a lleg ations included in this evidence are specific enoug h to have da mag ed the c redibility

of all four

detec tives who testified at either [defe ndant’s] suppression hear ing or trial or led to the suppre ssion of [defendant’s]

-13-1-08-3016 a nd 1-10-0702 ( Cons.) statements. Consequently , this evidence is *** not of a conc lusive char acte r that it would alter the outcome of [defe ndant’s] trial.” In addition, the circ uit court held that Johnell Alex ander ’s af fidavit, submitted by defe ndant in support of his claim of a ctual innoce nce, f ailed to qualify

as “ne wly

discovere d evidenc e” a

nd was immateria l to defenda nt’s actua l innocence claim. The c ircuit court e x plained that Alexander wa s well known to defe ndant and Ale x ander ’s involvement in the shooting w as broug ht out at trial, primarily as a r esult of def

endant’ s statement to police. The circ uit court also noted that code fenda

nt Wi llie Hug hes’ state ment, which wa s available to defe ndant prior to his trial, furthe r implicated Ale x ander as the a lleg ed ring leade r. The c ircuit court f urther e x plained that the evidenc e wa s not material whe re A lexander maintained that he was not involved in the shooting, he did not order de fenda nt to be a look out, and he w as with his girlfriend a t the time of the shooting. The circ uit court conc luded that “Ale x ander ’s af fidavit of propose d testimony is

mere ly inconsistent with the confe ssion of [defendant] (and Willi e Hughes) a nd would not establish [defendant’ s] actual innocenc e.” Def endant f iled a timely

notice of a

ppeal f rom the circ uit court’s orde r deny ing de fenda

nt leave to file his fourth postconviction petition and dismissi nghis petition under section 2-1401 (No. 1-10- 0702). On May 20, 2010, this court g rante d defe ndant’s motion to consolidate his appea ls in Nos. 1-08-3016 and 1- 10-0702. I I . ANALYSI S A. Succe ssive Postconviction Cl aims On appe al, def

endant c ontends that the circ uit court err ed whe n it denied him leave to f ile

-14-1-08-3016 a nd 1-10-0702 ( Cons.) his successive postc onviction petitions where he proper ly alleg ed: (1) that the State failed to disclose exculpatory

evidenc e as r equire d by

Br ady , 373 U.S. 83, 10 L . Ed. 2d 215, 83 S. Ct. 1194; (2) he w as denie d the ef fec tive assistance of counse l at trial and during previous postconviction proce eding s; and (3) ne wly discovere d evidenc e demonstra tes his actual innocenc e. A postconviction proce edingis a collater al proc eedingrathe r than a n appea l of the underlying judgment and allows re view of c onstitut ional issues that were not, and could not have been, a djudicated on dire ct appe al. People v. Pitsonbarg er, 205 I ll. 2d 444, 455-56 (2002). Successive postc onviction petitions are disfavor ed under the Act a nd a def endant attempting to institute a suc cessive postc onviction proce eding , throug h the filingof a se cond or subse quent postconviction petition, mustfirst obtain leave of cour t. People v. Tidwell, 236 I ll. 2d 150, 157 (2010). L eave to file a succ essive postconviction petition may only be grante d wher e a de fenda nt “demonstrates ca

use for his or her f

ailure to bringthe claim in his or her initial post -convic tion proce eding s and pre

judice re sults from that failure.” 725 I L CS 5/ 122-1(f ) (West 2008); see also Tidwell, 236 I ll. 2d at 157. Cause may be shown by

pleadingsome objective f actor external to the def ense that impeded counse l or defe ndant from timely raisingthe claim in an e arlier proce eding . Pits onbarg er, 205 I ll. 2d at 460. Prejudice is shown whe n the def endant pr esents a claim of a constitutional error that so infected his trial that his convic tion violated due proc ess. People v. Will iams, 392 I ll. App. 3d 359, 366 (2009); People v. Ande rson, 375 I ll. App. 3d 990, 1006 (2007). Howeve r, our supre me cour t has held that the c ause a nd prejudice require ment for a

-15-1-08-3016 a nd 1-10-0702 ( Cons.)

succe ssive postconviction petition is ex cused when a de fenda nt sets forth a c laim of ac tual innocenc e in a suc cessive postc onviction petition. P eople v. Or tiz , 235 I ll. 2d 319, 330 (2009). In Ortiz, our supreme c ourt held: “ ‘The prec lusion doctrines of res judicata , collater al estoppel, a nd law of the ca se pre vent a de fenda nt from “takingtwo bites out of the same a ppellate apple” ’ and a

void “ ‘piec emea l postconviction lit iga tion.’ ” People v. Te nner, 206 I ll. 2d 381, 395 (2002) quoting People v. Partee , 125 I ll. 2d 24, 27 (1998). Where a def endant pr esents new ly

discovere d, additional evidenc e in support of a claim, collater al estoppel is not applicable beca use it is not the same ‘cla im.’ Tenner , 206 I ll. 2d at 397-98; [citation] . In the instant case , althoug h defe ndant’s first two petitions also alleg ed ac tual innocenc e, def endant’ s third petition presents a ne w ‘cla im’ of ac tual innocenc e bec ause it off ere d two additional eyewitnesses who

wer e pre viously

unknown to defe ndant.”( Emphasis added.) Ortiz, 235 I ll. 2d at 332-33. Turningto the merits of the pe tition, we reviewthe denial of defe ndant’s motions for leave to file a suc cessive postc onviction petition de novo . People v. L aPointe, 365 I ll. App. 3d 914, 923 (2006), aff’d, 227 I ll. 2d 39 (2007). In order to obtain relief unde r a the ory of ac tual innocenc e, the “ defe ndant must show that the evidenc e he is re lying on ( 1) is of such c onclusive cha rac ter that it will probably chang e the result on re trial; (2) is mater ial to the issue, not merely cumulative; and ( 3) wa s discovere d since trial and is of such c hara cter that the def

endant in the e x erc ise of due dilig ence could not have

-16-1-08-3016 a nd 1-10-0702 ( Cons.) discovere d it earlier .” Ande rson, 375 I ll. App. 3d at 1006, citing People v. Br ockman, 363 I ll. App. 3d 679, 689 (2006), a nd People v. Ora

ng e, 195 I ll. 2d 437, 450-51 (2001). 1. Br ady Claims a. Pattern of

Police Torture and Coerc ion at Are a 1 Def endant f irst contends that he should have been grante d leave to file his succe ssive postconviction petitions where his constitutional rig ht to due proce ss of law a nd his right to a f

air trial wer e violated whe n, duringhis 1993 hearingon his moti on to suppress and 1994 tria l, the State failed to disclose a ll ex culpatory evidenc e as r equire d by

Br ady , 373 U.S. at 87, 10 L . Ed. 2d at 218, 83 S. Ct. at 1196-97. In Br ady , the United States Supreme Court he ld that the prosec ution mustdisclose evidenc e that is both favor able to the a ccuse d and “material e ither to guilt or to punishm ent.” B rady , 373 U.S. at 87, 10 L . Ed. 2d at 218, 83 S. Ct. at 1196-97; People v. Sanchez, 169 I ll. 2d 472, 485-86 (1996). Evidenc e is consider ed “material” if there is “a

rea sonable proba

bility that, had the e vidence been disc losed to the defe nse, the re sult of the proce edingwould have be en diffe rent.” United States v. Ba g ley , 473 U.S. 667, 682, 87 L . Ed. 2d 481, 494, 105 S. Ct . 3375, 3383 (1985); Sanche z, 169 I ll. 2d at 486. In support of his succe ssive postconviction petitions in t he cir cuit court, de fenda nt cited the Goldston Report and include d a list of complaints from witnesses a nd suspects who a lleg ed phy sical and psy

cholog ical abuse at Are a 1 hea dquarte rs. Def endant submitted a table outlining the complaints of abuse with his appellate brie f as “ Appendix I I .” De fenda nt argues that the evidenc e outlined in Appendix I I , which the State f ailed to disclose, shows that nine of the Are a 1 office rs involved in this case ha d eng ag ed in a pattern and pr actice of torture and coe rcion a nd

-17-1-08-3016 a nd 1-10-0702 ( Cons.)

corr oborate s defe ndant’s alleg ations of coe rcion. How ever , defe ndant’s B rady claim, base d on the State’s alleg ed fa ilure to disclose informa tion reg ardinga patter

n and pra ctice of

police torture a nd coer cion, has be en ra ised and fully adjudicate d. At trial, defe ndant moved to suppress the sta tement he made to police while in custody , arguing that it was coer ced a nd g iven involuntarily

beca use he w as abuse d by

the police of

fice rs who interrog ated him. Def endant a lleg ed that De tective F oley slapped him in the fac e twice and g rabbe d him by

the throat, a

nd that Detec tive McDona ld kicked over his chair. The trial court denied de fenda

nt’s motion, finding no cr edible evide nce of police bruta lity , and allowe d the statement into evidenc e. On dire ct appe al, def endant a g ain argued that his statement wa s involuntary . This court found that the tr ial court’s de termination that defe ndant’s stateme nt was voluntary was not ag ainst the manifest we ight of the evidenc e and, a ccor dingly , we uphe ld his conviction. People v. Gillespie, No. 1- 94-4135 (June 30, 1997) (unpublished orde r under Supreme Court Rule 23). In defe ndant’s ame nded postconviction petition, filed in J anuar y 1999, defe ndant ag ain alleg ed that police br

utality compelled his conf

ession. Def

endant named Dete ctive F oley in his aff idavit attache d to the amende d petition, but did notname a ny other off icer . Def endant’ s mother, Maxine Fra

nklin, submi tted an af

fidavit alleg ing that Detec tive Boudr eau pr evente d her from see ing de fenda

nt in the police station. The postconviction cour t dismi ssed def

endant’ s amende d petition without an evidentiary hear ing. O n appea l, defe ndant ar gued that the postconviction court should have conducte d an evide ntiary hear ing where newly

discovere d evidenc e supported his c laim that his statement was the re sult of police coe rcion a nd the State

-18-1-08-3016 a nd 1-10-0702 ( Cons.) failed to provide the def

ense w ith evidence of a pa ttern and pr actice of police br utality as require d by

Br ady

. In aff irming the dismiss al of his petition without an evidentiary hear ing, this cour

t held that defe ndant’s postconviction cla im of newly discovere d evidenc e to cor roborate his claim that his confession wa s coer ced a nd involuntary

was ba rre d by this court’s prior dispositional order. People v. Gillespie, No. 1-00- 3524 (De cembe r 31, 2003) (unpublished order under Supre me Court Rule 23) . Def

endant’ s proffe red ne w evidenc e in support of his amende d petition had included: (1) the Goldston Report, which wa s part of the OPS investi g ation into police brutality at Are a 2 hea dquarte rs; (2) two other men had f

iled complaints that Detec tive Foley had kicke d and thre atene d them while they wer e in custody ; (3) ther e we re c omplaints ag ainst one of the other de tectives who pa

rticipated in the inve stigation of the Rodge rs homicide, De tective Boudr eau, r eg ardingphy sical and psycholog ical coe rcion; (4) portions from a postconvic tion petition filed in a diffe rent c riminal case which alleg ed that four detec tives, one of whic h was Detec tive Boudr eau, e ng ag ed in abuse in that case ; and (5) c odefe ndant Will ie Hughes also alleg ed police br

utality in his mot ion to suppress statements bef ore his trial. This court initially

noted that def

endant r elied on the Goldston Report, whic h was compiled in 1990 and found a lleg ations of abuse in Area 2 to be cr edible in at lea st eig ht case s. This court obser

ved that def

endant wa s held and que stioned in Area 1, in Febr

uary of 1993. This court e x plained that def

endant’ s amende d postconviction petition alleg ed police c oerc ion but did not name any

police off

icer s. Defe ndant named D etec tive Foley in his affidavit attac hed to the amende d petition, but did notname a ny other off icer . Def endant’ s mother, Maxine Fra nklin,

-19-1-08-3016 a nd 1-10-0702 ( Cons.) alleg ed that De tective B oudrea u preve nted her

from see ing de fenda

nt at the police station. Howeve r, these a lleg ations had all bee n adduce d duringthe suppression hea ringand during defe ndant’s trial. Thus, this court c oncluded that this information wa s not new evide nce at all. Wit h respe ct to defe ndant’s alleg ations on appea l that Detec tives McDonald, Clanc y , and Rajkovich wer e involved in proc uringdefe ndant’s conf ession by coer cion, this court noted that defe ndant did not name any of these de tectives in his initial pro se or in his amended post conviction petition. Whi le def endant testified dur ing his motion to suppress statements that Detec tive McDona ld kicked his cha ir, he did not name him at trial. In addition, defe ndant did not point to any

objective f

actor that preve nted him from namingDetec tives McDonald, Clanc y , and Rajkovich e ither at trial or in his ini tial or amende d postconviction petitions. Theref ore, defe ndant was not a llowed to prese nt these alleg ed abuse s for the f irst time on appeal of

the denial of his ame nded postconviction petition. See People v. Gosier , 205 I ll. 2d 198, 203 (2001) (“ ‘ [A] rulingon a post-convic tion petition has res judicata eff ect with re spect to all cla ims that

wer e ra ised or could have bee n raised in the initial petition’ ”), quotingPeople v. Fr ee, 122 I ll. 2d 367, 375-76 (1988)

. This court fur

ther found, e ven assuming arguendo that defe ndant’s evide nce w as new , the evidenc e of pr ior police bruta lity proff ere d by defe ndant was insuff

icient to support the g rantingof an e videntiary hear ing. T his court found de fenda nt’s relianc e on People v. Patter son, 192 I ll. 2d 93 (2000), People v. King , 192 I ll. 2d 189 (2000), and People v. Ca nnon, 293 I ll. App. 3d 634 (1997), in support of his conte ntion that he was e ntitled to an evidentiary hear ing, to be misplaced. This cour

t expl ained:

-20-1-08-3016 a nd 1-10-0702 ( Cons.)

“In People v. Ora

ng e, 195 I ll. 2d 437 (2001), Ora ng e had be en ar

rested a nd interviewe d by

Are a 2 dete ctives in 1984. Ora ng e conf essed a nd was subsequently

convicted. T he cir cuit court subseque ntly dismiss ed Or ang e’s postconviction petition withoutan evide ntiary hear ing. I

n aff irming the dismiss al, the supreme court distinguishe d their holding s in King a nd Patterson: ‘Unlike the pr esent c ase, the defe ndants in both of those ca ses identified or de scribed the office rs that had a lleg edly abused the m at Are a 2. In those ca ses, it was also undisputed that the off icer s involved in the interrog ations were also named in the O PS reports as committing ac ts of phy sical abuse or fa iling to stop such abuse . King , 192 I ll. 2d at 198; Patterson, 192 I ll. 2d at 107-08; People v. Patterson, 154 I ll. 2d 414, 440- 45 (1992). In contra st, the defe ndant in the pre sent ca se, [Orang e], did not descr ibe the off

icer s that alleg edly

had torture d him and did not identify any of the off icer s at his trial or in his first postconviction petition. Fur ther, the of

fice rs who testified at [ Ora ng e’s] trial that they

wer e responsible for

the def endant’ s interrog ation wer e not named in a ny of the internal police investigations as havingabused suspe cts.’ Or ang e, 195 I ll. 2d at 460-61. The office rs involved in the interrog ation of Cannon we re simil arly named in the OPS repor

ts as committing ac ts of phy sical abuse or fa iling to stop such abuse . Cannon, 293 I ll. App. 3d at 640-41. The fac ts in the instant case a

re ve ry simil ar to those in Or ang e and a re
-21-1-08-3016 a nd 1-10-0702 ( Cons.)

dissimi lar to the fa cts in Patterson, King , and Cannon. Conseque ntly , we will apply the ana ly sis in Orang e ra ther than the analy ses in Patterson, King , and Cannon.” People v. Gillespie, No. 1-00- 3524 slip op. at _____ (De cembe r 31, 2003). This court then c ited our supre me cour t’s holding in Hobley

I I , that the def

endant wa s not entitled to an evidentiar

y hear ing on his c laim that a new tr ial was wa rra nted bec ause of

newly discovere d evidenc e of police brutality at Are a 2, base d on the Goldston repor t and transc ripts of testimony by other pe rsons alleg ing that they wer e victims of such police brutality . Our supre me court e x plained, “[F]undamental f airne ss does not require that we r elax the res judicata bar a nd revisit the issue. In order for ne wly

discovere d evidenc e to war rant a new tria l, the evidenc e must be ‘ “ ‘ of such c onclusive evide nce that it will probably chang e the r esult on retria l.’ ” ’ Hobley I I , 182 I ll. 2d at 449, quoting People v. Silag y , 116 I ll. 2d 357, 368 (1987), quoting People v. Molstad, 101 I ll. 2d 128, 134 (1984), quoting People v. Ba ker, 16 I ll. 2d 364, 374 (1959). In defe ndant’s ca se, this court conc luded, “[H]ad the evidenc e of police brutality alleg ations made a g ainst detec tives at Are a 2 betwe en 1973 and 1986 be en introduce d at [defendant’ s] t rial, it is not li kely that the jury

would have c oncluded that [defe ndant’s] confe ssion to Area 1 de tectives in 1993 wa s coer ced.” Gillespie, slip op. at ____. There fore , this court c oncluded that the tr ial court c orre ctly dismiss ed def

endant’ s amende d postconviction petition. People v. Gillespie, No. 1-00-3524 ( Dec ember 31, 2003) (unpublished orde r under Supreme Court Rule 23). Thus, inasmuch as the pur pose of the A ct is to address issues of c onstitut ional dimension

-22-1-08-3016 a nd 1-10-0702 ( Cons.) that have not a

nd could not have be en pre sented in an e arlier proce eding , the doctrine of res judicata bars de fenda

nt from now re visiti ngthis same issue. See Patterson, 192 I ll. 2d at 139. Howeve r, def

endant now c laims that he has discove red ne w evidenc e that re veals a pattern of abuse a nd torture by

police off

icer s assig ned to investig ate the Rodg ers murde r. De fenda nt

asser ts that this court’s decision af firmingthe dismissal of defe ndant’s ame nded postconviction petition “was ba sed on diffe rent fa cts than ar e pre sented in the pe titions that are the subject of this appeal.” Specifica lly , defe ndant maintains: “unlike in that dec ision, the alleg ations of torture and coe rcion c ontained in Appendix I Iare (1) not unduly remote, ma

ny occur red in the same time period as [defe ndant’s] ‘interrog ation’ and ( 2) ar e ag ainst the same of fice rs, Dete ctives McDona ld, Foley , Clancy , and Rajkovich.” Def endant maintains that ha d this information been disclosed by

the State, it would have substantiated de fenda nt’s claim that his inculpatory statement wa s the product of coer cion and that he had nothingto do with the crime. Our supre me cour

t has rec og nized that, in the interests of fundamental fa irness, the doctrine of res judicata may be re laxed if the defe ndant pre sents substantial new evide nce. Patterson, 192 I ll. 2d at 139. To merit a new trial, the evide nce must be of such conc lusive char acte r that it will probably chang e the r esult upon retria l; be materia l and not mere ly cumulative; discover ed since the trial; and of suc h char acte r that it could not have be en discovere d prior to trial by the exercise of

due dilige nce. Patter son, 192 I ll. 2d at 139. Applying the afor ementioned standa rd, the postconviction cour ts found defe ndant’s evidenc e insuffic ient to relax the proce dural ba r of res judicata . Whil e def endant pr eviously relied on Patter son in support of his amended postconvic tion petition, defendant now a rgues that -23-1-08-3016 a nd 1-10-0702 ( Cons.) the postconviction court e rre d in applying the Patterson standar d to defe ndant’s B rady claim. Def endant a rgues that since his trial wa s in 1994, the postconviction courts should not have applied the standa

rd under Patterson, which wa s decide d six year s later. De fenda nt acknow ledg es that, “The corr ect a naly sis, when deter

mining whe ther knowle dg e of the pattern and pra ctice of

police torture and coe rcion would have sig nificantly altere d the outcome of [defendant’ s] t rial, should be conf ined to what wa s known to the parties at the time of the trial.” Def endant a rgues that newevidenc e, as outlined in Appe ndix I I , shows that four of fice rs involved in defe ndant’s interr og ation (De tectives F oley , McDona ld, Clancey , and Rajkovich)

wer e implicated in alleg ations of torture, c oerc ion, and misconduct. De fenda nt asserts that this evidenc e also include s alleg ations ag ainst other Ar ea 1 of fice rs (Paladino, O’ Brien, B oudrea u, and Ha lloran) a

nd “ther e is no way

of absolutely

knowingthat these other office rs also did not play a role in eliciting the f

alse stateme nt from [defenda nt] .” Howe ver, only

two examples cited by defe ndant to show a pattern and pr actice of abuse could have been known to the State at the time of defe ndant’s trial. First, a 1991 inc ident involving De tective B oudrea u, in which he wa s repr imanded for failingto have a

y outh office r in the interr og ation room, as re quired whe n questioning a juvenile suspect. De fenda

nt submit ted a Chica g o Tribune a rticle, wr itten on Dece mber 17, 2001, whic h included information about this i ncident and othe r alleg ations of abuse and misconduct a g ainst Detec tive Boudr eau. E ven if the State w ere awa re of Detec tive Boudr eau’ s 1991 repr imand, it is unclea r why the State had a

duty to disclose this information under B rady . Def endant ha s not alleg ed that De tective B oudrea u was involved in def

endant’ s interrog ation and def endant’ s
-24-1-08-3016 a nd 1-10-0702 ( Cons.)

succe ssive postconviction petitions did notname De tective B oudrea u in his alleg ations of police brutality . Fur

ther, De tective B oudrea

u’s re primand did not involve simil ar me thods of abuse a s alleg ed by

defe ndant. Ther efor e, this evidenc e could not be de emed mate rial to defe ndant’s alleg ations that police brutality compelled his conf

ession. Second, def

endant c ites alleg ations by Howar d Wil ey

that, on Dec ember

3, 1985, he voluntarily

acc ompanied police of

fice rs to Are a 3 hea dquarte rs to discuss a triple homicide, wher e De tective F oley

shouted, curse d, and spit at him. W iley also alleg ed that anothe r dete ctive threatened to ar

rest his wife in c onnection with the homicide. Wiley ’s alleg ations are contained on his personal homepa g e on the we b site for The Canadian Coalition Ag ainst the Death Penalty (CCADP). Acc ordingto the web site, “ the CCADP has offe red f ree webspa ce to ove r 1,000 Death Row Prisoners since 1998.” T hus, it is unclear whe ther the State w ould have known of Wil ey ’s alleg ations at the time of def endant’ s 1994 trial. Even if this evidenc e wa s known to the State at the time of de fenda nt’s trial and the jury

was a pprised of the alleg ations that Detec tive Foley shouted, curse d, and spit at Wil ey , there is scant likelihood it would have dec ided the issue of def endant’ s guilt differe ntly . There fore , there is no reasona ble proba bility that, had the evidenc e bee n disclosed to the def ense, the result of the pr ocee ding w ould have be en diffe rent. See United States v. B ag ley , 473 U.S. 667, 682, 87 L . Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985); Sanche z, 169 I ll. 2d at 486. We further

note that def

endant’ s fourth postconviction petition is barre d by res judicata wher e def endant’ s alleg ations of police torture and coe rcion have bee n raised a nd fully adjudicate d. The bruta lity issue was ra ised and re

jected on dir ect a

ppeal. De fenda

nt’s amende d

-25-1-08-3016 a nd 1-10-0702 ( Cons.) postconviction petition, filed in J anuar y 1999, raised the same issue with no newevidenc e. Def endant subseque ntly

filed a third suc cessive postc onviction petition, which the circ uit court proper ly denied lea

ve to file. De fenda

nt’s fourth postconviction petition merely added two othe r alleg ations of brutality

in other ca ses involving De tectives B oudrea u and F oley . As previously explained, these two other a lleg ations do not provide a suff icient basis to believe the result of the proce eding s would have be en diffe rent. Ac cording ly , defe ndant’s four th postconviction petition is barre d by res judicata . Gosier, 205 I ll. 2d at 203 (“ ‘[A] ruling on a post-conviction petition has a res judicata eff

ect with re spect to all cla ims that were r aised or c ould have be en ra ised in the initial petition’ ”), quoting F ree , 122 I ll. 2d at 375-76. b. J ohnell Alexanders’ Stateme nt Def endant a lso contends that the State violated the B rady rule by failingto disclose that J ohnell Alexander (“ KB ”) pr ovided a pr etrial stateme nt to police in which he de nied participation in the homicide. In support of his argument, defe ndant attac hed an a ffidavit fr om Alexander in which A lexander stated that he did not org anize a mee ting or plan the shootingof Rodge rs. Alexander state d that on the day of the shooting , he wa s with his girlfriend at 68th and Wood S tree t. Alexander stated that he was intervie wed by Detec tive Boudr eau r eg ardingthe Rodge rs shooting a

nd provided the de tective with his alibi. Alexander also told the dete ctive that any testimony

in defe ndant’s ca se implicatingAlexander in the shootingwas fa lse. After Alexander wa s not identified in police lineups, Alexander wa s relea sed fr om custody and not char g ed with the shooting . Alexander a lso testified duringthe succ essive postconviction proce eding s that his affidavit wa s true.

-26-1-08-3016 a nd 1-10-0702 ( Cons.) Def endant a rgues that Alexander’ s statement under mines the State’s theory

of the c ase that Alexander orc hestrate d the shooting a nd direc ted def

endant to be the lookout. Defe ndant

asser ts that Alex ander ’s statement is newly discovere d evidenc e that shows that def endant’ s statement wa s the result of police torture a nd coer cion. Def

endant maintains that the f ailure to disclose Alexander’ s statement was “ the most serious Br ady violation” in defe ndant’s ca se. We find that Alexander’s a ffidavit is not “new ly discovere d” evide nce that establishes defe ndant’s ac tual innocenc e. “[E]vidence is not ‘new ly discovere d’ whe n it presents fa cts alre ady known to the def

endant at or prior to trial, thoug h the source s of those fa cts may have been unknown, unavailable or uncoope rative.” People v. B arnslate r, 373 I ll. App. 3d 512, 523 (2007); see also People v. Collier, 387 I ll. App. 3d 630, 637 (2008). Unlike the situation in Ortiz, thi s witness was not “pr eviously unknown to defe ndant.” se e Or tiz , 235 I ll. 2d at 333. Rather, de fenda

nt was aw are of Alexander pr ior to trial. Def endant a cknowledg ed in his courtrepor ted statement that Ale x ander was in cha

rg e of the Gang ster Disciples in his neig hborhood and re sponsible for dire ctingmembers of the g angand assigning se curity positions. Defenda

nt also stated that Alexander direc ted him to his security post during the Rodge rs murder . Whil e defe ndant testified at tria l that his court-re ported stateme nt was fa lse, defe ndant also testified that he met Alexander

around the corne r fr om the scene of the murde r within minutes of it occurr ing. Def endant testified that Alexander told him about the Rodge rs murder and dire cted de fenda

nt to g o home. Consequently , Alexander wa s clea rly known to defe ndant at the time of his trial a s well as whe n defe ndant filed his initial and amende d postconviction petitions. Fur ther, while A lexander’s a ffidavit exculpates Ale x ander from the shooting , it does not

-27-1-08-3016 a nd 1-10-0702 ( Cons.) exculpate def

endant. Ale x ander

denied be ing involved in planningor ca rry ing out the shooting

. Howeve r, Alexander’ s self-se rvingstatement would not have cast doubt on def endant’ s inculpatory

statement. See Anderson, 375 I ll. App. 3d at 1007, quoting People v. Smith, 141 I ll. 2d 40, 73 (1990). ( “[I ]n respect to the Patterson ple ading , self-se rvingdocuments pre pare d in anticipation of litigation ‘g ener ally lack the e arma

rks of trustworthiness a

nd reliability ’ ”)

. Def endant f urther a sserts that “[W] hile the State ar gues that Mr. Ale x ander ’s statement is at odds with [defendant’s] testimony at trial on a minor detail , it is wit hin the province of the jury to resolve suc h discrepa

ncies.” Howeve r, Alexander’ s alibi directly contra dicted defe ndant’s own tria l testimony that he met with Alexander on the night of the murder

and Alexander told defe ndant about the shooting , then advised de fenda nt that he should g o home. This can ha

rdly be dee med a minor de tail in this case . We find defe ndant’s prof fer ed evide nce reg ardingAlexander’s state ment does not constitute new e vidence to support defe ndant’s cla im of a B rady

violation. 2. Ineff

ective A ssistance of Counsel Claims In his successive postc onviction petitions, defendant a lso makes the re lated ar gument that he wa s denied e ffe ctive assistanc e of tria l counsel whe re c ounsel failed to c ontact Alexander , who would have offe red te stimony at trial to bolster def

endant’ s claim that he wa s not involved in the Rodge rs murder

. To preva il on a claim asser ting that tria l counsel wa s not effe ctive, a de fenda nt must first establish that “counse l’s repr esentation fell below an obje ctive standa rd of r easona

bleness.” Strickland v. Washington, 466 U.S. 668, 688, 80 L . Ed. 2d 674, 693, 104 S. Ct. 2052, 2064

-28-1-08-3016 a nd 1-10-0702 ( Cons.) (1984). I f a de fenda

nt establishes that defe nse counse l’s repr esentation fell below an obje ctive standard of

rea sonablene ss, a def

endant must then demonstra te that “ther e is a re asonable probability

that, but for counse l’s unprofe ssional error s, the result of the pr ocee ding w ould have been dif fer ent. A re asonable probability is a probability

sufficie nt to undermine conf idence in the outcome.” Strickland, 466 U.S. at 694, 80 L . Ed. 2d at 698, 104 S. Ct. at 2068. A defe ndant must satisfy

both prong s of the Strickland test bef ore he can pr evail on a c laim of ineff ective assistance of counse l. Howeve r, if the inef fec tive assistance claim ca n be disposed of on the g round that the de fenda

nt did not suffer pr ejudice, a court ne ed not deter

mine whether

counsel’s perf ormanc e wa s constitutionally defic ient. People v. Maha ffe y , 194 I ll. 2d 154, 175 (2000). Her e, def endant ha s not shown that he suffe red a ny prejudice from his trial counse l’s alleg ed fa ilure to ca ll Alex ander as a w itness. “[A] particula r dec ision not t o investigate must be direc tly assessed f

or re asonable ness in all circ umstances, a pplying a heavy measure of def

ere nce to counsel’s judg ments.” Strickland, 466 U.S. at 691, 80 L . Ed. 2d at 695, 104 S. Ct. at 2052. As previously

explained, Alexander’s stateme nt does not exculpate defe ndant or make it more likely that defe ndant’s stateme nt was the produc t of torture a nd coer cion. Fur thermore , trial counsel c ould have r easona bly chosen not to ca ll Alex ander as a witness at trial. Tria l counsel could have strate g ically decide d that callingAlexander, the a lleg ed leade r of a

street g ang , to testify

would have pr ovided little benefit to defe ndant’s ca se. Alexander’s a libi also directly conflicte d with defe ndant’s trial testimony that defe ndant met with Alexander followingthe shooting. Mor eover , trial counsel a rgued during

closingarguments that defe ndant’s stateme nt was provided unde r dure ss and “not cor roborated by

the known evide nce.”

-29-1-08-3016 a nd 1-10-0702 ( Cons.) Specifica lly , trial counsel a rgued that ac cordingto defe ndant’s stateme nt, Alexander wa s the g angleade r who dire cted the shooting , but “J ohn L . Alexander is conspicuously missing” f

rom the indictment and the State’ s case prese nted ag ainst defe ndant. Had tr ial counsel c alled Alexander a s a witness at trial, c ounsel would not have be en able to attack the State’ s case based on the fa ct that the deta ils reg ardingAlexander provide d in defe ndant’s stateme nt were not

corr oborate d at trial. De fenda nt theref ore c annot satisfy

the objective r easona

bleness prongof the Strickland test to preva il on his claim of ineffe ctive assistanc e of tria l counsel. Def endant ne x t challeng es the pe rfor mance of his previous postconviction counse l, Erika Cunliffe. De fenda

nt contends that postconviction counse l did not comply with Supreme Court Rule 651(c) (134 I ll. 2d R. 651(c)) in that counse l failed to re view the tria l rec ords and locate Alexander a s a witness. I t is well settled that the Act re quires only a re asonable level of a ssistance by counsel duringpostconviction proce eding s. People v. Moore, 189 I ll. 2d 521, 541 (2000). In order to

assure that rea sonable leve l of assistance , Supreme Court Rule 651(c ) re quires that the r ecor d in postconviction proce eding s disclose that counsel “ has consulted with petitioner e ither by mail or in person to asc erta in his contentions of deprivation of c onstitut ional rig hts, has examined the

rec ord of the pr ocee dings at the trial, and ha s made a ny amendments to the pe titions filed pro se that are nece ssary

for a n adequa te pre sentation of petitioner' s contentions.” 134 I ll. 2d R. 651(c). Howeve r, counse l has no duty under Rule 651( c) to loca te witnesses not spec ifically identified by the petitioner or to c onduct an investig ation to discover the ide ntity of witnesses who w ould provide e vidence to support a claim in the postconviction petition. Moore, 189 I ll. 2d at 541.

-30-1-08-3016 a nd 1-10-0702 ( Cons.) Her e, the r ecor d shows that postconviction counsel complied with Rule 651(c ). Afte r counsel wa s assig ned to re prese nt defe ndant, she filed a motion requestingthat this court dismiss defe ndant’s postconviction appe al without prejudice beca use she ne eded a dditional tim e to revie w other e vidence . This court g rante d counsel’s motion. Counsel then filed an a mended postconviction petition and a succ essive postconviction petition, raisingsever al constitutional

err ors, includingthe State’s alleg ed B rady violation, trial counsel’s inef fec tiveness, and defe ndant’s cla im of actua l innocence . Counsel also attache d aff idavits in support of these claims. We find that postconviction counsel’s a ctions did not fall below the re asonable level of assistance require d by

Rule 651(c)

.

3. Claim of Actual Innocenc e Def endant ne x t contends that he should be a llowed to prese nt his successive postconviction petition because he is asser ting a fre estandingclaim of a ctual innoce nce ba sed on newly discovere d evidenc e consistingof five a ffidavits that demonstrate def endant wa s not involved in the Rodge rs murder

. As alre ady

noted above , to obtain relief unde r a the ory of ac tual innocenc e, the “def endant must show that the evide nce he is relying on ( 1) is of such c onclusive cha rac ter that it will probably

chang e the r esult on retria l; (2) is material to the issue, not mer ely cumulative; and (3) wa s discovere d since trial a nd is of such cha

rac ter that the de fenda

nt in the exercise of due diligenc e could not have discovere d it earlier .” Ande rson, 375 I ll. App. 3d at 1006, citing People v. Br ockman, 363 I ll. App. 3d 679, 689 (2006), and People v. Ora ng e, 195 I ll. 2d 437, 450-51 (2001).

-31-1-08-3016 a nd 1-10-0702 ( Cons.) As previously

discussed, Alexander’ s statement indicated that Alexander did not org anize the murder

of Rodg ers, Ale x ander

did not order de fenda

nt to be a look out, and Alexander was with his girlfr iend when the shooting oc curr ed. Alexander ’s statement doe s not provide any new evidenc e to cor

roborate def

endant’ s alleg ations that his statement was the r esult of police

coer cion. Def

endant kne w of Ale x ander prior to trial. Ac cording ly , Alexander’s state ment cannot c onstitut e “ne wly

discovere d evidenc e” of

his actual innoce nce. B arnslate r, 373 I ll. App. 3d at 523. The sec ond aff

idavit upon which def

endant r elies wa s provided by Wil lie Wil son, who stated that he pla

nned and c arr ied out the Rodg ers murde r with the assistance of Jeffre y Clarkson and an individual name d “Eric .” Wilson st ated that de fenda nt was not involved in the Rodge rs murder a nd was not at the be auty

shop duringthe shooting. Similarly , the third aff idavit, from J eff rey Clarkson, stated that Clarkson a nd two other individuals committed the murder a nd defe ndant was not involved in the shooting . Howeve r, these statements are consistent with defe ndant’s inculpator

y statement that he se rved a s a look out down the stree t from the bea uty shop and wa s not inside the shop during the shooting. The se statements a re not of suc h a conclusive c hara cter

that they would probably

chang e the r esult on retria l. Def endant a lso relies on a f

ourth aff idavit, from Ger ald Ear l, in which Earl state d that “to the best of his knowledg e,” de fenda nt was not involved in the murder . Earl a lso stated that he had nothingto do with the murder a nd was not pre sent when the shooting oc curr ed. Similarly , the fifth af

fidavit, from Willi e L ee H ug hes, stated that he was wr ong ly convicted f

or the shooting at the bea uty shop and that he w as not prese nt when the shootingoccur red. H ug hes also stated

-32-1-08-3016 a nd 1-10-0702 ( Cons.) that he wa s not awar e of the meetingthat took place to or g anize the shooting a nd he did not tell defe ndant to be a look out on the nig ht in question. This evidence is not mater ial wher e both men deny any involvement in the beauty shop murder a

nd claim that they

wer e not pre sent when the shooting oc curr ed. Such self- servingdocuments would not have cast doubt on def endant’ s inculpatory

statement. See Anderson, 375 I ll. App. 3d at 1007. These a ffidavits mere ly aff irm that neither of

these individuals has any persona l knowledg e conc erningthe Rodg ers murde r and, there fore , cannot support de fenda nt’s claim of a ctual innoce nce. B. Sec tion 2-1401 Petiti ons L astly , we r ejec t defe ndant’s alter native ar gument that the circ uit court improperly dismiss ed his petitions for re lied pursuant to sec tion 2-1401 of the Code (735 I L CS 5/ 2-1401 (West 2008)). De fenda

nt’s petitions for relief

under se ction 2-1401 pre sented the ide ntical claims as his succe ssive postconviction petitions: (1) the State withheld exculpatory information in violation of Bra dy

v. Maryland, 373 U.S. 83, 87, 10 L . Ed. 2d 215, 218, 83 S. Ct. 1194, 1196- 97 (1963); (2) he wa s denied the e ffe ctive assistanc e of c ounsel for f ailing to investig ate a

nd call a key witness; and (3) he is actually innocent. “A se ction 2-1401 petition for re lief fr om a final judgment is the forum in a c riminal case in which to corr ect a ll error s of fa ct occ urringin the prosec ution of a ca use, unknown to petitioner and the court at the time judgment wa s entere d, which, if then known, would have preve nted its rendition.” Maha ffe y , 194 I ll. 2d at 181. Howeve r, whe re a section 2-1401 pe tition is filed more than two year s after the judg ment was e ntere d, it cannot be c onsidered. 735 I L CS 5/2-1401(c) (West 2008). It is well established that the two-year limit ation period mandated by

-33-1-08-3016 a nd 1-10-0702 ( Cons.) section 2-1401 must be a dhere d to in the absenc e of a clea r showingthat the per son seekingrelief is under leg al disability

or dure ss or the g rounds for r elief a re f raudule ntly

conce aled. Ma

haff ey , 194 I ll. 2d at 181-82. Def endant’ s section 2-1401 pe titions wer e filed on July 28, 2008 and May

20, 2009, over 14 and 15 year s since judg ment was e ntere d ag ainst him in t his matter. Def endant doe s not specific ally

argue that any

of the grounds for tollingthe limitations period e x ist. Theref ore, section 2-1401 is not ava ilable as a reme dy . Mahaf

fey , 194 I ll. 2d at 181-82. In addition, even if defe ndant’s sec tion 2-1401 petition had been timely filed, as e x plained above with respec t to the identical cla ims made in defe ndant’s succ essive postconviction petitions, defe ndant has fa iled to establish a mer itorious claim. Accor dingly , the circ uit court appropriately dismiss ed def

endant’ s petitions for relief

pursuant to sec tion 2-1401.

I I I . CONCLUSI ON For the above rea sons, we af firm the judgments of the cir cuit court. Affir med. MURPHY and STEEL E, J J ., concur .

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