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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except 

in the limited circumstances allowed under Rule 23(e)(1). 

2022 IL App (3d) 200082-U 

Order filed June 24, 2022 

IN THE 

APPELLATE COURT OF ILLINOIS 

THIRD DISTRICT 

2022 

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court 

ILLINOIS, ) of the 12th Judicial Circuit, 

) Will County, Illinois, 

Plaintiff-Appellee, ) 

) Appeal No. 3-20-0082 

v. ) Circuit No. 07-CF-1580 

) 

MICHAEL L. BERRY, ) Honorable 

) Daniel Rippy, 

Defendant-Appellant. ) Judge, Presiding. 

JUSTICE LYTTON delivered the judgment of the court. 

Justices McDade and Hauptman concurred in the judgment. 

ORDER 

¶ 1 Held: The court did not err in denying defendant’s motion for leave to file a successive 

postconviction petition. 

¶ 2 Defendant, Michael L. Berry, appeals the Will County circuit court’s denial of his motion 

for leave to file a successive postconviction petition. Defendant argues the court erred, as he 

established cause and prejudice sufficient to warrant leave to file a successive postconviction 

petition. We affirm. 
 

 

 

¶ 3 I. BACKGROUND 

¶ 4 A jury found defendant guilty of attempted first degree murder (720 ILCS 5/8-4(a), 9-

1(a)(1) (West 2006)) and unlawful use of a weapon by a felon (UUWF) (id. § 24-1.1(a)). The court 

sentenced defendant to 50 years’ imprisonment for attempted first degree murder and a consecutive 

10 years’ imprisonment for UUWF. Defendant’s sentence included an additional 25 years added 

to the attempted murder charge for the personal discharge of a firearm. 

¶ 5 The evidence presented to the jury established that an altercation developed in an apartment 

complex in Joliet between Travale Shorts and Frank Banks. Earlzell Lewis was present with Shorts 

when the altercation occurred. Defendant heard the confrontation and approached to break up the 

fight. Lewis testified that he and Shorts left the altercation to go inside one of the apartment 

buildings in the complex. As he was leaving, he saw defendant with a gun in his hand. Lewis heard 

two gunshots and felt a bullet hit him on the side of his face. Initially, Lewis told Shorts that Banks 

shot him, but he identified defendant to the police. Lewis testified at trial that he named Banks 

because he did not know defendant’s name until after he was shot. Two other witnesses, Rasia 

Woods and Jamar Julien, did not witness the shooting but testified that they knew defendant had a 

gun with him that day. Lewis required reconstructive surgery, and the surgeon testified that his 

jaw would never return to a normal level of functioning. 

¶ 6 Defendant appealed claiming the evidence adduced at trial was insufficient to prove each 

element of the offenses beyond a reasonable doubt, the circuit court improperly instructed the jury 

regarding the elements of attempted first degree murder, and the prosecutor’s improper statements 

during closing arguments deprived him of his right to a fair trial. This court affirmed defendant’s 

convictions and sentences. People v. Berry, 2011 IL App (3d) 091048-U. 

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¶ 7 On October 28, 2013, defendant filed a postconviction petition as a self-represented 

litigant. In the petition, defendant argued that his right to due process of law was violated when 

the circuit court allowed the State to present the name and nature of his prior conviction to the jury 

and that trial and appellate counsel provided ineffective assistance for failing to raise the issue. He 

also argued the appropriate jury instruction was not given, nor was the special verdict form given 

to the jury addressing whether defendant personally discharged the firearm. The court summarily 

dismissed defendant’s petition, and defendant appealed. This court affirmed. People v. Berry, 2015 

IL App (3d) 140050-U. 

¶ 8 On December 11, 2019, defendant filed a motion for leave to file a successive 

postconviction petition claiming actual innocence based on newly discovered evidence regarding 

the fallibility of eyewitness identifications. When Lewis was shot, he initially told his friend that 

another person had been the shooter and then identified defendant to the police. Defendant retained 

an expert, Dr. George Loftus, who opined that Lewis could have misperceived defendant as the 

shooter and outlined several factors that would explain the misidentification. Loftus provided a 

report that defendant included as support for his proposed successive postconviction petition. In 

the report, Loftus lists several factors that could have affected Lewis’s memory, including lighting 

at the scene, duration of the incident, stress, and inference from others at the scene. Loftus’s report 

does not opine that Lewis did not testify truthfully but states that his testimony could be unreliable 

given the circumstances. 

¶ 9 The circuit court denied defendant’s motion, finding that Loftus’s opinion would not 

change the result of the trial. Defendant appeals. 

¶ 10 II. ANALYSIS 

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¶ 11 Defendant argues the court erred in denying him leave to file a successive postconviction 

petition because his motion for leave established both cause and prejudice and an actual innocence 

claim. Specifically, the motion alleged that defendant had newly discovered evidence that called 

into question the validity of the eyewitness identification. 

¶ 12 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) contemplates 

the filing of only one postconviction petition. People v. Edwards, 2012 IL 111711, ¶ 22. A 

defendant may obtain leave of court to file a successive postconviction petition if he can either 

show cause and prejudice for his failure to raise the claim earlier or raises a colorable claim of 

actual innocence based on newly discovered evidence. People v. Oritz, 235 Ill. 2d 319, 330 (2009). 

Defendant attempts to argue both cause and prejudice and actual innocence as means to grant his 

motion for leave to file a successive petition. His petition, however, is based on an actual innocence 

claim, and we will evaluate it as such. 

¶ 13 To succeed on a claim of actual innocence, defendant must present new, material, and 

noncumulative evidence that is so conclusive it would probably change the outcome of the case if 

retried. People v. Coleman, 2013 IL 113307, ¶ 84. The new evidence need not prove actual 

innocence, but it must be sufficient to justify a closer scrutiny of all the facts and circumstances 

presented at trial to determine guilt or innocence. Ortiz, 235 Ill. 2d at 337. 

¶ 14 Further, a claim of actual innocence is different from insufficiency of the evidence or 

impeachment of a trial witness. People v. Mabrey, 2016 IL App (1st) 141359, ¶ 23. Evidence that 

serves to impeach or discredit the State’s evidence, but does not affirmatively establish a 

defendant’s innocence, does not serve as the basis for the granting of a new trial. People v. Smith, 

177 Ill. 2d 53, 82-83 (1997). Additionally, newly discovered evidence which merely impeaches a 

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witness will not typically be of such conclusive character as to justify postconviction relief. People 

v. Harris, 154 Ill. App. 3d 308, 319 (1987). 

¶ 15 This is especially true in the instant case, as defendant’s new evidence only directly attacks 

Lewis’s testimony. While defendant’s expert witness can testify that Lewis’s identification of 

defendant as the shooter is unreliable, this testimony does not warrant closer scrutiny of all the 

facts presented at trial. Instead, it merely impeaches Lewis’s testimony. Additionally, considering 

the totality of the evidence against defendant, simply impeaching Lewis’s testimony is insufficient 

to call into question the outcome of the case. Therefore, the circuit court did not err in denying 

defendant’s motion for leave to file a successive postconviction petition. 

¶ 16 III. CONCLUSION 

¶ 17 The judgment of the circuit court of Will County is affirmed. 

¶ 18 Affirmed. 

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