2016 IL App (1st) 140555 

THIRD DIVISION

June 22, 2016 

No. 1-14-0555 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

 ) 

v. ) No. 02 CR 22649 

 ) 

CORKY TERRY, ) Honorable 

 ) Charles P. Burns, 

Defendant-Appellant. ) Judge Presiding. 

JUSTICE LAVIN delivered the judgment of the court, with opinion. 

Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion. 

OPINION

 

¶ 1 Defendant Corky Terry appeals from the circuit court's denial of leave to file a successive 

petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1 et seq. (West 2012)). On appeal, defendant contends that the court erred when it denied him 

leave to file the instant petition because the petition met the requirements of the cause and 

prejudice test. Specifically, defendant contends that he has established cause because the 2006 

Report of the Special State's Attorney (the Egan Report), which corroborates his claims of 

physical coercion by police officers was not available to him at the time of his "trial" or the filing 

of his initial postconviction petition. Defendant contends that he has established prejudice 
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because our supreme court has held that the introduction of a physically coerced confession is 

never harmless error. We affirm.

¶ 2 BACKGROUND

¶ 3 Defendant's arrest and prosecution arose out of the fatal shooting of the victim, Reginald 

Washington, on August 6, 2002. 

¶ 4 Defendant later filed a motion to suppress statements alleging, inter alia, that detectives

Jerry Bogucki and Tony Noradin physically coerced him into making an inculpatory statement.

¶ 5 At the hearing on defendant's motion, Detective Raymond Schalk testified that he, along 

with detectives Bogucki and Noradin, interviewed defendant in the early morning hours of 

August 7, 2002. During an initial conversation, defendant stated that he did not shoot the victim, 

explained that he ran away when he heard gunshots and denied possessing a gun. Schalk 

responded that the arresting officers saw defendant with a gun and had recovered that gun. He 

further stated the gun would be tested for fingerprints and that defendant and defendant's 

clothing would be tested for gunshot residue. After hearing this, defendant admitted that he shot 

the victim. Schalk testified that defendant was not handcuffed during this conversation. 

¶ 6 Later that day, Schalk was present, along with assistant State's Attorney (ASA) Molly 

Riordan, Bogucki and Noradin, when defendant again "told *** the story" of how he shot the 

victim. Schalk denied that anyone threatened defendant in order to obtain a statement. Neither he 

nor anyone in his presence kicked, punched or slapped defendant, grabbed defendant by the hair, 

or swung a phonebook at defendant. Defendant never complained about being mistreated. Schalk 

knew that Bogucki and Noradin did not interview defendant outside of his presence, because if 

they had, they were required to notify him as lead detective. 
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¶ 7 During cross-examination, Schalk denied that defendant was told that the police "had" 

defendant's fingerprints on the gun or that defendant told officers that he was under the influence 

of alcohol and marijuana. He also denied that either he or Bogucki and Noradin were ever alone 

with defendant. 

¶ 8 ASA Molly Riordan testified that defendant chose to make a videotaped statement. 

Defendant's videotaped statement was then published to the court.1

¶ 9 In the statement, defendant stated that he was a member of the Maniac Latin Disciples 

gang and that the "Familia Stones" (Stones) was a rival gang. Defendant further stated that two 

days prior to the victim's death, he was threatened by certain Stones. On the day of the victim's 

death, defendant saw members of the Stones at a pool and "figured" that he had to scare them to 

make them leave him alone. He thought he could catch them "off guard" while they were 

barbecuing and planned to "just let off some shots" with a "Tech 9" handgun. When he was 

about 75 feet away from the group, he pulled the trigger four times and then ran away. As he was 

being chased by the police, he threw the gun away and hid under a car. Defendant had "no 

intention" to kill anyone and was "very sorry." 

¶ 10 Defendant stated that no threats or promises were made in order to get him to make a 

statement and that he was treated well by the police. He denied being under the influence of 

drugs or alcohol. Defendant finally stated that he was sorry for what had happened and that "as a 

man" he was taking responsibility for his actions. 

¶ 11 Riordan then testified that defendant was not handcuffed when she spoke to him. He did 

not appear coached or under the influence of alcohol or drugs, and he did not complain about any 

 

1 The record does not contain the videotape of defendant's statement. 
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threats or mistreatment. During cross-examination she denied stating that defendant was not 

telling the truth or leaving him alone with Bogucki and Noradin. 

¶ 12 Defendant testified that he was playing basketball when he heard gunshots so he ran 

away. He denied having a gun. Before playing basketball, he drank two "40 ouncers of Old 

English" and smoked 4 1⁄2 grams of marijuana. After being taken into custody and transported to 

a police station, defendant stated that he did not have anything to do with the victim's death. The 

detectives left the room, and when they returned they had a photograph which showed defendant 

with members of the Maniac Latin Disciples. They stated that they "knew" who defendant was, 

he had been seen running across a street, and they had the gun with his fingerprints on it. When 

Schalk asked whether he was under any type of influence, defendant replied he was under the 

influence of alcohol and marijuana. 

¶ 13 An ASA then entered the room and asked defendant if he wanted to tell her what had 

happened. Defendant repeated that he had been playing basketball when he heard gunshots so he 

ran away. The ASA stated that defendant was not telling the truth and left. Bogucki and Noradin 

then entered the room and told defendant that "this" was his last chance. Defendant said that he 

had given the detectives his side of the story and they left. When Bogucki and Noradin returned, 

Noradin grabbed defendant, who was handcuffed to a bench, by the hair and punched him in the 

ribs. Defendant was kicked and punched several times before the detectives left the room. When 

they returned, defendant was prone on a bench, covered in his own vomit and urine. The 

detectives then "did the same thing over," that is, grabbed his hair and punched him. Defendant 

was told that he could make an oral, handwritten or videotaped statement. When he again denied 

involvement, Bogucki swung a phonebook at him. Bogucki stated that defendant could either 
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admit that he did it or they could do "this" another way which would not involve a phonebook. 

Although defendant agreed to make a written statement, the detectives told him to make a 

videotaped statement and what to say.

¶ 14 During cross-examination, defendant testified that he was not telling the truth in the 

videotaped statement and that he was no longer a member of the Maniac Latin Disciples. 

However, he admitted that certain personal information such as his age and address was correct. 

He also admitted that he did not say anything about the police "feeding" him facts or kicking and 

slapping him on the videotape. Defendant acknowledged that on the videotape he stated that the 

statement was made voluntarily, that he was treated with respect by the police and that he was 

not under the influence of alcohol or drugs. Defendant reiterated that the detectives told him 

what to say. Although he made up the details surrounding his problems with the Stones and that 

he only wanted to scare people, the detectives told him to say that he had no intention to kill 

anyone.

¶ 15 In denying defendant's motion, the trial court characterized the issue as one of credibility, 

and stated that the videotaped statement "overwhelmingly" corroborated the testimony of the 

State's witnesses. The court also stated that defendant's testimony that he was mistreated was not 

corroborated by any other evidence and was actually contradicted by his statement. The court 

concluded that the statement was "more logical and believable and credible" than defendant's 

testimony which the court characterized as "absolutely incredible" in that defendant testified that 

some details of his statement were fed to him by detectives and that he made up the rest. 

¶ 16 On April 5, 2004, defendant entered a negotiated plea of guilty to first degree murder and 

was sentenced to 35 years in prison. The factual basis for defendant's plea was that on August 6, 
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2002, the victim was fatally shot. The State further stated that the evidence would show that 

officers David Ruiz and David Pfest heard gunshots and proceeded to a park where witnesses 

stated that the shooter fled toward a certain street. As the officers approached that street, they 

observed defendant running while carrying a Tech 9 semiautomatic handgun. The officers 

chased and apprehended defendant. The evidence would also show that a sweatshirt recovered 

from defendant tested positive for gunshot residue and that the gun defendant dropped "came 

back positive" to a shell casing recovered at the crime scene. Finally, the evidence would show 

that defendant made an inculpatory videotaped statement. The parties stipulated to these facts.

¶ 17 When the court asked defendant if those were the facts that defendant was stipulating to, 

defendant answered in the affirmative. The trial court accepted defendant's plea and sentenced 

him to 35 years in prison. 

¶ 18 Defendant then filed a motion to withdraw the plea alleging that his plea was not 

knowing and voluntary because his attorney used "mental coercion," including pressure from 

defendant's family to force him to accept a plea. The trial court denied the motion, and this 

judgment was affirmed on appeal. See People v. Terry, No. 1-05-0351 (2006) (unpublished order 

under Supreme Court Rule 23). 

¶ 19 In 2006, defendant filed a pro se petition for postconviction relief alleging, inter alia, that 

he was denied the effective assistance of counsel because counsel failed to present certain 

documents regarding physical evidence during the hearing on the motion to quash arrest and 

suppress evidence and because counsel requested a plea without discussing it with defendant. 

The petition also alleged that defendant was denied the effective assistance of appellate counsel. 

The circuit court summarily dismissed the petition as frivolous and patently without merit. That 
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judgment was affirmed on appeal. See People v. Terry, No. 1-07-0861 (2008) (unpublished order 

under Supreme Court Rule 23). 

¶ 20 In May 2013, defendant filed a pro se motion for leave to file a successive postconviction 

petition and the instant successive postconviction petition. The motion alleged that newly 

discovered evidence substantiated defendant's claim, first raised in his motion to suppress 

statements, that his confession was the result of physical coercion. The newly discovered 

evidence was the Egan Report, detailing misconduct by officers under the command of Jon 

Burge. Defendant received a copy of this report in March 2013. 

¶ 21 Attached to the petition in support were, inter alia, defendant's affidavit, copies of the 

motions to suppress statements and quash arrest, and to suppress evidence, and documents titled 

"Report on the Failure of Special Prosecutors Edward J. Egan and Robert D. Boyle to Fairly 

Investigate Police Torture in Chicago," and "Victims of Area 5 Gang Crimes Unit Detectives,"

¶ 22 In an affidavit, defendant averred that in March 2013, he received copies of "Victims of 

Area 5 Gang Crimes Unit Detectives" and the 2007 "Report on the Failure of Special Prosecutors 

Edward J. Egan and Robert D. Boyle to Fairly Investigate Police Torture in Chicago." 

¶ 23 In denying defendant leave to file the instant petition, the circuit court concluded that 

because the report defendant relied upon was filed in 2007, it could not be deemed newly 

discovered evidence. The court further found that although defendant filed a motion to quash 

arrest alleging coercion and abuse which was denied, he did not raise this claim in his direct 

appeal or his initial postconviction proceeding. The court finally found that the "OPS" 

investigation regarding systematic physical abuse focused on the period of 1973 to 1986 and 
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officers headquartered at Area 2, whereas defendant was arrested 16 years later and held at Area 

5. 

¶ 24 ANALYSIS

¶ 25 Our supreme court has held that the scope of postconviction review is limited to 

constitutional matters which have not been, and could not have been, previously adjudicated. 

People v. Evans, 186 Ill. 2d 83, 91-92 (1999). The judgment of the reviewing court on a previous 

appeal is res judicata as to the issues actually decided, and any claim that could have been 

presented in the direct appeal is, if not raised, thereafter barred under the doctrine of waiver. Id. 

¶ 26 The Act contemplates the filing of only one petition without leave of court (725 ILCS 

5/122-1(f) (West 2012)), and "any claim not presented in an original or amended petition is 

waived." People v. Sanders, 2016 IL 118123, ¶ 24. A defendant must overcome " 'immense 

procedural default hurdles' " in order to file a successive postconviction petition. People v. 

Crenshaw, 2015 IL App (4th) 131035, ¶ 27 (quoting People v. Tenner, 206 Ill. 2d 381, 392 

(2002)). These hurdles are only lowered in limited circumstances because successive 

postconviction proceedings " 'plague the finality of criminal litigation.' " Id. (quoting Tenner, 

206 Ill. at 392). 

¶ 27 Leave of court may be granted when a defendant demonstrates cause for failing to raise 

the claim in his earlier petition and prejudice resulting from that failure. 725 ILCS 5/122-1(f) 

(West 2012). "Cause" is established when the defendant shows that some objective factor 

impeded his ability to raise the claim in the original postconviction proceeding. Tenner, 206 Ill. 

2d at 393. "Prejudice" is established when the defendant shows that the claimed error so infected 
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his trial that the resulting conviction violated due process. Id. A defendant must establish both 

cause and prejudice. People v. Edwards, 2012 IL 111711, ¶ 22. 

¶ 28 In People v. Smith, 2014 IL 115946, ¶ 35, our supreme court reiterated that "the causeand-prejudice test for a successive petition involves a higher standard than the first-stage 

frivolous or patently without merit standard." A circuit court should deny a defendant leave to 

file a successive postconviction petition when it is clear, based upon a review of the successive 

petition and the attached documentation, that the defendant's claims fail as a matter of law or 

when the petition and its supporting documents are insufficient to justify further proceedings. Id. 

We review de novo whether a defendant has fulfilled his burden to justify further proceedings on 

a successive postconviction petition. Id. ¶ 21. 

¶ 29 On appeal, defendant contends that he has established cause because he did not obtain a 

copy of the Egan Report, which "substantiate[s]" his claims of physical coercion, until 2013. He 

further contends that he has established prejudice because our supreme court has held that a 

physically coerced confession is never harmless error.

¶ 30 The State responds that defendant has failed to properly support his postconviction claim 

because defendant failed to attach the Egan Report to his petition. The State argues the defendant 

is attempting to improperly amend his petition on appeal by asking this court to take judicial 

notice of the Egan Report. The State further argues that defendant has failed to meet the cause 

prong of the cause and prejudice test because the Egan Report was available to him at the time of 

his first postconviction petition. Defendant acknowledges that the document attached to his 

successive postconviction petition is not the Egan Report, however, he argues that he "correctly 
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cited the actual" Egan Report in his petition, that the report is publically available, and that he 

cannot be expected to have obtained a copy because he has been incarcerated since 2004. 

¶ 31 Here, defendant failed to meet the pleading requirements of section 122-2 of the Act by 

failing to attach the document which he argues corroborates his claim to his successive petition. 

See 725 ILCS 5/122-2 (West 2012) (a defendant must attach documentation supporting his 

allegations to his petition or explain its absence); People v. Wideman, 2013 IL App (1st) 102273, 

¶¶ 15-18 (discussing the pleading requirements of section 122-2 of the Act in a successive 

postconviction proceeding). However, even if we were to look beyond defendant's failure to 

attach to his petition the actual report upon which he bases his claim, defendant cannot satisfy 

the requirements of the cause and prejudice test. Defendant has failed to meet the cause prong 

because he has failed to identify an objective factor that impeded his efforts to raise the issue of 

his coerced statement in an earlier proceeding.

¶ 32 A postconviction proceeding is a collateral proceeding, rather than an appeal of the 

underlying judgment, and therefore it allows inquiry only into constitutional issues that were not, 

and could not have been, adjudicated on direct appeal. People v. Pitsonbarger, 205 Ill. 2d 444, 

455-56 (2002). Additionally, any claim not presented in an initial postconviction petition or 

amended petition is waived. Sanders, 2016 IL 118123, ¶ 24. 

¶ 33 The record reveals that although defendant testified at the hearing on his motion to 

suppress statements that he was punched, kicked and threatened by police officers until he 

agreed to make a videotaped statement, he did not challenge his inculpatory statement in either 

his direct appeal or in his initial postconviction proceeding and has therefore waived the claim. It

is clear from the record before us that defendant's claim that he was physically coerced into 
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confessing could have been raised on direct appeal, i.e., he could have challenged the trial court's 

denial of his motion to suppress statements, but he did not. See Evans, 186 Ill. 2d at 92 (any 

claim that could have been presented in the direct appeal is, if not raised, thereafter barred under 

the doctrine of waiver). Additionally, having known all of the facts necessary to raise this claim 

prior to the filing of his initial petition, defendant cannot establish cause for his failure to raise it 

in his initial petition. See People v. Williams, 394 Ill. App. 3d 236, 246 (2009) (the defendant 

could not show cause for his failure to include his claim in his initial postconviction petition 

when, although trial counsel did not provide him with documents to support his claims, he was 

aware of the claims and the supporting facts prior to his initial petition).

¶ 34 Defendant, however, contends that it was appellate counsel's decision to argue on direct 

appeal that defendant's motion to withdraw the plea should have been granted because defendant 

was "mentally coerced" by his attorney and family. He further argues that counsel's decision not 

to argue that the trial court erred when it denied defendant's motion to suppress does not mean 

that he gave up his claim that his confession was coerced or that he "acquiesced" to counsel's 

decision. He further argues that that without "any new evidence" he was barred by res judicata

from arguing in his initial postconviction petition that his confession should have been 

suppressed because it was physically coerced. We disagree.

¶ 35 Although the Egan Report may, as defendant argues on appeal, serve to corroborate the 

general proposition that Chicago police officers used physical coercion to obtain statements from 

suspects, this additional evidence does not explain why defendant could not have raised this 

specific claim in his first postconviction proceeding. See People v. Green, 2012 IL App (4th) 

101034, ¶ 40 (although the defendant uncovered additional evidence to support his claim, that 
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does not make that claim new). However, even if we take as true defendant's factual allegation 

that he did not come into possession of information related to the "widespread physical abuse of 

suspects" until 2013, defendant has not alleged sufficient facts to establish prejudice.

¶ 36 In order to satisfy the prejudice prong, a defendant must show that the claim not raised in 

his initial postconviction petition "so infected the entire trial that the resulting conviction or 

sentence violates due process." Pitsonbarger, 205 Ill. 2d at 464. In People v. Wrice, 2012 IL 

111860, ¶ 84, our supreme court found that "use of a defendant's physically coerced confession 

as substantive evidence of his guilt is never harmless error" and concluded that the defendant's 

claim of physical coercion by officers at Area 2 headquarters "satisfied the prejudice prong of the 

cause-and-prejudice test." 

¶ 37 Contrary to what defendant argues on appeal, however, the court did not hold that a 

defendant's bare allegation that his confession was physically coerced combined with reliance on 

the Egan Report establishes prejudice. Rather, the Wrice defendant established prejudice when 

he: (1) consistently claimed throughout the proceedings that he was tortured; (2) his torture 

claims were strikingly similar to those of other prisoners in Areas 2 and 3; (3) the officers named 

were also identified in other allegations of torture; and (4) the allegations were consistent with 

the findings of torture in the Egan Report. Id. ¶ 43. In other words, the holding of Wrice does not 

contradict the court's subsequent holding in Smith that a successive postconviction petition must 

adequately allege facts showing cause and prejudice, and leave to file a successive petition 

should be denied "where the successive petition with supporting documentation is insufficient to 

justify further proceedings." Smith, 2014 IL 115946, ¶¶ 34-35. 
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¶ 38 Although defendant is correct that the Egan Report has been relied upon by this court and 

our supreme court in other cases, defendant's petition fails to set forth with any specificity or 

certainty how the Egan Report would support his claim that he was physically coerced into 

making an inculpatory statement. We note that defendant concedes that detectives Bogucki and 

Noradin were not identified by name in the Egan Report and that he was held at a different police 

station. Additionally, defendant does not allege that he was tortured in the same manner as the 

individuals listed in the Egan Report, or that there was a pattern of abuse perpetuated either by 

Bogucki and Noradin or by other officers at the police station where he was held. Rather, 

defendant argues that the Egan Report corroborates his specific claim of abuse because it 

"confirms" that there was "widespread physical abuse of suspects" by police officers. However, 

generalized claims of abuse are not sufficient to support a claim of coercion; there must be a 

direct link to specific abuses in a particular defendant's case. People v. Anderson, 375 Ill. App. 

3d 121, 137-38 (2007) (generalized claims of misconduct without any link to the defendant's 

case, such as evidence corroborating his allegations or some similarity between the type of 

misconduct he alleges and the evidence in other cases of abuse, are insufficient to support a 

claim of coercion). In other words, defendant cannot establish how he was prejudiced by the 

absence of the Egan Report in his first postconviction proceeding when he has failed to establish 

that the Egan Report is relevant to his specific claim of abuse. 

¶ 39 We therefore reject defendant's speculative claim that because the Egan Report 

established that officers at Area 2 physically coerced suspects, defendant was subject to the same 

treatment years later at a different police station at the hands of different officers. Without 

evidence corroborating defendant's allegations of coercion, or "some similarity between the type 
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of misconduct alleged by defendant and that presented by" the cases in the Egan Report, the 

report fails to provide sufficient support for defendant's claim in this case. Id. Therefore, 

defendant has failed to establish how he was prejudiced by the Egan Report's absence from his 

initial postconviction proceeding (see Pitsonbarger, 205 Ill. 2d at 464), and the circuit court 

properly denied his motion for leave to file a successive postconviction petition (see Smith, 2014 

IL 115946, ¶ 21).

¶ 40 CONCLUSION

¶ 41 For the foregoing reasons, the judgment of the circuit court is affirmed. 

¶ 42 Affirmed.