Opinion
No. 1-11-3668
09-06-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARICO DAVIS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 97 CR 11512
Honorable
Stanley J. Sacks,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Cunningham and Delort concurred in the judgment.
ORDER
¶ 1 Held: We affirmed the second-stage dismissal of defendant's amended postconviction petition where defendant failed to make a substantial showing of actual innocence and where defendant failed to make a substantial showing that the untimely filing of his remaining claims was not due to his culpable negligence. ¶ 2 Defendant, Marico Davis, appeals the second-stage dismissal of his amended postconviction petition. Defendant contends the postconviction court erred in dismissing his amended petition because he made a substantial showing that: (1) the State committed a violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) his trial counsel committed ineffective assistance; (3) his trial counsel labored under an actual conflict of interest; (4) defendant was actually innocent; and (5) the late filing of the petition was not due to his culpable negligence. We affirm. ¶ 3 Defendant was charged by indictment with two counts of first-degree murder in the shooting death of Antwuane Waters (the victim). At the 1997 bench trial, Regina Waters, the victim's sister, testified that the victim and their cousin, Kendra Arrington, were at Ms. Waters's apartment at 4624 South Ellis Avenue on March 25, 1997. Between 8:15 p.m. and 8:30 p.m. on March 25, 1997, the victim left the apartment to go home. Soon after he left, Ms. Waters heard gunshots. About two minutes later, Reginald Sexton knocked on her door and told her that the victim had been shot. Ms. Waters ran downstairs to the front of the building, where she saw the victim lying on his stomach on the front porch. The victim was not moving or speaking. The paramedics arrived and transported the victim to the hospital. Ms. Waters subsequently learned that the victim had died. ¶ 4 Kendra Arrington, the victim's cousin, testified she was at Ms. Waters's apartment on March 25, 1997. The victim was also there, but he left sometime between 8 p.m. and 8:30 p.m. Shortly after he left, Ms. Arrington heard gunshots coming from the front of the building. After the gunshots stopped, Ms. Arrington looked out a window in the living room and saw three men running north on Ellis Avenue. One of the men wore a white shirt and black jeans. The second man was wearing all-black clothing with a hood. Ms. Arrington could not see what the third man was wearing. ¶ 5 Ms. Arrington testified she saw the three men turn left on 46th Street toward Drexel Boulevard and "they let five shots ring off and they were yelling like they were excited." Mr. Sexton then came to the door and told them the victim had been hit. Ms. Arrington ran downstairs with Ms. Waters and saw the victim lying face-down on the ground. Ms. Waters told her to call an ambulance, which she did. Ms. Arrington next saw the victim at his funeral on March 29. ¶ 6 Reginald Sexton, age 16, testified he was a close friend of the victim and he lived in the same apartment building at 4624 South Ellis Avenue as the victim's sister. Mr. Sexton testified that at about 8:30 p.m. on March 25, 1997, he was walking down the stairwell of his apartment building when he saw the victim. They walked downstairs together and went out the front door, where they faced a parking lot. Although it was dark outside, the streetlights on Ellis were on. Lights attached to the apartment building were also on, and the lighting in the parking lot was "bright." ¶ 7 Mr. Sexton testified he saw three people walking south on Ellis, approaching the apartment building. They stopped at a house next to the parking lot. One of them stood on the house porch, one stood between a van and a car, and the third stood near a fence. All three were facing Mr. Sexton. Mr. Sexton recognized the man who stood between the van and car as defendant, whom he had known for at least four years by the nickname "Rico" and who had a chipped tooth on the left side of his mouth and was a gang member. Defendant was wearing a black hooded sweater. The hood was "partially on," but it was not covering any portion of the front of his face. Defendant was 10 or 11 steps away from Mr. Sexton. ¶ 8 Mr. Sexton testified he saw defendant pull a silver and black object out of the front of his pants. Mr. Sexton believed the object was a gun, and he told the victim to run behind a nearby brick wall. Mr. Sexton saw defendant and the man on the porch fire toward him and the victim. Mr. Sexton dove behind the brick wall and was not hit, but the victim was shot. Defendant and the other two men then ran from the scene toward 46th Street, where they fired more shots up in the air. Mr. Sexton ran upstairs and told the victim's sister that the victim had been shot. ¶ 9 Mr. Sexton testified the police arrived, and he told them he was a witness to the shooting. They took him to the police station, where he gave them the name "Rico" as one of the persons who did the shooting. He described Rico's appearance, including his chipped tooth, and gave an address for him. The police showed Mr. Sexton a photo array and he picked out defendant's photograph. Two days later, on March 27, 1997, Mr. Sexton went to the police station again and picked defendant out of a lineup. ¶ 10 Kenneth Boyd testified that during the evening of March 25, 1997, he was working as a security guard at the Church of God parking lot located between Drexel Boulevard and Ellis Avenue on 46th Street. At about 8:30 p.m., he heard five to six gunshots coming from the south of the parking lot. Shortly after hearing the gunshots, he saw two young men running through a gangway adjacent to the church annex, on the north side of 46th Street. A third man, who was wearing dark clothes and lagging behind the two others, was walking "nonchalantly" before he "picked up speed" in the gangway. The third man was headed north as were the other two men. ¶ 11 Tracey Lewis testified that at about 8:35 p.m. on March 25, 1997, he was about to exit the building at 4520 South Drexel Boulevard when he heard gunshots on the east side of Drexel. Mr. Lewis waited a few seconds and then exited the building and went to his car which was parked in front. As he walked to the car, Mr. Lewis noticed three men walking fast out of a vacant lot on the east side of Drexel. The three men separated, with one of the men walking north on Drexel, another walking straight across Drexel, and the third walking toward a building on the corner of 45th Street and Drexel. Mr. Lewis only recognized one of the men, LaMarcus Riley, who was crossing across Drexel. Mr. Riley was wearing a "three-quarter length" black leather jacket. One of the other males was dressed in dark-colored clothing and the third man was wearing a white shirt and baseball cap. All three men eventually walked to 45th Street and Drexel Boulevard. ¶ 12 Chicago police officer Frank Gurtowski, an evidence technician, testified he responded to the shooting and saw bullet holes in the glass entrance doors of the apartment building at 4624 South Ellis Avenue, as well as in a panel just west of the front door, and in a window frame by the entrance. Officer Gurtowski recovered bullets and metal fragments from inside the entrance hallway to the building, as well as 10 discharged 9 millimeter cartridge cases on the north side of the parking lot, between a car and a Jeep. ¶ 13 Detective George Holmes testified to Mr. Sexton's identification of defendant from the photo array. Detective Samuel Brown testified to Mr. Sexton's identification of defendant from the line-up. ¶ 14 Defendant did not present any evidence, but argued in closing that Mr. Sexton's account of the shooting was inherently incredible. The trial court disagreed, finding Mr. Sexton credible and the circumstances corroborative. Accordingly, the trial court found defendant guilty of first-degree murder and subsequently sentenced him to 35 years' imprisonment. ¶ 15 On direct appeal, we granted defense counsel's motion for leave to withdraw as appellate counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and affirmed the judgment of the trial court. People v. Davis, No. 1-97-4549 (2000) (unpublished order under Supreme Court Rule 23). ¶ 16 On December 15, 2005, defendant filed a postconviction petition alleging four substantive claims. First, defendant alleged he was denied effective assistance of counsel because his trial counsel, David Cuomo, had a conflict of interest due to his prior representation of LaMarcus Riley during the investigation of the shooting. Defendant alleged that as a result of his prior representation of Mr. Riley, Mr. Cuomo failed to argue at trial that Mr. Riley was the person who shot the victim. In support, defendant attached police reports from March and April 1997. The March police report indicated that when officers responded to the crime scene, an unidentified male told them he had seen Mr. Riley fleeing from the scene. The April police report further indicated that on April 1, 1997, police officers were contacted by Mr. Riley's attorney, David Cuomo, who told them Mr. Riley would meet with them the next day. At that meeting, Mr. Cuomo informed the officers that Mr. Riley had been advised to remain silent. According to the police report, Mr. Riley was released from custody on April 3, 1997. Defendant did not attach an affidavit from Mr. Cuomo or Mr. Riley in further support of his ineffective assistance claim. ¶ 17 Second, defendant alleged in his postconviction petition that he was denied his due process rights in violation of Brady because the State suppressed an exculpatory report prepared by State's Attorney Investigators Kelly and McGee of their interview with Raymond Lewis on October 3, 1997, at the Cook County Jail. Mr. Lewis told the investigators he was a friend to both defendant and Mr. Sexton. Mr. Lewis related that he and defendant were former members of the Gangster Disciples, and that Mr. Sexton is an active member of the Gangster Disciples. Mr. Lewis revealed that "approximately 6 weeks after the shooting," Mr. Sexton told him that "he did not know who did the shooting but that 'someone had to go down.' " According to Mr. Lewis, Mr. Sexton provided defendant's name to the police because " 'it was the first name that popped into Sexton's head.' " The investigative report also states that Mr. Lewis received a call from defendant's attorney in early September 1997. Mr. Lewis told defendant's attorney he would not testify because of "fear of gang reprisal" from Mr. Sexton and his friends. ¶ 18 Third, defendant alleged in his postconviction petition that his trial counsel provided ineffective assistance by failing to subpoena Mr. Lewis to have him testify to what Mr. Sexton had told him. ¶ 19 Fourth, defendant alleged in his postconviction petition that he was actually innocent. In support, defendant attached affidavits from Reginald Hunt and Joanna Sanders. In his affidavit, Mr. Hunt attested only:
"That my son, Reginald Saxon, told me that he wasn't present at the time of the murder. He said, he wasn't even there so how could he [have] witnessed it. He also told me he wasn't going to court to testify because he didn't know nothing. My daughter, LaShay Matthews, was present during the whole conversation."¶ 20 In her affidavit, Ms. Sanders attested she was defendant's former girlfriend and that in December 2000, she spoke with Adrienne Parker, who stated she witnessed the victim's shooting and that defendant was not involved. Ms. Sanders attested that she showed Ms. Parker a photograph of defendant, and that Ms. Parker stated defendant "definitely [was] not the person who she had seen at the shooting." The photograph was not attached to the postconviction petition. ¶ 21 Defendant also attached two documents concerning Ms. Parker. In the first, an unidentified author writes in a memo that he or she obtained Ms. Parker's contact information from Ms. Sanders and talked to Ms. Parker on March 15, 2001. Ms. Parker told the author that she lived at 4701 South Ellis Avenue in March 1997, and bought marijuana from "Tony" or "Tone" at the Ellis Towers at that time. One night in March 1997, she went to the Ellis Towers and saw three young men brandishing guns in the south parking lot. Ms. Parker left the scene, and later learned "Tone" had been shot to death. In December 2000, she struck up a conversation with Ms. Sanders and told Ms. Sanders she had personally witnessed "Tone's" murder. Ms. Sanders responded that her ex-boyfriend, defendant, had been convicted of the murder and she showed Ms. Parker a photograph of defendant. Ms. Parker stated that defendant was not one of the shooters she had seen. ¶ 22 The second document defendant attached to his postconviction petition was an unsigned affidavit from Ms. Parker attesting to the same facts alleged by the unidentified author in the memo. ¶ 23 Finally, defendant alleged he was not culpably negligent in failing to file his postconviction petition earlier because he relied on his attorney's (Mr. Cuomo's) assurances he was working on defendant's postconviction petition and would file it when ready. Defendant attached a letter from Mr. Cuomo to defendant's mother dated November 18, 1997, in which Mr. Cuomo stated he will continue his investigation into defendant's case and will file a postconviction petition when he obtains "new evidence *** strong enough to withstand judicial scrutiny." In his own affidavit attached to the postconviction petition, defendant attested that based upon this letter, he "believed there was no time limit" for filing the postconviction petition. Defendant also attached a September 2001 letter to him from Mr. Cuomo, in which Mr. Cuomo wrote that since December, he had finally been able to secure the cooperation of Adrienne Parker, LaShay Matthews, and Joanne Sanders, and that he still was trying to obtain an affidavit from Mr. Sexton. Mr. Cuomo advised defendant he was enclosing a draft postconviction petition that he would like to file by mid-November even if they could not get Mr. Sexton's affidavit. Defendant further attached a transcript and complaint from ARDC proceedings against Mr. Cuomo. The transcript is undated. Defendant contends the ARDC proceedings resulted in Mr. Cuomo's disbarment for misappropriating $450,000 from three other clients between 2001 and 2003. ¶ 24 On January 27, 2006, the postconviction judge (who was the same judge who presided over defendant's trial) summarily dismissed defendant's postconviction petition. Defendant appealed. On January 22, 2010, we reversed this summary dismissal and remanded for second-stage proceedings. People v. Davis, No. 1-06-0489 (2010) (unpublished order under Supreme Court Rule 23). Because we found that further proceedings were required on the Brady claim, we remanded the entire petition without reaching the merits of the other claims. Id. ¶ 25 As to the alleged Brady violation, we found that the record at that time did not rebut defendant's claim that the State failed to provide the investigators' report of their interview with Raymond Lewis to the defense before sentencing. Id. We found that Mr. Lewis, "an apparent neutral party," stated that Mr. Sexton told him he was not a witness to the shooting, and that this statement "obviously calls into question the veracity of Sexton's testimony" and supports defendant's theory of defense at trial that Mr. Sexton was not credible. Id. Based on the fact that the trial court's finding of guilt "rested solely on the identification testimony of Sexton," we held that it was at least arguable that Mr. Sexton's statement to Mr. Lewis that he did not witness the shooting "would have substantially reduced or destroyed Sexton's value as a witness and thereby undermined defendant's ultimate conviction." Id. Because we could not say "there is no reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," we reversed the summary dismissal of defendant's postconviction petition and remanded for second-stage proceedings. Id. ¶ 26 On July 29, 2010, defendant filed an amended postconviction petition in which he expressly adopted the allegations from the original petition. Defendant also added a new claim that Mr. Sexton's statement identifying him as the shooter was coerced by Chicago police officers working with Jon Burge, who interviewed 16-year-old Mr. Sexton outside the presence of a juvenile officer and without his parents. ¶ 27 On October 7, 2010, the State filed a motion to dismiss defendant's amended postconviction petition. As to the Brady claim, in particular, the State "emphatically" denied that it had failed to provide the investigators' report to the defense before sentencing. In support, the State attached the following documents to the motion as exhibits: the trial prosecutor's request on September 29, 1997, that investigators interview Mr. Lewis; the investigators' report itself; and both a cover sheet and a sheet confirming that the prosecutor sent a three-page fax to Mr. Cuomo on October 20, 1997. Further, during the hearing on the motion to dismiss, the prosecutor stated that said documents showed that the State had tendered the investigators' report to Mr. Cuomo in advance of the sentencing hearing. Defendant did not dispute the prosecutor's claim at the hearing that the investigators' report had been sent to Mr. Cuomo. ¶ 28 The State also argued that defendant's postconviction and amended postconviction petitions were untimely, that defendant had failed to properly plead an actual innocence claim or ineffective assistance of counsel claims, and that defendant had failed to provide any corroborating documentation supporting his new claim of police coercion. ¶ 29 On October 25, 2011, the postconviction court dismissed defendant's amended postconviction petition. As to the allegation of police coercion, the postconviction court noted there were no affidavits or any other documentation filed by defendant in support thereof, nor was there any evidence anywhere in the record "that the police did anything improper to [Mr. Sexton] at all." We note defendant has not raised the allegation of police coercion as an issue on appeal. ¶ 30 As to the allegation the State committed a Brady violation by failing to disclose the investigative report of their interview with Mr. Lewis in which he stated Mr. Sexton told him six weeks after the murder that he did not know the identity of the shooters, the postconviction court noted the affidavit from Mr. Lewis filed in support thereof contained "absolute[] hearsay" about "what he claims the witness to the murder told him." Defendant did not file an affidavit from Mr. Sexton. The postconviction court stated:
"And I can say this in all candor: it would not [have] made one slight a bit of difference to me at all, the testimony by Raymond Lewis that he talked to the witness [Mr. Sexton] six weeks later and the guy said I wasn't there. [Mr. Sexton] testified under oath credibly that after the shooting where he saw [defendant] shoot the guy he was with, he ran upstairs and told somebody *** in the victim's family that there was a shooting. So obviously he was there. So that so-called impeachment, if there was any, was hearsay anyway, *** that would not have [changed] my mind in the slightest. *** Let's assume it wasn't hearsay for the sake of discussion. *** Within minutes, actually literally minutes after the shooting, Sexton runs up to the building and tells the victim's people I saw the shooting. So that so-called hearsay conversation with Lewis *** he claims he had with Reginald Sexton, in particular with regard to the murder, at the best might impeach a little bit. But I heard the witness [Mr. Sexton] testify. I saw the witness testify. It did not affect me at all, that so-called statement. But putting that aside, whether it would have affected me or not, it's clearly, unquestionably,
undeniably hearsay."¶ 31 As to the allegation of actual innocence, the postconviction court noted the affidavit filed by Mr. Hunt claiming to have had a conversation in which his son, Reginald Sexton, admitted he did not witness the murder, was suspect as Mr. Hunt misspelled the name of his son as Reginald Saxon. Even assuming Mr. Hunt was actually Mr. Sexton's father, the postconviction court noted Mr. Hunt did not state in his affidavit when the conversation with Mr. Sexton occurred, under what circumstances it occurred, and "what murder he is even talking about for that matter." The postconviction court noted that Ms. Sanders's affidavit regarding her conversation in which Ms. Parker stated defendant was not the shooter was hearsay and that Ms. Parker's attached affidavit was not signed. The postconviction court concluded that Mr. Sexton testified credibly regarding his witnessing of the shooting, and that defendant had failed to make a substantial showing of actual innocence. ¶ 32 The postconviction court also found that defendant had failed to make a substantial showing that his trial counsel acted under a conflict of interest, and the court further concluded that defendant's amended postconviction petition was also untimely. Accordingly, the postconviction court granted the State's motion to dismiss the amended postconviction petition. Defendant appeals. ¶ 33 A postconviction proceeding "is not an appeal of a defendant's underlying judgment. Rather, it is a collateral attack on the judgment." People v. Evans, 186 Ill. 2d 83, 89 (1999). Such a proceeding "allow[s] inquiry into constitutional issues relating to the conviction or sentence that were not, and could not have been, determined on direct appeal." People v. Barrow, 195 Ill. 2d 506, 519 (2001). ¶ 34 In a noncapital case, the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)) creates a three-stage procedure of postconviction relief. In the first stage, the postconviction court independently reviews the petition and determines whether it is "frivolous" or "patently without merit." 725 ILCS 5/122-2.1 (a)(2) (West 2010); People v. Hodges, 234 Ill. 2d 1, 10 (2009). If the postconviction petition is not so summarily dismissed, it advances as here to the second stage where the State may file a motion to dismiss the petition and the postconviction court must determine whether the petition and any accompanying documents make a substantial showing of a constitutional violation. Id. at 10-11 n.3. At the second stage of proceedings, the postconviction court takes "all well-pleaded facts that are not positively rebutted by the trial record" as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If the petition fails to make a substantial showing of a constitutional violation, it is dismissed; if such a showing is made, the postconviction petition advances to the third stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2010). A second-stage dismissal of a postconviction petition is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 389 (1998). ¶ 35 First, we address whether the postconviction court erred in dismissing defendant's claim of actual innocence. "The wrongful conviction of an innocent person violates due process under the Illinois Constitution and, thus, a freestanding claim of actual innocence is cognizable under the Post-Conviction Hearing Act." People v. Barnslater, 373 Ill. App. 3d 512, 519 (2007). The evidence in support of the claim must be newly discovered, meaning "it must be evidence that was not available at a defendant's trial and that he could not have discovered sooner through due diligence." People v. Collier, 387 Ill. App. 3d 630, 636 (2008). The evidence also must be material and non-cumulative and "of such conclusive character that it would probably change the result on retrial." Id. However, " 'actual innocence' is not within the rubric of whether a defendant has been proved guilty beyond a reasonable doubt. [Citation.] Rather, the hallmark of 'actual innocence' means 'total vindication,' or 'exoneration.' People v. Savory, 309 Ill. App. 3d 408, 414-15 (1999)." Collier, 387 Ill. App. 3d at 636. ¶ 36 Defendant contends the affidavits of Mr. Hunt and Ms. Sanders are newly discovered, material, and are of such conclusive character as would probably change the result on retrial. As discussed, Mr. Hunt attested that, with his daughter LaShay Matthews present, his son "Reginald Saxon, told [Mr. Hunt] that he wasn't present at the time of the murder." Ms. Sanders attested she is defendant's former girlfriend and that she spoke with Adrienne Parker in December 2000. Ms. Parker told Ms. Sanders that she was at the scene of the shooting. Ms. Sanders showed defendant's photograph to Ms. Parker, who then stated defendant was "not the person who she had seen at the shooting." ¶ 37 Defendant contends that, similar to Mr. Lewis's affidavit which we held in our earlier order arguably "would have substantially reduced or destroyed Sexton's value as a witness and thereby undermined defendant's ultimate conviction"(Davis, No. 1-06-0489 (2010) (unpublished order under Supreme Court Rule 23)), we should hold here that the affidavits provided by Mr. Hunt and Ms. Sanders would have destroyed Mr. Sexton's value as a witness and probably changed the result on retrial. Accordingly, defendant argues that we must reverse and remand for a third-stage evidentiary hearing. ¶ 38 We disagree. The earlier order was made in an appeal from the summary dismissal of defendant's postconviction petition, in which the postconviction court independently reviewed the petition and determined that it was frivolous or patently without merit, i.e., that it failed to present the gist of a constitutional claim. "The 'gist' standard is 'a low threshold.' " (People v. Edwards, 197 Ill. 2d 239, 244 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). We determined that the defendant's postconviction petition met this threshold as to the alleged Brady violation, and we reversed the summary dismissal and remanded. Davis, No. 1-06-0489 (2010) (unpublished order under Supreme Court Rule 23). ¶ 39 By contrast, the present appeal arises from a second-stage dismissal of defendant's amended petition following a hearing on the State's motion to dismiss. At the second stage, defendant must meet a higher threshold of demonstrating a substantial showing of a constitutional violation. People v. Wright, 2013 IL App (4th) 110822, ¶ 22. We proceed to consider whether defendant met this higher threshold as to his claim of actual innocence. ¶ 40 As discussed, defendant supported his claim of actual innocence with the affidavits of Ms. Sanders and Mr. Hunt. In dismissing defendant's claim of actual innocence, the postconviction court correctly noted that Ms. Sanders's affidavit contained inadmissible hearsay statements of her conversation with Ms. Parker regarding defendant's innocence of the murder (see People v. Spears, 256 Ill. App. 3d 374, 380 (1993) (defining inadmissible hearsay as an out-of-court statement offered to prove the truth of the matter asserted)), and that such hearsay affidavits generally are insufficient to warrant postconviction relief based on a claim of actual innocence. See People v. Morales, 339 Ill. App. 3d 554, 565 (2003). The postconviction court further correctly noted that defendant had provided a document supposedly written by Ms. Parker confirming her conversation with Ms. Sanders, but that the document was not signed or notarized and could not be considered a valid affidavit. See Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 493-94 (2002). Defendant also provided an unsigned, handwritten memo detailing the author's conversation with Ms. Sanders about the murder, but said memo contains inadmissible hearsay and is otherwise insufficient and unreliable to support defendant's postconviction claim of actual innocence in the absence of an affidavit explaining the circumstances under which the memo was created. See People v. Johnson, 183 Ill. 2d 176, 190 (1998). ¶ 41 Mr. Hunt's affidavit similarly contained inadmissible hearsay statements regarding his conversation with his son, Reginald Sexton, in which Mr. Sexton allegedly stated he did not witness the murder. In considering Mr. Hunt's affidavit, the postconviction court questioned whether Mr. Hunt was actually Mr. Sexton's father, noting he misspelled Mr. Sexton's name in the affidavit. Even assuming Mr. Hunt was Mr. Sexton's father, the court noted Mr. Hunt did not state when and under what circumstances his conversation with Mr. Sexton took place, nor did he state what murder he was talking about. Mr. Hunt referenced his daughter, LaShay Matthews being present during the conversation, but defendant provided no affidavit from Ms. Matthews. ¶ 42 The postconviction court specifically found Mr. Sexton to be a credible witness who had informed the victim's sister of the shooting within minutes of its occurrence, had described defendant to the officers and had included a description of his chipped tooth, and identified defendant as one of the shooters. The court concluded that defendant failed to make a substantial showing that the affidavits of Mr. Hunt and Ms. Sanders, containing the hearsay statements from Mr. Sexton and Ms. Parker, would have changed the result of the trial and so dismissed the claim of actual innocence. ¶ 43 We agree with the postconviction court. After carefully considering the arguments and evidence presented during the hearing on the State's motion to dismiss, the postconviction court committed no error in finding defendant failed to make a substantial showing of actual innocence. This is especially so where the signed affidavits by Mr. Hunt and Ms. Sanders in support thereof contained inadmissible hearsay statements allegedly made by Mr. Sexton and Ms. Parker regarding defendant's alleged innocence, and where defendant's claim of actual innocence was not supported by any signed affidavits from Mr. Sexton and Ms. Parker themselves. Defendant did not meet his burden of making a substantial showing of actual innocence, in the absence of any admissible evidence contradicting Mr. Sexton's trial testimony identifying defendant as one of the persons who shot at the victim and as one of three men fleeing the scene while shooting their guns in the air, which testimony the postconviction court expressly found to be credible. Mr. Sexton's testimony that he witnessed the shooting was corroborated in part by Ms. Waters and Ms. Arrington, who testified that Mr. Sexton knocked on Ms. Waters's door minutes after the shooting and informed them the victim had been shot. Mr. Sexton's testimony regarding defendant and the other two men fleeing from the scene while firing their weapons in the air was also corroborated by Ms. Arrington's, Mr. Boyd's, and Mr. Lewis's testimony of seeing three men leaving the scene of the shooting, and by Ms. Arrington's testimony that the three men were firing their weapons while fleeing. As Mr. Sexton's, Ms. Waters's, Ms. Arrington's, Mr. Boyd's, and Mr. Lewis's testimony remains uncontradicted by any admissible evidence, we affirm the second-stage dismissal of defendant's claim of actual innocence. ¶ 44 Next, we address whether the postconviction court erred in dismissing defendant's remaining postconviction claims on timeliness grounds. Section 122-1(c) of the Act sets forth the limitations period for filing a postconviction petition:
"When a defendant has a sentence other than death, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. This limitation does not apply to a petition advancing a claim of actual innocence." 725 ILCS 5/122-1(c) (West 2010).¶ 45 The parties agree that under the facts of this case, defendant was required to file his postconviction claims (other than his claim of actual innocence) by February 1, 2001, in order to comply with the limitations period set forth in section 122-1(c). Defendant did not file his initial postconviction petition until December 15, 2005, almost five years (58 months) after the limitations period had expired. Pursuant to section 122-1(c), defendant's untimely postconviction claims may only be considered if the late filing was not due to defendant's "culpable negligence." 725 ILCS 5/122-1(c) (West 2010). ¶ 46 Defendant bears the"heavy burden" to affirmatively show why the tardiness of the petition was not due to his culpable negligence. People v. Gunartt, 327 Ill. App. 3d 550, 552 (2002). The phrase "culpable negligence" contemplates "something greater than ordinary negligence and is akin to recklessness." People v. Boclair, 202 Ill. 2d 89, 108 (2002). "Lack of culpable negligence is very difficult to establish." Gunartt, 327 Ill. App. 3d at 552. ¶ 47 "As the law stands today, a defendant asserting that he was not culpably negligent for the tardiness of his petition must support his assertion with allegations of specific fact showing why his tardiness should be excused." People v. Hobson, 386 Ill. App. 3d 221, 233 (2008). See People v. Walker, 331 Ill. App. 3d 335, 339-40 (2002) (noting that the relevant inquiry becomes whether, after accepting all well-pleaded factual allegations of defendant's petition regarding culpable negligence as true, those assertions are sufficient as a matter of law to demonstrate an absence of culpable negligence on defendant's part); People v. Van Hee, 305 Ill. App. 3d 333, 336 (1999) ("[t]o show the absence of culpable negligence, a petitioner must allege facts justifying the delay"); People v. McClain, 292 Ill. App. 3d 185, 188 (1997) (to warrant an evidentiary hearing on the issue of whether the delay in filing postconviction relief was not occasioned by culpable negligence, the defendant "must make a 'substantial showing' by alleging facts demonstrating that to be the case") overruled in part and on different grounds by People v. Woods, 193 Ill. 2d 483 (2000). ¶ 48 Defendant argues that assessments of culpable negligence normally require credibility determinations that are more appropriately made at a third-stage evidentiary hearing. However, in People v. Lander, 215 Ill. 2d 577 (2005), the supreme court upheld the postconviction court's finding during second-stage proceedings that the petitioner there had failed to establish the delay in filing his postconviction petition was not due to his culpable negligence. Id. at 579-80. In so ruling, the supreme court impliedly held that assessments of culpable negligence may be made during second-stage proceedings. Accordingly, we consider whether the postconviction court erred during the second stage of postconviction proceedings here in finding that defendant failed to allege facts substantially showing the delay in filing his petition was not occasioned by his culpable negligence. ¶ 49 "A trial court's findings of fact regarding whether a petition's untimeliness was due to culpable negligence will not be reversed unless manifestly erroneous [citation], but the trial court's ultimate conclusion as to whether the established facts demonstrate culpable negligence is reviewed de novo." People v. Ramirez, 361 Ill. App. 3d 450, 452 (2005). ¶ 50 Defendant contends he has alleged facts substantially showing that the delay in filing his postconviction petition was not due to his culpable negligence but, rather, was due to his justifiable reliance on his counsel's, Mr. Cuomo's, statement in the November 18, 1997, letter to defendant's mother that he was investigating new evidence and would file the postconviction petition "[i]f, and only if, that new evidence is strong enough to withstand judicial scrutiny." In support, defendant cites People v. Hobson, 386 Ill. App. 3d 221 (2008). In Hobson, the petitioner there alleged the reason for his delay in filing his postconviction petition until three to five months after the expiration of the limitations period was that appellate counsel misadvised him that he had three years from the date of his conviction to file his postconviction petition, that he filed his petition within that incorrect deadline and that therefore he had no reason to think his petition was untimely filed. Id. at 234. We held that the petitioner alleged enough facts to make a substantial showing he was not culpably negligent for the tardy filing of his petition. Id. at 235. In so holding, we analogized the case to People v. Rissley, 206 Ill. 2d 403 (2003), in which the supreme court similarly held that the defendant there had established that his delay in filing his petition six days after the expiration of the limitations period was not due to his culpable negligence, where the petition alleged his appellate counsel incorrectly told him he had three years from the date of sentencing to file his postconviction petition. Id. at 417-18, 421. The supreme court found that the defendant had no reason to question the advice he received from his counsel and that based on this advice he reasonably would have believed he had timely filed his petition. Id. at 421. ¶ 51 In contrast to Hobson and Rissley, defendant's petition here was not late by a few days or months, but by almost five years. Also in contrast to Hobson and Rissley, defendant's trial counsel made no misrepresentations regarding the limitations period for filing the postconviction petition. On these facts, this case is similar to People v. Hampton, 349 Ill. App. 3d 824 (2004), in which the defendant there appealed the grant of the State's motion to dismiss his postconviction petition as untimely. Defendant admitted the petition was untimely (id. at 826) but argued that under Rissley, he pleaded sufficient facts that would establish he was not culpably negligent, specifically, that his attorney had failed to tell him of the time constraints for filing his postconviction petition. Id. at 826-27. We disagreed, noting that unlike in Rissley where the petition was late by six days, the petition in Hampton was late by four years and eight months. We noted "it stands to reason that a defendant who waits nearly five years beyond the statutory deadline to file a petition has more explaining to do than one who is late by less than a week. Being tardy by six days is far less inherently suggestive of recklessness than is missing the deadline by several years." Id. at 828. ¶ 52 We further noted that unlike in Rissley, defendant never alleged his counsel told him anything about when he needed to file his petition, and therefore defendant was "in no worse a position than the vast majority of pro se postconviction petitioners, who also lack access to the advice of counsel." Id. at 829. We held that the "absence of professional advice would be relevant only if defendant's ignorance of the Act's time constraints could excuse his failure to adhere to them. However, it is settled that unfamiliarity with the Act's requirements does not show a lack of culpable negligence." Id. We noted that to hold otherwise "would vitiate the Act's time constraints because defendants could routinely escape them by 'pleading ignorance.' " Id. Accordingly, as defendant's petition was untimely and did not allege facts showing that the untimeliness did not result from his culpable negligence, we affirmed the dismissal order. Id. ¶ 53 As in Hampton, defendant's delay here in filing his petition almost five years after the expiration of the limitations period is far more suggestive of culpable negligence than the delay of only a few days at issue in Rissley or the delay of only a few months at issue in Hobson. Also as in Hampton, defendant here pleaded no facts indicating a lack of culpable negligence based on his reasonable reliance on specific misrepresentations by Mr. Cuomo regarding the time period for filing his postconviction petition. Defendant asserted in his affidavit that he "believed there was no time limit" for filing a postconviction petition based on the following passage in the November 18, 1997, letter from Mr. Cuomo to defendant's mother, which stated:
"I will continue on in my investigation into the new evidence which has been discovered. If, and only if, that new evidence is strong enough to withstand judicial scrutiny, I will file a post-conviction petition, or any other appropriate petition to bring the new evidence to the judge's attention. Should I chose [sic] to file any such
action, I will of course follow up on it and handle it in its entirety."A close reading of this passage shows that while Mr. Cuomo indicated he was working on defendant's postconviction petition and would file it if he determined newly discovered evidence was strong enough to withstand judicial scrutiny, he never stated there were no time limitations for filing said petition; in fact, Mr. Cuomo made no representations of any kind regarding the time limitations for filing defendant's postconviction petition. Thus, this passage does nothing to substantially show that defendant's belief there was no time limit for filing his postconviction petition was reasonable or that he was not culpably negligent for failing to file said petition until almost five years after the limitations period expired. ¶ 54 Further, even assuming for argument purposes only that the November 18, 1997, letter from Mr. Cuomo to defendant's mother reasonably could have led defendant to believe there was no time limit for filing a postconviction petition while Mr. Cuomo investigated the new evidence, the September 2001 letter defendant received from Mr. Cuomo stated that Mr. Cuomo had secured the cooperation of certain witnesses and had prepared a postconviction petition he would like to file two months later by "mid-November" 2001. However, after the two months had passed in November 2001, defendant waited until December 15, 2005 (which was also almost five years after the expiration of the statutory limitations period on February 1, 2001), before filing said petition. "'[W]hether delay is due to culpable negligence depends not only on when the claim is discovered [by the defendant] but [also] on how promptly the defendant takes action after the discovery.' " Ramirez, 361 Ill. App. 3d at 453-54 (quoting People v. Davis, 351 Ill. App. 3d 215, 218 (2004)). Defendant provides no explanation either in his postconviction petition or in his appellant's brief as to why, after receiving the September 2001 letter from Mr. Cuomo notifying him of his postconviction claims and of the desire to file said claims within two months, he delayed until December 2005 before filing his petition. Had defendant filed a postconviction petition in September 2001, when he received Mr. Cuomo's letter asserting that the draft petition was attached, the petition would have been tardy by seven months (given that the statutory limitations period expired on February 1, 2001); had defendant filed a postconviction petition by November 2001, pursuant to the deadline suggested by Mr. Cuomo, the petition would have been tardy by nine months. Instead, defendant waited four more years until December 15, 2005, to file his petition, and thus the petition was tardy by almost five years (58 months) under the statute. As discussed, defendant's delay in filing his postconviction petition until almost five years after the expiration of the limitation period is far more suggestive of culpable negligence than if he had filed the petition within a few months after the expiration of the limitations period, when he first learned of his postconviction claims from Mr. Cuomo. ¶ 55 In his reply brief, defendant contends the almost five-year delay before filing his postconviction petition in December 2005 was due to his new counsel's need to obtain certain police reports concerning Mr. Cuomo's representation of Mr. Riley which would support defendant's claim that Mr. Cuomo was acting under a conflict of interest at trial. However, those police reports were written in March and April of 1997, and defendant provides no explanation for why they could not be obtained before the limitations period expired in February 2001. ¶ 56 Defendant also contends in his reply brief that the almost five-year delay before filing his postconviction petition in December 2005 was due to his new counsel's need to obtain Mr. Cuomo's testimony from his disbarment proceedings, which he gave after the ARDC complaint was filed in June 2003. In his testimony before the ARDC, Mr. Cuomo stated he believed his representation of defendant ended after his sentencing, but he also testified he had agreed to perform some "informal" postconviction investigative work to determine whether defendant had any viable postconviction claims. Mr. Cuomo further testified he subsequently stopped working on the case because he suffered a prolonged illness and because he developed some doubt about the new witnesses. Defendant has failed to plead any facts or make any arguments showing how Mr. Cuomo's testimony before the ARDC was in any way relevant to the allegations in his postconviction petition or why new counsel needed to procure Mr. Cuomo's ARDC testimony before filing his postconviction petition. We further note that while Mr. Cuomo's ARDC testimony provides some information as to why he stopped assisting defendant, Mr. Cuomo never admitted therein that he misrepresented the time limitations involved in pursuing a postconviction claim. Thus, Mr. Cuomo's testimony before the ARDC does not support defendant's claim of lack of culpable negligence for filing his petition almost five years after the statutory limitations period had expired. ¶ 57 In sum, defendant has failed to plead any facts that make a substantial showing that his delay in filing his postconviction petition for almost five years after the expiration of the statutory limitations period was not due to his culpable negligence. Accordingly, the postconviction court correctly dismissed defendant's postconviction claims as untimely (other than the claim of actual innocence, which, as discussed, was not subject to the Act's limitations period but was properly dismissed on other grounds). ¶ 58 For the foregoing reasons, we affirm the circuit court. As a result of our disposition of this case, we need not address the other arguments on appeal. ¶ 59 Affirmed.
We address the actual innocence claim separately from defendant's other postconviction claims because, as discussed later in this order, all the other claims were properly dismissed as untimely under the Act whereas the actual innocence claim is not subject to the Act's limitations period. See 725 ILCS 5/122-1(c) (West 2010).