Opinion
1-20-0505
11-09-2021
PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MARTE HOLLIS, Petitioner-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 05 CR 0705001 The Honorable Geraldine A. D' Souza, Judge Presiding.
FITZGERALD SMITH PRESIDING JUSTICE delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.
ORDER
FITZGERALD SMITH PRESIDING JUSTICE.
¶ 1 Held: Trial court's denial of petition for leave to file successive postconviction petition is affirmed, where petition failed to make a colorable claim of actual innocence or to show cause and prejudice for failing to include claims in original postconviction petition.
¶ 2 Petitioner Marte Hollis appeals the trial court's order denying him leave to file a successive petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2018). Petitioner was convicted of first-degree murder arising out of the shooting death of Matthew Judkins on February 17, 2005, and he was sentenced to 45 years imprisonment. In this appeal, he contends that his successive postconviction petition and supporting affidavits (1) raise a colorable claim of actual innocence based on self-defense and (2) satisfy the cause and prejudice test. For these reasons, he argues, the trial court erred in denying him leave to file a successive postconviction petition. For the reasons that follow, we affirm the judgment of the trial court.
¶ 3 I. BACKGROUND
¶ 4 At petitioner's trial in 2006, deputy chief James Knapp of the Markham Police Department testified that on February 17, 2005, he was assigned to investigate a shooting at a residence on South Laflin Avenue in Markham. When he arrived sometime after 11 p.m., he went to an upper-level bedroom and observed that the bedroom door had two bullet holes through it and blood on the inside of the door near the bullet holes. The holes appeared to have come from outside the door into the bedroom. He observed the victim, Matthew Judkins, lying face up on the floor about three feet from the bedroom door. The victim had blood on his face in his mouth area, blood on his chest, and blood on the right leg of his jeans. Petitioner was not present but was later taken into custody.
¶ 5 Chantelle Moore testified that petitioner had been her live-in boyfriend for years, including at the residence on South Laflin Avenue in Markham, but petitioner had moved out in October 2004. On the day at issue, petitioner had called Chantelle several times to tell her that he needed to get something out of the house, but she told him no. She described that as of that day, her relationship with petitioner was not good, because they had gotten into a fight a few days earlier on Valentine's Day. Chantelle testified that on the night at issue, she had invited Judkins, a friend whom she had known for five months, to her home for a visit. Judkins arrived about 9 p.m., along with his young son. Judkins was sitting in a chair in Chantelle's room watching TV when Chantelle decided to take a shower. While she was showering, her son told her that petitioner had arrived. She told her son to tell petitioner that she was not at home, but shortly thereafter she saw petitioner standing in the hall outside the bathroom door. Petitioner told her that he wanted to retrieve his clothes, and then he opened her bedroom door. When petitioner saw Judkins inside of that room, petitioner asked Judkins,"' What you doing in my house[?]'" Judkins responded," 'It's not your house.'" At that point, Chantelle returned to the bathroom to get dressed and closed the bathroom door. While doing so, she heard a loud gunshot. She opened the bathroom door and saw petitioner standing in front of it when a gun in his hand. The bedroom door was closed, and she saw petitioner shoot the gun two more times at the door. Petitioner then walked out of the house at a fast pace. Chantelle further testified that she kept a gun hidden in her bedroom closet, but that it would not have been visible from the bedroom and that she did not tell Judkins about the gun. There was also a knife on an ottoman next to the chair in which Judkins had been sitting on the night in question because Judkins had been using the knife to cut a cigar.
¶ 6 Chantelle's daughter, Chanell Moore, testified that at approximately 11 p.m. on the night of the incident she let petitioner into her house. Petitioner went upstairs, and Chanell saw her mother peer out at him from the bathroom and ask him what he wanted. Petitioner did not answer, and instead he opened the bedroom door and saw Judkins sitting inside. Petitioner asked Judkins, 'Why you here? Why you around my kids?'" Chanell then saw petitioner pull a gun from behind his back, at which point she saw the bedroom door close quickly from the inside. She then saw that petitioner was trying to push the door open but was unable to do so, at which point she saw him shoot through the door. Chanell ran out of the house after the first gunshot. She saw a van idling in front of the house. The door to the van was open and Chanell recognized the driver as petitioner's friend Lamont. Chanell then saw petitioner run from the house, jump into the van and tell the driver" 'go, go, go, go.'
¶ 7 The State then presented evidence that police investigators discovered that the bedroom door in question had two bullet holes in it, and that the gunshots had been fired from outside the bedroom. Three spent shell casings were found. A knife was found on the ottoman, covered by a coat, and a gun was found in the bedroom closet. The parties stipulated that forensic pathologist Dr. J. Scott Denton would testify that Judkins sustained a gunshot wound to the left upper chest as well as a gunshot wound to the right leg, neither of which had been fired at close range. His conclusion was that Judkins died from multiple "shotgun" wounds.
¶ 8 Assistant State's Attorney Shital Thakkar testified that after advising petitioner of his Miranda rights, he interviewed petitioner at the police station two days after the shooting. Petitioner then agreed to give a videotaped statement, and that statement was consistent with his earlier interview. In that videotaped statement, which was played at trial, petitioner admitted to shooting Judkins after going to Chantelle's home to retrieve clothes, seeing Judkins there, and arguing with him. Petitioner stated that he and Chantelle had argued on Valentine's Day because a man had phoned her at 11 p.m. that evening while the two of them were spending time together. Petitioner stated that he did not know who the man was, but he knew that Chantelle "kind of mess around a little bit with a couple more guys." Petitioner asked the man to "please stay away from my family because I'm trying to keep my family together." Petitioner had two children with Chantelle. Following their argument that night, Chantelle had taken his keys and kicked him out of the house. He thus decided on the day in question to ask if he could come to her house to retrieve his clothes. At about 10:30 p.m., petitioner's friend Lamont Beard drove him to Chantelle's home, and an unfamiliar vehicle was parked in front of it. He explained that when he went inside the house, Chantelle was just coming out of the shower and Judkins was "sitting in my black chair right across from my bed." He stated that Judkins "got loud with me," and petitioner was scared for his life because Judkins had shot at people, including police, and would "stick people up." Thus, he stated, "before we got to wrestling or whatever, I shot him." Petitioner did not recall firing three shots. Petitioner backed out of the room, walked out of the house, and jumped into Beard's van. They drove some distance before petitioner broke up the gun and threw the pieces into a body of water.
¶ 9 After petitioner's motion for directed verdict was denied, petitioner's counsel sought to subpoena Officer Rick Anthony of the South Holland police department pursuant to a newly amended witness list. Petitioner's counsel informed the court that she had previously made an effort to discover whether Judkins had any background that could be used to show his aggressive and violent character pursuant to People v. Lynch, 104 Ill.2d 194 (1984), but she had not discovered any relevant background until recently due to a discrepancy in the spelling of Judkins' last name. Petitioner's counsel made an offer of proof that Officer Anthony would testify regarding an incident that occurred in a South Holland hotel room that led to charges against Judkins for armed violence and various controlled substance offenses. When police officers went to the hotel room to take Judkins into custody, he "went under a bed" and had to be physically removed, and a loaded handgun was retrieved also. Petitioner's counsel stated that Judkins was convicted of drug related offenses and that a charge of armed violence was nolle prossed. The trial court found that this evidence was not admissible under Lynch, and the trial proceeded.
¶ 10 Lamont Beard testified for the defense that at about 11 p.m. on the night of the incident, he drove petitioner to Chantelle's home so that petitioner could retrieve his belongings. An unfamiliar truck was parked outside. When petitioner exited Beard's minivan, he did not seem to be angry. A short time later, Beard saw Chanell run screaming from the house. Beard heard loud noises but did not know they were gunshots because the van's windows were closed and he was listening to music. He denied leaving the minivan's engine running or its door open. Beard testified that petitioner walked out of the house when he returned to the minivan and Beard did not see a gun in his possession. However, Beard acknowledged that he had testified before the grand jury that he heard gunshots and that petitioner ran from the house carrying a gun.
¶ 11 Petitioner was the final witness to testify. His account of the events was similar to his videotaped statement, with several exceptions. He testified at trial that he and Chantelle had two children together and that he helped her raise her two older children. Petitioner had been living with Chantelle for several years, and he was still living with her at the Laflin Avenue residence on the date at issue. Following the fight that had occurred between the two of them on Valentine's Day, petitioner testified that he was through with the relationship and realized it was not going to work out. Thus, he went over to Chantelle's house on the night at issue to collect his clothes and money. He testified that prior to going into the bedroom, he opened the door to the bathroom and told Chantelle that he was going to get his things. He then opened the door to the bedroom, where he saw Judkins sitting in the chair. Petitioner explained that he knew of Judkins from an incident several months earlier in which he had witnessed Judkins get out of a car brandishing an automatic pistol and shout to a crowd," 'you MFers, I'm going to find out who shot me.'" He also testified that when he saw Judkins sitting in the chair, he also saw a knife on the footrest near him and a handgun in plain view on the shelf. Petitioner testified that he asked Judkins "what he was doing in my house, around my kids." He testified that Judkins responded," 'Shorty, you know who I am. You know how I get down, and such and such, '" at which point Judkins jumped up and grabbed him. Petitioner testified that he shook Judkins loose and stepped back out of the room. He then saw Judkins go toward the closet where the weapon was, so petitioner pulled his gun from the back of his waist and shot. Petitioner testified that he was afraid because Judkins was bigger than him and was reaching for a gun. Petitioner testified that the door was open when he shot and that, when Judkins went toward the closet, petitioner pulled the bedroom door closed. Petitioner then shot two more times through the door. He testified that he did this because he thought Judkins could have the gun in his hand, he wanted to keep Judkins from coming out, and he wanted time to get out of the house. Petitioner also testified that he was afraid Judkins would shoot him with the gun, and that he had heard Judkins had shot people in the past including a police officer and a couple of guys in the neighborhood. Petitioner then walked quickly out of the house and got into Beard's minivan, but he did not know whether Judkins had been hit or not. He later broke the gun down and threw it into some water as they stopped on a bridge.
¶ 12 In closing arguments, petitioner's counsel argued that "it's not a jealousy issue" because petitioner was aware that Chantelle was "somebody who does a little bit of cheating" and yet he had never fought or tried to kill the men she cheated with. He argued that if petitioner's thinking had been "to shoot anybody that is with my fiancée," he would have shot Judkins immediately without letting him stand up from the chair. In rebuttal closing, the prosecutor summarized this argument by petitioner's counsel and then argued that it was for the court to decide whether petitioner was jealous. The prosecutor stated that the situation "sounds like a scorned lover" and noted there was a dispute about whether Chantelle had kicked petitioner out of the house or whether he had voluntarily decided to leave.
¶ 13 The trial court found petitioner guilty of first-degree murder. In doing so, the court stated that it was clear that the State had proven the elements of murder but that the issue was whether "there is second degree or not." The court recounted portions of petitioner's statement and the trial testimony of petitioner and Channell, including Channell's testimony that she saw the bedroom door close from the inside and petitioner shoot through the door after being unable to open it. The court found that Chanell was "very credible," and that the mitigating factors for a second-degree finding were not present. The court subsequently sentenced petitioner to 45 years imprisonment.
¶ 14 Petitioner filed a direct appeal in which his sole contention was that the trial court erred in denying the admission of evidence, by way of Officer Anthony's testimony, of Judkins' violent and aggressive character that would have supported his self-defense argument that Judkins was the initial aggressor. This court rejected that contention and affirmed his conviction and sentence. People v. Hollis, No. 1-09-1777 (2010) (unpublished order under Illinois Supreme Court Rule 23).
¶ 15 On October 26, 2011, petitioner filed his initial petition for postconviction relief, which was prepared with the assistance of privately-retained counsel. In that petition, petitioner asserted five bases upon which his trial counsel had provided ineffective assistance: (1) she failed to properly investigate petitioner's case and discover Lynch witnesses who could testify to Judkins' violent character; (2) she called Beard, who presented damaging testimony, to testify on petitioner's behalf; (3) she stipulated to the autopsy report that indicated that Judkins was killed by multiple "shotgun" wounds, contrary to the trial testimony of multiple witnesses that he was killed by "gunshot" wounds; (4) she failed to file a motion to suppress petitioner's videotaped confession and any statements made prior to that confession; and (5) she failed to file a motion requesting discovery sanctions against the State's Attorney's office when it revealed that the 911 tape had been destroyed. Attached to that original petition was an affidavit by Lisa Dabbs, who averred that Judkins was "a very dangerous man" known for robbing various neighborhood residents. She averred that Judkins had robbed petitioner's brother at gunpoint, that he was known to have been arrested for battery, assault, and drugs and questioned for attempted murder, that the whole community was terrified of him, and that he was a main member of the Four Corner Hustlers, who were known to carry guns and to be unafraid to commit crimes. The petition was later amended to attach the affidavit of Ebony Hughes, who made averments similar to those of Dabbs concerning Jenkins being "well known in my community as a violent person."
¶ 16 The trial court granted the State's motion to dismiss petitioner's postconviction petition. In doing so, the court stated, inter alia, that the "two affidavits go to Lynch material" related to Judkins' reputation for violence in the community, which would be "nothing but cumulative" of petitioner's extensive trial testimony regarding "the Lynch information that he had."
¶ 17 Petitioner appealed and was represented on appeal by the Office of the State Appellate Defender. On appeal, petitioner did not challenge the dismissal of his postconviction petition on the merits. People v. Hollis, 2014 IL App (1st) 122168-U, ¶ 18. Instead, he sought reversal on the basis that his privately-retained postconviction counsel had failed in the trial court to provide him with a reasonable level of assistance by failing to present his claim that his trial counsel had been ineffective for failing to investigate and present Lynch evidence demonstrating Judkins' violent criminal proclivities in proper legal form and with appropriate supporting documentation. Id. ¶¶ 18, 20. Petitioner contended that his postconviction counsel (1) failed to show petitioner knew of proposed witnesses Dabbs and Hughes at the time of his trial; (2) did not ensure that Dabbs' affidavit stated that she would have testified on petitioner's behalf at trial; and (3) failed to include an affidavit from petitioner attesting that he told his trial attorney about Dabbs and Hughes. Id. ¶ 20. He also contended his postconviction counsel failed to provide a reasonable level of assistance in that every claim included in the petition other than the Lynch-based claim was patently frivolous, and she made incorrect statements during the hearing on the State's motion to dismiss the petition. Id. ¶¶ 23, 25. This court rejected petitioner's arguments that his postconviction counsel had failed to provide him with reasonable assistance in the trial court. Id. ¶¶ 22, 24, 27.
¶ 18 On August 19, 2015, petitioner filed a petition for writ of habeas corpus in federal district court. He alleged, among other claims, that his right to due process had been denied at trial by the trial court's refusal to admit the testimony of Officer Anthony concerning Judkins' violent character. Hollis v. Lamb, No. 15 C 7297, 2016 WL 6217089, *3 (N.D. Ill. Oct. 25, 2016). The district court denied the petition. Id. at *1. It found that, while petitioner had "raised a cognizable habeas claim based on a federal right," the claim was procedurally defaulted due to petitioner's failure to exhaust his remedies in state court by first presenting a federal claim there. Id. *3. The district court later denied a motion for reconsideration of this ruling. Hollis v. Lamb, No. 15 C 7297, 2016 WL 7440269, *1 (N.D. Ill.Dec. 27, 2016).
¶ 19 On October 28, 2019, petitioner filed the instant petition for leave to file a successive postconviction petition. He first asserted that he should be granted leave to file a successive petition on the grounds that he was actually innocent of the crime of first-degree murder, based on his claim of self-defense. In support of his actual-innocence claim, he attached the affidavit of Kris Sperry, M.D., a forensic pathologist. Petitioner claimed that Dr. Sperry's findings, discussed below, support his claim "that Judkins had been chasing after him and that petitioner shot through the door in fear of his life." Petitioner also relied for his actual-innocence claim on "additional Lynch material," including the fact that Judkins had been convicted of armed violence and affidavits by several additional witnesses willing to testify about Judkins' aggressive and violent character. Second, in addition to his actual-innocence claim, petitioner also raised several further claims of ineffective assistance of counsel against his trial counsel, appellate counsel, and initial postconviction counsel, concerning their respective failures to raise challenges to improper statements by the prosecutor that petitioner had been motivated by jealousy to shoot Judkins. He also contended that his appellate counsel was ineffective for failing to raise "a federal claim" on direct appeal involving the trial court's exclusion of Officer Anthony's testimony. Third, petitioner contended that his due process rights had been violated due to the prosecutor's improper and prejudicial statements that jealousy was petitioner's motive for shooting Judkins. Finally, petitioner asserted that his due process rights had been violated by the exclusion of Officer Anthony's testimony. Petitioner contended that the cause and prejudice test was satisfied for the filing of these claims in a successive petition.
¶ 20 The trial court denied petitioner's petition for leave to file the successive postconviction petition. As to the actual-innocence claim, the court found that the supporting documentation did not raise the probability that, more likely than not, no reasonable juror would have convicted petitioner in light of the new evidence. The trial court also found that the petitioner had failed to satisfy the cause and prejudice test concerning his remaining claims. This appeal then followed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, petitioner contends that the trial court erred in denying his petition for leave to file a successive postconviction petition because, in its first claim, it raised a colorable claim that he was actually innocent of the crime of first-degree murder. He also contends that the "cause and prejudice" test can be satisfied as to the three other claims raised in his successive petition.
¶ 23 The Act permits an imprisoned individual to file a cause of action asserting that, "in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1(a)(1) (West 2018). A postconviction action is a collateral attack, not an appeal seeking review of the judgment. People v. Young, 2018 IL 122598, ¶ 16. Its purpose is to permit inquiry into constitutional issues involved in the original trial that have not been, and could not have been, adjudicated previously on direct review. Id. Issues that were raised and decided on direct appeal are barred by the doctrine of res judicata, and issues that could have been raised on direct appeal, but were not, are procedurally defaulted. Id. The Act contemplates the filing of only one postconviction petition. People v. Robinson, 2020 IL 123849, ¶ 42; see also 725 ILCS 5/122-3 (West 2018) ("Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.").
¶ 24 After an individual has filed one postconviction petition, leave of court must be obtained for the filing of a successive petition. 725 ILCS 5/122-1 (f) (West 2018). Successive petitions may be allowed in two situations. One is satisfaction of the "cause and prejudice" test, which has been codified in the Act. Robinson, 2020 IL 123849, ¶ 42; see 725 ILCS 5/122-1(f) (West 2018). The second involves a showing that the petitioner is actually innocent. Robinson, 2020 IL 123849, ¶ 42. Petitioner raises both bases in this case. Under either basis, a court evaluating whether to grant leave to file a successive petition must accept as true all well-pleaded allegations in the petition and supporting affidavits that are not positively rebutted by the trial record. Id. ¶ 45. The court does not make fact or credibility determinations. Id. Appellate review of a trial court's denial of leave to file a successive petition is de novo. Id. ¶¶ 39-40.
¶ 25 A. Actual Innocence Claim
¶ 26 We first address petitioner's argument that his successive postconviction petition raised a colorable claim of actual innocence and that therefore the trial court erred in denying him leave to file it. A trial court properly denies leave to file a successive petition "where it is clear from a review of the petition and supporting documentation that, as a matter of law, the petition cannot set forth a colorable claim of actual innocence." Id. ¶ 44. By contrast, "leave of court should be granted where the petitioner's supporting documentation raises the probability that it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence." Id. (citing People v. Sanders, 2016 IL 118123, ¶ 24 (citing People v. Edwards, 2012 IL 111711, ¶ 24)). Also relevant to the court's consideration are the following legal standards that must ultimately be satisfied by evidence submitted in support of a claim of actual innocence:
"To establish a claim of actual innocence, the supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would probably change the result on retrial. [Citations.] Newly discovered evidence is evidence that was discovered after trial and that the petitioner could not have discovered earlier through the exercise of due diligence. [Citation.] Evidence is material if it is relevant and probative of the petitioner's innocence. [Citation.] Noncumulative evidence adds to the information that the fact finder heard at trial. [Citations.] Lastly, the conclusive character element refers to evidence that, when considered along with the trial evidence, would probably lead to a different result. [Citations.] The conclusive character of the new evidence is the most important element of an actual innocence claim. [Citation.]
Ultimately, the question is whether the evidence supporting the postconviction petition places the trial evidence in a different light and undermines the court's confidence in the judgment of guilt. [Citation.] The new evidence need not be entirely dispositive to be likely to alter the result on retrial. [Citations.] Probability, rather than certainty, is the key in considering whether the fact finder would reach a different result after considering the prior evidence along with the new evidence. [Citation.]" Robinson, 2020 IL 123849, ¶¶ 47-48.
¶ 27 Petitioner argues that a colorable claim of actual innocence is established through the affidavit of Dr. Kris Sperry, a forensic pathologist, in conjunction with additional Lynch material that was unknown to petitioner at the time of his trial. He argues that this evidence supports his claim that he acted in self-defense in the shooting of Judkins and thus would be acquitted of first-degree murder. Evidence that would support a petitioner's complete acquittal on self-defense grounds may serve as the basis of a claim of actual innocence. People v. Woods, 2020 IL App (1st) 163031, ¶ 41. The elements of self-defense are: (1) that unlawful force was threatened against a person; (2) that the person threatened was not the aggressor; (3) that the danger of harm was imminent; (4) that the use of force was necessary; (5) that the person threatened actually and subjectively believed a danger existed that required the use of force applied; and (6) the beliefs of the person threatened were objectively reasonable. People v. Lee, 213 Ill.2d 218, 225 (2004).
¶ 28 The affidavit of Dr. Sperry attached to petitioner's successive petition indicates that he reviewed the forensic scene diagram, the Illinois State Police crime scene report, several Markham Police Department reports, the South Suburban Major Crime reports, the transcript of petitioner's videotaped statement, the Cook County Medical Examiner's Office's autopsy and investigative reports, photographs of the incident scene, and photographs of Judkins' autopsy. Based on his review of these materials, Dr. Sperry expressed four conclusions:
" 1. The first gunshot fired was the missile that struck and went through Judkins' right lower leg, with a downward trajectory. This gunshot wound is well below either of the two bullet perforations within the door, which indicates that the door was open at the time this shot was fired. This correlates with Hollis' account, that he fired one initial shot at Judkins when he saw Judkins sitting in the bedroom, recognized him, and became in fear for his life.
2. The gunshot wound of the leg did not strike bone, and would thus have not been incapacitating or particularly painful immediately, and would not have interfered with Judkins' ability to move about the room, get up from a sitting position, or any other movement.
3. The next two of the three gunshots occurred when the bedroom door was closed, with Hollis firing from the other side, and with Judkins immediately adjacent to the inner
door surface. Of these, one struck Judkins in the left chest, causing injuries that were lethal, but not immediately or instantaneously incapacitating.
The blood spatters on the inner door surface, at the level of the bullet holes, most probably arose from Judkins coughing up blood from his lungs. One of the two bullets fired through the door did not strike Judkins.
4. The height of the two bullet holes in the door allows the conclusion that neither of these missiles were the bullet that struck and perforated Judkins' right lower leg."
Petitioner asserts that these conclusions by Dr. Sperry support the claim that Judkins "would have had to be standing very close to the door" to cough blood from his lungs onto it, which in turn "supports petitioner's claim that Judkins had been chasing after him and that petitioner shot through the door in fear of his life."
¶ 29 After reviewing Dr. Sperry's affidavit, we do not believe it can fairly be characterized as "newly discovered" evidence. It appears that all of the investigation reports, photographs, and other materials upon which Dr. Sperry's conclusions are based are items that existed at the time of petitioner's trial and would have been available for use then. More significantly, however, we do not find Dr. Sperry's conclusions to be material, i.e., probative of petitioner's innocence. Petitioner asserts that Dr. Sperry's affidavit supports the conclusion that the reason Judkins was near the door was because he was chasing after petitioner. However, Dr. Sperry did not reach or express any such conclusion himself, and we find nothing in his report from which that inference can fairly be drawn. It is undisputed from the trial evidence that petitioner shot three times and that two of those shots were through the closed bedroom door. Chanell Moore testified that she saw the bedroom door close quickly from the inside, while petitioner testified that he closed the door from the outside. If the door closed from the inside, this would support the inference that Judkins, who was the only person in the bedroom, was near the door in order to close it. We do not see how Dr. Sperry's conclusions make it any more likely that the reason Judkins was near the door was because he was chasing petitioner, as opposed to merely closing the door to keep petitioner out. His conclusions are certainly not of a conclusive character on the question of whether petitioner acted in self-defense. Nothing about Dr. Sperry's conclusions lead us to believe that, if they were expressed at retrial, they would probably lead to acquittal based on self-defense, nor do they place the trial evidence in a different light or undermine the court's confidence in the judgment of guilt.
¶ 30 In conjunction with Dr. Sperry's affidavit, petitioner also relies for his actual-innocence claim on additional Lynch material that was not presented at trial or in his original postconviction petition. The first is the fact that the prosecutor apparently misstated that Judkins was merely charged with armed violence instead of stating that he was convicted of armed violence. Second, petitioner attached to his successive petition an affidavit by Charles Hill, which stated that Hill had known Judkins since high school. Hill stated that on the night Judkins died, Hill was called to Chantelle Moore's house to pick up her children because Chantelle feared that the Four Corner Hustlers were going to burn her house. Hill stated that it was well known around Markham that Judkins was a high-ranking gang chief and always carried a firearm. Hill stated that he knew Judkins to be a violent man who had no problem shooting people and that petitioner "had every reason to fear for his life" on the night he shot Judkins. Third, petitioner attached the affidavit of Moirshe Sibley, in which Sibley stated that he was a friend of Judkins. Sibley stated that he had been with Judkins earlier on the day of his death, and Judkins said to him that he had left a .380 handgun at the house of the girl he had been dating in Markham. Sibley stated that Judkins was a high-ranking gang member who ruled through intimidation, and he was a known killer, robber, and drug dealer.
¶ 31 Assuming for argument's sake that this additional Lynch material is newly discovered and material, we nevertheless find that it is largely cumulative of petitioner's own testimony concerning Judkins' violent character. In his trial testimony and videotaped statement, petitioner stated that he had witnessed Judkins brandish a weapon in front of a crowd of people, that he knew that Judkins had shot at people before, including police officers, and that he would stick people up. It is also cumulative of petitioner's testimony that he knew Judkins could access the gun in Chantelle's closet and that petitioner was in fact scared of Judkins when he saw him in the bedroom.
¶ 32 Moreover, while this additional Lynch evidence supports the notion that Judkins had an aggressive and violent character, it is far from conclusive evidence that petitioner was actually acting in self-defense when he shot Judkins during the event in question. This court recently considered whether a colorable claim of actual innocence based on self-defense was presented by an affidavit of an individual stating that he had supplied a murder victim with a handgun and claiming that the victim had gone to kill the defendant that night, but where the affiant was not an eyewitness to the shooting and thus could not assert that the victim had ever displayed or threatened to use the gun. People v. Horton, 2021 IL App (1st) 180551, ¶ 52. The court held that this affidavit evidence was insufficient to show the essential elements of self-defense, and thus the petitioner had not met the standard of" 'rais[ing] the probability that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'" Id. (quoting Robinson, 2020 IL 123849, ¶ 50). Similarly, here, neither Hill nor Sibley was present or witnessed the event. Therefore, neither affiant could testify about whether Judkins actually threatened imminent and unlawful force against petitioner and that petitioner was not the aggressor, such that petitioner was justified in shooting Judkins in self-defense. Their affidavits simply fall far short of showing the necessary elements of self-defense. As in Horton, their affidavit testimony does not raise the probability that it is more likely than not that no reasonable juror would have convicted petitioner in light of the new evidence.
¶ 33 In conclusion, we hold that the proposed successive petition and its supporting documentation fails to set forth a colorable claim of actual innocence. For this reason, we affirm the trial court's denial of leave to file a successive postconviction petition raising this claim.
¶ 34 B. Cause and Prejudice Test
¶ 35 We next address petitioner's argument that the "cause and prejudice" test is satisfied for the remaining three claims raised in his successive postconviction petition. Under that test, leave of court to file a successive postconviction petition may be granted where a petitioner demonstrates "cause for his or her failure to bring the claim in his or her initial post-conviction proceedings" and that "prejudice results from that failure." 725 ILCS 5/122-1(f) (West 2018). Cause is shown "by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings." Id. § 122-1(f)(1). Prejudice is shown "by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." Id. § 122-1(f)(2). Both cause and prejudice must be shown. People v. Guerrero, 2012 IL 112020, ¶ 15. Leave to file should be granted where the successive petition makes a prima facie showing of both cause and prejudice. People v. Bailey, 2017 IL 121450, ¶ 24.
¶ 36 The three claims petitioner seeks to raise in his successive petition are interrelated. One claim is a two-part claim involving ineffective assistance of counsel, and the second and third involve due process violations. The two parts of the ineffective assistance claim essentially involve the failure of his prior attorneys to raise the due process claims.
¶ 37 First, petitioner argues that his trial counsel, appellate counsel on direct appeal, and postconviction counsel were all ineffective for failing to assert objections or raise issues concerning improper statements and argument made by the prosecutor that jealousy about Chantelle's relationship with Judkins was petitioner's motive for shooting Judkins. Neither petitioner's successive petition nor his appellate brief includes a specific quote or citation that he claims to be objectionable, but he asserts that the prosecutor stated that petitioner "was jealous that Ms. Moore was in a relationship with Matthew Judkins-essentially that Mr. Hollis' alleged jealousy was the cause of the intent to murder Judkins." Petitioner asserts that no evidence was presented at trial to support an argument concerning jealousy as a motive, such as evidence that petitioner knew Chantelle was seeing Judkins romantically or that Judkins would be at the house that night. He argues that his trial counsel was ineffective for failing to object to these statements at trial or to raise them in a posttrial motion, that his appellate counsel was ineffective for failing to raise on direct appeal either the impropriety of these statements or trial counsel's ineffectiveness in failing to object to them, and that postconviction counsel in his prior action provided ineffective or unreasonable assistance in failing to include these claims in his initial petition. In his related due-process claim, he argues that the prosecutor's statements themselves were so improper and prejudicial that they violated his constitutional right to due process.
¶ 38 Second, petitioner claims that his appellate counsel on direct appeal provided ineffective assistance by failing to raise "as a federal claim" the trial court's error in excluding the testimony of Officer Anthony. The federal district court, in ruling on petitioner's writ of habeas corpus, found that petitioner had raised a "cognizable" habeas claim by showing "a sufficient connection between his right to due process and the trial court's alleged error" in excluding Officer Anthony's testimony by articulating how it prevented him from adequately pursuing his theory of self- defense. Hollis, 2016 WL 6217089, *3. However, the district court found that his habeas claim was procedurally defaulted because, in the state courts, he had raised only "ordinary questions of state law" and had not presented a claim that his federal constitutional rights had been violated. Id. at *3-4; see also Hollis, 2016 WL 7440269, *1. Petitioner asserts that his appellate counsel was ineffective for failing to raise a federal constitutional claim in state court. In his related due-process claim, asserts that his federal constitutional rights were in fact violated when the trial court denied him the opportunity to call Officer Anthony as a witness.
¶ 39 Petitioner asserts that "cause" exists for the failure to bring these claims in his original postconviction proceedings because he relied upon his privately-retained postconviction counsel to formulate all of the claims included in his original petition, and that attorney's unreasonable failure to include these claims constitutes cause to raise them in a successive postconviction petition. He also argues that, as to the aspect of his claim involving the failure to raise a federal constitutional argument concerning the exclusion of Officer Anthony's testimony, he could not have raised this claim in his earlier postconviction action because it had not yet resulted in a procedural default of his petition for writ of habeas corpus.
¶ 40 We are doubtful that petitioner makes a prima facie showing of "cause" for the failure to include these claims in his original petition simply by stating that he relied on his privately-retained postconviction counsel to formulate his claims and that attorney did not include them in the petition. See People v. Ramey, 393 Ill.App.3d 661, 667-69 (2009). A challenge to the performance of initial postconviction counsel will generally not serve as a basis for allowing a successive petition. People v. Szabo, 186 Ill.2d 19, 26 (1998). Also, petitioner has already raised various arguments before this court as to why his postconviction counsel failed to provide him with a reasonable level of assistance, including by drafting the claims included in his original petition, and this court has rejected those claims. Hollis, 2014 IL App (1st) 122168-U, ¶¶ 18-27. Thus, petitioner's arguments as to "cause" would seem to be barred by principles of res judicata because they are claims he could have included in his earlier appeal but did not. People v. English, 403 Ill.App.3d 121, 131-32 (2010). Nevertheless, we acknowledge that this court has held that deficient performance by postconviction counsel may constitute "cause" for the failure to present a meritorious claim to the court. People v. Warren, 2016 IL App (1st) 090884-C, ¶ 131 (citing People v. Nicholas, 2013 IL App (1st) 103202, ¶¶ 43-46). Such an argument has been accepted where it was shown not only that postconviction counsel's failure to raise the issue complained of was objectively unreasonable, but also that the issue was sufficiently meritorious that the failure to raise it prejudiced the petitioner. Nicholas, 2013 IL App (1st) 103202, ¶¶ 45-46.
It is well-established that postconviction petitioners represented by attorneys are entitled only to a "reasonable" level of attorney assistance, and this is a standard that is "significantly lower" than the familiar Strickland standard for evaluating claims involving the deprivation of the constitutional right to effective assistance of counsel applicable at trial or on direct appeal. People v. Custer, 2019 IL 123339, ¶ 30; see Strickland v. Washington, 466 U.S. 668 (1984).
¶ 41 Here, petitioner has failed to make a showing that the issues of the prosecutor's statements or that the exclusion of Officer Anthony's testimony violated his due process rights were sufficiently meritorious that the failure to raise them constituted deficient performance by his postconviction counsel. As stated above, petitioner does not even identify a specific statement by the prosecutor that he asserts should have been objected to or challenged in earlier proceedings. Instead, he asserts that the prosecutor stated "essentially" that jealousy about Chantelle's relationship with Judkins was his motive for shooting Judkins. This failure to identify a specific objectionable statement could itself be determinative on this question. However, we have reviewed the State's opening statement and closing arguments in this case, and we find no statements by the prosecutor pertaining to jealousy or motive that were not fairly supported by the evidence.
¶ 42 The evidence at trial supported the notion that as of February 2005, the relationship between petitioner and Chantelle was difficult and that petitioner was aware then that Chantelle would "mess around a little bit with a couple more guys." Petitioner and Chantelle had made arrangements to spend Valentine's Day together, but another man called the house late that night. Petitioner asked that man to "please stay away from my family because I'm trying to keep my family together." That phone call resulted in a fight between petitioner and Chantelle that ended their relationship. The testimony was disputed as to whether petitioner was actually living in the house with Chantelle and their children as of that time, but it was petitioner's testimony that it was only after the Valentine's Day fight that Chantelle had kicked him out and taken away his keys. Thus, only three days later, petitioner went to the house at around 11 p.m. and discovered Chantelle taking a shower while Judkins was alone in the adjacent bedroom. In petitioner's video statement, he referred to Judkins sitting in "my black chair" across from "my bed." He testified that he asked Judkins what he was doing in "my house, around my kids." He testified that Judkins answered, 'Shorty, you know who I am. You know how I get down.'" It was immediately after this that petitioner shot Judkins. We find that, whatever specific statement by the prosecutor that petitioner believes was improper, the trial evidence fairly and reasonably supports the inference that petitioner shot Judkins out of jealousy that he was the man Chantelle was romantically spending time with after she and petitioner ended their relationship. See People v. Jackson, 2020 IL 124112, ¶ 82 (prosecutor has wide latitude in closing argument and may comment on the evidence and on any fair and reasonable inference that the evidence may yield).
¶ 43 Furthermore, our review of the record indicates that the prosecutor never used the word "motive" during either opening statements or closing argument. The prosecutor's only use of the word "jealous" or "jealousy" occurred during rebuttal closing, when the prosecutor argued, "They want to make it sound like [petitioner] is not the least bit jealous. It's for your Honor to decide. It sounds like a scorned lover." This statement concerning jealousy was made in response to petitioner's counsel's argument in closing that "it's not a jealousy issue" because petitioner was aware that Chantelle would cheat on him and he had never before tried to fight or kill the men she cheated with. The prosecutor's statements were proper as being provoked or invited by the argument of defense counsel. People v. Glasper, 234 Ill.2d 173, 204 (2009).
¶ 44 For these reasons, we conclude that no meritorious issue existed concerning improper statements by the prosecutor about motive or jealousy, which postconviction counsel was deficient for failing to include as part of the original postconviction petition. This includes any argument that trial counsel was ineffective for failing to object to a statement by the prosecutor, or that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness or the argument that a statement by the prosecutor denied petitioner's right to due process. As no meritorious issue existed, petitioner was not prejudiced by postconviction counsel's failure to raise it and for that reason has not shown "cause" for the filing of a successive postconviction petition. Nicholas, 2013 IL App (1st) 103202, ¶ 45. Likewise, petitioner has not shown "prejudice," which requires demonstrating that the underlying claim not raised in the initial postconviction petition "so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1 (f)(2) (West 2018). As our review of the record shows no statement by the prosecutor not fairly supported by the evidence, clearly this standard of showing prejudice is not satisfied.
¶ 45 We reach the same conclusion concerning the argument that a claim should have been raised that petitioner's federal constitutional rights were violated when the trial court ruled that Officer Anthony's testimony was inadmissible as Lynch evidence. As discussed on direct appeal, the testimony by Officer Anthony that petitioner sought to admit was that, during a prior police raid of a hotel room, Judkins had hid under a bed and had to be dragged out, and a gun was also found under the bed. Hollis, No. 1-09-1777, slip order at 9. There was no evidence that he reached for it or had it in his hand when he was pulled from under the bed. Id. He was charged with armed violence but not convicted. Id. This court held that the trial court had not abused its discretion in denying admission of this evidence, concluding that it was "indefinite and not reliably probative of Judkins' alleged violent tendencies." Id. No federal claim was advanced on appeal, although petitioner's trial counsel had made the argument in petitioner's posttrial motion that he had been denied due process by the inability to put on Officer Anthony's testimony. The trial court had denied that posttrial motion.
¶ 46 In neither his successive petition nor his appellate brief does petitioner cite to pertinent legal authority or present a legal argument explaining how petitioner sustained a violation of any federal constitutional rights because of the trial court's exclusion of Officer Anthony's testimony. Other than citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), for general principles concerning a criminal defendant's due process right to defend himself by confronting and cross-examining witnesses, the only authority petitioner cites is the federal district court's statement that he had raised a "cognizable habeas claim" by articulating his theory of self-defense, describing how the excluded evidence supported his theory, and arguing that the state trial court ruling prevented him from adequately pursing his self-defense theory. Hollis, 2016 WL 6217089, *3. Petitioner's mere citing of this statement is wholly insufficient to demonstrate to this court that he had a meritorious federal constitutional claim, for which his appellate counsel was ineffective by failing to raise it on direct appeal, and for which his postconviction counsel was deficient by failing to include in his original postconviction petition. Thus, petitioner has not shown that he has suffered prejudice by the failure of his postconviction counsel to raise a meritorious argument and has therefore failed to show "cause" for the filing of a successive postconviction petition. Nicholas, 2013 IL App (1st) 103202, ¶ 45. While he asserts that he suffered prejudice from the procedural defaulting of his habeas claim due to his appellate counsel's failure to raise this argument in state court, he cannot establish that his postconviction counsel was deficient by pointing only to the loss of his habeas petition. To raise the deficiency of postconviction counsel and thereby show "cause," he must show that the claim not pursued had substantive merit. Id. Petitioner has failed to do that here. Moreover, the procedural defaulting of his habeas claim is not something that "so infected the trial that the resulting conviction or sentence violated due process," thereby satisfying the Act's definition of "prejudice." (Emphasis added). 725 ILCS 5/122-1(f)(2) (West 2018). Ultimately, petitioner has failed to demonstrate that the failure to raise a federal constitutional claim arising from the trial court's exclusion of Officer Anthony's testimony "so infected the trial that the resulting conviction or sentence violated due process." Id. He has therefore failed to make a prima facie showing of cause or prejudice that would justify the granting of his petition for leave to file a successive postconviction petition.
¶ 47 III. CONCLUSION
¶ 48 For the above reasons, the judgment of the trial court denying petitioner's petition for leave to file a successive postconviction petition is affirmed.
¶ 49 Affirmed.