People v. Smith, 2021 IL App (1st) 181728, ¶ 18.
Jean, 2024 IL App (1st) 220807, ¶ 28. If the State moves to dismiss the postconviction petition, the petition should only be dismissed "when the petitioner's allegations of fact, liberally construed and considered in light of the original trial record, fail to make a substantial showing of actual innocence." People v. Smith, 2021 IL App (1st) 181728, ¶ 18. If a petitioner makes the requisite substantial showing for a claim, then the circuit court advances the claim to third stage proceedings for an evidentiary hearing.
We review de novo a second-stage dismissal. People v. Smith, 2021 IL App (1st) 181728, ¶ 18.
Defendant appealed, and we reversed. People v. Smith, 2021 IL App (1st) 181728, ¶ 33. We explained that "[w]hen the allegations defendant makes in his postconviction petition are taken as true and the statements in McDonald's affidavit are viewed in a light most favorable to defendant, it is apparent that defendant has made a substantial showing of actual innocence such that an evidentiary hearing is warranted."
People v. Smith, 2021 IL App (1st) 181728, ¶ 18.
To establish a claim of actual innocence in a postconviction proceeding, the 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. People v. Smith, 2021 IL App (1st) 181728, ¶ 19 (citing People v. Edwards, 2012 IL 111711, ¶ 32)." 'Newly discovered evidence' that would support a claim of actual innocence is evidence that was discovered after trial and that the petitioner could not have discovered earlier through the exercise of due diligence."
At the first stage, the circuit court independently assesses the merit of the petition and may dismiss the petition if it is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2018); People v. Smith, 2021 IL App (1st) 181728, ¶ 17.
Conclusory statements without specific facts asserted in affidavits supporting a postconviction petition are not well-pleaded facts. People v. Smith, 2021 IL App (1st) 181728, ¶ 55 (McBride, J., dissenting). Likewise, Danita's bare averment lacks conclusive character since it does not foreclose that Kerrie was aware of an intent to harm Diandra without Danita's knowledge. Indeed, Kerrie's signed statements indicated that she discussed "getting rid" of Emma and Diandra with Sandra before November 23, 1991.