People v. Edwards , 2012 IL 111711 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
People v. Edwards, 2012 IL 111711
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WALTER
Court: EDWARDS, Appellant.
Docket No. 111711
Filed April 19, 2012
Rehearing denied May 29, 2012
Held Where newly discovered evidence of actual innocence was alleged in
(Note: This syllabus seeking leave to file successive postconviction petitions as to an
constitutes no part of accountability conviction for murder, leave denials were upheld where a
the opinion of the court codefendant-shooter’s affidavit did not allege that petitioner had not been
but has been prepared present, even though it claimed he took no part, and where no reason was
by the Reporter of given why alibi affiants who had refused to come forward earlier were not
Decisions for the subpoenaed—no colorable claim.
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the First District; heard in that court
Review on appeal from the Circuit Court of Cook County, the Hon. James
Michael Obbish, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal Defender, and Shawn O’Toole, Assistant Appellate Defender, of the
Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Annette
Collins, Michele Grimaldi Stein and Tasha-Marie Kelly, Assistant State’s
Attorneys, of counsel), for the People.
Karen L. Daniel, Joshua A. Tepfer and William Trevena, all of Chicago,
and Rebecca Stephens, law student, for amicus curiae Center on
Wrongful Convictions.
Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke,
and Theis concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Walter Edwards, appeals from orders of the circuit court of Cook County
denying him leave to file his third and fourth successive petitions for relief under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). The pro se petitions
alleged actual innocence based on newly discovered evidence. The two cases were
consolidated on appeal, and a divided panel of our appellate court affirmed. Nos. 1-07-0714,
1-08-1089 cons. (unpublished order under Supreme Court Rule 23). For the reasons set forth
below, we affirm the judgment of the appellate court.
¶2 I. BACKGROUND
¶3 In January 1999 the State charged petitioner and six other individuals1 with the first
degree murder of Jacqueline Bernaugh. Petitioner was tried separately by jury and was found
guilty under a theory of accountability. He was sentenced to 28 years’ imprisonment.
¶4 Petitioner admitted his involvement in the murder in a transcribed statement to police.
He was 15 years old at the time. Prior to trial, petitioner moved unsuccessfully to suppress
the statement, alleging it was not voluntary.
1
Lawrence Coleman, Eddie Coleman, Kentrell Culbreath, Sam Taylor, Willie Richards and
Octavius Sims were charged in the same indictment.
-2-
¶5 In the statement, which was published at trial, petitioner acknowledged he was a member
of a street gang, the Renegade Vice Lords (Renegades), which was at war with a rival gang,
the Mafia Insane Vice Lords (Mafias). Petitioner stated two of the Mafias killed his friend
and fellow gang member, Elijah McLachlan. According to petitioner’s statement, on
November 29, 1998, following McLachlan’s funeral, petitioner and other gang members
went to the home of fellow gang member Lawrence Coleman and discussed a plan to avenge
McLachlan by killing some of the Mafias. Petitioner stated he and a group of fellow
Renegades went to a building on South Exchange Avenue in Chicago where one of the
Mafias lived. Petitioner and other Renegades, including Eddie Coleman, who was armed
with a shotgun, positioned themselves around the building and waited for one of the Mafias
to emerge. As petitioner waited across the street, his companions, who were closer to the
building, began shooting at a woman who was standing at a window inside the building.
Petitioner stated he fired his gun in the air so his companions would know he fired his
weapon.
¶6 An autopsy indicated Bernaugh died of a shotgun wound to the face.
¶7 Petitioner’s statement was the only evidence at trial placing him at the scene of the crime.
None of the State’s eyewitnesses identified him as being there, and the State introduced no
physical evidence linking him to the crime. Petitioner did not testify, and the defense rested
without presenting evidence.
¶8 Petitioner’s conviction and sentence were affirmed on direct appeal. People v. Edwards,
No. 1-00-2332 (2001) (unpublished order under Supreme Court Rule 23). This court denied
leave to appeal. People v. Edwards, 197 Ill. 2d 569 (2001) (table).
¶9 In July 2002 petitioner filed an initial pro se postconviction petition alleging his
constitutional rights were violated when he was questioned outside the presence of his legal
guardian or a youth officer. Petitioner also alleged the circuit court violated his right to due
process when it denied his motion to suppress his statement. The circuit court dismissed the
petition as frivolous and without merit, and the appellate court affirmed (People v. Edwards,
No. 1-02-2563 (2003) (unpublished order under Supreme Court Rule 23)). This court denied
leave to appeal. People v. Edwards, 209 Ill. 2d 588 (2004) (table). In January 2006 petitioner
sought leave to file a successive pro se postconviction petition alleging, inter alia, actual
innocence. Petitioner claimed he had newly discovered evidence, including an affidavit from
codefendant Sam Taylor, showing petitioner was actually innocent of the murder. In that
affidavit, Taylor named people who were present with him at Lawrence Coleman’s home on
November 29, 1998, after McLachlan’s funeral. Petitioner’s name was not mentioned. The
circuit court denied leave to file the successive petition, finding petitioner failed to meet the
cause-and-prejudice test set forth in section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West
2006)). The court also found the issues raised in the petition were frivolous and patently
without merit. On appeal, the appellate court affirmed (People v. Edwards, No. 1-06-1986
(2008) (unpublished order under Supreme Court Rule 23)). This court denied leave to appeal.
People v. Edwards, 229 Ill. 2d 638 (2008) (table).
¶ 10 In September 2006 petitioner sought leave to file his third postconviction petition. In this
petition, as in the second, petitioner alleged actual innocence based on newly discovered
-3-
evidence. Attached to the petition was an affidavit from fellow Renegade Eddie Coleman,
who stated that he, Willie Richards and “Little Mikey” were the shooters, and that petitioner,
Lawrence Coleman, Kentrell Culbreath and Octavius Sims “had nothing to do with this
shooting.” Eddie explained he did not come forward earlier because “all I cared about was
my freedom.”2 Also attached to the petition was an affidavit from Lawrence Coleman, who
stated he received Eddie Coleman’s affidavit on January 3, 2006, and gave a copy to
petitioner on May 15, 2006, “because this new evidence I recieved [sic] pertained to
[petitioner] also.”
¶ 11 In a written order dated November 6, 2006, the circuit court denied leave to file the third
petition, finding petitioner failed to satisfy the cause-and-prejudice test, and the issue raised
in the petition was frivolous and patently without merit.3 Petitioner filed a motion to
reconsider, which the court also denied. Petitioner appealed, and the appeal was docketed
under case No. 1-07-0714.
¶ 12 In January 2008 petitioner sought leave to file his fourth postconviction petition. Here
again, as in petitioner’s second and third petitions, he alleged actual innocence based on
newly discovered evidence. Attached to the new petition were alibi affidavits from
Dominique and Kathleen Coleman which, according to petitioner, established that he was
with them in their residence “before, during, and after the shooting took place.” In their
affidavits, Dominique and Kathleen stated that petitioner went to their residence on
November 29, 1998, after McLachlan’s funeral, and he remained there until the next
morning, November 30, when they all left and attended McLachlan’s burial. In explaining
why she did not come forward earlier, Dominique stated in her affidavit that she was a minor
at the time of the incident, and her mother, Kathleen, forbade her from speaking out.
Kathleen stated in her affidavit that she herself was afraid to get involved in the case, “being
as serious as it was.” Kathleen added that several of her family members were “already
supposedly involved with this crime.” She stated that although defense counsel contacted her
numerous times to try to convince her to testify on petitioner’s behalf, she refused to do so
and refused to allow her daughter to do so. Kathleen also was uncooperative with
investigators sent by petitioner since his incarceration.
¶ 13 Petitioner also argued in his petition that he was denied due process of law because his
“illegally obtained” statement was admitted into evidence.
¶ 14 In a written order dated March 19, 2008, the circuit court denied leave to file the fourth
postconviction petition, finding petitioner failed to satisfy the cause-and-prejudice test.
Petitioner filed a notice of appeal, and the appeal was docketed under case No. 1-08-1089.
¶ 15 On appeal, case Nos. 1-07-0714 (the third postconviction petition) and 1-08-1089 (the
2
As noted, Eddie Coleman was originally charged as a codefendant in this case. According
to the State, the case against him was dismissed on June 7, 2000.
3
The court also observed that the date on Eddie Coleman’s affidavit had 2005 “crossed out”
and 2006 “written in over it,” and noted that petitioner filed his second postconviction petition on
January 10, 2006.
-4-
fourth petition) were consolidated. The appellate court majority affirmed the circuit court’s
denial of leave to file the petitions, holding that petitioner failed to state a valid claim of
actual innocence. Nos. 1-07-0714, 1-08-1089 cons. (unpublished order under Supreme Court
Rule 23).
¶ 16 The majority noted People v. Ortiz, 235 Ill. 2d 319 (2009), which was decided while the
instant case was pending before the appellate court. Ortiz held that “where a defendant sets
forth a claim of actual innocence in a successive postconviction petition, the defendant is
excused from showing cause and prejudice.” Id. at 330. The appellate court majority
concluded supplemental briefing on this issue was unnecessary. The majority’s holding here
was based, not on the cause-and-prejudice test, but rather on petitioner’s failure “to state a
claim of actual innocence.” Nos. 1-07-0714, 1-08-1089 cons. (unpublished order under
Supreme Court Rule 23). In the majority’s view, “[t]he facts in this case would not warrant
relief under Ortiz.” Id.
¶ 17 The dissenting justice concluded the appellate court majority applied the wrong standard.
The dissent would have applied the test for determining whether an initial postconviction
petition may be summarily dismissed at the first stage of postconviction proceedings. Under
that test, a petition may be dismissed as frivolous or patently without merit only if the
petition has no arguable basis either in law or in fact. People v. Hodges, 234 Ill. 2d 1, 11-12
(2009). In the dissent’s view, the petitions at issue here met this “low threshold.” No. 1-07-
0714 (unpublished order under Supreme Court Rule 23) (Gordon, J., dissenting).
¶ 18 Petitioner filed a petition for leave to appeal, which we allowed pursuant to Supreme
Court Rules 315 (eff. Feb. 26, 2010) and 612 (eff. Sept. 1, 2006). In addition, we allowed the
Center on Wrongful Convictions to file a brief amicus curiae pursuant to Supreme Court
Rule 345 (eff. Sept. 20, 2010).
¶ 19 II. ANALYSIS
¶ 20 The parties dispute the standard a petitioner claiming actual innocence must meet in
seeking leave of court to initiate a successive postconviction proceeding under the Act.
¶ 21 We begin by noting that the Act provides a statutory remedy to criminal defendants who
claim that substantial violations of their constitutional rights occurred at trial. People v.
Eddmonds, 143 Ill. 2d 501, 510 (1991). The Act is not a substitute for an appeal, but rather,
is a collateral attack on a final judgment. People v. Ruiz, 132 Ill. 2d 1, 9 (1989). Thus, where
a petitioner has previously taken an appeal from a judgment of conviction, the ensuing
judgment of the reviewing court will bar, under the doctrine of res judicata, postconviction
review of all issues actually decided by the reviewing court, and any other claims that could
have been presented to the reviewing court will be deemed waived. People v. Neal, 142 Ill.
2d 140, 146 (1990); 725 ILCS 5/122-3 (West 2006) (specifically stating that “[a]ny claim
*** not raised in the original or an amended petition is waived”).
¶ 22 In light of the above, both the language of the Act and our own case law make clear that
only one postconviction proceeding is contemplated under the Act. Nevertheless, this court
has, in its case law, provided two bases upon which the bar against successive proceedings
will be relaxed. See People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002) (citing People v.
-5-
Flores, 153 Ill. 2d 264, 278-79 (1992)); see also People v. Szabo, 186 Ill. 2d 19, 42-44
(1998) (Freeman, C.J., specially concurring, joined by Heiple, J.) (tracing history of
relaxation of bar against successive postconviction proceedings). The first basis for relaxing
the bar is when a petitioner can establish “cause and prejudice” for the failure to raise the
claim earlier. Pitsonbarger, 205 Ill. 2d at 459. The General Assembly codified the cause-and-
prejudice exception in section 122-1(f) of the Act, several years after our decision in
Pitsonbarger.
¶ 23 The second basis by which the bar to successive postconviction proceedings may be
relaxed is what is known as the “fundamental miscarriage of justice” exception. See
Pitsonbarger, 205 Ill. 2d at 459. This exception is not unique to Illinois. The United States
Supreme Court has stated that the exception serves “as an additional safeguard against
compelling an innocent man to suffer an unconstitutional loss of liberty [citation],
guaranteeing that the ends of justice will be served in full.” (Internal quotation marks
omitted.) Szabo, 186 Ill. 2d at 43 (Freeman, C.J., specially concurring, joined by Heiple, J.)
(quoting McCleskey v. Zant, 499 U.S. 467, 495 (1991)). In order to demonstrate a
miscarriage of justice to excuse the application of the procedural bar, a petitioner must show
actual innocence. See Pitsonbarger, 205 Ill. 2d at 459; Sawyer v. Whitley, 505 U.S. 333
(1992). Although this exception was not codified by the legislature, this court has reaffirmed
its use in relaxing the bar against successive postconviction proceedings. See People v. Ortiz,
235 Ill. 2d 319 (2009) (acknowledging that leave of court to file a successive postconviction
petition may be based on actual innocence alone).
¶ 24 As this court noted in People v. Tidwell, a petitioner seeking to institute a successive
postconviction proceeding must first obtain “leave of court.” People v. Tidwell, 236 Ill. 2d
150, 157 (2010). We also made clear in Tidwell that it is the petitioner’s burden to obtain
“leave” before further proceedings on his claims can follow. Id. To do so, we specifically
acknowledged that “it is incumbent upon [a petitioner], by whatever means, to prompt the
circuit court to consider whether ‘leave’ should be granted, and obtain a ruling on that
question.” Id. Defendant not only has the burden to obtain leave of court, but also “must
submit enough in the way of documentation to allow a circuit court to make that
determination.” Id. at 161. This is so under either exception, cause and prejudice or actual
innocence. With respect to those seeking to relax the bar against successive postconviction
petitions on the basis of actual innocence, we hold today that leave of court should be denied
only where it is clear, from a review of the successive petition and the documentation
provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable
claim of actual innocence. See People v. Smith, 341 Ill. App. 3d 530, 536 (2003) (citing
Sawyer, 505 U.S. at 339 (actual innocence defined in context of federal habeas petitions as
colorable claim of factual innocence)); Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)
(habeas petitioner must initially come forward with new reliable evidence to support
“colorable claim of actual innocence” under fundamental-miscarriage-of-justice exception).
Stated differently, leave of court should be granted when the petitioner’s supporting
documentation raises the probability that “it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence” (Schlup v. Delo, 513 U.S. 298,
327 (1995) (characterizing threshold standard as one of probability)).
-6-
¶ 25 Notwithstanding the above, petitioner argues we should evaluate his successive petitions
under the same first-stage standard as an initial postconviction petition. He agrees with the
dissenting justice below that when reviewing a successive petition, as when reviewing an
initial petition, our task is simply to determine whether the petition is frivolous or patently
without merit. See Nos. 1-07-0714, 1-08-1089 cons. (unpublished order under Supreme
Court Rule 23) (Gordon, J., dissenting) (citing People v. Williams, 392 Ill. App. 3d 359, 365
(2009)). We disagree.
¶ 26 First, applying the frivolous or patently without merit standard here would render the
“leave of court” language in section 122-1(f) superfluous. We have repeatedly held that
statutes should be read as a whole and construed so that no part is rendered meaningless or
superfluous. E.g., People v. Jones, 214 Ill. 2d 187, 193 (2005).
¶ 27 Second, there is simply no basis in the statute for applying a first-stage analysis to a
successive petition. Section 122-1(f), which governs successive petitions, describes the
“leave of court” requirement but makes no mention of the frivolous or patently without merit
standard, which is set forth in a separate provision, section 122-2.1(a)(2). The legislature was
clearly aware of the frivolous or patently without merit language in 2004, when section 122-
1(f) was added, and could have incorporated it into that section if it chose to do so. Where
language is included in one section of a statute but omitted in another section of the same
statute, we presume the legislature acted intentionally and purposely in the inclusion or
exclusion. Chicago Teachers Union, Local No. 1 v. Board of Education of the City of
Chicago, 2012 IL 112566, ¶ 24. See also 2A Norman J. Singer & J.D. Shambie Singer,
Sutherland on Statutory Construction § 46:5, at 228-29 (7th ed. 2007) (“where the legislature
has employed a term in one place and excluded it in another, it should not be implied where
excluded”).
¶ 28 Also relevant to this issue is the legislative history of section 122-1(f). In discussing the
first sentence of subsection (f), which provides that “[o]nly one petition may be filed by a
petitioner under this Article without leave of the court,” Senator Dillard stated: “This would
make Illinois law consistent with federal law by letting a prisoner have one post-conviction
petition without court permission while requiring that he or she formally seek leave of the
court to file additional petitions.” (Emphasis added.) 93d Ill. Gen. Assem., Senate
Proceedings, April 4, 2003, at 138 (statements of Senator Dillard). These statements clearly
support our conclusion that the “colorable claim of actual innocence” standard should apply,
as opposed to the first-stage standard urged by petitioner. As noted, federal courts employ
this same “colorable claim” formulation in the context of the fundamental-miscarriage-of-
justice exception. See Gomez, 350 F.3d at 679.
¶ 29 Another reason for rejecting the first-stage standard is that treating successive petitions
the same as initial petitions, as urged by petitioner and the dissent below, ignores the well-
settled rule that successive postconviction actions are disfavored by Illinois courts. See
People v. Wright, 189 Ill. 2d 1, 38 (1999) (Freeman, C.J., specially concurring, joined by
McMorrow, J.).
¶ 30 Having established what a petitioner must set forth when seeking leave of court to file
a successive petition on the basis of actual innocence, we turn to the standard of review,
-7-
which was briefed only minimally here. Generally, decisions granting or denying “leave of
court” are reviewed for an abuse of discretion. See, e.g., People ex rel. Graf v. Village of
Lake Bluff, 206 Ill. 2d 541, 547 (2003). However, as we have just noted, a trial court should
deny leave only in cases where, as a matter of law, no colorable claim of actual innocence
has been asserted. This suggests a de novo review. We need not decide this question in this
case, however. Petitioner’s claim of actual innocence here fails under either standard of
review. His supporting documentation is too insufficient to justify further proceedings. We
therefore leave this issue for another day and a more appropriate case.
¶ 31 In this case, petitioner claimed actual innocence when seeking leave of court to file his
third and fourth successive postconviction petitions. As noted, the circuit court incorrectly
relied on the cause-and-prejudice test in denying leave to file the successive petitions. See
Ortiz, 235 Ill. 2d at 330. Thus, the question is whether petitioner set forth a colorable claim
of actual innocence. In other words, did petitioner’s request for leave of court and his
supporting documentation raise the probability that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence? Because we
conclude that petitioner did not set forth such a claim, we do not believe a remand is
necessary. Like the appellate court below, we believe petitioner’s request for leave to file a
successive petition based on actual innocence can be resolved as a matter of law and that
further proceedings are unnecessary.
¶ 32 The elements of a claim of actual innocence are that the evidence in support of the claim
must be “newly discovered”; material and not merely cumulative; and of such conclusive
character that it would probably change the result on retrial. Ortiz, 235 Ill. 2d at 333; People
v. Morgan, 212 Ill. 2d 148, 154 (2004); People v. Washington, 171 Ill. 2d 475, 489 (1996).
We deem it appropriate to note here that the United States Supreme Court has emphasized
that such claims must be supported “with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was
not presented at trial.” Schlup, 513 U.S. at 324. The Court added: “Because such evidence
is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely
successful.” Id.
¶ 33 As stated earlier, a petitioner’s request for leave of court and his supporting
documentation must set forth a colorable claim of actual innocence, i.e., they must raise the
probability that it is more likely than not that no reasonable juror would have convicted him
in the light of the new evidence.
¶ 34 As the appellate court below concluded, the alibi affidavits of Dominique and Kathleen
Coleman do not qualify as newly discovered evidence. Citing People v. Harris, 206 Ill. 2d
293, 301 (2002), which defined newly discovered evidence as “evidence that was unavailable
at trial and could not have been discovered sooner through due diligence,” the appellate court
asserted that Dominique’s and Kathleen’s testimony could have been discovered sooner
through the exercise of due diligence. The court reasoned: “It is illogical for defendant to
claim that this evidence of his alibi is new, where he obviously knew of his alibi at the time
of trial, on appeal and during initial postconviction proceedings.” Nos. 1-07-0714, 1-08-1089
cons. (unpublished order under Supreme Court Rule 23). The court continued: “The fact that
defendant was allegedly with the Coleman family in their house on the night of the offense
-8-
could have been discovered sooner with the exercise of due diligence where defendant was
the source of this information and was armed with this knowledge at the time of trial.” Id.
¶ 35 Petitioner does not dispute that he knew of the alibi at the time of trial. Petitioner’s
argument is that this evidence was unavailable to him. In support, he points to Kathleen’s and
Dominique’s assertions in their affidavits that attempts by petitioner’s attorney to persuade
them to testify were rejected.
¶ 36 After carefully reviewing the record, we find no indication that petitioner’s attorney
attempted to subpoena these witnesses to testify. Nor do we find any explanation as to why
subpoenas were not issued. The logical assumption is that the witnesses’ testimony would
not have been helpful.
¶ 37 We do not conclude that such evidence could never be considered unavailable where, as
here, the witnesses rejected the petitioner’s attempts to persuade them to testify. In this
instance, however, where there was no attempt to subpoena Dominique and Kathleen, and
no explanation as to why subpoenas were not issued, the efforts expended were insufficient
to satisfy the due diligence requirement. The alibi evidence could have been discovered
sooner through the exercise of due diligence, and the evidence therefore was not newly
discovered. See Bentley v. United States, 701 F.2d 897, 899 (11th Cir. 1983) (per curiam)
(rejecting argument that alibi evidence could not have been produced at trial, even with due
diligence; “[t]he facts concerning an alibi are peculiarly within the knowledge of a defendant
himself”).
¶ 38 This leaves only the affidavit of Eddie Coleman to support petitioner’s claim. While
petitioner obviously knew of Eddie at the time of trial, the evidence in Eddie’s affidavit
apparently was nevertheless “unavailable at trial” (Harris, 206 Ill. 2d at 301), and the
evidence thus qualified as newly discovered. Eddie was a codefendant, with a fifth
amendment right to avoid self-incrimination. No amount of diligence could have forced him
to violate that right if he did not choose to do so. See People v. Molstad, 101 Ill. 2d 128, 135
(1984).
¶ 39 However, even though Eddie’s affidavit contains newly discovered evidence, the result
is the same. In the affidavit’s specific references to petitioner, Eddie averred petitioner “had
nothing to do with this shooting,” he (Eddie) “never saw or spoke with [petitioner] after the
funeral,” petitioner was neither “a part [of nor] took part in this crime,” and he (Eddie) did
not “share this information [about the shooting] with [petitioner] after the crime.” Though
Eddie averred petitioner “had nothing to do with this shooting” and was neither “a part [of
nor] took part in this crime,” Eddie critically does not assert that petitioner was not present
when the shooting took place. As the appellate court correctly noted, Eddie’s averment in his
affidavit that he was the principal offender “does little to exonerate defendant who *** was
convicted of the murder under the theory of accountability.”
¶ 40 Thus, even though Eddie Coleman’s affidavit could be considered new evidence, it does
not raise the probability that, in the light of the new evidence, it is more likely than not that
no reasonable juror would have convicted petitioner. This evidence is not “of such
conclusive character that it would probably change the result on retrial” (Morgan, 212 Ill. 2d
at 154). See Washington, 171 Ill. 2d at 489 (describing “conclusive character” requirement
-9-
as the “most important[ ]” element of an actual-innocence claim). See also Coleman v.
Hardy, 628 F.3d 314, 319 (7th Cir. 2010) (habeas petitioner asserting innocence as gateway
to defaulted claim must show that, in light of new evidence, it is more likely than not that no
reasonable juror would find him guilty beyond a reasonable doubt); Morales v. Johnson, 659
F.3d 588, 605 (7th Cir. 2011) (noting that this “no reasonable juror” standard “requires a
stronger showing than that required to establish Strickland prejudice”).
¶ 41 The appellate court below held that further postconviction proceedings were unnecessary
because petitioner failed to assert a colorable claim of actual innocence as a matter of law.
We agree. Petitioner failed, as a matter of law, to raise the probability that it is more likely
than not that no reasonable juror would have convicted him in the light of the new evidence.
The appellate court correctly affirmed the circuit court’s denial of leave to file petitioner’s
third and fourth successive petitions.
¶ 42 III. CONCLUSION
¶ 43 For the reasons set forth above, we affirm the judgment of the appellate court, which
affirmed the orders of the circuit court denying petitioner leave to file his third and fourth
successive postconviction petitions.
¶ 44 Affirmed.
-10-