People v. Williams , 2022 IL App (1st) 191915-U ( 2022 )

2022 IL App (1st) 191915-USECOND DIVISION
December 13, 2022
No. 1-19-1915
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County.
)
v. ) No. 12 CR 18816
)
YOQUAN WILLIAMS, ) Honorable
) Thaddeus L. Wilson,
Petitioner-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: Post-conviction counsel provided reasonable assistance at second stage where (1)
counsel filed facially valid Rule 651(c) certificate and presumption of reasonable
assistance is unrebutted; (2) counsel did not “fail” to attach DNA report that was
already attached to pro se petition; and (3) there was no “viable and readily
obvious” claim of actual innocence for counsel to allege in amended petition.
¶2 After pleading guilty to predatory criminal sexual assault of a child, petitioner Yoquan
Williams filed a post-conviction petition alleging various claims of ineffective assistance of plea
counsel. The circuit court dismissed the petition at the second stage of proceedings. On appeal,
petitioner argues that appointed post-conviction counsel—“counsel,” for short—failed to provide
the “reasonable assistance” guaranteed by statute. In particular, he claims that counsel failed to
examine a relevant part of the record, failed to obtain a DNA report from the Illinois State Police
No. 1-19-1915
(ISP) and attach it to the petition, and failed to amend the petition to add a “viable, and readily
obvious,” claim of actual innocence. We disagree on all grounds and affirm.
¶3 BACKGROUND
¶4 Petitioner entered a negotiated plea of guilty to one count of predatory criminal sexual
assault of a child. The victim, T.W., was his daughter. With respect to this charge, the State
alleged that starting on or about February 23, 2006, and continuing through February 22, 2011,
petitioner committed repeated acts of sexual penetration, namely, “contact between [petitioner’s]
penis and [T.W.’s] vagina;” and that T.W. was under 13 years of age at the time.
¶5 The parties stipulated to the following factual basis for the plea. If called as a witness,
T.W. would testify that she was born on February 23, 1998. When she was in fourth grade, and
about 9 years old, petitioner came into her bed, removed her clothing, turned her onto her side,
and tried to put his penis into her vagina. T.W. resisted by squeezing her vagina, so that he could
not fully penetrate it. Similar incidents continued “through the ages of 11 and 12.” During this
time period, petitioner was over the age of 18, and T.W. was under the age of 13.
¶6 In exchange for the plea, the State dismissed charges of criminal sexual assault, which
alleged similar incidents after T.W.’s thirteenth birthday; and a separately charged case, in which
the State also alleged similar conduct. If convicted of the charges in both cases, petitioner faced
life in prison. Pursuant to the negotiated plea, he was sentenced to 18 years.
¶7 After his plea, petitioner filed a pro se motion to reduce his sentence, in which he argued
that T.W. was not under the age of 13 at the time of the offense. (As he would later argue in his
petition.) The trial court denied the motion, noting that because petitioner’s plea was negotiated,
with an agreed sentence, his only option was to move to withdraw the plea entirely. Petitioner
did not file that motion or take a direct appeal.
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¶8 Petitioner filed a timely post-conviction petition, in which he alleged that plea counsel
was ineffective on various grounds. Two of those allegations are relevant to the issues raised in
this appeal. First, an analysis of the vaginal swab taken from T.W. found that petitioner’s DNA
could not be excluded from the sperm fraction. Petitioner alleged that plea counsel misadvised
him about the significance of this finding. Specifically, plea counsel told him that “cannot be
excluded” is the same thing as a “match.”
¶9 Petitioner further claimed that on January 3, 2017—about 8 months after his plea—he
received a DNA report from ISP showing that there was a “DNA loci that do not match [him], or
the alleged victim.” The petition refers to this report as “Exhibit #1,” and a copy of the exhibit
immediately follows the petition in the record. (Or more precisely, one copy of the petition; by
our count, there are three copies of the petition in total. More on this later.)
¶ 10 Second, petitioner alleged that plea counsel was ineffective for failing to “seek” a lesser
charge. According to petitioner, T.W. did not testify at the preliminary hearing that any sexual
penetration occurred while she was under the age of 13. Thus, he should not have been convicted
of predatory criminal sexual assault of a child, but at most a lesser offense.
¶ 11 (Petitioner also alleged that his plea was entered under duress, after counsel misadvised
him about various other matters; and that counsel failed to show that T.W. had “a propensity to
claim multiple people either raped her, or tried to.”)
¶ 12 The circuit court docketed the petition and appointed counsel. Some 15 months later,
counsel filed a Rule 651(c) certificate stating, among other things, that it was not necessary to
amend the pro se petition. The State filed a motion to dismiss, which the circuit court granted.
On appeal, petitioner does not contest that ruling on substantive grounds. His arguments pertain
entirely to the adequacy of the representation that he received at the second stage of proceedings.
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¶ 13 ANALYSIS
¶ 14 The Post-Conviction Hearing Act affords petitioners a statutory right to counsel at the
second (and third) stage of proceedings. 725 ILCS 5/122-4 (West 2020). This statutory right
guarantees only a “reasonable level of assistance from counsel,” a decidedly lower standard than
the “effective assistance of counsel” guaranteed by the sixth amendment. People v. Custer, 2019
IL 123339, ¶ 30; see Strickland v. Washington, 466 U.S. 668 (1984).
¶ 15 Counsel’s limited duties are enumerated, and thus limited, by Illinois Supreme Court
Rule 651(c) (eff. Feb. 6, 2013), which requires counsel to (1) consult with the petitioner either by
mail or in person to ascertain his constitutional claims; (2) examine “the record of the
proceedings at the trial;” and (3) make any amendments to the pro se petition that are necessary
for an adequate presentation of the petitioner’s claims.
¶ 16 A facially adequate Rule 651(c) certificate filed by appointed counsel creates a rebuttable
presumption of reasonable assistance. Custer, 2019 IL 123339, ¶ 32. For this purpose, counsel’s
certificate must “substantially comply” with the rule. See, e.g., People v. Landa, 2020 IL App
(1st) 170851, ¶¶ 45-49. Whether a Rule 651(c) certificate was substantially compliant, and
whether counsel provided reasonable assistance, are both questions we review de novo. Id. ¶ 43.
¶ 17 I. Failure to review preliminary hearing
¶ 18 Petitioner first contends that counsel failed to provide a reasonable level of assistance
because neither the Rule 651(c) certificate nor the record as a whole establishes that counsel
reviewed the transcript of T.W.’s testimony at the preliminary hearing. This testimony was the
basis for petitioner’s pro se claim that plea counsel was ineffective for not “seeking” a lesser
charge: in petitioner’s view, T.W. never testified that any “sexual penetration” took place while
she was under the age of 13, as required by the offense of predatory criminal sexual assault of a
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child, to which petitioner pleaded guilty. See 720 ICLS 5/11-1.40 (West 2020).
¶ 19 To begin, petitioner’s pro se ineffectiveness claim rests on an evident misunderstanding
of the element of “sexual penetration.” As defined by statute, this element is satisfied by “any
contact, however slight,” between petitioner’s penis and T.W.’s vagina. Id. § 11-0.1. And T.W.
testified at the preliminary hearing that such contact began when she was 8 or 9 years old. (As
the parties later stipulated at the plea hearing.) Though the contact fell short of penetration in the
colloquial sense—T.W. “made it tight to where he can’t stick it in”—she confirmed, when asked
by the State, that petitioner’s penis did “touch” her vagina during these incidents.
¶ 20 Petitioner does not dispute any of this. Nor does he contend that counsel should have
amended this pro se ineffectiveness claim. His claim is simply that counsel failed to discharge a
duty imposed by Rule 651(c), and thus that a remand is necessary for compliance with the rule.
¶ 21 On its face, Rule 651(c) requires “a showing, which may be made by the certificate of the
petitioner’s attorney, that the attorney * * * has examined the record of the proceedings at the
trial.” (Emphasis added.) Ill. S. Ct. Rule 651(c) (eff. Feb. 6, 2013). As our supreme court has
interpreted the rule, the phrase “proceedings at the trial” functions as a term of art. It is not to be
read literally, and thus narrowly, as referring only to an actual trial. (Here, of course, there was
no trial.) Nor is it to be given the broadest interpretation, as referring to the entire record of all
proceedings held in the trial court.
¶ 22 The correct interpretation of Rule 651(c) lies between these extremes. The rule requires
counsel “to examine as much of the transcript of proceedings as is necessary to adequately
present and support those constitutional claims raised by the petitioner.” People v. Davis, 156 Ill.
2d 149, 164 (1993). In other words, the phrase “proceedings at the trial,” as it is used in the rule,
means whatever proceedings—pretrial, trial, or post-trial—that are relevant to the claims raised
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in the pro se petition.
¶ 23 Now suppose that a Rule 651(c) certificate repeats the language of the rule, verbatim:
counsel “examined the record of the proceedings at the trial.” We would be hard-pressed to say
that this certificate did not substantially comply with the rule, since it attests that counsel did
exactly what the rule says. And even if there was no trial, because the petitioner pleaded guilty
(as here), the phrase “proceedings at the trial,” as used in the certificate, would continue to
function as a term of art, as it does in the rule itself. So whether there was a trial or a guilty plea,
a certificate that hews to the language of the rule verbatim will substantially comply and will
thus warrant a presumption of reasonable assistance. See People v. Richardson, 382 Ill. App. 3d
248, 257 (2008). To hold otherwise would be to hold that literal compliance with Rule 651(c) is
insufficient, an obviously untenable position.
¶ 24 To put the point differently: when counsel says what the rule says, we presume that
counsel means what the rule means, unless the petitioner can rebut that presumption in the record
and show that counsel meant something else. Otherwise, “substantial compliance” would require
the certificate to do more than adhere to the language of the rule, which cannot be right. And it is
hard to imagine what would suffice, short of a “comprehensive recounting” of what counsel
reviewed in the record, item by item—a requirement that the case law has long rejected. People
v. Jones, 2011 IL App (1st) 092529, ¶ 24.
¶ 25 Here, for example, where petitioner claims that counsel failed to review T.W.’s
preliminary hearing testimony—had counsel merely recited the rule’s language and sworn that
he reviewed “the record of the proceedings at the trial,” petitioner would have no argument about
the Rule 651(c) certificate. We would say that “the proceedings at trial” means only the relevant
proceedings per our supreme court (Davis, 156 Ill. 2d at 164), so we presume that is what
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counsel meant, too, when he recited the language of the rule. In other words, we would presume
that counsel did review T.W.’s preliminary hearing testimony.
¶ 26 But alas, lawyers sometimes do not hew their Rule 651(c) certificates to the language of
the rule. That can lead to trouble, of course, because if, instead of just reciting the rule’s
language, the certificate lists out the specific portions of the record that counsel reviewed, the
failure to list a relevant portion of the record can lead to a finding that counsel did not review
everything she was supposed to review. See, e.g., People v. Carrizoza, 2018 IL App (3d)
160051, ¶ 18 (certificate stating that counsel reviewed “report of proceedings of the plea of
guilty and the sentencing” did not establish that counsel reviewed transcript of suppression
hearing, which was relevant to one of postconviction petition’s claims).
¶ 27 The path of least resistance, obviously, is for counsel to simply parrot the Rule 651(c)
language verbatim in the certificate; doing so is a guarantee that the presumption of reasonable
assistance will attach. The lawyer who steps out on that limb and purports to list every single
item in the record that she reviewed runs the risk of omitting something relevant and thus losing
that presumption. See id.¶ 28 The Rule 651(c) certificate before us is a hybrid of these two situations. Here, the
certificate precisely mirrored the language of the rule but then added one specific portion of the
record that counsel reviewed. The certificate here states that counsel “obtained and examined the
record of the proceedings at the trial and sentencing in this case.” (Emphasis added.) The
certificate begins with the literal language of Rule 651(c), as it should, but then adds the words
“and sentencing.”
¶ 29 And that, says petitioner, suggests that counsel did not intend “the record of the
proceedings at trial” to have the term-of-art meaning our supreme court has ascribed to it,
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namely that the phrase refers to all proceedings relevant to the postconviction petition—for if he
had meant as much, he would have had no need to add “and sentencing” to the end. This case, he
says, is more like a case where counsel listed out the various portions of the record he reviewed,
as in Carrizoza, 2018 IL App (3d) 160051, ¶ 18. And just like that case, here the certificate does
not list a relevant portion of the record—the transcript of T.W.’s preliminary hearing testimony.
Simply put, petitioner claims that the Rule 651(c) certificate here is not substantially compliant,
because it indicates that counsel failed to review the preliminary hearing transcript of T.W.’s
testimony that was highly relevant to his postconviction petition.
¶ 30 We find the certificate substantially compliant with Rule 651(c). For one, this does not
strike us as a situation, as in Carrizosa, where counsel purported to singularly list the portions of
the record reviewed. Counsel used the general term-of-art language, and we do not think Rule
651(c) is so persnickety as to disregard that language simply because counsel added one specific
item in the record. And that is particularly true when we consider the context, as we may do. See
Richardson, 382 Ill. App. 3d at 257 (court may draw reasonable inferences when construing Rule
651(c) certificate).
¶ 31 Here, it strikes us that counsel’s reason for adding the sentencing language is rather
obvious: counsel was importing language from Rule 604(d), which governs attorney review of a
pro se motion to withdraw a guilty plea. See Ill. S.Ct. R. 604(d) (eff. July 1, 2017). Though
incorrect, it would not be altogether unreasonable for counsel to consult Rule 604(d), given that,
at bottom, petitioner’s claim here is that trial counsel should not have allowed him to plead guilty
to the offenses to which he pleaded, that he should have insisted on a plea to lesser-included
offenses. We could understand why counsel might have felt the need to include additional
language from Rule 604(d), even if it was unnecessary (and incorrect) to do so.
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¶ 32 We have previously recognized that Rule 604(d) is similar to Rule 651(c), though
obviously more limited in scope. See People v. Mason, 2016 IL App (4th) 140517, ¶ 22;
Carrizoza, 2018 IL App (3d) 160051, ¶ 15. Indeed, lawyers have not infrequently filed
certificates pursuant to Rule 604(d) when they intended to file Rule 651(c) certificates, instead.
See Carrizoza, 2018 IL App (3d) 160051, ¶ 14; Mason, 2016 IL App (4th) 140517, ¶ 22; People
v. Kirkpatrick, 2012 IL App (2d) 100898, ¶ 4.
¶ 33 In relevant part, Rule 604(d) requires counsel to certify that counsel “has examined the
trial court file and both the report of proceedings of the plea of guilty and the report of
proceedings in the sentencing hearing ***.” Ill. S.Ct. R. 604(d) (eff. July 1, 2017). It seems clear
to us that counsel, out of an abundance of caution, wanted to ensure that the reference to the
“sentencing hearing” (id.) was included in the Rule 651(c) language. It was, again, both
unnecessary and incorrect, but we think it would be a bridge too far to suggest that this mistake
renders the Rule 651(c) certificate here noncompliant. We find substantial compliance, entitling
counsel to a presumption of reasonable assistance.
¶ 34 Which places the burden on petitioner to rebut that presumption. Landa, 2020 IL App
(1st) 170851, ¶ 46. To this end, he must point to evidence in the record demonstrating that
counsel failed to review the preliminary hearing. Id. But there is no such evidence; the record is
more or less silent on this point. And that is a problem for petitioner, as the burden lies with him.
¶ 35 That said, the record does show this much. At his first court appearance, counsel stated
on the record that he “had a chance to look through the court file.” This was in addition to the
pro se petition and a transcript of the plea hearing, which the judge had already ordered.
¶ 36 Now rewind a few years. At petitioner’s arraignment, the judge had noted that there was
“a transcript in the file.” The only proceeding that had, or could have, taken place before the
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arraignment (on October 23, 2012) was the preliminary hearing (on October 4). A transcript of
the preliminary hearing was prepared on October 11 and file-stamped on October 22, one day
before the arraignment.
¶ 37 So it appears that the preliminary hearing transcript made its way into the court file, as
indeed it should have. Thus, it should have been available for counsel’s review. Granted, that
was some years earlier, and things do get lost. And for all the record shows, counsel may have
just leafed through the court file, to get an overview of the case, without stopping to examine the
preliminary hearing transcript more closely. Nothing in the record decisively shows that counsel
conducted the necessary review. But the record at least points in that direction. And more to the
point, it certainly does not rebut the presumption of reasonable assistance. That presumption
stands.
¶ 38 In short, while the certificate filed here is not as clear as it could be, it does substantially
comply with Rule 651(c), warranting a presumption of reasonable assistance that petitioner
cannot rebut.
¶ 39 II. Failure to submit DNA report
¶ 40 Petitioner next claims that he did not receive reasonable assistance because counsel failed
to “obtain” the DNA report from ISP and “attach” it to the petition. This report, appellate counsel
says, would have supported petitioner’s claim of “actual innocence.”
¶ 41 (More precisely, petitioner claimed that he was induced to plead guilty by plea counsel’s
ineffectiveness, despite having a plausible defense of innocence. Petitioner also claims on appeal
that counsel should have recast this pro se ineffectiveness claim as a claim of actual innocence.
We will return to this point in the next issue.)
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¶ 42 When counsel filed the Rule 651(c) certificate, he stated on the record that he “reviewed”
the DNA report. So counsel “obtained” it. Unless he had it from the start—perhaps because it
was included with the pro se petition as an exhibit—in which case, counsel didn’t need to
“obtain” it in the first place.
¶ 43 And indeed, the record clearly shows that petitioner had already “attached” the report to
the pro se petition. The petition states that he received a copy of the report on January 3, 2017,
about a month before filing the petition. (The report was created in 2012 and, truth be told, the
record shows that it was known to the defense before the guilty plea.) The petition refers to the
report as “Exhibit #1.” There is a copy of the report in the record, immediately following a file-
stamped copy of the petition. The report is marked “Exhibit #1.” (In handwriting that looks the
same as the handwriting in the petition proper.) The report had already been submitted to the
circuit court. There was no need for counsel to “attach” it again.
¶ 44 In its written order granting the State’s motion to dismiss, the circuit court did say that
petitioner “did not attach [the DNA report] to his petition and it is not of record in this case.”
That isn’t true; the report is in the record. What does appear to be true is that the petition and its
accompanying exhibits were mishandled in the circuit court.
¶ 45 There are three copies of the petition in the record. One copy includes the DNA report
but not petitioner’s Exhibit #2. Another includes Exhibit #2 but not the DNA report. The third
does not include either exhibit. It would appear, from the dismissal order, that the judge’s copy
of the petition, like at least one other copy in the circuit court, was incomplete. But this doesn’t
show that petitioner failed to attach the DNA report. And from counsel’s perspective, there was
no way to know that the judge didn’t have a copy of the report in hand until the court issued its
written order.
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¶ 46 Petitioner does not argue on appeal that counsel should have (re)submitted the DNA
report after the court issued its dismissal order, perhaps as part of a motion to reconsider, in an
effort to ensure that the judge did not dismiss the relevant claims without first reading the report.
But in any event, we cannot fault counsel for not doing so.
¶ 47 On a motion to dismiss, the circuit court was required to take all well-pleaded allegations
as true. Landa, 2020 IL App (1st) 170851, ¶ 42. To this end, the court assumed that the report
said what it was alleged to say—and went on to find that it did not support the plausible defense
petitioner thought he had. Petitioner does not claim that the court misdescribed the DNA report.
(Though petitioner’s own allegations do exactly that, as we explain below.) So there was nothing
to be gained then by submitting a fresh copy to the judge, or by remanding now for this futile
exercise. The real question is whether the report actually supported a viable claim. And that
brings us to the third and final appellate issue.
¶ 48 III. Failure to add actual-innocence claim
¶ 49 Petitioner contends that counsel failed to amend the petition to present a “viable, and
readily obvious” claim of actual innocence. While counsel has no general duty to amend a pro se
petition, or to add new contentions that the petitioner did not include, counsel must make any
amendments that are “necessary for an adequate presentation of petitioner’s contentions.” Ill. S.
Ct. R. 651(c) (eff. Feb. 6, 2013); People v. Turner, 187 Ill. 2d 406, 412 (1999); People v.
Johnson, 154 Ill. 2d 227, 238 (1993). An amendment is not “necessary” if it “would only further
a frivolous or patently nonmeritorious claim.” People v. Greer, 212 Ill. 2d 192, 205 (2004).
¶ 50 Here, petitioner argues that it was necessary for counsel to recast the pro se claim of
ineffective assistance (discussed above) as a claim of actual innocence, in order to shape that
contention into its proper legal form. A defendant who alleges a claim of actual innocence after
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pleading guilty must present evidence that is newly discovered, material, non-cumulative, and of
such a conclusive character that it “clearly and convincingly demonstrates that a trial would
probably result in acquittal.” People v. Reed, 2020 IL 124940, ¶ 49. The newly discovered
evidence must be considered alongside all other available evidence, including the petitioner’s
own admission of guilt. Id. ¶ 46; see People v. Robinson, 2020 IL 123849, ¶ 83.
¶ 51 Taking his allegations as true, petitioner says, the DNA report demonstrates that he was
“actually innocent of predatory criminal sexual assault.” His key allegation is this: the sample
taken from T.W.’s vaginal swab contained a profile that did not match either T.W. or petitioner.
In petitioner’s words, the sample “contained a mixture of more than two persons’ DNA profiles,”
and “there was a DNA loci that do not match [petitioner], or the alleged victim.” This shows that
“another suspect was connected with [this] crime,” and that petitioner himself is innocent (as he
told plea counsel, before being induced to plead guilty by plea counsel’s alleged deficiencies.)
¶ 52 The DNA report does not support a non-frivolous claim of actual innocence. There are
various reasons for this, but two simple points will suffice.
¶ 53 First, let’s assume, as petitioner alleges, that the sample taken from T.W. contained DNA
from “more than two” people, and that the third person was neither petitioner nor T.W. None of
this shows that petitioner’s DNA was not found in the sample. So it does not contradict T.W.’s
testimony (to which the parties stipulated in the factual basis for the plea) that petitioner sexually
penetrated her, within the meaning of the statute. Rather, if true, this allegation would show that
at least one person other than petitioner did, too.
¶ 54 The report, thus construed, might have supported a reasonable doubt argument at a trial,
especially if the DNA evidence purporting to implicate petitioner was “weak,” as he argues on
appeal. But a theory of reasonable doubt falls short of a claim of actual innocence. Even when
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we take all of petitioner’s allegations as true, the DNA report does not establish his innocence.
¶ 55 Second, to the extent that petitioner misdescribes the DNA report, those allegations are
positively rebutted by the record, and we are not bound to take them as true. See Robinson, 2020
IL 123849, ¶ 60; Landa, 2020 IL App (1st) 170851, ¶ 42. Regardless of what petitioner (or
appellate counsel) alleges, the report speaks for itself. And this is what it says:
A mixture of human DNA profiles was identified in the sperm fraction of Exhibit 1A1
which was interpreted as a mixture of two people. Assuming this profile is a mixture of
[redacted] and one additional contributor, a human male DNA profile was identified from
which [petitioner] cannot be excluded. Approximately 1 in 33,000 Black, 1 in 740,000
White, or 1 in 1.0 million Hispanic unrelated individuals cannot be excluded from having
contributed to this male DNA profile.
¶ 56 The report says that the DNA sample “was interpreted as a mixture of two people,” and
not, as petitioner alleges, “more than two” people. And contrary to petitioner’s allegations, the
report does not say that any part of the DNA profile was attributed to someone other than T.W.
or petitioner. Rather, the report “[a]ssum[ed]” that the profile was “a mixture of [redacted] and
one additional contributor.”
¶ 57 The redacted name cannot be anyone other than T.W. The analyzed sample was taken
from her, so of course it was assumed that the DNA profile in the sample included her own. Any
other DNA would belong to a suspect. The only “suspect” named in the report is petitioner. And
in any event, a forensic analysis cannot ever assume that any suspect’s DNA is present in a
sample taken from a rape kit. The whole point of the analysis is to determine if that is the case.
¶ 58 The other two redactions in the report only reinforce this conclusion. The first redaction
is the name of the victim, and we know that is T.W. The second redaction is the source of one of
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the two buccal standards received by the lab—the other being petitioner’s.
¶ 59 Not to belabor the point, but the DNA report clearly assumed that T.W. was a contributor
to the DNA profile. And because the DNA profile was “a mixture of two people,” the question
was the identity of the “one additional contributor.” On that question, the DNA report concluded
that it was a male profile “from which [petitioner] cannot be excluded.”
¶ 60 In this sense, too, the report does not say or imply that petitioner was not a contributor to
the DNA profile found in T.W.’s vaginal swab. To the contrary, it says clearly that he “cannot be
excluded” as the “additional contributor.” It is frivolous to describe this finding as exonerating. It
may be true, as petitioner argues at some length, that the number of loci at which the sample
matched his own buccal standard made this relatively “weak” DNA evidence. And perhaps that
could have supported a reasonable doubt theory at a trial. But it does not contradict T.W.’s
testimony in the slightest. It does not show that petitioner is actually innocent.
¶ 61 Whether they are presented under the guise of actual innocence or ineffective assistance
of plea counsel, petitioner’s underlying allegations have no merit, for the simple reason that the
DNA report does not say anything close to what he claims it says. Counsel had no duty to amend
the pro se petition on this basis.
¶ 62 CONCLUSION
¶ 63 For these reasons, we affirm the judgment of the circuit court.
¶ 64 Affirmed.
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