People v. Hunter , 2024 IL App (1st) 220595-U ( 2024 )

2024 IL App (1st) 220595-USECOND DIVISION
March 12, 2024
No. 1-22-0595
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. 88 CR 13009
)
THEASTER HUNTER, ) Honorable
) Kenneth J. Wadas,
Petitioner-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court.
Presiding Justice Howse and Justice McBride concurred in the judgment.
ORDER
¶1 Held: Second-stage dismissal of postconviction petition affirmed. Recantation affidavit
from State’s witness insufficient to make substantial showing of actual innocence.
Appointed counsel did not provide unreasonable assistance in proceedings below.
¶2 Petitioner Theaster Hunter was convicted of the first-degree murders of Ezekiel Rhoten
and Sabrina Sommerville. He raises two issues on appeal from the second-stage dismissal of his
postconviction petition. First, he argues that he has made a substantial showing of his innocence,
based on a recantation affidavit from State’s witness Doris Lamb, and he requests an evidentiary
hearing on this claim. Second, and in the alternative, he requests a fresh round of second-stage
proceedings, with new counsel, on the ground that his postconviction attorney failed to provide
reasonable assistance in amending his pro se petition and submitting evidence in support of his
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claims. We find that Lamb’s affidavit is insufficient on its face, and that petitioner’s contentions
of unreasonable assistance of counsel are without merit. We affirm the dismissal of his petition.
¶3 BACKGROUND
¶4 I. Overview of murders and trial
¶5 In November 1978, petitioner and four confederates invaded Rhoten’s home, ransacked it
for money and valuables, and brutally murdered Rhoten and his female companion Sommerville.
The case went cold for years, until the new Automatic Fingerprint Identification System (AFIS)
allowed the police to match Doris Lamb and Ella Haymon to fingerprints found at the scene.
¶6 Lamb and Haymon were arrested and separately interrogated in April 1987. They both
admitted their participation and implicated three men—petitioner, Robert Tenney, and Johnny
Armstrong—in these crimes. And they both identified petitioner as the one who hatched the plan
to rob Rhoten and then murdered Rhoten and Sommerville in the course of executing that plan.
¶7 By then, Armstrong was dead. Tenney was tried and convicted separately. Lamb and
Haymon testified against petitioner while their own charges were pending. Their testimony, as
detailed below, was the only evidence implicating petitioner; his fingerprints were not found at
the scene. (Neither were Tenney’s or Armstrong’s.) Their prior statements to the police, though
largely consistent with their testimony, were introduced at trial to rebut an alleged motive to lie.
¶8 Petitioner did not testify. But he did present an alibi defense. His mother, Velma Hunter,
and two sisters, Lillie Williams and Wanda Faye Garnder, all testified that petitioner was with
them on the night of the murders. In sum, petitioner accompanied his sisters to the hospital to get
care for Williams’s ill children; returned to his mother’s house, where she was hosting a party;
went back to the hospital to pick up the others; and then spent the night at Williams’s apartment.
The alibi witnesses all remembered this particular evening, they claimed, because Williams’s
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mother-in-law was found dead in an alley the next morning.
¶9 For each murder victim, the jury was instructed on intentional, strong-probability, and
felony murder. For the intentional and strong-probability charges, the jury was instructed on both
principal liability and accountability. The State’s lead argument was that petitioner personally
killed Rhoten and Sommerville, but the State also argued that he was accountable for anything
that his confederates did to further the common plan to rob Rhoten. The felony-murder charges
were predicated on armed robbery, home invasion, and burglary.
¶ 10 The jury returned general verdicts of guilty on both murders. Petitioner was sentenced to
natural life in prison. We affirmed his convictions on direct appeal, rejecting claims of a Batson
violation and the improper use of Lamb’s and Haymon’s prior consistent statements. People v.
Hunter, No. 1-91-0866 (June 26, 1996).
¶ 11 II. Lamb’s testimony
¶ 12 The State’s case against petitioner comprised the testimony of Lamb and Haymon. Their
accounts differed on a few finer points of detail, some of which we will note along the way. But
on the essential points, their accounts were consistent. And petitioner’s actual-innocence claim is
based on Lamb’s affidavit. So we will focus on her testimony.
¶ 13 The jury heard that the murder charges against Lamb were still pending when she took
the stand. (So too for Haymon.) Lamb testified that the State agreed to “talk to [her] judge” and
recommend leniency, but otherwise “promised [her] nothing” in exchange for her testimony
against petitioner.
¶ 14 In November 1978, Lamb and Haymon were working as prostitutes and regularly using
narcotics. Lamb had known petitioner for several years, as she “went with” his brother Evanew
and, for a time, lived with Evanew in their mother’s house (where petitioner supposedly was on
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the night of the murders). Rhoten was one of Haymon’s “johns.” Haymon had been staying at
Rhoten’s house but recently moved out.
¶ 15 On the evening of the murders, Lamb and Haymon went to a neighborhood pool hall,
where they ran into petitioner, Tenney, and Armstrong. Petitioner told Lamb to go outside,
pointed a gun at her, and admonished her to stop using drugs, as if he was “playing a big brother
role.” (Petitioner had been out of prison, after serving his sentence on a previous armed robbery,
for a matter of weeks.) The five confederates got into Tenney’s car and drove to Rhoten’s house.
At the time, Lamb thought they were going to pick up Haymon’s belongings.
¶ 16 On the way there, petitioner asked Haymon if Rhoten had any money. When Haymon
said yes, petitioner announced “that he was going to stick him up.” Here was petitioner’s plan:
Lamb and Haymon would go inside, on the pretense of collecting Haymon’s things, and leave
the front door open, so that petitioner, Tenney, and Armstrong could come in a few minutes later.
¶ 17 When they arrived, Lamb and Haymon approached the house next to Rhoten’s, spoke to a
neighbor, and claimed, upon returning to the car, that Rhoten wasn’t home. Petitioner didn’t buy
it, and he promptly told Haymon “what he was going to do to her” if she “didn’t get it right.” In
her own testimony, Haymon said explicitly that petitioner threatened to kill her.
¶ 18 As expected, Rhoten let the women inside. Sommerville was with him in the front room
of the house. Within minutes, as planned, petitioner came in through the front door, armed with a
pistol, and with Tenney and Armstrong in tow. Petitioner pointed his gun at Rhoten’s head and
declared that “it was a stick-up.” Rhoten reached for a gun under a chair, but petitioner hit him in
the head with his pistol, picked up Rhoten’s gun, and gave it to Armstrong. Sommerville tried to
help Rhoten, but Armstrong hit her on the head with a vase. She fell onto the couch and appeared
to lose consciousness.
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¶ 19 Tenney stayed downstairs to watch over Sommerville. The others took Rhoten upstairs to
his bedroom, where petitioner ordered him to lie down on his bed. Petitioner demanded money,
and when Rhoten said he didn’t have any in the house, petitioner starting hitting him in the head.
Haymon, Lamb, and Armstrong ransacked the bedroom at petitioner’s behest but didn’t find any
money. Petitioner escalated the violence. He first ordered Haymon to beat Rhoten with a belt.
Her efforts proved too timid for petitioner’s taste, so he ordered Lamb to take over, which she
did. Petitioner then tied Rhoten to the bed and again demanded money, and again to no avail. So
petitioner ruthlessly butchered Rhoten with a large knife, cutting his neck and body more than 30
times, and stabbing him six times in the chest and four times in the back.
¶ 20 Rhoten cried out that petitioner couldn’t kill him, or something to that effect, to which
petitioner responded, “Motherfucker, you will die.” Petitioner put a pillow over Rhoten’s face
and shot him once in the head. Suffice it to say that Rhoten’s wounds, as described in gruesome
detail by the medical examiner, were fatal.
¶ 21 Petitioner went back downstairs and bashed Sommerville’s skull. Lamb said he used his
gun; Haymon said he used a hammer. Either way, Sommerville died of cranial cerebral injuries
caused by blunt trauma. Petitioner covered her body with a sheet and continued his search for
money and valuables. The confederates left the house with jewelry, electronics, clothing, and
other items, some of which may have been Haymon’s. On the way back to petitioner’s house,
where they all spent the night, petitioner wrapped the knife and Rhoten’s keys (and possibly a
hammer) in a sheet before tossing them out of the car.
¶ 22 III. Initial postconviction petition
¶ 23 Petitioner filed his initial pro se postconviction petition in 1995. The only claims relevant
to this appeal are his allegations of ineffective assistance of counsel. Petitioner alleged that trial
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counsel was ineffective on eight grounds, one of which was a failure to interview additional alibi
witnesses. Petitioner did not attach affidavits from these alibi witnesses to his initial petition. He
further alleged that direct-appeal counsel was ineffective for “fail[ing] to raise the specific issues
indicated above.” We will have more to say about the details of these allegations later.
¶ 24 Assistant Public Defender (APD) Gwyndollette Ward-Brown was appointed to represent
petitioner. The State moved to dismiss the petition as untimely. Counsel did not file a response,
and the circuit court granted the State’s motion. On appeal, we accepted the State’s confession of
error. In finding the petition untimely, the circuit court applied the wrong statute. We remanded
for second-stage proceedings. People v. Hunter, No. 1-98-4801 (May 19, 2000).
¶ 25 IV. Proceedings after the 2000 remand
¶ 26 Following the 2000 remand, Ward-Brown was reappointed. She soon indicated at a status
hearing that she was “seeking to file a second PC.” But she never did. More importantly, the case
slipped through the cracks. To make a long story short, the circuit court never conducted second-
stage proceedings on the initial petition—at least not until we ordered them again in 2013.
People v. Hunter, 2013 IL App (1st) 113194-U.
¶ 27 In the 13 years that it took to acknowledge and remedy this oversight, an understandably
frustrated petitioner filed an avalanche of pro se pleadings, variously styled as postconviction
petitions, amendments to his initial petition, habeas corpus petitions, and motions of all sorts.
Over the years, he raised more than 100 claims of error, repeatedly moved to have the public
defender’s office removed from his case, and made numerous futile attempts to have his petition
“advanced,” “redocketed,” or to otherwise have his claims, including those raised in his initial
petition, finally heard on the merits.
¶ 28 It will serve no relevant purpose to dwell at length on the convoluted and regrettable
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history of these proceedings. Interested readers are referred to the thorough exposition in our
2013 decision. See id. ¶¶ 37-78. To understand the limited issues before us, three points suffice.
¶ 29 First, the vast majority of claims raised in the subsequent pleadings were dismissed on
grounds of res judicata, waiver, and other such procedural bars. What’s more, the pleadings were
generally treated as successive petitions, subject to the cause-and-prejudice standard. But we
held that all of these procedural rulings—many of which had been affirmed on appeal—were
wrong, or at least premature, because the initial petition was never adjudicated on the merits. See
id. ¶¶ 120-125. Thus, in amending the petition on a second remand, counsel was free to adopt
any claims raised in the additional pro se pleadings that were dismissed on these spurious
procedural grounds, provided of course that the claims, in counsel’s judgment, had at least
arguable merit.
¶ 30 Second, in various pro se pleadings, petitioner attached the alibi affidavits that he failed
to include in his initial petition, in support of his Strickland allegation against trial counsel. All in
all, there were affidavits from 12 alibi witnesses, all dating from 1999-2000, and all identical in
substance. (It was a form affidavit with blanks for the name and signature of each affiant.) The
affidavits stated, in sum, that on the night of the murders, defendant was at his mother’s house,
where she was hosting a card game. He stayed there the entire evening, except for a trip to the
hospital. At no point did Lamb or Haymon come to the house.
¶ 31 Third, petitioner alleged a claim of actual innocence, based on an affidavit from Lamb.
Lamb’s affidavit was of the same vintage as the alibi affidavits, late 1999, though oddly it bears
two different notary stamps (from November 11 and December 16 of that year). The affidavit
was initially attached to a petition filed in 2000, in support of an allegation that Lamb testified
falsely. Petitioner later amended his claim, alleging his actual innocence, in a 2010 filing.
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¶ 32 Lamb attests that after she was arrested, she was “forced to give false statements and
testify falsely at trial due to the fact that I was coerced and afraid for my life because I was on
drugs, cocaine, heroin, tees and blues.” She goes on to say that she “was coerced into implicating
Theaster Hunter in the murders of Ezekiel Rhoten and Sabrina Sommerville in return for my life,
a lesser sentence. To my knowledge, Theaster Hunter did not kill Ezekiel Rhoten and Sabrina
Sommerville.”
¶ 33 V. Belated second-stage proceedings
¶ 34 After the 2013 remand, Ward-Brown was again reassigned to the case. Petitioner insisted
from the very beginning (and is keen to reiterate on appeal) that he wanted “all” of his claims
raised. And so he did. But counsel was not obliged to raise—and, we would add, was ethically
obliged not to raise—claims that lacked arguable merit. People v. Greer, 212 Ill. 2d 192, 205
(2004). And recall that over the years, petitioner raised more than 100 claims. So to put it mildly,
there were voluminous pleadings for Ward-Brown to review. These proceedings, in part by
petitioner’s own doing, would thus continue to be a slog for some time.
¶ 35 That said, Ward-Brown represented to the court that she did intend to file an amended
petition in due course, however long that might take. For one, she was doing yeoman’s work. As
she explained, she sought to compile all of petitioner’s (non-frivolous) claims into a single
pleading, so that the circuit court could rule on them in one fell swoop and thus bring the
proceedings to an expeditious, and long-overdue, resolution.
¶ 36 And beyond that, Ward-Brown also needed to complete her ongoing investigation, which
had two focal points. First, she was trying to locate and interview the various affiants. Second,
Lamb supposedly made a videotaped statement in which she recanted her testimony, as she did
in her affidavit, but ostensibly in more detail. Petitioner’s family was said to have access to the
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video and was supposed to bring it to court, but so far it had not turned up. Naturally, Ward-
Brown was waiting to hear what else Lamb might have to say.
¶ 37 After months of investigating in this vein, Ward-Brown filed a Rule 651(c) certificate and
stood on the initial pro se petition, without amendment. There is no dispute that the certificate
facially complied with the rule.
¶ 38 Petitioner strenuously objected and asked (as he had done many times before) to have
Ward-Brown, and the entire public defender’s office, removed from his case. He also asked to
proceed pro se, a request that was initially denied. In response to these motions, Ward-Brown
noted that she “investigate[d] for several months,” contacted witnesses, and ultimately concluded
that she would not amend the petition after all. As she summed it up, “I’m not going against his
petition as he’s written it, but I am not amending his petition. He’s correct on that.”
¶ 39 These remarks reflect a perhaps not uncommon predicament of appointed postconviction
counsel: counsel finds, for whatever reason, that one or more pro se claims must be abandoned at
the second stage; but counsel is guarded and reticent about the reasons for this determination, so
as not to argue against her own client in court. As we read Ward-Brown’s remarks on the record
here, she was trying to walk this fine line.
¶ 40 But there is more to this particular record than the proceedings in open court. Petitioner
filed a complaint against Ward-Brown with the ARDC. (It was not his first.) And in one of his
many motions to appoint a bar-association attorney, in lieu of the public defender’s office, he
attached a letter that Ward-Brown sent to the ARDC in response to his complaint. The letter is
dated about a month after the Rule 651(c) certificate was filed and directly addresses the basis
for this determination. To this end, Ward-Brown reported the results of her efforts to contact the
alibi witnesses and locate Lamb’s videotaped statement.
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¶ 41 As for the affidavits, Ward-Brown “spoke to family about their signatures on affidavits
that were attached to [petitioner’s] pro se filings and they denied any knowledge.” Ward-Brown
went on to explain that petitioner “had affidavits from family members that were infants ***
when the crime occurred.” Ward-Brown “still spoke to them and asked them if they signed them
and of course they had not.”
¶ 42 As for the Lamb video, petitioner said “that his daughter had [it],” but when Ward-Brown
spoke to her, “[s]he did not know what [counsel] was talking about.” Ward-Brown also contacted
the Center For Wrongful Convictions at Northwestern University Law School, where the video
had allegedly been sent at some point, but “they did not have any such tape.”
¶ 43 It was for these reasons that Ward-Brown wrapped up her investigation and filed a Rule
651(c) certificate. She would, if called upon, “argue all of Mr. Hunter’s contentions as if they are
true even though in my review I have not found that to be the case.” But given the results of her
investigation, she could not amend the petition.
¶ 44 The Rule 651(c) certificate ushered in yet another round of vociferous complaints from
petitioner about Ward-Brown. We will spare the reader the details. Of note, though, was a brief
hearing at which Ward-Brown appeared pursuant to a subpoena. The topic at hand was the
elusive Lamb video, which petitioner wanted, along with all the discovery in the case, so that he
could amend his petition himself and proceed pro se.
¶ 45 Petitioner claimed that a copy of the video was given to the public defender’s office, and
then made its way to the appellate court and back to the public defender. Another copy was sent
to Northwestern. Ward-Brown stated on the record that she did not have any such tape, and that
she contacted Northwestern in search of the tape, but “they did not give me a tape.” The State,
which had access to the same record as the public defender and the appellate court, denied any
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knowledge of the alleged tape. The circuit court was “satisfied that the Public Defender’s office
does not have any recantation tapes.”
¶ 46 To make yet another long and convoluted story short, the circuit court denied petitioner’s
repeated motions to appoint a bar-association attorney, but eventually granted his motion to
proceed pro se. Petitioner filed an amended petition; the State moved to dismiss it; petitioner
filed a response, largely reiterating the claims in his petition; and the court set the motion to
dismiss for argument. All the while, petitioner continued to object that he did not receive all the
discovery materials that he thought he was entitled to after electing to represent himself. But we
will say no more about that protracted discovery dispute—or the rest of the miscellaneous pro se
filings that inundated the circuit court during this (and every other) phase of the proceedings.
¶ 47 The amended petition, in sum, included all the ineffectiveness allegations from the initial
petition, along with additional ineffectiveness allegations against appellate counsel; the actual-
innocence claim, based on Lamb’s affidavit; and many other claims that are not at issue.
Petitioner included the purported alibi affidavits.
¶ 48 The State’s motion to dismiss was short on substance. It emphasized that petitioner failed
to include the alleged videotape of Lamb’s recantation, document its whereabouts, or provide a
transcript of its contents. Remarkably, the motion said nothing at all about the (in)sufficiency of
Lamb’s affidavit as evidentiary support for petitioner’s actual-innocence claim.
¶ 49 The State asserted that the alibi affiants were known at the time of trial, and that their
affidavits were cumulative of the alibi witnesses and “not dispositive of total vindication.” As for
the underlying Strickland claim, the State asserted that petitioner was objecting to trial strategy.
The remaining Strickland allegations were conclusory, unsupported, or “fail[ed] to contravene
the appellate record.” But particulars aside, the important point for our purposes here is that the
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State argued, or at least asserted, that the claims all failed on the merits.
¶ 50 Oral argument on the motion to dismiss was equally short on substance. It kicked off with
petitioner (once again) accusing the State of lying to the court about discovery matters. The State
recited its cursory motion, with no elaboration of any kind. Before petitioner could say a word in
response to the State’s points, the court, no doubt tired of his antics, cut him off and announced
its ruling: “I agree with the State 100 percent.” And that was that.
¶ 51 Petitioner’s motion to reconsider was denied. We accepted his late notice of appeal. So
here we are, reviewing an adjudication on the merits, some 24 years after we first remanded this
case for second-stage proceedings.
¶ 52 ANALYSIS
¶ 53 I. Actual innocence
¶ 54 Petitioner argues that he has made a substantial showing of his innocence, based on
Lamb’s affidavit. He argues that the circuit court thus erred in dismissing his actual-innocence
claim at the second stage, and he requests a remand for an evidentiary hearing.
¶ 55 A second-stage motion to dismiss tests the legal sufficiency of the allegations. People v.
Sanders, 2016 IL 118123, ¶ 31. “All well-pleaded factual allegations not positively rebutted by
the record” must be liberally construed in the petitioner’s favor and taken as true. Id. ¶¶ 31, 42.
The court may not engage in fact-finding, make credibility judgments, or invoke the principle
that recantations are “inherently unreliable” at this stage. Id. ¶¶ 31, 33, 42.
¶ 56 A postconviction claim may be dismissed without an evidentiary hearing only if it fails to
make a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381
(1998). We review the circuit court’s ruling de novo, making “our own independent assessment
of the allegations of the petition and supporting documentation.” Sanders, 2016 IL 118123, ¶ 31.
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And we may affirm the dismissal of a postconviction petition on any basis supported by the
record. People v. Jones, 2021 IL App (1st) 182392, ¶ 39. We will avail ourselves of this rule
here.
¶ 57 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. People v. Robinson, 2020 IL 123849, ¶ 47.
¶ 58 The Lamb affidavit reads as follows:
“On April 22, 1987, I, Dolores Lamb, was arrested and charged with two counts
of murder and home invasion, and that I was forced to give false statements and testify
falsely at trial due to the fact that I was coerced and afraid for my life because I was on
drugs, cocaine, heroin, tees and blues.
I, Dolores Lamb, was coerced into implicating Theaster Hunter in the murders of
Ezekiel Rhoten and Sabrina Sommerville in return for my life, a lesser sentence. To my
knowledge, Theaster Hunter did not kill Ezekiel Rhoten and Sabrina Sommerville.”
¶ 59 As we can affirm on any basis in the record, we focus here on the prong of
conclusiveness. The question for conclusiveness is whether, taking the affidavit as true, “it is
more likely than not that no reasonable juror would have convicted petitioner.” Id. ¶ 61.
¶ 60 Lamb’s affidavit claims “coercion” in that she feared a life sentence; she says she was
forced to give false testimony in exchange for a lesser sentence. And she states that, “[t]o [her]
knowledge,” petitioner did not commit the two murders in that house.
¶ 61 Taken literally, and in its ordinary usage, the phrase “to my knowledge” is equivalent to
the phrase, “as far as I know.” Thus, on a literal interpretation, Lamb claims that although she
testified that petitioner committed the murders, she did not, in fact, know that to be true. In this
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sense, her testimony may have been “false,” as she said, but this does not make for a conclusive
affidavit. It effectively erases Lamb’s testimony, but it offers nothing in its place; it thus leaves
Haymon’s testimony intact, since there is no new evidence to contradict it. If this is what Lamb’s
affidavit means, petitioner’s claim fails.
¶ 62 But we must liberally construe the affidavit in petitioner’s favor on a motion to dismiss.
Sanders, 2016 IL 118123, ¶ 31. And there is, in fairness, a more charitable interpretation of these
words. After all, Lamb testified that she was in the room and witnessed the murders of Rhoten
and Sommerville with her own eyes. She does not claim otherwise in her affidavit. So Lamb
would know whether petitioner committed the murders. Claiming that petitioner did not commit
the murders “to her knowledge” is an awfully odd and qualified way for Lamb to convey a fact
that she (allegedly) knows to be true; still, we should be careful not to require too much by way
of wordsmithing and eloquence from an affiant who might be less educated and without
assistance of counsel. So we will assume, lending all favorable inferences to petitioner, that
Lamb testified here that petitioner did not kill either Rhoten and Sommerville.
¶ 63 Unfortunately for petitioner, that assumption still does not get him the outcome he seeks.
No doubt, this affidavit, accepted as true for now and as we have liberally construed it, would
exonerate petitioner under a theory of principal liability for the deaths of these individuals. On a
theory of principal liability, petitioner personally killed Rhoten (by stabbing and shooting him)
and Sommerville (by bashing her skull). Lamb’s affidavit says, albeit without any further detail,
that petitioner “did not kill” either of them. No rational juror, taking this statement as true, could
convict petitioner on a theory of principal liability.
¶ 64 It is irrelevant that Haymon’s trial testimony, as the State says, “corroborated” Lamb’s
testimony. That is just another way of saying that Haymon’s testimony contradicts Lamb’s new
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recantation affidavit. So it does. But that contradiction does not make Lamb’s affidavit less than
conclusive at the second stage, for the reasons our supreme court explained in Robinson, 2020 IL
123849, ¶ 57. Nearly four years after Robinson rejected this “fundamentally illogical” argument
(id.), the State is still advancing it. It is long past time to stop.
¶ 65 In short, Lamb’s affidavit would warrant an evidentiary hearing—if principal liability
were the only theory of guilt put before the jury. But it was not. The jury was also instructed on
accountability for both murders, as well as felony-murder charges predicated on armed robbery,
home invasion, and burglary.
¶ 66 In addition to killing Rhoten and Sommerville, Lamb (and Haymon) testified that it was
petitioner’s plan to rob Rhoten in the first place. He announced that plan in the car: after asking
Haymon whether Rhoten had any money, and being told that he did, petitioner said “that he was
going to stick [Rhoten] up.” Petitioner conceived of the plan to use the women to gain entry to
Rhoten’s house. He conscripted the women, or at least Haymon, into the scheme by threatening
to kill her if she failed to cooperate. He led the charge into the house once the women gained
entry and announced that “it was a stick-up.” He subdued Rhoten, when he lunged for his gun,
by hitting him in the head, and later by ordering him around under threat of violence. He
demanded money and directed the activities of his confederates, or at least the women—who no
doubt remembered the threat he had just issued in the car. He helped ransack the house for
valuables and carry Rhoten’s belongings out of it.
¶ 67 Petitioner’s participation in the scheme to rob Rhoten, from start to finish, was more than
enough to convict him of the murders on either a theory of accountability or of felony murder—
even if he did not personally kill either of the victims during the course of the home invasion and
robbery. As detailed by Lamb (and Haymon), the murders were committed “in furtherance of [a]
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common design” to rob Rhoten, and petitioner “aid[ed] in the planning and commission” of that
offense, as necessary for accountability. 720 ILCS 5/5-2(c) (West 1976). For much the same
reasons, he participated in the commission of a “forcible felony” (more than one, in fact), and it
was “in the course of or in furtherance of” their underlying crime that a “participant cause[d] the
death of” the victims, as necessary for felony murder. 720 ILCS 5/9-1(a)(3) (West 1976).
¶ 68 Lamb’s statement that petitioner “did not kill” Rhoten or Sommerville is not conclusive
on a theory of accountability or felony murder. See People v. Edwards, 2012 IL 111711, ¶¶ 39-
41 (affidavit stating petitioner “had nothing to do with this shooting” was not conclusive, for
purposes of actual-innocence claim, where petitioner was convicted on accountability theory).
Lamb does not deny that petitioner was one of the confederates who entered Rhoten’s home to
rob him. She does not deny that petitioner conceived of the scheme and enlisted the others to
help carry it out. Nothing she says calls into question that the murders were committed in the
course of, and indeed in furtherance of, the plan to rob Rhoten.
¶ 69 Lamb does not recant anything but her testimony that it was petitioner who committed
the actus reus of the murders. Her affidavit thus fails to establish that “it is more likely than not
that no reasonable juror would have convicted petitioner” on the theories of accountability and
felony murder on which the jury was instructed. Robinson, 2020 IL 123849, ¶ 61.
¶ 70 We recognize that the jury returned general verdicts of guilty on the murders, without
specific findings of accountability or felony murder. But “[i]t is ‘well settled’ that, when an
indictment alleges multiple forms of a single murder, and a general verdict is returned finding
defendant guilty of first degree murder, ‘the net effect is that the defendant is guilty as charged in
each count.’ ” People v. Valdez, 2022 IL App (1st) 181463, ¶ 173 (quoting People v. Davis, 233
Ill. 2d 244, 263 (2009)). These alternative grounds for liability were before the jury, the evidence
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was more than sufficient to support both of them, and Lamb’s affidavit does not move the needle
at all on either one. So even liberally construed, Lamb’s affidavit falls short of conclusive
evidence of petitioner’s innocence. We affirm the dismissal of his actual-innocence claim on this
basis.
¶ 71 II. Reasonable assistance of counsel
¶ 72 Since we have denied petitioner’s request for an evidentiary hearing, we must consider
his alternative request to remand the case for another round of second-stage proceedings. In the
last round, he argues, Ward-Brown failed to provide the reasonable assistance of counsel to
which he is entitled. 725 ILCS 5/122-4 (West 2022); People v. Perkins, 229 Ill. 2d 34, 42 (2007).
¶ 73 A facially valid Rule 651(c) certificate creates a presumption of reasonable assistance,
but that presumption is rebutted if the record shows that counsel failed to comply with one or
more of the specific duties imposed by the rule. Perkins, 229 Ill. 2d at 52. Petitioner argues that
Ward-Brown failed in three such respects. We review these contentions de novo. Id. at 41.
¶ 74 First, petitioner argues that Ward-Brown failed to shape his pro se allegations into proper
legal form. In particular, the pro se petition alleged several claims of ineffective assistance of
trial counsel. Because, he says, these claims were “based entirely on the record from trial,” they
could—and should—have been raised on direct appeal. To avoid procedural default, it was
therefore necessary to allege that direct-appeal counsel was ineffective for failing to raise them.
Ward-Brown was thus obliged to add these necessary allegations. But she failed to do so.
¶ 75 Postconviction counsel does indeed have a duty to amend pro se claims as necessary to
avoid procedural default; such amendments are a routine part of shaping the claims into their
“proper legal form.” Id. at 44; People v. Kluppelberg, 327 Ill. App. 3d 939, 947 (2002). But this
rule does not help petitioner for two reasons. For one, he did allege, in his pro se petition, that
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direct-appeal counsel was ineffective for failing to assert his claims of ineffective assistance of
trial counsel. And nearly all of these claims required evidence outside the trial record, so they
could not be raised on direct appeal in the first place.
¶ 76 The pro se petition alleged that “appellate counsel *** failed to raise the specific issues
indicated above.” (For the sake of clarity and specificity, we will use the phrase “direct-appeal
counsel” to refer to the attorneys who handled petitioner’s direct appeal. We will use the phrase
“appellate counsel” to refer to all attorneys currently representing petitioner in this appeal.) Read
in context, this clearly refers to petitioner’s claims of ineffective assistance of trial counsel.
¶ 77 But this allegation, we are told, is insufficient and thus required amendment. A bit of
procedural history will put this argument in context. Apart from using the usual, generic term
“appellate counsel,” the petition also referred by name to one Dennis Foley, a private attorney
who was appointed to represent petitioner on direct appeal, after the public defender was given
leave to withdraw. Foley also withdrew before filing a brief. (We will again spare the reader the
details.) Petitioner’s direct appeal was dismissed for want of prosecution. It was reinstated—but
only after he filed the initial pro se petition. The Office of the State Appellate Defender was then
appointed and filed a brief in petitioner’s direct appeal.
¶ 78 So the argument, as we understand it, is this: The pro se allegation is limited to Foley’s
ineffectiveness and does not apply to the assistant appellate defender who actually briefed the
direct appeal. The pro se allegation went on to mention Foley by name, and it complained that
Foley not only failed to raise certain issues, but in the end failed to raise any issues at all. By
virtue of this additional detail and specificity, the facially generic allegation that “appellate
counsel *** failed to raise the specific issues indicated above” did not survive the change in
personnel from one particular appellate attorney to the next.
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¶ 79 We reject this argument, and emphatically so. Unlike an ARDC complaint, or a suit for
malpractice, an ineffective-assistance claim is not a complaint about a particular attorney. It does
not seek a remedy from, or a sanction against, any particular attorney, and so the identity of a
defendant’s attorney generally does not matter. The question is simply whether the defendant
received the competent representation that the sixth amendment guarantees at critical stages of a
criminal case. And if he did not, he is entitled to a new proceeding.
¶ 80 For purposes of an ineffective-assistance claim, the allegedly defective representation
could have been provided by this attorney or that attorney, by one attorney, by multiple attorneys
working as a trial or appellate team, or, as here, by multiple attorneys handling the relevant stage
of the proceedings in succession. These are all perfectly routine scenarios in our experience. And
whatever the case may be, generic allegations about the ineffectiveness of “trial counsel” are
routinely deemed sufficient and taken to refer collectively to whatever attorney(s) happened to
fill that role. So too for “appellate counsel.”
¶ 81 Petitioner’s allegation that “appellate counsel *** failed to raise the specific issues
indicated above” clearly alleges that his claims of ineffective assistance of trial counsel should
have been, but were not, raised in his direct appeal, and that the appellate representation he
received was, for this reason, not competent by sixth-amendment standards. That allegation is
sufficient; the additional references and detail pertaining to one specific attorney—attorney
Foley—are just surplusage. Of course the pro se allegations could have been cleaned up. But the
question is whether they suffered from a deficiency in legal form that required a routine
amendment by counsel to avoid a procedural default. They did not.
¶ 82 If the State were to argue that a claim of ineffective assistance were defaulted or
otherwise inadequate on this basis, we would not hesitate to reject the argument as frivolous. If a
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No. 1-22-0595
claim were dismissed on this basis, we would not hesitate to reverse. There has been no such
argument, and no such ruling, in this case; at no time have petitioner’s Strickland claims been
rejected on this basis. Rather, it is petitioner who advances a novel and frivolous forfeiture
argument, and then stands it on its head in the hope of securing another remand and keeping
these proceedings alive.
¶ 83 That is reason enough to reject petitioner’s argument. But for the sake of completeness,
we note that most of his claims of ineffective assistance of trial counsel—six out of eight—were
not based entirely on the trial record in the first place. They are as follows: trial counsel (1) was
conflicted, on account of simultaneously representing Lamb and Haymon; (2) failed to interview
additional alibi witnesses; (3-4) failed to obtain, and obstructed petitioner’s access to, “personal
notes” taken by police officers; (5) failed to advise petitioner that neither the defense nor the
State would call alibi witnesses; and (6) failed to conduct a complete investigation into a
“plausible lead.”
¶ 84 A moment’s reflection shows that all of these allegations require an evidentiary basis that
is, at least in part, outside the trial record: an affidavit from an alibi witness, for example; or one
from defendant himself, attesting to counsel’s failure to advise him of this or that, or explaining
what counsel did to obstruct the discovery process; or whatever the case may be. Nor is it
surprising that the record does not disclose the name(s) of Lamb’s attorney(s). (Haymon
happened to testify that her attorney was Neil Spector. Petitioner’s trial attorneys were Judith
Stewart and Patrick Moriarty. To this extent, the trial record thus refutes petitioner’s claim.)
¶ 85 A Strickland claim that is based on matters outside the trial record must be raised on
collateral review. People v. Veach, 2017 IL 120649, ¶¶ 46-48; see People v. Erikson, 161 Ill. 2d
82, 88 (1994) (claims based on what counsel should have done, but failed to do, typically depend
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No. 1-22-0595
on matters outside trial record). Thus, an allegation that direct-appeal counsel was ineffective for
failing to raise these particular Strickland claims—an allegation that the pro se petition already
included—was neither necessary to avoid procedural default nor even correct.
¶ 86 Petitioner pulls other pro se claims out of the mix and asserts, baldly and incorrectly, that
they were likewise based entirely on the trial record—for example, the State’s alleged Brady
violation. The same points apply to these claims, too, but we will not belabor them any further.
¶ 87 Of the remaining two claims of ineffective assistance of trial counsel, one alleged that
counsel “lacked acuity” in formulating questions on cross-examination. To the extent that this
claim is any better than frivolous, and we are not sure that it is, it should have been raised on
direct appeal. But petitioner alleged as much in his postconviction petition. And his final claim is
nonsense: trial counsel should have “preserve[d]” his claims of ineffective assistance of trial
counsel in a motion for new trial. For obvious reasons, there is no such requirement. So there
was nothing for direct-appeal counsel to raise here, and thus no allegation that Ward-Brown
needed to add to the pro se petition. And again, the pro se petition actually included this
(unnecessary and legally incorrect) allegation to begin with. There was no need, and thus no
duty, to amend the pro se allegations to avoid procedural default of any otherwise arguable
claim.
¶ 88 Second, petitioner argues that Ward-Brown unreasonably failed to attach the affidavits of
his additional alibi witnesses to his petition. Because he included the alibi affidavits with several
earlier pro se pleadings, they were readily available to Ward-Brown. Submitting them on his
behalf, this time around, was thus a trivial ministerial task that she had no good reason to forego.
¶ 89 Petitioner’s argument ignores Ward-Brown’s letter to the ARDC (which petitioner
himself made part of the record), written in response to one of his many complaints, in which she
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disclosed that the alibi “affidavits” turned out to be fraudulent, and thus not really affidavits at
all. The purported affiants who met with Ward-Brown disclaimed any knowledge of these
“affidavits,” denied signing them, and could not possibly serve as alibi witnesses because they
were “infants” in November 1978.
¶ 90 Ward-Brown correctly concluded that she could not submit these documents as if they
were competent evidence. She would have committed a serious ethical violation by doing so. We
should not have to make this point in print, in response to an argument by appellate counsel. And
we will give no quarter to any interpretation of Rule 651(c) that not only permits but requires an
attorney to submit evidence, in a sworn pleading, that the attorney has discovered to be a fraud or
fabrication—including, but not limited to, “affidavits” that the named “affiants” have expressly
disavowed as outright forgeries.
¶ 91 In considering Ward-Brown’s representations to the ARDC, we are not running afoul of
the principle that the allegations and supporting affidavits are taken as true for the purposes of a
second-stage motion to dismiss. (Ward-Brown herself was well aware of this principle; she cited
it in her letter.) The issue before us is not whether the underlying Strickland claim should have
survived the motion to dismiss and advanced to a hearing. The issue is whether Ward-Brown fell
short of Rule 651(c) compliance when she “failed”—or better, declined—to submit the purported
alibi affidavits on petitioner’s behalf.
¶ 92 For this purpose, we may consider Ward-Brown’s representations to the ARDC, for the
light that they shed on her decision not to submit these documents to the court. Ward-Brown’s
letter is in the record, having been placed there by petitioner himself, as an exhibit to one of his
motions. And we have no reason to believe that her representations were anything but a truthful
and reliable statement of the results of her investigation. We note that these representations were
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made by an attorney “in connection with a disciplinary matter,” so Ward-Brown would have
been subject to significant disciplinary sanctions if she “knowingly ma[d]e a false statement of
material fact.” Ill. R. Prof. Cond. 8.1(a) (eff. Jan 1, 2010).
¶ 93 We have said more than enough to dispose of petitioner’s claim. But we will add this, for
good measure: when all was said and done, the alibi “affidavits” were submitted to the circuit
court in support of the relevant Strickland claim. Petitioner attached them to his amended pro se
petition, the pleading that was ultimately the subject of the State’s motion to dismiss and the
circuit court’s second-stage ruling. The State never argued that the claim failed because it lacked
supporting affidavits; it argued, among other things, that the testimony of the purported affiants
would have been cumulative and insufficient to show prejudice. The circuit court said it agreed
with the State’s assessment. Petitioner does not challenge that ruling on appeal or contend that
this claim merits an evidentiary hearing.
¶ 94 In short, petitioner’s evidence didn’t fall by the wayside. Even if we ignore everything
that the affiants told Ward-Brown, for argument’s sake, a remand would accomplish nothing,
since there is nothing here to be remedied. New counsel would simply resubmit affidavits that
were already before the circuit court when it ruled on petitioner’s claim. We will not mandate
this pointless exercise.
¶ 95 Third, petitioner argues that Ward-Brown unreasonably failed to amend the initial pro se
petition to include his claim of actual innocence. Other “potentially meritorious” claims, too, he
says, but he makes no effort at all to identify them, much less explain why they were potentially
meritorious. (Recall that counsel has no duty to assert frivolous claims in an amended petition.
Greer, 212 Ill. 2d at 205.) So we can leave this bald assertion aside and focus on petitioner’s
claim of actual innocence.
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No. 1-22-0595
¶ 96 True, Ward-Brown did not adopt this claim. And we don’t know why. (Her remarks seem
to suggest that it was her inability to confirm the existence of Lamb’s alleged recantation video.)
But it ultimately doesn’t matter. In contrast to People v. Addison, 2023 IL 127119, ¶¶ 7, 24, 40,
for example, the amendments that counsel made, or failed to make, did not result in a claim
being dismissed, at least in part, because of a procedural default. Here, petitioner’s innocence
claim was adjudicated on the merits, and has now made its way to the appellate court for de novo
review—all without so much as an allegation of default or forfeiture from the State, much less a
ruling on these grounds from the circuit court.
¶ 97 And we have found that the claim fails on the merits, not because of a defective legal
form that counsel could have fixed by amendment (see Perkins, 229 Ill. 2d at 43-44), but rather
because petitioner’s evidentiary support for this claim—Lamb’s affidavit—is insufficient. That is
not counsel’s fault. Nor is it a basis for mandating a pointless second-stage mulligan so that new
counsel can simply present, once again, a claim whose dismissal on the merits has already been
affirmed on appeal. Put differently, there is nothing here to remedy in another round of second-
stage proceedings—except a failure that is chargeable to petitioner himself.
¶ 98 Lastly, petitioner claims that his waiver of counsel in the second-stage proceedings was
not valid, because Ward-Brown’s unreasonable assistance left him with no meaningful choice
but to waive his statutory right to counsel and go it alone. This argument is intended to forestall
an objection that petitioner waived his claims of unreasonable assistance by electing to proceed
pro se. Given the procedural snafus that have plagued this case, we have found it prudent to give
full consideration to all of petitioner’s complaints about the proceedings and about the
representation he received after our last remand, without considering this potential objection. So
we need not consider his waiver argument any further.
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No. 1-22-0595
¶ 99 CONCLUSION
¶ 100 The judgment of the circuit court is affirmed.
¶ 101 Affirmed.
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