eCases

. If the State does not file a motion to dismiss or the court
denies such a motion, the petition advances to the third stage, wherein the court holds a
hearing at which the defendant may present evidence in support of his or her petition.
Pendleton,

223 Ill. 2d at 472-73

. In this case, the State did file a motion
to dismiss, and the court granted that motion.
¶ 15        With the second-stage of the postconviction proceedings, the trial court is concerned
merely with determining whether the petition’s allegations sufficiently demonstrate a
constitutional infirmity that would necessitate relief under the Postconviction Act. People
v. Coleman,

183 Ill. 2d 366

, 380,

701 N.E.2d 1063

, 1071 (1998). At this stage, “the
defendant bears the burden of making a substantial showing of a constitutional violation” and
“all well-pleaded facts that are not positively rebutted by the trial record are to be taken as
true.” Pendleton,

223 Ill. 2d at 473

. The court reviews the petition’s
factual sufficiency as well as its legal sufficiency in light of the trial court record and
applicable law. People v. Alberts,

383 Ill. App. 3d 374

, 377,

890 N.E.2d 1208

, 1212 (2008).
However, our supreme court has emphasized that, when a petitioner’s claims are based upon
matters outside the record, the Postconviction Act does not intend such claims be adjudicated
on the pleadings. People v. Simms,

192 Ill. 2d 348

, 360,

736 N.E.2d 1092

, 1105 (2000). At
a dismissal hearing, the court is prohibited from engaging in any fact finding. Coleman,

183 Ill. 2d at 380-81

701 N.E.2d at 1071

. Thus, the dismissal of a postconviction petition at the
second stage is warranted only when the allegations in the petition, liberally construed in
light of the trial record, fail to make a substantial showing of a constitutional violation.
Coleman,

183 Ill. 2d at 382

701 N.E.2d at 1072

. We review de novo the trial court’s
dismissal of a postconviction petition at the second stage. Pendleton,

223 Ill. 2d at 473

.
¶ 16        Defendant contends the trial court applied the wrong standard in reviewing his amended
postconviction petition as it found his evidence was not credible and asserts the court’s
dismissal should be reversed on that reason alone. However, with a first-stage dismissal, the
Second District has found a trial court’s utilization of the wrong standard is not a basis for
reversing the dismissal. People v. Dominguez,

366 Ill. App. 3d 468

, 473,

851 N.E.2d 894

,
900 (2006); but cf. People v. Newbolds,

364 Ill. App. 3d 672

, 679,

847 N.E.2d 614

, 621
(2006) (finding the court’s use of the improper standard at the first stage was a basis for
reversing its dismissal of the postconviction petition). The Dominguez court explained that,
since a reviewing court may affirm on any proper ground, a procedurally proper summary
dismissal based on an improper ground may still be affirmed. Dominguez, 366 Ill. App. 3d
at 473,

851 N.E.2d at 900

. Thus, the reviewing court should apply the proper standard and
“affirm if, in accordance with that standard, the summary dismissal is justified.” Dominguez,
366 Ill. App. 3d at 473,

851 N.E.2d at 900

.
¶ 17        We find the rationale of Dominguez well reasoned and also applicable to second-stage
dismissals since a reviewing court may affirm a trial court’s dismissal at the second stage on
any grounds substantiated by the record, regardless of the trial court’s reasoning. See People
v. Demitro,

406 Ill. App. 3d 954

, 956,

942 N.E.2d 20

, 22 (2010). Our de novo review
-5-
utilizing the proper standard addresses the trial court’s use of an improper one if it did so.
Thus, we conclude the use of an improper standard in analyzing a postconviction petition at
the second stage does not itself serve as a basis for reversal, and we need not address whether
the trial court used the wrong standard.
¶ 18                                     2. Actual Innocence
¶ 19        Defendant next argues the trial court improperly dismissed his actual-innocence claim.
The State disagrees.
¶ 20        A freestanding claim of actual innocence is cognizable under the Postconviction Act
because a wrongful conviction of an innocent person violates due process under the Illinois
Constitution. People v. Barnslater,

373 Ill. App. 3d 512

, 519,

869 N.E.2d 293

, 299 (2007).
Such a claim must be “based on newly discovered, material, and noncumulative evidence
that the defendant is innocent of the crime for which he has been tried, convicted, and
sentenced.” People v. Harris,

206 Ill. 2d 293

, 301,

794 N.E.2d 181

, 187 (2002). Moreover,
an actual-innocence claim only entitles a defendant to relief when “the evidence is of such
a conclusive character that it would probably change the result of retrial.” Harris,

206 Ill. 2d at 301

794 N.E.2d at 188

.
¶ 21        Since the trial court found almost all of defendant’s evidence supporting an actual-
innocence claim was not newly discovered evidence, we begin our analysis there. With an
actual-innocence claim, newly discovered evidence is defined as “evidence that was
unavailable at trial and could not have been discovered sooner through due diligence.”
Harris,

206 Ill. 2d at 301

794 N.E.2d at 187

. The defendant bears the burden of showing no
lack of due diligence on his or her part. See Barnslater, 373 Ill. App. 3d at 525,

. Moreover, if the evidence was available at a prior posttrial proceeding, the evidence
is also not newly discovered evidence. See People v. English,

403 Ill. App. 3d 121

, 133,

933 N.E.2d 366

, 379 (2010) (finding the evidence was not newly discovered evidence where the
evidence was available at trial and when the initial postconviction petition was filed).
Evidence is also not newly discovered when the evidence “presents facts already known to
a defendant at or prior to trial, though the source of these facts may have been unknown,
unavailable or uncooperative.” People v. Collier,

387 Ill. App. 3d 630

, 637,

900 N.E.2d 396

,
403 (2008).
¶ 22        Despite the requirement a defendant must show due diligence in the discovery of the
supporting evidence, defendant’s amended postconviction petition does not assert any due
diligence in discovering the evidence supporting defendant’s actual-innocence claim.
Defendant simply suggests the evidence is new because it was not made part of the record
during his trial. On its face, most of defendant’s supporting evidence would have been
available at defendant’s trial or direct appeal with the exercise of due diligence. The only
supporting material clearly after defendant’s trial and direct appeal are the facts and rulings
in People v. Beaman,

229 Ill. 2d 56

890 N.E.2d 500

 (2008), and People v. Drew, No. 4-08-
0011 (Dec. 4, 2008) (unpublished order under Illinois Supreme Court Rule 23).
¶ 23        In his appellate brief, defendant suggests recantations are an exception to the newly
discovered evidence requirement. See Barnslater, 373 Ill. App. 3d at 524,

.
-6-
A defendant may present a witness’s recantation as newly discovered evidence, even though
the defendant knew the witness had perjured himself or herself. Barnslater, 373 Ill. App. 3d
at 524,

. However, the exception will not apply “if the defendant had
evidence available at the time of trial to demonstrate that the witness was lying.” Barnslater,
373 Ill. App. 3d at 524,

. Thus, the defendant has the burden of showing
other evidence of the lying could not have been discovered before trial with due diligence.
See Barnslater, 373 Ill. App. 3d at 525,

. While defendant cites Barnslater,
he does not address the fact the recantation exception does not apply to all recantations.
Defendant also does not address the due-diligence requirement with regard to the
recantations in either his petition or his brief. Due to defendant’s failure to plead and argue
in his brief due diligence, defendant has failed to meet his burden of showing the recantations
were newly discovered evidence.
¶ 24 Besides the recantations, the only other evidence for which defendant attempts to meet
the newly discovered evidence requirement on appeal is Jeffery Pelo’s and Carlos Luna’s
affidavits. Thus, we specifically address those two affidavits.
¶ 25 Defendant contends Pelo’s affidavit supports his actual-innocence claim because it
demonstrates Danny Martinez could not have seen defendant exiting the gas station because,
given the time line described by Pelo and Martinez, Pelo would have also seen defendant exit
the gas station. Defendant argues it is “new” evidence because it is not clear from any of
Pelo’s prior statements what his testimony would be and the State told him to keep his
opinion out of the trial testimony. However, in a March 3, 1999, interview of Pelo, Pelo
makes no mention of anyone exiting the gas station after his arrival at the scene.
Additionally, in his affidavit, Pelo, a trial witness, stated he expected defense counsel to
bring out the fact he did not see anyone exit the gas station. Clearly, Pelo’s testimony about
not seeing anyone leave the gas station was available at trial. Accordingly, it is not newly
discovered evidence.
¶ 26 Defendant contends Luna’s affidavit shows Luna was unsure he identified the right
person, unsure he could identify the face of the person he saw, and identified defendant
because (1) he “best fit the description” and (2) “[a]s a 14 year old I thought the police had
caught the right person.” Defendant argues it is new evidence because it provides new
information about the strength of Luna’s identification. However, the information in the
affidavit is similar to Luna’s trial testimony and thus is not newly discovered evidence. At
trial, Luna, who was then 24 years old, testified that, at the lineup, he picked number six
(defendant) because he imagined every one of the men in the lineup “doing it” and “he was
the one that fit the image” of the man he saw on the night of the murder. Luna told the
officer, “I think he is the person.” Thus, Luna’s statement defendant “best fit the description”
and Luna’s doubt in making the identification is not different from his trial testimony.
Moreover, at trial, Luna described the man’s race, height, and clothing but was unsure as to
his hair color. In his testimony, Luna never described any distinct facial features of the man
he saw. Accordingly, Luna’s statement he was unsure he could identify the face of the person
is similar to his trial testimony. As to Luna’s statement regarding his thoughts as a 14-year-
old boy about the police catching the right person, that statement is contradicted by the
record. In the June 1991 lineup, Luna identified number six (defendant) as the man he saw
-7-
leaving the gas station. The record contains no evidence the police informed Luna number
six had been arrested for Little’s murder or was the prime suspect for the murder. In fact,
defendant was not charged with the murder until eight years after the lineup, and the other
eyewitnesses did not identify defendant in the lineup. Further, Luna did not identify
defendant in court when he testified as a 24-year-old man. Additionally, defense counsel
questioned Luna about his age and his distance from the man he saw the night of the murder.
Thus, Luna’s affidavit is also not newly discovered evidence.
¶ 27 Accordingly, since due diligence was not addressed at all in defendant’s amended
postconviction petition and in his brief, the only supporting materials meeting the newly
discovered evidence requirement are Beaman and Drew because those rulings were clearly
not available until after defendant’s trial and direct appeal. However, defendant does not cite
those cases in the argument section of his brief, and the cases standing alone are not material
to defendant’s case. Thus, we find the trial court properly dismissed defendant’s actual-
innocence claim.
¶ 28 3. Ineffective Assistance of Counsel
¶ 29 On appeal, defendant asserts 12 reasons why he was denied effective assistance of trial
counsel. The State asserted in its motion to dismiss this issue was barred by the doctrine of
res judicata, and the trial court agreed.
¶ 30 Under the doctrine of res judicata, any issues the court considered on direct appeal are
barred from being addressed in a postconviction proceeding. People v. Ligon,

239 Ill. 2d 94

,
103,

940 N.E.2d 1067

, 1073 (2010). With ineffective-assistance-of-counsel claims, our
supreme court has also applied res judicata when the issue of ineffectiveness of trial counsel
has already been addressed on direct appeal and the postconviction petition added “somewhat
different allegations of incompetence.” People v. Albanese,

125 Ill. 2d 100

, 105,

531 N.E.2d 17

, 19 (1988); see also People v. Kokoraleis,

159 Ill. 2d 325

, 328,

637 N.E.2d 1015

, 1017
(1994) (citing the aforementioned language from Albanese). Moreover, issues that the court
could have considered on direct appeal are deemed waived. Ligon, 239 Ill. 2d at 103, 940
N.E.2d at 1073. Our supreme court has found the following three exceptions to the doctrines
of res judicata and waiver: “ ‘where fundamental fairness so requires; where the alleged
waiver stems from the incompetence of appellate counsel; or where facts relating to the claim
do not appear on the face of the original appellate record.’ ” People v. Pitsonbarger,

205 Ill. 2d 444

, 458,

793 N.E.2d 609

, 620 (2002) (quoting People v. Mahaffey,

194 Ill. 2d 154

, 171,

742 N.E.2d 251

, 261 (2000)). Additionally, to the extent defendant suggests res judicata is
an issue that needs to be addressed at the third stage of the proceedings, our supreme court
has held trial courts may summarily dismiss postconviction petitions at the first stage of the
proceedings based on both res judicata and waiver because, inter alia, they are inherently
legal determinations. People v. Blair,

215 Ill. 2d 427

, 442, 445,

831 N.E.2d 604

, 614-15
(2005).
¶ 31       In his appellate brief, defendant argues the “bulk” of his ineffective-assistance-of-counsel
claims were not raised on direct appeal, and thus res judicata does not apply to them. He
further argues claims based on evidence outside the trial record are not barred by res
-8-
judicata, and if he waived any claims, he was denied ineffective assistance of appellate
counsel. However, he does not explain which of the 12 claims of ineffective assistance of
counsel survive res judicata. Further, defendant asserts that, while he raised issues regarding
witnesses in his posttrial motions, he did not receive a hearing under People v. Krankel,

102 Ill. 2d 181

464 N.E.2d 1045

(1984), and had no opportunity to put on the record evidence
from these witnesses that supported his ineffective-assistance-of-counsel claim. That
assertion is completely contradicted by the record and our order on direct appeal. See Snow,
slip order at 7-11. On April 5, 2001, the trial court held a hearing on defendant’s request to
have his trial attorneys discharged before sentencing. As we stated in our prior order, “the
trial court thoroughly questioned defendant, his two trial attorneys, and the prosecutor as to
each allegation, including almost all of the 20 plus alleged impeachment witnesses.” Snow,
slip order at 9-10. Defendant’s attorneys explained their trial strategy as to impeachment
witnesses, and Picl’s alcohol consumption was addressed. Defendant was allowed to state
the testimony his alleged impeachment witnesses would have given. Those issues were again
raised on direct appeal and addressed by this court. See Snow, slip order at 7-11.
¶ 32 Due to the fact ineffective assistance of counsel has already been addressed by this court
and a record on the issue established, res judicata is not an issue that can be summarily
addressed as defendant attempts to do in his brief. Defendant fails to provide any real
analysis on this issue, and it is not the job of this court to bear defendant’s burden of
argument. Accordingly, we find defendant failed to prove his claims were not barred by res
judicata due to his lack of argument, and thus the trial court properly dismissed this issue as
well.
¶ 33 4. Brady Claim
¶ 34 In his brief, defendant asserts Brady violations occurred with respect to the following
trial witnesses: Pelo, Jody Winkler, Kevin Schaal, Bruce Roland, and Steven Scheel.
¶ 35 In Brady,

373 U.S. at 87

, the United States Supreme Court held an accused’s due-process
rights are violated when the prosecution suppresses evidence that is both favorable to the
accused and material either to guilt or punishment. Thus, for defendant to obtain a new trial
under Brady, he must show (1) the State suppressed evidence and that evidence was (2)
favorable to him and (3) material to his guilt or punishment. A Brady claim may arise in the
following three circumstances: (1) where previously undisclosed evidence reveals the
prosecution introduced trial testimony it knew or should have known was perjured, (2) where
the State fails to comply with a defense request for disclosure of some specific exculpatory
evidence, and (3) where the State fails to voluntarily give the defense exculpatory evidence
never requested or requested only in a general manner. Kyles v. Whitley,

514 U.S. 419

, 433
(1995). In addition to exculpatory evidence, impeachment evidence falls within the Brady
rule. United States v. Bagley,

473 U.S. 667

, 676 (1985).
¶ 36        In the first circumstance, the conviction must be set aside if any reasonable likelihood
exists that the false testimony could have affected the jury’s judgment. Kyles,

514 U.S. at

433
n.7. In the last two circumstances, favorable evidence is material “ ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
-9-
would have been different.’ ” Kyles,

514 U.S. at 433-34

 (quoting Bagley,

473 U.S. at 682

(opinion of Blackmun, J., joined by O’Connor, J.)). A “reasonable probability” of a different
result exists when the State’s evidentiary suppression “ ‘undermines confidence in the
outcome of the trial.’ ” Kyles,

514 U.S. at 434

 (quoting Bagley,

473 U.S. at 678

).
¶ 37       In assessing materiality, we must keep in mind (1) it does not require a demonstration by
a preponderance of the evidence that disclosure of the suppressed evidence would have
resulted ultimately in the defendant’s acquittal; (2) the focus is on whether, in the absence
of the undisclosed information, the defendant received a fair trial, which is a trial resulting
in a verdict worthy of confidence; (3) it does not require the defendant to demonstrate that,
“after discounting the inculpatory evidence in light of the undisclosed evidence, there would
not have been enough left to convict”; and (4) it is defined “in terms of suppressed evidence
considered collectively, not item by item.” Kyles,

514 U.S. at 434-36

.
¶ 38 As to Pelo, defendant misrepresents what Pelo stated in his affidavit. The prosecutor
stated she was not asking Pelo to lie but asking him only to answer the questions she asked.
Pelo further stated that, if defense counsel had asked him additional questions about what
happened that night, he would have testified he did not see anyone leave the gas station. That
information is consistent with Pelo’s statement in the 1999 police interview, which defendant
does not allege was not part of pretrial discovery. Pelo’s not seeing anyone leave the gas
station after his arrival did not come out due to defense counsel’s cross-examination, not the
State’s failure to disclose exculpatory evidence. Accordingly, a Brady violation did not occur
in relation to Pelo.
¶ 39 Defendant alleges Winkler received a deal from the State despite his testimony to the
contrary. Defendant attached sentencing documents to his postconviction petition. Those
documents show Winkler pleaded guilty to forgery on January 28, 2000, pursuant to a plea
agreement. Winkler received a 4-year sentence when he was eligible for a sentence of up to
10 years. Defendant only questions the length of Winkler’s sentence and cites nothing
connecting Winkler’s sentence to his testimony in this case. Moreover, defendant does not
refute the State’s argument Winkler’s plea agreement was public information. “[W]hen the
information is readily available to the defense from another source, there simply is nothing
for the government to ‘disclose.’ ” Matthews v. Ishee,

486 F.3d 883

, 891 (6th Cir. 2007).
Accordingly, defendant has not shown the State failed to disclose any information related to
Winkler.
¶ 40       The same is true for the July 2000 motion for a downward sentencing departure in
Schaal’s federal prosecution. The State argues it was public information, and thus the
information contained in it did not have to be disclosed. Defendant again does not respond
to this argument in his reply brief. Thus, defendant has again failed to demonstrate a Brady
violation.
¶ 41       In his brief, defendant simply notes that, at the time of defendant’s trial, sentencing
records for Roland show he had several pending felony considerations, for which he seemed
to receive “light sentences and special considerations.” However, “ ‘ “[t]he government is
free to reward witnesses for their cooperation with favorable treatment in pending criminal
cases without disclosing to the defendant its intention to do so, provided that it does not
-10-
promise anything to the witness prior to the testimony.” ’ [Citation.]” (Emphasis in original.)
Akrawi v. Booker,

572 F.3d 252

, 263 (6th Cir. 2009). On appeal, defendant just highlights
favorable considerations and does not allege a promise by the State before Roland testified.
Defendant has again not shown a Brady violation.
¶ 42       Regarding Scheel, defendant asserts the State failed to disclose it coached Scheel’s
testimony by giving him details. Those details concern what defendant was wearing at the
party where defendant confessed to Scheel he killed Little. The State argues Larry Biela’s
affidavit, which is the only evidence of the State’s coaching Scheel, is improper hearsay. See
People v. Morales,

339 Ill. App. 3d 554

, 565,

791 N.E.2d 1122

, 1132 (2003). Defendant
argues that is the best evidence he has at this point. Our supreme court has yet to decide this
issue. See People v. Mitchell,

189 Ill. 2d 312

, 341,

727 N.E.2d 254

, 271 (2000) (“Assuming,
without deciding, that one can obtain an evidentiary hearing based upon inadmissable
hearsay evidence, we find defendant’s argument to be meritless.”). Thus, we decline to find
defendant failed to properly allege a nondisclosure related to Scheel because the allegation
was based on a hearsay affidavit. The fact the State coached one of its witnesses is favorable
to defendant, and thus we address whether the evidence was material to defendant’s guilt.
¶ 43       In his brief, defendant cites the materiality test for the last two circumstances, i.e., “ ‘if
there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’ ” Kyles,

514 U.S. at 433-34

 (quoting
Bagley,

473 U.S. at 682

) (opinion of Blackmun, J., joined by O’Connor, J.). He argues that
credibility was the key issue for every one of the State’s witnesses, and thus he made a
substantial showing of a reasonable probability that if the evidence had been disclosed the
outcome of his trial would have been different. In support of his argument, he cites Giglio
v. United States,

405 U.S. 150

 (1972). There, the United States Supreme Court found
material an undisclosed agreement or understanding between the government and its witness
because the agreement or understanding was relevant to the witness’s credibility and the
government’s case depended almost entirely on the witness’s testimony. Giglio,

405 U.S. at 154-55

. In this case, defendant has failed to allege how Scheel’s coaching alone undermines
confidence in his trial’s outcome. Moreover, unlike Giglio, Scheel was one of the State’s 43
witnesses that testified at defendant’s trial. He was also one of the many witnesses that
testified defendant in some way acknowledged killing Little. Unlike Martinez and Luna,
defendant has not alleged Scheel was a main witness. Thus, defendant has failed to meet his
burden of pleading a substantial showing of a constitutional violation with regard to Scheel.
¶ 44       Accordingly, we find the trial court did not err by dismissing defendant’s Brady claim.
¶ 45                              5. Other Due-Process Claims
¶ 46       Defendant also asserts his due-process rights were violated because defendant had
committed a crime against two of the jurors in the past and Martinez’s identification was
inherently unreliable and suggestive.
¶ 47                                      a. Jurors
¶ 48       Defendant cites People v. Holmes,

69 Ill. 2d 507

, 514,

372 N.E.2d 656

, 659 (1978),
-11-
where our supreme court recognized outside influences exerted on a jury during deliberations
may have such a probability that prejudice will result that the trial inherently lacked due
process. The Holmes court emphasized that not “every instance in which extraneous or
unauthorized information reaches the jury results in error so prejudicial as to require
reversal.” Holmes,

69 Ill. 2d at 519

372 N.E.2d at 661

. There, some of the jurors did an
independent investigation, which resulted in reversible error because the information
discovered was crucial to the question of the defendant’s identification and he had neither
been confronted at trial with the information nor given the opportunity to refute it. Holmes,

69 Ill. 2d at 519

372 N.E.2d at 662

.
¶ 49        Here, defendant alleges the jurors believed defendant had committed a crime against one
of the jurors in the past. However, Randall Howard’s affidavit only indicates a tall bailiff
opined defendant was “gonna fry this time” because defendant had previously robbed the
homes of two of the jurors. Howard’s affidavit does not indicate the jurors were aware
defendant had robbed two of their homes in the past. Moreover, defendant does not allege
prejudice requiring reversal, despite Holmes emphasizing not every extraneous information
received by the jury requires reversal. Holmes,

69 Ill. 2d at 519

372 N.E.2d at 661

. Last, this
speculative claim is refuted by the voir dire transcripts, which show the trial court questioned
the jurors about (1) knowing defendant and (2) being the victim of a crime, and none of them
revealed being defendant’s crime victim. In response to the questions, only one of the jurors
stated she was a victim of a crime about seven years earlier. The crime involved a man and
woman trying to enter her home. The people were later caught when they tried to enter
another home, and the juror heard the people “served time.” The juror did not know the
people’s names and did not testify against them. A potential juror did state defendant and a
trial witness broke into his home when defendant and his friend were juveniles. However,
that potential juror was struck for cause.
¶ 50        Accordingly, the trial court properly dismissed this claim as well.
¶ 51                                      b. Identification
¶ 52       Defendant also argues his due-process right was violated because Martinez’s testimony
about defendant’s identification was inherently unreliable and suggestive. In support of his
argument, he cites People v. Rodriguez,

387 Ill. App. 3d 812

, 829,

901 N.E.2d 927

, 943
(2008), which dealt with showup identifications. Martinez did not identify defendant at a
show-up, and thus that case is irrelevant. To the extent defendant is arguing the same legal
analysis regarding unnecessarily suggestive showups should apply to Martinez’s
identification, he does not even conduct the two steps of the due-process analysis for
showups in his brief. See People v. Ramos,

339 Ill. App. 3d 891

, 897,

791 N.E.2d 592

, 597
(2003). Accordingly, defendant has forfeited this issue by failing to develop his argument.
¶ 53       For the aforementioned reasons, we find the trial court properly dismissed defendant’s
claim of other due-process violations.
¶ 54                             6. Cumulative-Error Claim
¶ 55      Defendant also argues numerous trial errors occurred cumulatively resulting in the denial
-12-
of his due-process rights but only notes his claim in his pro se postconviction pleadings that
he was visibly shackled during trial and was forced to wear a stun belt. However, defendant
did not generally incorporate his prior postconviction pleadings in his final amended
postconviction petition and did not retain that issue in his amended petition. Accordingly,
that issue is not before us. See People v. Jones,

211 Ill. 2d 140

, 148,

809 N.E.2d 1233

, 1239
(2004) (holding a defendant may not raise an issue for the first time while on appeal in a
postconviction proceeding).
¶ 56       Moreover, the only “error” we have found that was properly pleaded in the amended
postconviction petition and then argued on appeal was the Brady violation related to Scheel.
However, we found defendant had not explained how that evidence alone was material, and
thus it did not warrant an evidentiary hearing. Accordingly, we find the trial court did not err
by dismissing defendant’s cumulative-error claim.
¶ 57                          7. March 2011 Motion To Supplement
¶ 58      On appeal, defendant does not provide any analysis in his argument section regarding
why the trial court erred in denying his March 2011 motion to supplement his amended
postconviction petition. Thus, defendant has forfeited this issue.
¶ 59                                   8. Discovery Motion
¶ 60       While defendant notes in his brief the trial court denied his motion for discovery filed
with his amended postconviction petition, he does not provide any argument in his analysis
section as to why the trial court’s denial was erroneous. Moreover, the record shows the
motion simply became moot when the court dismissed the postconviction petition as the
discovery motion was never called for a hearing. Accordingly, defendant forfeited any issues
related to his motion for discovery.
¶ 61                                    B. Ballistics Testing
¶ 62       Defendant last addresses his March 2011 motion for ballistics testing, which sought the
opportunity to test bullets recovered from the scene against the Integrated Ballistics
Identification System (IBIS) database to determine if that database can provide evidence of
the true perpetrator of the murder in this case. In May 2011, the trial court denied the motion
without a hearing.
¶ 63       Section 116-3 of the Procedure Code (725 ILCS 5/116-3 (West 2010)) provides, in part,
as follows:
“(a) A defendant may make a motion before the trial court that entered the judgment
of conviction in his or her case for the performance of fingerprint, Integrated Ballistic
Identification System, or forensic DNA testing, including comparison analysis of genetic
marker groupings of the evidence collected by criminal justice agencies pursuant to the
alleged offense, to those of the defendant, to those of other forensic evidence, and to
those maintained under subsection (f) of Section 5-4-3 of the Unified Code of
Corrections, on evidence that was secured in relation to the trial which resulted in his or
-13-
her conviction, and:
(1) was not subject to the testing which is now requested at the time of trial; or
(2) although previously subjected to testing, can be subjected to additional testing
utilizing a method that was not scientifically available at the time of trial that
provides a reasonable likelihood of more probative results. Reasonable notice of the
motion shall be served upon the State.
(b) The defendant must present a prima facie case that:
(1) identity was the issue in the trial which resulted in his or her conviction; and
(2) the evidence to be tested has been subject to a chain of custody sufficient to
establish that it has not been substituted, tampered with, replaced, or altered in any
material aspect.
(c) The trial court shall allow the testing under reasonable conditions designed to
protect the State’s interests in the integrity of the evidence and the testing process upon
a determination that:
(1) the result of the testing has the scientific potential to produce new,
noncumulative evidence materially relevant to the defendant’s assertion of actual
innocence even though the results may not completely exonerate the defendant;
(2) the testing employs a scientific method generally accepted within the relevant
scientific community.”
Thus, to establish a prima facie case for forensic testing under section 116-3, “the defendant
must show that identity was the central issue at trial and that the evidence to be tested was
subject to a sufficiently secure chain of custody.” People v. Johnson,

205 Ill. 2d 381

, 393,

793 N.E.2d 591

, 599 (2002). Thereafter, the trial court “must determine whether this testing
will potentially produce new, noncumulative evidence that is materially relevant to the
defendant’s actual-innocence claim.” Johnson,

205 Ill. 2d at 393

, 793 N.E.2d at 599. On
appeal, a trial court’s ruling on a motion for testing under section 116-3 without an
evidentiary hearing is reviewed de novo. People v. Pursley,

407 Ill. App. 3d 526

, 529,

943 N.E.2d 98

, 102 (2011).
¶ 64       In this case, defendant argues the bullets used to kill Little were collected as part of the
police investigation and no comparison has been made with ballistics evidence within the
IBIS database. Moreover, identity was the issue at defendant’s trial, and chain of custody is
not disputed. Also not disputed is the fact that IBIS testing employs a generally accepted
scientific method. See Pursley, 407 Ill. App. 3d at 532,

943 N.E.2d at 104

; 725 ILCS 5/116-
3(a) (West 2010).
¶ 65       Thus, the pertinent issue here centers on whether “the testing has the scientific potential
to produce new, noncumulative evidence that is materially relevant, though not necessarily
exonerating, to defendant’s claim of actual innocence.” Pursley, 407 Ill. App. 3d at 532,

943 N.E.2d at 104

. Our supreme court has stated “evidence which is ‘materially relevant’ to a
defendant’s claim of actual innocence is simply evidence which tends to significantly
advance that claim.” People v. Savory,

197 Ill. 2d 203

, 213,

756 N.E.2d 804

, 810-11 (2001).
The determination of whether evidence is materially relevant to defendant’s claim “requires
-14-
an evaluation of the evidence introduced at trial, as well as the evidence the defendant seeks
to test.” Johnson,

205 Ill. 2d at 396

, 793 N.E.2d at 601.
¶ 66        In Savory,

197 Ill. 2d at 205

756 N.E.2d at 806

, the defendant was convicted of two
murders in 1977. On appeal, the appellate court reversed his convictions, finding his
confession was inadmissible. Savory,

197 Ill. 2d at 205-06

756 N.E.2d at 806

. At the
defendant’s second trial, the State’s evidence included admissions the defendant made to
friends, statements he made to police prior to confessing, and other physical evidence
connecting the defendant to the offenses, including a bloodstain found on a pair of trousers
recovered from his home that was of the same blood type as one of the victim’s. Savory,

197 Ill. 2d at 206-07

756 N.E.2d at 807

. The defendant presented testimony from his father, who
claimed the trousers belonged to him and the bloodstain occurred after he cut his leg. Savory,

197 Ill. 2d at 208

756 N.E.2d at 807

. A jury found the defendant guilty, and his convictions
and sentences were affirmed on appeal. Savory,

197 Ill. 2d at 208

.
¶ 67        The defendant’s postconviction and habeas corpus petitions were denied, and he then
filed a motion pursuant to section 116-3 of the Procedure Code, requesting DNA testing of
the bloodstained trousers. Savory,

197 Ill. 2d at 208-09

. The defendant
claimed he was innocent of the murders, and he alleged the test results would show the blood
did not match the victim and would eliminate one of the pieces of physical evidence
introduced by the State. Savory,

197 Ill. 2d at 209

. The trial court denied
the defendant’s motion, and the appellate court affirmed with one justice dissenting. Savory,

197 Ill. 2d at 209