Appeal from the Circuit Court of Cook County. Honorable Michele M. Simmons, Judge Presiding. No. 96 CR 10552
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.
¶ 1 Defendant Doikah Gray appeals from an order of the circuit court of Cook County denying his petition for leave to file a successive pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)), and dismissing his petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). He contends that the circuit court erred in denying him leave to file a successive post-conviction petition where he presented newly discovered evidence establishing the gist of a claim of ineffective assistance of trial counsel. He also contends that the sua sponte dismissal of his section 2-1401 petition within 30 days of its filing was erroneous.
¶ 2 A jury found defendant guilty of first degree murder in connection with the 1994 shooting death of Don Rietveld. He was then sentenced to an extended term of 80 years' imprisonment after the trial court found that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. This court affirmed that judgment on direct appeal, where defendant challenged his sentence and contended that he was denied a speedy trial and discriminated against in jury selection. People v. Gray, 326 Ill. App. 3d 906, 908 (2001).
¶ 3 On June 24, 2002, defendant, represented by counsel, filed an initial post-conviction petition, alleging a sentencing violation pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and ineffective assistance of trial and appellate counsel regarding the failure to file a post-sentencing motion or to preserve as error the sentencing court's consideration of various aggravating factors. The trial court granted the State's motion to dismiss his petition, and we affirmed that order of dismissal in People v. Gray, No. 1-04-1771 (Feb. 17, 2006) (unpublished order under Supreme Court Rule 23).
¶ 4 Defendant then petitioned the United States District Court for a writ of habeas corpus, which was denied. That decision was affirmed by the United States Court of Appeals, which noted that defendant had procedurally defaulted his ineffective assistance claims. Gray v. Hardy, 598 F.3d 324, 333 (2010).
¶ 5 In December 2008, defendant filed the instant pro se motion for leave to file a successive petition and successive pro se post-conviction petition, alleging that the State failed to disclose favorable evidence to him, in violation of Brady v. Maryland, 373 U.S. 83 (1963); that the State knowingly presented false trial testimony; and ineffective assistance of trial counsel based on newly discovered evidence. He maintained that these constitutional violations could not have been presented in his original post-conviction petition because they were not known to him at that time.
¶ 6 In support of his allegations, defendant appended an undated, typewritten statement bearing the signature and stamp of a notary and the signature of an individual named Milton Marshall. Marshall is not named in the statement, and there is no indication in the statement that the declarant made it under oath. The declarant maintains that he spoke to Troy Montgomery, an eyewitness for the State, in September 1997 and that Montgomery told him he did not know who killed the victim and the only reason he said that defendant did it "was because they signed a statement saying they did it." The declarant and Montgomery then went to the office of defendant's trial counsel and told him that defendant "did not shoot the white guy and that he himself was not even there on that night." Montgomery told counsel that he was afraid that he could be charged with the murder if he had come forward, but counsel did not take a statement from Montgomery, and shortly thereafter, Montgomery left town because he did not want to go to court and "lie."
¶ 7 In his pleadings, defendant asserted that his trial counsel failed to inform him of the statement from Montgomery or use the statement to impeach Montgomery at trial. Defendant alleges that this failure was not a strategic decision and that he was prejudiced because he was not allowed to present a full defense.
¶ 8 On February 6, 2009, while his post-conviction petition was pending, defendant filed a section 2-1401 petition for relief from judgment. He alleged therein that his indictment and conviction were void because he had not been indicted within 30 days of his arrest as required by statute.
¶ 9 On February 20, 2009, the circuit court considered both petitions and denied defendant leave to file the successive petition, finding that he failed to satisfy the cause and prejudice test. The court also dismissed his section 2-1401 petition, finding that defendant did not show that the judgment is void and should be vacated. The transcript shows that an assistant State's Attorney (ASA) was present for the proceedings, but did not speak, file a motion to dismiss, or raise any affirmative defenses to defendant's petition.
¶ 10 In this appeal, defendant challenges both rulings. He first claims that the trial court erred in denying his request for leave to file a successive petition, where he had alleged that recently discovered evidence showed that the State's eyewitness recanted his statement to trial counsel, who did not use it to impeach the witness's trial testimony that defendant was one of the shooters.
¶ 11 The Act contemplates the filing of only one post-conviction petition (People v. Ortiz, 235 Ill. 2d 319, 328 (2009)), and successive petitions are governed by section 122-1(f) of the Act ((725 ILCS 5/122-1(f) (West 2008)). Leave of court must be obtained to file a successive petition, and this permission is expressly conditioned on defendant's satisfaction of the cause and prejudice test (People v. LaPointe, 227 Ill. 2d 39, 44 (2007)), or where ...