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The People of the State of Illinois v. Douglas Tate

November 29, 2012


The opinion of the court was delivered by: Justice Freeman

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.


¶ 1 Petitioner, Douglas Tate, filed a post-conviction petition in the circuit court of Cook County. The appellate court affirmed the circuit court's summary dismissal. No. 1-09-2379 (unpublished order under Supreme Court Rule 23). We granted leave to appeal, and now reverse the judgment of the appellate court and remand to the circuit court for further proceedings.


¶ 3 Tate's conviction arose from the August 2001 murder of Maurice Wesley in Chicago. Tate's bench trial, which began in June 2005, presented the testimony of four eyewitnesses who identified him as the shooter. Police found four spent shell casings at the scene of the crime, but no gun. The parties stipulated that the casings yielded no latent fingerprint impressions suitable for comparison. The medical examiner testified Wesley died of multiple gunshot wounds. His wounds were consistent with eyewitness accounts of the manner in which he was shot. The trial judge found Tate guilty of first degree murder and aggravated discharge of a firearm, and sentenced him to 50 years' imprisonment. The appellate court affirmed. People v. Tate, No. 1-07-1094 (2008) (unpublished order under Supreme Court Rule 23).

¶ 4 In his post-conviction petition, which was filed through private counsel, Tate alleged his trial counsel was ineffective for failing to call four witnesses, two of whom Tate claimed could establish an alibi. Tate also alleged actual innocence, based on the same four affidavits. Attached to the post-conviction petition were Tate's own affidavit; the affidavit of Tina Louise Tate (Tina), his girlfriend at the time of the shooting and, since July 2006, his wife; the affidavit of Tina's cousin and roommate, Marilyn Pass; and the affidavits of occurrence witnesses Charles Hebron and Shevell Wilson.

¶ 5 In his affidavit, Tate averred that he spent the night before the shooting with Tina and remained at her apartment until 10:00 or 11:00 the following night. The affidavits of Tina and Pass provided support for this alibi: each averred Tate spent that night at Tina's apartment and did not leave until 10:00 or 11:00 the next night. Wilson stated in his affidavit that at the time of the shooting, he did not see Tate anywhere near the corner where the incident occurred. Hebron's affidavit averred that he was five feet from the victim at the time of the shooting, he witnessed the shooting, he had known Tate for years, and he was sure Tate was not the shooter.

¶ 6 The circuit court summarily dismissed Tate's post-conviction petition without comment. The appellate court affirmed. No. 1-09-2379 (unpublished order under Supreme Court Rule 23).


¶ 8 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009); People v. Peeples, 205 Ill. 2d 480, 509 (2002). A post-conviction action is not an appeal from the judgment of conviction, but is a collateral attack on the trial court proceedings. Thus, issues raised and decided on direct appeal are barred by res judicata, and issues that could have been raised but were not are forfeited. An action for post-conviction relief is initiated by the person under criminal sentence, who files a petition in the circuit court in which the original proceeding took place. As a result, most such petitions are filed pro se by persons who are incarcerated and lack the means to hire their own attorney.

¶ 9 In a non-capital case, a post-conviction proceeding contains three stages. At the first stage, the circuit court must independently review the petition, taking the allegations as true, and determine whether " 'the petition is frivolous or is patently without merit.' " Hodges, 234 Ill. 2d at 10 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2006)). A petition may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact. Hodges, 234 Ill. 2d at 11-12. This first stage in the proceeding allows the circuit court "to act strictly in an administrative capacity by screening out those petitions which are without legal substance or are obviously without merit." People v. Rivera, 198 Ill. 2d 364, 373 (2001). Because most petitions are drafted at this stage by defendants with little legal knowledge or training, this court views the threshold for survival as low. At this initial stage of the proceeding, there is no involvement by the State.

¶ 10 If the circuit court does not dismiss the petition as "frivolous or *** patently without merit" (725 ILCS 5/122-2.1(a)(2) (West 2008)), the petition advances to the second stage, where counsel may be appointed to an indigent defendant (725 ILCS 5/122-4 (West 2008)), and where the State, as respondent, enters the litigation (725 ILCS 5/122-5 (West 2008)). It is at this point, not the first stage, where the post-conviction petition can be said to be at issue, with both sides engaged and represented by counsel. See 725 ILCS 5/122-4, 122-5, 122-6 (West 2008). At this second stage, the circuit court must determine whether the petition and any accompanying documentation make "a substantial showing of a constitutional violation." People v. Edwards, 197 Ill. 2d 239, 246 (2001) (citing People v. Coleman, 183 Ill. 2d 366, 381 (1998)). If no such showing is made, the petition is dismissed. Edwards, 197 Ill. 2d at 246. If, however, a substantial showing of a constitutional violation is set forth, the petition is advanced to the third stage, where the circuit court conducts an evidentiary hearing. Id.; 725 ILCS 5/122-6 (West 2008). The summary dismissal of a post-conviction petition is reviewed de novo. People v. Brown, 236 Ill. 2d 175, 184 (2010).

ΒΆ 11 In the case at bar, the State notes that Tate's petition was prepared by privately retained counsel, and argues that, as such, it must make a "substantial showing of a constitutional violation" (Edwards, 197 Ill. 2d at 246), as opposed to ...

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