Court of Appeals of Illinois, First District, Second Division
Modified Rule 23 Order filed October 26, 2011
Rule 23 Order withdrawn September 13, 2013
The second-stage dismissal of defendant’s postconviction petition alleging that the trial judge used the wrong version of the pattern instruction on the factors to be considered in weighing identification testimony was properly dismissed as untimely, notwithstanding defendant’s contention that the late filing was not due to his culpable negligence, since the record supported the conclusion that defendant was culpably negligent in obtaining advice on the due date of his petition from an unnamed prison law clerk who had no specialized knowledge of the law.
Appeal from the Circuit Court of Cook County, No. 93-CR-25151; the Hon. William G. Lacy, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Suzan-Amanda Ingram, all Appeal of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Tracey Annen, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE QUINN delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment and opinion. Justice Neville dissented, with opinion.
¶ 1 Defendant Jose Cruz appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). He contends that the circuit court erred in dismissing his petition where he lacked culpable negligence for its late filing and made a substantial showing that his right to due process was violated by the use of an erroneous version of an Illinois Pattern Jury Instruction. For the following reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 Around 3:30 a.m. on October 6, 1993, Vernon Meadors walked to a bus stop by a gas station on North Avenue. Antoine Douglas drove into the gas station and got out of his car, wearing a Duke Blue Devils shirt. Another car pulled into the gas station and stopped in front of Douglas. Someone from that car asked whether Douglas was a Disciple. Douglas said he was a Vice Lord. Several men emerged from the car and Douglas ran off. When the men started shooting at Douglas, Meadors hit the ground. After the shooting stopped, someone yelled, "Witness." One of the men shot Meadors in the arm, but additional pulls on the trigger produced no bullets. The men drove off. Police arrived minutes later and found Douglas dead from multiple gunshot wounds.
¶ 4 Doctors at a nearby hospital treated Meadors and released him. Police showed Meadors an array of photographs, including some pictures of local gang members, but Meadors did not identify any of the photos as pictures of the men he saw shooting at Douglas. Meadors and his family moved out of the area near the shooting. On October 8, 1993, two days after the shooting, Meadors returned to the police station and identified a picture of Cruz as a picture of the man he saw asking Douglas about his gang affiliation, and as one of the men who shot at Douglas.
¶ 5 Police arrested Cruz, who admitted that he belonged to the Latin Kings. Meadors identified Cruz in a lineup as the person he saw in the car at the gas station, and as one of the men he saw shooting Douglas. A grand jury indicted Cruz for the murder of Douglas and for the attempted murder of Meadors.
¶ 6 At the trial, held in 1995, prosecutors presented an expert on gangs to explain the shooting. The expert said that Latin Kings control the area near the shooting. Latin Kings participate in a loose alliance with Vice Lords, but they view Disciples as enemies. Disciples wear Duke Blue Devil clothing to show their gang affiliation. Another officer testified that when he questioned Cruz, Cruz admitted that if he saw a Disciple in Latin King territory, Cruz would "beat him, stab him, shoot him, whatever it takes to get him out of there."
¶ 7 Meadors testified that he saw Cruz's face clearly from about 15 feet away, in very good lighting, when Cruz asked Douglas about his gang affiliation. Meadors did not get a good view of the other men in the car. After police arrived at the scene, a young Hispanic man walked up to Meadors and looked at him in a way Meadors found threatening. Meadors decided not to identify Cruz at that time, but after his family moved, he made the identification.
¶ 8 The trial court instructed the jury, without objection:
"When you weigh the identification testimony of a witness, you must consider all of the facts and circumstances and evidence, including but not limited to the following. The opportunity the witness had to view the offender at the time of the offense; or the witness' degree of attention at the time of the offense; or, the witness's earlier description of the offender; or, the level of certainty shown by the witness when confronting the defendant; or the length of time between the offense and the identification confrontation."
¶ 9 The jury found Cruz guilty of murder and attempted murder. The trial court sentenced Cruz to 60 years in prison for the murder, and 30 years for the attempted murder, with the sentences to run consecutively.
¶ 10 On direct appeal, defense counsel argued that Cruz did not receive a fair trial because the court permitted the State to introduce evidence of other crimes and to use inadmissible evidence to bolster Meadors's testimony, and the State made improper assertions in closing argument. Counsel raised no issue concerning the jury instructions or ineffective assistance of trial counsel. The appellate court affirmed the trial court's judgment. People v. Cruz, No. 1-96-0575 (Aug. 31, 1998) (unpublished order under Supreme Court Rule 23).
¶ 11 On June 2, 1999, Cruz filed a postconviction petition in which he argued that he received ineffective assistance of trial and appellate counsel. The trial court dismissed the petition as untimely, without appointing counsel to assist Cruz with the petition. The appellate court reversed and remanded for the appointment of counsel to assist Cruz with his postconviction petition and to advance the case to the second stage of postconviction proceedings, pursuant to the holding in People v. Boclair, 202 Ill.2d 89, 99 (2002). People v. Cruz, No. 1-99-3215 (May 30, 2003) (unpublished order under Supreme Court Rule 23).
¶ 12 On May 6, 2004, counsel was appointed to represent Cruz. On June 21, 2007, however, the court granted Cruz's motion to proceed pro se and discharged his appointed counsel. Then, on January 17, 2008, Cruz withdrew his prior postconviction petition and filed an amended petition in which he added an allegation that he did not receive a fair trial because the trial court used an erroneous instruction concerning the factors to consider when weighing identification testimony.
¶ 13 Cruz also filed another amendment to his postconviction petition to explain his delay in filing the original petition. He stated:
"[I am] illiterate in law, has poor comprehension and border line illiterate, and english is not fluent at all. There-fore, I have had to rely on the advice of other jail house lawyers, including the law clerks assigned to Stateville Corr. Ctr. Law Library who told me that I had (6) six months after the denial of my Petition for Leave to Appeal to the Illinois Supreme Court to file my Post Conviction Petition."
Because the Illinois Supreme Court denied his petition for leave to appeal on December 2, 1998 (People v. Cruz, 181 Ill.2d 577 (1998) (table)), Cruz concluded that he could file his postconviction petition anytime before June 3, 1999. In fact, the statute made the petition due, at the latest, three years after the conviction, so that Cruz's time for filing expired on January 30, 1999. See 725 ILCS 5/122-1(c) (West 1998). Cruz alleged that due to his difficulty reading English, he needed to rely on prison staff to let him know the filing date, and he needed the help of a jailhouse lawyer to prepare his postconviction petition. He further alleged that "Stateville's Law Clerk are [sic] not properly trained, many of whom does [sic] not have the proper paralegal certification to even work as a law clerk." He also explained:
"[H]ere at Stateville Law Library there is a rotating system where every (6) six months prisoners are re-assigned to another job assignment. which means a prisoner who may have or may have not the proper certification to work at the Law Library may be assigned to the prison's Laundry, and the prisoner will likewise be assigned to the Law Library to work as a Law Clerk."
¶ 14 The State moved to dismiss the amended postconviction petition as untimely and insufficient. On July 10, 2009, the trial court granted the State's motion, finding the petition untimely because Cruz failed to allege facts to show that he did not act with culpable negligence when he filed his postconviction petition four months late. The court also found the petition and its supplements insufficient to warrant an evidentiary hearing. The court did not directly address the argument concerning the improper instruction. Cruz appealed.
¶ 15 In the appeal, the State argued that this court should affirm the dismissal of Cruz's petition because Cruz did not support his allegations about the lack of culpable negligence with a notarized affidavit. This court agreed with the State. People v. Cruz, 2011 IL App (1st) 091944-U, ¶ 23. Our supreme court reversed our judgment, holding that the State forfeited its objection to the lack of a notarized affidavit by failing to raise the issue in the trial court. People v. Cruz, 2013 IL 113399, ¶ 25. Our supreme court remanded the case for us to review the other issues raised in the appeal from the dismissal of Cruz's postconviction petition. We now address the issues we left unresolved in our initial disposition of this appeal.
¶ 16 ANALYSIS
¶ 17 The Act provides a mechanism by which a criminal defendant may assert that his conviction was the result of a substantial denial of his constitutional rights. People v. Delton, 227 Ill.2d 247, 253 (2008). At the second stage of proceedings, defendant has the burden of making a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill.2d 458, 473 (2006). A petition may be dismissed at this stage only where the allegations, liberally construed in light of the trial record, fail to make such a showing. People v. Hall, 217 Ill.2d 324, 334 (2005). All well-pleaded facts that are not positively rebutted by the ...