Court of Appeals of Illinois, First District, Second Division
SThe dismissal of defendant’s postconviction petition at the second stage of the proceedings was upheld over defendant’s contention that his appellate counsel failed to argue that improper instructions were given on the factors to be considered in evaluating eyewitness identification testimony and that his trial counsel did not object to the instructions, since defendant’s conviction was affirmed in 1999 and his pro se postconviction petition was filed in February 2001, and the appellate court opinion in Gonzalez, holding that the use of “or” between the factors was error because it implied that eyewitness testimony could be considered reliable if only one factor weighed in favor of reliability, was not filed until November 26, 2001, and a claim of ineffective assistance of counsel cannot be based on the failure to invoke a ruling that had not yet occurred; furthermore, the evidence was not closely balanced and the error was harmless.
Appeal from the Circuit Court of Cook County, No. 89-CR-5408; the Hon. Matthew E. Coghlan, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Rebecca I. Levy, all of Appeal State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Joan F. Frazier, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Pierce concurred in the judgment and opinion.
¶ 1 Petitioner, Harold Oliver, appeals the judgment of the circuit court dismissing his postconviction petition after the second stage. On appeal, Oliver contends the trial court erred in dismissing his postconviction petition where he made a substantial showing that appellate counsel was ineffective for failing to argue on direct appeal that (1) the court gave improper jury instructions on how to evaluate eyewitness identification testimony; and (2) his trial counsel was ineffective in failing to challenge the improper instruction. For the following reasons, we affirm.
¶ 2 JURISDICTION
¶ 3 The trial court dismissed Oliver's postconviction petition on February 24, 2012. He filed a notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rule 651, governing appeals in postconviction proceedings. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. R. 651 (eff. Feb. 6, 2013).
¶ 4 BACKGROUND
¶ 5 Oliver was charged with aggravated criminal sexual assault and armed robbery in connection with an incident that occurred on January 24, 1989. A jury found him guilty in March of 1991. On appeal, this court reversed his convictions and remanded for a new trial. People v. Oliver, 265 Ill.App.3d 543 (1994). After the second trial, the jury again found Oliver guilty of committing criminal sexual assault and armed robbery. Oliver appealed and this court affirmed his convictions. People v. Oliver, 306 Ill.App.3d 59 (1999). Oliver filed his initial pro se petition for postconviction relief on February 1, 2001. He subsequently filed other motions and claims, and on June 7, 2011, Oliver filed a petition to consolidate all of his claims in one petition. The State filed a motion to dismiss on August 31, 2011. The following facts are relevant to Oliver's appeal.
¶ 6 On January 24, 1989, around 7:45 a.m., S.S. was walking to the bus stop when a man grabbed her from behind and put a gun to her neck. The man wore grey glasses and had a scar on the right side of his face. S.S. testified that she recognized the man as someone she knew from several years ago by the name of "Ralph." S.S. met Ralph through her cousin, Sharon Allison. They met at a Burger King in Chicago. S.S. recognized him as a friend of someone she dated when she was a teenager, but she had never formally met him before. Allison told S.S. that Ralph's real name was Harold Oliver.
¶ 7 The man ordered S.S. to take off her shoes, and although he warned her not to look at him, she did anyway. The man forced S.S. into a vestibule of a nearby apartment building and ordered her to take off her jacket and pull up her sweater. The vestibule had plenty of windows and the sun was shining through. S.S. could clearly see the man in that space. He tried covering her face with the jacket to keep her from seeing him, but it kept slipping off during the assault. The man inserted his fingers and ...