Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County, No. 06-CR-3228; the
Hon. Nicholas R. Ford, Judge, presiding.
Michael J. Pelletier, Patricia Mysza, and Christopher Kopacz,
all of State Appellate Defender's Office, of Chicago, for
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg and Hareena Meghani-Wakely, Assistant State's
Attorneys, of counsel), for the People.
PRESIDING JUSTICE ELLIS delivered the judgment of the court,
with opinion. Justices McBride and Howse concurred in the
judgment and opinion.
1 Defendant Anthony Shief was convicted of the first degree
murder of Leroy Willis in 2009. In 2012, defendant mailed a
postconviction petition to the clerk of the circuit court of
Cook County, but the clerk did not docket his petition. After
inquiring into the status of his petition several times,
defendant refiled his petition one year later. The petition
argued that the prosecution had knowingly presented perjured
testimony at defendant's trial, that the trial court
erred in denying his motion to suppress identification
testimony, that the witnesses against defendant were not
sufficiently credible to prove him guilty beyond a reasonable
doubt, and that his appellate counsel was ineffective for
failing to raise these issues on appeal. The trial court
summarily dismissed the petition.
2 In this appeal from the summary dismissal, defendant raises
two issues. First, he argues that we should vacate the
dismissal of his petition and remand for second-stage
postconviction proceedings because the clerk failed to
promptly docket his petition pursuant to section 122-1(b) of
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(b)
(West 2012)). Second, he argues that the trial court erred in
summarily dismissing his petition because it stated the gist
of a claim that his appellate counsel was ineffective for
failing to raise a challenge to the admissibility of gang
evidence presented at defendant's trial.
3 We affirm. Defendant is not entitled to remand for
second-stage postconviction proceedings, because the statute
requiring the clerk to promptly docket his petition is
directory, not mandatory. The statute prescribes no
consequences for the clerk's failure to promptly docket a
petition, and defendants' rights to timely consideration
of their petitions will not be injured by a directory
4 With respect to the merits of defendant's petition, we
conclude that defendant has forfeited his argument that his
counsel on direct appeal was ineffective for failing to
challenge the gang evidence because he did not raise that
argument in his petition. And even if defendant had raised
that argument, we would hold that defendant failed to state
the gist of an ineffectiveness claim because the gang
evidence was admissible.
5 I. BACKGROUND
6 We previously discussed the evidence presented at
defendant's trial in our order affirming defendant's
conviction on appeal. People v. Shief, No. 1-09-1577
(2011) (unpublished order under Supreme Court Rule 23). We
recount the evidence only to the extent it is necessary to
understand the issues relevant to defendant's
7 At trial, the State's evidence showed that defendant
shot Willis with a sawed-off shotgun in the early morning
hours of June 8, 2002, as defendant attempted to hijack the
car that Willis had parked at a department store. Janice
Minnis, who was with Willis when he was shot, described the
incident but could not identify the shooter because she was
intoxicated at the time. Darrell Harvey, who observed the
shooting as he was driving by, identified defendant as the
shooter. Defendant's fingerprints were found in and
outside the car.
8 The State also presented the grand jury testimony of Adam
Pegues. Before the grand jury, Pegues testified that, in
2002, defendant had admitted to shooting someone in the
department store parking lot during a robbery attempt. At the
time Pegues testified before the grand jury, he was facing
charges for a Class X felony. (The record does not reflect
the specific charges that Pegues faced.) At trial, Pegues
recanted his grand jury testimony and testified that
defendant never told him that he had shot anyone. Pegues said
that he had testified to the contrary in front of the grand
jury because the detectives who had questioned him had
threatened and beat him.
9 When the State began to question Pegues about his former
gang membership, the court interjected and told the jury not
to consider evidence of defendant's gang membership as
evidence that he shot Willis:
"I am going to allow the introduction of this gang
membership not as evidence against [defendant] because it is
not. I am indicating to you right now this is not evidence of
his guilt, [defendant's] guilt in any way. I believe it
is going to be at least asserted at this point that they are
members of the same organization. Any bias, and that's
for you to decide whether or not it exists, that might incur
because they are members of the same organization is a
question for you to consider as it relates to the testimony
offered. But you may not, and I am emphasizing this, not
consider membership within this organization as evidence of
guilt on the part of [defendant]. Do you all understand that?
They all answered yes."
10 In his grand jury testimony, Pegues testified that he and
defendant were both members of the Gangster Disciples street
gang in 2002. At trial, Pegues admitted that he had been a
member of the gang "a long time ago" but said that
he did not know whether defendant had been a member. Then the
State questioned Pegues about the possibility of retaliation
against gang members who testified against other gang
"Q. Having been a member of the Gangster Disciples
street gang, the gang doesn't like it when you testify
against a fellow member in court, correct?
A. I'm not a member.
Q. You were a member?
A. I been out of the association for years. I gave my life to
God. This is what I do. No more associating.
Q. There is no question pending. When you were a member of
the Gangster Disciples street gang, the gang didn't like
it when you testified in court against a fellow member,
A. I don't know anything about that.
Q. You didn't know anything about the gang rules?
A. Gangs snitch on each other all the time. What that got to
do with it?
Q. Would they pat you on the back if they knew that you
testified against someone in court that was a Gangster
A. If I'm no longer associated with that gang why should
it matter to me?
Q. Back then when you were a member of the Gangster
Disciples it mattered if you testified against someone in
the gang, correct?
A. A long time ago, yes.
Q. They didn't throw a party for you and say good job for
testifying against one of our [sic] fellow members,