Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 11 CR 09691
Honorable Kenneth Wadas, Judge Presiding.
JUSTICE MIKVA delivered the judgment of the court, with
opinion. Presiding Justice Pierce and Justice Simon concurred
in the judgment and opinion.
1 Micah Upshaw appeals from the second-stage dismissal of his
petition for relief under the Post-Conviction Hearing Act
(Post-Conviction Act) (725 ILCS 5/122-1 et seq.
(West 2000)). Mr. Upshaw contends that the circuit court
erred in dismissing his petition without holding an
evidentiary hearing. We agree with Mr. Upshaw as to two of
the issues raised in his postconviction petition and also
agree that he made a substantial showing that he was not
culpably negligent for the untimely filing of his petition.
We reverse and remand for further proceedings in accordance
with this opinion.
3 Mr. Upshaw was convicted of two counts of attempted first
degree murder, based on a shooting incident that occurred on
February 23, 1996, during which two police officers-Officer
Joanne Stewart and Officer Bradford Lee-were fired at and
Officer Stewart was injured. The evidence presented at Mr.
Upshaw's trial and at the hearing on his pretrial motion
to suppress a statement he gave to the police is summarized
in the order issued by this court in his direct appeal.
People v. Upshaw, No. 1-99-4043 (2001) (unpublished
order under Supreme Court Rule 23). Those facts are set forth
here only as necessary to frame the issues raised in this
4 In the early morning hours of February 23, 1996, officers
Stewart and Lee were in an unmarked car conducting
surveillance near 54th Street and Prairie Avenue in Chicago,
Illinois. Officer Stewart was shot and severely injured, and
Officer Lee got out of the car and chased what he testified
to was "one shooter, " whom he described at trial
as being 25 to 30 years old, 6 feet tall, and weighing 170
pounds. Officer Lee saw the shooter get into the passenger
side of a car parked in a nearby alley and leave the area.
Neither officer could identify anyone involved in the
5 Four days later, Chicago police officer Peck was contacted
by an unnamed confidential informant who told Officer Peck
that he had overheard people he knew as Bilal and
"Little Mike" discussing their involvement in the
shooting. The confidential informant gave Officer Peck a
description of "Little Mike" and his car that led
the police to arrest Mr. Upshaw later that day. The informant
then came to the police station and identified Mr. Upshaw as
"Little Mike." Bilal Williams was arrested the next
day and gave a statement implicating himself and Mr. Upshaw
in the shooting. After Mr. Upshaw had been in police custody
for approximately 28½ hours, he also gave a statement.
6 In that statement-which Assistant State's Attorney
Joseph Kosman wrote out and Mr. Upshaw initialed and
signed-Mr. Upshaw said that he and Bilal Williams were both
members of the Gangster Disciples street gang. According to
the statement, on the night of February 22 and into the early
morning hours of February 23, 1996, Mr. Upshaw and Bilal were
driving around together in Bilal's car when they
"began to talk about f***ing up" members of a rival
gang in retaliation for a drive-by shooting that had occurred
earlier that month and in which a fellow Gangster Disciple
had been shot. Mr. Upshaw eventually parked the car in a
field on the 5400 block of South Calumet Avenue near Prairie
Avenue, and Mr. Upshaw and Bilal both got out of the car.
Bilal grabbed two guns from the car that he had brought from
his house, giving one to Mr. Upshaw. Mr. Upshaw was then
following Bilal down Prairie Avenue when Bilal made a
"whistle type" sound and began shooting at a parked
vehicle. In his statement, Mr. Upshaw said that he thought
that the people inside the parked vehicle were security for
the rival gang and that when Bilal began shooting, so did he.
Bilal shot eight times, Mr. Upshaw shot three times, and then
they both ran back to Bilal's car and drove away.
7 The jury found Mr. Upshaw guilty on two counts of attempted
first degree murder. On November 8, 1999, the trial court
imposed an extended-term sentence of 50 years on one count
and a sentence of 25 years on the other, to be served
consecutively, for a total of 75 years.
8 On direct appeal, Mr. Upshaw raised three issues, arguing
that the trial court erred in refusing to suppress his
confession because it was coerced, the State made an improper
closing argument, and the consecutive sentences imposed by
the trial judge ran afoul of the United States Supreme
Court's opinion in Apprendi v. New Jersey, 530
U.S. 466 (2000). This court affirmed Mr. Upshaw's
convictions and sentence. Upshaw, No. 1-99-4043,
slip op. at 16. His pro se petition for leave to
appeal to the Illinois Supreme Court was denied on December
5, 2001. People v. Upshaw, 197 Ill.2d 582 (2001)
9 On February 14, 2003, Mr. Upshaw mailed to the clerk of the
circuit court a pro se postconviction petition,
arguing in part that his untimely filing of the petition was
not due to his culpable negligence. A public defender was
appointed to Mr. Upshaw's case on May 16, 2003. Following
a delay that is not explained by the parties, on November 4,
2010, the public defender filed a "Supplemental Petition
for Post-Conviction Relief-Allegation of Actual
Innocence" (supplemental petition), which is the subject
of this appeal. The claims in the supplemental petition that
are before this court now on appeal are (1) Mr. Upshaw's
trial counsel was ineffective for failing to call alibi
witness Tyrone White; (2) Mr. Upshaw's appellate counsel
was ineffective for (a) failing to challenge Mr. Upshaw's
extended-term sentence as violative of Apprendi, (b)
failing to argue that the trial court erred in barring
evidence that another man, Marvin Williams, may have
committed the crimes, and (c) failing to argue that the State
improperly introduced multiple hearsay identifications of Mr.
Upshaw as the shooter; and (3) the denial of Mr. Upshaw's
motion to suppress should be reconsidered based on newly
discovered evidence of a pattern and practice of coercion by
two of the detectives involved in his case.
10 Multiple documents were attached in support of Mr.
Upshaw's petition, including affidavits from himself and
from Tyrone White. In his own affidavit, dated April 23,
2009, Mr. Upshaw said that he had informed his trial counsel
that he was not involved in the shooting and that he was with
Tyrone White at Mr. White's home "at 5132 S.
Champlain in Chicago" at the time of the shooting. Mr.
Upshaw also said that he gave his trial counsel Mr.
White's name, address, and telephone number and that he
told his trial counsel that Mr. White would be an alibi
witness for him, but that Mr. White was never called to
11 Mr. White attested, in his affidavit, that on the evening
of February 22, 1996, he was at his mother's house
"at 6132 S. Champlain, " hanging out with Mr.
Upshaw, his sister, and a girl named Monique Jackson. Mr.
White stated that, at approximately 2 a.m. on February 23, he
left the house to visit a friend and, at the time he left,
Mr. Upshaw was asleep on the couch. He explained that he
remembered "these events" because he passed the
scene of what he "later learned was [the] shooting at
54th and Prairie and saw all of the police cars" and
because he met a woman that night that he "ended up
dating for several years." He discussed the case with
Mr. Upshaw prior to the trial and "discussed [his] being
an alibi witness for [Mr. Upshaw]." Mr. White said in
his affidavit that he would have been willing to testify at
Mr. Upshaw's trial but that he was never contacted by Mr.
Upshaw's trial counsel.
12 Mr. Upshaw also attached several documents in support of
his argument that two officers involved in his
case-detectives Boudreau and Halloran-had a "pattern and
practice" of using physical coercion to obtain
inculpatory statements from suspects. The details of these
documents are discussed later in this opinion. See
infra ¶¶ 76-77.
13 On December 7, 2011, the State filed a motion to dismiss
Mr. Upshaw's petition, arguing that Mr. Upshaw's
initial pro se petition was untimely filed. In
addition, the State argued that Mr. Upshaw's claims
lacked merit. In his response to the motion to dismiss, Mr.
Upshaw argued that he was not culpably negligent for the
untimely filing of his postconviction petition. He argued
that documents he attached to his response demonstrated that,
due to no fault of his own, his correctional facility was on
general lockdown for 179 days between the time his petition
for leave to appeal to the supreme court was denied and when
he filed his petition and that staff at the correctional
facility library also lost his trial transcripts and legal
materials. In support of these arguments, Mr. Upshaw
submitted lockdown records for the Stateville Correctional
Center (Stateville), his own affidavit explaining that during
lockdown he had no access to the prison law library and that
it would take two weeks after a lockdown to regain library
access, and affidavits from the prison law library staff
corroborating that the library staff lost Mr. Upshaw's
records as early as March 2002 and that Mr. Upshaw made
multiple attempts to retrieve them.
14 The circuit court held a hearing on the State's motion
to dismiss and granted the motion that same day. The circuit
court did not directly address Mr. Upshaw's claim that
his trial counsel had been ineffective for failing to
interview his alibi witness. The circuit court ruled that
there was no ineffective assistance of appellate counsel
because some issues were, in fact, raised on appeal. The
circuit court also agreed with the State that Mr.
Upshaw's initial pro se postconviction petition
filed on February 14, 2003, was untimely because the court
was "not sure if the explanation offered in terms of the
lockdown actually sufficiently mitigate[d] the untimeliness
16 The circuit court granted the State's motion to
dismiss Mr. Upshaw's postconviction petition on April 20,
2015, and Mr. Upshaw timely filed his notice of appeal that
same day. Accordingly, this court has jurisdiction pursuant
to article VI, section 6, of the Illinois Constitution (Ill.
Const. 1970, art. VI, § 6) and Illinois Supreme Court
Rules 606 and 651, governing criminal appeals and appeals
from final judgments in postconviction proceedings (Ill.
S.Ct. R. 606 (eff. Dec. 11, 2014); R. 651(a) (eff. Feb. 6,
18 In noncapital cases, postconviction proceedings have three
possible stages. People v. Tate, 2012 IL 112214,
¶ 9. A petition may only be dismissed at the first stage
if it is frivolous or patently without merit. People v.
Hodges, 234 Ill.2d 1, 10 (2009). If a petition advances
to the second stage, the stage at which Mr. Upshaw's
petition was dismissed, counsel may be appointed to an
indigent petitioner (725 ILCS 5/122-4 (West 2000)), the State
enters the process as the respondent (725 ILCS 5/122-5 (West
2000)), and the State may move to dismiss the petition
(People v. Gerow, 388 Ill.App.3d 524, 526 (2009)).
At the second stage, "the circuit court must determine
whether the petition and any accompanying documentation make
a substantial showing of a constitutional violation."
(Internal quotation marks omitted.) Tate, 2012 IL
112214, ¶ 10. "If no such showing is made, the
petition is dismissed." Id. But if a motion to
dismiss is denied, the State must file an answer to the
petition (Gerow, 388 Ill.App.3d at 526-27), and if
the petitioner sets forth a substantial showing of a
constitutional violation, "the petition is advanced to
the third stage, where the circuit court conducts an
evidentiary hearing" (Tate, 2012 IL 112214,
¶ 10). "At the second stage, 'all well-pleaded
facts that are not positively rebutted by the trial record
are to be taken as true.' " Gerow, 388
Ill.App.3d at 526 (quoting People v. Pendleton, 223
Ill.2d 458, 473 (2006)). Because Mr. Upshaw's petition
was dismissed at the second stage, we review the dismissal
de novo. Pendleton, 223 Ill.2d at 473.
19 We first address the timeliness of Mr. Upshaw's
petition. Because we find that Mr. Upshaw has made a
substantial showing that the untimely filing of his petition
was not due to his culpable negligence, we then address the
merits of each of the substantive claims that he raises on
20 A. Timeliness of the Petition
21 During the relevant time period, the Post-Conviction Act
provided that "[n]o proceedings under this Article shall
be commenced more than 6 months after the denial of a
petition for leave to appeal *** unless the petitioner
alleges facts showing that the delay was not due to his or
her culpable negligence." 725 ILCS 5/122-1(c) (West
2000). Thus, we have held that "[a] petition that is
untimely will not be dismissed if the petitioner alleges
facts showing that the delay in filing the petition was not
due to his or her culpable negligence." People v.
Johnson, 2017 IL 120310, ¶ 26. According to our
supreme court, "culpably negligent" means "
'something greater than ordinary negligence and is akin
to recklessness.' " Id. (quoting People
v. Boclair, 202 Ill.2d 89, 108 (2002)). Our supreme
court has recognized that this definition "comports with
[its] long- held view that the Act in general must be
liberally construed to afford a convicted person an
opportunity to present questions of deprivation of
constitutional rights." (Internal quotation marks
omitted.) People v. Rissley, 206 Ill.2d 403, 420-21
22 The Illinois Supreme Court denied Mr. Upshaw's
petition for leave to appeal (PLA) to the supreme court from
his direct appeal in this court on December 5, 2001, making
his postconviction petition due by June 5, 2002. Mr. Upshaw
did not mail his initial pro se postconviction
petition until February 14, 2003. The date of mailing by the
prisoner is considered to be the date of filing. See
People v. Saunders, 261 Ill.App.3d 700, 702-03
(1994). It is this delay-from June 5, 2002, until February
14, 2003-that the parties agree is at issue here.
23 In his original and supplemental petitions, Mr. Upshaw
provides two reasons why he is not culpably negligent for
this late filing. First, Mr. Upshaw alleges that his unit at
the Stateville, where he was then incarcerated, was on
lockdown for 179 days between the time that his PLA was
denied by the Illinois Supreme Court and the time that he
filed his postconviction petition. Second, ...