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People v. Upshaw

Court of Appeals of Illinois, First District, First Division

October 30, 2017

MICAH UPSHAW, Defendant-Appellant.

         Appeal 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.


          MIKVA, JUSTICE

         ¶ 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.

         ¶ 2 BACKGROUND

         ¶ 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 People v. Upshaw, No. 1-99-4043 (2001) (unpublished order under Supreme Court Rule 23).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 appeal.

          ¶ 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 shooting.

         ¶ 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) (table).

         ¶ 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 testify.

         ¶ 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 issue."

         ¶ 15 JURSIDICTION

         ¶ 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, 2013)).

         ¶ 17 ANALYSIS

         ¶ 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 appeal.

         ¶ 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 (2003).

         ¶ 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, ...

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