No. 1-15-2425

Opinion filed June 30, 2016

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 95 CR 24818 ) ANTHONY D. LEE, SR., ) The Honorable ) Michele M. Pittman, Defendant-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 Defendant Anthony Lee was convicted after a bench trial of five counts

of aggravated criminal sexual assault and one count of aggravated kidnapping,

and sentenced to a total of 100 years in the Illinois Department of Corrections No. 1-15-2425

(IDOC). Defendant’s convictions and sentences were affirmed on direct appeal.

People v. Lee, No. 1-96-3069 (1998) (unpublished order under Supreme Court

Rule 23).

¶2 On this postconviction appeal, defendant claims that the trial court erred

in dismissing his successive petition at the second stage, because he made a

substantial showing of ineffective assistance of trial counsel. Defendant

included supporting affidavits from five affiants with his petition, and he claims

that his counsel was ineffective for failing to call these individuals at trial.

¶3 Defendant’s postconviction proceedings have been the subject of two

separate supervisory orders from the Illinois Supreme Court directing this court

to vacate our prior orders affirming dismissal and to reconsider defendant’s

petition and supporting affidavits. Thus, we have quoted below the supporting

affidavits in full. However, even after considering carefully both our supreme

court’s orders and the petition and supporting affidavits, we find that we have

no choice but to affirm this dismissal.

¶4 BACKGROUND

¶5 When we affirmed defendant’s convictions and sentences on direct

appeal, we set forth the underlying facts of the case. Thus we will repeat here

only what is necessary to understand the issues on this appeal.

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No. 1-15-2425

¶6 At trial, the victim, L.M., testified that on April 15, 1995, at around 1

a.m. she was walking on State Street in Calumet City to her sister’s home, when

two men in a vehicle pulled up, grabbed her and forced her into their vehicle.

They then drove to Indiana, where defendant entered either a “liquor store or

lounge,” while codefendant, Burlmon Manley, remained in the vehicle and

touched the victim against her will, specifically, touching her breast and vaginal

area through her clothing and kissing her face and neck. At some point,

codefendant told the victim where he worked and that he had “just left a club in

Hammond.” After defendant returned to the vehicle, they drove to an unknown

location where defendant ripped off the victim’s clothing, struck her head and

face repeatedly with his fist and forced her to perform oral sex on codefendant.

The victim was crying hysterically, and defendant became angry and instructed

codefendant to “get the nine” from the vehicle’s trunk. Codefendant returned

with a gun, gave the gun to defendant, and then drove to another location.

Defendant held the gun to the victim’s head while he forced her to have vaginal

intercourse and to perform oral sex on him. When the victim realized that

defendant had released his grip on the gun, she struggled with defendant and

managed to escape from the vehicle. She ran to a nearby house and defendant

drove away.

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No. 1-15-2425

¶7 Teresa Baragas testified that at 3 a.m., she was awakened by the victim

banging on her door. Baragas and her aunt opened the door to find the victim

who was naked, with black eyes and a “marked up and scarred” face, screaming

that she had been raped. They called the police and the victim was transported

to the hospital in an ambulance.

¶8 Several months later, the victim identified defendant in a lineup.

¶9 Defendant testified that the victim voluntarily entered his vehicle, that

she waited while he and codefendant entered a liquor store or lounge together,

and that the three of them drank alcohol and smoked marijuana together.

Defendant cussed at her after she stamped out a cigarette on the floor of his

vehicle. She then pushed his arm, causing him to spill his drink, and he struck

her. After the two of them exchanged blows, he exited the vehicle and sat on the

curb, drinking beer, while the victim and codefendant remained in the vehicle.

After close to an hour, defendant returned to the vehicle and drove to another

location, while the victim and codefendant had sex in the backseat. When they

stopped, codefendant exited the vehicle; and the victim, who was completely

naked, hit defendant in the eye and then jumped out of the vehicle, stating “you

bastards are going to pay for this.” At trial, defendant denied having any sex or

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No. 1-15-2425

any sexual contact with the victim, 1 and he denied that either he or codefendant

had a gun that night.

¶ 10 At the end of the bench trial, the trial court stated that it found the victim

“very credible” and found defendant’s testimony “incredible.” The trial court

further stated that the photograph of the victim’s injures “shows that this was

not a consensual act.” The trial court found defendant guilty of five counts of

aggravated criminal sexual assault and one count of kidnapping and, after

considering factors in aggravation and mitigation, sentenced defendant to a total

of 100 years in IDOC. This total included an extended term sentence of 60

years on three counts of aggravated criminal sexual assault, a consecutive

extended term sentence of 40 years on the other two counts of aggravated

criminal sexual assault under an accountability theory for codefendant’s sex

with the victim, and a concurrent sentence of 15 years for aggravated

kidnapping. Defendant did not raise an ineffective assistance claim on direct

appeal and his convictions and sentences were affirmed on direct appeal.

People v. Lee, No. 1-96-3069 (1998) (unpublished order under Supreme Court

Rule 23).

1 Giving defendant every benefit of the doubt on this appeal, we do not consider defendant’s pretrial statement which defendant has consistently denied making. In the statement, he stated that he had consensual oral sex with the victim. 5

No. 1-15-2425

¶ 11 On December 23 1998, after this court’s decision on direct appeal and our

supreme court’s decision to deny leave to file an appeal, defendant filed a pro

se postconviction petition, alleging, among other claims, that his trial counsel

was ineffective for failing to interview or call eight witnesses after defendant

had informed counsel about them. These witnesses included Brian and Gayland

Massenberg; Charlene Parker; and Philip Elston. Defendant’s 1998 petition

included affidavits from these witnesses, and defendant alleged that they could

have exonerated him at trial.

¶ 12 The 1998 petition advanced to the second stage, and defendant’s

appointed counsel filed a supplemental petition on June 25, 2001. On June 10,

2002, the trial court granted the State’s motion to dismiss on the ground that the

petition was untimely. On March 5, 2004, we reversed and remanded, in order

to permit counsel to comply with Illinois Supreme Court Rule 651(c) (eff. Dec.

1, 1984). People v. Lee, No. 1-02-1707 (2004) (unpublished order under

Supreme Court Rule 23). After the case was remanded, the trial court again

dismissed it on March 30, 2007, “based on res judicata and untimeliness.” On

appeal, we affirmed the dismissal as untimely. People v. Lee, No. 1-07-0914

(2008) (unpublished order under Supreme Court Rule 23). On May 29, 2009,

the Illinois Supreme Court issued a supervisory order that directed this court to

vacate the portion of our 2008 order, which found the petition untimely, and to

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No. 1-15-2425

review the trial court’s dismissal based on res judicata. People v. Lee, No.

108250 (Ill. May 28, 2009) (supervisory order).

¶ 13 This court then withdrew our 2008 order, but we again affirmed the

dismissal of defendant’s petition, which defendant had originally filed in 1998.

People v. Lee, No. 1-07-0914 (2009) (unpublished order under Supreme Court

Rule 23). We observed that defendant had raised claims of ineffective

assistance of trial counsel, and we found these claims forfeited because they

related to information known to defendant before he filed his direct appeal, and

thus these claims could and should have been raised at that time. Lee, No. 1-07­

0914, slip order at *3. Defendant filed both a petition for rehearing and a

petition for leave to appeal, which were both denied.

¶ 14 In June 2010, defendant filed a pro se motion for leave to file a

successive postconviction petition, in which he alleged that trial counsel was

ineffective for failing to interview or call as witnesses: Phillip Elston, Charlene

Parker, and Brian and Gayland Massenburg. Defendant alleged that these

witnesses would have testified that the victim entered his vehicle willingly and

remained there voluntarily with him and codefendant. Defendant attached the

same affidavits that he had originally attached to his 1998 petition, with the

addition of a second affidavit from Philip Elston, in which Elston clarified that

he had observed defendant on the date of the offense and that he was never

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No. 1-15-2425

contacted by defendant’s attorney, although he had written counsel concerning

his willingness to testify.

¶ 15 Defendant claimed that he should be granted leave to file a successive

petition, even though his ineffective assistance claim had been raised in his first

petition. First, defendant argued that the initial postconviction proceedings were

flawed because his claim failed to receive substantive review during that time,

due to the allegedly erroneous determinations by the appellate and trial courts

that the claim was procedurally barred. Second, defendant argued that his claim

was not procedurally forfeited, because the affidavits supporting his claim were

not part of the record on the direct appeal. On August 13, 2010, the trial court

denied defendant leave to file his successive petition, on the ground that

defendant failed to satisfy the cause and prejudice test.

¶ 16 On September 18, 2012, this court affirmed the trial court’s order

denying defendant leave to file a successive petition. This court found that,

“even if we were to decide in defendant’s favor as to cause, he has not shown

prejudice” to justify the filing of a successive petition.” People v. Lee,

, ¶ 20. We explained that, “[e]ven if these four witnesses

had testified at trial consistent with their affidavits, there is no reasonable

probability that the outcome of the proceeding would have been different.” Lee,

, ¶ 25.

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No. 1-15-2425

¶ 17 Reviewing the evidence at trial, we stated that, at trial, the victim

“testified that defendant and codefendant abducted her off the street, drove her

to various locations, sexually assaulted her, threatened her with a gun, and beat

her before she was able to escape and run to a nearby house for help. Teresa

Baragas, a disinterested witness, testified that about 3 a.m. on the morning in

question, she woke to banging on her front door. She answered the door to

L.M., who was naked, had black eyes and other marks on her face, and was

screaming that she had been raped.” Lee,

, ¶ 25.

¶ 18 After reviewing the evidence at trial, we reviewed the affidavits. With

respect to the Massenburg brothers’ affidavits, we stated that they “reference

the date following the date in question, and moreover, [they] simply relate that

they saw two men in a car matching the description of defendant’s car talking to

a white woman, who then ‘got into the rear of the car.’ Even if the affidavits

referenced the correct date, the brothers’ proposed testimony does not establish

that the men in the car were defendant and codefendant, that the woman who

‘got into’ the car was L.M., or that L.M. was not forced into defendant’s car

that night.” Lee,

, ¶ 26.

¶ 19 With respect to Parker, we observed that she “averred in her affidavit that

between 1:00 and 1:30 a.m. on the date in question, she took a photograph of

defendant, codefendant and a third man in a lounge in Hammond, Indiana.”

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No. 1-15-2425

Lee,

, ¶ 7. We concluded that “Parker’s proposed

testimony is unhelpful to defendant, as the photograph she states is attached

does not appear in the record. Additionally, L.M. testified that codefendant told

her he had just left a club in Hammond. Therefore, Parker’s proposed testimony

could support L.M.’s version of events, as opposed to defendant’s.” Lee,

, ¶ 26.

¶ 20 With respect to Ellston, we observed that “Ellston’s affidavit relates to

events that occurred around 3:30 or 4:00 a.m., a time period after Teresa

Baragas placed L.M. at her front door, naked and beaten. Accordingly, his

proposed testimony would not have helped defendant’s cause.” Lee,

, ¶ 26.

¶ 21 Thus, we concluded that defendant failed to show that “he suffered

prejudice from trial counsel’s failure to call” these four witnesses at trial, and

we affirmed the trial court’s denial of defendant’s motion for leave to file a

successive petition. Lee,

, ¶ 27.

¶ 22 On May 29, 2013, 2 the Illinois Supreme Court denied defendant’s petition

for leave to appeal. However, in the same order, our supreme court stated:

2 The order stated that, “[o]n the twenty-ninth day of May 2013, the Supreme Court entered the following judgment,” and the Clerk of the Supreme Court stated that: “I have hereunto subscribed my name and affixed the Seal of said Court, this third day of July, 2013.” 10

No. 1-15-2425

“In the exercise of this Court’s supervisory authority, the Appellate

Court, First District, is directed to vacate its judgment in People v. Lee,

case No. 1-10-2592 *** (09/18/12). The Appellate Court is directed to

remand the matter to the circuit court with directions that the circuit court

permit defendant to file a successive pro se petition for post-conviction

relief alleging the ineffective assistance of trial counsel, at which point

the circuit court may engage in first stage review. This court expresses no

opinion regarding the ultimate merits of the claim or whether defendant

can state the gist of a constitutional claim.” People v. Lee, No. 115020

(Ill. May 29, 2013) (supervisory order).

¶ 23 On July 12, 2013, this court entered an order stating:

“Upon the Illinois Supreme Court’s supervisory order of May 29,

2013, this court vacates its judgment in People v. Lee, No. 1-10-2592

(filed September 18, 2012), and remands the matter to the circuit court.

The circuit court is directed to permit petitioner to file a successive

pro se petition for post-conviction relief alleging ineffective assistance of

trial counsel, at which point the circuit court may engage in first stage

review.”

¶ 24 On November 22, 2013, the trial court granted defendant leave to file a

successive postconviction petition; and on August 1, 2014, his counsel received

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No. 1-15-2425

leave to file an amended petition, which was filed on September 26, 2014. The

petition contained the following six affidavits from five different affiants, which

we quote in full.

¶ 25 Brain Massenburg’s affidavit, dated December 28, 1995, stated:

“I remember the incident on or about April 16, 1995, at approximately

12:30 A.M.- 1:00 A.M., my brother’s car broke down on us three blocks

from my brother Greg’s house at [a street address] in Calumet City.

We were pushing the car on State Street, when two men in a blue

Cadillac asked if we needed some help; we said no.

They turned the car around and started talking to a white woman and

she then got into the rear of the car, and they drove off going east on

State Street.”

¶ 26 Gayland Massenburg’s affidavit, also dated December 28, 1998, stated in

full:

“I recall the incident that happened on or about April 16, 1995, at

approximately 12:30 A.M.–1:00 A.M.; me (Gayland) and Brian were

pushing my vehicle on State Street going to [a street address] in Calumet

City.

Two men in a blue [C]adillac stopped to see if we needed help; we

told them no.

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No. 1-15-2425

They then stopped and talked to a white woman that was walking on

east on State Street.

The lady got into the rear of the car and they drove off going east on

State Street.”

¶ 27 Charlene Parker’s affidavit, dated December 12, 1995, stated in full:

“I was at Dad’s Lounge and Package Goods in Hammond, Indiana on

April 15, 1995 and that I took the photo attached to this affidavit on that

night.

The attached picture show’s [sic] Anthony Lee, Berlman Manley, and

Keith Adams, I took this picture of the three of them around 1:00 a.m.–

1:30 a.m. in the lounge part of Dad’s Lounge.

I will testify in open court under oath that all three of these gentlemen

were in Dad’s Lounge at the same time on the night of April 15, 1995.”

Although Parker’s affidavit states that a photograph was attached, no

photograph was attached to the exhibit in the amended petition.

¶ 28 Phillip Elston swore out two affidavits. His first affidavit, dated October

2, 1995, stated in full:

“I was driving pass [sic] Merrill Park when I notice Anthony Lee’s car

between 3:30-4:00 a.m.;

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No. 1-15-2425

Anthony Lee was sitting on a curb, 3’-4’ away from his car, drinking

beer;

I noticed a man and a woman entering the rear door of Anthony Lee’s

car;

Anthony then walked up to my car with three (3) beers and got in;

I asked him what was going on, and he replied, ‘His friend Jr. pulled

this female.’; 3

I then asked Anthony to ride with me to get a pack of cigarettes, and

we proceeded to a store;

When we returned to Anthony’s car, Anthony got into his car and

drove north, and I drove south;

I make this affidavit of my personal knowledge.”

¶ 29 Elston’s second affidavit, dated August 23, 2008, stated in full:

“That, on October 2, 1995, I prepared and signed a[n] affidavit

concerning a[n] incident that I witnessed at Merrill Park on April 15/16,

1995. When I was preparing the affidavit I was in a rush to get the

affidavit out and forgot to put the date of the incident on the affidavit. I

put the 15/16, because of the time change and that it was after 12am [sic]

3 This is the punctuation in the affidavit. 14

No. 1-15-2425

on the 15th which would have made it the 16th day of April because it

was 3:30 to 4am [sic] in the morning.

Also copies of my affidavit was sent to Anthony Lee Sr. and his

attorney [name] at [counsel’s address], and I also wrote him a letter

stating that I would not have a problem testifying on Mr. Lee’s behalf. I

was never contacted by attorney [name] after I sent him the affidavit &

letter.

I hope that this second affidavit will clear up any concerns that may

have arise[n] from my first affidavit and the fact that I forgot to put the

date of the incident on that affidavit. If needed I am willingly to testify at

any trial or hearing concerning the incident that Anthony Lee Sr., was

involved in back on April 15/16, 1995.

I make this affidavit of my own personal knowledge.”

¶ 30 Gail Pinkston’s affidavit, dated October 2, 1995, stated in full:

“On August 4, 1995, I received and accepted a collect call from

Burrell Manny, 4 who was in jail in Memphis Tenn.;

Burrell stated in that conversation to me about the incident that

happened in April, 1995 regarding some white female;

4 Codefendant’s name is Burlmon Manley. 15

No. 1-15-2425

Burrell stated further that he had sex with that white female in the

back seat of Anthony’s car, and that Anthony was no where around

during that sexual encounter with that white female;

Burrell made the statement to me, ‘that if he (Burrell) goes down on

this case that he would take Anthony down with him.’

I make this affidavit of my personal knowledge and conversation with

Burrell Manny.”

¶ 31 On January 9, 2015, the State filed a motion to dismiss, arguing that

defendant was not entitled to a third-stage evidentiary hearing for several

reasons including that he had failed to file a verification affidavit. In response,

on March 6, 2015, defendant moved for leave to file a verification affidavit,

which the trial court granted. Defendant’s verification affidavit, dated January

28, 2015, stated that defendant verified that the statements and facts set forth in

the amended successive petition were true and correct.

¶ 32 On June 12, 2015, the trial court heard argument from both sides.

Although the Supreme Court’s and appellate court’s orders had stated that the

matter was remanded for first-stage review, both attorneys during argument

indicated that the matter was then under second-stage review and that the issue

was whether the case would proceed to a third-stage evidentiary hearing.

Similarly, at the conclusion of argument, the trial court stated that “we are at the

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No. 1-15-2425

second stage.” The trial court then continued the matter to permit the court

“time to review everything.”

¶ 33 The trial court then granted the State’s motion to dismiss on August 7,

2015, and it is this decision that we are now asked to review.

¶ 34 The trial court stressed that it was reviewing defendant’s ineffectiveness

claim on the merits, stating: “I want the record to be clear that this issue is being

decided on the merits.” The trial court then concluded that there was no

“reasonable probability that the result of the proceedings would have been

different than the results of the proceedings that were had in this matter.” As a

result, the trial court found that defendant failed to show that he suffered any

prejudice from the trial counsel’s alleged failure to call these witnesses.

Without a showing of prejudice, the trial court found that defendant could not

succeed on his ineffectiveness claim.

¶ 35 In reaching this conclusion, the trial court reviewed the affidavits

included with defendant’s petition:

“There were four witness affidavits that were submitted with regards

to witnesses, plus one rather, who– Four in particular that defense

counsel did not call at trial. The first two are Brian and Galin

Massenberg. Their affidavits have been reviewed by this Court. They

state in their affidavits, they indicate a date, following the date in

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No. 1-15-2425

question which is April 16th of 1995. But more so regardless of the date,

the Court finds in their affidavit[s] they never established who the men in

the car, who they were, who they saw talking to as they put it a white

woman who got into the rear of the car. The affidavits do not establish

that it is the Defendant Mr. Lee or his co-defendant, or that the woman

was in fact the victim in this case. I will initial her name L.M. Or their

affidavits also don’t establish that she was still not forced into their car.

The next affidavit is of Charlene Parker. I have reviewed her affidavit.

She references being in Dad’s Lounge in Hammond, Indiana at a

particular time. The complainant, L.M., in this matter testified that the

co-defendant told her that he had just left a club in Hammond. Attached

to Charlene Parker’s affidavit she mentions a photograph or a picture,

and it is not attached to her affidavit.

The Court in reviewing the record [sic] clearly consent was the

defense in this case. Looking at the time that she is stating that she saw

the Defendant, or looking at the place that she is saying she saw the

Defendant, it seems as if it’s a[n] alibi that she is giving, saying he could

not have been there. But again there is no picture attached or anything to

show of who the people are in the photo that she is speaking of.

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No. 1-15-2425

With regards to Phillip Elston, he submits two affiavit[s]; one October

2nd of 1995. He references no date referred in what he saw on the date in

question. Thirteen years later, August 23rd of 2008, he then references

that he saw the Defendant between 3:30 and 4:00 a.m. on April 15/16,

1995. He is correcting his prior affidavit that he indicates he was in a

rush to sign back [in] October 2nd of 1995. And August 23rd of 2008, he

indicates that he is correcting it, and he recalls it was April 15/16, 1995.

And it’s at 3:30 or 4:00 o’clock in the morning. He says he saw the

Defendant at Merrill Park, or around Merill Park at this time. He

indicates that he sent a copy of his affidavit to [trial counsel]. And he

wrote him a letter stating that he would not have had a problem testifying

on Mr. Lee’s behalf. This time and of course looking at his affidavit, this

is the time where it’s after the incident in question and when the

independent witness Teresa Baracus, places the victim at her front door,

knocking on her door, indicating that she—At that time the witness

indicated that she was naked and she could visually see that she had been

beaten. This is after the incident that Mr. Elston is stating in his affidavit

that he saw the Defendant. It’s at 3:30 or 4:00 o’clock in the morning.

Gail Pinkston has submitted an affidavit as well. She indicated she

had a conversation with Burell Manny. The co-defendant in this matter is

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No. 1-15-2425

Burlmon, B-u-r-l-m-o-n, Manley, M-a-n-l-e-y. She indicates that this

person told her that if he goes down on this case, that he would take

Anthony down. [Defendant] has submitted this affidavit. The record

shows that, the Defendant, Mr. Lee was arrested[,] I see[,] July 27th of

1995, and the co-defendant Mr. Manley was out to warrant at that time.”

¶ 36 Although the record on appeal does not contain a written order entered by

the trial court dismissing defendant’s petition, the record does contains a

“Criminal Disposition Sheet,” dated August 7, 2015, which states “State’s

Motion to Dismiss Defendant’s Post Conviction Petition—Granted[.] Petition

Dismissed[.] Clerk to notify D[.] Off Call[.]” The record also contains a half-

sheet entry for August 7, 2015, which states: “State’s mtn to dismiss def’s post

conviction petition-granted, petition dismissed, clerk to notify def. Off call.”

¶ 37 On August 27, 2015, defendant filed a notice of appeal, appealing the

trial court’s August 7, 2015, second-stage dismissal of his successive

postconviction petition, and this appeal followed.

¶ 38 ANALYSIS

¶ 39 On this postconviction appeal, defendant claims that the trial court

erred in dismissing his successive petition at the second stage, because he made

a substantial showing of ineffective assistance of trial counsel. Defendant

included supporting affidavits from five affiants with his petition, and he claims

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No. 1-15-2425

that his counsel was ineffective for failing to call these individuals at trial. For

the following reasons, we affirm.

¶ 40 I. Stages of a Postconviction Petition

¶ 41 This appeal is taken pursuant to the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122-1 et seq. (West 2012)), which provides a statutory remedy for

criminal defendants who claim their constitutional rights were violated at trial.

People v. Edwards,

. The Act is not intended to be a

substitute for a direct appeal; instead, it is a collateral proceeding which attacks

a final judgment. Edwards,

.

¶ 42 The Act provides for three stages of review by the trial court. People v.

Domagla,

. At the first stage, the trial court may

summarily dismiss a petition that is frivolous or patently without merit. 725

ILCS 5/122-2.1(a)(2) (West 2012); Domagala,

.

¶ 43 However, this appeal involves a successive petition and, for a successive

petition to even be filed, the trial court must first determine whether the petition

(1) states a colorable claim of actual innocence (Edwards,

) or (2) establishes cause and prejudice (People v. Smith,

). This standard is higher than the normal first-stage “frivolous or patently

without merit” standard applied to initial petitions. Edwards,

; Smith,

(“the cause-and-prejudice test for a

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No. 1-15-2425

successive petition involves a higher standard than the first-stage frivolous or

patently without merit standard that is set forth in section 122-2.1(a)(2) of the

Act”).

¶ 44 Since a filed successive petition has already satisfied a higher standard,

the first stage is rendered unnecessary and the successive petition is docketed

directly for second-stage proceedings. See People v. Saunders,

(with a successive petition, the initial issue before the trial court is

whether it “should be docketed for second-stage proceedings”); People v.

Wrice,

(“reversing the trial court’s order denying

defendant leave to file his second successive postconviction petition and

remand[ing] to the trial court for *** second-stage postconviction

proceedings”); People v. Jackson,

(“When a

defendant is granted leave to file a successive postconviction petition, the

petition is effectively advanced to the second stage of postconviction

proccedings.”); People v. Almodovar,

(reversing

the trial court’s denial of the defendant’s motion for leave to file a successive

petition and remanding for second-stage proceedings).

¶ 45 If the court permits a successive petition to be filed or does not dismiss

an initial petition at the first stage, the petition then advances to the second

stage, where counsel is appointed if a defendant is indigent. 725 ILCS 5/122-4

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No. 1-15-2425

(West 2012); Domagala,

; Wrice,

(after reversing the trial court’s denial of leave to file a successive petition, the

supreme court remanded “for appointment of postconviction counsel and

second-stage postconviction proceedings”). After counsel determines whether

to amend the petition, the State may file either a motion to dismiss or an answer

to the petition. 725 ILCS 5/122-5 (West 2012); Domagala,

. At the second stage, the trial court must determine “whether the petition

and any accompanying documentation make a substantial showing of a

constitutional violation.” People v. Edwards,

(2001). In the

case at bar, the petition was dismissed at the second stage.

¶ 46 “The second stage of postconviction review tests the legal sufficiency of

the petition. Unless the petitioner’s allegations are affirmatively refuted by the

record, they are taken as true, and the question is whether those allegations

establish or ‘show’ a constitutional violation. In other words, the ‘substantial

showing’ of a constitutional violation that must be made at the second stage

[citation] is a measure of the legal sufficiency of the petition’s well-pled

allegations of a constitutional violation, which if proven at an evidentiary

hearing, would entitle petitioner to relief.” (Emphasis in original.) Domagla,

.

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No. 1-15-2425

¶ 47 Both the second stage and a motion for leave to file a successive petition

require a review of “the petition and any accompanying documentation.”

Edwards,

(second-stage review); Edwards, 2012 IL 11171,

¶ 24 (motion for leave to file a successive petition). For the second stage to not

be superfluous for a successive petition, it must be that the “substantial

showing” required at the second stage is greater than the “probability” required

for a successive petition to receive leave for filing. Smith,

(expressing a desire not to “render the entire three-stage postconviction process

superfluous”).

¶ 48 If the defendant makes a “substantial showing” at the second stage, then

the petition advances to a third-stage evidentiary hearing. Domagala,

. At a third-stage evidentiary hearing, the trial court acts as

factfinder determining witness credibility and the weight to be given particular

testimony and evidence and resolving any evidentiary conflicts. Domagala,

. This third stage is the same for both initial and

successive petitions. Cf. Smith,

(“The legislature clearly

intended for further proceedings on successive postconviction petitions.”). It is

this third-stage evidentiary hearing, which defendant is seeking in the case at

bar.

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No. 1-15-2425

¶ 49 II. Standard of Review

¶ 50 As we noted above, defendant’s petition was dismissed at the second

stage. People v. Pendleton,

(2006) (second-stage dismissals

are reviewed de novo). When our review is limited to documentary materials, as

it is at the second stage, then our review is generally de novo. Townsend v.

Sears, Roebuck & Co.,

(2007) (“Where the circuit court

does not hear testimony and bases its decision on documentary evidence, the

rationale underlying a deferential standard of review is inapplicable and review

is de novo.”); Dowling v. Chicago Options Associates, Inc.,

(2007) (where the trial court “did not conduct an evidentiary hearing” or “make

any findings of fact,” and “relied on the parties’ oral argument and the record,”

“we review the court’s ruling on this issue de novo”).

¶ 51 Thus, we apply a de novo review to defendant’s claim. De novo

consideration means that we perform the same analysis that a trial judge would

perform. In re N.H.,

(citing Khan v. BDO

Seidman, LLP,

(2011)).

¶ 52 III. Ineffective Assistance of Counsel

¶ 53 Defendant claims that the trial court erred in dismissing his successive

petition at the second stage, because he made a substantial showing of

ineffective assistance of trial counsel.

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No. 1-15-2425

¶ 54 Every Illinois defendant has a constitutional right to the effective

assistance of counsel under the sixth amendment to the United States

Constitution and under article I, section 8 of the Illinois Constitution. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Domagala,

. Claims of ineffective assistance are judged against the

standard set forth in Strickland v. Washington,

(1984). Domagala,

(citing People v. Albanese,

(1984)

(adopting Strickland for Illinois)). To prevail on a claim of ineffective

assistance, a defendant must show both: (1) that counsel’s performance was

deficient; and (2) that this deficient performance prejudiced defendant.

Domagala,

(citing Strickland,

).

¶ 55 To establish the first prong, that counsel’s performance was deficient, a

defendant must show “that counsel’s performance was objectively unreasonable

under prevailing professional norms.” Domagala,

. To

establish the second prong, that this deficient performance prejudiced the

defendant, the defendant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different. Domagala,

(citing Strickland,

). “A reasonable probability that the result would have been different is a

probability sufficient to undermine confidence in the outcome”–or put another

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No. 1-15-2425

way, that counsel’s deficient performance rendered the result of the trial

unreliable or fundamentally unfair. People v. Colon,

(2007); People v. Evans,

(2004).

¶ 56 Although the Strickland test is a two-prong test, our analysis may

proceed in any order. Since a defendant must satisfy both prongs of the

Strickland test in order to prevail, a trial court may dismiss the claim if either

prong is missing. People v. Flores,

(1992). Thus, if a court

finds that defendant was not prejudiced by the alleged error, it may dismiss on

that basis alone without further analysis. People v. Graham,

(2003); People v. Albanese,

(1984).

¶ 57 IV. No Prejudice

¶ 58 In the case at bar, we agree with the trial court, and find that there was no

reasonable probability that, but for counsel’s allegedly unprofessional errors,

the result of the proceeding would have been different. See Domagala,

(citing Strickland,

).

¶ 59 In the case at bar, there was no issue about identity. The dispute was

about what exactly happened. These issues generated a credibility dispute

between defendant and the victim, resulting in a “he said/she said” case. The

victim’s trial testimony was corroborated by: (1) trial testimony from Teresa

Barags who described the victim’s immediate outcry to total strangers, and the

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No. 1-15-2425

victim’s beaten and naked appearance; (2) photographs of the victim’s injuries,

which were inconsistent with consent; and (3) the victim’s prior lineup

identification of defendant. After listening to the testimony and reviewing the

evidence at a bench trial, the trial court found the victim “very credible” and

defendant “incredible.”

¶ 60 On this appeal, defendant argues that his postconviction affidavits make a

substantial showing that there was a reasonable probability that the outcome of

his trial would have been different if these affiants had been called at trial. Like

the court below, we cannot agree.

¶ 61 Even assuming that the affiants would testify at an evidentiary hearing

and that they would testify to what is stated in their affidavits, we cannot find a

reasonable probability that the result would have been different. We observe

that a different panel of this court previously reached the same conclusion, as

did the court below. Lee,

, ¶ 25 (“Even if these

four 5 witnesses had testified at trial consistent with their affidavits, there is no

reasonable probability that the outcome of the proceedings would have been

different.”). However, we make our own independent assessment here, since

our review is de novo. Pendleton,

(second-stage dismissals are

reviewed de novo). 5 Defendant has added the affidavit of Gail Pinkston, which now brings the number of affiants to five. 28

No. 1-15-2425

¶ 62 First, the Massenburg brothers’ affidavits aver that they observed two men

in a blue Cadillac on State Street in Calumet City between 12:30 and 1 a.m. on

April 16, 1995; that these two men started “talking to a white woman”; that she

entered the backseat of the Cadillac; and that they drove off. While the

description of the vehicle matches defendant’s vehicle, the Massenburgs’

affidavits state that they made these observations on April 16, 1995, which is

the day after the date of the offense. Even if we were to assume that they meant

the correct offense date, and that they would testify in accord with their

affidavits, and that they would be found to be completely credible, their

affidavits do not identify the two men as defendant and codefendant or the

woman as the victim. The Massenburgs do not indicate that they knew any of

these three people; and they do not offer any physical description of either the

two men or the woman, except for the fact that she was white. The

Massenburgs also do not state whether the woman was coerced into the vehicle

or whether they were at a vantage point where they could observe whether she

was coerced into the vehicle.

¶ 63 Second, Charlene Parker’s affidavit states that she was at a lounge and

“package goods” store in Hammond, Indiana, on the date in question; that she

took a photograph there “around 1:00 a.m.–1:30 a.m.” of defendant, “Berlman

Manley, and Keith Adams”; and that the photograph is attached. Even if were to

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No. 1-15-2425

assume that “Berlman Manley” was codefendant, Burlmon Manley, the

photograph is not attached, either in the original petition or the petition more

recently supplemented by counsel. In addition, the victim testified that she first

encountered defendant and codefendant around 1 a.m. and that codefendant

informed her that he had “just left a club in Hammond.” Thus, even if we were

to assume that Parker would testify in accord with her affidavit and that she

would be found to be completely credible, her proposed testimony does not

necessarily contradict the victim’s testimony.

¶ 64 Third, similar to Parker’s affidavit, Phillip Elston’s affidavits specifically

identify defendant. While Elston’s first affidavit did not identify the date in

question, his second affidavit identified the date of his observations as the date

of the offense. Thus, we will assume that Elston will testify that, on the date of

the offense, at between 3:30 and 4 a.m., Elston observed defendant sitting on

the curb, near defendant’s vehicle, drinking beer; and that a man and a woman

entered the backseat of defendant’s vehicle; that defendant entered Elston’s

vehicle; that Elston and defendant drove to a store and back; and that defendant

entered his own vehicle and drove away. Elston averred that, when he asked

defendant “what was going on,” defendant replied that: “His friend Jr. pulled

this female.”

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No. 1-15-2425

¶ 65 We do not know what Elston meant by “pulled.” It could mean “coerced.”

However, giving defendant the benefit of the doubt, we will assume for the

purposes of our de novo review that “pulled” does not equal “coerced.”

¶ 66 The main problem with Elston’s affidavits is that his observations occurred

after the offense concluded. The victim in this offense testified that she first

encountered defendant at around 1 a.m., and Teresa Baragas testified that the

victim appeared, naked and beaten, outside Baragas’ door around 3 a.m. Thus,

even if we were to assume that Elston would testify, and that he would testify in

accord with his affidavit, and that he would be found to be completely credible,

his observations of defendant between 3:30 and 4 a.m. occurred after the events

at issue had already concluded.

¶ 67 Lastly, Gail Pinkston’s affidavit states that on August 4, 1995, she received a

telephone call from “Burrell Manny” who was in jail and who stated that in

April 1995 “he had sex with that white female in the back seat” of defendant’s

vehicle, that defendant was “no where around,” and that if he “goes down on

this case that he would take [defendant] down with him.” Even if we were to

assume that “Burell Manny” was codefendant Burlmon Manley, and that

Pinkston would testify in accord with her affidavit and that she would be found

to be completely credible, her proposed testimony contradicts defendant’s trial

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No. 1-15-2425

testimony. Defendant testified at trial that he was driving his vehicle, while

codefendant and the victim had sex in the backseat of it.

¶ 68 Thus, after carefully considering defendant’s affidavits, which we quoted in

full, and even assuming that all the affiants would testify in accord with their

affidavits and that they would all be found to be completely credible by the

factfinder, we still cannot find that defendant suffered prejudice from his trial

counsel’s alleged failure to call these affiants at trial. After considering

defendant’s petition fully on its merits, we cannot find a reasonable probability

that, but for counsel’s allegedly unprofessional errors, the result of the

proceeding would have been different. See Domagala,

.

As a result, we have no choice but to affirm the trial court’s dismissal.

¶ 69 CONCLUSION

¶ 70 In conclusion, we find that that the trial court did not err in dismissing

defendant’s successive petition at the second stage, because his petition did not

make a substantial showing of ineffective assistance of trial counsel. In

reaching this conclusion, we are keenly aware that defendant’s postconviction

proceedings have been the subject of two separate supervisory orders from the

Illinois Supreme Court directing us to vacate our prior orders affirming

dismissal and to reconsider defendant’s petition and supporting affidavits.

However, we have carefully reviewed the supporting affidavits, which

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No. 1-15-2425

defendant included with his petition and which we quoted in full in this opinion,

and we find that we have no choice but to affirm.

¶ 71 Affirmed.

33