THIRD DIVISION January 20, 2021

No. 1-16-1067

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 1137 ) AHMAD SIMMS, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Ellis and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Defendant Ahmad Simms 1 appeals from the denial of his pro se motion for leave to file a

successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2016)). He argues he should be permitted leave to file a successive petition

because he presented an actual innocence claim based on newly discovered evidence. For the

following reasons, we reverse and remand for second stage postconviction proceedings.

¶2 I. BACKGROUND

¶3 On November 27, 1999, the body of Susie Irving was discovered inside her apartment on

the 7000 block of South Michigan Avenue. Dr. Thamrong Chira, Cook County deputy medical

examiner, testified, as an expert in forensic pathology, that he performed an autopsy on Irving

1 We note that defendant also goes by the name Ahmad Sims, as in People v. Sims,

(2004) (table) (unpublished order under Illinois Supreme Court Rule 23). 1-16-1067

and found the cause of death to be a single, contact gunshot wound above her right forehead. Dr.

Chira recovered a bullet from Irving’s head and determined the manner of death to be homicide.

¶4 In January 2000, defendant, along with codefendants, Lino Niles and Curtis King, were

charged, by indictment, with five counts of first degree murder, six counts of home invasion, and

one count each of armed robbery, residential burglary, and possession of burglary tools. Prior to

trial, the State nol-prossed the residential burglary and possession of burglary tools charges.

Defendant and Niles were tried in separate but simultaneous jury trials. Defendant was convicted

of first degree murder, armed robbery, and home invasion. He was sentenced to a total of 60

years’ imprisonment: a 45-year term for first degree murder and two concurrent 15-year terms

for armed robbery and home invasion to be served consecutively to his murder sentence. We

affirmed on direct appeal. People v. Sims,

(2004) (table) (unpublished

order under Illinois Supreme Court Rule 23).

¶5 Prior to trial, defendant filed a motion to suppress evidence, claiming that his statements

to the police were involuntarily made. The trial court denied the motion, finding that defendant

was advised of his rights and there was no credible evidence that the police violated his

constitutional rights.

¶6 Because defendant presents a claim of actual innocence based on an affidavit from Niles

purporting to state that defendant was not involved in the crime, we will, at the appropriate time,

recount in detail the evidence of defendant’s involvement in the offense presented at his jury

trial. At this juncture we provide an overview of the events that led to Irving’s death.

¶7 At trial, the State’s theory of the case was that defendant was guilty of the murder by

accountability. According to the State’s theory of the case, defendant, Niles, and King planned to

burglarize Irving’s apartment. In the afternoon of November 27, 1999, defendant, Niles, and

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King forced their way into Irving’s apartment and shot and killed her. They then removed

various items from the house, including a video cassette recorder (VCR), a coin collection, a

small baseball bat, a small television, a maroon attaché case, a small briefcase containing some

coins, a Christian Brothers brandy bottle containing coins, and a comforter. They later sold some

of the items at an auto shop nearby and left some of the items in the garbage behind the same

auto shop. Many of these items were recovered by police during their investigation, and the

items were identified as belonging to Irving. Defendant also admitted to law enforcement, via a

written statement and a videotaped statement, that he assisted Niles in breaking into and robbing

Irving’s apartment but claimed that Niles was the shooter.

¶8 Evelyn Parks testified that on November 27, 1999, she lived with her 84-year-old sister,

Susie Irving, in an apartment on the 7000 block of South Michigan Avenue in Chicago. On that

day, Parks left the apartment between 11:30 a.m. and noon. When she returned home about 6

p.m., she learned that the apartment had been broken into and Irving had been killed via a

gunshot wound to the head. Items missing from the apartment included a VCR, a coin collection,

a small baseball bat, a small television, a maroon attaché case, a small briefcase containing some

coins, a Christian Brothers brandy bottle containing coins, and a comforter.

¶9 Anthony Hawkins, the nephew of Parks and Irving, testified that he lived in the apartment

above them. He left the building that day about 10:45 a.m. He returned to the apartment about 2

p.m. with his daughter, niece, and nephew, and he saw that the basement door latch was broken.

His niece saw Irving lying on the floor in the apartment. Hawkins saw blood on her head and

noticed that her walker had been tipped over. He then called 911. He also testified that there was

some damage to his own apartment door.

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¶ 10 Chicago police detective Michael Baker testified that he investigated Irving’s murder.

About 3:15 p.m. on November 27, 1999, he was directed to Irving’s address. Upon approaching

the apartment, he noticed some damage to the door. He then saw Irving’s body on the floor and

observed that the apartment was in disarray. He also later observed damage to the basement

door, the second-floor door, and the exterior door to the basement.

¶ 11 About 10:45 p.m. that day, Baker received an anonymous phone call that led him to

search a dumpster and garbage cans on the property of J&B Auto Repair, located just two

buildings away from Irving’s apartment building. Inside the dumpster, Baker found a purple

attaché case, a vinyl case, and a broken Christian Brothers brandy bottle with coins in it. He also

found a comforter and a small baseball bat inside a garbage can. Photographs of these items were

later shown to Parks, who identified them as being taken from her apartment.

¶ 12 Chicago police forensic investigator Thomas Ginnelly testified that he was assigned to

the crime scene at Irving’s apartment building. During a search of the living room for firearms

evidence, he located a cartridge case underneath a couch cushion. The case was from a .25-

caliber gun.

¶ 13 The jury found defendant guilty of first degree murder, armed robbery, and home

invasion. Defendant moved for a new trial, which the trial court denied. The court then sentenced

him to a 45-year term for first degree murder and two concurrent 15-year terms for armed

robbery and home invasion to be served consecutively to his murder sentence.

¶ 14 Defendant filed a direct appeal, arguing that the trial court erred in denying him his right

to confront and cross-examine a witness at trial regarding the witness’s bias or motive for

testifying. This court affirmed his conviction and sentence and directed his mittimus to be

corrected. Sims,

.

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¶ 15 On July 8, 2005, defendant filed a postconviction petition under the Act, which raised

several claims. The trial court determined that the petition was frivolous and patently without

merit and summarily dismissed his petition on August 15, 2005. On appeal, this court affirmed

that order, after granting appointed counsel’s motion for leave to withdraw pursuant to

Pennsylvania v. Finley,

(1987). People v. Simms, No. 1-05-3100 (unpublished

summary order under Illinois Supreme Court Rule 23(c)).

¶ 16 On September 29, 2011, defendant filed a pro se petition for habeas corpus relief. The

trial court denied defendant’s petition on October 6, 2011. This court affirmed, after granting

appointed counsel’s motion for leave to withdraw pursuant to Finley. People v. Simms, No. 1-11-

3528 (2012) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 17 On April 19, 2013, defendant filed a pro se motion for leave to file a successive

postconviction petition, along with an affidavit from Niles. We discuss Niles’s affidavit in detail

below. In the motion, defendant raised numerous claims, including that (1) law enforcement

officers had no legal basis to arrest him, (2) his confession was involuntary, (3) his constitutional

rights were violated when the State unlawfully amended his indictment, (4) he was denied his

right to a fair trial, (5) he was denied effective assistance of counsel, and (6) the trial court

prevented the jury from considering defendant’s defense by instructing the jury to disregard that

evidence.

¶ 18 The trial court addressed each claim individually and denied defendant leave to file the

successive petition, concluding that defendant failed to satisfy the cause-and-prejudice test or to

set forth a colorable claim of actual innocence. Defendant now appeals, arguing the trial court

should have granted him leave to file a successive postconviction petition and that petition

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should advance to second-stage postconviction proceedings because Niles’s affidavit constitutes

newly discovered evidence that states a colorable claim of actual innocence.

¶ 19 As a threshold matter, we note that defendant did not explicitly raise a claim of actual

innocence in his motion for leave to file a successive petition. However, because postconviction

petitions are to be liberally construed and the content of Niles’s affidavit is sufficient to raise a

claim of actual innocence, we will address whether the court erred in denying defendant leave to

file a successive petition. See People v. Pack,

(2007) (stating postconviction

petitions are to be “ ‘liberally construed to afford a convicted person an opportunity to present

questions of deprivation of constitutional rights’ ”) (quoting People v. Correa,

(1985)).

¶ 20 II. ANALYSIS

¶ 21 The Act permits a defendant to collaterally attack a conviction by asserting it resulted

from a “substantial denial” of his constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2016).

However, the Act does not contemplate the filing of successive postconviction petitions. People

v. Edwards,

. As such, “[s]uccessive postconviction petitions are disfavored

under the Act,” and a defendant must first obtain leave of the court under one of two exceptions.

People v. Jones,

. In order to file a successive petition, the

defendant’s petition must satisfy the cause-and-prejudice test or it must state a colorable claim of

actual innocence. People v. Jackson,

, ¶ 19. The latter claim is

permitted because “a wrongful conviction of an innocent person violates due process.” People v.

Williams,

(2009). When a defendant raises a claim of actual innocence

“leave of court should be granted when the petitioner’s supporting documentation raises the

probability that ‘it is more likely than not that no reasonable juror would have convicted him in

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the light of the new evidence.’ ” Edwards,

(quoting Schlup v. Delo,

(1995)). The requirements for establishing a claim of actual innocence are as

follows:

“[T]he defendant must present new, material, noncumulative evidence that is so

conclusive it would probably change the result on retrial. [People v. Washington,

(1996)]. New means the evidence was discovered after trial

and could not have been discovered earlier through the exercise of due diligence.

See [People v. Burrows,

(1996)]. Material means the

evidence is relevant and probative of the petitioner’s innocence. People v. Smith,

(1997). Noncumulative means the evidence adds to what the

jury heard. [People v. Molstad,

(1984)]. And conclusive

means the evidence, when considered along with the trial evidence, would

probably lead to a different result. [People v. Ortiz,

(2009)].” People v. Coleman,

.

To this end, “all well-pleaded facts that are not positively rebutted by the trial record are taken as

true.” People v. Harper,

. We review a trial court’s ruling on a

motion for leave to file a successive postconviction petition de novo. People v. Bailey,

.

¶ 22 Here, defendant claims that he has presented a colorable claim of actual innocence based

on Niles’s affidavit. Defendant argues this affidavit tends to exonerate him in the commission of

these offenses.

¶ 23 We first address whether Niles’s affidavit constitutes new evidence. Niles’s affidavit did

not specifically state why defendant could not have obtained his testimony sooner, nor did

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defendant allege what efforts he had taken to obtain this new account previously. See People v.

Barnslater,

(2007) (concluding that the evidence was not “newly

discovered” because defendant did not show that the victim’s recantation could not have been

obtained earlier). However, as a codefendant, Niles had a “fifth amendment right to avoid self-

incrimination,” and thus, “[n]o amount of diligence could have forced him to violate that right if

he did not choose to do so.” Edwards,

; People v. Molstad,

(1984); Harper,

. We find the affidavit constitutes new

evidence. We also find, and the State does not argue to the contrary, that the affidavit is both

material and noncumulative. Niles’s averments are relevant and also potentially probative of

defendant’s innocence. The evidence is also not cumulative because no one at trial testified that

defendant was not involved in the offenses, which goes to an ultimate issue in the case. See

People v. Ortiz,

(2009) (citing Molstad,

).

¶ 24 Turning to the question of whether Niles’s affidavit is so conclusive it would probably

change the result on retrial, we initially stated that we would rely on our supreme court’s decision

in Sanders,

, and the decision by the United States Supreme Court in Schlup,

. Following our giving of “careful[] consider[ation of] what it means for the evidence to

be “taken as true unless positively rebutted by the record” and for the evidence to “probably lead

to a different result” (People v. Simms,

), we “d[id] not find that

Niles’s affidavit constitutes conclusive evidence that would probably lead to a different result at

trial” (id. ¶ 44).

¶ 25 On September 30, 2020, our supreme court issued a supervisory order directing this court

to vacate our judgment and to “consider the effect of [its] opinion in People v. Robinson, 2020 IL

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123849, on the issue of whether defendant presented a colorable claim of actual innocence based

on the affidavit presented with the motion for leave to file a successive post-conviction petition.”

¶ 26 In Robinson, our supreme court addressed the question of whether the evidence in that case

“was of such conclusive character as would probably change the outcome on retrial.” Robinson,

. Our supreme court began noting that the lower courts “erred in applying an

incorrect standard when considering the sufficiency of [the] affidavits.” Id. ¶ 55. Our supreme

court found the lower courts had erred in “employing a standard that requires evidence of total

vindication or exoneration to support a claim of actual innocence” (id. ¶ 55), by “erroneously

premis[ing] its decision on a ‘conflicting evidence’ standard” (id. ¶ 57), and because the lower

courts erroneously “believed that the evidence in the supporting affidavits was positively rebutted

simply because it was contradicted by the evidence presented at trial (id. ¶ 60). The correct

standards and analytical framework (see id. ¶ 61) do not employ a “total vindication or exoneration

standard” but instead only require that the evidence “tend[] to significantly advance” the claim of

actual innocence. Id. ¶ 55. “[T]he new evidence supporting an actual innocence claim need not be

entirely dispositive to be likely to alter the result on retrial. [Citation.] Rather, the conclusive-

character element requires only that the petitioner present evidence that places the trial evidence

in a different light and undermines the court's confidence in the judgment of guilt. [Citation.]”

(Emphasis added.) Robinson,

. The new evidence cannot be “positively

rebutted” by the record but the analytical framework for that determination is not whether the

newly discovered evidence “was contradicted by the evidence presented at trial.” Id. ¶ 60. Instead,

at the leave to file a successive petition phase of proceedings, this standard requires that “it must

be clear from the trial record that no fact finder could ever accept the truth of that evidence, such

as where it is affirmatively and incontestable demonstrated to be false or impossible.” Id. Viewing

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the newly discovered evidence this way, then, “[i]n assessing whether a petitioner has satisfied the

low threshold applicable to a colorable claim of actual innocence, the court considers only whether

the new evidence, if believed and not positively rebutted by the record, could lead to acquittal on

retrial.” Id.

¶ 27 The only evidence in support of petitioner’s successive postconviction petition at issue in

this case is Niles’s affidavit. Given its importance, we set out the affidavit in its entirety:

“I, Lino Niles do hereby declare & affirm that the following information

within this affidavit is true and correct in substance and in facts:

To whom it may concern I submit this affidavit in the form of a letter

asking that it be taking as being true on the merits of my reasons of which I

sincerely apologize for, or me including Droopy/Ahmad Simms in the case of

which I committed murder. Some say that people do things out of fear because of

the surrounding circumstances of those events [unreadable/stricken] taken place. I

on the other hand chose differently and act simply out of ‘revenge’, and told the

police that Droopie/Ahmad was with me when I did the murder-home invasion-

armed robbery. I included him because I thought when police took guys to the

police station in a sweep off my block and question’d them, that Droopie/Ahmad

Simms was with the guys tellin [sic] the police about me[,] knowing that I didn’t

mess with nobody else on that block but him at that time. And Yes I considered

Droopy at that time my best friend and felt that it was the ultimate betrayal for

him to tell on me [unreadable] one I trusted other than myself out on these streets.

However Droopie/Ahmad Simms knew about what happened just like everybody

else because it happened in the hood. I just lied about certain things that whereas

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he really cared not to know. But I never told him I was the one who did it in no

shape form or fashion, I just told him that I needed his help in selling some stuff

so that I could get some money in my pocket. In the end the fact of the matter is, I

lied to the police about Droopie/Ahmad Simms being involved to shift the blame

from myself by all means possible. Even to the point where I took the police

where he would spend the night before his mother would come & pick him up to

go back home out the city. I told police he had the gun and that he had some of

the stuff that I took out of the [apartment] hoping in the end by me doing so that I

would be able to walk free or at least do a little time. But coming t [sic] the

conclusion of things after everything was put on the table *** now realize in all

my effortless rationale attempts that I actually caused an innocent person to be

locked up who had absolutely no involvement whatsoever. I know I have surely

lost a friend but one thing for sure that I will not lose is ‘my dignity’ to do right as

a man, no matter how long it has taken me to say the truth or will take me to say

the truth.

I am truly sorry for getting Droopie locked up and I accept full

responsibility of my actions in doing so. For my selfish means and ways of being

free I even witness’d my sacrifices getting afflicted upon Droopie/Ahmad Simms

by the police and know that the police had believed everything that I told them to

the point they would go to those extreme measures just to get to the truth even if it

wasn’t the truth. I also apologize for him going through that physical abuse and

any other abuse he may had or have suffered. I don’t know in the end of what

would be the outcome of me now admitting to the murder but just know that me

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and my other co-defendant Curtis King was the only two involved. Whether you

believe me or not, and I’m not trying to be disrespectful when I say this, ‘is totally

up to you.’ Am so in the event of everything that I’ve admitted to, not reaching

[unreadable] hands of Droopie/Ahmad Simms in time. I just want to go on record

and said that I’m sorry for getting you locked up and I hope that you can find it

within your heart to forgive me if this [unreadable].

Pursuant to 28 U.S.C. 1746, 18 U.S.C. 1621 or 735 ILCS 5/1-109, I

declare under penalty of perjury, that everything contained herein is true and

accurate to the best of my knowledge and belief. I do declare and affirm that the

matter at hand is not taken either frivolously or maliciously and that I believe the

foregoing matter is taken in good faith.”

¶ 28 Our first task is to determine whether these statements are positively rebutted by the

record. To make that determination we must ask whether it is “clear from the trial record that no

fact finder could ever accept the truth of [this] evidence.” Robinson,

.

¶ 29 To aid our determination we first pull from Niles’s affidavit what Niles actually says

about defendant’s “actual innocence” of the crimes for which he was convicted, Niles’s affidavit

avers about defendant that:

(1) Niles acted out of revenge when he told police defendant was with him

when Niles committed the murder, home invasion, and armed robbery. (However,

Niles did not say that defendant was not with him when Niles committed the

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murder, home invasion, and armed robbery. Niles could mean he acted out of

revenge in revealing defendant’s participation.) 2

(2) Niles “included” defendant because Niles thought defendant was

informing the police about Niles. (What Niles thought defendant was telling

police about him is admittedly unclear.)

(3) Defendant knew about the crime “just like everybody else.” (Niles

does not say this is the only reason defendant knew about the crime, and as will

be revealed later in Niles’s affidavit, neighborhood gossip was not the only reason

defendant knew about the crime.)

(4) Niles lied to defendant about “certain things” that defendant did not

want to know. (What things Niles lied about is unknown.)

(5) Niles never told defendant he (Niles) “was the one who did it;” Niles

only told defendant Niles needed defendant’s help to sell some things. (Did what,

exactly is open to interpretation: it might mean firing the fatal shot. Niles may

2 Notably, in Edwards, our supreme court considered whether the petitioner in that case set forth a colorable claim of actual innocence or, “[i]n other words, did [the] petitioner’s request for leave of court and his supporting documentation raise the probability that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,” where the petitioner relied on the affidavit of a codefendant who averred the petitioner “ ‘had nothing to do with this shooting’ and was neither ‘a part [of nor] took part in this crime.’ ” Edwards,

. Our supreme court found the affidavit did not raise the probability that, in light of that new evidence, it is more likely than not that no reasonable juror would have convicted the petitioner because the evidence was “not ‘of such conclusive character that it would probably change the result on retrial’ [citation]. [Citations.]” Id. ¶ 40. Our supreme court noted that the petitioner “critically [did] not assert that [the] petitioner was not present when the shooting took place” and the affiant’s “averment in his affidavit that he was the principal offender ‘does little to exonerate [the] defendant who *** was convicted of the murder under the theory of accountability.’ ” (Emphasis omitted.) Id. ¶ 39.

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have told defendant he needed defendant’s help to sell the things they planned to

take from Irving together.) 3

(6) Niles lied to police about defendant being “involved.” (Niles does not

say what involvement, or level of involvement, he lied about. He may mean he

lied about defendant having any involvement, or any involvement in the execution

of any discrete element of the crime, leaving open the possibility of defendant’s

“involvement” in any portion of the crime from its planning to the disposal of its

proceeds.)

(7) Niles told police defendant had the gun and some proceeds from the

crime to downplay his own culpability. (We note that Niles’s motive for pointing

police in defendant’s direction does not exonerate defendant.)

(8) Niles caused an “innocent” person to be locked up because defendant

“had no involvement whatsoever.” (Niles does not say what, exactly, defendant is

“innocent” of. And again, “involvement” in what is left vague. Defendant may

have had no “involvement whatsoever” in the decision to pull the trigger, or in

physically taking the proceeds of the robbery, and still assisted Niles to gain entry

for the purpose of taking the items Niles told defendant he needed to sell to get

some money in his pocket.)

(9) “I don’t know in the end of what would be the outcome of me now

admitting to the murder but just know that me and my other co-defendant Curtis

King was the only two involved.” (Niles does not unequivocally state that only he

3 To be accountable, defendant had to intentionally help plan or commit the crimes “either before or during the commission of [the] offense[s].” 720 ILCS 5/5-2(c) (West 2016). - 14 - 1-16-1067

and King robbed Irving’s apartment, or murdered her, or that defendant

committed no crimes related to the offenses. Niles notably did not mention the

robbery and home invasion.)

¶ 30 We note again the trial court convicted defendant of first degree murder on the basis of

accountability, home invasion, and armed robbery. The following evidence of those crimes

pertinent to our current inquiry was adduced at defendant’s trial: According to Parks’s testimony

the offenders gained entry to Irving’s building through the basement door. The crime occurred

between 11 a.m. and 2 p.m. According to witness Raymond Orange’s testimony, at around 1:15

p.m. on the day of the murder defendant and Niles walked out of Irving’s building, walked to the

garbage, and returned to Irving’s building. One of them had something under his arm. According

to Jimmy Minter’s testimony, defendant and Niles came to Minter’s auto shop located just two

buildings north of the scene of the crime sometime after 3 p.m. on the day of the crime. Minter

testified a pry bar was missing from his toolbox that afternoon. Defendant sold Minter a VCR.

Niles was in possession of a bag of coins and a purple attaché case. Parks testified that coins, a

VCR, and maroon attaché case were missing from Irving’s apartment.

¶ 31 Detective Baker testified the basement door, the door to Irving’s apartment, and the door

to the second-floor apartment were damaged.

¶ 32 Additionally, defendant gave two statements to police, both of which were substantially

the same. In the first statement defendant told police he saw Niles at Minter’s auto shop on the

morning of the murder, and Niles told defendant that Niles had been stalking Irving because

Irving had won the lottery. Defendant and Niles went to Irving’s home. Defendant had a pry bar,

and Niles had a gun. Defendant told police that the basement door to Irving’s home looked like

Niles had previously tried unsuccessfully to pry open the door. Defendant and Niles then broke

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the basement door open and entered. Defendant told police he and Niles went upstairs, pried

open the foyer door, and entered Irving’s apartment. Defendant told police that Irving started

screaming and Niles put a pillow over her face and shot her in the head. Defendant then grabbed

the VCR and other items, while Niles took coins and anything else he could find. According to

defendant’s statement, he then took the VCR and a television outside then returned to the

apartment. When defendant returned, Niles told defendant to try to get into the second-floor

apartment. Defendant tried, but he and Niles fled when he heard noises outside. Defendant told

police he and Niles took the contraband to the auto shop, where defendant sold the VCR and

television to Minter. Niles told defendant to dispose of the gun. Defendant took a bus to his

aunt’s home, where he sold the gun on the street.

¶ 33 Assistant State’s Attorney Thomas Darman testified that he interviewed defendant on

December 2, 1999, and defendant told him a similar version of events that he told Baker. After

Darman interviewed Curtis King, he spoke with defendant again. Defendant told him the same

version as before, except now he included that King served as a lookout. King also helped them

remove items from the apartment.

¶ 34 In assessing whether the evidence in support of the successive postconviction petition is

positively rebutted by the evidence adduced at trial we make the following observations:

(1) Based on the timeline and positive identification, Orange testified

defendant was with Niles when Niles committed the murder, home invasion, and

armed robbery.

(2) Niles’s statement as to why he informed police about defendant is not

a fact that can be refuted.

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(3) There is evidence in the record defendant knew about the crime

because he participated. Orange testified defendant was present. Minter testified

defendant sold him proceeds from the robbery. Orange’s statement is consistent

with the statement defendant gave police, and defendant’s statement is consistent

with the physical condition of the doors in Irving’s building.

(4) Niles’s statement that he lied to defendant about “certain things” is not

a fact that can be refuted.

(5) What Niles did or did not tell defendant is not refuted.

(6) Niles’s statement that he lied to police about defendant being

“involved” is not a fact that can be refuted.

(7) Niles’s statement as to why he informed police about defendant is not

a fact that can be refuted.

(8) Niles’s statement that defendant is “innocent” and that Niles lied to

police about defendant being “involved” is not refuted.

(9) Niles’s statement that he and King were the only two “involved” is not

refuted.

¶ 35 Under the Robinson standard, we find the newly discovered evidence in Niles’s affidavit

is not positively rebutted by the record. While there are contradictions between the averments in

the affidavit and the trial evidence, contradictions are not enough to cause defendant to fail this

part of the test “because recognizing the existence of a conflict with the trial evidence is not the

same as finding that the new evidence is positively rebutted.” On the contrary, nothing in the trial

record makes Niles’s averments “incontestably *** false or impossible.” Robinson,

. As stated above we recognize the indefiniteness in many of Niles’s averments. For

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example, Niles’s statement that defendant is “innocent” and that Niles lied to police about

defendant being “involved” is not necessarily exonerating without knowing what Niles believes

defendant is “innocent” of (The murder? The home invasion? The robbery? All of the above?) or

what Niles allegedly lied about defendant being involved in. (For example, Niles could plausibly

mean “involved” in the murder but not that he lied about defendant being “involved” in the home

invasion and robbery.) That is of no matter at the leave to file stage of postconviction proceedings

at which “all well-pleaded allegations in the petition and supporting affidavits that are not

positively rebutted by the trial record are to be taken as true. [Citations.]” Robinson,

, see also People v. Coleman,

(1998) (“when a petition is filed

invoking Sanders,

(“credibility is not an issue at the second stage of

postconviction proceedings”).the act, the trial court shall examine the petition with a view to

determining whether the allegations of fact, liberally construed in favor of the petitioner, and taken

as true, make a showing of imprisonment in violation of the Federal or State constitution,”).

Finally, “[i]n deciding the legal sufficiency of a postconviction petition, the court is precluded

from making factual and credibility determinations. [Citations.]” Robinson,

.

¶ 36 Next, we must determine whether that new evidence “is so conclusive that it is more

likely than not that no reasonable juror would find [the petitioner] guilty beyond a reasonable

doubt.” Sanders,

. In assessing whether defendant “has satisfied the

low threshold applicable to a colorable claim of actual innocence” we may ask “only whether the

new evidence *** could lead to acquittal on retrial.” Robinson,

. To answer

that question, “we ascertain whether the supporting affidavits raise the probability that it is more

likely than not that no reasonable juror would have convicted [defendant.]” Id. ¶ 61.

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¶ 37 In this case, under the Robinson standard, we find that Niles’s affidavit constitutes

conclusive evidence that would probably lead to a different result at trial. Niles averred he lied to

police about defendant’s involvement in the crime, that he and King were the only two people

involved in the crime, and, most importantly, that defendant is innocent. Niles’s statement that he

and King were the only two “involved,” although not clear, could be considered exonerating. We

cannot say that taking these averments as true, as we must, we think it more likely than not that

no reasonable juror would have convicted defendant of these crimes.

¶ 38 Niles’s affidavit, taken as true, even with all its vagueness and uncertainty, is, pursuant to

Robinson, of such conclusive character as would probably change the result on retrial. Thus,

defendant has carried “his burden to make a substantial showing of a claim of actual innocence.”

Sanders,

, ¶ 55. Furthermore, “the legislature did not intend to authorize partial

dismissals of pro se postconviction petitions.” People v. Patton,

(2000).

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is

remanded for further postconviction proceedings, consistent with this opinion.

¶ 39 III. CONCLUSION

¶ 40 For the reasons set forth above, we reverse the judgment of the circuit court of Cook

County and remand this case for further proceedings.

¶ 41 Reversed and remanded..

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