No. 1-20-0805 Order filed April 28, 2022 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 3147 ) MARCELLUS FRENCH, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Reyes and Justice Martin concurred in the judgment.

ORDER

¶1 Held: The trial court properly summarily dismissed defendant’s postconviction petition which failed to establish arguable claims of actual innocence or ineffective assistance of counsel.

¶2 Defendant Marcellus French appeals from the circuit court’s order summarily dismissing

his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1

et seq. (West 2018)). On appeal, defendant argues that his petition stated arguable claims of

(1) actual innocence, (2) ineffective assistance of appellate counsel for failing to cite key evidence, No. 1-20-0805

(3) ineffective assistance of trial counsel for failing to obtain a historical cell site expert to support

his alibi defense, and (4) ineffective assistance of trial counsel for failing to obtain an expert in

eyewitness identification.

¶3 For the reasons that follow, we affirm the judgment of the circuit court.1

¶4 I. BACKGROUND

¶5 After a jury trial, defendant was found guilty of the first degree murder of Roger Kizer and

aggravated battery with a firearm of Estavion Thompson. Codefendant Bodey Cook was also

found guilty of first degree murder and aggravated battery with a firearm. The jury found that

defendant personally discharged a firearm that caused death. Defendant was sentenced to

consecutive terms of 55 years’ imprisonment for first degree murder and 15 years’ imprisonment

for aggravated battery with a firearm. We set forth the facts in defendant’s direct appeal (People

v. French,

), and we recite them here to the extent necessary to our

disposition.

¶6 The State’s evidence showed that at about 11 p.m. on August 19, 2010, the victims, Kizer

and Thompson, were outside near 7450 South Kenwood Avenue in Chicago. Kizer’s family lived

on that block. Kizer and Thompson were either sitting on the back of a friend’s parked car or

standing by the car in the street. Several other people were also outside, including Andre

Stackhouse, Shevely McWoodson, and Sherman Johnson. People were drinking alcohol. The street

was residential and illuminated by streetlights.

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.

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¶7 Thompson testified that as the group sat in the street Cook drove a little green Cavalier past

them. Thompson had known Cook from the area for about three years. Around 15 minutes later

Cook again drove past in the same car and Kizer tried to flag Cook down. Cook kept driving and

ultimately returned within ten minutes. On the third approach Thompson heard shots, saw Kizer

fall, and tried to run away. Thompson saw Cook driving and a light-skinned male with a red hat

shooting out of the car. The two individuals were in the same green car that had driven past the

group on the other two occasions. Thompson suffered gunshot wounds to each of his legs, his

chest, and his stomach. Kizer died at the scene from a gunshot wound to his chest.

¶8 Thompson was transported to the hospital. Thompson spoke with detectives at the hospital

the next day and identified Cook as the driver from a photo array. At that time, Thompson did not

know Cook’s full name. Two days later, Thompson viewed a black and white photo array that

included defendant’s photo, but Thompson did not identify anyone as the shooter from that array.

At that time, Thompson knew defendant’s name but not his full name. At the trial, Thompson said

defendant at the time of the shooting “looked totally different” from his black and white picture in

the photo array. Thompson could not remember whether he told the police on August 22 that

defendant was the shooter. On January 20, 2011, Thompson went to the police station and

identified defendant, whom Thompson knew “from around the same area,” as the shooter out of a

four-person lineup. Witnesses Stackhouse, McWoodson, and Johnson were also at the police

station, but they were not present when Thompson viewed the lineup. In February 2011, Thompson

identified Cook from a lineup as the driver. Thompson also identified defendant and Cook in court

as the offenders.

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¶9 Thompson testified that no one made him any promises in exchange for his testimony. At

the time of the trial, he had a pending misdemeanor marijuana charge. Thompson had prior felony

convictions in 2005 for resisting a police officer and aggravated battery of a police officer and in

2004 for aggravated unlawful use of a weapon. When Thompson testified before the grand jury on

February 16, 2011, he said he was under the influence when he had spoken with an assistant State’s

Attorney (ASA) in January 2011; however, at the trial Thompson denied being under the influence

at the time of that conversation.

¶ 10 Andre Stackhouse was on parole at the time of the trial, failed to appear on the date

specified by a subpoena, and was arrested and testified the next day. He had known both defendant

and Cook since they were in preschool. Stackhouse had been drinking tequila on the night of the

shooting. He was standing a couple of houses away from the Kizer home and talking with two

girls when he saw Cook drive by in a greenish blue car. Not long thereafter, Stackhouse saw Cook

drive east on 74th Street and then south on Kenwood Avenue. Defendant was in the passenger seat

and half of his body was hanging out the window. He had a gun in his hand. Stackhouse did not

see anyone in the car wearing a hat. Stackhouse moved into a gangway and heard several gunshots

but did not look toward the shooting. After the shooting, he went to Kizer and Thompson and saw

that they were shot. Sherman Johnson had a gunshot hole in his hat. Stackhouse left the scene and

did not talk to the police that night.

¶ 11 On August 24, 2010, Stackhouse was arrested for a gun offense. He spoke with detectives

on August 26 about the August 19 shooting. From photographs, Stackhouse identified Cook as the

driver and defendant as the shooter. Stackhouse also identified defendant and Cook as the

offenders in the lineups conducted in January and February of 2011 and again at the trial.

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Stackhouse did not receive any promises concerning his gun offense or his probation violation in

exchange for his testimony. He faced a possible prison sentence of three to seven years for the gun

offense and received the minimum sentence of three years. He had convictions in 2011 for

aggravated unlawful use of a weapon and in 2009 for possession of a stolen motor vehicle. When

a defense investigator came to the Stackhouse home in June of 2012, Stackhouse’s mother told the

investigator to leave, and Stackhouse did not discuss the shooting with him.

¶ 12 Shevely McWoodson was Kizer’s uncle. At the trial, McWoodson testified he had known

Cook and defendant a few months prior to the shooting by seeing them on the street a few times.

However, McWoodson previously told the grand jury that he had known defendant for about three

years. At the time of the offense, McWoodson was with Kizer and a group of other people on south

Kenwood Avenue talking. McWoodson saw Cook drive by once in a small car alone. Then

McWoodson walked to his house a couple of houses away from the group to use the restroom.

When he was near the gate of his house, he saw Cook drive by again with defendant in the

passenger seat. McWoodson saw defendant lean out the window, fire a gun, and shoot Kizer.

McWoodson heard three gunshots and saw the gun emit flames when it was fired. He did not speak

with police that night.

¶ 13 In January 2011, McWoodson went to the police station and identified Cook from a photo

array as the driver and defendant from a lineup as the shooter. At trial, McWoodson testified he

“pointed [defendant] out” before he asked the police to have everyone in the lineup smile.

McWoodson knew defendant had a chipped tooth, which was visible when defendant smiled.

However, according to McWoodson’s grand jury testimony, he “knew” it was defendant but was

not “sure,” so he asked the detective to make the lineup participants smile. McWoodson then saw

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defendant’s chipped tooth and said, “That is him.” At a second lineup in February 2011,

McWoodson identified Cook as the driver, but McWoodson did not recall returning to the police

station to view that second lineup. McWoodson either did not understand what a grand jury was

or did not remember testifying before the grand jury in February 2011.

¶ 14 Sherman Johnson was Thompson’s cousin. Johnson had known Cook and defendant his

whole life. At the trial, Johnson testified that on the afternoon of August 19, 2010, everyone was

standing in front of a school when Kizer unsuccessfully attempted to flag down Cook, who was

driving a red Cadillac. Later that evening, Johnson was standing with the group on the 7400 block

of South Kenwood Avenue. About 30 people were outside, and they were drinking alcohol and

doing drugs. He heard gunshots and ran from the scene without looking to see the source of the

gunfire. He never saw who fired the gunshots, was not grazed on his elbow by a bullet, and did

not have a bullet knock any hat off his head.

¶ 15 Johnson fled Chicago a week after the shooting because he was wanted for an attempted

murder that occurred in an unrelated case on August 25, 2010. He was apprehended and extradited

to Chicago on January 19, 2011. Thereafter, the detectives investigating this case brought him

from the jail to the police station. Johnson claimed the detectives put him in a room with Thompson

and urged him to “go with” Stackhouse’s written statement. Johnson also claimed the police

offered to help him with his pending case in exchange for his cooperation in this matter. Johnson

denied or could not recall giving the police and ASA any statement. Johnson initially maintained

he did not recall testifying before the grand jury in February 2011, later admitted on cross-

examination that he did in fact testify before the grand jury, and then on redirect claimed again

that he did not recall testifying before the grand jury. He denied identifying Cook and defendant

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as the offenders and merely pointed them out in the photo arrays as people he knew. Johnson

denied identifying defendant and Cook as the offenders in lineups conducted in January and

February of 2011. Ultimately, Johnson pled guilty in his pending case in 2012 to a lesser charge

of aggravated battery with a firearm, faced a possible sentence of 6 to 30 years in prison, and

received a 7-year prison term without the detectives’ help.

¶ 16 The State impeached Johnson’s trial testimony with the testimony of detectives and the

ASA; Johnson’s January 21, 2011, signed written statement; his February 18, 2011, grand jury

testimony; and a January 2011 photograph of his elbow. According to his written statement,

Johnson saw Cook drive by in a light green Chevy Cavalier. Cook was alone, and Kizer called out

Cook’s name to get his attention. Kizer’s cousins had a “beef” or argument with Cook. Cook did

not stop and sped off. When Cook drove by again about 15 to 30 minutes later, defendant was

hanging out the passenger-side window. The upper part of defendant’s body was hanging out the

window, and a gun was in his hand. Defendant fired the gun several times. The detectives testified

that Johnson identified defendant as the shooter and Cook as the driver in photo arrays in January

2011, identified defendant in a January 2011 lineup, identified Cook in a February 2011 lineup,

and was never told he would receive help in any pending case in exchange for talking about this

case.

¶ 17 When ASA Morgan Creppel interviewed Johnson before presenting his testimony to the

grand jury in February 2011, Johnson confirmed that the police and detectives never made any

promises to him in exchange for his cooperation. According to Johnson’s grand jury testimony, he

was standing with Kizer and Thompson on south Kenwood Avenue at the time of the offense.

Kizer’s cousin, who was selling marijuana, got into a truck with a buyer. As the truck drove away,

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the group noticed Cook, who was alone, follow the truck in a light turquoise Cavalier. When the

truck returned, Cook, who was still alone, was still following the truck. Kizer tried to flag Cook

down but Cook sped off. No one in the group noticed Cook’s car as it approached them the third

time. Johnson heard the first gunshot and looked in the direction from which the sound came.

Johnson was shocked, “actually just got stuck,” and “couldn’t even move.” He saw defendant

hanging out of the passenger-side window of the car from his waist up, using the top of the car to

try to balance himself, and pointing the gun at anybody and shooting. Cook was driving the car.

Johnson saw Kizer get struck first and Thompson get struck next. Then bullets grazed Johnson’s

elbow and knocked his hat off his head.

¶ 18 The defense’s evidence showed that defendant was with Romania Booker and her father

Randy Alexander at the time of the shooting. They were at the home of Booker’s grandmother.

Booker was pregnant with defendant’s child, and her due date was August 19, 2010, so defendant

stayed with her in case her water broke. Alexander testified he and defendant stayed inside the

house on August 19 but acknowledged they “were not joined at the hip.” Alexander was convicted

in 2011 of burglary and in 2007 of possession of a controlled substance. Booker testified that

defendant remained by her side from noon on August 19 until the child was born on August 24.

Booker stopped dating defendant before he was arrested in January 2011 in this case. Although

Booker knew about the arrest, she never contacted the police to inform them of this alibi.

Defendant’s family helped Booker with expenses for the baby.

¶ 19 Cook’s family members and friends testified that he was at the home of his aunt at the time

of the shooting. He was setting up for and attending a large family surprise birthday party for the

aunt that lasted from about 6 p.m. on Thursday, August 19 to 3:30 a.m. on Friday.

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¶ 20 Defense investigator John Byrne testified that he had been a Chicago police detective and

sergeant in the detective division for 25 years. When he went to Stackhouse’s home in June 2012,

he informed Stackhouse that he worked for the defense. Stackhouse agreed to speak with him

about this case and invited him into the house. Byrne took notes during the interview, which he

used to write his two-page, undated report. According to Byrne, Stackhouse said he did not see the

face of either the shooter or driver when the car drove past him because it was dark outside and

the incident happened quickly. Stackhouse merely saw the passenger extend an arm out the open

window and fire a gun. Furthermore, in January 2011, detectives signed Stackhouse out of jail,

brought him to the police station, and informed him that witnesses had already identified defendant

as the shooter and Cook as the driver. The detectives said they would help Stackhouse with his

pending case if he corroborated the testimony of those witnesses. Although Stackhouse told the

detectives what they wanted to hear, they ultimately did not help him. Stackhouse mentioned his

probation and asked Byrne if he could get in trouble for what he said during their interview.

Stackhouse did not sign or review Byrne’s report.

¶ 21 The jury found both defendant and codefendant guilty of first degree murder and

aggravated battery with a firearm, with a finding that defendant personally discharged a firearm

causing death.

¶ 22 Defendant filed a pro se posttrial motion with multiple allegations of ineffective assistance

of counsel. Relevant to this appeal, defendant claimed that counsel failed to (1) present the

testimony of Booker’s grandmother and defendant’s mother to support his alibi, (2) present

defendant’s cell phone records to show his phone was engaged in a call with the phone of

defendant’s mother at the time of the shooting, and (3) subpoena GPS records regarding

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defendant’s cell phone to show he was at the home of Booker’s grandmother at the time of the

offense.

¶ 23 During a Krankel hearing, trial counsel explained that she declined to call Booker’s

grandmother, Donna Alexander, because Alexander had told counsel that she had went into her

room around 7 p.m. and did not see defendant for the rest of the evening. Trial counsel explained

that she did not call defendant’s mother, Melba Brown, because Brown was not with defendant on

the evening of the crimes and, thus, would not have supported his alibi defense. Regarding the cell

phone records, trial counsel explained that it was strategy not to use the records because, while

they did show a phone call between defendant’s phone and defendant’s mother’s phone around the

time of the shooting, the records also showed text messages from defendant to Booker who

defendant was supposedly with during the entirety of the evening. After discussing the strategy

with defendant “at great length,” trial counsel opted to present the “clean, credible” testimony from

Booker and her father that defendant was by her side during the entire evening. Finally, as to the

GPS records, trial counsel explained that there was no GPS evidence that placed defendant or his

phone at a particular location.

¶ 24 The trial court rejected defendant’s pro se claims, concluding that defendant had not made

even a “preliminary showing” of ineffective assistance of counsel. The trial court found that trial

counsel had done an excellent job representing defendant and protecting his rights.

¶ 25 Defendant then proceeded pro se and filed a motion to reconsider the trial court’s decision

not to appoint new counsel on his ineffective assistance claims. Defendant submitted affidavits

from Donna Alexander and Melba Brown. Brown’s affidavit stated that she would have testified

that she “remembered speaking with [defendant] and romaina [sic] on the phone about 11 somthing

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[sic] that night about the birth of his first child and comfort measures for Romaina [sic].”

Alexander’s affidavit stated that she would go to her room and nap from time to time but that she

got up every half hour or so to check on defendant and Booker and that each time she checked

defendant was at the house. Defendant also attached his phone records which showed a phone call

from his number to his mother’s number on August 19, 2010, that lasted from 11:24:49 p.m. to

11:27:15 p.m. Defendant also attached records to establish that the first 911 call regarding the

shooting came in at 11:27:49 p.m.

¶ 26 The trial court denied defendant’s motion to reconsider. The trial court also denied

defendant’s motion for a new trial. Defendant was sentenced to 55 years’ imprisonment on the

first degree murder conviction and 15 years’ imprisonment on the aggravated battery with a firearm

conviction. We affirmed on direct appeal. French,

.

¶ 27 On December 20, 2019, defendant filed a postconviction petition. Defendant’s petition

alleged that, inter alia, (1) appellate counsel was ineffective for failing to establish trial counsel’s

ineffectiveness where trial counsel failed to thoroughly investigate defendant’s cellular phone

records which provided evidence concerning the location of defendant’s phone during the crime,

(2) trial counsel was ineffective for failing to seek the testimony of an eyewitness expert and an

expert witness on cellular phone records, (3) defendant was denied a fair and impartial direct

appeal proceeding where the circuit court did not include defendant’s exhibits in the appellate

record, (4) appellate counsel failed to present the ineffective assistance of trial counsel claim

regarding the alibi witnesses with supporting facts, and (5) trial counsel was ineffective for failing

to show that police authorities offered leniency to witnesses.

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¶ 28 On February 5, 2020, the trial court dismissed defendant’s postconviction petition, finding

that the issues raised were frivolous and patently without merit. Defendant appeals the trial court’s

dismissal of his petition.

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant argues that his postconviction petition stated arguable claims of

(1) actual innocence, (2) ineffective assistance of appellate counsel for failing to cite key evidence,

(3) ineffective assistance of trial counsel for failing to obtain a historical cell site expert to support

his alibi defense, and (4) ineffective assistance of trial counsel for failing to obtain an expert in

eyewitness identification. Defendant requests that this court reverse the circuit court’s summary

dismissal of his petition and remand for second-stage proceedings under the Act.

¶ 31 The Act provides a three-stage mechanism by which a criminal defendant may assert that

his conviction resulted from the substantial denial of a constitutional right. People v. Myles,

; People v. Delton,

(2008). At the first stage of a

postconviction proceeding, the defendant is required to set forth only the “gist” of a constitutional

claim, and the circuit court may summarily dismiss the petition if it finds that the petition is

frivolous or patently without merit, i.e., that it has no arguable basis in law or fact. People v.

Hodges,

(2009). We review the summary dismissal of a postconviction petition

de novo.

.

¶ 32 A. Actual Innocence

¶ 33 Defendant’s first claim is that his petition set forth an arguable claim of actual innocence.

Defendant relies on a document where eyewitness Andre Stackhouse stated that he would like to

recant his statement. The statement in full read:

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“I Andre Stackhouse would like to recant my Statement do [sic] to the fact that I was offered a plea deal for a lighter sentence if I testified against bodey cook in the murder of Rodger Kizer saying he was guilty and he was the murderer. I was told to say marcellus French was the murderer and bodey cook was the driver.”

The statement was signed and notarized but not sworn.

¶ 34 “[T]here is footing in the Illinois Constitution for asserting freestanding innocence claims

based upon newly discovered evidence under the Post–Conviction Hearing Act.” People v.

Washington,

(1996). “Procedurally, such claims should be resolved as any

other brought under the Act.”

“To establish a claim of actual innocence, the supporting evidence

must be (1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character

that it would probably change the result on retrial.” People v. Robinson,

.

“Newly discovered evidence is evidence that was discovered after trial and that the petitioner could

not have discovered earlier through the exercise of due diligence.”

“Evidence is material if it is

relevant and probative of the petitioner’s innocence.”

“Noncumulative evidence adds to the

information that the fact finder heard at trial.”

“Lastly, the conclusive character element refers

to evidence that, when considered along with the trial evidence, would probably lead to a different

result.”

“The conclusive character of the new evidence is the most important element of an

actual innocence claim.”

¶ 35 The State raises a threshold issue in response to defendant’s claim. The State argues that

the actual innocence claim was never raised in the trial court and, thus, cannot be raised for the

first time on appeal. Defendant responds that he did raise the actual innocence claim in his petition,

although it is discussed in the portion of the petition where defendant argues he was denied the

effective assistance of counsel because trial counsel failed to show that authorities promised

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leniency to witnesses in exchange for testimony. Defendant points to a single sentence in the

petition, where he stated, “petitioner now presents newly discovered evidence where Andre

Stackhouse, under sworn oath states he was offered leniency to testify against petitioner and

co-defendant.”

¶ 36 We agree with the State that defendant has forfeited a claim of actual innocence. Section

122-2 of the Act specifically provides that “[t]he petition shall *** clearly set forth the respect in

which petitioner’s constitutional rights were violated” (725 ILCS 5/122-2 (West 2018)), while

section 122-3 provides that “[a]ny claim of substantial denial of constitutional rights not raised in

the original or an amended petition is waived” (id. § 122-3). It is black letter law that a defendant

may not raise an issue for the first time on appeal from the dismissal of a postconviction petition

if the petition failed to include that issue. People v. Jones,

(2004); People v.

Coleman,

(1998); People v. McNeal,

(2000); People v.

Jones,

(2004); People v. Petrenko,

(2010).

¶ 37 The mention of Stackhouse’s statement cited by defendant was directly related to the point

heading claiming ineffective assistance of trial counsel. The point heading claimed that “trial

counsel failed to show police authorities promised leniency to witnesses for testimony.” The entire

argument under the heading focused on evidence that Stackhouse and Sherman Johnson had been

offered leniency to testify. Defendant cited Stackhouse’s statement to corroborate John Byrne’s

trial testimony that Stackhouse was offered “help” with his pending case if he corroborated other

witness statements implicating defendant and Cook in the shooting. Later, defendant described the

“substance” of Stackhouse’s statement as similar to what Byrne testified to at trial. Defendant

never framed Stackhouse’s statement as evidence of actual innocence.

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¶ 38 In short, we conclude that, although a petition must be “given a liberal construction,”

Hodges,

, the reference in defendant’s petition to Stackhouse’s statement did not

transform his claim into one of actual innocence. Because defendant’s petition did not raise a claim

of actual innocence, the claim is forfeited. 725 ILCS 5/122-3 (West 2018); People v. Williams,

(2009) (holding that the defendant’s actual innocence claim was

“waived on appeal” where the defendant “failed to raise an actual innocence claim in the trial

court”).

¶ 39 Forfeiture aside, Stackhouse’s statement does not set forth even an arguable claim of actual

innocence because it is cumulative to, and less convincing than, Byrne’s testimony at trial that

Stackhouse told him that he did not see the face of either the shooter or the driver because it was

dark outside and the incident happened quickly. Stackhouse’s statement does not even say that he

did not see the shooter or driver and, instead, simply says that he would like to recant his statement.

More importantly, Stackhouse’s statement neither arguably “places the trial evidence in a different

light” nor “undermines the court’s confidence in the judgment of guilt.” Robinson,

.

¶ 40 Stackhouse’s statement is notable for what it does not say more than for what it does say.

The statement does not say that defendant was not present at the scene of the shooting, that

defendant did not commit the shooting, or that Stackhouse saw someone else commit the shooting.

See People v. Harper,

(noting that newly discovered evidence is

“capable of producing a different outcome at trial” where it is “both exonerating and contradicts

the State’s evidence at trial”); People v. Molstad,

(1984) (holding that

newly discovered evidence was “likely to produce a different result in the trial” where five

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codefendants submitted affidavits establishing that the defendant was not present when the crime

was committed); People v. Smith,

(finding the conclusive character

element met where an eyewitness did not merely deny his earlier identification but exonerated the

defendant and named a different perpetrator). In short, nothing about Stackhouse’s statement

exonerates defendant.

¶ 41 What Stackhouse’s statement does say is that he would like to recant his statement because

he was offered a lighter sentence if he testified in this case. The statement also says Stackhouse

was told to say that defendant was the “murderer” and that Cook was the driver. At best,

Stackhouse’s statement may call into question his multiple prior identifications of defendant as the

shooter. However, the creation of doubt in Stackhouse’s prior identifications is not sufficient to

establish an arguable claim of actual innocence. See People v. Calhoun,

(rejecting an actual innocence claim where the lone testifying eyewitness averred that he held

“doubts” about his trial identification of the defendant but otherwise did not exculpate the

defendant or name an alternate perpetrator).

¶ 42 The statement also does not impact the remaining eyewitness identification evidence.

Estavion Thompson identified Cook as the driver the day after the shooting and defendant as the

shooter in January 2011. Thompson also identified both Cook and defendant at trial. Thompson

knew both from the area. Shevely McWoodson similarly identified defendant as the shooter during

his trial testimony. McWoodson had previously identified Cook from a photo array and defendant

from a lineup as the shooter in January 2011. There was also evidence from eyewitness Sherman

Johnson, who had identified defendant as the shooter in a January 2011 photo array and during

grand jury proceedings in February 2011, before attempting to disavow the prior identifications

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during trial. As this court noted on direct appeal, Johnson’s statements identifying defendant as

the shooter and Cook as the driver “were essentially consistent with and even more detailed than

the identification testimony” of Thompson and McWoodson.

¶ 43 In short, Stackhouse’s statement did nothing to exonerate defendant or implicate another

individual in the shooting. Stackhouse’s vague assertion that he would like to recant his statement

has to be weighed against his identification of defendant as the shooter in a photo array five days

after the shooting, his identification of defendant as the shooter in lineups conducted in January

and February 2011, and his identification of defendant at the 2013 trial. The statement, when

viewed in conjunction with the trial evidence, simply does not make out an arguable claim that the

addition of Stackhouse’s statement would probably lead to a different result at trial. Thus, even

assuming defendant adequately raised the actual innocence claim in the trial court, it was properly

summarily dismissed because defendant failed to set forth an arguable claim of actual innocence.

¶ 44 B. Ineffective Assistance Claims

¶ 45 Defendant also raises three claims of ineffective assistance of counsel. “A criminal

defendant is guaranteed the right to the effective assistance of counsel by both the United States

and Illinois Constitutions.” People v. Johnson,

; U.S. Const., amends. VI,

XIV; Ill. Const. 1970, art. I, § 8. Ineffective assistance of counsel claims are governed by the

familiar test set forth in Strickland v. Washington,

(1984), and adopted by

our supreme court in People v. Albanese,

(1984). To prevail on a claim

of ineffective assistance of counsel, a defendant must show both that counsel’s representation fell

below an objective standard of reasonableness and that there is a reasonable probability that, but

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

different. Strickland,

.

¶ 46 “At the first stage of postconviction proceedings, a petition alleging ineffective assistance

of counsel may not be summarily dismissed if (1) counsel’s performance arguably fell below an

objective standard of reasonableness and (2) the petitioner was arguably prejudiced by the deficient

performance.” People v. Hatter,

. Defendant also alleges the ineffective

assistance of direct appellate counsel. For that claim, “defendant must show both that appellate

counsel’s performance was deficient and that, but for counsel’s errors, there is a reasonable

probability that the appeal would have been successful.” People v. English,

.

¶ 47 1. Ineffective Assistance of Appellate Counsel: Failure to Cite Key Evidence

¶ 48 Defendant’s first ineffective assistance argument is that appellate counsel was ineffective

for failing to effectively cite key evidence in support of his direct appeal claim that trial counsel

possibly neglected his case by failing to present crucial cell phone evidence to corroborate his

alibi. The State argues that defendant’s claim is barred by res judicata and otherwise does not

constitute an arguable claim of ineffective assistance. Defendant responds that the issue raised in

this appeal is “different, as it rests on ineffective assistance of appellate counsel for failing to cite

a key point in support of the argument raised on direct appeal, preventing this Court from

accurately assessing trial counsel’s performance vis a vis [defendant’s] alibi.”

¶ 49 Defendant’s claim is barred by res judicata. “In an initial postconviction proceeding, the

common law doctrines of res judicata and waiver operate to bar the raising of claims that were or

could have been adjudicated on direct appeal.” People v. Blair,

(2005). “The

doctrine of res judicata bars consideration of issues that were previously raised and decided on

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direct appeal.”

“The petitioner may not avoid the bar of res judicata simply by rephrasing

issues previously addressed on direct appeal.” People v. Simms,

(2000); People

v. Munz,

(finding an argument barred by res judicata where the

argument was a “repackaged version of the argument” rejected on direct appeal).

¶ 50 On direct appeal, appellate counsel first noted the pro se contentions made by defendant in

the trial court that established a possible neglect of defendant’s case. The two contentions relevant

here were described as follows: (1) “Defendant’s attorney *** failed to call Melva Brown,

Defendant’s mother, who would have testified that she was on the phone with Defendant while

Defendant was at Alexander’s house at the exact time the shooting occurred” and (2) “Defendant’s

attorney *** failed to introduce phone records showing that a phone registered to Defendant was

on a call with Brown’s phone at the exact time of the shooting.” Appellate counsel argued that

defendant’s allegations showed possible neglect by trial counsel for failing to adequately

investigate and present exculpatory testimony and evidence on defendant’s behalf. Appellate

counsel supplemented the record with Brown’s affidavit stating that she spoke to defendant and

Booker around 11 p.m. on the night of the shooting. Appellate counsel also supplemented the

record with defendant’s cell phone records establishing a call was placed between defendant’s

phone and his mother’s phone near the time of the shooting. Appellate counsel cited to each

document in defendant’s reply brief.

¶ 51 This court on direct appeal framed defendant’s argument as follows: “[C]ounsel failed to

present the testimony of Melva Brown, who is defendant’s mother and would have testified that at

the time the shooting occurred she was on the telephone with defendant while he was at

Alexander’s home.” This court noted trial counsel’s recognition of phone records which indicated

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a call occurred between defendant’s cell phone and his mother’s cell phone near the time of the

shooting. On the other hand, the records also showed defendant had been texting Booker on the

evening of the shooting, “which would have diminished the alibi testimony that defendant never

left Booker’s side that evening.” This court also noted that trial counsel had provided the phone

records to defendant and reviewed the strategy many times with both defendant and his mother.

¶ 52 Ultimately, the underlying claim here, whether defendant’s pro se allegations made out a

claim of possible neglect, is the same issue that was raised and decided on direct appeal. Also, the

claim is dependent on the record as it existed at the time of the direct appeal. In other words,

defendant has not pointed to anything from outside the direct appeal record that would shed light

on this issue. Thus, there is no basis to relax the doctrine of res judicata. See People v. English,

(explaining that the “doctrines of res judicata and forfeiture are relaxed ***

where the facts relating to the issue do not appear on the face of the original appellate record”).

Because this claim is barred by res judicata, the trial court properly dismissed it at the first stage

of proceedings.

¶ 53 2. Ineffective Assistance of Trial Counsel: Failure to Obtain GPS Expert

¶ 54 Defendant next contends that his petition contained an arguable claim that trial counsel was

ineffective for failing to obtain an historical cell site expert to interpret and testify about his phone

records. Defendant argues that the unnamed expert “could have offered an opinion or explained to

the jury any location data associated with French’s cell phone records, which arguably could have

corroborated alibi witnesses’ assertions that French was with them at the time of the shooting.”

Defendant concludes that the information would have bolstered the defense theory that defendant

was not in the location of the shooting at the time it occurred.

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¶ 55 The State responds that defendant’s argument is barred by res judicata, where it essentially

mirrors defendant’s direct appeal claim that trial counsel was ineffective for failing to present cell

site evidence to show the location of his phone during the shooting. The State also argues that

defendant forfeited this argument by not raising it on direct appeal. Finally, the State contends that

defendant cannot make out even an arguable claim of prejudice because defendant did not allege

that there is an expert who would provide beneficial testimony and, instead, defendant only

provided general information about cell site analysis rather than cell site information relevant to

this case.

¶ 56 A postconviction petition “shall have attached thereto affidavits, records, or other evidence

supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122-2 (West

2018). “It is enough for first-stage purposes that the defendant has provided substantive evidentiary

content showing his claims are capable of corroboration and independent verification.” People v.

Allen,

, ¶ 37. The evidentiary content must also “identify with reasonable certainty

the sources, character, and availability of the alleged evidence supporting the petition’s

allegations.” People v. Delton,

(2008).

¶ 57 Defendant’s petition and accompanying evidentiary materials fail to establish with

reasonable certainty the availability of either beneficial cell site location evidence or an expert

willing to provide beneficial testimony. To be sure, defendant has presented evidence that cell site

location evidence exists in certain circumstances, which the State could not and does not dispute.

See People v. Fountain,

(noting that “the use of cell phone location

records to determine the general location of a cell phone is not ‘new’ or ‘novel’ and has been

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widely accepted as reliable by numerous courts throughout the nation”). However, the fact that the

evidence exists in some cases does nothing to establish that it exists in defendant’s case.

¶ 58 Of note, the same single-page cellular phone record has been used as evidence in all the

proceedings that have occurred since defendant’s trial. Defendant proffered the phone records in

support of his posttrial pro se motion alleging ineffective assistance of counsel. Defendant stated

to the court that the document was his subpoenaed cell phone record provided by trial counsel.

During the Krankel hearing on this issue, trial counsel unequivocally stated that there was no

evidence that placed defendant’s phone in a particular location. On direct appeal, this court noted

that it was unclear whether defendant’s claim pertained to a failure to subpoena GPS records or a

failure to present GPS evidence that had already been subpoenaed.

¶ 59 In this appeal, it is no clearer whether any cell site evidence exists for defendant’s phone.

Defendant has provided a sample phone record from Independent Digital Forensics Laboratory

that displays where cell site information can be found on a Sprint phone record. However,

defendant’s single-page phone record does not contain the column where the cell site information

would be found. It is doubtful that the cell site information would be available now, nearly twelve

years after the shooting, when it was not available when the records were produced in July 2012.

Defendant has otherwise not provided any additional evidence to establish a reasonable certainty

that favorable cell site evidence exists. Without any cell site evidence, it is unclear how an expert

witness in the area would benefit defendant’s case.

¶ 60 Because defendant failed to attach evidence to his petition establishing to a reasonable

certainty that beneficial cell site information exists in his case, the trial court properly dismissed

this claim at the first stage of proceedings.

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¶ 61 3. Ineffective Assistance of Trial Counsel: Failure to Obtain Eyewitness Expert

¶ 62 Defendant’s final contention is that trial counsel was ineffective for failing to obtain an

expert witness in the field of eyewitness identification. Defendant lists several topics an expert

“could have” testified about, including: (1) the unreliability of particular lineup procedures, (2) the

phenomenon of “mugshot commitment,” (3) the low correlation between a witness’s confidence

and the accuracy of his or her identification, (4) the effect a weapon has on identifications, and

(5) the fallibility of an identification of a person by an acquaintance. Defendant did not raise this

issue on direct appeal and, thus, the issue is forfeited.

¶ 63 “[W]here a petitioner has previously challenged a judgment of conviction on appeal, the

judgment of the reviewing court will serve to bar postconviction review of all issues actually

decided by the reviewing court as well as any other claims that could have been presented to the

reviewing court.” People v. Robinson,

. As defendant recognizes, the

scientific research around eyewitness identifications was “sound and widely accepted” at the time

of his trial. As far back as 1990, the Illinois Supreme Court began to recognize the emergence of

eyewitness expert testimony. See People v. Enis,

(1990) (noting that “in

the past decade a number of courts have held that expert testimony concerning eyewitness

identification should be admissible in certain circumstances”).

¶ 64 In People v. Navarro, the defendant filed a motion for leave to file a successive

postconviction petition. People v. Navarro,

. In the petition,

defendant alleged that trial counsel was ineffective for failing to call an expert witness to testify

about the reliability of eyewitness identifications.

This court rejected the defendant’s argument

that he established cause for failing to raise the claim earlier in the proceedings, concluding “the

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claim that the defendant’s counsel was ineffective for failing to offer expert testimony on the

subject of eyewitness identification was available to the defendant at the time of direct appeal in

2007, and he should, and could, have raised the issue in that appeal.” Id. at ¶ 13; see also People

v. Hernandez,

(finding an argument identical to defendant’s

forfeited where “the authority permitting the use of expert eyewitness testimony was decided in

1990” and “trial counsel’s failure to call an eyewitness expert [was] apparent on the face of the

record”).

¶ 65 Defendant has forfeited this argument by failing to make the argument on direct appeal.

Defendant has also not argued that direct appellate counsel was ineffective for failing to argue trial

counsel’s ineffectiveness on this basis. See People v. English,

(noting that

the doctrine of forfeiture is relaxed “where the forfeiture stems from the ineffective assistance of

appellate counsel”). For these reasons, this issue was properly dismissed by the trial court.

¶ 66 III. CONCLUSION

¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 68 Affirmed.

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