Nos. 1-19-2484, 1-20-0722, and 1-20-1175 (cons.) Third Division June 29, 2022.

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Respondent-Appellee, ) ) v. ) Appeal from the Circuit Court ) of Cook County. JAMES SOTO, ) ) Nos. 81 CR 7761-01 Petitioner-Appellant. ) 81 CR 7761-05 _________________________________________ ) (cons.) ) THE PEOPLE OF THE STATE OF ILLINOIS, ) The Honorable ) Timothy J. Joyce, Respondent-Appellee, ) Judge Presiding. ) v. ) ) DAVID AYALA, ) ) Petitioner-Appellant. ) ) ______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Burke concurred in the judgment and opinion.

OPINION

¶1 The consolidated appeals of defendants James Soto (Soto) and David Ayala (Ayala)

present a host of issues arising from defendants’ convictions and sentences for a crime commonly referred to as the Pietrowski Park shootings. On August 16, 1981, 16-year-old Julie

Limas (Limas) and 18-year-old Hector Valeriano (Valeriano), a United States Marine home

on leave, were standing with a group of young people in Pietrowski (formerly Keeler) Park,

located at 31st Street and Keeler Avenue in Chicago, Illinois. Juan Padilla (Padilla), a member

of the Latin Kings street gang, was also in the park. At trial, the State’s witnesses described a

dark blue van approaching the park and two gunmen firing from a gangway beside the park—

one armed with a rifle and one armed with a handgun. Limas and Valeriano were both killed.

Padilla was struck by a bullet in the buttocks but survived his injuries.

¶2 Soto and Ayala were jointly tried before a single jury and convicted of the murders of

Limas and Valeriano, the attempted murder of Padilla, and conspiracy to commit murder.

Ayala was convicted on an accountability theory, based on testimony that he ordered the “hits”

from a meeting of the Two-Six street gang in the basement of his home. Soto, Ayala’s cousin,

was convicted for his alleged role as the handgun shooter. There was no physical evidence

linking either defendant to the crimes. Indeed, only one trial witness, Wally “Gator” Cruz

(Cruz), testified to both Soto and Ayala’s involvement in the shooting. Cruz, who admitted to

driving the dark blue van that carried the shooters to Pietrowski Park, was originally indicted

for the murders with Soto and Ayala, but entered into an agreement with the State whereby he

would plead guilty to conspiracy to commit murder and the State would recommend a five-

year sentence, to be served at 50% time, in exchange for his testimony against his codefendants.

Both Ayala and Soto were sentenced to two life-without-parole sentences, plus thirty years for

attempted murder and seven years for conspiracy to commit murder. Defendants timely filed

direct appeals of their convictions and sentences, which this court affirmed.

2 ¶3 In 2015, pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2014)), defendants filed the postconviction petitions that are the subject of the instant

appeal. In his petition, Ayala alleged, among other things, that he is actually innocent of the

murders of Limas and Valeriano, and that his trial counsel labored under a prohibited conflict

of interest where defense counsel simultaneously represented an alternate suspect who was

later named as a state witness. Like Ayala’s initial petition, Soto’s 2015 petition, which was a

successive petition, alleged that he is actually innocent of the murders of Limas and Valeriano.

Soto also adopted Ayala’s claim that his trial counsel labored under a prohibited conflict of

interest.

¶4 Separately, in 2020, Ayala sought leave to file a successive petition pursuant to the Act

alleging that, as applied to him, his natural life sentence for a crime committed when he was

only 18 years old violates the proportionate penalties clause of our Illinois Constitution (Ill.

Const. 1970, art. I, § 11).

¶5 Soto and Ayala supported their 2015 petitions with affidavits from numerous individuals

attesting to defendants’ lack of involvement in the Pietrowski Park shootings. The petitions

also alleged significant misconduct on the part of the police, the State, and defendants’ own

trial counsel. Specifically, Soto and Ayala alleged that after their trial and convictions, they

learned that unbeknownst to them, their trial counsel also represented an individual, Victor

Rodriguez (V. Rodriguez), where at least three disinterested eyewitnesses told investigators V.

Rodriguez was the handgun shooter. V. Rodriguez was indicted for the murders in juvenile

court, but the charges were ultimately dismissed, and V. Rodriguez was named as a prosecution

witness in the defendants’ case. In addition, since the time of trial, several witnesses have either

3 recanted their testimony, averred that they only failed to testify on defendants’ behalf at trial

out of fear of retribution from the State, or attested that Cruz’s trial testimony was false.

¶6 After advancing defendants’ 2015 petitions to the second stage of postconviction

proceedings, the trial court granted the State’s motions to dismiss both petitions. The trial court

also denied Ayala leave to file his successive petition alleging a violation of the proportionate

penalties clause. For the reasons that follow, we reverse the trial court’s order dismissing

defendants’ 2015 petitions and remand for a third-stage evidentiary hearing on defendants’

claims of actual innocence and their trial counsel’s conflict of interest. However, we affirm the

trial court’s order denying Ayala leave to file his successive petition raising a youth-based

proportionate penalties clause claim.

¶7 BACKGROUND

¶8 In September 1982, Soto and Ayala were jointly tried before a single jury and convicted of

the murders of Valeriano and Limas, the attempted murder of Padilla, and conspiracy to

commit murder. Both Ayala and Soto were sentenced to two life-without-parole sentences,

plus thirty years for attempted murder and seven years for conspiracy to commit murder, to be

served concurrently. Soto and Ayala were indicted with their codefendants, Cruz and Ruben

Palomo (Palomo). 1 Palomo was tried simultaneously by a second jury and found guilty of

attempted murder. The jury was hung as to the murder charges against Palomo. Palomo

thereafter pled guilty to one charge of murder and received a sentence of thirty years, to run

concurrently with a 25-year sentence for the attempted murder.

1 Defendants were also indicted with John “JJ” Rojas, but the record on appeal does not reflect the disposition of his case.

4 ¶9 Because Soto and Ayala have raised claims of actual innocence, we describe the evidence

presented at trial and contained in the affidavits submitted with their postconviction petitions

in detail in this opinion.

¶ 10 I. The State’s Case at Trial

¶ 11 In sum, the State posited that Soto and Ayala were high ranking members of the Two-Six

street gang, and that the Latin Kings were their rivals. According to the State, beginning on the

afternoon of August 16, 1981, Ayala hosted a Two-Six meeting in the basement of his home

at which “making hits” on Latin Kings was discussed. At some point in the evening, Ayala

received a phone call and learned that there were Latin Kings in Pietrowski Park. Ayala then

provided weapons to Soto and Palomo, who left Ayala’s home with Cruz in Ayala’s dark blue

van. According to the State, Cruz was the driver of the dark blue van, while Palomo sat in the

passenger seat, and Soto sat in the rear. The State alleged that after parking the van in an alley

near the park, Palomo and Soto walked into a gangway beside the park and fired into a crowd

that had gathered in the park, with Palomo firing the rifle and Soto firing the handgun. After

the shooting, Cruz, Palomo, and Soto returned to Ayala’s home, where Ayala received another

phone call informing him that three people had been shot in the park and two had died.

¶ 12 As noted, the only State witness to testify from personal knowledge that either Soto or

Ayala was involved in the crime was their alleged accomplice, Cruz. Cruz testified that on

August 16, 1981, he attended a Two-Six gang meeting in the basement of Ayala’s home in

Westchester, Illinois, at which the Two-Sixes discussed “making hits” on their rival street

gang, the Latin Kings. The meeting lasted from around 12:00 or 12:30 p.m. until around 6:00

p.m. that evening. According to Cruz, he attended the basement meeting with Ayala and six

other Two-Sixes: Robert “Shy” Jacquez (R. Jacquez), Vince “Demon” Hodge (V. Hodge),

5 Randy “Little Demon” Hodge (R. Hodge), Tom Gutierrez (Gutierrez), Alex “Little Al” Valle

(Valle), and Sal Guzman (Guzman). Cruz testified that although both Soto and Palomo were

also present in Ayala’s home at the time, they were upstairs, and did not attend the basement

meeting. According to Cruz, Tyrone Ayala (T. Ayala), Theodore “Sweetwine” Ordonez (T.

Ordonez) 2 and Martha Ordonez (M. Ordonez) were also in the house at the time but remained

upstairs with Soto and Palomo.

¶ 13 On cross-examination, Cruz admitted that he previously told investigators that several

other individuals were at Ayala’s house that day. Specifically, Cruz previously told

investigators that Javier Jacquez (J. Jacquez), Victor “Fat Victor” Rodriguez (V. Rodriguez),

and John “JJ” Rojas (Rojas) attended the basement meeting. 3

¶ 14 Cruz testified that by 6:00 p.m. all the Two-Sixes had departed Ayala’s home except for

Cruz, Soto, and Palomo. Around 8:30 or 9:00 p.m., Ayala received a phone call and summoned

Soto and Palomo into Ayala’s bedroom on the second floor of the house. Cruz heard someone

yell out “Kings,” and Palomo instructed Cruz to start a van. Cruz went outside, to the driveway,

and started Ayala’s van that was parked there. He then returned to the house and observed

Ayala walk down the stairs, into the basement, and return with a handgun and a rifle, which

Ayala began cleaning. After “a while,” Soto came into the living room from the second floor

of the home. Ayala handed Soto the handgun, which Soto wrapped in a black cloth. Palomo

then grabbed the rifle from Ayala, wrapped it in a sweater, and handed it to Cruz, who exited

the house and placed the rifle in the backseat of the van. Next, Soto and Palomo exited Ayala’s

house and entered the van. Cruz sat in the driver’s seat, while Palomo sat in the passenger seat,

2 According to M. Ordonez’s trial testimony, T. Ordonez was deceased by the time of the jury trial. 3 Although Cruz denied telling investigators that Robert “Rabbit” Villagomez (Villagomez) was also in the home, a detective was called to testify to Cruz’s prior statement that Villagomez was present.

6 and Soto sat in the rear. The trio pulled out of the driveway and headed in the direction of

Pietrowski Park.

¶ 15 Cruz drove the van past Pietrowski Park and observed people congregating there. After

passing the park, Cruz encountered two teenage girls he knew, Isabel “Chave” Gomez (Gomez)

and Lisa Suarez (Suarez), at an abandoned gas station. From the van, Palomo asked the girls

“if the Kings were still in the park.” Gomez and Suarez replied, “they are.” Palomo told them,

“Go home, and we’ll take care of it.” Palomo instructed Cruz to continue to drive the van back

toward Pietrowski Park.

¶ 16 While driving back in the direction of Pietrowski Park, near the corner of 31st Street and

Keeler Avenue, Cruz encountered Rojas and V. Rodriguez in a “reddish” Matador vehicle,

which Cruz recognized as belonging to V. Rodriguez. Palomo had a conversation with V.

Rodriguez that Cruz could not hear. After Palomo returned to the van, Cruz continued to drive

the van toward the Pietrowski Park, into an alley beside the park. Once in the alley, Palomo,

armed with the rifle, and Soto, armed with the handgun, exited the van, and walked behind the

van into a gangway while Cruz remained inside the van. Shortly thereafter, Cruz heard both

weapons fire. Although Cruz did not testify that he personally observed the shooters fire the

shots, he told the jury that when Palomo and Soto ran back into the van they said, “let’s go; we

might have hit somebody,” and they were still holding their weapons. Cruz drove away from

the scene and the trio returned to Ayala’s home and sat in Ayala’s living room. A short while

later, Ayala received a phone call, after which Ayala announced, “two people got killed at the

park and one got wounded.”

7 ¶ 17 On cross-examination, Cruz admitted that he previously told investigators that he observed

Rojas and V. Rodriguez, whom he had observed driving the reddish Matador vehicle before

the shooting, walk into the alley holding guns.

¶ 18 Cruz also informed the jury of the deal he received from the State. Cruz testified that in

exchange for his truthful testimony before the grand jury and at trial, the State offered to

recommend a five-year sentence for conspiracy to commit murder, which Cruz understood

under Illinois law would require that he serve only two and a half years. He also testified that

shortly after the Pietrowski Park shootings, he left the state. He returned about a month later

and spoke with investigators a month after he returned.

¶ 19 Eyewitness Hugo Flores (Flores) testified that he observed the shooters and provided

descriptions of the shooters to the jury. He told the jury that he played softball at the park the

afternoon of the shooting and continued to talk and drink beer with his friends at the park into

the evening. At approximately 9:25 p.m., Flores left his group of friends to use the bathroom

away from the crowd, by some trees further into the park. At around 9:30 p.m. he heard two

gunshots, but he could not tell where they were coming from. He then heard four more

gunshots. During this second round of shooting, he turned and observed two people standing

in a gangway, “aiming at the crowd.” He testified that “one had a handgun, and the other one

had a rifle.” Flores described the rifle shooter as about five feet and seven inches tall, between

160 and 165 pounds, and around 17 or 18 years old. Flores testified that the handgun shooter

was approximately five feet and six inches tall and around 16 years old. Flores is Mexican, and

both shooters appeared to Flores to be white, not Latino or Mexican. He further testified that

he spoke to investigators about three times in the month of August 1981 but was never asked

to participate in a photo lineup.

8 ¶ 20 Eyewitness John Orozco (Orozco) likewise testified that he was playing softball at

Pietrowksi Park all afternoon on the day of the shooting. That evening, there were around thirty

or forty people in the park, and Orozco and his friends were hanging out, talking, and drinking

beers. Later, several Latin Kings entered the park and gathered there drinking beers as well. At

some point, Orozco observed a light blue “animal care” van drive into the park. The van

stopped, shined a spotlight on the crowd, and left after five or ten minutes. Orozco did not

observe the driver of the van. However, Orozco further testified that immediately after the

shooting, he told investigators that he believed Rojas may have been the driver of the animal

care van because he knew Rojas worked for that department. About a half hour later, Orozco

observed a different, dark blue van enter the park. He testified that he had previously observed

Cruz and Rojas drive the dark blue van, which he described as “Two-Six van.” A short while

later, the shooting began. Orozco testified that he did not observe the shooters.

¶ 21 The State then called eyewitness and victim, Padilla, who told the jury that he was a

member of the Latin Kings, and that he was in the park on the night of the shooting with a few

friends and fellow Latin Kings. According to Padilla, Pietrowski Park was rival gang territory

for the Latin Kings, and the Two-Sixes were the Latin Kings’ “main rivals.” Padilla testified

that he did not observe a dark blue van in the park that evening, but he did observe an “animal

care” van shine a spotlight on the crowd before the shooting took place. Padilla testified that

he did not observe the shooters.

¶ 22 Finally, Gomez testified that she was in Pietrowski Park on the afternoon of the shooting

with her cousins and her friend, Suarez, who was not called to testify. There were around 30

to 40 people in the park, including a man named Mario Abarca (Abarca), who Gomez testified

was a member of the Latin Kings. Before the shooting, Gomez left the park with Suarez and

9 walked to a restaurant near the park. Gomez testified that she observed Suarez go to a telephone

area in the restaurant, from which, Suarez told her, Suarez made a call to Ayala’s home. The

defense objected to Gomez’s hearsay statement regarding who Suarez called, which the trial

court sustained. The trial court instructed the jury to disregard the statement.

¶ 23 Gomez testified that she and Suarez were walking home from the restaurant at around 9:15

p.m. when they encountered Cruz and Palomo in an abandoned gas station parking lot. Cruz

was driving a dark blue van and Palomo was in the passenger seat. Gomez could not tell if

anyone else was in the van. Palomo asked Gomez who was in the park, and she told him that

the Two-Sixes were there, along with “K-Town Party People, Sin City Boys, and this King by

the name of Mario [Abarca].” Gomez observed Cruz drive the van in the direction of the park,

and Gomez and Suarez continued walking home. As the pair passed Pietrowski Park on their

way home, Gomez heard gunshots.

¶ 24 On cross-examination, Gomez testified that she was not interviewed by police until about

two to three weeks after the shooting, but that the police returned to interview her every two

or three days thereafter. The detectives would “come by [her] house” and “start telling [her]

dirty things,” and “threaten” her. The officers told her, “We are going to take you by the park.

We are going to tell all the people that you did it and you set them up.” After a few occasions

of such threats, Gomez called the Chicago Police Department’s Office of Professional

Standards (OPS) to make a complaint. Gomez testified that OPS told her they would “take care

of it.” Approximately one month later, both she and Suarez were arrested and charged with

committing the murders of Limas and Valeriano. Gomez and Suarez were held overnight while

the police searched their homes. The murder charges were dropped the following day.

10 ¶ 25 During re-cross of Gomez, she revealed that although the State had dismissed the murder

charges, the State maintained obstruction of justice charges against her for the year leading up

to trial. Defense counsel, having only learned about the obstruction charges against Gomez

from Gomez on the stand, requested a recess so that counsel could investigate the

circumstances of the pending charges.

¶ 26 The following day, at a sidebar, defense counsel made a record showing that the State had

failed to previously disclose any information about the obstruction charges against Gomez.

Defense counsel’s investigation of the obstruction charges against Gomez also revealed that

unbeknownst to defense counsel, other potential witnesses, including V. Hodge, R. Hodge, and

Suarez, also had pending obstruction charges against them. The Assistant State’s Attorney

responded that any lack of disclosure was unintentional and that the charges were a matter of

public record. Gomez continued her testimony. She testified that she believed the Assistant

State’s Attorney who brought the obstruction charges against her was her lawyer, because he

had waived all of her court appearances on the obstruction charges, and because the Assistant

State’s Attorney told Gomez that the charges against her would be dismissed after her

testimony at defendants’ trial.

¶ 27 In addition to the testimony described above, the State presented evidence from (1) the

decedents’ relatives, who testified as life-and-death witnesses, (2) evidence technicians, who

described bullet fragments recovered from the scene, (3) a firearms examiner, who presented

a demonstrative rifle that might have been similar to the one that the rifle shooter used, (4) the

medical examiner, who explained the causes of death, (5) a detective, who testified about

executing a search warrant at Ayala’s home (resulting in the seizure of a bullet cartridge and a

rifle manual) and who identified Soto, Ayala, and others as Two-Six gang members, and (6)

11 stipulations that Soto was 20 years old at the time of the offense and that Ayala was 18 years

old at the time of the offense.

¶ 28 II. The Defense Case at Trial

¶ 29 The defense’s presentation at trial focused on impeaching Cruz’s credibility and rebutting

his testimony that a gang meeting took place in Ayala’s basement on the day of the Pietrowski

Park shootings. Importantly, however, the defense did not call any witnesses who, according

to statements given to investigators shortly after the shooting, identified the handgun shooter

as someone other than Soto. Instead, the defense called eight witnesses who provided the

testimony further described below.

¶ 30 Valle, who Cruz identified at trial as having attended the basement meeting, testified he

was not and could not have been at Ayala’s home on the day of the Pietrowksi Park shootings,

because he was incarcerated at the juvenile detention center known as the “Audy Home.” He

remained in the custody of the State of Illinois from August 5, 1981, through his trial testimony

on September 24, 1981, and was not released from custody for any reason during that time. A

juvenile court clerk confirmed through her trial testimony that Valle was taken into custody on

August 6, 1981, and remained incarcerated from that date through trial.

¶ 31 Villagomez, who Cruz identified at trial as having attended the basement meeting, testified

that he was at Mother Cabrini Hospital on the day of the Pietrowski Park shootings, recovering

from a motorcycle accident. Villagomez testified that was released from the hospital on August

19, 1981. The defense called a clerk of medical records for Mother Cabrini Hospital, who

corroborated Villagomez’s presence at the hospital. Villagomez further testified that on

October 16, 1981, he was arrested and charged with the murders of Limas and Valeriano. He

was released three days later, and the charges were ultimately dismissed.

12 ¶ 32 J. Jacquez, who Cruz told investigators had attended the basement meeting, testified that

he did not know Ayala or Soto personally, and that he was at his own home on the day of the

shooting, not at any meeting at Ayala’s house. J. Jacquez further testified that in October 1981

he was also arrested and charged with the murders of Limas and Valeriano, but the charges

were ultimately dismissed.

¶ 33 T. Ayala, who Cruz told investigators was in Ayala’s home at the time of the basement

meeting, testified that he was in Woodridge, Illinois at his mother’s house on the day of the

shootings—not his brother Ayala’s house. T. Ayala further testified that on October 15, 1981,

he was arrested and charged with the murders of Limas and Valeriano, but the charges were

ultimately dismissed.

¶ 34 M. Ordonez, who Cruz told investigators was in Ayala’s home at the time of the basement

meeting, confirmed that she was indeed at Ayala’s home with her children on the day of the

Pietrowski Park shootings. She testified that Soto, her brother, was also at the house, but said

that Soto did not leave at any point. She further confirmed that T. Ayala was not present in the

house that day.

¶ 35 Diana Guana (Guana), who Cruz had not identified as being present in Ayala’s home on

the day of the shootings, testified that she was Soto’s girlfriend. She testified she was with Soto

at Ayala’s home on the day of the Pietrowski Park shootings, and never observed Soto leave

the house. She denied that Cruz was present at Ayala’s house that day and denied that any gang

meeting took place.

¶ 36 Alisa Orozco testified that, after running into Cruz, whom she knew from grammar school,

in the witness quarters of the State’s Attorney’s Office, she would receive calls from Cruz

during the month of March 1982. On a few occasions, Cruz told her he testified falsely before

13 the grand jury about Soto’s and Ayala’s involvement in the Pietrowski Park shootings and told

her he would lie at trial.

¶ 37 Carol Chapa likewise testified that Cruz frequently called her in March 1982, and that Cruz

told her he was going to lie at the grand jury proceedings and at defendants’ trial because he

was “afraid.”

¶ 38 The defense also read into evidence a stipulation that Ayala did not have a dark blue van

registered to him in at or around the time of the Pietrowski Park shootings.

¶ 39 III. Jury Instructions

¶ 40 Before voir dire of Soto and Ayala’s jury began, the trial court outlined and explained the

fundamental principles of presumption of innocence and reasonable doubt. The trial court

further questioned each juror about the State’s burden of proof and the jurors’ obligation if that

burden was not sustained. During closing argument, defense counsel emphasized the

presumption of innocence and the State’s burden to prove a defendant guilty beyond a

reasonable doubt. However, at the jury instructions conference, the Illinois pattern instructions

on the presumption of innocence and the burden of proof (Illinois Pattern Jury Instructions,

Criminal No. 2.03 (2d ed. 1981)) were not tendered by the State, requested by the defense, or

required by the court. The pattern instructions were not read to the jury; nor did the jury receive

a written instruction on presumption of innocence or burden of proof.

¶ 41 The jury was also not provided the accomplice-witness instruction, Illinois Pattern Jury

Instructions, Criminal, No. 3.17 (2d ed. 1981), which states that, “When a witness says he was

involved in the commission of a crime with the defendant, the testimony of that witness is

subject to suspicion and should be considered by you with caution. It should be carefully

examined in light of the other evidence in this case.” However, the jury was given Illinois

14 Pattern Jury Instruction, Criminal, No. 3.12 (2d ed. 1981), which reads, “Evidence that a

witness has been convicted of an offense may be considered by you only as it may affect the

believability of the witness.” In addition, during closing arguments, defense counsel argued

that Cruz had received a “sweet” deal in exchange for his testimony, and further argued that

Cruz was a liar, lacked credibility, and had a motive to give false testimony.

¶ 42 IV. Criminal Trial Outcome

¶ 43 After eight hours of deliberation, the jury sent out a note saying it was deadlocked on all

but one of the charges against Soto and Ayala. The trial court ordered the jury to continue

deliberating. After about two more hours, the jury returned verdicts finding both defendants

guilty of all counts.

¶ 44 The trial court sentenced both Soto and Ayala to two life-without-parole sentences for the

murder, thirty years’ incarceration for attempted murder, and seven years for conspiracy, all

concurrent.

¶ 45 V. Defendants’ Direct Appeals

¶ 46 Soto and Ayala filed a consolidated direct appeal of their convictions and sentences, which

this court further consolidated with Palomo’s separately filed direct appeal. See People v.

Ayala,

(1986). Soto and Ayala argued that the trial judge erred by failing

to instruct the jury on presumption of innocence and burden of proof (Illinois Pattern Jury

Instructions, Criminal No. 2.03 (2d ed. 1981)), by granting a pretrial motion to substitute judge

made by the prosecution’s primary witness, Cruz, who was still a defendant at the time he

made the motion, and by imposing natural life sentences. Ayala,

. This

court affirmed both defendants’ convictions and sentences. Ayala,

.

¶ 47 VI. Ayala’s Federal Habeas Petition

15 ¶ 48 On April 22, 1997, Ayala filed a pro se petition for a writ of habeas corpus in the United

States District Court for the Northern District of Illinois, alleging that the Illinois Appellate

Court engaged in an unreasonable application of United States Supreme Court precedent when

it affirmed his convictions on direct appeal, even though his jury was not instructed on the

principles of proof beyond a reasonable doubt and burden of proof (Illinois Pattern Jury

Instructions, Criminal No. 2.03 (2d ed. 1981)). The federal district court judge denied Mr.

Ayala habeas relief but sua sponte granted a certificate of appealability to allow Ayala the

opportunity to the appeal the decision to the United States Court of Appeals for the Seventh

Circuit. See U.S. ex rel. Ayala v. Washington,

, at *6 (N.D. Ill. Sept. 30,

1997). However, according to Ayala, he was unable to perfect that appeal as he was acting pro

se and had been transferred to an out-of-state federal facility where he did not receive notice

that the certificate of appealability had been granted.

¶ 49 VII. Soto’s Initial Postconviction Petition

¶ 50 On August 29, 1991, Soto filed his first pro se postconviction petition pursuant to the Act.

In the petition, Soto alleged ineffective assistance of both trial and appellate counsel. First,

Soto argued that his counsel was ineffective for failing to call known alibi witnesses.

Specifically, he maintained that if called to testify, Gutierrez, R. Jacquez, V. Hodge, R. Hodge,

John Martinez (Martinez), and Guzman would have provided testimony discrediting Cruz’s

trial testimony that a gang meeting occurred at Ayala’s home on the day of the Pietrowski Park

shootings. However, Soto’s August 29, 1991, petition did not provide supporting affidavits

from these individuals.

¶ 51 Next, Soto argued that his trial counsel labored under a conflict of interest where “for a

time” his attorney, John DeLeon (DeLeon), unbeknownst to him, also represented 16-year-old

16 V. Rodriguez. According to police reports attached as exhibits to Soto’s August 29, 1991,

petition, several eyewitnesses gave contemporaneous statements to police identifying V.

Rodriguez, not Soto, as the handgun shooter. Specifically, according to these police reports,

one of the alleged intended targets of the shooting, Abarca, knew V. Rodriguez from school

and told the officers that it was V. Rodriguez who had been shooting at him. Additionally,

Darrell Mullins (Mullins), who was with Abarca at Pietrowski Park during the shooting,

informed the police that he recognized the offender as V. Rodriguez. Eyewitness Laura Salazar

also told the police that she observed V. Rodriguez, who she knew previously, first in the

shooters’ van and again in the alley where the shooters stood. Soto also included evidence that

DeLeon represented V. Rodriguez at the police station on the night of V. Rodriguez’s arrest

on October 5, 1981. Soto argued that DeLeon’s representation of V. Rodriguez, an alternate

suspect on the same murder charges, caused DeLeon not to call the witnesses that inculpated

V. Rodriguez, which in turn rendered DeLeon’s counsel constitutionally ineffective.

¶ 52 Soto’s initial August 29, 1991, petition further alleged that his trial counsel failed to review

certain discovery material, failed to timely object to prejudicial comments and questioning by

the State, and failed to request jury instructions regarding the credibility of accomplice

testimony (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981)), and

presumption of innocence and burden of proof (Illinois Pattern Jury Instructions, Criminal No.

2.03 (2d ed. 1981)). Soto also claimed that he was denied a fair trial where one of the jurors

had a prior acquaintance with one of the victims. Lastly, Soto argued that appellate counsel

was ineffective for failing to raise certain of these issues in his direct appeal.

¶ 53 The trial court summarily dismissed Soto’s August 29, 1991, petition on September 17,

1991. The trial court’s written order did not provide bases for the dismissal and instead stated

17 only that the petition was “dismissed.” On October 11, 1991, Soto filed a motion for

reconsideration and a “supplemental” pro se petition alleging that the State knowingly used

perjured testimony from Cruz to secure his conviction, and that the evidence at trial failed to

prove Soto guilty beyond a reasonable doubt. In support of the supplemental petition, Soto

attached affidavits from Padilla, R. Jacquez, and Jose Pizzaro. As relevant to the instant appeal,

Padilla, the surviving victim of the shooting, averred that he told the Assistant State’s Attorney

that he observed the faces of the shooters and could identify them as Cruz and Rojas. Padilla

further averred that agent of the State’s Attorneys’ Office pressured him into testifying at trial

that he did not observe the shooters’ faces.

¶ 54 The affidavit of R. Jacquez, who Cruz testified had attended the basement gang meeting at

Ayala’s home, averred that after the Pietrowski Park shootings, R. Jacquez was arrested, told

he was being charged with the murders of Limas and Valeriano, and was threatened with the

death penalty if he did not admit to being in Ayala’s home on the day of the Pietrowski Park

shootings. R. Jacquez further averred that he was intimidated into making false statements

before the grand jury and wanted to tell the grand jury that he was “never at a meeting on

August 16, 1981,” but the judge at the grand jury hearing “made him use his Fifth Amendment

right” and he did not finish testifying.

¶ 55 On November 8, 1991, the trial court summarily dismissed Soto’s motion for

reconsideration and his supplemental pro se postconviction petition. Soto appealed, raising

only the issues of knowing use of perjured testimony and ineffective assistance of appellate

counsel for failing to argue that the verdicts of guilty for conspiracy to commit murder and

murder were inconsistent verdicts.

18 ¶ 56 In an unpublished Rule 23 order entered on February 16, 1993, this court determined that

appellate counsel was not ineffective for failing to raise the issue regarding the inconsistent

verdicts because the failure to raise the issue did not result in substantial prejudice. People v.

Soto, No. 1-91-4024, slip op. at 6 (1993) (unpublished order under Supreme Court Rule 23).

However, the appellate court vacated the conspiracy conviction in the interests of judicial

economy. This court also reversed and remanded the matter for further proceedings under the

Act on the ground that the allegations contained in the affidavit submitted by Padilla met the

low threshold of presenting the gist of a meritorious constitutional claim at the first stage. The

mandate was received by the trial court on April 26, 1993, and the Public Defender’s Office

was appointed to represent Soto on May 14, 1993.

¶ 57 On April 21, 1993, before the trial court received the appellate court’s mandate, Soto filed

a second “supplemental” pro se petition, raising the same issues he previously raised in his

initial August 29, 1991, petition. In support, Soto attached his own affidavit and resubmitted

the affidavits attached to his October 11, 1991, supplemental petition. He also submitted a new

affidavit from Joseph Rodriguez. On September 21, 1994, the State filed a motion to dismiss

Soto’s April 21, 1992, supplemental petition, arguing that the allegations in the affidavits were

conclusory and insufficient to entitle Soto to an evidentiary hearing. Soto’s postconviction

counsel did not respond to the State’s motion to dismiss.

¶ 58 In January 1996, the Public Defender’s Office was permitted to withdraw as Soto’s counsel

and a private attorney was appointed to represent him. Approximately two years later, on

January 29, 1998, the trial court converted Soto’s status hearing date into a hearing on the

State’s still-pending motion to dismiss and granted the motion. Soto’s appointed attorney was

not present in court when the motion was granted.

19 ¶ 59 On February 25, 1998, Soto filed a motion to reconsider the court’s January 29, 1998,

dismissal order and an “amended” pro se petition. On March 13, 1998, Soto filed another pro

se amendment to his petition. The March 13, 1998, amended petition incorporated Soto’s prior

arguments and affidavits but also included an affidavit from Gutierrez, who Cruz testified was

present at the basement meeting in Ayala’s home on the day of the shootings. Gutierrez averred

that, contrary to Cruz’s testimony, he was not at Ayala’s home nor in any basement meeting

on August 16, 1981. 4

¶ 60 In an unpublished order entered on June 14, 2000, this court vacated the trial court’s order

of January 29, 1998, dismissing Soto’s initial petition. People v. Soto, No. 1-98-1313 (2000)

(unpublished order under Supreme Court Rule 23). The matter had come before the appellate

court on the State’s confession of error. The State confessed error on the ground that at the

time the trial court granted the State’s motion to dismiss the petition, Soto’s attorney was not

present in court and had not yet filed a Supreme Court Rule 651(c) certificate. 5 The matter was

again remanded for further proceedings under the Act. However, due to a clerical error, the

remand order was not docketed. On October 12, 2001, Soto’s petition was reinstated, and new

counsel was appointed.

¶ 61 On May 13, 2003, the State filed a second motion to dismiss. The State argued that Soto’s

March 13, 1998, amended petition failed to raise any claims that were cognizable under the

4 In addition, Soto’s March 13, 1998, amended petition attached three affidavits from himself, as well as the previously submitted affidavits from Jacquez, Padilla, and Pizzaro. The petition also purported to attach affidavits from Palomo, Cruz, Joe Cruz, Mark Giamarusti, Rene Calzada, Cheryl Atkins, Greg Escobar, and Rosalindo Soto. However, these purported affidavits are not included in the record on appeal. 5 Rule 651(c) requires a showing on the record, which may be made by a certificate from the defendant’s postconviction counsel, that counsel has (1) consulted with the defendant by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, (2) “examined the record of the proceedings at the trial,” and (3) made any amendments to the defendant’s pro se petition that are necessary for an adequate presentation of the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984).

20 Act, that his claims were conclusory, and that the March 13, 1998, amended petition was

untimely and successive.

¶ 62 On July 16, 2008, Soto’s newly appointed counsel filed a certificate indicating compliance

with Supreme Court Rule 651(c). His counsel made no further amendments to the March 13,

1998, amended petition. On May 13, 2009, the State filed another motion to dismiss the March

13, 1998, amended petition, arguing that the only surviving claim from Soto’s original pro se

petition was the claim that prosecutors intimidated Padilla into not naming the shooters. The

State maintained that Padilla’s affidavit did not support a substantial showing of a

constitutional violation because the claims were nonspecific and conclusory. Soto’s counsel

did not file a response to the motion to dismiss and informed Soto that his upcoming February

18, 2010, court date was a continuance of a previously scheduled status hearing. Instead, on

February 18, 2010, the trial court granted the State’s motion to dismiss Soto’s March 13, 1998,

amended petition.

¶ 63 Soto filed a notice of appeal from that dismissal on March 10, 2010, which was file stamped

on March 18, 2010. On March 16, 2010, Soto placed into the prison mail system a pro se

motion for reconsideration and/or reinstatement of his March 13, 1998, amended petition,

which was file stamped on March 23, 2010. On March 25, 2010, Soto placed into the prison

mail system a pro se supplemental motion for reconsideration, which was file stamped on April

6, 2010. These motions for reconsideration and/or reinstatement included new affidavits in

support, which Soto alleged his counsel had failed to attach to his petition before filing the

Rule 651(c) certificate without his knowing consent.

¶ 64 On May 14, 2010, the trial court denied Soto’s pro se motion for reconsideration and/or

reinstatement of his March 13, 1998, petition. Soto then appealed from the trial court’s

21 February 18, 2010, second-stage dismissal of his March 13, 1998, amended petition. This court

affirmed, finding that the claims asserted were either forfeited or barred by res judicata. People

v. Soto,

, ¶ 47.

¶ 65 VIII. Defendants’ 2015 Petitions

¶ 66 On February 5, 2015, Ayala, through postconviction counsel, filed his first petition for

postconviction relief under the Act. Ayala’s petition alleged that (1) he is actually innocent of

the murders of Limas and Valeriano, (2) he was denied due process where the prosecution

concealed exculpatory evidence that it had charged four key witnesses, namely Gomez, Suarez,

V. Hodge, and R. Hodge, with obstruction of justice to induce their false testimony and further

failed to produce to the defense those witnesses’ prior “inconsistent” statements, (3) he was

denied effective assistance of counsel where trial counsel failed to reasonably investigate and

present testimony from alibi witnesses and failed to screen Ayala’s jury for gang prejudice,

and (4) cumulative error. Ayala’s petition was supported by new affidavits from Abarca,

Mullins, Padilla, Palomo, R. Jacquez, Gutierrez, Guzman, V. Hodge, Gomez, R. Villagomez,

Martinez, and Guadalupe “Lupe” Mora (Mora).

¶ 67 In these affidavits, Abarca and Mullins attested that—as they told investigators shortly

after the shooting—they believed V. Rodriguez, not Soto, was the handgun shooter.

Specifically, Abarca averred that in August 1981, he was the chief of the Latin Kings section

of the neighborhood. On August 16, 1981, the day of the shootings, Abarca was in the park

with Padilla, Mullins, and another individual named Arthur Palicios (Palicios). Abarca heard

several shots and followed the shooters to find out who they were because Abarca had been

shot at by a Two-Six gang member two weeks earlier. Abarca observed “a tall, white male

22 carrying a rifle and [V. Rodriguez] carrying a handgun.” Abarca recognized V. Rodriguez from

the neighborhood and yelled at him. V. Rodriguez turned around and fired a shot at Abarca.

¶ 68 Mullins likewise averred that he was in Pietrowski Park on the evening of the shootings

with Abarca, Palicios, and Padilla. He was talking to the victim, Limas, when he heard shots

ring out from across the street. He fell to the ground until the shooting stopped, then looked to

find out where the shots came from. He observed that the shots came from the gangway

approximately 15 to 20 feet from where he was standing. He observed V. Rodriguez with a

handgun, Palomo, and Cruz carrying a rifle. He and Abarca chased the men through the

gangway. By the time Mullins reached the offenders, they jumped into a “truck that looked

like a ‘dog pound’ van.” Mullins recognized all of the men because they were Two-Six gang

members and he observed them in the area before. Mullins further averred that at the time of

the shootings, Mullins told the police what he witnessed, but was told by the police and agents

of the State’s Attorneys’ Office that he “better keep [his] mouth shut” or he would go back to

prison.

¶ 69 Padilla, a surviving victim of the shooting and rival gang member, provided a more detailed

affidavit than the one he submitted in support of Soto’s initial postconviction petition. In his

handwritten statement, Padilla averred that on the evening of the shootings, he, Mullins,

Abarca and Palicios were driving by Pietrowski Park and decided to stop there. As it started to

become dark, he observed Rojas drive by with one other individual. Padilla made eye contact

with Rojas, but Rojas kept driving and Padilla “thought nothing of it.” Approximately 20 to 40

minutes later, Padilla observed two individuals come out of a gangway and start shooting at

them. There was a streetlight by the gangway, and he observed Rojas firing a gun. He tried to

run behind his vehicle but was shot in the lower back/buttocks. Abarca chased after the

23 offenders and told Padilla that one offender was V. Rodriguez, who Abarca knew from school.

At the hospital, the police asked Padilla if Padilla knew who shot him. Padilla told them “No,”

because Padilla “wanted to take care of it [himself],” but he did not inform the police of that

ambition. Padilla averred that prior to Soto and Ayala’s trial, he was living in Texas on parole

from a drug conviction but was subpoenaed to testify. When Padilla arrived in Chicago, he

spoke to Assistant State’s Attorneys about the case. They asked Padilla if he knew who shot

him. Padilla told them it was Rojas and V. Rodriguez. The Assistant State’s Attorneys told

Padilla he “could not say that.” They told him to say that the shooters were Palomo and Soto

and that Ayala was involved. Padilla told the Assistant State’s Attorneys that he wouldn’t “get

on the stand and lie.” The Assistant State’s Attorneys tried “a couple of tactics” to try to make

Padilla comply, including threatening to violate Padilla’s parole, but Padilla refused. Padilla

averred that ultimately, he was called to testify that he was a rival gang member and did not

identify the shooters.

¶ 70 Palomo, an alleged co-offender, attested that he did not take any orders from Ayala or Soto,

but instead “operated on [his] own.” He further averred that there was no meeting that took

place on the day of the shootings “to go against a rival gang,” and that in fact, he did not meet

with Ayala or Soto on the day of the Pietrowski Park shootings.

¶ 71 R. Jacquez, Gutierrez, Guzman, and V. Hodge, all of whom, according to Cruz’s trial

testimony, attended the basement meeting in Ayala’s home on the day of the Pietrowski Park

shootings, provided affidavits attesting that they were not present at Ayala’s home on the day

in question, and further attesting to their experiences with the police and the State’s Attorney’s

Office during the investigation. Gomez, Villagomez, Martinez, and Mora, who Cruz did not

identify as being present at Ayala’s home on the day of the Pietrowski Park shootings also

24 provided affidavits attesting to their whereabouts that day and recalling their treatment by

detectives and agents of the State’s Attorney’s Office during the investigation, as more fully

recounted below.

¶ 72 R. Jacquez averred that he was not present at Ayala’s home on the day of the shootings and

that he did not take part in any gang meeting. He averred that a couple of months after the

shooting, when he was only 16 years old, he was arrested and “slapped around and interrogated

for three days about a meeting that took place” at Ayala’s home on the day of the Pietrowski

Park shootings. He was told by detectives that if he signed a paper stating that a meeting took

place, he would be allowed to go home; if he didn’t sign the paper, “he would go to jail for the

rest of his life.” He later told the Assistant State’s Attorneys prosecuting Soto and Ayala that

he had been coerced into implicating Ayala, and that no gang meeting had taken place on the

day of the shootings. R. Jacquez averred that when he took the stand at a pretrial hearing, he

tried to say, “it was all a lie,” but “the Judge made [him] use [his] Fifth Amendment Right,”

and R. Jacquez did not finish testifying.

¶ 73 Gutierrez averred that he was not present at Ayala’s home on the day of the Pietrowski

Park shootings, but instead at a game room the entire afternoon. He averred that he was not

aware of any meeting taking place on that date. Gutierrez averred he could recall his

whereabouts that day because he was subsequently arrested for the murders. The charges were

later dismissed.

¶ 74 Guzman provided an affidavit confirming that he did not attend a gang meeting at Ayala’s

home on the day of the Pietrwoski Park shootings. After the shootings, the police arrested 15-

year-old Guzman and detained him for several days where “the police beat [him] with a phone

book, slapped [him] in [his] ears, punched [him] in the stomach, etc.” He further averred that

25 he was denied food for three days. Although he asked for an attorney and to see his mother,

the police would not provide him an attorney, and he had no family or interested adults present

during his interrogation. He eventually “signed the paper, because the police said if [he] signed

it, he could go home.” After signing the statement, he was brought from the station to testify

before the grand jury. Guzman averred that the Assistant State’s Attorney told him what he

had to say. He did as he was told because he was “confused, shocked, scared, hungry,” and he

“wanted to go home.”

¶ 75 V. Hodge provided an affidavit attesting that he was not at a meeting at Ayala’s home on

the day of the Pietrwoski Park shootings, and that he did not speak to Ayala or Soto that day.

He averred that he was held for three days pertaining to the shootings at Pietrowksi Park, during

which, he “was beaten up by the police, threatened by them, and abused and lied to.” The

police refused to allow V. Hodge to make calls or have an attorney present. The police tried to

force him to say that he “was at a meeting on August 16, 1981, at David Ayala’s house and

that David [Ayala] gave orders for the shootings at Pietrowski Park.” When V. Hodge “refused

to cooperate” because, “no meeting took place,” V. Hodge was charged with obstruction of

justice. V. Hodge averred that the charges against him were dropped after Cruz came forward

as a witness and testified at trial.

¶ 76 Gomez provided an affidavit in which she recanted her trial testimony regarding her

observation that Suarez made a phone call to Ayala on the evening of the Pietrwoski Park

shootings. Gomez averred that contrary to her trial testimony, Suarez told her she had placed

a phone call to purchase drugs, and Suarez did not tell Gomez who she called. Gomez explained

that after she was arrested for murder, she was not given Miranda warnings and she was

“harass[ed]” and “badger[ed] all night long.” Gomez was “deprived of sleep and food,” and

26 was not allowed to call an attorney or her parents. The next morning, Gomez was brought in

front of the grand jury. Gomez averred that an Assistant State’s Attorney threatened her with

jail and murder charges if she did not cooperate. Between her grand jury testimony and

testimony at trial, she was visited by the police and brought to the office of the Assistant State’s

Attorney “many times” and “coached intensely and thoroughly from early morning to early

evening.” They told Gomez “exactly what to say.” Gomez further averred that the detectives

told her that if she did not cooperate, they would “tell the Latin Kings where [she] lived and

drop [her] off in Latin Kings territory so they could rape [her.]” Gomez was “so frightened and

confused” that she felt she had “no choice but to cooperate and testify as to what [she] was

told.”

¶ 77 Villagomez provided an affidavit attesting that he was not at any meeting at Ayala’s home

on the day of the Pietrowski Park shootings. Indeed, as Villagomez testified at trial, he was

hospitalized at this time for a motorcycle injury. He averred that he was charged with murder

based off Cruz’s statement that he had been at the alleged meeting at Ayala’s home.

Villagomez averred that upon his arrest, he continued to tell the police and State’s Attorneys

that it was impossible for him to have been at a meeting at Ayala’s home that day because he

was in the hospital. When his case was brought in front of a judge, the charges were dismissed.

¶ 78 Martinez provided an affidavit attesting that he was not at any gang meeting at Ayala’s

home on the day of the Pietrowski Park shootings but was instead at a game room. He averred

that he had never been to Ayala’s home and only met him on a single occasion. According to

Martinez, he was assaulted by police when he refused to adopt a false statement claiming to be

at a gang meeting at Ayala’s home. Martinez was also eventually charged with the murders

and held at a juvenile detention center for several days. After Martinez’s case was brought

27 before a judge, the charges were dismissed. Martinez further averred that he would have

testified to the foregoing if subpoenaed.

¶ 79 Mora provided an affidavit attesting that she was at Ayala’s home on the day of the

Pietrowski Park shootings. Mora averred that she was in the home with M. Ordonez, Guana,

and M. Ordonez’s children. According to Mora, no gang meeting took place and neither Soto

nor Ayala left the house.

¶ 80 On April 16, 2015, the trial court advanced Ayala’s initial petition to the second stage.

¶ 81 On June 30, 2015, Soto, through postconviction counsel, sought leave to file a successive

petition under the Act. Like Ayala’s initial petition, Soto’s successive petition alleged that (1)

he is actually innocent of the murders of Limas and Valeriano, (2) he was denied due process

where the prosecution concealed exculpatory evidence that it had charged Gomez, Suarez, V.

Hodge, and R. Hodge with obstruction of justice to induce their false testimony and failed to

disclose those witnesses’ prior inconsistent statements, (3) he was denied effective assistance

of counsel where trial counsel failed to reasonably investigate and present testimony from alibi

witnesses, and (4) cumulative error. Soto’s successive petition adopted the same affidavits and

exhibits that supported Ayala’s initial petition, as described above. Soto sought leave to file

his successive petition based on his claim of actual innocence and argued he satisfied the cause-

and-prejudice test as to his other claims.

¶ 82 On October 20, 2015, Ayala filed a supplemental claim to his postconviction petition in

which he argued that he was denied effective assistance of trial and appellate counsel where

his trial attorney was ineffective for failing to request that the jury receive the accomplice

witness instruction, Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981), and that

appellate counsel was likewise ineffective for failing to raise the trial error on direct appeal.

28 ¶ 83 On December 2, 2015, the trial court granted Soto leave to file his successive petition and

advanced it to the second stage, where it proceeded in tandem with Ayala’s initial petition

before the same trial court.

¶ 84 On February 16, 2016, Ayala brought a motion for postconviction discovery, which the

trial court granted. Specifically, Ayala sought and received certain documents from the

Chicago Police Department’s “street files” 6 regarding its investigation into the Pietrowski Park

shootings. Among those materials was a Court Attendance Report dated November 4, 1981,

which indicated that V. Rodriguez appeared in juvenile court on November 4, 1981, on a

charge of murder in the shooting death of Valeriano. Soto and Ayala’s trial counsel, DeLeon,

is identified as V. Rodriguez’s counsel on the court appearance sheet.

¶ 85 On August 10, 2016, based on the foregoing court appearance sheet, Ayala filed a second

supplemental claim to his postconviction petition, alleging that his trial counsel labored under

a per se and/or actual conflict of interest where trial counsel simultaneously represented V.

Rodriguez for the same offense. Ayala maintained that from the date of their arrests on October

16, 1981, all the way through trial, Ayala and Soto were jointly represented by DeLeon and

Sam Adam Jr. (Adam), who shared an office and made appearances for each defendant both

jointly and individually. Ayala argued that DeLeon’s simultaneous representation of V.

Rodriguez, who was an alternate suspect, and later named a prosecution witness against Soto

and Ayala, created inconsistent loyalties that adversely affected trial counsel’s performance at

6 The tern “street file” refers to “a practice the Chicago Police Department once had of maintaining investigative records that were ‘withheld from the state’s attorney and therefore unavailable as a source of exculpatory information that might induce him not to prosecute or, failing that, would at least be available to defense counsel under Brady v. Maryland ***.’ ” Fields v. City of Chicago,

, at *6 (N.D. Ill. Feb. 6, 2014). We take judicial notice of the fact that on February 13, 2016, three days before Ayala filed his motion for postconviction discovery, the Chicago Tribune published an article entitled “Old Police ‘Street Files” Raise Question: Did Chicago Cops Hide Evidence?” available at https://www.chicagotribune.com/news/ct-chicago-police-street-files-met-20160212-story.html.

29 trial. Specifically, Ayala pointed to trial counsel’s failure to call any of the eyewitnesses who

identified V. Rodriguez, not Soto, as the handgun shooter to testify as defense witnesses.

¶ 86 On November 28, 2018, the State moved to dismiss both Ayala’s initial petition and Soto’s

successive petition. On July 24, 2019, the trial court held a hearing on the State’s motions to

dismiss. At the hearing, the trial court informed the parties that the court had reviewed the

parties’ briefs as they pertained to Ayala’s petition but had not reviewed any of the briefs as

they pertained to Soto’s successive petition. Soto’s counsel provided the court with copies of

Soto’s submissions. Soto’s counsel further explained to the court that she had previously

adopted all of Ayala’s supplemental claims, and specifically Ayala’s trial counsel conflict of

interest claim, on behalf of Soto, but failed to document that in a written record. The State did

not object to Soto’s counsel’s representation.

¶ 87 On October 9, 2019, by a single written order, the trial court granted the State’s motion to

dismiss both Ayala’s initial petition and Soto’s successive petition, finding defendants’ claims

procedurally barred as untimely, waived, subject to res judicata, or otherwise “without merit.”

Regarding defendants’ claim that trial counsel labored under a per se and/or actual conflict of

interest, the trial court found there was insufficient evidence to support the claim that Ayala

was represented by DeLeon, and instead found that DeLeon represented only Soto. The trial

court further found the evidence that DeLeon represented V. Rodriguez at his first court

appearance insufficient to support the inference that “at the time of trial here, DeLeon []

operated under any conflict of interest.” Finally, regarding actual innocence, the trial court

found that the affidavits submitted in support of defendants’ petitions were not “newly

discovered” and “suffer[ed] from a resounding lack of conclusiveness.” After defendants’

motions to reconsider were denied, Soto and Ayala separately filed timely notices of appeal.

30 ¶ 88 IX. Ayala’s Successive Postconviction Petition

¶ 89 On August 4, 2020, Ayala sought leave to file a successive postconviction petition under

the Act, on the ground that his life sentence violated the proportionate penalties clause of the

Illinois Constitution, as applied to him, where Ayala received a life-without-parole sentence

but was only 18 years old at the time of the offenses. On September 24, 2020, the trial court

denied Ayala’s motion for leave. Ayala filed a timely notice of appeal from that order, which

was then consolidated with his appeal from the trial court’s October 9, 2019, order dismissing

his initial petition.

¶ 90 On August 21, 2021, this court, on its own motion, further consolidated Ayala’s

consolidated appeal with Soto’s appeal from the trial court’s October 9, 2019, order dismissing

his successive petition. The trial court’s dismissals of these three postconviction petitions are

the subject of the instant consolidated appeal.

¶ 91 ANALYSIS

¶ 92 Defendants raise several overlapping arguments on appeal. First, both defendants argue

that the trial court erred in dismissing their claims that trial counsel labored under a per se

and/or actual conflict of interest. Second, both defendants argue that the trial court erred by

dismissing their claims that trial counsel was ineffective for failing to call witnesses who

identified V. Rodriguez as the shooter and alibi witnesses who would have rebutted Cruz’s

account of gang meeting occurring in Ayala’s basement on the day of the shootings. Third,

both defendants argue that the trial court erred by dismissing their Brady claims. Finally, both

defendants argue that the trial court erred by dismissing their claims of actual innocence.

¶ 93 In addition to these shared bases of appeal, Ayala also appeals the trial court’s dismissal of

his claim that trial counsel was ineffective for failing to instruct the jury on the weight to be

31 afforded accomplice-witness testimony and request that the jury be voir dired about gang bias,

and his claim that appellate counsel was likewise ineffective for failing to raise these issues on

direct appeal. Ayala also appeals the trial court’s September 24, 2020, order denying his motion

for leave to file a successive postconviction petition.

¶ 94 I. The Postconviction Hearing Act

¶ 95 The Act provides a statutory remedy for criminal defendants who claim that their

constitutional rights were violated at trial. People v. Edwards,

. The Act

provides for three stages of review by the trial court. People v. Domagala,

. At the first stage, for an initial petition, the trial court may summarily dismiss a petition

only if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2014);

Domagala,

. “[T]he Act does not permit any further pleadings from the

defendant or any motions or responsive pleadings from the State. Instead, the circuit court

considers the petition independently, without any input from either side.” People v. Gaultney,

(1996). Moreover, “the Act does not authorize the dismissal of a

postconviction petition during the initial stage based on untimeliness.” People v. Boclair,

(2002). As noted, here, the trial court found that Ayala’s initial petition passed

muster under this initial review, and advanced Ayala’s initial petition to the second stage.

¶ 96 Although our supreme court has made clear that the Act contemplates only one

postconviction proceeding, “[n]evertheless, [our supreme] court has, in its case law, provided

two bases upon which the bar against successive proceedings will be relaxed” Edwards,

. Those two bases are (1) cause and prejudice for failing to raise the claim in

an earlier proceeding and (2) actual innocence. Edwards,

. Prior to

commencing a successive proceeding, a defendant must obtain leave of court to file his or her

32 petition. People v. Robinson,

. If leave to file is granted, the petition is

docketed for second-stage proceedings. People v. Sanders,

. In the case

at bar, Soto’s motion for leave to file a successive petition alleged both cause and prejudice

and actual innocence. As noted, the trial court advanced Soto’s successive petition to the

second stage, where it proceeded in tandem with Ayala’s initial petition raising similar claims

and supported by the same evidence.

¶ 97 At the second stage, the State may file either a motion to dismiss or an answer to the

petition. 725 ILCS 5/122-5 (West 2014); Domagala,

. “Where the State

seeks dismissal of a postconviction petition instead of filing an answer, its motion to dismiss

assumes the truth of the allegations to which it is directed and questions only their legal

sufficiency.” People v. Miller,

(2002). The trial court must then determine

“whether the petition and any accompanying documentation make a substantial showing of a

constitutional violation.” People v. Edwards,

(2001). If the defendant

makes a substantial showing at the second stage, the petition must be advanced to a third-stage

evidentiary hearing. Domagala,

; People v. Allen,

.

At a third-stage evidentiary hearing, the trial court acts as factfinder, determines witness

credibility and the weight to be given particular testimony and evidence, and resolves any

evidentiary conflicts. Domagala,

.

¶ 98 As noted, defendants’ 2015 petitions were dismissed at the second stage. A second-stage

dismissal of a defendant’s petition presents a legal question we review de novo. People v.

Whitfield,

(2005); People v. Dupree,

(review of a second-

stage dismissal is de novo). De novo consideration means that the reviewing court performs

the same analysis that a trial judge would perform. People v. Van Dyke, 2020 IL App (1st)

33 191384, ¶ 41. Since this stage involves purely a legal determination, “[t]he inquiry [at the

second stage] does not require the trial court to engage in any fact-finding or credibility

determinations.” Dupree,

. “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.” Domagala,

.

¶ 99 II. Timeliness of Ayala’s Petition

¶ 100 As an initial matter, the State argues on appeal, as it did in its motion to dismiss Ayala’s

petition, that all of Ayala’s claims, aside from his trial counsel conflict of interest claim and

his actual innocence claim, are time barred under the Act. We agree. Ayala was sentenced on

October 25, 1982. Consistent with the Act in effect at that time, Ayala had 20 years from that

date on which to file his postconviction petition. In 1984, the Act was amended to shorten the

limitations period to 10 years. Pub. Act 83-1362, art. II, § 44 (eff. Sept. 11, 1984) (amending

725 ILCS 5/122-1(c)). In 1992, the Act was again amended to further shorten the limitations

period to three years. Pub. Act 87-580, § 1 (eff. Jan. 1, 1992) (amending 725 ILCS 5/122-1(c)).

Our supreme court has held that amendments to the Act’s limitations period apply

retroactively. See People v. Bates,

(1988). It is therefore irrelevant whether

the limitations period expired in 1987 as urged by the State, or 1992 as proposed by Ayala.

Either way, Ayala’s 2015 petition cannot be considered timely unless Ayala has demonstrated

that his failure to bring his claim was not due to his “culpable negligence.” 725 ILCS 5/122–

1(c) (West 2014).

¶ 101 Ayala maintains that his failure to bring his claims during the limitations period prescribed

by the Act was due to his incarceration in a supermax facility from 1998 through 2012, where,

according to Ayala, he was held in solitary confinement for 23 hours a day. Nevertheless, we

34 agree with the State and trial court that this draconian incarceration does not excuse Ayala’s

failure to raise the trial errors or violations of his constitutional rights of which he should have

been aware before that time, and Ayala offers none. See People v. Johnson,

(defendant’s claim of delay, which occurred in 2008, could not provide a basis for

excusing the late filing of postconviction petition because they occurred after the deadline had

passed). In addition, we agree with the trial court’s assessment that Ayala’s ability to litigate

his 1997 federal habeas petition demonstrates a “concomitant ability to litigate in Cook County

Circuit Court under the Act” at that time. Accordingly, we find no error in the trial court’s

dismissal of Ayala’s trial and appellate ineffective assistance of counsel claims as they pertain

to counsel’s failure to call alibi witnesses, failure to instruct the jury on the weight to be

afforded accomplice-witness testimony, failure to request that the jury be voir dired about gang

bias, and failure to raise these issues on direct appeal, nor in the trial court’s dismissal of

Ayala’s Brady claim. We reach the merits of Ayala’s of actual innocence claim and trial

counsel conflict of interest claim further below.

¶ 102 III. Procedural Bars to Soto’s Successive Petition

¶ 103 The State argues that Soto’s trial counsel conflict of interest claim and Brady claim were

properly dismissed because, as to these claims, Soto failed to allege cause and prejudice as

required to sustain a successive petition under the Act.

¶ 104 We are not persuaded by the State’s argument. The State had the opportunity to seek

dismissal of Soto’s petition at second-stage proceedings on cause-and-prejudice grounds for

these claims but did not. People v. Bailey,

. In addition, while advancing

Soto’s successive petition to the second stage, the trial court expressed its view that Soto’s and

35 Ayala’s petitions should proceed “on par.” 7 The State agreed that was the “perfect” approach.

Under these circumstances, “it would be manifestly unfair” to allow the State to benefit from

an error the State itself “injected into the proceedings” by consenting to the trial court’s actions.

In re Detention of Swope,

(2004). This is especially so in the case at bar

because Ayala’s claims arise from the same set of facts as Soto’s petition and any resolution

of Ayala’s claims will therefore bear directly upon the rights of Soto. We thus agree with the

trial court that defendants’ claims should proceed “on par.”

¶ 105 Moreover, “even in the absence of an articulated request” a trial court may “sua sponte

grant leave to file [a] successive petition,” and “there is no impediment to appellate review of

the trial court’s ruling in such a case.” Sanders,

(citing People v. Tidwell,

(2010)); see also People v. Harper,

(“[T]he

defendant’s petition advanced to the second stage of the postconviction proceedings by virtue

of the circuit court’s granting of the motion for leave to file and appointing counsel.

Accordingly, the defendant properly obtained leave to file the instant successive

postconviction petition”). We are therefore unpersuaded that Soto’s failure to specifically

articulate cause and prejudice for his trial counsel conflict of interest claim precludes our

review on the merits in the unique circumstances presented here, where the trial court

considered these claims at the second stage. Instead, “Based on the second-stage procedural

posture of the instant case, the relevant question is whether the allegations of the petition,

supported by the trial record and the accompanying affidavits, demonstrate a substantial

constitutional deprivation which requires an evidentiary hearing.” People v. Makiel,

(2005).

7 “On par” is defined as “equal in importance or quality to; on an equal level with.” Lexico, https://www.lexico.com/en/definition/par (last visited June 1, 2022).

36 ¶ 106 The State further argues that Soto’s trial counsel conflict of interest and Brady claims are

barred by the doctrines of res judicata and forfeiture. In a postconviction proceeding, the

common law doctrines of res judicata and forfeiture operate to bar the raising of claims that

were or could have been adjudicated in a prior proceeding. People v. Blair,

(2005). The doctrine of res judicata bars the consideration of issues that were previously

raised and decided in a prior proceeding. Blair,

. The doctrine of forfeiture

bars claims that could have been raised in a prior proceeding but were not. Blair,

. Exceptions to these doctrines may allow otherwise-barred claims to proceed where

fundamental fairness so requires, where the alleged forfeiture stems from the incompetence of

appellate counsel, or where the facts relating to the claim do not appear on the face of the

original appellate record. Blair,

.

¶ 107 The State argues that Soto’s trial counsel conflict of interest claim is barred by res judicata

because Soto included a similar trial counsel conflict of interest claim in his initial August 29,

1991, petition, which was summarily dismissed, and forfeited because he did not reraise the

issue on appeal from that dismissal. Although a summary dismissal of a postconviction petition

may be treated as an adjudication on the merits for the purposes of res judicata, where, as here,

a subsequent claim is supported by substantial new evidence, fundamental fairness dictates

that the doctrine of res judicata may be relaxed. See People v. Holman,

(2000); People v. Patterson,

(2000) (“We have recognized [] that, in the

interests of fundamental fairness, the doctrine of res judicata can be relaxed if the defendant

presents substantial new evidence.”). Without evidence concerning the extent and duration of

DeLeon’s representation of V. Rodriguez, Soto could not, and did not, raise the specific

conflict of interest claim presently before the court. See People v. Harris,

, 15

37 (2002) (res judicata did not bar postconviction claim where the facts supporting the claim did

not appear in original appellate record). Nor has Soto forfeit his ability to bring this claim. As

noted, it was not until 2016 that the extent and duration of DeLeon’s representation of V.

Rodriguez became known to Soto. Pursuant to our supreme court’s decision in Harris, because

the facts relating to this claim did not appear on the face of the original appellate record or the

initial postconviction record, the doctrine of forfeiture does not apply. Harris,

.

¶ 108 However, we find that Soto’s Brady claim is procedurally barred. The record reflects that

Soto was aware of certain facts supporting his Brady claim, specifically the obstruction of

justice charges against V. Hodge, R. Hodge, Gomez, and Suarez, at the time of trial. Moreover,

Soto was aware of the alleged police and prosecutorial misconduct supporting the Brady claim

he raises on appeal as early as October 11, 1991, when he submitted affidavits from Padilla

and R. Jacquez attesting to their mistreatment by the State. While the additional affidavits

detailing police and prosecutorial misconduct submitted with Soto’s successive petition add

weight to his Brady claim, they do not alter the substance of the Brady claim that could have

been raised earlier. Accordingly, because Soto could have raised his Brady claim in his initial

petition, but did not, he has forfeited the claim. Blair,

.

¶ 109 Having thus narrowed the issues presently before the court, we turn to the merits of

defendants’ remaining claims: trial counsel conflict of interest and actual innocence.

¶ 110 IV. Trial Counsel Conflict of Interest

38 ¶ 111 Both the United States Constitution and the Illinois Constitution guarantee criminal

defendants the right to the effective assistance of counsel. Hale,

(citing

U.S. Const., amends. VI, XIV, and Ill. Const. 1970, art. I, § 8).

¶ 112 The Illinois Supreme Court has found that, to determine whether a defendant was denied

his or her right to effective assistance of counsel, a reviewing court must apply the two-prong

test set forth in Strickland v. Washington,

(1984); People v. Colon,

, (2007) (citing People v. Albanese,

(1984) (adopting Strickland)).

Under Strickland, a defendant must prove both (1) that his attorney’s actions constituted errors

so serious as to fall below an objective standard of reasonableness (i.e. counsel’s performance

was deficient) and (2) that absent these errors, there was a reasonable probability that his trial

would have resulted in a different outcome (i.e. counsel’s deficient performance was

prejudicial). Domagala,

(citing Strickland,

).

¶ 113 The establish deficient performance, a defendant must show “that counsel’s performance

was objectively unreasonable under prevailing professional norms.” Domagala,

. Under this prong, a defendant has the burden to “overcome the strong

presumption that counsel’s action or inaction was the result of sound trial strategy.” People v.

Anderson,

.

¶ 114 Under the second prong of the Strickland test, the defendant must show that, “but for”

counsel’s deficient performance, there is a reasonable probability that the result of the

proceeding would have been different. Colon,

; Evans, 209 Ill. 2d at 220. “[A]

reasonable probability that the result would have been different is a probability sufficient to

undermine confidence in the outcome—or put another way, that counsel’s deficient

39 performance rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill.

2d at 220; Colon,

.

¶ 115 “A criminal defendant’s sixth amendment right to effective assistance of counsel includes

the right to conflict-free representation.” People v. Taylor,

(2010). Counsel

is deemed constitutionally ineffective where his allegiance is “diluted by conflicting interests

or inconsistent obligations.” People v. Spreitzer,

(1988). Our supreme court

has recognized two types of conflict: per se and actual. Green,

. A per se

conflict arises when the attorney had or has “a tie to a person or entity” that would benefit from

a verdict unfavorable to the client. Spreitzer,

.

¶ 116 Pursuant to long-standing precedent, there are only three situations in which this occurs:

“(1) when defense counsel has a prior or contemporaneous association with the victim, the

prosecution, or an entity assisting the prosecution [citations]; (2) when defense counsel

contemporaneously represents a prosecution witness [citations]; and (3) when defense counsel

was a former prosecutor who had been personally involved in the prosecution of the defendant

[citation].” Hernandez,

, 143-44 (2008); accord Fields,

;

Green,

; In re Br. M.,

.

¶ 117 In this “closed set” of situations, the tie “may have subtle or subliminal effects on counsel’s

performance that are difficult to detect and demonstrate.” In re Br. M.,

;

Peterson,

, ¶ 103. Accordingly, a defendant alleging a per se conflict need only

show that one of these ties exists (see People v. Hillenbrand,

(1988)) and

need not show that it affected the attorney’s performance. Under Strickland, prejudice is

presumed. Green,

(“‘allegations and proof of prejudice are unnecessary

in cases where a defense counsel *** might be restrained in fully representing the defendant’s

40 interests due to *** commitments to others’ ” (quoting People v. Coslet,

(1977)); Hernandez, 231 Ill. 2d at 142-43. When a per se conflict is established, the remedy is

automatic reversal unless the client waived the conflict. Green,

; In re

Br. M.,

.

¶ 118 In the case at bar, defendants argue first that their trial counsel labored under the first per

se conflict of interest category because DeLeon had “a prior or contemporaneous association

with” V. Rodriguez, who defendants maintain was “an entity assisting the prosecution.” We

are not persuaded by defendants’ argument regarding the applicability of the first per se

conflict category. In Fields,

, our supreme court rejected the notion that a

person, such as V. Rodriguez, could be considered an “entity” for the purposes of the

application of the per se conflict rule. Fields,

(“[O]ur case law has

always recognized a difference between a person and an entity in the context of per se conflicts

of interest.”). The court further explained that to interpret the term “entity *** assisting the

prosecution” to encompass a potential state witness like V. Rodriguez, “would render

superfluous the second situation where a per se conflict exists.” Fields,

.

¶ 119 Defendants’ reliance on our supreme court’s decision in Hernandez,

(2008),

is therefore unavailing. In Hernandez, the court found that DeLeon’s prior representation of a

victim created a per se conflict of interest where DeLeon later represented a defendant accused

of soliciting a murder for hire against the victim, even though DeLeon had no active

relationship with the victim at the time of defendant’s trial. Hernandez, 231 Ill. 2d at 151. The

Hernandez court found a per se conflict because DeLeon had a “prior or contemporaneous

association with a *** victim.” Hernandez, 231 Ill. 2d at 151. In other words, the circumstances

of DeLeon’s representation in that case fell squarely within the first per se conflict situation.

41 But here, because V. Rodriguez cannot be considered “a victim, the prosecution, or an entity

assisting the prosecution,” the first per se conflict situation does not apply.

¶ 120 Whether the second per se conflict situation applies in the case at bar presents a closer

question. Defendants argue that DeLeon “contemporaneously” represented V. Rodriguez and

defendants because DeLeon represented V. Rodriguez from the night of his arrest on October

5, 1981, through at least his first juvenile court appearance on November 4, 1981, and

represented Soto and Ayala from the night of their arrests on October 16, 1981, all the way

through defendants’ jury trial. We agree that these facts show a “contemporaneous”

representation of at least 19 days. See People v. Murphy,

(“[T]here is no question as to what the word ‘contemporaneous’ means; it means ‘existing,

occurring, or originating at the same time.’ [Citation].”); People v. Daly,

(2003) (“In a situation where defense counsel has previously represented one of the State’s

witnesses, a per se conflict of interest exists if the professional relationship between counsel

and the witness is contemporaneous with counsel’s representation of defendant.”). The record

also establishes that V. Rodriguez was, for an unknown length of time, named as a state witness

in the case against Soto and Ayala. The State responds that because V. Rodriguez never

testified at defendants’ trial, he never assumed the status of a “prosecution witness” in a

capacity that could support a finding of a per se conflict of interest. Thus, “the question

becomes whether [V. Rodriguez’s] relationship to the case triggers the per se rule.” People v.

Morales,

(2004).

¶ 121 In support of its position that the second per se conflict category does not apply, the State

cites our supreme court’s decision in Morales,

. There, the court found that

no per se conflict of interest arose where a potential witness’s out-of-court statements about

42 the defendant were admitted into evidence at sentencing, where the potential witness never

testified at the defendant’s trial or otherwise. Morales,

. The court reasoned

that because the potential witness “was never a witness,” defense counsel did “not assume the

status of attorney for a prosecution witness.” Morales,

. Defendants respond

that Morales is distinguishable from the case at bar. Most importantly, in Morales, defense

counsel represented the potential state witness on charges unrelated to the charges against the

defendant. The Morales court was therefore unpersuaded that the potential state witness stood

to benefit from the defendant’s conviction. Morales,

(“Speculation that

[potential state witness] might have stood to benefit from a verdict against defendant does not

support application of the per se rule.”). In addition, although the Morales decision did not

turn on the issue of waiver, the defendant there was in fact informed of his counsel’s potential

conflict and waived it in open court. Morales,

. By contrast, here, the named

state witness, V. Rodriguez, was an alternate suspect on the very same murder charges as Soto,

and there is therefore no need to speculate as to whether he stood to benefit from Soto’s

conviction. Moreover, defendants allege that they were never made aware of DeLeon’s

representation of V. Rodriguez, and therefore could not have waived the conflict. This court

has identified at least two decisions in which our appellate courts have found the existence of

a per se conflict in analogous situations.

¶ 122 In People v. Woidtke,

(2000), the defendant, Woidtke, was charged

with murder. For six months, his appointed counsel also simultaneously represented another

man, Anderson, on several misdemeanor charges of impersonating an officer and obstructing

justice, which arose when Anderson was accused of presenting himself to several individuals

as an investigator in the murder for which Woidtke was charged. Woidtke,

409. In finding a per se conflict, the Woidtke court found significant the facts that counsel

represented both Woitdke and Anderson on charges stemming from the same murder, that

Anderson was at various times considered a suspect in the murder, and that counsel considered

Anderson a potential witness, even though Anderson did not testify. Woidtke,

. Based on the foregoing, the court reasoned that counsel “would be obligated by the

nature of his representation of Anderson to protect as privileged any information he obtained

in Anderson’s involvement in the [] murder,” which rendered his assistance to Woidtke per se

ineffective. Woidtke,

.

¶ 123 More recently, in an unpublished Rule 23 order, the court in People v. Matthews,

, determined that the defendant had adequately alleged the

existence of a per se conflict by pleading that his counsel represented a named state witness

during the same time period he represented the defendant at his murder trial, where the named

State witness was the mother of an alternate suspect, and therefore had a stake in the

defendant’s conviction. In so finding, the court explained that “a possible conflict is enough

for the purposes of the per se rule,” and cited Morales for the proposition that, “when

determining whether a possible per se conflict arose from defense counsel’s representation of

a named witness, the question is whether the named witness stood to benefit from defendant’s

conviction.” Matthews,

(citing Morales,

)

(emphasis in original).

¶ 124 In the case at bar, we find defendants’ allegations that DeLeon’s client, V. Rodriguez, was

both a named state witness and also an alternate suspect for the same offense are sufficient to

trigger the per se conflict rule if substantiated at a third-stage evidentiary hearing. We are not

persuaded by the State’s argument that no per se conflict can ever arise where a named

44 prosecution witness does not testify at trial. See People v. Thomas,

(1989) (finding a per se conflict where defense counsel represented a disclosed prosecution

witness but failed to call that witness at the defendant’s pretrial suppression hearing to

challenge the veracity of the witness’s statements to police); Murphy,

(“We are aware of no case in which the supreme court has said, plainly and

outright, that the only contemporaneous representation that counts, for purposes of the per se

conflict rule, is contemporaneous representation during trial.”); People v. Lomax,

, ¶ 17 (remanding to trial court for determination of whether defense counsel

labored under per se conflict at time of defendant’s plea hearing). Instead, the extent to which

V. Rodriguez was a “prosecution witness” at any critical point during DeLeon’s

contemporaneous representation of defendants is a factual question to be answered at a third-

stage evidentiary hearing.

¶ 125 Moreover, here, by virtue of the fact that V. Rodriguez was charged in juvenile court, where

many records are sealed, defendants lack information regarding the extent and duration of

DeLeon’s representation of him. As our supreme court explained in Morales, “A per se conflict

is one in which ‘facts about a defense attorney’s status *** engender, by themselves, a disabling

conflict.’ ” Morales,

(citing Spreitzer,

(emphasis in original)).

Having made a substantial showing that DeLeon contemporaneously represented V.

Rodriguez, defendants are entitled to discover, at a third-stage evidentiary hearing, whether

further facts support their claim that DeLeon operated under a per se conflict of interest.

¶ 126 In addition, even if the evidence does not ultimately show the existence of a per se conflict,

defendants are “not left without recourse in this case.” Fields,

. Where a

per se conflict does not exist, a defendant may still establish a violation of his right to effective

45 assistance of counsel by showing an actual conflict of interest that adversely affected his

counsel’s performance. Morales, 209 Ill. 2d at 348–49. To show an actual conflict of interest,

a defendant must point to “ ‘some specific defect in his counsel’s strategy, tactics, or decision

making attributable to [a] conflict,’ ”Morales,

, but “need not show the conflict

contributed to his conviction.” People v. Moore,

(2000). Here, we find

Soto and Ayala have made a substantial showing that DeLeon’s alleged dual loyalties may

have “affected the adequacy of his representation.” Spreitzer,

.

¶ 127 Specifically, DeLeon failed to call as witnesses three individuals who, shortly after the

shooting, identified his client V. Rodriguez, not Soto, as the handgun shooter. The decision not

to call these witnesses may certainly constitute a “specific defect” in counsel’s trial strategy,

where the State claimed there was only one handgun shooter, and no person other than Cruz—

at trial or otherwise—ever identified Soto as that handgun shooter or even claimed that Soto

was in or near Pietrowski Park on the day of the shootings. See People v. Willingham,

(failure of trial counsel to call a witness who would contradict the

State’s evidence and support the defense reflects deficient performance); People v. Johnson,

(counsel’s strategy may be deemed ineffective when it

results in counsel’s failure to present exculpatory evidence of which he is aware, including the

failure to call witnesses whose testimony would support an otherwise uncorroborated defense).

¶ 128 The State conjectures that DeLeon made a strategic decision not to call these witnesses

because he deemed them not to be credible, or because elements of their statements to police

corroborated parts of Cruz’s narrative, or because their statements to police did not fully

exculpate Soto, but such speculative justifications do not defeat the more probable inference:

that DeLeon could not call these witnesses without betraying his duty of loyalty to V.

46 Rodriguez or disclosing information that V. Rodriguez shared with DeLeon under the cloak of

attorney-client privilege. More importantly however, to the extent the State wishes to probe

DeLeon’s motivations or trial strategy, the appropriate venue to do so is at a third-stage

evidentiary hearing. Domagala,

; People v. Gacho,

(remanding for a third-stage evidentiary hearing but declining to resolve question

of “whether counsel labored under a per se conflict of interest or what effect an actual conflict

might have had on the defendant’s trial” because “the evidence adduced at any such hearing

may affect the strength of defendant’s allegations in unforeseeable ways”); see also People v.

Boswell,

(defendant was entitled to a third-stage evidentiary

hearing on his conflict of interest claim where defendant made a substantial showing that trial

counsel labored under per se or actual conflict of interest).

¶ 129 Lastly, we note that although the trial court found Ayala had not supported his claim that

DeLeon represented him at trial or that DeLeon’s conflicts could be imputed to Ayala’s named

trial counsel, Adam, the State concedes these points on appeal. Indeed, the trial court’s finding

was error. The record reflects that at pretrial proceedings and during defendants’ jury trial,

DeLeon and Adam represented to the trial court that they “jointly represented” Soto and Ayala.

In addition, Ayala’s postconviction affidavit attests that he understood DeLeon to be one of

his attorneys. Finally, Ayala has alleged that DeLeon and Adam both worked for the same

small firm, and that DeLeon operated as Adam’s associate. It is well-settled that “if one

member of a private law firm has a per se conflict of interest, that conflict is imputed to all

other members of the law firm, regardless of whether any of those other members had any

personal involvement in the conflicting representation.” People v. Fountain,

(collecting cases); see also Ill. Rs. Prof’l Conduct (2010) R. 1.7; R. 1.10(a); R.

47 1.8(k). Although DeLeon and Adam may not have formally been partners in a law firm,

defendants’ petitions attached pages from a 1981 edition of Sullivan’s Law Directory, which

show that, at minimum, DeLeon and Adam worked out of the same suite within the same office

building at that time. See People v. Buckhanan,

(attorneys who

act as co-counsel in criminal matters, share office space, and cover for various court

appearances arguably constitute a law firm under Ill. R. Prof’l Conduct (2010) R. 1.0). Again

here, to the extent the postconviction record leaves room for doubt regarding these questions

of fact, those doubts must be resolved at a third-stage evidentiary hearing; they do not defeat

Ayala’s claim as a matter of law. See Domagala,

(evidentiary

conflicts are to be resolved at third stage evidentiary hearing).

¶ 130 Accordingly, we find that both Soto and Ayala are entitled to a third-stage evidentiary

hearing on their claim that trial counsel labored under a per se or actual conflict of interest.

¶ 131 V. Actual Innocence

¶ 132 The due process clause of the Illinois Constitution affords postconviction petitioners the

right to assert a claim of actual innocence based on newly discovered evidence. People v. Ortiz,

(2009). In addition, a freestanding claim of actual innocence is cognizable

under the Act. People v. Coleman,

. For an actual innocence claim to

survive second-stage dismissal, the evidence in support of the claim must be newly discovered,

material and not merely cumulative, and of a conclusive character. Ortiz,

;

People v. Morgan,

. Newly discovered means that the evidence was not

available at trial and could not have been discovered earlier through the exercise of due

diligence. People v. Burrows,

, (1996). Material means that the evidence is

relevant and probative of the defendant’s innocence. Coleman,

.

48 Noncumulative means that the evidence adds to what the jury heard. Coleman,

. Finally, evidence is of a conclusive character where, when considered along with

the trial evidence, it would probably lead to a different result. Coleman,

.

As we explain below, defendants’ petitions and supporting documents, properly construed,

make a substantial showing as to all three of the actual-innocence prongs such that the petitions

should have been advanced to the third stage.

¶ 133 A. Newness

¶ 134 “Newly discovered” means that the evidence was not available at trial and could not have

been discovered earlier through the exercise of due diligence. Burrows,

.

The “due diligence” requirement for newly discovered evidence applies to the diligence shown

before trial. People v. Smith,

.

¶ 135 First, defendants argue that the affidavits of four alleged gang meeting participants, R.

Jacquez, Gutierrez, Guzman, and V. Hodge, none of whom testified at trial, qualify as newly

discovered evidence. The State responds, and defendants concede, that these individuals were

all known to defendants prior to trial. However, defendants maintain that State misconduct

rendered these witnesses unavailable. Specifically, defendants argue that R. Jacquez sought to

recant his grand jury testimony implicating Ayala prior to trial but was instructed by the court

to assert his fifth amendment right against self-incrimination. Defendants further argue that

Gutierrez, Guzman, and V. Hodge were rendered unavailable because the police and agents of

the State’s Attorney’s Office “coerced, physically abused and charged [them] with the murders

and/or obstruction of justice to force their ‘cooperation’ with the State’s investigation.”

¶ 136 We agree with defendants that R. Jacquez’s assertion of his fifth amendment right rendered

him unavailable at trial. It is well-settled that no amount of diligence can force a witness to

49 violate their fifth amendment right to avoid self-incrimination if the witness does not choose

to do so. See, e.g., People v. Molstad, 101 Ill. 2d at 135 (witness asserting fifth amendment

right was deemed unavailable); Edwards,

(witness asserting fifth

amendment right was deemed unavailable); People v. Wideman,

; (witness asserting fifth amendment right was deemed unavailable); People v. Henderson,

(victim was deemed unavailable at trial where he invoked his fifth

amendment right); People v. Rosalez,

(witness who pled guilty

on accountability theory was still protected by fifth amendment right and therefore

unavailable).

¶ 137 In addition, we find that defendants’ allegations of State coercion and affiant’s averments

of fear of State retaliation are sufficient to deem witnesses Gutierrez, Guzman, and V. Hodge

unavailable to testify at trial. Newly discovered evidence includes testimony from a witness

who “essentially made himself unavailable as a witness” out of fear of retaliation (Ortiz,

) or who was made unavailable through threats or intimidation to not testify.

People v. White,

; People v. Fields,

(witness was unavailable where “defendant had no reason to suspect that the

reason for her false identification in the first place was threats and intimidation by the police”).

For example, in Harper,

, the witness’s affidavit “attested that

his trial testimony was a lie and that police officers threatened him to obtain the testimony.”

This court found, “[c]learly, due diligence could not have compelled [the witness] to testify

truthfully.” Harper,

, see also People v. Smith,

(“no amount of due diligence would have allowed [defendant] to secure [the

eyewitness’] recantation of his identification prior to trial”). Here, Gutierrez, Guzman, and V.

50 Hodge have averred that they were baselessly arrested for participating in the offense, were

threatened, physically abused by the police, and feared being prosecuted for the murders. The

legitimacy of these affiants’ fears and whether they rendered these witnesses unavailable to

testify at trial should be ascertained at an evidentiary hearing to determine their credibility.

Rosalez, 2021 IL (App) 200086, ¶ 126.

¶ 138 Second, defendants argue that the affidavits of Gomez and Padilla, who testified at trial,

but later recanted parts of their testimony in their affidavits, are newly discovered because their

affidavits contradict their trial testimony. The State does not contest that in certain

circumstances, the affidavit of a witness who recants their trial testimony may be considered

newly discovered. See, e.g., People v. Wideman,

(a recantation

of trial testimony may be considered new evidence, even though a defendant may know the

witness to be perjuring himself or herself, where the defendant did not have evidence available

at the time of trial to demonstrate the witness was lying); Harper,

(where witness attested that his trial testimony was a lie and that police officers threatened

him to obtain the testimony, the affidavit was newly discovered because, “clearly, due

diligence could not have compelled [witness] to testify truthfully at the first trial”). Here,

neither Soto nor Ayala had evidence to demonstrate that Gomez was lying at trial, nor could

they establish, as Gomez now claims, that the State’s actions induced her false testimony.

Accordingly, we find Gomez’s affidavit constitutes newly discovered evidence.

¶ 139 With respect to Padilla’s affidavit, the State argues that it cannot be considered newly

discovered because Soto submitted an affidavit from Padilla recanting his trial testimony that

he could not identify the shooters with Soto’s initial postconviction petition. The State is

correct that “Typically, evidence of which the defendant was aware in earlier postconviction

51 proceedings will not be considered newly discovered.” People v. Warren,

; People v. Snow,

(evidence available at earlier

posttrial proceeding was not newly discovered). In the unique circumstances presented in the

case at bar, however, it would be “fundamentally unfair” to allow Soto’s earlier presentation

of this evidence to impair Ayala’s claim of actual innocence because it is not technically

“newly discovered.” See Warren,

(permitting introduction

of affidavits that were available to petitioner during first postconviction proceeding). In

addition, our supreme court has also considered evidence newly discovered even where

defendant submitted an affidavit containing “substantially the same accounting of events” in a

prior postconviction petition. Ortiz,

. Lastly, it is undisputed that Padilla’s

recantation of his trial testimony was not available to defendants at the time of trial. We

therefore find Padilla’s affidavit constitutes newly discovered evidence.

¶ 140 Third, defendants maintain that Palomo’s affidavit is newly discovered. Here, we agree

with defendants that although Palomo was known to defendants at the time of trial, as a

codefendant, defendants could not compel his truthful testimony. Indeed, “No amount of

diligence could have forced [Palomo] to testify that he, and not defendant was the shooter.”

Rosalez,

; Molstad, 101 Ill. 2d at 134–35. (“[C]odefendants

did not present their testimony concerning [defendant’s] whereabouts at trial because such

testimony would have incriminated them. The testimony of [these] codefendants clearly

qualifies as newly discovered evidence.”). Moreover, the State does not contest that Palomo’s

affidavit is newly discovered, thereby effectively conceding this point.

¶ 141 Fourth, defendants contend that the affidavits of Abarca and Mullins are newly discovered.

The State again responds that these witnesses were known and available to defendants at the

52 time of trial. However, as discussed above, defendants have alleged that their counsel labored

under a prohibited conflict of interest, and that counsel’s deficient and conflicted performance

rendered these witnesses unavailable. We agree. Taking defendants’ allegations as true, no

amount of due diligence on the part of defendants could have compelled their conflicted

counsel to call witnesses whose statements to police inculpated DeLeon’s other client. See

People v. Triplett,

, ¶ 3 (where counsel was ineffective for failing

to investigate and present a known witness, the postconviction affidavit from that witness was

newly discovered); see also Gomez v. Jaimet,

(7th Cir. 2003) (noting that it

would “defy reason” to block review of actual innocence claims on ground that trial counsel

was aware of exculpatory evidence previously, when underlying claim of ineffectiveness is

premised on trial counsel’s very failure to use that known and available exculpatory evidence

at trial).

¶ 142 Finally, defendants concede that the affidavits of Mora and Martinez do not constitute

newly discovered evidence because these witnesses were both known to defendants and

available to testify at the time of trial. Accordingly, they do not constitute newly discovered

evidence. Burrows,

. In addition, the affidavit of Villagomez is not newly

discovered because Villagomez was called as a defense witness at trial and testified to

substantially similar facts as those contained his affidavit. Although Villagomez’s affidavit

adds some weight to defendants’ claims that the State engaged in misconduct to secure their

convictions, the State’s tactics were apparently unsuccessful against Villagomez, and the

content of his affidavit is not “newly discovered.” See Robinson,

.

53 ¶ 143 In sum, the affidavits of R. Jacquez, Gutierrez, Guzman, V. Hodge, Padilla, Gomez,

Palomo, Abarca and Mullins are newly discovered, but the affidavits of Mora, Martinez, and

Villagomez are not.

¶ 144 B. Materiality and Non-Cumulativeness

¶ 145 As noted, “material” means that the evidence is relevant and probative of the defendant’s

innocence. Coleman,

. “Noncumulative” means that the evidence adds to

what the jury heard. Coleman,

, ¶ 96. Before addressing this element, we note

that every defendant has the constitutional right to defend against the theory of guilt upon

which he was prosecuted, convicted, and sentenced. People v. Millsap,

(2000). In the case at bar, this means Ayala has a constitutional right to defend against the

State’s charges that he ordered the shootings from a gang meeting in the basement of his home,

and Soto has a constitutional right to defend against the State’s charges that he carried out

Ayala’s orders using a handgun. Evidence that tends to disprove either of these theories is

“material to the theory of guilt upon which defendant was prosecuted, convicted, and

sentenced.” Rosalez,

. Moreover, defendants were tried before

a single jury and convicted of crimes that allegedly began in Ayala’s basement and were

allegedly completed by Soto in Pietrowski Park. Therefore, evidence that tends to disprove

either theory is probative of both defendants’ claims of actual innocence.

¶ 146 Defendants argue that the affidavits of R. Jacquez, Guzman, V. Hodge, and Palomo, all of

whom, according to Cruz, were either in Ayala’s home or attended the basement gang meeting

are material and noncumulative because they tend to show that no basement gang meeting

occurred at Ayala’s home on the day of the Pietrowski Park shootings. The State responds, and

the trial court agreed, that these affidavits are not material because “evidence that these

54 individuals did not attend the meeting is not evidence that no meeting took place.” Both the

State and the trial court misapprehend the actual innocence materiality standard. Our supreme

court has “specifically rejected the total vindication or exoneration standard” and has explained

that “evidence which is ‘materially relevant’ to a defendant’s claim of actual innocence is

simply evidence which tends to significantly advance that claim.” Robinson,

(quoting People v. Savory,

(2001)). Here, evidence that these

witnesses did not attend the basement gang meeting as testified by Cruz significantly advances

the claim that no such meeting took place, and that Ayala therefore could not have ordered the

shootings from any such meeting. Molstad, 101 Ill. 2d at 135 (affidavits were material where,

although the defendant offered alibi testimony at trial, the introduction of five codefendants’

statements at the posttrial stage raised additional questions concerning the trial court’s verdict).

¶ 147 The State next argues that the affidavits of R. Jacquez, Guzman, V. Hodge, and Palomo

are cumulative because several witnesses testified at trial that they did not attend any basement

gang meeting at Ayala’s home or that they were present at the house and did not witness a

gang meeting. We disagree. In Ortiz, our supreme court found that an affidavit supporting the

defendant’s alibi defense was not merely cumulative of the testimony of an alibi witness

presented at trial, because it “added to what was before the factfinder.” Ortiz,

. Similarly, here, testimony from additional alleged gang meeting participants denying any

such meeting took place would have certainly added to factual picture presented to the jury.

The affidavit of Palomo is also material and noncumulative because he admits that he

participated in the shooting but avers he did not take any orders from defendants. Although the

State argues that Palomo’s assertion that he “operated on [his] own” contradicts the affidavits

of other affiants who identified shooters other than Palomo, in context, his statement can

55 plausibly be read to imply that he acted without input or direction from defendants, not that

Palomo was the only shooter. Accepted as true, this assertion is material and noncumulative

because the jury did not hear this exculpatory testimony at trial. People v. Woods,

(“Evidence is not cumulative if it adds to the information that was before

the jury and raises additional questions concerning the jury’s verdict.”).

¶ 148 We also find that the affidavits of Padilla, Abarca, and Mullins are material and

noncumulative. Affidavits identifying someone other than Soto as the handgun shooter, and as

a corollary, denying that Soto was the handgun shooter are “highly probative” of Soto’s

innocence. Rosalez,

. The State argues that these witnesses’

affidavits are not material because “Neither Abarca [nor] Mullins [] told police that he or she

saw Rodriguez fire a handgun into the crowd at the park or identified Rodriguez as the

shooter.” To the contrary, Abarca averred, “I saw a tall white male carrying a rifle and [V.

Rodriguez] carrying a handgun ***. I yelled at the shooters and [V. Rodriguez] then turned

around, faced me, and fired a shot at me.” Similarly, Mullins averred that he was talking to

Limas when she was shot in the head and then “Everybody got down and the shooting stopped.

I then looked to my right to see where the shots came from. They came from the gangway ***

approximately 15-20 feet from where I was standing and *** well lit by a street lamp that was

next to it. I saw [V. Rodriguez] who had a handgun, *** Palomo and [Cruz] who was carrying

a rifle.” Padilla likewise averred that he believed V. Rodriguez was one of the shooters, and

told that to agents State’s Attorneys’ Office, who then coerced him into falsely testifying that

he did not know who shot him. 8 Because the State’s theory at trial was that there was only one

8 We reject the State’s contention that Padilla’s affidavit is positively rebutted by the record. While Padilla’s affidavit conflicts with his trial testimony, this is not the same as positively rebutting the record. See Robinson,

(“a conflict with the trial evidence is not the same as a finding that the evidence is positively rebutted”). Moreover, none of the physical evidence adduced at trial demonstrates that

56 handgun shooter, evidence from eyewitnesses who observed V. Rodriguez firing or carrying a

handgun immediately after the shooting is certainly probative of Soto’s innocence. Rosalez,

(“Evidence that tends to prove that defendant was not the

shooter is clearly material to the theory of guilt upon which defendant was prosecuted,

convicted, and sentenced.”). In addition, because no evidence connecting V. Rodriguez to the

crime was presented at trial, this evidence cannot be considered cumulative. Rosalez,

(affidavits identifying alternate suspect as the shooter were

noncumulative, “as none of the evidence at trial directly implicated [alternate suspect].”)

Lastly, we note that the trial court made prohibited credibility determinations when describing

these affidavits with gratuitous skepticism, referring to Mullins as a “convicted murderer,”

describing Abarca’s averments as “curious,” and calling into question Padilla’s motivations

for assisting defendants. “The possibility that [affiants] might not be as credible as the State’s

witness is simply not a basis for dismissal at the second stage.” Wilson,

, ¶ 76.

¶ 149 C. Conclusiveness

¶ 150 As noted, evidence is of a conclusive character where, when considered along with the trial

evidence, it would probably lead to a different result. Coleman,

. The

new evidence need not be completely dispositive. Coleman,

. Rather,

“[p]robability, not certainty, is the key as the trial court in effect predicts what another jury

would likely do, considering all the evidence, both new and old, together.” Coleman, 2013 IL

Padilla’s affidavit is false. See Harper,

(affiant’s confession was not positively rebutted by the record where physical evidence at trial was not so conclusive as to as to positively rebut affiant’s version of events); Sanders,

(affiant’s attestation that he shot victim just once was positively rebutted by the record where physical evidence adduced at trial showed the victim was in fact shot twice). Although Padilla was shot from behind, he avers that he observed the shooters before turning.

57 113307 ¶ 97. The question is whether the evidence supporting the postconviction petition

places the trial evidence in a different light and undermines the court’s confidence in the

judgment of guilt. Coleman,

; People v. Robinson,

.

Taken together, the newly discovered, material, non-cumulative evidence described above

easily meets this standard. There was no physical evidence linking the defendants to the crimes,

and the only witness to testify regarding defendants’ involvement was the highly incentivized

Cruz. Affidavits from over half a dozen witnesses who contradict elements of Cruz’s account

are sufficiently conclusive to alter the result on retrial, particularly given the weakness of the

State’s case at trial. See, e.g., Wilson,

¶ 76 (affidavit which

“provide[d] significant corroboration” for defendant’s assertion that he did not commit the

offense was of conclusive character); Rosalez,

(affidavit

evidence identifying alternate suspect as true offender satisfied conclusive character prong);

Willingham,

(affidavit from new eyewitness who corroborated

the defense at trial sufficient to cast trial in new light); Woods,

(“first-person account of the incident that directly contradicts the trial testimony of

the State’s primary eyewitnesses” could be of such conclusive character as to change the result

on retrial). Accordingly, Soto and Ayala are entitled to a third-stage evidentiary hearing

regarding their actual innocence claims.

¶ 151 VI. Ayala’s Proportionate Penalties Clause Claim

¶ 152 Ayala also appeals from the trial court’s September 24, 2020, order denying him leave to

file a successive postconviction petition in which he raised a youth-based sentencing claim

under the proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I,

§ 11. The trial court found Ayala had failed to establish “cause” because he could have

58 supplemented his initial petition with this claim, but did not, and failed to establish “prejudice”

because Ayala’s petition only made allegations concerning the evolving science on young adult

brains generally and did not make allegations regarding Ayala’s specific facts and

circumstances. The trial court further found that Ayala’s natural life sentence does not shock

the moral sense of the community where “the circumstances of [Ayala’s] offenses reveal

[Ayala] to be a moving force in the gestation of the crime.” For the reasons that follow, we

affirm the judgment of the trial court.

¶ 153 As noted, prior to commencing a successive proceeding, a defendant must obtain leave of

court to file his or her petition. People v. Robinson,

. At this threshold

stage, when a defendant seeks leave to file, he or she is required to demonstrate only “a prima

facie showing of cause and prejudice.” People v. Bailey,

. To show cause,

“a defendant must identify an objective factor that impeded his ability to raise the claim in his

initial petition.” People v. Davis,

. To show prejudice, “a defendant must

demonstrate that the claim so infected the trial that the resulting conviction or sentence violated

due process.” Edwards,

. If leave to file is granted, the petition will be

docketed for second-stage proceedings. Sanders,

; 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 proceedings.”). “[L]eave of court to file a successive postconviction petition

should be denied only where it is clear from a review of the petition and attached

documentation that, as a matter of law, the petitioner cannot set forth a colorable claim ***.”

Sanders,

.

59 ¶ 154 To determine whether a defendant has made a prima facie showing of cause and prejudice,

we apply a de novo standard of review. Bailey,

. As noted, de novo

consideration means that a reviewing court performs the same analysis that a trial judge would

perform. Van Dyke,

.

¶ 155 On appeal, Ayala first argues he has established cause “because the law was unsettled on

the all-important question of whether a trial court may consider an offender’s young age in

determining whether a mandatory natural life sentence violates the proportionate penalties at

the time Ayala filed his postconviction petition and supplemental claims.” We thus begin our

analysis of cause with an overview of this evolving area of law.

¶ 156 The eighth amendment, which sets the floor for constitutional sentencing protections under

Illinois law, ‘guarantees individuals the right not to be subjected to excessive sanctions.’ ”

Miller v. Alabama,

(2012) (quoting Roper v. Simmons,

(2005)). In Miller, the United States Supreme Court found that a sentence of mandatory life

without parole for offenders under 18 years old violates the eighth amendment and announced

several factors that a sentencing court must consider in mitigation before imposing a natural

life sentence on a juvenile. Miller,

. As defendant concedes, however, the

rule of Miller does not apply to the case at bar because defendant was not legally a juvenile at

the time of his offense; he was over 18 years old. In People v. Harris,

, our

supreme court reaffirmed under 18 as the age cutoff for juvenile sentencing protections in the

eighth amendment context. Harris,

(in the eighth amendment context,

“for sentencing purposes, the age of 18 marks the present line between juveniles and adults”).

¶ 157 However, where, as here, a young adult raises an as-applied challenge, Illinois courts have

routinely considered their sentencing claims under the proportionate penalties clause of our

60 Illinois Constitution. E.g., People v. Minniefield,

(considering a 19-year-old defendant’s as-applied sentencing claim under the proportionate

penalties clause rather than the eighth amendment); Franklin,

, ¶ 51

(18-year-old defendant); People v. Johnson,

, (19-year-old

defendant); People v. Ross,

(19-year-old defendant).

¶ 158 The proportionate penalties clause provides that “[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objective of restoring the offender to

useful citizenship.” Ill. Const. 1970, art. I, § 11. “The purpose of the proportionate penalties

clause is to add a limitation on penalties beyond those provided by the eighth amendment and

to add the objective of restoring the offender to useful citizenship.” Minniefield,

; see Franklin,

, ¶ 55. Thus, the proportionate

penalties clause goes further than the eighth amendment in offering protection against

oppressive penalties. Minniefield,

; People v. Clemons,

; People v. Fernandez,

(“the Illinois

Constitution places greater restrictions on criminal sentencing than the eighth amendment’s

prohibition”). “Unlike other constitutional provisions affecting criminal defendants, these two

provisions—the eighth amendment and the proportionate penalties clause—are not in

lockstep.” Franklin,

, ¶ 55; see Savage,

,

¶ 65.

¶ 159 By way of the proportionate penalties clause, our supreme court has held that young adults

may rely on the evolving neuroscience and societal standards underlying the rule in Miller to

support an as-applied challenge to a life sentence. See People v. Thompson,

(19-year-old defendant “is not necessarily foreclosed from renewing his as-applied

61 challenge in the circuit court” pursuant to the Act); Harris,

.

Recently, in House,

, our supreme court once again found that a

young adult may bring an as-applied challenge under the proportionate penalties clause based

on a developed evidentiary record as to how the “science concerning juvenile maturity and

brain development applies equally to young adults, or to petitioner specifically.”

¶ 160 However, these decisions do not constitute cause for Ayala’s failure to bring his

proportionate penalties claim earlier. Our supreme court’s focus, when considering cause in

the juvenile and young adult sentencing context, has been on whether the argument was

“available” to earlier counsel. See People v. Davis,

(“Miller’s new

substantive rule constitutes ‘cause’ because it was not available earlier”). Contrary to Ayala’s

argument on appeal, Thompson, which opened the door to as-applied Miller-style sentencing

claims for young adult defendants, was available to Ayala when he filed his supplemental

postconviction claim in 2016, and both our supreme court’s decision in Harris and this court’s

decision in People v. House,

, were available to Ayala before the

trial court ruled on his initial postconviction petition in September 2020. Accordingly, because

Ayala could have supplemented his initial petition with a proportionate penalties claim in

reliance on this developing law, he has not established cause for failing to do so.

¶ 161 Ayala alternatively argues that his postconviction counsel failed to provide a reasonable

level of assistance by neglecting to supplement Ayala’s petition with a meritorious

proportionate penalties claim, which, according to Ayala, should satisfy the cause element of

the cause-and-prejudice test. However, we find Ayala’s postconviction counsel provided Ayala

with the reasonable level of assistance required by the Act. Accordingly, postconviction

62 counsel’s decision not to supplement Ayala’s initial petition with this claim does not constitute

cause.

¶ 162 “Because the right to counsel in postconviction proceedings is derived from statute rather

than the Federal or State Constitutions, postconviction petitioners are guaranteed only the level

of assistance provided for by the Act. That assistance has been defined by this [supreme] court

to mean a ‘reasonable’ level of assistance.” People v. Flores,

(1992) (citing

People v. Wright,

(1992)). Although our supreme court has not explicitly set

a standard for determining whether postconviction counsel has provided “a reasonable level of

assistance,” this court has applied a “Strickland-like” analysis for evaluating counsel’s

performance. People v. Zareski,

. As noted, under that

standard, we evaluate whether the defendant has demonstrated prejudice, that is, whether there

is a reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different.

¶ 163 In the case at bar, the trial court’s order demonstrates that even if Ayala’s postconviction

counsel had supplemented his petition with a proportionate penalties claim earlier, it would

not have changed the outcome. Indeed, despite finding a lack of cause, the trial court continued

to assess the prejudice prong of the cause-and-prejudice test and found that Ayala could not

establish prejudice. The court further found that, based on the circumstances of the crimes for

which Ayala was convicted and sentenced, his sentence did not violate the proportionate

penalties clause as a matter of law. In other words, even if postconviction counsel had

supplemented Ayala’s initial petition with this claim, Ayala has not shown a reasonable

probability that his claim would have succeeded.

63 ¶ 164 Moreover, we note that although Illinois Supreme Court Rule 651(c) (eff. July 1, 2017)

requires appointed postconviction counsel to certify that they “examined the record of the

proceedings at the trial” and made “any amendments to the petitions filed pro se that are

necessary for an adequate presentation of petitioner’s contentions,” there is no requirement

that postconviction counsel amend a defendant’s petition to include a specific claim. People v.

Spreitzer,

. Accordingly, we find that postconviction counsel did not fail

to provide Ayala with the “reasonable level of assistance” required by the Act, and Ayala

cannot establish cause on this basis. See Flores,

(attorney error short of

ineffective assistance of counsel does not constitute cause).

¶ 165 For the reasons set forth above, we affirm the trial court’s denial of Ayala’s motion for

leave to file a successive petition raising a youth-based sentencing claim under the

proportionate penalties clause.

¶ 166 CONCLUSION

¶ 167 For the foregoing reasons, we reverse the trial court’s October 9, 2019, order dismissing

defendants’ 2015 petitions, and remand for a third-stage evidentiary hearing at which,

consistent with the limitations set forth in this opinion, defendants may present their claims of

actual innocence and trial counsel conflict of interest. We affirm the trial court’s September

24, 2020, order denying Ayala leave to file his successive petition raising a youth-based

proportionate penalties claim.

¶ 168 No. 1-19-2484, Reversed and remanded with directions.

¶ 169 No. 1-20-0722, Reversed and remanded with directions.

¶ 170 No. 1-20-1175, Affirmed.

64 Nos. 1-19-2484, 1-20-0722, and 1-20-1175, cons.

No. 1-19-2484

Cite as: People v. Ayala,

______________________________________________________________________________

Decisions Under Review: Appeal from the Circuit Court of Cook County, No. 81 CR 7761; the Hon. Timothy J. Joyce, Judge, presiding.

Attorneys Jennifer Bonjean, of Bonjean Law Group, of New York, NY, for for appellant Ayala; Appellants: Debra Loevy, of the Exoneration Project, of Chicago, for appellant Soto.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (John E. Nowak, for Enrique Abraham, Joseph Alexander, and Paul E. Wojcicki, Appellees: Assistant State’s Attorneys, of counsel), for the People.

65