2021 IL App (1st) 200505-U

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

SECOND DIVISION November 9, 2021

No. 1-20-0505 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MARTE HOLLIS, Petitioner-Appellant.

) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County No. 05 CR 0705001 The Honorable Geraldine A. D’Souza, Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.

ORDER

¶ 1 Held: Trial court’s denial of petition for leave to file successive postconviction petition is affirmed, where petition failed to make a colorable claim of actual innocence or to show cause and prejudice for failing to include claims in original postconviction petition.

¶ 2 Petitioner Marte Hollis appeals the trial court’s order denying him leave to file a successive

petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West

2018). Petitioner was convicted of first-degree murder arising out of the shooting death of Matthew

Judkins on February 17, 2005, and he was sentenced to 45 years imprisonment. In this appeal, he

contends that his successive postconviction petition and supporting affidavits (1) raise a colorable

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claim of actual innocence based on self-defense and (2) satisfy the cause and prejudice test. For

these reasons, he argues, the trial court erred in denying him leave to file a successive

postconviction petition. For the reasons that follow, we affirm the judgment of the trial court.

¶ 3 I. BACKGROUND

¶ 4 At petitioner’s trial in 2006, deputy chief James Knapp of the Markham Police Department

testified that on February 17, 2005, he was assigned to investigate a shooting at a residence on

South Laflin Avenue in Markham. When he arrived sometime after 11 p.m., he went to an upper-

level bedroom and observed that the bedroom door had two bullet holes through it and blood on

the inside of the door near the bullet holes. The holes appeared to have come from outside the door

into the bedroom. He observed the victim, Matthew Judkins, lying face up on the floor about three

feet from the bedroom door. The victim had blood on his face in his mouth area, blood on his chest,

and blood on the right leg of his jeans. Petitioner was not present but was later taken into custody.

¶ 5 Chantelle Moore testified that petitioner had been her live-in boyfriend for years, including

at the residence on South Laflin Avenue in Markham, but petitioner had moved out in October

2004. On the day at issue, petitioner had called Chantelle several times to tell her that he needed

to get something out of the house, but she told him no. She described that as of that day, her

relationship with petitioner was not good, because they had gotten into a fight a few days earlier

on Valentine’s Day. Chantelle testified that on the night at issue, she had invited Judkins, a friend

whom she had known for five months, to her home for a visit. Judkins arrived about 9 p.m., along

with his young son. Judkins was sitting in a chair in Chantelle’s room watching TV when Chantelle

decided to take a shower. While she was showering, her son told her that petitioner had arrived.

She told her son to tell petitioner that she was not at home, but shortly thereafter she saw petitioner

standing in the hall outside the bathroom door. Petitioner told her that he wanted to retrieve his

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clothes, and then he opened her bedroom door. When petitioner saw Judkins inside of that room,

petitioner asked Judkins, “ ‘What you doing in my house[?]’ ” Judkins responded, “ ‘It’s not your

house.’ ” At that point, Chantelle returned to the bathroom to get dressed and closed the bathroom

door. While doing so, she heard a loud gunshot. She opened the bathroom door and saw petitioner

standing in front of it when a gun in his hand. The bedroom door was closed, and she saw petitioner

shoot the gun two more times at the door. Petitioner then walked out of the house at a fast pace.

Chantelle further testified that she kept a gun hidden in her bedroom closet, but that it would not

have been visible from the bedroom and that she did not tell Judkins about the gun. There was also

a knife on an ottoman next to the chair in which Judkins had been sitting on the night in question

because Judkins had been using the knife to cut a cigar.

¶ 6 Chantelle’s daughter, Chanell Moore, testified that at approximately 11 p.m. on the night of

the incident she let petitioner into her house. Petitioner went upstairs, and Chanell saw her mother

peer out at him from the bathroom and ask him what he wanted. Petitioner did not answer, and

instead he opened the bedroom door and saw Judkins sitting inside. Petitioner asked Judkins,

“ ‘Why you here? Why you around my kids?’ ” Chanell then saw petitioner pull a gun from behind

his back, at which point she saw the bedroom door close quickly from the inside. She then saw

that petitioner was trying to push the door open but was unable to do so, at which point she saw

him shoot through the door. Chanell ran out of the house after the first gunshot. She saw a van

idling in front of the house. The door to the van was open and Chanell recognized the driver as

petitioner’s friend Lamont. Chanell then saw petitioner run from the house, jump into the van and

tell the driver “ ‘go, go, go, go.’ ”

¶ 7 The State then presented evidence that police investigators discovered that the bedroom door

in question had two bullet holes in it, and that the gunshots had been fired from outside the

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bedroom. Three spent shell casings were found. A knife was found on the ottoman, covered by a

coat, and a gun was found in the bedroom closet. The parties stipulated that forensic pathologist

Dr. J. Scott Denton would testify that Judkins sustained a gunshot wound to the left upper chest as

well as a gunshot wound to the right leg, neither of which had been fired at close range. His

conclusion was that Judkins died from multiple “shotgun” wounds.

¶ 8 Assistant State’s Attorney Shital Thakkar testified that after advising petitioner of his

Miranda rights, he interviewed petitioner at the police station two days after the shooting.

Petitioner then agreed to give a videotaped statement, and that statement was consistent with his

earlier interview. In that videotaped statement, which was played at trial, petitioner admitted to

shooting Judkins after going to Chantelle’s home to retrieve clothes, seeing Judkins there, and

arguing with him. Petitioner stated that he and Chantelle had argued on Valentine’s Day because

a man had phoned her at 11 p.m. that evening while the two of them were spending time together.

Petitioner stated that he did not know who the man was, but he knew that Chantelle “kind of mess

around a little bit with a couple more guys.” Petitioner asked the man to “please stay away from

my family because I’m trying to keep my family together.” Petitioner had two children with

Chantelle. Following their argument that night, Chantelle had taken his keys and kicked him out

of the house. He thus decided on the day in question to ask if he could come to her house to retrieve

his clothes. At about 10:30 p.m., petitioner’s friend Lamont Beard drove him to Chantelle’s home,

and an unfamiliar vehicle was parked in front of it. He explained that when he went inside the

house, Chantelle was just coming out of the shower and Judkins was “sitting in my black chair

right across from my bed.” He stated that Judkins “got loud with me,” and petitioner was scared

for his life because Judkins had shot at people, including police, and would “stick people up.”

Thus, he stated, “before we got to wrestling or whatever, I shot him.” Petitioner did not recall firing

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three shots. Petitioner backed out of the room, walked out of the house, and jumped into Beard’s

van. They drove some distance before petitioner broke up the gun and threw the pieces into a body

of water.

¶ 9 After petitioner’s motion for directed verdict was denied, petitioner’s counsel sought to

subpoena Officer Rick Anthony of the South Holland police department pursuant to a newly

amended witness list. Petitioner’s counsel informed the court that she had previously made an

effort to discover whether Judkins had any background that could be used to show his aggressive

and violent character pursuant to People v. Lynch, 104 Ill. 2d 194 (1984), but she had not

discovered any relevant background until recently due to a discrepancy in the spelling of Judkins’

last name. Petitioner’s counsel made an offer of proof that Officer Anthony would testify regarding

an incident that occurred in a South Holland hotel room that led to charges against Judkins for

armed violence and various controlled substance offenses. When police officers went to the hotel

room to take Judkins into custody, he “went under a bed” and had to be physically removed, and

a loaded handgun was retrieved also. Petitioner’s counsel stated that Judkins was convicted of drug

related offenses and that a charge of armed violence was nolle prossed. The trial court found that

this evidence was not admissible under Lynch, and the trial proceeded.

¶ 10 Lamont Beard testified for the defense that at about 11 p.m. on the night of the incident, he

drove petitioner to Chantelle’s home so that petitioner could retrieve his belongings. An unfamiliar

truck was parked outside. When petitioner exited Beard’s minivan, he did not seem to be angry. A

short time later, Beard saw Chanell run screaming from the house. Beard heard loud noises but did

not know they were gunshots because the van’s windows were closed and he was listening to

music. He denied leaving the minivan’s engine running or its door open. Beard testified that

petitioner walked out of the house when he returned to the minivan and Beard did not see a gun in

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his possession. However, Beard acknowledged that he had testified before the grand jury that he

heard gunshots and that petitioner ran from the house carrying a gun.

¶ 11 Petitioner was the final witness to testify. His account of the events was similar to his

videotaped statement, with several exceptions. He testified at trial that he and Chantelle had two

children together and that he helped her raise her two older children. Petitioner had been living

with Chantelle for several years, and he was still living with her at the Laflin Avenue residence on

the date at issue. Following the fight that had occurred between the two of them on Valentine’s

Day, petitioner testified that he was through with the relationship and realized it was not going to

work out. Thus, he went over to Chantelle’s house on the night at issue to collect his clothes and

money. He testified that prior to going into the bedroom, he opened the door to the bathroom and

told Chantelle that he was going to get his things. He then opened the door to the bedroom, where

he saw Judkins sitting in the chair. Petitioner explained that he knew of Judkins from an incident

several months earlier in which he had witnessed Judkins get out of a car brandishing an automatic

pistol and shout to a crowd, “ ‘you MFers, I’m going to find out who shot me.’ ” He also testified

that when he saw Judkins sitting in the chair, he also saw a knife on the footrest near him and a

handgun in plain view on the shelf. Petitioner testified that he asked Judkins “what he was doing

in my house, around my kids.” He testified that Judkins responded, “ ‘Shorty, you know who I am.

You know how I get down, and such and such,’ ” at which point Judkins jumped up and grabbed

him. Petitioner testified that he shook Judkins loose and stepped back out of the room. He then

saw Judkins go toward the closet where the weapon was, so petitioner pulled his gun from the back

of his waist and shot. Petitioner testified that he was afraid because Judkins was bigger than him

and was reaching for a gun. Petitioner testified that the door was open when he shot and that, when

Judkins went toward the closet, petitioner pulled the bedroom door closed. Petitioner then shot two

No. 1-20-0505

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more times through the door. He testified that he did this because he thought Judkins could have

the gun in his hand, he wanted to keep Judkins from coming out, and he wanted time to get out of

the house. Petitioner also testified that he was afraid Judkins would shoot him with the gun, and

that he had heard Judkins had shot people in the past including a police officer and a couple of

guys in the neighborhood. Petitioner then walked quickly out of the house and got into Beard’s

minivan, but he did not know whether Judkins had been hit or not. He later broke the gun down

and threw it into some water as they stopped on a bridge.

¶ 12 In closing arguments, petitioner’s counsel argued that “it’s not a jealousy issue” because

petitioner was aware that Chantelle was “somebody who does a little bit of cheating” and yet he

had never fought or tried to kill the men she cheated with. He argued that if petitioner’s thinking

had been “to shoot anybody that is with my fiancée,” he would have shot Judkins immediately

without letting him stand up from the chair. In rebuttal closing, the prosecutor summarized this

argument by petitioner’s counsel and then argued that it was for the court to decide whether

petitioner was jealous. The prosecutor stated that the situation “sounds like a scorned lover” and

noted there was a dispute about whether Chantelle had kicked petitioner out of the house or

whether he had voluntarily decided to leave.

¶ 13 The trial court found petitioner guilty of first-degree murder. In doing so, the court stated that

it was clear that the State had proven the elements of murder but that the issue was whether “there

is second degree or not.” The court recounted portions of petitioner’s statement and the trial

testimony of petitioner and Channell, including Channell’s testimony that she saw the bedroom

door close from the inside and petitioner shoot through the door after being unable to open it. The

court found that Chanell was “very credible,” and that the mitigating factors for a second-degree

finding were not present. The court subsequently sentenced petitioner to 45 years imprisonment.

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¶ 14 Petitioner filed a direct appeal in which his sole contention was that the trial court erred in

denying the admission of evidence, by way of Officer Anthony’s testimony, of Judkins’ violent

and aggressive character that would have supported his self-defense argument that Judkins was the

initial aggressor. This court rejected that contention and affirmed his conviction and sentence.

People v. Hollis, No. 1-09-1777 (2010) (unpublished order under Illinois Supreme Court Rule 23).

¶ 15 On October 26, 2011, petitioner filed his initial petition for postconviction relief, which was

prepared with the assistance of privately-retained counsel. In that petition, petitioner asserted five

bases upon which his trial counsel had provided ineffective assistance: (1) she failed to properly

investigate petitioner’s case and discover Lynch witnesses who could testify to Judkins’ violent

character; (2) she called Beard, who presented damaging testimony, to testify on petitioner’s

behalf; (3) she stipulated to the autopsy report that indicated that Judkins was killed by multiple

“shotgun” wounds, contrary to the trial testimony of multiple witnesses that he was killed by

“gunshot” wounds; (4) she failed to file a motion to suppress petitioner’s videotaped confession

and any statements made prior to that confession; and (5) she failed to file a motion requesting

discovery sanctions against the State’s Attorney’s office when it revealed that the 911 tape had

been destroyed. Attached to that original petition was an affidavit by Lisa Dabbs, who averred that

Judkins was “a very dangerous man” known for robbing various neighborhood residents. She

averred that Judkins had robbed petitioner’s brother at gunpoint, that he was known to have been

arrested for battery, assault, and drugs and questioned for attempted murder, that the whole

community was terrified of him, and that he was a main member of the Four Corner Hustlers, who

were known to carry guns and to be unafraid to commit crimes. The petition was later amended to

attach the affidavit of Ebony Hughes, who made averments similar to those of Dabbs concerning

Jenkins being “well known in my community as a violent person.”

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¶ 16 The trial court granted the State’s motion to dismiss petitioner’s postconviction petition. In

doing so, the court stated, inter alia, that the “two affidavits go to Lynch material” related to

Judkins’ reputation for violence in the community, which would be “nothing but cumulative” of

petitioner’s extensive trial testimony regarding “the Lynch information that he had.”

¶ 17 Petitioner appealed and was represented on appeal by the Office of the State Appellate

Defender. On appeal, petitioner did not challenge the dismissal of his postconviction petition on

the merits. People v. Hollis, 2014 IL App (1st) 122168-U, ¶ 18. Instead, he sought reversal on the

basis that his privately-retained postconviction counsel had failed in the trial court to provide him

with a reasonable level of assistance by failing to present his claim that his trial counsel had been

ineffective for failing to investigate and present Lynch evidence demonstrating Judkins’ violent

criminal proclivities in proper legal form and with appropriate supporting documentation. Id.

¶¶ 18, 20. Petitioner contended that his postconviction counsel (1) failed to show petitioner knew

of proposed witnesses Dabbs and Hughes at the time of his trial; (2) did not ensure that Dabbs’

affidavit stated that she would have testified on petitioner’s behalf at trial; and (3) failed to include

an affidavit from petitioner attesting that he told his trial attorney about Dabbs and Hughes. Id.

¶ 20. He also contended his postconviction counsel failed to provide a reasonable level of

assistance in that every claim included in the petition other than the Lynch-based claim was

patently frivolous, and she made incorrect statements during the hearing on the State’s motion to

dismiss the petition. Id. ¶¶ 23, 25. This court rejected petitioner’s arguments that his postconviction

counsel had failed to provide him with reasonable assistance in the trial court. Id. ¶¶ 22, 24, 27.

¶ 18 On August 19, 2015, petitioner filed a petition for writ of habeas corpus in federal district

court. He alleged, among other claims, that his right to due process had been denied at trial by the

trial court’s refusal to admit the testimony of Officer Anthony concerning Judkins’ violent

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character. Hollis v. Lamb, No. 15 C 7297, 2016 WL 6217089, *3 (N.D. Ill. Oct. 25, 2016). The

district court denied the petition. Id. at *1. It found that, while petitioner had “raised a cognizable

habeas claim based on a federal right,” the claim was procedurally defaulted due to petitioner’s

failure to exhaust his remedies in state court by first presenting a federal claim there. Id. *3. The

district court later denied a motion for reconsideration of this ruling. Hollis v. Lamb, No. 15 C

7297, 2016 WL 7440269, *1 (N.D. Ill. Dec. 27, 2016).

¶ 19 On October 28, 2019, petitioner filed the instant petition for leave to file a successive

postconviction petition. He first asserted that he should be granted leave to file a successive petition

on the grounds that he was actually innocent of the crime of first-degree murder, based on his

claim of self-defense. In support of his actual-innocence claim, he attached the affidavit of Kris

Sperry, M.D., a forensic pathologist. Petitioner claimed that Dr. Sperry’s findings, discussed

below, support his claim “that Judkins had been chasing after him and that petitioner shot through

the door in fear of his life.” Petitioner also relied for his actual-innocence claim on “additional

Lynch material,” including the fact that Judkins had been convicted of armed violence and

affidavits by several additional witnesses willing to testify about Judkins’ aggressive and violent

character. Second, in addition to his actual-innocence claim, petitioner also raised several further

claims of ineffective assistance of counsel against his trial counsel, appellate counsel, and initial

postconviction counsel, concerning their respective failures to raise challenges to improper

statements by the prosecutor that petitioner had been motivated by jealousy to shoot Judkins. He

also contended that his appellate counsel was ineffective for failing to raise “a federal claim” on

direct appeal involving the trial court’s exclusion of Officer Anthony’s testimony. Third, petitioner

contended that his due process rights had been violated due to the prosecutor’s improper and

prejudicial statements that jealousy was petitioner’s motive for shooting Judkins. Finally,

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petitioner asserted that his due process rights had been violated by the exclusion of Officer

Anthony’s testimony. Petitioner contended that the cause and prejudice test was satisfied for the

filing of these claims in a successive petition.

¶ 20 The trial court denied petitioner’s petition for leave to file the successive postconviction

petition. As to the actual-innocence claim, the court found that the supporting documentation did

not raise the probability that, more likely than not, no reasonable juror would have convicted

petitioner in light of the new evidence. The trial court also found that the petitioner had failed to

satisfy the cause and prejudice test concerning his remaining claims. This appeal then followed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, petitioner contends that the trial court erred in denying his petition for leave to

file a successive postconviction petition because, in its first claim, it raised a colorable claim that

he was actually innocent of the crime of first-degree murder. He also contends that the “cause and

prejudice” test can be satisfied as to the three other claims raised in his successive petition.

¶ 23 The Act permits an imprisoned individual to file a cause of action asserting that, “in the

proceedings which resulted in his or her conviction there was a substantial denial of his or her

rights under the Constitution of the United States or of the State of Illinois or both.” 725 ILCS

5/122-1(a)(1) (West 2018). A postconviction action is a collateral attack, not an appeal seeking

review of the judgment. People v. Young, 2018 IL 122598, ¶ 16. Its purpose is to permit inquiry

into constitutional issues involved in the original trial that have not been, and could not have been,

adjudicated previously on direct review. Id. Issues that were raised and decided on direct appeal

are barred by the doctrine of res judicata, and issues that could have been raised on direct appeal,

but were not, are procedurally defaulted. Id. The Act contemplates the filing of only one

postconviction petition. People v. Robinson, 2020 IL 123849, ¶ 42; see also 725 ILCS 5/122-3

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(West 2018) (“Any claim of substantial denial of constitutional rights not raised in the original or

an amended petition is waived.”).

¶ 24 After an individual has filed one postconviction petition, leave of court must be obtained for

the filing of a successive petition. 725 ILCS 5/122-1(f) (West 2018). Successive petitions may be

allowed in two situations. One is satisfaction of the “cause and prejudice” test, which has been

codified in the Act. Robinson, 2020 IL 123849, ¶ 42; see 725 ILCS 5/122-1(f) (West 2018). The

second involves a showing that the petitioner is actually innocent. Robinson, 2020 IL 123849, ¶ 42.

Petitioner raises both bases in this case. Under either basis, a court evaluating whether to grant

leave to file a successive petition must accept as true all well-pleaded allegations in the petition

and supporting affidavits that are not positively rebutted by the trial record. Id. ¶ 45. The court

does not make fact or credibility determinations. Id. Appellate review of a trial court’s denial of

leave to file a successive petition is de novo. Id. ¶¶ 39-40.

¶ 25 A. Actual Innocence Claim

¶ 26 We first address petitioner’s argument that his successive postconviction petition raised a

colorable claim of actual innocence and that therefore the trial court erred in denying him leave to

file it. A trial court properly denies leave to file a successive petition “where it is clear from a

review of the petition and supporting documentation that, as a matter of law, the petition cannot

set forth a colorable claim of actual innocence.” Id. ¶ 44. By contrast, “leave of court should be

granted where the petitioner’s supporting documentation raises the probability that it is more likely

than not that no reasonable juror would have convicted the petitioner in light of the new evidence.”

Id. (citing People v. Sanders, 2016 IL 118123, ¶ 24 (citing People v. Edwards, 2012 IL 111711,

¶ 24)). Also relevant to the court’s consideration are the following legal standards that must

ultimately be satisfied by evidence submitted in support of a claim of actual innocence:

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“To establish a claim of actual innocence, the supporting evidence must be (1) newly

discovered, (2) material and not cumulative, and (3) of such conclusive character that it

would probably change the result on retrial. [Citations.] Newly discovered evidence is

evidence that was discovered after trial and that the petitioner could not have discovered

earlier through the exercise of due diligence. [Citation.] Evidence is material if it is relevant

and probative of the petitioner’s innocence. [Citation.] Noncumulative evidence adds to

the information that the fact finder heard at trial. [Citations.] Lastly, the conclusive

character element refers to evidence that, when considered along with the trial evidence,

would probably lead to a different result. [Citations.] The conclusive character of the new

evidence is the most important element of an actual innocence claim. [Citation.]

Ultimately, 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. [Citation.] The new evidence need not be entirely dispositive to

be likely to alter the result on retrial. [Citations.] Probability, rather than certainty, is the

key in considering whether the fact finder would reach a different result after considering

the prior evidence along with the new evidence. [Citation.]” Robinson, 2020 IL 123849,

¶¶ 47-48.

¶ 27 Petitioner argues that a colorable claim of actual innocence is established through the

affidavit of Dr. Kris Sperry, a forensic pathologist, in conjunction with additional Lynch material

that was unknown to petitioner at the time of his trial. He argues that this evidence supports his

claim that he acted in self-defense in the shooting of Judkins and thus would be acquitted of first-

degree murder. Evidence that would support a petitioner’s complete acquittal on self-defense

grounds may serve as the basis of a claim of actual innocence. People v. Woods, 2020 IL App (1st)

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163031, ¶ 41. The elements of self-defense are: (1) that unlawful force was threatened against a

person; (2) that the person threatened was not the aggressor; (3) that the danger of harm was

imminent; (4) that the use of force was necessary; (5) that the person threatened actually and

subjectively believed a danger existed that required the use of force applied; and (6) the beliefs of

the person threatened were objectively reasonable. People v. Lee, 213 Ill. 2d 218, 225 (2004).

¶ 28 The affidavit of Dr. Sperry attached to petitioner’s successive petition indicates that he

reviewed the forensic scene diagram, the Illinois State Police crime scene report, several Markham

Police Department reports, the South Suburban Major Crime reports, the transcript of petitioner’s

videotaped statement, the Cook County Medical Examiner’s Office’s autopsy and investigative

reports, photographs of the incident scene, and photographs of Judkins’ autopsy. Based on his

review of these materials, Dr. Sperry expressed four conclusions:

“1. The first gunshot fired was the missile that struck and went through Judkins’ right

lower leg, with a downward trajectory. This gunshot wound is well below either of the two

bullet perforations within the door, which indicates that the door was open at the time this

shot was fired. This correlates with Hollis’ account, that he fired one initial shot at Judkins

when he saw Judkins sitting in the bedroom, recognized him, and became in fear for his

life.

2. The gunshot wound of the leg did not strike bone, and would thus have not been

incapacitating or particularly painful immediately, and would not have interfered with

Judkins’ ability to move about the room, get up from a sitting position, or any other

movement.

3. The next two of the three gunshots occurred when the bedroom door was closed,

with Hollis firing from the other side, and with Judkins immediately adjacent to the inner

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door surface. Of these, one struck Judkins in the left chest, causing injuries that were lethal,

but not immediately or instantaneously incapacitating. The blood spatters on the inner door

surface, at the level of the bullet holes, most probably arose from Judkins coughing up

blood from his lungs. One of the two bullets fired through the door did not strike Judkins.

4. The height of the two bullet holes in the door allows the conclusion that neither of

these missiles were the bullet that struck and perforated Judkins’ right lower leg.”

Petitioner asserts that these conclusions by Dr. Sperry support the claim that Judkins “would have

had to be standing very close to the door” to cough blood from his lungs onto it, which in turn

“supports petitioner’s claim that Judkins had been chasing after him and that petitioner shot

through the door in fear of his life.”

¶ 29 After reviewing Dr. Sperry’s affidavit, we do not believe it can fairly be characterized as

“newly discovered” evidence. It appears that all of the investigation reports, photographs, and

other materials upon which Dr. Sperry’s conclusions are based are items that existed at the time of

petitioner’s trial and would have been available for use then. More significantly, however, we do

not find Dr. Sperry’s conclusions to be material, i.e., probative of petitioner’s innocence. Petitioner

asserts that Dr. Sperry’s affidavit supports the conclusion that the reason Judkins was near the door

was because he was chasing after petitioner. However, Dr. Sperry did not reach or express any

such conclusion himself, and we find nothing in his report from which that inference can fairly be

drawn. It is undisputed from the trial evidence that petitioner shot three times and that two of those

shots were through the closed bedroom door. Chanell Moore testified that she saw the bedroom

door close quickly from the inside, while petitioner testified that he closed the door from the

outside. If the door closed from the inside, this would support the inference that Judkins, who was

the only person in the bedroom, was near the door in order to close it. We do not see how Dr.

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Sperry’s conclusions make it any more likely that the reason Judkins was near the door was

because he was chasing petitioner, as opposed to merely closing the door to keep petitioner out.

His conclusions are certainly not of a conclusive character on the question of whether petitioner

acted in self-defense. Nothing about Dr. Sperry’s conclusions lead us to believe that, if they were

expressed at retrial, they would probably lead to acquittal based on self-defense, nor do they place

the trial evidence in a different light or undermine the court’s confidence in the judgment of guilt.

¶ 30 In conjunction with Dr. Sperry’s affidavit, petitioner also relies for his actual-innocence claim

on additional Lynch material that was not presented at trial or in his original postconviction

petition. The first is the fact that the prosecutor apparently misstated that Judkins was merely

charged with armed violence instead of stating that he was convicted of armed violence. Second,

petitioner attached to his successive petition an affidavit by Charles Hill, which stated that Hill

had known Judkins since high school. Hill stated that on the night Judkins died, Hill was called to

Chantelle Moore’s house to pick up her children because Chantelle feared that the Four Corner

Hustlers were going to burn her house. Hill stated that it was well known around Markham that

Judkins was a high-ranking gang chief and always carried a firearm. Hill stated that he knew

Judkins to be a violent man who had no problem shooting people and that petitioner “had every

reason to fear for his life” on the night he shot Judkins. Third, petitioner attached the affidavit of

Moirshe Sibley, in which Sibley stated that he was a friend of Judkins. Sibley stated that he had

been with Judkins earlier on the day of his death, and Judkins said to him that he had left a .380

handgun at the house of the girl he had been dating in Markham. Sibley stated that Judkins was a

high-ranking gang member who ruled through intimidation, and he was a known killer, robber,

and drug dealer.

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¶ 31 Assuming for argument’s sake that this additional Lynch material is newly discovered and

material, we nevertheless find that it is largely cumulative of petitioner’s own testimony

concerning Judkins’ violent character. In his trial testimony and videotaped statement, petitioner

stated that he had witnessed Judkins brandish a weapon in front of a crowd of people, that he knew

that Judkins had shot at people before, including police officers, and that he would stick people

up. It is also cumulative of petitioner’s testimony that he knew Judkins could access the gun in

Chantelle’s closet and that petitioner was in fact scared of Judkins when he saw him in the

bedroom.

¶ 32 Moreover, while this additional Lynch evidence supports the notion that Judkins had an

aggressive and violent character, it is far from conclusive evidence that petitioner was actually

acting in self-defense when he shot Judkins during the event in question. This court recently

considered whether a colorable claim of actual innocence based on self-defense was presented by

an affidavit of an individual stating that he had supplied a murder victim with a handgun and

claiming that the victim had gone to kill the defendant that night, but where the affiant was not an

eyewitness to the shooting and thus could not assert that the victim had ever displayed or threatened

to use the gun. People v. Horton, 2021 IL App (1st) 180551, ¶ 52. The court held that this affidavit

evidence was insufficient to show the essential elements of self-defense, and thus the petitioner

had not met the standard of “ ‘rais[ing] the probability that it is more likely than not that no

reasonable juror would have convicted him in light of the new evidence.’ ” Id. (quoting Robinson,

2020 IL 123849, ¶ 50). Similarly, here, neither Hill nor Sibley was present or witnessed the event.

Therefore, neither affiant could testify about whether Judkins actually threatened imminent and

unlawful force against petitioner and that petitioner was not the aggressor, such that petitioner was

justified in shooting Judkins in self-defense. Their affidavits simply fall far short of showing the

No. 1-20-0505

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necessary elements of self-defense. As in Horton, their affidavit testimony does not raise the

probability that it is more likely than not that no reasonable juror would have convicted petitioner

in light of the new evidence.

¶ 33 In conclusion, we hold that the proposed successive petition and its supporting documentation

fails to set forth a colorable claim of actual innocence. For this reason, we affirm the trial court’s

denial of leave to file a successive postconviction petition raising this claim.

¶ 34 B. Cause and Prejudice Test

¶ 35 We next address petitioner’s argument that the “cause and prejudice” test is satisfied for the

remaining three claims raised in his successive postconviction petition. Under that test, leave of

court to file a successive postconviction petition may be granted where a petitioner demonstrates

“cause for his or her failure to bring the claim in his or her initial post-conviction proceedings”

and that “prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2018). Cause is shown

“by identifying an objective factor that impeded his or her ability to raise a specific claim during

his or her initial post-conviction proceedings.” Id. § 122-1(f)(1). Prejudice is shown “by

demonstrating that the claim not raised during his or her initial post-conviction proceedings so

infected the trial that the resulting conviction or sentence violated due process.” Id. § 122-1(f)(2).

Both cause and prejudice must be shown. People v. Guerrero, 2012 IL 112020, ¶ 15. Leave to file

should be granted where the successive petition makes a prima facie showing of both cause and

prejudice. People v. Bailey, 2017 IL 121450, ¶ 24.

¶ 36 The three claims petitioner seeks to raise in his successive petition are interrelated. One claim

is a two-part claim involving ineffective assistance of counsel, and the second and third involve

due process violations. The two parts of the ineffective assistance claim essentially involve the

failure of his prior attorneys to raise the due process claims.

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¶ 37 First, petitioner argues that his trial counsel, appellate counsel on direct appeal, and

postconviction counsel were all ineffective for failing to assert objections or raise issues

concerning improper statements and argument made by the prosecutor that jealousy about

Chantelle’s relationship with Judkins was petitioner’s motive for shooting Judkins. Neither

petitioner’s successive petition nor his appellate brief includes a specific quote or citation that he

claims to be objectionable, but he asserts that the prosecutor stated that petitioner “was jealous that

Ms. Moore was in a relationship with Matthew Judkins—essentially that Mr. Hollis’ alleged

jealousy was the cause of the intent to murder Judkins.” Petitioner asserts that no evidence was

presented at trial to support an argument concerning jealousy as a motive, such as evidence that

petitioner knew Chantelle was seeing Judkins romantically or that Judkins would be at the house

that night. He argues that his trial counsel was ineffective for failing to object to these statements

at trial or to raise them in a posttrial motion, that his appellate counsel was ineffective for failing

to raise on direct appeal either the impropriety of these statements or trial counsel’s ineffectiveness

in failing to object to them, and that postconviction counsel in his prior action provided ineffective

or unreasonable assistance in failing to include these claims in his initial petition. In his related

due-process claim, he argues that the prosecutor’s statements themselves were so improper and

prejudicial that they violated his constitutional right to due process.

¶ 38 Second, petitioner claims that his appellate counsel on direct appeal provided ineffective

assistance by failing to raise “as a federal claim” the trial court’s error in excluding the testimony

of Officer Anthony. The federal district court, in ruling on petitioner’s writ of habeas corpus,

found that petitioner had raised a “cognizable” habeas claim by showing “a sufficient connection

between his right to due process and the trial court’s alleged error” in excluding Officer Anthony’s

testimony by articulating how it prevented him from adequately pursuing his theory of self-

No. 1-20-0505

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defense. Hollis, 2016 WL 6217089, *3. However, the district court found that his habeas claim

was procedurally defaulted because, in the state courts, he had raised only “ordinary questions of

state law” and had not presented a claim that his federal constitutional rights had been violated. Id.

at *3-4; see also Hollis, 2016 WL 7440269, *1. Petitioner asserts that his appellate counsel was

ineffective for failing to raise a federal constitutional claim in state court. In his related due-process

claim, asserts that his federal constitutional rights were in fact violated when the trial court denied

him the opportunity to call Officer Anthony as a witness.

¶ 39 Petitioner asserts that “cause” exists for the failure to bring these claims in his original

postconviction proceedings because he relied upon his privately-retained postconviction counsel

to formulate all of the claims included in his original petition, and that attorney’s unreasonable

failure to include these claims constitutes cause to raise them in a successive postconviction

petition. He also argues that, as to the aspect of his claim involving the failure to raise a federal

constitutional argument concerning the exclusion of Officer Anthony’s testimony, he could not

have raised this claim in his earlier postconviction action because it had not yet resulted in a

procedural default of his petition for writ of habeas corpus.

¶ 40 We are doubtful that petitioner makes a prima facie showing of “cause” for the failure to

include these claims in his original petition simply by stating that he relied on his privately-retained

postconviction counsel to formulate his claims and that attorney did not include them in the

petition. See People v. Ramey, 393 Ill. App. 3d 661, 667-69 (2009). A challenge to the performance

of initial postconviction counsel will generally not serve as a basis for allowing a successive

petition. People v. Szabo, 186 Ill. 2d 19, 26 (1998). Also, petitioner has already raised various

arguments before this court as to why his postconviction counsel failed to provide him with a

reasonable level of assistance, including by drafting the claims included in his original petition,

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and this court has rejected those claims. Hollis, 2014 IL App (1st) 122168-U, ¶¶ 18-27. Thus,

petitioner’s arguments as to “cause” would seem to be barred by principles of res judicata because

they are claims he could have included in his earlier appeal but did not. People v. English, 403 Ill.

App. 3d 121, 131-32 (2010). Nevertheless, we acknowledge that this court has held that deficient

performance by postconviction counsel may constitute “cause” for the failure to present a

meritorious claim to the court. People v. Warren, 2016 IL App (1st) 090884-C, ¶ 131 (citing

People v. Nicholas, 2013 IL App (1st) 103202, ¶¶ 43-46). Such an argument has been accepted

where it was shown not only that postconviction counsel’s failure to raise the issue complained of

was objectively unreasonable, but also that the issue was sufficiently meritorious that the failure

to raise it prejudiced the petitioner.1 Nicholas, 2013 IL App (1st) 103202, ¶¶ 45-46.

¶ 41 Here, petitioner has failed to make a showing that the issues of the prosecutor’s statements

or that the exclusion of Officer Anthony’s testimony violated his due process rights were

sufficiently meritorious that the failure to raise them constituted deficient performance by his

postconviction counsel. As stated above, petitioner does not even identify a specific statement by

the prosecutor that he asserts should have been objected to or challenged in earlier proceedings.

Instead, he asserts that the prosecutor stated “essentially” that jealousy about Chantelle’s

relationship with Judkins was his motive for shooting Judkins. This failure to identify a specific

objectionable statement could itself be determinative on this question. However, we have reviewed

the State’s opening statement and closing arguments in this case, and we find no statements by the

prosecutor pertaining to jealousy or motive that were not fairly supported by the evidence.

1 It is well-established that postconviction petitioners represented by attorneys are entitled only to

a “reasonable” level of attorney assistance, and this is a standard that is “significantly lower” than the familiar Strickland standard for evaluating claims involving the deprivation of the constitutional right to effective assistance of counsel applicable at trial or on direct appeal. People v. Custer, 2019 IL 123339, ¶ 30; see Strickland v. Washington, 466 U.S. 668 (1984).

No. 1-20-0505

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¶ 42 The evidence at trial supported the notion that as of February 2005, the relationship between

petitioner and Chantelle was difficult and that petitioner was aware then that Chantelle would

“mess around a little bit with a couple more guys.” Petitioner and Chantelle had made

arrangements to spend Valentine’s Day together, but another man called the house late that night.

Petitioner asked that man to “please stay away from my family because I’m trying to keep my

family together.” That phone call resulted in a fight between petitioner and Chantelle that ended

their relationship. The testimony was disputed as to whether petitioner was actually living in the

house with Chantelle and their children as of that time, but it was petitioner’s testimony that it was

only after the Valentine’s Day fight that Chantelle had kicked him out and taken away his keys.

Thus, only three days later, petitioner went to the house at around 11 p.m. and discovered Chantelle

taking a shower while Judkins was alone in the adjacent bedroom. In petitioner’s video statement,

he referred to Judkins sitting in “my black chair” across from “my bed.” He testified that he asked

Judkins what he was doing in “my house, around my kids.” He testified that Judkins answered,

“ ‘Shorty, you know who I am. You know how I get down.’ ” It was immediately after this that

petitioner shot Judkins. We find that, whatever specific statement by the prosecutor that petitioner

believes was improper, the trial evidence fairly and reasonably supports the inference that

petitioner shot Judkins out of jealousy that he was the man Chantelle was romantically spending

time with after she and petitioner ended their relationship. See People v. Jackson, 2020 IL 124112,

¶ 82 (prosecutor has wide latitude in closing argument and may comment on the evidence and on

any fair and reasonable inference that the evidence may yield).

¶ 43 Furthermore, our review of the record indicates that the prosecutor never used the word

“motive” during either opening statements or closing argument. The prosecutor’s only use of the

word “jealous” or “jealousy” occurred during rebuttal closing, when the prosecutor argued, “They

No. 1-20-0505

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want to make it sound like [petitioner] is not the least bit jealous. It’s for your Honor to decide. It

sounds like a scorned lover.” This statement concerning jealousy was made in response to

petitioner’s counsel’s argument in closing that “it’s not a jealousy issue” because petitioner was

aware that Chantelle would cheat on him and he had never before tried to fight or kill the men she

cheated with. The prosecutor’s statements were proper as being provoked or invited by the

argument of defense counsel. People v. Glasper, 234 Ill. 2d 173, 204 (2009).

¶ 44 For these reasons, we conclude that no meritorious issue existed concerning improper

statements by the prosecutor about motive or jealousy, which postconviction counsel was deficient

for failing to include as part of the original postconviction petition. This includes any argument

that trial counsel was ineffective for failing to object to a statement by the prosecutor, or that

appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness or the argument

that a statement by the prosecutor denied petitioner’s right to due process. As no meritorious issue

existed, petitioner was not prejudiced by postconviction counsel’s failure to raise it and for that

reason has not shown “cause” for the filing of a successive postconviction petition. Nicholas, 2013

IL App (1st) 103202, ¶ 45. Likewise, petitioner has not shown “prejudice,” which requires

demonstrating that the underlying claim not raised in the initial postconviction petition “so infected

the trial that the resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f)(2)

(West 2018). As our review of the record shows no statement by the prosecutor not fairly supported

by the evidence, clearly this standard of showing prejudice is not satisfied.

¶ 45 We reach the same conclusion concerning the argument that a claim should have been raised

that petitioner’s federal constitutional rights were violated when the trial court ruled that Officer

Anthony’s testimony was inadmissible as Lynch evidence. As discussed on direct appeal, the

testimony by Officer Anthony that petitioner sought to admit was that, during a prior police raid

No. 1-20-0505

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of a hotel room, Judkins had hid under a bed and had to be dragged out, and a gun was also found

under the bed. Hollis, No. 1-09-1777, slip order at 9. There was no evidence that he reached for it

or had it in his hand when he was pulled from under the bed. Id. He was charged with armed

violence but not convicted. Id. This court held that the trial court had not abused its discretion in

denying admission of this evidence, concluding that it was “indefinite and not reliably probative

of Judkins’ alleged violent tendencies.” Id. No federal claim was advanced on appeal, although

petitioner’s trial counsel had made the argument in petitioner’s posttrial motion that he had been

denied due process by the inability to put on Officer Anthony’s testimony. The trial court had

denied that posttrial motion.

¶ 46 In neither his successive petition nor his appellate brief does petitioner cite to pertinent legal

authority or present a legal argument explaining how petitioner sustained a violation of any federal

constitutional rights because of the trial court’s exclusion of Officer Anthony’s testimony. Other

than citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), for general principles concerning

a criminal defendant’s due process right to defend himself by confronting and cross-examining

witnesses, the only authority petitioner cites is the federal district court’s statement that he had

raised a “cognizable habeas claim” by articulating his theory of self-defense, describing how the

excluded evidence supported his theory, and arguing that the state trial court ruling prevented him

from adequately pursing his self-defense theory. Hollis, 2016 WL 6217089, *3. Petitioner’s mere

citing of this statement is wholly insufficient to demonstrate to this court that he had a meritorious

federal constitutional claim, for which his appellate counsel was ineffective by failing to raise it

on direct appeal, and for which his postconviction counsel was deficient by failing to include in

his original postconviction petition. Thus, petitioner has not shown that he has suffered prejudice

by the failure of his postconviction counsel to raise a meritorious argument and has therefore failed

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to show “cause” for the filing of a successive postconviction petition. Nicholas, 2013 IL App (1st)

103202, ¶ 45. While he asserts that he suffered prejudice from the procedural defaulting of his

habeas claim due to his appellate counsel’s failure to raise this argument in state court, he cannot

establish that his postconviction counsel was deficient by pointing only to the loss of his habeas

petition. To raise the deficiency of postconviction counsel and thereby show “cause,” he must

show that the claim not pursued had substantive merit. Id. Petitioner has failed to do that here.

Moreover, the procedural defaulting of his habeas claim is not something that “so infected the trial

that the resulting conviction or sentence violated due process,” thereby satisfying the Act’s

definition of “prejudice.” (Emphasis added). 725 ILCS 5/122-1(f)(2) (West 2018). Ultimately,

petitioner has failed to demonstrate that the failure to raise a federal constitutional claim arising

from the trial court’s exclusion of Officer Anthony’s testimony “so infected the trial that the

resulting conviction or sentence violated due process.” Id. He has therefore failed to make a prima

facie showing of cause or prejudice that would justify the granting of his petition for leave to file

a successive postconviction petition.

¶ 47 III. CONCLUSION

¶ 48 For the above reasons, the judgment of the trial court denying petitioner’s petition for leave

to file a successive postconviction petition is affirmed.

¶ 49 Affirmed.