Losing our innocence: the Illinois successive postconviction actual innocence petition standard after People v. Edwards.

• Author: Szalapski, Vanessa J.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. The Postconviction Hearing Statute 1. Stage One 2. Stage Two 3. Stage Three 4. Successive Postconviction Petitions B. The Federal Habeas Actual Innocence Gateway Standard 1. Herrera v. Collins 2. Schlup v. Delo C. The Problem of People v. Edwards II. ANALYSIS A. Language Problems and Confusion in People v. Edwards B. Edwards's Impact for Petitioners seeking Leave of Court 1. Cases Unaffected by Edwards 2. Cases Demonstrating Edwards's Stricter Standard 3. Cases Adding Edwards's Reliability Requirement III. POLICY IV. THE BIGGER PICTURE CONCLUSION INTRODUCTION

The Illinois Supreme Court's holding in People v. Edwards (1) demonstrates its intent to change the Illinois successive postconviction actual innocence standard to parallel the federal habeas actual innocence gateway standard. The Edwards court's muddled holdings and reliance on U.S. Supreme Court cases Schlup v. Delo (2) and Sawyer v. Whitley (3) demonstrate that objective. However, such an objective is unfounded and unnecessary. Edwards was wrongly decided, and therefore, the Illinois Supreme Court should reverse Edwards and return to the standard set forth in People v. Ortiz. (4)

Illinois has a long history of allowing prisoners to file postconviction actual innocence petitions. In 1996, the Illinois Supreme Court boldly declared in People v. Washington (5) that it would interpret the Illinois constitution's due process clause differently from the way the U.S. Supreme Court interpreted the Fourteenth Amendment's Due Process Clause in Herrera v. Collins (6) by recognizing a substantive due process claim of actual innocence. (7) The Illinois Supreme Court majority wrote:

We think that the Court overlooked that a "truly persuasive demonstration of innocence" would, in hindsight, undermine the legal construct precluding a substantive due process analysis. The stronger the claim--the more likely it is that a convicted person is actually innocent--the weaker is the legal construct dictating that the person be viewed as guilty.... We believe that no person convicted of a crime should be deprived of life or liberty given compelling evidence of actual innocence. (8) In essence, by recognizing a substantive due process claim for actual innocence, the Illinois Supreme Court declared that the Illinois constitution would give actual innocence claims greater protection than would the Federal Constitution. (9)

Any postconviction petition filed after the first petition is considered a successive postconviction petition. Until Edwards, the standard for a court granting leave to file a successive postconviction actual innocence petition required the petitioner's claim to be "of such conclusive character that it would probably change the result [of] retrial." (10) In Edwards, the court described a winning successive postconviction actual innocence petition as one in which the petitioner puts forth a "colorable claim of actual innocence" through documentation that raises the probability that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." (11) On one hand, the court may have relaxed the standard for granting leave of court to file a successive postconviction petition by using the term "colorable." On the other hand, despite the court's recent suggestion to the contrary, (12) the court may have made it more difficult by using the phrase "no reasonable juror." (13) Additionally, the Edwards court cited federal case law and used language directly from Schlup. (14) The muddled language and conflicting precedent in Edwards has left lower courts and practitioners confused because of the possibility that it created a new standard for granting leave of court for successive postconviction actual innocence petitions.

This Comment will demonstrate how Edwards created a more stringent standard for granting leave of court to file successive postconviction actual innocence petitions that resembles the federal habeas actual innocence gateway standard. Part I provides background on the Illinois Postconviction Act, relevant Illinois case law, the federal habeas actual innocence gateway standard, and the Edwards decision. Part II untangles the language of Edwards and examines the effects of the decision in the Illinois appellate courts. Part III addresses policy considerations both for and against a more stringent standard and demonstrates why Edwards was wrongly decided and should be reversed. Finally, Part IV describes the implications for the Illinois Supreme Court's position.

1. BACKGROUND

   1. THE POSTCONVICTION HEARING STATUTE

      The Illinois Post-Conviction Hearing Act (the Act) (15) allows prisoners to collaterally attack their convictions on constitutional grounds. (16) The Act provides an additional remedy for them to pursue claims that were not made on direct appeal or that are based on facts not in the record. (17) The Act is composed of three stages of review for first petitions; if the petitioner successfully passes through all three stages, the petitioner will be granted a retrial. (18)

      1. Stage One

         The first stage of the Act, often filed pro se, requires the petitioner's claim to survive summary dismissal. (19) To survive dismissal, the petitioner must give "a gist" of a claim. (20) The court of appeals has found petitions that provide newly discovered evidence that is neither fantastic nor delusional are sufficient to support a "gist of a meritorious claim." (21) If the judge fails to find "a gist" of a claim, the judge will dismiss the claim as "frivolous or patently without merit." (22) The judge is required to give reasons in a written order for dismissing these claims as "frivolous or patently without merit." (23) The State is not allowed to respond at this stage. (24) The petitioner may appeal, and the appellate court then applies a de novo review standard. (25)

      2. Stage Two

         If the petitioner successfully passes stage one, the petitioner moves to the second stage of securing an evidentiary hearing. (26) At this stage, the court may appoint counsel for the petitioner if the petitioner cannot afford one. (27) To successfully secure an evidentiary heating, the petitioner must make a substantial showing of a constitutional violation, such as ineffective assistance of counsel, a Brady violation, or actual innocence. (28) The record must also show that (1) appointed counsel ascertained petitioner's deprivation of his or her constitutional rights by consulting with the petitioner in person or by mail, (2) counsel examined the trial record, and (3) counsel made any necessary changes to the pro se petition. (29) Appointed counsel must demonstrate that these requirements have been met, or any subsequent dismissal of the petition will be reversed and remanded for further proceedings under the Act. (30) The State may answer or move to dismiss the petition at this stage. (31) However, all "well-pleaded facts that are not positively rebutted by the trial record are to be taken as true," (32) and waiver and res judicata claims may be waived by the court "when the record on appeal is insufficient to support the petitioner's claim, where the alleged waiver stems from ineffective assistance of counsel on appeal, where the law on an issue has changed since that issue was considered and rejected, or where fundamental fairness so requires." (33) This stage is also appealable with a de novo standard of review. (34)

      3. Stage Three

         The last stage of the Act grants the petitioner an evidentiary hearing to put on his evidence in the hope of securing a new trial. (35) The petitioner bears the burden of showing that his constitutional rights were violated. (36) The petitioner may appeal the decision, but the standard of review on such an appeal is "manifestly erroneous," a significantly higher standard than the de novo standard applied in the previous two stages. (37) Thus, the trial court's determination at the third stage will likely be final and probably will not be reversed on appeal.

      4. Successive Postconviction Petitions

         It is well established that the Act "contemplates the filing of a single post-conviction petition." (38) However, a court may grant leave for successive petitions if the petitioner can show that "fundamental fairness" requires it. (39) Courts employ the "cause and prejudice" test to determine whether prior postconviction petitions were "deficient in some fundamental way." (40)

         The petitioner can bypass the cause and prejudice test if he can make a showing of actual innocence. (41) To do so, the petitioner must show newly discovered evidence that is material and noncumulative. (42) Evidence found postconviction that could not have been discovered earlier with the exercise of due diligence is considered to be newly discovered. (43) Evidence is cumulative when it does not add anything to what has already been presented to the jury. (44) Prior to Edwards, the new evidence had to be "of such a conclusive character that it would probably change the result of retrial." (45)

         This standard was developed considerably in Ortiz, a successive postconviction petition case at the Act's third stage. (46) In Ortiz, petitioner "Salvador Ortiz was convicted of first degree murder after a bench trial and sentenced to 47 years in prison." (47) The conviction relied heavily on the eyewitness accounts of Christopher Estavia and Edwin Villariny, despite the fact that both witnesses later recanted their statements to the police prior to trial. (48) The trial judge found that the forensic and ballistic evidence corroborated Estavia's and Villariny's original statements to the police. (49)

         In his third postconviction petition, rewritten by his attorneys, (50) Ortiz based his actual innocence claim on the new eyewitness testimonies of Sigfredo Hernandez, Daniel Huertas, and Victor Ocasio. (51) In affidavits, Huertas and Hernandez claimed to have witnessed three other people--not the...