arguable claim in Illinois

2026A petition alleging ineffective assistance may not be summarily dismissed if “(i) it is arguable that counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.” Hodges, 234 Ill. 2d at 17 . 9 ¶ 23 After reviewing defendant’s petition, we find that it presented an arguable claim that appellate counsel rendered ineffective assistance of counsel by failing to raise plea counsel’s ineffectiveness on direct appeal.

2026We will find that a petition lacks an arguable basis in law or fact if it is “ ‘based on an indisputably meritless legal theory or a fanciful factual allegation.’ ” Id. ¶ 26 (quoting People v. Hodges, 234 Ill. 2d 1, 16 (2009)). ¶ 15 On appeal, Daniels contends his petition made an arguable claim that both his trial and appellate counsel were ineffective by failing to challenge the trial court’s imposition of consecutive sentences.

2024People v. Brown, 236 Ill. 2d 175, 184 (2010). ¶ 27 On appeal, Amelia first argues that the circuit court erred in summarily dismissing her postconviction petition because she made an arguable claim that her right to due process was 9 No. 1-22-0979 denied when a conviction for home invasion was entered against her without ever being submitted to the jury or found proven beyond a reasonable doubt.

2024People v. Brown, 236 Ill. 2d 175, 184 (2010). ¶ 42 Ineffective Assistance of Trial Counsel ¶ 43 Defendant first asserts that the trial court erred in summarily dismissing his postconviction petition, which set forth an arguable claim of ineffective assistance of trial counsel.

2025People v. Harris, 224 Ill. 2d 115, 124-25 (2007). 13 ¶ 35 In determining whether defendant has asserted an arguable claim of ineffective assistance of counsel, we are guided by the standard set forth in Strickland v. Washington, 466 U.S. 668 , (1984).

2024App. 3d 317, 326 (2007). ¶ 42 In determining whether defendant has asserted an arguable claim of ineffective assistance of counsel, our courts apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504, 526 (1984).

2022Furthermore, an affidavit or statement attached to a petition must at all stages show “the petition’s allegations are capable of corroboration and identify[] the sources, character, and availability of evidence alleged to support the petition’s allegations.” Id. 725 ILCS 5/122-2 (West 2020). ¶ 26 Here, the issue involves whether Booker’s petition stated an arguable claim of ineffective assistance of trial counsel for not investigating or calling Mario as a witness.

2020As a result, the failure to either attach the necessary ‘ “affidavits, records, or other evidence” or explain their absence is “fatal” to a post-conviction petition and by itself justifies the petition’s summary dismissal.’ ” Delton, 227 Ill. 2d at 254 -55 (quoting Collins, 202 Ill. 2d at 66 (citing Coleman, 183 Ill. 2d at 380 )). ¶ 24 On appeal, defendant argues that his pro se postconviction petition raised an arguable claim that the interpreter and his trial counsel failed to explain to him in Spanish the nature of his guilty plea or admonish him of his right to file a motion to withdraw hi

2025People v. Harris, 224 Ill. 2d 115, 124-25 (2007). 13 ¶ 35 In determining whether defendant has asserted an arguable claim of ineffective assistance of counsel, we are guided by the standard set forth in Strickland v. Washington, 466 U.S. 668 , (1984).

2024People v. Harris, 224 Ill. 2d 115, 123 (2007). ¶ 15 The defendant argues that the trial court erred when it dismissed his pro se postconviction petition at the first stage of the proceedings because his petition raised an arguable claim that his natural life sentence, imposed without proper considerations of his youth, violated the 5 proportionate penalties clause.

2024See People v. Rivera, 198 Ill. 2d 364, 374 (2001) (partial dismissals of a postconviction petition at the first stage of proceedings “are not permitted under the Act”). ¶ 36 IV.

2022Instead, under the Act, the court must “docket the entire petition, appoint counsel, if the petitioner is so entitled, and continue the matter for further proceedings in accordance with sections 122-4 through 122-6.” (Emphasis omitted.) Id. at 371 . ¶ 50 We find that defendant has set forth an arguable claim of actual innocence based on the newly discovered affidavits of Muhammad and Harris.

2024App. 3d 317, 326 (2007). ¶ 42 In determining whether defendant has asserted an arguable claim of ineffective assistance of counsel, our courts apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504, 526 (1984).

2020Hodges, 234 Ill. 2d at 9. ¶ 18 In determining whether defendant has asserted an arguable claim of ineffective assistance of counsel, our courts apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in People v. Albanese, 104 Ill. 2d 504, 526 (1984).

2025Rissley, 206 Ill. 2d at 458-59 (“a showing that the ineffective performance affected the outcome of the plea process is required” for an arguable claim of ineffective assistance of guilty plea counsel (citing Hill v. Lockhart, 474 U.S. 52, 59-60 (1985))). ¶ 34 Defendant’s claim that his counsel was ineffective for advising him to plead guilty also lacks merit.

2020Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (“It is quintessentially the duty of counsel to provide her client with -5- 1-18-1479 available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’ ” (quoting Hill v. Lockhart, 474 U.S. 52, 62 (1985))). ¶ 15 With respect to the first prong of the Strickland analysis, we conclude that the defendant’s allegations, which at this stage must be taken as true unless positively rebutted by the record, set forth an arguable claim that his trial counsel’s performance was deficient.

2024See Bush, 2022 IL App (1st) 210509, ¶ 31 ; Lewis, 2017 IL App (1st) 150070, ¶¶ 14, 16 . ¶ 46 Additionally, defendant has failed to state an arguable claim that he was prejudiced by counsels’ alleged deficiency.

2024See Bush, 2022 IL App (1st) 210509, ¶ 31 ; Lewis, 2017 IL App (1st) 150070, ¶¶ 14, 16 . ¶ 46 Additionally, defendant has failed to state an arguable claim that he was prejudiced by counsels’ alleged deficiency.

2024(West 2022); People v. LaPointe, 227 Ill. 2d 39, 43 (2007).

2022According to defendant, trial counsel should have presented the evidence to dispel the “inherently prejudicial” inference that he was driving while inebriated. ¶ 14 The Act provides a three-stage mechanism by which defendants may collaterally challenge their convictions for violations of federal or state constitutional rights. 725 ILCS 5/122-1 et seq. -4- No. 1-20-0989 (West 2018); People v. LaPointe, 227 Ill. 2d 39, 43 (2007).

2024See e.g., White, 2014 IL App (1st) 130007, ¶¶ 26-33 (a murder witness’s 16 No. 1-23-0961 affidavit submitted at the first-stage of postconviction proceedings attesting that he had been with the victim during the shooting and that the petitioner was not the shooter was arguably of such a conclusive character that it was likely to change the result on retrial, requiring reversal and remand for second-stage postconviction proceedings). ¶ 51 Because we find that the petition has made an arguable claim of actual innocence, we need not address any of the remaining claims raised in the postconviction

2024See White, 2014 IL App (1st) 130007, ¶ 33 (“partial summary dismissals are not permitted during a first stage postconviction proceeding”). ¶ 52 Accordingly, we reverse the circuit court’s summary dismissal of the postconviction petition and remand for further proceedings under the Act. ¶ 53 Reversed and remanded. 17

2023The circuit court also stated that “[n]one of [the claims] show[ed] any cause or prejudice that would have affected the outcome of the case,” and that the petition was “denied without merit.” ¶ 30 We allowed defendant’s motion for leave to file a late notice of appeal and ordered the appointment of appellate counsel. ¶ 31 On appeal, defendant argues that the circuit court erred in summarily dismissing his petition because he raised an arguable claim of ineffective assistance of trial counsel based on counsel’s failures to (1) interview Richard, who had pertinent information about Anthony, and

2023On October 12, 2021, the Supreme Court of Illinois allowed defendant’s motion for a supervisory order directing this court -7- No. 1-19-2554 to treat the notice of appeal as a properly perfected appeal of the circuit court’s judgment of September 6, 2019. ¶ 19 On appeal, defendant argues the circuit court erred by summarily dismissing his pro se petition where he made an arguable claim of ineffective assistance of trial counsel because Laws “coerced” him to waive his right to a jury trial. ¶ 20 The Act “provides a mechanism for criminal defendants to challenge their convictions or sentences ba

2014Although the evidentiary balance weighed heavily in the State’s favor at defendant’s trial, for the following reasons we find that defendant has pled sufficient facts supported by Jennings’ affidavit to assert at least an arguable claim of actual innocence sufficient to survive the first stage of postconviction proceedings. ¶ 27 In People v. Henderson, 2014 IL App (2d) 121219, ¶ 37 , the Second District held that the defendant had alleged sufficient facts to avert the first-stage dismissal of his initial 1 “Our supreme court has based its definition of fanciful and delusional claims on recent

2014Although the evidentiary balance weighed heavily in the State’s favor at defendant’s trial, for the following reasons we find that defendant has pled sufficient facts supported by Jennings’ affidavit to assert at least an arguable claim of actual innocence sufficient to survive the first stage of postconviction proceedings. ¶ 27 In People v. Henderson, 2014 IL App (2d) 121219, ¶ 37 , the Second District held that the defendant had alleged sufficient facts to avert the first-stage dismissal of his initial 1 “Our supreme court has based its definition of fanciful and delusional claims on recent

2017See People v. Edwards, 195 Ill. 2d 142, 165 (2001) (holding that defense counsel is not ineffective for failing to make a fruitless argument). ¶ 27 For many of the same reasons, we also conclude that defendant has not made an arguable claim of prejudice based on counsel’s allegedly deficient performance.

2017See People v. Edwards, 195 Ill. 2d 142, 165 (2001) (holding that defense counsel is not ineffective for failing to make a fruitless argument). ¶ 27 For many of the same reasons, we also conclude that defendant has not made an arguable claim of prejudice based on counsel's allegedly deficient performance.

2024People v. Hatter, 2021 IL 125981, ¶ 24 . ¶ 83 A. Actual Innocence Claim ¶ 84 We first consider whether defendant’s petition presents an arguable claim of actual innocence. ¶ 85 A claim of actual innocence requires evidence that is “(1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would probably change the result on retrial.” People v. Robinson, 2020 IL 123849, ¶ 47 .

2023People v. Robinson, 2020 IL 123849, ¶¶ 39, 45 . ¶ 31 In this court, defendant contends the circuit court erred in summarily dismissing his petition as he raised an arguable claim that his trial counsel was ineffective in failing to present his grandmother as a witness.

2024See - 12 - English, 2013 IL 112890, ¶ 34 (“Appellate counsel is not required to raise issues that he reasonably determines are not meritorious.”).

2021See English, 2013 IL 112890, ¶ 22 . ¶ 34 Forfeiture aside, we further find that defendant’s claim lacks merit because defendant cannot establish an arguable claim of ineffective assistance for failing to file a motion to quash arrest.

2023People v. Petrenko, 237 Ill. 2d 490, 497 (2010); Hodges, 234 Ill. 2d at 17 . ¶ 41 The defendant’s postconviction petition pleads sufficient facts to assert an arguable claim of ineffective assistance of counsel.

2020Petrenko, 237 Ill. 2d at 499 ; Harris, 224 Ill. 2d at 124 . ¶ 16 Next, we address the defendant’s argument that his pro se postconviction petition should not have been dismissed at the first stage of the proceeding as it set forth an arguable claim that his trial counsel was ineffective for failing to investigate or interview Ward, who could have testified to his innocence. ¶ 17 Ineffective assistance of counsel claims are considered under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

2021See People v. Wilson, 2013 IL App (1st) 112303 , ¶ 20 (at the first stage of proceedings, a defendant need only show that “it is arguable that his counsel was deficient and it is arguable that the outcome of his case would have been different absent the deficient representation” (emphasis in original)). ¶ 20 Accordingly, we find that defendant satisfied the low threshold applicable to first-stage proceedings (see People v. Allen, 2015 IL 113135, ¶ 24 ), and set forth an arguable claim for ineffective assistance of counsel.

2020Allen, 2015 IL 113135, ¶ 19 . ¶ 26 In this court, defendant contends that the court erred in summarily dismissing his petition because he presented an arguable claim that his trial counsels were ineffective for failing to investigate and call Gregory, Street, and Fentry as alibi witnesses. ¶ 27 A criminal defendant has a constitutional right to effective assistance of counsel.

2025See, e.g., People v. Davis, 2014 IL 115595, ¶ 13 (the Act allows inquiry into constitutional issues arising from the original conviction that were not raised and could not have been adjudicated on direct appeal; issues that could have been raised, but were not, are forfeited). ¶ 36 Defendant attempts to overcome this forfeiture by challenging appellate counsel’s failure to challenge posttrial counsel’s failure to raise the Miller factors at sentencing. -9- No. 1-23-1561 ¶ 37 To determine whether trial counsel was ineffective, we follow the standards set forth in Strickland v. Washington, 466 U

2022People v. Davis, 2014 IL 115595, ¶ 42 . ¶ 13 Here, Richmond contends that his petition made an arguable claim that his sentence violates the eighth amendment and proportionate penalties clause of the Illinois Constitution (Ill.

2017As a result, we find no basis for concluding that the affidavit would probably change the result on retrial (Harris, 206 Ill. 2d at 301-02 ) and conclude that defendant failed to set forth an arguable claim of actual innocence requiring further proceedings under the Act. ¶ 31 Although the dissent repeatedly refers to the alleged statement by Hill to Spivey as Hill’s “confession,” we note that “confession” has a specific legal meaning.

2016As a result, we find no basis for concluding that the affidavit would probably change the result 18 No. 1-14-1359 on retrial (Harris, 206 Ill. 2d at 301-02 ) and conclude that defendant failed to set forth an arguable claim of actual innocence requiring further proceedings under the Act. ¶ 31 Although the dissent repeatedly refers to the alleged statement by Hill to Spivey as Hill’s “confession,” we note that “confession” has a specific legal meaning.

2024People v. Hatter, 2021 IL 125981, ¶ 24 . ¶ 83 A. Actual Innocence Claim ¶ 84 We first consider whether defendant’s petition presents an arguable claim of actual innocence. ¶ 85 A claim of actual innocence requires evidence that is “(1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would probably change the result on retrial.” People v. Robinson, 2020 IL 123849, ¶ 47 .

2023See Hatter, 2021 IL 125981, ¶ 25 ; Coats, 2021 IL App (1st) 181371 , ¶ 28. ¶ 38 First, defendant’s petition states an arguable claim that counsel’s performance fell below an objective standard of reasonableness based on his failure to call Carole Thompson as a witness.

2024In People v. Buffer, 2019 IL 122327, ¶¶ 37-41 , our supreme court adopted a 40-year threshold for a de facto life sentence under the eighth amendment, holding that a sentence under 40 years offers a meaningful opportunity for release and is, therefore, not a de facto life sentence.

2021See Buffer, 2019 IL 122327 .

2023Id. at 452 . ¶ 15 Petitioner’s sole argument on appeal is that his postconviction petition raised an arguable claim that the mandatory imposition of the 15-year firearm enhancement added to his 15-year sentence for armed robbery, an offense he committed at age 17, violates the proportionate penalties -6- No. 1-22-1615 clause of the Illinois constitution (Ill.

2022See People v. Blair, 215 Ill. 2d 427, 453 (2005). - 10 - 2022 IL App (2d) 210431-U ¶ 32 Finally, counsel argues that defendant has not made an arguable claim of actual innocence.

2023People v. Wilborn, 2011 IL App (1st) 092802, ¶ 76 (citing Strickland, 466 U.S. at 697 ). ¶ 27 After reviewing the record, we find the circuit court erred in summarily dismissing defendant’s petition where he raised an arguable claim of ineffective assistance of trial counsel.

2020Thus, we consider whether the petition, as it was originally presented to the trial court, set forth an arguable claim of ineffective assistance of counsel. ¶ 39 A postconviction petition “cannot consist of nonfactual and nonspecific assertions that merely amount to conclusions that errors occurred at trial. [Citations.] Rather, a petition filed under the Act must ‘clearly set forth the respects in which petitioner’s constitutional rights were violated.’ ” People v. Wilborn, 2011 IL App (1st) 092802 , ¶ 54 (quoting 725 ILCS 5/122-2 (West 2008)).

2022See Domagala, 2013 IL 113688, ¶ 36 (stating to prove prejudice, defendant must show reasonable probability that, but for trial counsel’s errors, the results of the proceedings would have been different).

2020Prejudice Suffered by Deficiency ¶ 71 The State also asserts that defendant failed to set forth an arguable claim that he was prejudiced by the alleged ineffectiveness of his counsel at trial and on direct appeal. ¶ 72 As we have stated, to establish the prejudice prong of the Strickland test, the defendant must show there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Domagala, 2013 IL 113688, ¶ 36 .