freestanding claim in Illinois

2026“Our express reason for allowing a freestanding claim of actual innocence to be cognizable under our Post-Conviction Hearing Act is our firm belief that allowing an innocent person to remain incarcerated would offend all notions of fairness and due process.” Id. (citing People v. Washington, 171 Ill. 2d 475, 488-89 (1996)). ¶ 44 The Act, however, contemplates the filing of a single petition as a matter of right.

2025“Our express reason for allowing a freestanding claim of actual innocence to be cognizable under our Post-Conviction Hearing Act is our firm belief that allowing an innocent person to remain incarcerated would offend all notions of fairness and due process.” Id. (citing People v. Washington, 171 Ill. 2d 475, 488-89 (1996)).

2025Accordingly, we “may affirm a trial court’s dismissal at the second stage on any grounds substantiated by the -5- record, regardless of the trial court’s reasoning.” People v. Snow, 2012 IL App (4th) 110415, ¶ 17 . ¶ 18 Illinois law allows for defendants to file a postconviction petition “ ‘assert[ing] a freestanding claim of actual innocence based on newly discovered evidence.’ ” Wingate, 2015 IL App (5th) 130189, ¶ 24 (quoting People v. Ortiz, 235 Ill. 2d 319, 333 (2009)).

2025Id. ¶ 40 “The due process clause of the Illinois Constitution affords postconviction petitioners the right to assert a freestanding claim of actual innocence based on newly discovered evidence.” People v. Ortiz, 235 Ill. 2d 319, 333 (2009).

2026The supporting evidence submitted with a petition “must identify with reasonable certainty the sources, character, and availability of the alleged evidence supporting the petition’s allegations.” People v. Delton, 227 Ill. 2d 247, 254 (2008). ¶ 45 Preliminarily, we address and dispose of the State’s argument that defendant’s claims are not freestanding where he relies on the same evidence to support his actual innocence claim and his other constitutional claims in contravention of People v. Hobley, 182 Ill. 2d 404, 444 (1998) (holding that a freestanding claim of actual innocence exists only w

2024In this respect, the State relies on our supreme court’s decision in People v. Hobley, 182 Ill. 2d 404, 443-33 (1998), which held that a freestanding claim of actual innocence exists only where the newly discovered evidence relied on is not also used to supplement a constitutional trial error claim.

2022“In a freestanding claim of actual innocence, the defendant asserts that he is ‘innocent of the crime for which he has been tried, convicted, and sentenced.’ ” Id. (quoting People v. Harris, 206 Ill. 2d 293, 301 (2002)).

2022“Courts may consider a freestanding claim of actual innocence in a post-conviction proceeding if the claim is based on newly discovered, material, and noncumulative evidence that the defendant is innocent of the crime for which he has been tried, convicted, and sentenced.” People v. Harris, 206 Ill. 2d 293, 301 (2002).

2022A freestanding claim of actual innocence requires evidence that is “newly discovered; material and not merely cumulative; and -6- No. 1-19-1568 ‘of such a conclusive nature that it would probably change the result on retrial.’ ” People v. Ortiz, 235 Ill. 2d 319, 333 (2009) (quoting People v. Morgan, 212 Ill. 2d 148, 154 (2004)).

2021The court explained that “[t]his court has held that the due process clause of the Illinois Constitution affords postconviction petitioners the right to assert a freestanding claim of actual innocence based on newly discovered evidence.” Id. at 331 (citing People v. Morgan, 212 Ill. 2d 148, 154 (2004)).

2013In closing, the Court stated that assuming, arguendo, the execution of a capital defendant who made a “truly persuasive demonstration of ‘actual innocence’ ” would violate the Constitution, the evidentiary burden on such a defendant to obtain federal habeas relief would be “extraordinarily high.” Id. at 417 . ¶ 84 In Washington, we concluded that despite this comment, “Herrera clearly states *** that a freestanding claim of innocence is not cognizable as a fourteenth amendment due process claim.” -20- Washington, 171 Ill. 2d at 485 .

2013In closing, the Court stated that assuming, arguendo, the execution of a capital defendant who made a “truly persuasive demonstration of ‘actual innocence’ ” would violate the Constitution, the evidentiary burden on such a defendant to obtain federal habeas relief would be “extraordinarily high.” Id. at 417 . ¶ 84 In Washington, we concluded that despite this comment, “Herrera clearly states *** that a freestanding claim of innocence is not cognizable as a fourteenth amendment due process claim.” Washington, 171 Ill. 2d at 485 .

2017“However, ‘actual innocence’ is not within in the rubric of whether defendant has been proved guilty beyond a reasonable doubt. [Citation.] Rather, the hallmark of ‘actual innocence’ means ‘total vindication,’ or ‘exoneration.’ [Citation.]” Id. at 636 . ¶ 31 Evans’s “doubts” about his identification of Calhoun, assuming they exist, do not support a freestanding claim of actual innocence.

2016“However, ‘actual innocence’ is not within in the rubric of whether defendant has been proved guilty beyond a reasonable doubt. [Citation.] Rather, the hallmark of ‘actual innocence’ means ‘total vindication,’ or ‘exoneration.’ [Citation.].” Id. at 636 . ¶ 31 Evans’s “doubts” about his identification of Calhoun, assuming they exist, do not support a freestanding claim of actual innocence.

2010Dec. 771 ], 886 N.E.2d 534, 541 (2008); People v. Barnslater, 373 Ill.App.3d 512, 523 [ 311 Ill.Dec. 619 ], 869 N.E.2d 293, 303 (2007)." Nonetheless the State concedes that a freestanding claim of actual innocence is cognizable in postconviction proceedings following a conviction resulting from a guilty plea when the defendant can show the plea was not knowing or was not voluntary.

2010Dec. 771 ], 886 N.E.2d 534, 541 (2008); People v. Barnslater, 373 Ill.App.3d 512, 523 [ 311 Ill.Dec. 619 ], 869 N.E.2d 293, 303 (2007)." Nonetheless the State concedes that a freestanding claim of actual innocence is cognizable in postconviction proceedings following a conviction resulting from a guilty plea when the defendant can show the plea was not knowing or was not voluntary.

2023The circuit court stated that “[w]hile their testimony constitutes newly discovered evidence based on their averments that they would have refused to testify due to fear of incriminating themselves, People v. Molstad, 101 Ill. 2d 128, 135 (1984), it does not satisfy the remaining elements necessary for a freestanding claim of actual innocence.” The circuit court noted their proposed testimony was cumulative because defendant had testified about the facts set forth in his cousins’ affidavits.

2018The circuit court stated that "[w]hile their testimony constitutes newly discovered evidence based on their averments that they would have refused to testify due to fear of incriminating themselves, People v. Molstad , 101 Ill. 2d 128 , 135, 77 Ill.Dec. 775 , 461 N.E.2d 398 (1984), it does not satisfy the remaining elements necessary for a freestanding claim of actual innocence." The circuit court noted their proposed testimony was cumulative because defendant had testified about the facts set forth in his cousins' affidavits.

2019Leave to file a successive postconviction petition will be granted when a petitioner either “assert[s] a freestanding claim of actual innocence based on newly discovered evidence” (Ortiz, 235 Ill. 2d at 331) or satisfies both prongs of the cause-and-prejudice test, i.e., “demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice result[ing] from that failure” (725 ILCS 5/122-1(f) (West 2016) (codifying the test established by our supreme court in People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002))). 21 No. 1-17-1773 ¶ 67 Altho

2018Leave to file a successive postconviction petition will be granted when a petitioner either “assert[s] a freestanding claim of actual innocence based on newly discovered evidence” (Ortiz, 235 Ill. 2d at 331) or satisfies both prongs of the cause-and-prejudice test, i.e., “demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice result[ing] from that failure” (725 ILCS 5/122-1(f) (West 2016) (codifying the test established by our supreme court in People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002))). ¶ 67 Although decisions gra

2019The court held this was “impermissible because ‘the evidence being relied upon to support a freestanding claim of actual innocence’ cannot be ‘used to supplement an assertion of a constitutional violation with respect to defendant’s trial.’ People v. Brown, 371 Ill.

2017This is impermissible because “the evidence being relied upon to support a freestanding claim of actual innocence” cannot be “used to supplement an assertion of a constitutional violation with respect to defendant’s trial.” People v. Brown, 371 Ill.

2019See Schmidt v. State, 909 N.W.2d 778, 795 (Iowa 2018); Montoya v. Ulibarri, 163 P.3d 476, 484 (N.M. 2007) (Holding that the due process clause and the prohibition against infliction of cruel and unusual punishment in the New Mexico Constitution protects actually innocent people, and “to ignore a claim of actual innocence would be fundamentally unfair.” Also “[i]t cannot be said that the incarceration of an innocent person advances any goal of punishment, and if a prisoner is actually innocent of the crime for which he is incarcerated, the punishment is indeed grossly out of proportion to the s

2018See Schmidt v. State, 909 N.W.2d 778, 795 (Iowa 2018); Montoya v. Ulibarri, 163 P.3d 476, 484 (N.M. 2007) (Holding that the due process clause and the prohibition against infliction of cruel and unusual punishment in the New Mexico Constitution protects actually innocent people, and “to ignore a claim of actual innocence would be fundamentally unfair.” Also “[i]t cannot be said that the incarceration of an innocent person advances any goal of - 11 ­ No. 1-15-2994 punishment, and if a prisoner is actually innocent of the crime for which he is incarcerated, the punishment is indeed grossly out o

2019Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003) (“The appropriate burden of proof for a habeas claim based upon a freestanding claim of actual innocence should strike a balance between these competing standards and require the petitioner to make a clear and - 22 - No. 1-15-2994 convincing showing of actual innocence that undermines confidence in the correctness of the judgment.”); People v. Cole, 765 N.Y.S.2d 477, 486 (N.Y.

2018Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003) (“The appropriate burden of proof for a habeas claim based upon a freestanding claim of actual innocence should strike a balance between these competing standards and require the petitioner to make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment.”); People v. Cole, 765 N.Y.S.2d 477, 486 (N.Y.

2019Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003) (“The appropriate burden of proof for a habeas claim based upon a freestanding claim of actual innocence should strike a balance between these competing standards and require the petitioner to make a clear and - 22 - No. 1-15-2994 convincing showing of actual innocence that undermines confidence in the correctness of the judgment.”); People v. Cole, 765 N.Y.S.2d 477, 486 (N.Y.

2018Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003) (“The appropriate burden of proof for a habeas claim based upon a freestanding claim of actual innocence should strike a balance between these competing standards and require the petitioner to make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment.”); People v. Cole, 765 N.Y.S.2d 477, 486 (N.Y.

2019See Schmidt v. State, 909 N.W.2d 778, 795 (Iowa 2018); Montoya v. Ulibarri, 163 P.3d 476, 484 (N.M. 2007) (Holding that the due process clause and the prohibition against infliction of cruel and unusual punishment in the New Mexico Constitution protects actually innocent people, and “to ignore a claim of actual innocence would be fundamentally unfair.” Also “[i]t cannot be said that the incarceration of an innocent person advances any goal of punishment, and if a prisoner is actually innocent of the crime for which he is incarcerated, the punishment is indeed grossly out of proportion to the s

2018See Schmidt v. State, 909 N.W.2d 778, 795 (Iowa 2018); Montoya v. Ulibarri, 163 P.3d 476, 484 (N.M. 2007) (Holding that the due process clause and the prohibition against infliction of cruel and unusual punishment in the New Mexico Constitution protects actually innocent people, and “to ignore a claim of actual innocence would be fundamentally unfair.” Also “[i]t cannot be said that the incarceration of an innocent person advances any goal of - 11 ­ No. 1-15-2994 punishment, and if a prisoner is actually innocent of the crime for which he is incarcerated, the punishment is indeed grossly out o

2025“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.” Id. (citing Coleman, 2013 IL 113307 , ¶ 97). ¶ 39 The “actual innocence exception to the bar on successive postconviction petitions is met only where the defendant can prove all of the elements of a freestanding claim of actual innocence.” People v. English, 403 Ill.

2025“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.” Id. (citing Coleman, 2013 IL 113307 , ¶ 97). ¶ 39 The “actual innocence exception to the bar on successive postconviction petitions is met only where the defendant can prove all of the elements of a freestanding claim of actual innocence.” People v. English, 403 Ill.

2015The Ortiz court held that “the due process clause of the Illinois Constitution affords postconviction petitioners the right to assert a freestanding claim of actual innocence on newly discovered evidence.” Ortiz, 235 Ill. 2d at 331 . ¶ 53 In the case of a claim of actual innocence, “leave of court should be denied only where it is clear, from a review of the successive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.” People v. Edwards, 2012 IL 111711, ¶ 24 .

2014The Ortiz court held that “the due process clause of the Illinois Constitution affords postconviction petitioners the right to assert a freestanding claim of actual innocence on newly discovered evidence.” Ortiz, 235 Ill. 2d at 331 . ¶ 53 In the case of a claim of actual innocence, “leave of court should be denied only where it is clear, from a review of the successive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.” People v. Edwards, 2012 IL 111711, ¶ 24 .

2015“Stated differently, leave of court should be granted when the petitioner’s supporting documentation 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’ [citation].” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

2014“Stated differently, leave of court should be granted when the petitioner’s supporting documentation 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’ [citation].” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

2025Accordingly, we “may affirm a trial court’s dismissal at the second stage on any grounds substantiated by the -5- record, regardless of the trial court’s reasoning.” People v. Snow, 2012 IL App (4th) 110415, ¶ 17 . ¶ 18 Illinois law allows for defendants to file a postconviction petition “ ‘assert[ing] a freestanding claim of actual innocence based on newly discovered evidence.’ ” Wingate, 2015 IL App (5th) 130189, ¶ 24 (quoting People v. Ortiz, 235 Ill. 2d 319, 333 (2009)).

2020Actual Innocence ¶ 15 Illinois law allows for defendants to file a postconviction petition “ ‘assert[ing] a freestanding claim of actual innocence based on newly discovered evidence.’ ” Wingate, 2015 IL App (5th) 130189, ¶ 24 (quoting People v. Ortiz, 235 Ill. 2d 319, 333 , 919 N.E.2d 941, 949-50 (2009)).

2021Id. ¶ 37 The wrongful conviction of an innocent person violates due process under the Illinois Constitution and, thus, a freestanding claim of actual innocence is cognizable under the Act “and should be resolved as any other brought under the Act.” See People v. Washington, 171 Ill. 2d 475, 489 (1996).

2007People v. Pendleton, 223 Ill. 2d 458, 473 (2006) . ’ The wrongful conviction of an innocent person violates due process under the Illinois Constitution and, thus, a freestanding claim of actual innocence is cognizable under the Post-Conviction Hearing Act.

2020It is well settled that successive postconviction actions are disfavored by Illinois courts (id. ¶ 29; see also People v. Bailey, 2017 IL 121450, ¶ 39 (“successive postconviction petitions are highly disfavored”)), and it is simply not the case that a petitioner seeking leave to file a successive postconviction petition faces a “low threshold.” 4 At oral argument, defense counsel asked this court to follow its “long-standing precedent requiring a low threshold at this stage.” There is no such long-standing precedent. - 38 - ¶ 117 Nor does a postconviction petitioner bringing a freestanding cla

2019Leave to file a successive postconviction petition will be granted when a petitioner either “assert[s] a freestanding claim of actual innocence based on newly discovered evidence” (Ortiz, 235 Ill. 2d at 331) or satisfies both prongs of the cause-and-prejudice test, i.e., “demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice result[ing] from that failure” (725 ILCS 5/122-1(f) (West 2016) (codifying the test established by our supreme court in People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002))). 21 No. 1-17-1773 ¶ 67 Altho

2020App. 3d 630, 636 (2008); People v. Flowers, 2015 IL App (1st) 113259, ¶ 33 (“The focus of a freestanding claim of actual innocence is on the new evidence itself, and whether it would totally vindicate or exonerate the defendant”).

2015"The focus of a freestanding claim of actual innocence is on the new evidence itself and whether it would totally vindicate or exonerate the defendant." People v. Flowers, 2015 IL App (1st) 113259, ¶ 33 .

2022Id. at 444. ¶ 31 Subsequently, in People v. Orange, 195 Ill. 2d 437 (2001), the court reiterated its holding in Hobley.

2021People v. Orange, -21- No. 1-19-0126 195 Ill. 2d 437, 459 (2001).

2021People v. Robinson, 2020 IL 123849, ¶¶ 47-48 ; People v. Sanders, 2016 IL 118123, ¶ 24 (citing People v. Edwards, 2012 IL 111711, ¶ 32 ). ¶ 46 On appeal, the State first argues that the petitioner failed to establish that the evidence of Coleman’s misconduct is newly discovered because the multitude of complaints and civil lawsuits against Officer Coleman could have been obtained at trial through the Freedom of Information Act (FOIA) or “simple internet searches.” We disagree. ¶ 47 “Newly discovered evidence is evidence that was discovered after trial and that the petitioner could not have dis

2021Sanders, 2016 IL 118123 , ¶ 24.

2020See also People v. Gonzalez, 2016 IL App (1st) 141660 , ¶ 30 (holding defendant could not simultaneously offer same evidence in support of a Brady-violation claim and an actual innocence claim).

2019“Indeed the sufficiency of the State’s evidence to convict beyond a reasonable doubt is not the determination that the trial court must make. *** Probability, 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. [Citation.]” Id. ¶ 39 “[T]he evidence being relied upon to support a freestanding claim of actual innocence cannot be used to supplement an assertion of a constitutional violation with respect to defendant’s trial. [Citation.]” (Internal quotation marks omitted.) People v. Gonzalez,

2020The wrongful imprisonment of an innocent person violates procedural and substantive due process under the Illinois Constitution and, thus, a freestanding claim of actual innocence is cognizable under the Act.” People v. Shaw, 2019 IL App (1st) 152994, ¶ 44 . ¶ 20 A claim of actual innocence in a successive postconviction petition may only be considered if the evidence in support of the claim is newly discovered, material and not merely cumulative, and, most importantly, “of such a conclusive character that it probably would change the result on retrial.” People v. Miranda, 2018 IL App (1st) 17

2020Compare People v. Shaw, 2019 IL App (1st) 152994 (finding such a claim not to be waived), with People v. Reed, 2019 IL App (4th) 170090 , appeal allowed, 132 N.E. 3d 317 (Ill. 2019) (finding such a claim to be waived).