Appellate court finds post-conviction petition timely but finds merits lacking

In the People of the State of Illinois v. Luster T. Scott, 2019 IL App (2d) 160439, the Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of Du Page County to dismiss appellant’s pro se post-conviction petition at the second stage of proceedings.

Appellant Luster Scott was adjudicated guilty at trial of two counts of aggravated unlawful use of a weapon, as well as one count each of attempted vehicular hijacking, attempted armed robbery, aggravated battery with a firearm, and aggravated battery. These charges were related to a December 11, 2002 shooting in a bank parking lot. Id. at ¶ 3. Scott was sentenced to 22 years’ incarceration. Id. at ¶ 7. Immediately following conviction and sentencing, Scott appealed the ruling, arguing (in part) that the court had erred in failing to suppress statements made by detectives at trial. Scott alleged throughout trial proceedings that he had been physically abused by case detectives, denied access to an attorney, and never been read his Miranda rights. The Appellate Court of Illinois Second District affirmed upon appeal. Id. at ¶ 7. In April 2007, the United States Supreme Court denied certiorari. In November 2007, Appellant Scott, pro se, filed a post-conviction petition pursuant to the Post Conviction Hearing Act, via the prison mail system, which was incorrectly post-marked and featured a cover page attempting to establish proof of service on October 28, 2007. Id. at ¶ 8. The petition was initially dismissed for untimeliness and failure to provide an affidavit from the witness, Jon McClain, alleging violations of Appellant’s Miranda rights, yet was corrected and ultimately approved upon rehearing. Id at ¶ 9.

Following an unexplained nearly 8-year delay, in October 2015, Scott’s post-conviction counsel filed an amended petition alleging that trial counsel was ineffective for failing to investigate and call McClain to testify, as well as failing to investigate Scott’s allegations of police misconduct and abuse. Id. at ¶ 10. Included in the petition were allegations that Detectives Evoy and Klecka had transferred Scott to an interrogation room, following repeated requests to speak with an attorney, and repeatedly struck him in the face; an affidavit from McClain stating he had been in the holding cell with Scott and witnessed Scott leave their joint holding cell absent physical injuries yet returned with wounds to his head and an affidavit from McClain that Scott had been denied requests for an attorney. Id. at ¶ 12. The court dismissed the petition as untimely without addressing the merits, holding that Scott had until October 30, 2007, six months from the date that certiorari was denied, to file his petition. Id. at ¶ 13.

On appeal, Appellant contended that the trial court erred in finding his petition untimely as changes in law apply retroactively and should render all pleadings and post-trial motions timely, so long as they were placed in the prison mail system within the required period of time. In support of this argument, Scott cited Illinois Supreme Court Rule12(b), which was amended to allow a pro se litigant in a correctional institution to enclose a certification, in lieu of an affidavit, “of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” Id. at ¶ 16.

The Appellate Court and State agreed that the amendment to Rule 12(b) ought to apply retroactively, yet disagreed on its application to Scott’s case, as his proceedings had completed prior to his filing of the proof of service. Upon review, the Appellate Court held that the amended rule applied retroactively to Scott. Id. at ¶ 19. Moreover, the Appellate Court held that despite the State’s assertions to the contrary, the minor errors in the address listed on the certification were inconsequential and that proof of service (as required under Rule 12(b)) substantially complied with requirements to list a complete address. As a result, the Court ruled that the trial court erred in dismissing appellant’s petition as untimely and determined the petition was timely in nature. Id. at ¶ 24.

Next, the Appellate Court moved to evaluate the merits of Scott’s pro se post-conviction petition. Following the State’s assertion that the petition should be dismissed for failure to make a substantial showing of a constitutional violation, the Appellate Court ordered Scott to file a supplemental brief addressing the merits. Id. at ¶ 25.

On the merits, Scott argued that constitutional violations took place both when his counsel failed to investigate and call McClain to support his motion to suppress based on his invocation of his right to counsel, and when his counsel failed to challenge his sworn statements as being the byproduct of physical coercion. Id. at ¶ 28. Appellant’s assertions of constitutional violations stemming from the ineffective assistance of counsel were evaluated under the guidelines established in Strickland v. Washington, 466 U.S. 668 (1984), which states that “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.” Id. at ¶ 30. This standard is referred to as the Strickland standard. Prejudice, under the Strickland standard, is established “when a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at ¶ 30. The State argued that prejudice could not be established because of the overwhelming evidence that existed against Appellant. The Appellate Court agreed. Id. at ¶ 31, 33. Moreover, the Appellate Court held that Appellant’s assertions regarding physically coerced statements were rebutted by the record and Scott’s own statements at trial. Id. at ¶ 34.

The judgement of the circuit court of Du Page County was affirmed by the Appellate Court of Illinois Second District on the merits. Id. at ¶ 37.

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