People v. Salinas

2026 IL App (2d) 240363 No. 2-24-0363 Opinion filed July 24, 2026 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE R. SALINAS, Defendant-Appellant. Appeal from the Circuit Court of Kane County. Honorable Alice C. Tracy, Judge, Presiding. No. 07-CF-671 JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Jorgensen concurred in the judgment and opinion. Justice Birkett concurred in part and dissented in part, with opinion. OPINION ¶1 Defendant, Jose R. Salinas, appeals from the second-stage dismissal of a claim of actual innocence in his successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). Because the record does not establish that defendant received the reasonable assistance of counsel, we reverse and remand for further proceedings. ¶2 I. BACKGROUND ¶3 In 2007, defendant was charged with first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)) in connection with the fatal shooting of Luis Donatlan in Aurora on May 8, 2000. The matter proceeded to a jury trial. There was evidence of two shootings in Aurora on May 8, 2000: one in the afternoon and one in the evening. Donatlan was killed during the afternoon shooting. ¶4 Keith Morin testified that, at about 2 p.m. on May 8, 2000, he was at home on Woodlawn Avenue in Aurora. At that time, he observed a red car being followed by a blue car. He saw a passenger in the blue car—a clean-shaven Hispanic male about 18 or 19 years old—firing a black gun out of the window. ¶5 Aaron Cohen testified that, on May 8, 2000, he was a “foot soldier” for the Ambrose street gang. At the time of trial, Cohen had convictions of residential burglary and possession of a controlled substance with intent to deliver. He testified that he had not entered into any agreements with the State for his trial testimony. He related that, on the afternoon of May 8, 2000, he was driving a blue Chevrolet Malibu on Gale Street in Aurora. Defendant was in the passenger seat. While defendant and Cohen were stopped at the intersection of Gale and Lake Street, a Buick pulled up next to them. Defendant mentioned to Cohen that someone in the Buick appeared to have a teardrop tattoo, suggesting he was a rival gang member. At defendant’s request, Cohen followed the Buick along Gale. When the Buick stopped at Woodlawn, defendant pulled a gun and started shooting at the Buick. Cohen described the gun as a “black automatic.” ¶6 On cross-examination, Cohen acknowledged that he was aware that driving the Malibu during the shooting made him responsible for murder. He acknowledged that his attorney had received a letter from the State assuring that his testimony at defendant’s trial would not be used against him in future proceedings. He testified that he spoke to no one about the shooting until 2007, when officers approached him at a work-release facility and accused him of involvement in Donatlan’s death. Cohen was “aware that [he was] gonna be charged with something having to do with” the shooting of Donatlan. He was not aware what he would be charged with and was “hopeful” he would not be charged at all if defendant were convicted. Cohen denied that the way -2- to advance beyond “foot soldier” in the Ambrose was to kill someone. Cohen denied that he ever “brag[ged] about the shooting.” ¶7 Orlando Rivera testified that, on May 8, 2000, he was a member of the Insane Deuces street gang, which was part of an alliance of gangs known as the Folks. Before 2000, Orlando was a member of the Ambrose, which was also part of the Folks. In 2000, Orlando’s cousin, David Rivera, was a member of the Ambrose. Defendant was also an Ambrose member. In spring 2000, before May 8, Orlando possessed a .40-caliber H&K handgun, which was a “nation gun,” i.e., a community weapon. Orlando traded the H&K handgun for David’s 9-millimeter Browning handgun. Orlando had seen the 9-millimeter Browning in defendant’s possession. On May 8, 2000, Orlando, having “hear[d] about a shooting that occurred on Woodlawn,” spoke to defendant about the shooting. Defendant told Orlando that “he—or they shot numerous times” at a member of the Latin Kings street gang. Defendant did not say “who actually pulled the trigger.” On cross- examination, Orlando admitted that he had felony convictions and was a paid informant for the federal government. ¶8 David Rivera confirmed that, in 2000, he was a member of the Ambrose, and his cousin Orlando was a member of the Insane Deuces. In spring 2000, one of his gang’s “nation guns” was a 9-millimeter Browning handgun. That spring, before May 8, 2000, David traded the 9-millimeter handgun for Orlando’s .40-caliber handgun. Before May 8, 2000, David had seen defendant in possession of the 9-millimeter handgun “[a] few times.” Also, before May 8, 2000, he had seen defendant in possession of the .40-caliber handgun. On the afternoon of May 8, 2000, David was in the backyard of 595 Second Avenue, which was about four blocks from “the intersection of Clark Street and T Street.” Defendant came up the driveway and “said they had shot at some people.” Defendant did not say whom he was with or who had “pulled the trigger when these shots -3- were fired.” At about 9 p.m. that evening, while at the same residence, David heard gunshots a few blocks away. Defendant came up the driveway “a little breathless” and said that “they did a shootout, and they crashed a car.” Asked “who was in the group that did the shootout,” David replied, “The Kings.” David testified that the Latin Kings and the Ambrose were rivals. David had several felony convictions and, at the time of trial, was the subject of a criminal investigation. He was not testifying under any agreement with the Kane County State’s Attorney’s Office or the federal government, but when asked if he “wish[ed] *** to receive [a] benefit in exchange for [his] testimony,” he answered, “Yes.” ¶9 An Aurora police officer testified that he heard gunshots while on patrol in Aurora at about 9 p.m. on May 8, 2000. He proceeded to the T-intersection of Clark Street and Bevier Place, where he observed a blue Chevrolet Malibu that had hit a tree. The Malibu had no occupants. The State presented evidence that shell casings found at that site and at the scene of the shooting that afternoon at Gale and Woodlawn were fired from the same .40-caliber weapon. ¶ 10 Maria Liquez, the mother of defendant’s children, testified that, on April 6, 2007, she and defendant’s parents visited defendant in jail. Defendant asked Liquez to provide an alibi for him. ¶ 11 Sergeant Jeff Wiencek, an expert on gangs, testified that, in May 2000, defendant and Cohen were members of the Ambrose and Donatlan was a member of the Latin Kings. Cohen’s gang nickname was “White Folks.” Donatlan had a teardrop tattoo under his left eye. ¶ 12 After the State rested, Pedro Moreno testified for the defense that, at around 2 p.m. on May 8, 2000, he was standing on a corner outside his aunt’s house on Woodlawn. Moreno was with gang members. On that date, Moreno had no gang affiliation but was previously a member of the Latin Kings. Moreno observed an individual named Aaron, known as “White Folks,” fire a gun from a blue car at another vehicle. Later, at Christmastime 2000, while Moreno was in the Kane -4- County jail, he saw “White Folks” when they were both being taken to court. Moreno told “White Folks” that he had seen him “doing the shooting” on May 8, 2000. “White Folks” admitted that he had “killed” Donatlan. Moreno denied telling police that the car involved in the shooting was gray. ¶ 13 Fredrick Thomas testified that, in May 2000, a person he knew as “White Folks” would visit the housing complex where Thomas lived. According to Thomas, “White Folks” was mixed- race but looked Hispanic. ¶ 14 In the State’s rebuttal case, the detective who interviewed Moreno testified that Moreno described the vehicle from which “White Folks” had fired as a gray Buick. The State also presented evidence that Cohen was not in custody at Christmastime in 2000, but that Moreno and Cohen were in custody in the same cell block in March 2001. ¶ 15 The jury found defendant guilty of first degree murder and further found that he personally discharged a firearm during the offense. At that time, first degree murder was ordinarily punishable by a prison term of not less than 20 and not more than 60 years. 730 ILCS 5/5-8-1(a)(1)(a) (West 2000). However, when, as in this case, the trier of fact found that the defendant personally discharged a firearm, 20 years had to be added to the defendant’s prison term. Id. § 5-8- 1(a)(1)(d)(ii). The trial court sentenced defendant to a 57-year prison term. ¶ 16 We affirmed defendant’s conviction. People v. Salinas, No. 2-08-0728 (2010) (unpublished order under Illinois Supreme Court Rule 23). ¶ 17 On March 28, 2011, defendant filed a petition for relief under the Act. On June 22, 2011, the trial court summarily dismissed the petition. See 725 ILCS 5/122-2.1(a)(2) (West 2010). Defendant appealed, and the Office of the State Appellate Defender was appointed to represent him. However, appellate counsel moved to withdraw per Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993). We granted the motion and affirmed the -5- summary dismissal of the petition. People v. Salinas, No. 2-11-0697 (2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)). ¶ 18 On June 12, 2013, defendant filed a pro se motion for leave to file a successive postconviction petition. The proposed successive petition raised, inter alia, a claim of actual innocence. On June 28, 2013, the trial court granted defendant leave to file his petition and appointed the Office of the Kane County Public Defender to represent him. On July 17, 2013, defendant filed a pro se “addendum” to the proposed petition. ¶ 19 More than seven years later, on September 8, 2020, postconviction counsel filed an amended successive postconviction petition claiming that (1) defendant was deprived of due process of law because the State failed to disclose that Cohen had entered into an agreement with the State for his trial testimony and instead presented perjured testimony that he had not entered into such an agreement; (2) defendant was deprived of due process of law because the State did not disclose a police report concerning a possible suspect; (3) defendant was deprived of the effective assistance of trial counsel in that counsel failed to call defendant’s wife, brother, and parents to impeach Liquez’s testimony and failed to call Elias Diaz, an Ambrose member who would have testified that Cohen admitted to killing Donatlan; (4) defendant was deprived of the effective assistance of counsel on appeal where appellate counsel failed to challenge trial court rulings admitting certain gang evidence and barring other such evidence; and (5) the trial court failed to conduct a proper voir dire examination in accordance with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). The amended successive petition also raised a claim of actual innocence. ¶ 20 The amended successive petition was accompanied by two affidavits from defendant and affidavits from Roberto Salinas (defendant’s father), Daniel Salinas (defendant’s brother), Cecilia Barraza (defendant’s former wife), Luis Lomeli, Mark Downs, Cevin Stanford, Hector Mauricio, -6- and Diaz. Defendant’s affidavits were executed on May 24, 2013. The other affidavits most critical to this appeal—Diaz’s and Stanford’s—were executed on May 31, 2012, and June 27, 2013, respectively. ¶ 21 Roberto Salinas’s affidavit stated that defendant was home on May 9, 2000, 1 and that Liquez did not come with him and defendant’s mother to visit defendant in jail on April 6, 2007. ¶ 22 Daniel Salinas’s affidavit stated that he overheard part of a telephone conversation between Liquez and defendant while defendant was in pretrial custody. Liquez told defendant that if he did not want to leave his wife and be with Liquez and their children, Liquez would make sure defendant would never see their children again. ¶ 23 Barraza’s affidavit stated that, while defendant was in pretrial custody, she asked Liquez if Liquez’s children with defendant could socialize with Barraza’s daughter. Liquez responded that she would make sure Barraza and defendant never saw Liquez’s children again. According to the affidavit, Liquez was jealous of Barraza’s relationship with defendant. ¶ 24 The affidavits from Downs and Lomeli stated that defendant was not involved in the gun exchange that was the subject of the testimony of David and Orlando Rivera. ¶ 25 Diaz’s affidavit stated that, at the end of May 2000, the Ambrose had a gathering at which Cohen was introduced as a new member. Diaz asked Cohen “what he did to get in the mob.” Cohen replied that “he had killed the king over in the West Side on Gale and Woodlawn.” Diaz “said, ‘That was you who did that,’ and he answered ‘yeah that was me.’ ” Fearing retaliation against his family, Diaz “never told any of this to anybody.” Diaz further averred, “Because I was also fighting my own case at the same time [as defendant] was fighting his case, my attorney advised me not to get involved in [defendant’s] case.” However, Diaz could not “go on any longer knowing that an 1 The shooting for which defendant was charged and convicted occurred on May 8, 2000. -7- innocent man [was] in prison for something he didn’t do.” Diaz believed that “the truth need[ed] to come out that [defendant] did not commit the crime he was convicted of.” ¶ 26 Stanford’s affidavit stated that when he returned home on the night of May 8, 2000, the police were there and arrested him. They accused him of involvement in the shooting of Donatlan that afternoon. Stanford told the police that he was not involved. He told them he was at a store when he observed a purple Malibu with a white male in the passenger seat. The Malibu appeared to be chasing another vehicle. When the Malibu got to the corner of Gale and Woodlawn, the white male started shooting at the other vehicle with a black handgun. Stanford later found out that the gunman was an Ambrose member who went by the name “White Folks.” Stanford averred: “I didn’t come forward with this information before because I was scared to be a snitch because I didn’t want the Ambrose to kill me or hurt my family. I came forward with this information now because [defendant] is not the man I saw in the purple Chevy Malibu shooting that day.” ¶ 27 Mauricio’s affidavit stated that defendant was not involved in the shooting that occurred on the evening of May 8, 2000. 2 ¶ 28 Defendant’s affidavits stated that when he filed his first postconviction petition, he was unaware of the information in Diaz’s affidavit. Defendant did not learn of that information until he and Diaz were “[h]oused [t]ogether.” Defendant’s trial counsel, who also represented Diaz, did not advise defendant of “[t]he [s]tatements made by *** Diaz.” “Nor did [counsel] consider [defendant’s] opinion on having [Diaz] as a defense witness.” ¶ 29 Accompanying the amended successive petition was postconviction counsel’s certificate under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). 2 As noted, defendant was convicted of a shooting that occurred on the afternoon of May 8, 2000. -8- ¶ 30 The State moved to dismiss the amended successive petition. The trial court granted the motion as to each claim except defendant’s claim regarding Cohen’s alleged agreement to testify and the State’s use of his allegedly false testimony that no agreement existed. Following an evidentiary hearing, the trial court denied that claim. Defendant filed a timely notice of appeal. 3 ¶ 31 II. ANALYSIS ¶ 32 Defendant argues that we should reverse the second-stage dismissal of his amended successive postconviction petition because (1) postconviction counsel’s certificate under Rule 651(c) was deficient and (2) the petition sufficiently stated a claim of actual innocence. ¶ 33 We begin with a brief review of the principles governing proceedings under the Act. As we have observed: “The Act allows a criminal defendant to assert in a petition 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.’ [Citation.] The Act provides a three-stage mechanism for a defendant to advance such a claim. [Citation.] At the first stage, the trial court independently reviews the petition and determines whether to dismiss it as frivolous or patently without merit. [Citation.] If the petition is not summarily dismissed, it advances to the second stage, where the court may appoint an indigent defendant counsel and the State may either answer or move to dismiss 3 We note that the Office of the State Appellate Defender was appointed to represent defendant. Per Finley, 481 U.S. 551, and Lee, 251 Ill. App. 3d 63, the appellate defender moved to withdraw as counsel, and defendant filed a response to the motion. We denied the motion without prejudice, ordering counsel to file either a new motion to withdraw or a brief on the merits. -9-  the petition. [Citations.] If the petition is not dismissed, it advances to a third-stage evidentiary hearing.” People v. Marcus, 2023 IL App (2d) 220096, ¶ 57. ¶ 34 Section 122-2 of the Act (725 ILCS 5/122-2 (West 2018)) provides, “The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” ¶ 35 Generally, a defendant may file only one petition under the Act. People v. McCoy, 2026 IL 131565, ¶ 48. However, the bar against successive petitions will be relaxed if the defendant “(1) can establish cause and prejudice for the failure to assert a postconviction claim in an earlier proceeding or (2) asserts a fundamental miscarriage of justice based on actual innocence.” Id. “[W]here a defendant sets forth a claim of actual innocence in a successive postconviction petition, the defendant is excused from showing cause and prejudice.” People v. Ortiz, 235 Ill. 2d 319, 330 (2009). ¶ 36 Turning to defendant’s arguments on appeal, we first consider whether the proceedings complied with Rule 651(c), which governs counsel’s duties in postconviction proceedings. Although there is no constitutional right to counsel in a postconviction proceeding, where the defendant is represented by counsel, the Act requires counsel to provide a reasonable level of assistance. People v. Williams, 2025 IL 129718, ¶ 43. To ensure that the defendant has received the requisite level of assistance, Rule 651(c) provides that the record on appeal from the denial of a postconviction petition “shall contain a showing, which may be made by the certificate of [the defendant’s] attorney, that the attorney has consulted with [the defendant] by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to - 10 -  the petitions filed pro se that are necessary for an adequate presentation of [the defendant’s] contentions.” Ill. S. Ct. R. 651(c) (eff. July 1, 2017). A facially valid Rule 651(c) certificate creates a rebuttable presumption that counsel provided reasonable assistance. People v. Beasley, 2017 IL App (4th) 150291, ¶ 39. It is well established that, “[a]lthough strict compliance is not necessary, postconviction counsel must substantially comply with Rule 651(c).” People v. Mason, 2016 IL App (4th) 140517, ¶ 19. We review de novo postconviction counsel’s compliance with Rule 651(c). People v. Frey, 2024 IL 128644, ¶ 21. ¶ 37 Although postconviction counsel filed a Rule 651(c) certificate, defendant argues that the certificate was deficient. Counsel’s certificate provided as follows: “1. On June 28, 2013, the court appointed the Kane County Public Defender’s Office to represent [defendant]. 2. On December 12, 2013, the [c]ourt advanced the matter to the second stage. 3. [C]ounsel has reviewed the [p]etition filed by [defendant]. 4. [C]ounsel has reviewed the records contained within the court file in 07 CF 671 and obtained and reviewed a copy of the transcripts, including trial and sentencing transcripts, filed with the Kane County Clerk’s Office. 5. [C]ounsel has consulted with [defendant] in person, by mail, and through legal telephone calls to the extent necessary to adequately represent his contentions of error in the proceedings and thereafter filed an [a]mended [p]ost-[c]onviction [p]etition.” ¶ 38 The problem lies with the final paragraph, which conflates Rule 651(c)’s consultation requirement with its amendment requirement. Counsel certified that he “consulted with [defendant] *** to the extent necessary to adequately represent his contentions of error” (emphasis added) and that he “thereafter filed an [a]mended [p]ost-[c]onviction [p]etition” (emphasis added). - 11 - However, consulting with defendant “to the extent necessary to adequately represent his contentions of error” does not necessarily mean that the amended petition counsel filed adequately presented defendant’s contentions. Rule 651(c) frames the adequacy of the consultation and the adequacy of the amended petition as distinct requirements. Although Rule 651(c) does not require a particular form of language for counsel’s certificate, hewing as closely as possible to the language of the rule avoids questions as to the adequacy of counsel’s performance. Because doing so is not particularly burdensome, we are not inclined to interpolate missing language into a certificate that is deficient on its face. ¶ 39 The State argues that postconviction counsel substantially complied with Rule 651(c), but the cases it cites in support of its argument—People v. Jackson, 2026 IL App (4th) 250215-U, and People v. Richardson, 382 Ill. App. 3d 248 (2008)—are distinguishable. As pertinent here, postconviction counsel’s Rule 651(c) certificate in Richardson stated that counsel filed a supplemental postconviction petition that “ ‘adequately complement[ed] [the defendant’s] claims of deprivation of his constitutional rights.’ ” Richardson, 382 Ill. App. 3d at 251. The court in Richardson concluded that this language signified that counsel complied with the requirement of making amendments necessary for an adequate presentation of the defendant’s contentions. Id. at 257. The certificate in Jackson stated that counsel “ ‘made amendments to the pro se petition necessary for adequate presentation of [the defendant’s] proceedings.’ ” (Emphasis added.) Jackson, 2026 IL App (4th) 250215-U, ¶ 12. The court found the certificate to be adequate. Id. ¶ 22. The court recognized that “the words ‘proceedings’ and ‘contentions’ are not synonymous.” Id. Nonetheless, the court noted that the certificate stated that counsel had conferred with the defendant to “ ‘ascertain [her] assertions of deprivation of Constitutional rights.’ ” (Emphasis added.) Id. Thus, the substitution of “proceedings” for “contentions” could not plausibly be viewed - 12 - as intentional. The Jackson court also relied on Richardson, noting that the certificate there “contained wording that was not synonymous with the language of Rule 651(c) and [was] nevertheless found to be substantially compliant.” Id. ¶ 40 Both Jackson and Richardson are distinguishable because the certificate in this case contains no language that could be read to mean that counsel not only consulted with defendant to ascertain his contentions but also amended the pro se petition to adequately present those contentions. We acknowledge that the failure of postconviction counsel to file a conforming Rule 651(c) certificate does not necessarily preclude a finding of compliance with that rule. Absent a certificate, however, the record must make a clear, affirmative showing of compliance. People v. Woods, 2020 IL App (1st) 162751, ¶ 99. Defendant argues that because postconviction counsel failed to shape one of his postconviction claims into its proper legal form, the record does not show compliance with Rule 651(c). The State responds that the claim was meritless in any event. The issue is purely academic, however. Even assuming that postconviction counsel’s representation with respect to the claim in question conformed to the requirements of Rule 651(c), it would not follow that counsel made amendments necessary to adequately present defendant’s other contentions. Because the State does not argue that the record sufficiently shows compliance with Rule 651(c), the absence of a proper certificate is dispositive. ¶ 41 It is well established that remand for new second-stage proceedings is required “where postconviction counsel failed to fulfill the duties of consultation, examining the record, and amendment of the pro se petition.” People v. Suarez, 224 Ill. 2d 37, 47 (2007). This is true whether the underlying postconviction claims are meritorious or not. Id. at 52. Nonetheless, because the issue is germane to the proceedings on remand, we consider whether, as defendant argues, the trial court erred in dismissing his actual innocence claim. - 13 - ¶ 42 Where, as here, the trial court grants the defendant leave to file a successive petition, “the petition advances to the second stage, where the [defendant] must make a substantial showing of actual innocence to proceed to an evidentiary hearing.” People v. Ruhl, 2021 IL App (2d) 200402, ¶ 63. “The substantial showing required to avoid dismissal at the second stage is greater than the standard that must be satisfied to obtain leave to file a successive petition.” People v. Robinson, 2020 IL 123849, ¶ 43. “[A]ll well-pleaded allegations in the petition and supporting affidavits that are not positively rebutted by the trial record are to be taken as true.” Id. ¶ 45. “In deciding the legal sufficiency of a postconviction petition, the court is precluded from making factual and credibility determinations.” Id. ¶ 43 As our supreme court has observed: “To succeed on a claim of actual innocence, the [defendant] must present evidence that is (1) newly discovered, (2) material and not cumulative, and (3) of such a conclusive character it would probably change the result on retrial. [Citations.] ‘New means the evidence was discovered after trial and could not have been discovered earlier through the exercise of due diligence.’ [Citation.] Evidence is considered material if it is relevant and probative of the [defendant’s] innocence. [Citation.] Noncumulative means the evidence adds to what was heard by the jury. [Citation.] Lastly, conclusive means the evidence, when considered along with the trial evidence, would probably lead to a different result.” McCoy, 2026 IL 131565, ¶ 54. ¶ 44 Whether newly discovered evidence is “conclusive” hinges on whether it “places the trial evidence in a different light and undermines the court’s confidence in the judgment of guilt.” Id. ¶ 55. “ ‘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.’ ” Id. (quoting People v. - 14 - Coleman, 2013 IL 113307, ¶ 97). The trial court may not dismiss an actual innocence claim merely because it does not believe the new evidence is credible. People v. Sanders, 2016 IL 118123, ¶ 42. To the contrary, “[c]redibility determinations may be made only at a third-stage evidentiary hearing.” Id. A second-stage dismissal under the Act is reviewed de novo. Id. ¶ 31. ¶ 45 Defendant argues that the evidence contained in the affidavits of Diaz and Stanford was sufficient to raise a claim of actual innocence. We first consider whether that evidence was newly discovered. According to the State, neither affidavit contained newly discovered evidence. The State notes that, in May 2013, “[a] year after Diaz signed his affidavit, in May 201[2], defendant averred that his attorney did not tell him of Diaz’s statement, and also did not ‘consider [his] opinion on having [Diaz] as a defense witness.’ ” (Emphasis in original.) However, trial counsel’s failure to disclose Diaz’s “statement”—i.e., the evidence in his affidavit—to defendant is consistent with the evidence being newly discovered. Counsel could not disclose the evidence to defendant unless Diaz disclosed it to counsel. Diaz unequivocally stated that he “never told *** anybody” about his conversation with Cohen. According to defendant’s affidavit, Diaz made his revelation when he and defendant were “[h]oused [t]ogether.” We do not agree with the State that defendant’s averment that trial counsel did not “ ‘consider [defendant’s] opinion on having [Diaz] as a defense witness’ ” (emphasis in original) meant that defendant and trial counsel discussed Diaz before trial. Rather, read in context, defendant’s statement meant that trial counsel did not consider calling Diaz as a witness in proceedings after trial. ¶ 46 With respect to Stanford’s affidavit, the trial court concluded that the evidence set forth therein would have been available in police reports tendered to defendant during discovery and was therefore not newly discovered. As noted, however, the well-pleaded allegations in the petition and supporting affidavits must be taken as true unless positively rebutted by the record. Stanford’s - 15 - affidavit, executed in June 2013, averred that he was “com[ing] forward with this information now”—implying that he did not disclose the information to anyone (other than the police) before June 2013. Nothing in the record substantiates the trial court’s theory that Stanford’s statement to the police was disclosed to defendant. Speculation on this point is not a valid basis for dismissal of defendant’s petition. ¶ 47 According to the State, defendant “acknowledges the information [in Stanford’s affidavit] was available to him prior to his first post-conviction.” The State provides no citation to the record in support of the assertion. In any event, the State’s argument assumes, with no analysis or citation of authority, that if the information was known to defendant when he filed his first petition, it is not “newly discovered” for purposes of an actual innocence claim in a successive petition. This is not a settled point. In People v. Wideman, 2016 IL App (1st) 123092, ¶ 57, and People v. Snow, 2012 IL App (4th) 110415, ¶ 21, the courts held that evidence available at the time of an earlier postconviction proceeding is not “newly discovered.” However, in a more recent decision cited by defendant, People v. Beard, 2023 IL App (1st) 200106, ¶ 49, the court declined to follow Wideman and Snow, holding instead that whether evidence is “newly discovered” depends simply on whether it could have been discovered before trial. The State essentially asks us to resolve this conflict in its favor but offers no argument why we should do so. Points not argued are forfeited (Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); see Ill. S. Ct. R. 612(b)(9) (eff. July 1, 2017)). Although the State contends that there is no evidence that defendant was unaware of Stanford’s potential testimony before trial, it is unclear how defendant could have known about it. ¶ 48 We next consider whether the evidence in the Diaz and Stanford affidavits was material, noncumulative, and conclusive. There can be no doubt that the evidence was material, i.e., relevant and probative of defendant’s innocence. According to Diaz’s affidavit, Cohen admitted that he - 16 - “killed” Donatlan. If true, then defendant might still be guilty of first degree murder under a theory of accountability (see 720 ILCS 5/5-2(c) (West 2000)). However, he would not be guilty of the enhanced form of first degree murder, of which he was found guilty based on Cohen’s testimony that defendant fired the fatal gunshots. Stanford’s statement that he observed a white male (whom he later found out was an Ambrose member named “White Folks”) firing a gun from a purple Chevy Malibu was likewise material to the identity of the shooter. ¶ 49 The State insists that evidence bearing only on whether defendant was the gunman cannot be the basis for an actual innocence claim. We disagree. In People v. Rosalez, 2021 IL App (2d) 200086, ¶ 130, cited by defendant, we observed that “the essence of an actual-innocence claim is that the defendant asserts that he is ‘innocent of the crime for which he has been tried, convicted, and sentenced.’ [Citation.] Also, every defendant has the constitutional right to defend against the theory of guilt upon which he was prosecuted, convicted, and sentenced.” (Emphases added.) Defendant was sentenced on the theory that he personally discharged a firearm, which required the trial court to add 20 years to defendant’s sentence. See 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2000). That 20-year mandatory increase was constitutionally permissible only because the jury concluded beyond a reasonable doubt that defendant personally discharged a firearm. See Apprendi v. New Jersey, 530 U.S. 466, 488 n.14 (2000). Thus, the theory of guilt upon which defendant was convicted and sentenced in this case depended upon proof beyond a reasonable doubt that defendant personally discharged a firearm. Defendant is entitled to predicate an actual innocence claim on evidence negating that theory, even if the evidence would not preclude a conviction of first degree murder without the sentencing enhancement. - 17 - ¶ 50 Furthermore, the testimony of both witnesses would be noncumulative. “Noncumulative means the evidence adds to what the jury heard.” Coleman, 2013 IL 113307, ¶ 96. We recognize that Diaz’s testimony would have been similar to Moreno’s. However, Moreno’s testimony was severely impeached as to his assertion that Cohen confessed to the shooting. Diaz’s testimony could not be considered cumulative of testimony that the jury almost certainly disregarded. Moreover, Diaz’s eyewitness account would not be cumulative merely because it was similar to Moreno’s account. See People v. Warren, 2016 IL App (1st) 090884-C, ¶ 81 (“Corroborative evidence is not the same as cumulative evidence.”). ¶ 51 In considering whether the evidence was “conclusive,” we begin with a threshold question specific to Diaz’s affidavit, which recounts Cohen’s admission to Diaz. We consider the purposes for which Diaz’s testimony would be admissible. Presumably, Cohen’s admission to Diaz, which was inconsistent with Cohen’s trial testimony, would have been admissible for impeachment purposes. See, e.g., People v. Guerrero, 2021 IL App (2d) 190364, ¶ 44 (“[W]hen a witness has previously made a statement and, at trial, testifies inconsistently with the statement, a party may introduce the witness’s prior statement *** for the limited purpose of impeaching the witness’s credibility”). 4 Although “[m]ere impeachment evidence will typically not be of such conclusive character as to justify postconviction relief” (People v. Harper, 2013 IL App (1st) 102181, ¶ 49), Cohen’s statement also would have been admissible as a statement against penal interest. In determining the admissibility of an individual’s out-of-court statement that he or she committed 4 Unless we make the dubious assumption that Cohen would have acknowledged his statement to Diaz had he been questioned about it at trial, the statement would not have been admissible as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2006) (governing admissibility of prior inconsistent statements as substantive evidence)). - 18 - the crime that the defendant is accused of, courts must determine “whether the declaration was made under circumstances that provide ‘considerable assurance’ of its reliability by objective indicia of trustworthiness.” People v. Bowel, 111 Ill. 2d 58, 67 (1986) (quoting Chambers v. Mississippi, 410 U.S. 284, 300-01 (1973)). In making this determination, courts consider whether “(1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self- incriminating and against the declarant’s interest; and (4) there was adequate opportunity for cross- examination of the declarant.” Id. (citing Chambers, 410 U.S. at 300-01). ¶ 52 Cohen spoke to Diaz relatively soon after the crime, and his admission, while not completely spontaneous, was in response to a casual inquiry. Moreover, although Cohen and Diaz were not close acquaintances, it is fair to assume that, as fellow gang members, they shared a bond of trust that fostered candor. As for corroboration, Cohen’s own testimony establishes that he participated in the shooting, and Stanford’s affidavit tends to establish that defendant did not fit the gunman’s appearance. Cohen’s statement to Diaz was highly self-incriminating and against interest, and there was an opportunity to cross-examine Cohen. We note that the factors identified in Bowel and Chambers are not rigid requirements for admissibility (id.) and that, in this case, the balance tips in favor of admitting Cohen’s statement as substantive evidence that he fired the gun that killed Donatlan. ¶ 53 Moreover, both the Stanford and Diaz affidavits place the trial evidence in a different light, casting doubt o