People v. Moore

2026 IL App (1st) 240704 No. 1-24-0704 Opinion filed September 4, 2026 Sixth Division ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 05 CR 23042 ) TONY MOORE ) Honorable ) Carol M. Howard, Defendant-Appellant. ) Judge, presiding. JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pucinski and Gamrath concurred in the judgment and opinion. OPINION ¶1 Tony Moore appeals from the denial of his pro se successive postconviction petition asserting actual innocence. The question is whether Moore’s petition and supporting documents state a “colorable claim” sufficient to advance to second-stage postconviction proceedings. The petition is supported by an affidavit from a known eyewitness who identified Moore before the grand jury but now avers that Moore was not the shooter and the detectives pressured him to identify Moore falsely. This affidavit bears directly on the identity of the shooter, is not cumulative, and, if believed, could place the trial evidence in a different light and undermine confidence in the verdict. No. 1-24-0704 ¶2 We reverse the denial of leave to file a successive post-conviction petition and remand for further postconviction proceedings and the appointment of counsel. Taking the affidavit as true, as we must at this stage, Moore has stated a colorable claim of actual innocence. ¶3 Background ¶4 A. Police Investigation ¶5 In the State’s answer to discovery, filed in 2006, Sam Tart was included in the list of potential witnesses. ¶6 Shortly after the shooting, police interviewed 14-year-old Sam Tart and his mother, Sakeena Thomas. The report included this summary: “Sam Tart was interviewed by the [responding detectives]. Tart made the following statement, Sam Tart stated that he had just walked past Mike (Robinson) and had asked him for a dollar. Tart stated that Robinson told him he would give him the dollar later; and Tart continued walking. Tart stated that he turned to look for a friend, when he observed a [male/Black] on the parkway by Robinson, pointing a gun at him. Sam Tart stated that the offender started to shoot at Mike, and that Mike ran into the gangway. Tart stated that the offender was initially on the pathway but stepped onto the sidewalk. Tart stated that the offender fired 3 or 4 shots at the victim, and that the offender then went [eastbound] across Maplewood [Avenue], and that he then ran [northbound] on the east sidewalk of Maplewood [Avenue]. Sam Tart stated that the offender was armed with a black gun that sounded like a police gun. He further related that the gun might have been a semiautomatic, but that he wasn’t sure.” ¶7 Tart also viewed a lineup. His mother was in the viewing room when Tart viewed the line- up. Tart identified Tony Moore as the shooter. -2- No. 1-24-0704 ¶8 After the lineup, Tart was also interviewed by Assistant State’s Attorney Gonzalez, in the presence of his mother and Detective James O’Brien. ¶9 In September 2005, Tart testified before the grand jury. Tart knew Moore because Tart’s mother was friends with Moore’s wife, Ratanda Dawson. Tart testified that on the evening of the shooting, he was outside and saw Robinson on the street. He asked Robinson if he had a dollar to buy some junk food, and Robinson told him, “not right now.” Tart then walked down the street to play basketball. Tart heard four gunshots and turned around and saw defendant shooting Robinson. ¶ 10 B. Trial Evidence ¶ 11 1. State’s Witnesses ¶ 12 Chicago police officer Nicholas Cortesi and his partner arrived on the scene first. Cortesi testified that they were responding to a report of a narcotics sale when they received a call of a man shot. Robinson was lying on the ground with two middle-aged African American women standing nearby. Cortesi stayed with Robinson until the ambulance arrived. ¶ 13 Based on overhearing discussions from the gathered crowd, Cortesi issued a radio message with a description of a possible offender, described as a black male wearing a white shirt, white pants, and possibly going by the name “DT.” Cortesi did not interview witnesses at the scene. ¶ 14 Detective O’Brien testified that, after he arrived, he learned that the flash message of a possible offender “DT” had been sent out and that a man later identified as Gregory “DT” Randall had been brought to the scene. Detective O’Brien attempted a show-up identification with Cindy Smith-Richardson; her 15-year-old son, Dwight Neal; and Tart. After the show-up, Randall was released. ¶ 15 O’Brien later went to Robinson’s home and spoke to Robinson’s brother. Following the conversation, O’Brien arranged for the photo array in which Smith-Richardson identified -3- No. 1-24-0704 defendant as the shooter. On August 30, 2005, defendant was arrested at his home where a white Cadillac was parked in the rear. ¶ 16 Smith-Richardson testified for the State that she witnessed the shooting. She was eating dinner when she heard gunshots on Maplewood Avenue, opened the front door, and saw Robinson standing next to a fence. She saw Moore next to him, holding a gun. She heard Robinson say, “Help me, [Cindy], help me.” Richardson saw Moore, who was about 30 feet away, walk away at an angle across the street and get into a white Cadillac. Moore had on shorts and a white shirt with stripes and looked right at her as he walked away. According to Smith-Richardson, the Cadillac belonged to Cardnel Dawson, but she could not see who was driving. ¶ 17 After Moore walked away, Smith-Richardson walked over to Robinson, who was holding himself up by hanging onto the fence. Lawanda Sellers also walked over. The police arrived shortly after the shooting, and Smith-Richardson did not talk to them at first. Later, a detective brought over a suspect and asked if he was the shooter. Richardson said he was not the shooter. She did not give the detective her name or address or a description of the shooter, go to the police station, or provide a statement to the police. ¶ 18 On August 16, 2005, the same police officer who had shown Smith-Richardson the suspect on the night of the shooting showed her some photographs, and she identified Moore as the shooter. A couple of weeks later, Smith-Richardson and her son, Dwight Neal, went to the police station, where they separately viewed lineups. Smith-Richardson identified Moore as the shooter. ¶ 19 Smith-Richardson said that she had never seen Moore before the shooting and did not know he was married to Ratanda Dawson. ¶ 20 Dwight testified that, on the evening of the shooting, he was playing basketball in the street with his brother, Jonathan Neal, and four friends, including Tart. He had known Robinson his -4- No. 1-24-0704 entire life. As they played basketball, he heard four gunshots. After hearing the shots, he ducked and then looked up the street, where he saw Robinson trying to get away. He saw Moore, wearing a white T-shirt and blue shorts, walking across the street with a gun at his side. Dwight ran over to Robinson in the gangway; Smith-Richardson and Sellers were already there. He recognized Moore but did not know his name. ¶ 21 Dwight denied that he spoke with police right after the shooting but did speak with detectives sometime later. After the shooting, while sitting on his porch, the police brought a man in handcuffs to the scene. Although Smith-Richardson did not allow him to leave the porch to participate in the show-up, he saw the person, and he was not the shooter. ¶ 22 Later that night, Dwight spoke to Detective O’Brien at the station. O’Brien did not ask him to describe the shooter. Initially, he testified that he told O’Brien that he recognized Moore but that he did not tell him that he knew him. He later said that he told O’Brien that he knew Moore, but that O’Brien never asked him how he knew Moore. ¶ 23 On August 30, 2005, based on Moore’s face, Dwight identified Moore as the person he saw walking away with a gun. ¶ 24 On cross-examination, Dwight testified that Moore was taller than he was, at around six foot, two inches. ¶ 25 Lawanda Sellers testified that she witnessed the shooting. Although initially reluctant, she identified Moore in a lineup on August 31. ¶ 26 2. Defense Witnesses ¶ 27 Chicago Police Officer Gregory Butts testified that he spoke to Jonathan Neal and Lawanda Sellers at the scene. Neal gave him a description of the shooter’s height, weight, and clothing. Butts asked Sellers what she saw, but he did not ask her whether she knew the shooter’s name, -5- No. 1-24-0704 where he lived, or what he was wearing. Butts explained that Sellers did not want to be seen talking to him because of the neighborhood and the people standing around. ¶ 28 The defense also called Detective John Halloran. He testified to the August 31, 2005, interview of Sellers concerning which window of her home she was looking through at the time of the shooting. ¶ 29 a. Tony Moore ¶ 30 Moore testified in his own defense. On July 29, 2005, he was 36 years old, 5’11”, and 190 pounds and was married to Ratanda Dawson. Her family lived at 6519 S. Maplewood Avenue and Moore lived at 7324 S. Paulina. He often visited the Dawsons. ¶ 31 The afternoon of the shooting, Moore drove to the Dawsons’ house. After he parked, he saw his brother-in-law Tony Dawson, a man named Bobby, and Robinson. Moore had known Robinson for four years. He talked with them before going inside. Moore went home around 5 p.m. His brother-in-law, Cardnel Dawson, came over. Moore and Cardnel played video games until about 7 to 7:30 p.m., when Moore’s friend and neighbor, Brian Stevens, came over. ¶ 32 At around 8 p.m., Stevens drove Moore and Cardnel to the liquor store in his black Chrysler. When they left the liquor store, they drove towards the Dawsons’ home on Maplewood with Moore in the front passenger seat and Cardnel behind him in the back passenger seat. They arrived at 66th Street and Maplewood Avenue about 8:30 p.m. Moore saw a group of kids playing basketball a few houses north but did not recognize any of them. ¶ 33 As they got closer to the Dawson house, Moore saw Tony Dawson sitting on the hood of his car on the west side of Maplewood Avenue. Moore did not see Robinson. He did not talk to Tony Dawson. Stevens circled the block to find a parking spot and eventually parked on the west side of Maplewood Avenue. Everyone got out of the car. -6- No. 1-24-0704 ¶ 34 Moore, with Cardnel and Stevens following, started walking on the east side of the street toward the Dawson house. About 30 seconds after getting out of the car, Moore heard two gunshots that sounded like they were coming from in front of him. Moore ran back to the car; he did not see the shooter. Cardnel and Stevens also ran back to the car. Stevens put the car in reverse and backed down the street, away from the shooting. He drove Moore and Cardnel to a lounge called Francis, where they stayed for several hours. On the way, someone called Cardnel and told him that Robinson had been shot. ¶ 35 The next day, Moore learned that Robinson had died. Three days later, he went back to Maplewood Avenue to visit the Dawsons. He attended Robinson’s wake and continued to go back to Maplewood Avenue periodically until he was arrested about a month after the shooting. ¶ 36 b. Tony Dawson ¶ 37 Tony Dawson, Moore’s brother-in-law, testified that at the time of the shooting, he was sitting on the steps of his home when he saw Robinson on the street. An unknown man approached Robinson and shot him several times. Dawson was two or three feet away. Although Dawson saw the police detain someone, Dawson did not approach them, did not call the police to give them a description, and never told anyone what he had seen until he testified at trial. ¶ 38 c. Brian Stevens ¶ 39 Stevens testified that, after returning from a liquor store, he saw people on the east and west side of Maplewood Avenue. Shortly after getting out of the car, he heard five shots and saw a man—whom he described as 5’3” or 5’4”, dark-skinned, wearing a white shirt and blue jeans— running in the opposite direction of the shooting. Moore was seven to eight feet in front of Stevens when the shooting started. Stevens said Moore did not have a gun and did not shoot anyone. -7- No. 1-24-0704 Stevens saw a short, dark-skinned man running away from the scene. He never informed the police that Moore was not the shooter. ¶ 40 d. Cardnel Dawson ¶ 41 Cardnel Dawson lived with his mother and brother. Cardnel heard three to four shots. He saw Robinson standing next to a gate on the west side of the street, north of where Stevens had parked. He also saw Terrell Thompson sitting with his brother on his Cadillac. According to Cardnel, Moore was about four to five feet away from Robinson when the shooting started. He ducked and did not see the shooter. ¶ 42 Cardnel testified that he did not see the shooting, but knew Moore was not the shooter because he saw him at the time of the shooting and he did not have a gun. He did not report to police that someone other than Moore was the shooter. ¶ 43 e. Stephanie Barnes ¶ 44 Stephanie Barnes, who lived next door to the Dawson family, was acquainted with Retanda and Moore. On the day of the shooting, Barnes saw Moore in the front passenger seat of a car driving past her. The Chrysler stopped, Moore said hello to her from inside the car, and then he drove off. About 30 seconds to a minute after seeing the car turn off the street, Barnes heard four gunshots coming from somewhere on the block but did not see the shooter. ¶ 45 On cross-examination, Barnes admitted that despite being aware that Moore had been arrested and charged with the murder, she never went to the police or anyone to tell them her story. Barnes also testified that she did not see Tony Dawson outside at the time of the shooting. ¶ 46 f. Terrell Thompson -8- No. 1-24-0704 ¶ 47 Terrell Thompson lived with his mother, Lawanda Sellers, who testified for the State. Thompson had known Moore for about a year and a half. At the time of trial, he was living with the Dawsons. ¶ 48 On the evening of the shooting, Thompson was sitting with Dawson on his Cadillac. He saw Stevens, Moore, and Cardnel drive past more than five minutes but less than an hour before the shooting. Thompson saw Robinson about 25 feet away, arguing with a short dark-skinned man. He did not see the shooting but looked up as soon as he heard shots. He described the shooter as 5’4” to 5’5”, dark-skinned, and wearing a white t-shirt, blue jean shorts, and no hat. When Thompson looked up, the shooter was about a foot away from Robinson. He saw the shooter running at Robinson as Robinson unsuccessfully tried to make it through the gangway. The shooter fired more shots at Robinson while standing over him. People scattered. ¶ 49 Thompson saw Moore running the opposite direction from him, about 20 feet away. Moore was not the shooter. Thompson was still outside when the police came. He saw them bring a man in handcuffs to the scene. The man was not the shooter but fit his description. Thompson admitted that although he was aware that defendant had been charged with the murder, he never told anyone that defendant was not the shooter and refused to speak with an investigator from the State’s Attorney’s Office. ¶ 50 The jury found Moore guilty of first degree murder. The court denied his motion for a new trial and sentenced him to 55 years in prison. ¶ 51 C. Direct Appeal ¶ 52 On direct appeal, Moore argued that (i) the State failed to prove him guilty beyond a reasonable doubt, (ii) he was denied effective assistance during voir dire, and (iii) he was denied a fair trial when the court allowed inadmissible hearsay and evidence in the form of improper -9- No. 1-24-0704 course of investigation testimony. Moore also argued that his mittimus should be corrected to merge his convictions into a single count. This court affirmed, rejecting these claims, and corrected the mittimus. See People v. Moore, 403 Ill. App. 3d 1104 (2010) (unpublished opinion under Illinois Supreme Court Rule 23). ¶ 53 D. Postconviction Proceedings ¶ 54 In 2011, Moore filed a postconviction petition alleging ineffective assistance of trial and appellate counsel based on their failure to move to quash his arrest because the photographic array identifying him lacked probable cause. Moore attached the supplementary police report summarizing interviews with Tart and his mother. According to the report, Tart told police that, shortly before the shooting, he asked Robinson for a dollar, continued walking, turned to look at a friend, and saw a black male pointing a gun at Robinson and fire three or four shots. Tart later identified Moore as the shooter in a lineup and gave the same account to an Assistant State’s Attorney. Tart and his mother reviewed and signed Tart’s handwritten statement. ¶ 55 The report also summarized an interview with Tart’s mother. She said anonymous callers threatened her and Tart during the week after the shooting if Tart spoke to the police. After each call, Moore’s wife, Retanda, telephoned, asking whether Tart was home and what he knew about the shooting. Retanda also came to her home two or three times, but she refused to let her see Tart. ¶ 56 The circuit court dismissed the petition as frivolous and patently without merit. Moore appealed. The Office of State Appellate Defender (OSAD) moved to withdraw as appellate counsel under Pennsylvania v. Finley, 481 U.S. 551 (1987), concluding no meritorious issues existed for appeal. We allowed the motion. People v. Moore, 2012 IL App (1st) 112001-U. ¶ 57 In 2014, Moore filed pro se a motion for leave to file a successive postconviction petition asserting actual innocence. In support, he attached a complaint filed against Detective O’Brien. - 10 - No. 1-24-0704 Moore alleged that the complaint established that the detective demonstrated a pattern and practice of coercing witnesses to identify suspects and argued that trial counsel was ineffective for not discovering this information and impeaching the detective at the hearing on his motion to suppress. ¶ 58 The circuit court denied leave, finding Moore failed to satisfy the cause-and-prejudice test. The order stated: “Petitioner speculates that O’Brien had a history of coercing false identification but has failed to bring any evidence that Detective O’Brien has indeed exercised any coercive tactics towards any of the witnesses in petitioner’s case.” ¶ 59 Moore appealed. OSAD again moved to withdraw under Pennsylvania v. Finley. We allowed the motion. People v. Moore, 2016 IL App (1st) 150835-U. ¶ 60 In October 2017, Moore filed pro se for leave to file a second successive postconviction petition. Supported by his own affidavit, the petition asserted newly discovered evidence concerning Tart’s statements to investigators, ineffective assistance of trial counsel, and actual innocence. The circuit court denied leave, and Moore later dismissed his appeal. ¶ 61 This appeal, Moore’s third pro se successive postconviction petition, was denied by the circuit court in January 2024. Moore alleged he did not know that (i) Tart told Detectives O’Brien and Halloran that he was not the shooter, (ii) the detectives made “daily, unannounced visits” with Tart, (iii) the detectives had a history of abusing suspects and witnesses to obtain false statements, and (iv) the People knew about the detectives’ “record of abusing their authority.” Moore claimed he was prejudiced when he was not provided this information to challenge the “illegal pressure” and that his due process rights were violated when pressure was exerted on Tart to identify Moore as the shooter and testify falsely before the grand jury. ¶ 62 Analysis ¶ 63 A. Res Judicata - 11 - No. 1-24-0704 ¶ 64 The State claims the doctrine of res judicata precludes our review. “Rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised, but were not, are waived.” People v. Miller, 203 Ill. 2d 433, 437 (2002). See People v. Ortiz, 235 Ill. 2d 319, 328 (2009) (“ ‘Issues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata; issues that could have been raised, but were not, are considered waived.’ ” (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 502 (2002))). The State contends Moore’s current claim repackages claims he raised in his earlier postconviction proceedings. ¶ 65 Tart’s affidavit states that (i) he saw the shooting, (ii) Moore was not the shooter, and (iii) Detectives O’Brien and Halloran pressured him into identifying Moore as the shooter in a statement to police and before the grand jury. Tart further states that he did not come forward at trial because he was young, afraid, and did not want to go against Detective O’Brien. ¶ 66 Until Tart provided his affidavit in 2020, Moore could not have known that O’Brien and Halloran had pressured Tart into identifying Moore as the shooter or that Tart would now swear that Moore was not the shooter and that Tart remained silent because he was afraid. Although the police report containing the summary of Tart’s statements was appended to Moore’s previous postconviction pleadings, Tart’s recantation and assertions regarding the detectives were not present in any report or otherwise available through due diligence. ¶ 67 Nor can we conclude that Moore’s previous attempt to show police coercion in a general sense precludes his presenting Tart’s specific assertions. Moore’s earlier claim that Detective O’Brien had a history of coercion differs fundamentally from Tart’s sworn assertion that Detectives O’Brien and Halloran pressured him in this case to identify Moore falsely. Res judicata does not bar a claim resembling an earlier one. See People v. Moore, 2022 IL App (1st) 192290, - 12 - No. 1-24-0704 ¶ 36) (“claims that are merely ‘similar,’ yet distinct, are not barred” by res judicata doctrine (citing People v. Harris, 206 Ill. 2d 1, 42 (2002))). Indeed, the doctrine bars claims raised and decided, which this claim was not. ¶ 68 B. Actual Innocence ¶ 69 Each claim in a successive postconviction petition “must meet the applicable standard in order to advance to second-stage postconviction proceedings.” People v. Griffin, 2024 IL 128587, ¶ 2; see 725 ILCS 5/122-1(f) (West 2018) (Post-Conviction Hearing Act). At this stage, a petitioner need only show that “the new evidence, if believed and not positively rebutted by the record, could lead to acquittal on retrial.” People v. Robinson, 2020 IL 123849, ¶ 60. See People v. Edwards, 2012 IL 111711, ¶ 24 (“[L]eave 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.”). ¶ 70 Evidence is positively rebutted only when the record affirmatively and incontestably demonstrates it is false or impossible. Robinson, 2020 IL 123849, ¶ 60. Conflict with the trial evidence by itself does not amount to positive rebuttal. Id. ¶ 71 An actual innocence claim “does not depend on—and is separate from—a challenge to the sufficiency of the evidence or an allegation of error in the court below.” (Internal quotation marks omitted.) People v. Navarro, 2026 IL App (1st) 211543-B, ¶ 37. The pivotal inquiry is whether the evidence supporting the postconviction petition casts “the trial evidence in a different light and undermines the court’s confidence in the judgment of guilt.” (Internal quotation marks omitted.) Id. ¶ 40. In determining whether the petitioner has satisfied the “low threshold” for leave to file a successive postconviction petition, we take well-pled allegations as true unless positively rebutted by the record. Robinson, 2020 IL 123849, ¶¶ 45, 61. - 13 - No. 1-24-0704 ¶ 72 The denial of a motion for leave to file a claim of actual innocence is reviewed de novo. Edwards, 2012 IL 111711, ¶ 39. To obtain leave to file a successive petition asserting actual innocence, the supporting evidence must be (i) newly discovered, (ii) material and not cumulative, and (iii) of such conclusive character that it would probably change the result on retrial. Robinson, 2020 IL 123849, ¶ 47. ¶ 73 The State asserts Moore failed to establish a colorable claim of actual innocence and, thus, the denial of his motion for leave to file his third successive postconviction petition was proper. ¶ 74 This case turns on identity. Moore denied being the shooter and presented several witnesses who testified that he was not the shooter or who identified another man as the shooter. Thus, Tart’s affidavit bears directly on identification. We examine whether it satisfies each requirement for a colorable claim of actual innocence. ¶ 75 1. Tart’s Affidavit is Newly Discovered ¶ 76 In the State’s answer to discovery, filed in 2006, Sam Tart was listed as a potential witness. The answer included written statements from Sam Tart and his mother. But Tart’s affidavit contains facts not previously known to Moore: that Tart was “positive” Moore was not the shooter and that detectives pressured him to say otherwise. Moore asserts he had no reason to suspect Tart would recant his prior identifications of him as the shooter, let alone state he was “positive” Moore was not the shooter. ¶ 77 The question is whether Moore exercised due diligence in obtaining Tart’s affidavit. See Robinson, 2020 IL 123849, ¶ 47. We conclude he did. Due diligence does not require an incarcerated defendant to foresee that a known witness will later recant and provide direct exculpatory evidence. - 14 - No. 1-24-0704 ¶ 78 That Tart did not testify at trial does not diminish the significance of his affidavit. What matters is the evidence a jury would hear on retrial, not what was presented at the original trial. ¶ 79 2. Tart’s Affidavit is Material and Not Cumulative ¶ 80 Newly discovered evidence must be material “and not merely cumulative of other trial evidence.” Ortiz, 235 Ill. 2d at 334. Cumulative evidence adds nothing to what was already before the jury. Id. at 335. ¶ 81 This evidence from an eyewitness who did not testify at trial cannot be considered cumulative simply because other witnesses also testified that Moore was not the shooter. See People v. Coats, 2021 IL App (1st) 181731, ¶ 34 (“[E]vidence that goes directly to the ultimate issue in the case will not be considered cumulative.” (citing People v. Molstad, 101 Ill. 2d 128, 135 (1984))). Tart’s affidavit recants his grand jury testimony and presents sworn statements about what he saw as a young teenager playing basketball in his neighborhood. ¶ 82 Identity was the central issue at trial. Tart’s sworn statement that Moore was not the shooter goes directly to that issue. ¶ 83 Moreover, the affidavit affirmatively states that Moore was not the shooter. Evidence identifying another person or excluding the defendant as the offender is substantive evidence bearing directly on guilt or innocence and not just impeachment. See Griffin, 2024 IL 128587, ¶ 59 (“At the leave-to-file stage, [the witness’s] affidavit sufficiently undermines the factual basis as to present a colorable claim of petitioner’s actual innocence.”). ¶ 84 3. Conclusive Nature of the Evidence ¶ 85 Next, taken as true, is Tart’s affidavit sufficient to make a “colorable” showing that the jury would reach a different verdict on retrial? - 15 - No. 1-24-0704 ¶ 86 Tart’s affidavit states that Moore was not the shooter and that Detectives O’Brien and Halloran pressured him to identify Moore as the shooter before the grand jury. Tart was 14 when he witnessed a fatal shooting moments after asking Robinson for a dollar. Robinson told Tart he didn’t have any cash and would give him a dollar later. Tart continued walking, turned around, and saw the shooter firing at Robinson. If believed, Tart’s affidavit adds an eyewitness who was present at the scene, had no apparent familial relationship to Moore, previously identified Moore, and now states under oath that Moore was not the shooter. That evidence does more than impeach Tart’s prior statement. It supplies direct evidence on the identity of who shot Robinson. ¶ 87 The State emphasizes that three eyewitnesses identified Moore at trial. But that argument asks us to weigh competing evidence and decide credibility. At this stage, we do neither. Robinson instructs that newly discovered evidence must be considered with the trial evidence and taken as true unless positively rebutted by the record. See Robinson, 2020 IL 123849, ¶ ¶ 48, 60. Tart’s affidavit, if believed, places the trial evidence in a different light and undermines confidence in the verdict. See id. ¶ 48. ¶ 88 The actual innocence standard does not require a court to conclude that the petitioner is actually innocent or that he definitely would not be convicted at a new trial, but only that the result would probably be different at retrial. See People v. Ortiz, 385 Ill App. 3d 1, 10 (2008) (under this standard, the new evidence need not prove actual innocence or directly implicate State conduct). Rather, it is satisfied by evidence that would “probably create a reasonable doubt of defendant’s guilt at retrial.” Id. at 13. ¶ 89 The record contains evidence that, when considered with Tart’s affidavit, bears on whether a different result might be reached on retrial, including (i) police initially detained another suspect, (ii) Seller’s and Smith-Richardson’s testimony conflicted with that of other regarding who was - 16 - No. 1-24-0704 present at the scene, (iii) Seller’s claim that she did not tell the responding officers that Moore was the shooter because “it never came up,” (iv) Dwight Neal gave inconsistent testimony concerning his statements to Detective O’Brien, (v) Seller acknowledged learning information about the shooting through “gossip” and “hearsay,” (vi) five witnesses and Moore testified he was not the shooter, and (vii) no physical evidence linked Moore to the shooting. ¶ 90 Nor would Tart’s affidavit stand alone. It would reinforce the defendant’s evidence while also casting doubt on the investigation that produced his earlier identification. ¶ 91 Although the State presented contrary evidence at trial, Robinson does not permit us to weigh that evidence against Tart’s affidavit at the leave-to-file stage. See Robinson, 2020 IL 123849, ¶ 61 (“Credibility findings and determinations as to the reliability of the supporting evidence are to be made only at a third-stage evidentiary hearing in a successive postconviction proceeding.” (citing People v. Sanders, 2016 IL 118123, ¶ 42))). ¶ 92 Taking Tart’s affidavit as true, as we must, Moore’s petition presents newly discovered, material, and noncumulative evidence that directly bears on the identity of the shooter. Considered with the trial evidence, Tart’s affidavit could lead a reasonable fact finder to a different result on retrial. Moore, therefore, has stated a colorable claim of actual innocence under Robinson, 2020 IL 123849, and Edwards, 2012 IL 111711. ¶ 93 We reverse the denial of leave to file a successive post-conviction petition and remand for further postconviction proceedings and the appointment of counsel. ¶ 94 Reversed and remanded. - 17 - No. 1-24-0704 People v. Moore, 2026 IL App (1st) 240704 Decision Under Review: Appeal from the Circuit Court of Cook County, No. 05-CR- 23042; the Hon. Carol M. Howard, Judge, presiding. Attorneys James E. Chadd, Douglas R. Hoff, and Joseph Michael Benak, for of State Appellate Defender’s Office, of Chicago, for appellant. Appellant: Attorneys Eileen O’Neill Burke, State’s Attorney, of Chicago (John E. for Nowak, Jessica R. Ball, and Kimberly C. Reeve, Assistant Appellee: State’s Attorneys, of counsel), for the People. - 18 -