409 F.3d 724
Frances McDONALD and Joy McDonald, Plaintiffs-Appellants,v.Nancy PETREE and Holly Ann Hudspeth, Defendants-Appellees.
No. 04-5053.
United States Court of Appeals, Sixth Circuit.
Argued: March 18, 2005.
Decided and Filed: May 13, 2005.

ARGUED: W. Les Jones, Jr., Burch, Porter & Johnson, Memphis, Tennessee, for Appellants. Melanie M. Stewart, Stewart & Wilkinson, Memphis, Tennessee, for Appellees. ON BRIEF: W. Les Jones, Jr., Burch, Porter & Johnson, Memphis, Tennessee, Dexter C. Nettles, Jr., Nettles & Rhea, Carthage, Mississippi, for Appellants. Melanie M. Stewart, Matthew S. Russell, Stewart & Wilkinson, Memphis, Tennessee, Kevin David Bernstein, Spicer, Flynn & Rudstrom, Memphis, Tennessee, for Appellees.
Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.*
OPINION
HOOD, Chief District Judge.
Plaintiffs-Appellants Joy and Frances McDonald ("Mr. and Mrs. McDonald") brought this diversity action, alleging that Defendants-Appellants Nancy Petree ("Petree") and Holly Ann Hudspeth ("Hudspeth") negligently caused Mrs. McDonald to be injured in a car accident. The district court below granted summary judgment in favor of Hudspeth. A jury later returned a verdict in favor of Petree, and the district court denied Mr. and Mrs. McDonald's motion for new trial. The district court also granted both Petree's and Hudspeth's motions for costs. Mr. and Mrs. McDonald appeal the grant of summary judgment, denial of the motion for new trial, admission of evidence of Hudspeth's negligence in Petree's trial, and grant of Petree's and Hudspeth's motions for costs. For the reasons set forth below, we AFFIRM the district court in all respects.
FACTUAL BACKGROUND
On Friday, March 2, 2001, Mrs. McDonald and Hudspeth were riding in Hudspeth's vehicle, which Hudspeth was driving, in Memphis, Tennessee, where the women would attend a trade show with their husbands. Shortly before five o'clock in the evening and while the women were traveling to pick up their husbands for dinner, Petree's vehicle struck Hudspeth's vehicle from behind. Mrs. McDonald contends that, upon impact, her knees hit Hudspeth's dashboard, but Hudspeth testified in her deposition that she did not see that happen.
When asked at trial what caused the accident at issue, Petree replied, "Me not stopping as fast as the car in front of me stopping." (Test. of Petree at 130, Joint Appendix ("JA") at 290.) Petree also contended throughout trial that an ambulance pulled onto Poplar Avenue causing Hudspeth to apply her brakes. Mrs. McDonald testified that she never heard an emergency vehicle, and Hudspeth testified that an ambulance did not cause her to apply her brakes. Immediately after the accident, when Petree asked whether anyone was injured, Hudspeth and Mrs. McDonald did not indicate that they were injured. After the police completed their on-scene investigation, Mrs. McDonald and Hudspeth went to dinner with their husbands as planned. Mrs. McDonald testified that she complained of discomfort in her knees during dinner. However, Hudspeth testified that she did not recall Mrs. McDonald complaining at any point during the evening. After dinner, both couples returned to their hotel and took a horse-drawn carriage to the Pyramid Arena for a basketball game. Mrs. McDonald climbed the steep stairs at the Pyramid and walked back to the hotel following the game.
Mrs. McDonald testified that, on the night of the accident, she had trouble sleeping and mentioned to her husband that her knees hurt. She further testified that, by the day following the accident, her knees began to swell. Hudspeth testified that the day following the accident, Mrs. McDonald walked all day at the trade show and that, although Mrs. McDonald walked slowly, she never complained of pain. On Monday following the accident, Mrs. McDonald was treated by a chiropractor. In the statement that Mrs. McDonald prepared at the chiropractor's office, Mrs. McDonald wrote that when she stood up to get out of bed that morning, her right knee hurt, and that she turned and twisted her left foot. The chiropractor referred Mrs. McDonald for an MRI. The individual who later performed the MRI gave Mrs. McDonald the name of Dr. William B. Geissler, an orthopedic surgeon whose advice Mrs. McDonald later sought regarding her knees.
Dr. Geissler began treating Mrs. McDonald and initially determined that she had a "possible torn knee meniscus" and "patellofemoral pain" in her right knee and "a torn medial and lateral meniscus tear" in her left knee. (Test. of Dr. Geissler at 166, JA at 227.) Dr. Geissler testified that he could not view the injuries and determine whether the accident caused them; he could merely determine that a traumatic incident caused the injuries. On May 10, 2001, Dr. Geissler performed arthroscopic surgery on Mrs. McDonald's left knee. Mrs. McDonald returned to Dr. Geissler on July 2, 2001, and told him that her left knee was doing fine but that she was experiencing pain in her right knee. Dr. Geissler continued physical therapy but later performed arthritic surgery on the right knee when the pain did not improve. Mrs. McDonald underwent follow-up treatment but continued to experience pain. In October of 2001, Dr. Geissler concluded that Mrs. McDonald was experiencing pain in her right knee as a result of the accident. In April of 2003, however, Dr. Geissler concluded that the pain that Mrs. McDonald was experiencing at that time in both knees resulted from degenerative arthritis unrelated to the accident.
At trial, Dr. Geissler testified that Mrs. McDonald had significant arthritic changes in both knees that were unrelated to the accident. He further testified that the March 7, 2001 MRI results showed meniscal degeneration related to the arthritic changes and unrelated to the accident. On a form that Mrs. McDonald filled out at Dr. Geissler's request, which sought Mrs. McDonald's relevant past medical history, Mrs. McDonald noted a past hysterectomy, gall bladder surgery, and colon cancer. Mrs. McDonald did not indicate at any point during Dr. Geissler's treatment, however, that she had undergone orthopedic surgery on her left knee prior to Dr. Geissler's treatment of her knees. Although Mrs. McDonald testified on direct examination that the prior knee surgery was conducted in 1995, she agreed on cross examination that the surgery instead was conducted in "1998, probably." (Test. of Mrs. McDonald at 112, JA at 285.) Dr. Geissler testified that Mrs. McDonald had an old tranverse incision, consistent with surgery for a patella [knee cap] fracture and that information regarding the prior surgery would have been pertinent to his treatment of her injuries.
PROCEDURAL BACKGROUND
On July 14, 2003, Hudspeth filed a motion for summary judgment to which both Petree and Mr. and Mrs. McDonald responded. Mr. and Mrs. McDonald responded that although they were not aware of any negligence on the part of Hudspeth, if Petree could prove Hudspeth's negligence, they should be allowed to recover against Hudspeth under Tennessee's comparative fault doctrine. On September 4, 2003, the district court granted summary judgment in favor of Hudspeth. Mr. and Mrs. McDonald filed a motion for reconsideration arguing that (1) genuine issues of material fact remained regarding Hudspeth's negligence and, in the alternative, (2) if Hudspeth was entitled to summary judgment, neither Mr. and Mrs. McDonald nor Petree should be able to argue Hudspeth's negligence to the jury that would determine whether Petree was negligent. The district court denied Mr. and Mrs. McDonald's motion and noted, "The McDonalds' acknowledgment that Hudspeth was not negligent does not prevent Petree from attempting to prove that Huspeth [sic] was at least partially responsible for the accident." (Order on Pls.' Mot. for Recons. at 2, JA at 162.)
On October 23, 2003, at the conclusion of the jury trial in Mr. and Mrs. McDonald's case against Petree, the jury returned a verdict in favor of Petree. Mr. and Mrs. McDonald moved for a new trial, which the district court denied on grounds that the jury could have reasonably believed that Petree did not cause Mrs. McDonald's injuries. The district court also granted both Defendants' motions for costs. Mr. and Mrs. McDonald then brought this appeal.
STANDARD OF REVIEW
This Court reviews a district court's grant of summary judgment de novo. Kellner v. Budget Car & Truck Rental, Inc., 359 F.3d 399, 403 (6th Cir.2004). If the movant establishes a prima facie basis for summary judgment, the nonmovant must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in the nonmovant's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Further, summary judgment is appropriate where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Additionally, the Court's review of whether Hudspeth's negligence could be argued to the jury despite Hudspeth's prior dismissal from the suit is a comparative fault issue. Because comparative fault issues are issues of law, see Fox v. Allied-Signal, Inc., 966 F.2d 626, 626 (11th Cir.1992), the issue will be reviewed de novo. Kellogg v. Shoemaker, 46 F.3d 503, 506 (6th Cir.1995).
A district court's denial of a motion for new trial is reviewed under an abuse of discretion standard. Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045 (6th Cir.1996). This Court finds an abuse of discretion where it has "a definite and firm conviction that the trial court committed a clear error of judgment." Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989). A district court ruling on a motion for new trial "must compare the opposing proofs, weigh the evidence, and set aside the verdict only if it determines that the verdict is against the clear weight of the evidence." United States v. L.E. Cooke Co., 991 F.2d 336, 343 (6th Cir.1993). Further, the district court should not grant a motion for new trial merely because "`different inferences and conclusions could have been drawn or because other results are more reasonable.'" Id. (quoting Woodbridge v. Dahlberg, 954 F.2d 1231, 1234 (6th Cir.1992)). Finally, this Court reviews a district court's grant of a motion for costs under an abuse of discretion standard as well. Singleton v. Smith, 241 F.3d 534, 538 (6th Cir.2001).
DISCUSSION
A. Summary Judgment in Favor of Hudspeth
Mr. and Mrs. McDonald first argue that, in their response to Hudspeth's motion for summary judgment, they adopted by reference the arguments of Petree from Petree's response to Hudspeth's motion. Therefore, Mr. and Mrs. McDonald contend that the district court erred in not considering Petree's sworn deposition testimony, which was cited in Petree's response and, in Mr. and Mrs. McDonald's view, created a genuine issue of material fact. However, this argument is unsupported by the record. Mr. and Mrs. McDonald's response to Hudspeth's motion for summary judgment consisted only of the following:
Plaintiffs are not at this time aware of any negligence on the part of Defendant Hudspeth. However, if Defendant Petree is able to prove any negligence on the part of Defendant Hudspeth, then Plaintiffs should, accordingly, be allowed to recover against Defendant Hudspeth pursuant to the Tennessee law of comparative fault.
(Pls.' Resp. to Def. Hudspeth's Mot. for Summ. J. at 1, JA at 100.) Nothing in this response may reasonably be construed as adopting the arguments of Petree. In fact, Mr. and Mrs. McDonald, admittedly unaware of any negligence on the part of Hudspeth, maintained a position opposite to Petree's.
Rather, Mr. and Mrs. McDonald, through their response and their amended complaint as well, sought only to guarantee recovery from someone in the event that either of the two Defendants was found liable—a position that is very different than affirmatively alleging negligence on the part of Hudspeth.1 In fact, Mr. and Mrs. McDonald's motion for reconsideration before the district court following entry of summary judgment in favor of Hudspeth stated, "Plaintiffs further submit that, regardless of the wording of their response [to Hudspeth's motion], the effect is the same, i.e., the reservation of their rights to recover against Defendant Hudspeth." (Pls.' Mem. in Supp. of Mot. to Recons. at 5 n. 2, JA at 117.) However, Mr. and Mrs. McDonald's burden as the party opposing summary judgment, and more importantly as the plaintiff in a lawsuit, extends beyond merely "reserving" rights; instead, they must allege wrongdoing on the part of Hudspeth, which they have failed to do.
Additionally, although the Federal Rules of Civil Procedure provide for alternative pleading, Mr. and Mrs. McDonald's argument that the paragraph in their amended complaint regarding Hudspeth qualifies as alternative pleading is without merit. Federal Rule of Civil Procedure 8(e)(2), which allows a party to "set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses," necessarily implies that the plaintiff's complaint contains a "statement of a claim" against the defendant. Mr. and Mrs. McDonald's amended complaint does not allege any wrongdoing on the part of Hudspeth. Rather than alternatively pleading, the amended complaint merely states a contingency: if Petree proves that Hudspeth was at fault, Mr. and Mrs. McDonald should be able to recover from Hudspeth.
As the district court properly recognized, "Defendant Hudspeth presented evidence, in the form of her own deposition testimony and the deposition testimony of Plaintiff Mrs. McDonald, that no genuine issue of material fact exist[ed]. The burden then shifted to the Plaintiffs to show a genuine issue for trial remained." (Order on Def. Hudspeth's Mot. for Summ. J. at 7, JA at 108.) As indicated previously, Mr. and Mrs. McDonald's argument that they adopted Petree's response to Hudspeth's motion is without merit. Furthermore, regardless of whether Petree's response to Hudspeth's motion for summary judgment created a genuine issue of fact, Mr. and Mrs. McDonald's complaint contains absolutely no allegations of wrongdoing on the part of Hudspeth. Throughout this litigation, Mr. and Mrs. McDonald consistently maintained that Hudspeth was not negligent. Under these circumstances, it is beyond reason that the district court should have reached the question of whether genuine issues of material fact existed as to Hudspeth's negligence. Accordingly, the district court did not err in granting summary judgment in favor of Hudspeth.
B. Evidence of Hudspeth's Alleged Negligence
In granting summary judgment to Hudspeth, the district court refused to preclude Petree from presenting to the jury evidence of Hudspeth's negligence despite Hudspeth's dismissal from the suit. The district court relied on the Fifth Circuit's holding in Golman v. Tesoro Drilling Corp., 700 F.2d 249 (5th Cir.1983), when it reached this conclusion. In Golman, the court held that one defendant was not precluded from introducing evidence of another defendant's negligence despite the second defendant's prior dismissal from the suit at the summary judgment stage. Id. at 252-53. The Golman court reasoned that a final judgment had not been entered with respect to the dismissed defendant and, therefore, that the order dismissing the second defendant was "`subject to revision at any time before the entry of [final] judgment.'" Id. at 253 (quoting Fed.R.Civ.P. 54(b)).
First, Mr. and Mrs. McDonald's argument that Golman is distinguishable on its facts is strained at best. In Golman, at the trial on the merits, counsel for the plaintiff conceded in opening statement that the plaintiff had no evidence of a particular defendant's liability. Id. at 251. As a result, the defendant moved for summary judgment following opening statements. Id. In response to the defendant's motion, the plaintiff's counsel merely stated:
I know of no evidence to implicate [the movant defendant]. My concern is that we don't know what the evidence is going to be, and it may be that some witness or other called by one of the parties may put some responsibility on [the movant defendant] that I don't see.... I don't want the plaintiff to be out of Court if someone else establishes evidence that I am not aware of.
Id. Though this statement was made during trial rather than in the pre-trial phase of the litigation, the situation is strikingly similar to that before the Court. In this case, Mr. and Mrs. McDonald similarly knew of no negligence on the part of Hudspeth but merely kept her in the suit to allow for recovery if evidence later revealed that Hudspeth was negligent. Mr. and Mrs. McDonald argue that because Petree vigorously opposed summary judgment, whereas the co-defendants in Golman did not oppose summary judgment, the cases are sufficiently distinguishable to render Golman inapplicable. This distinction is immaterial. In both cases, the defendant was dismissed because the plaintiff alleged no evidence of wrongdoing, and the two cases are sufficiently similar to allow for the application of one to the other.
Second, the policy-based arguments for rejecting Golman are unpersuasive. Mr. and Mrs. McDonald argue that the Golman approach provides defendants in multiple-defendant cases the strategic advantage of being able to lie in wait without responding while another defendant moves for summary judgment and is dismissed, only to present proof of the dismissed defendant's negligence, for the first time, at trial. However, the other side of Mr. and Mrs. McDonald's coin proves to be equally advantageous for a plaintiff opposing summary judgment. If the Court were to reject the Golman approach, a defendant who may be only partially at fault, or not at fault at all, would be precluded from arguing a former co-defendant's negligence merely because the plaintiff failed to adequately plead or oppose summary judgment. Therefore, application of Golman results in no greater injustice than would the opposite conclusion.

1
Third, the mere fact that some jurisdictions disagree with the Golman approach to this issue does not preclude this Court from adopting its holding. See, e.g., Siemens Med. Sys., Inc. v. Nuclear Cardiology Sys., Inc., 945 F.Supp. 1421, 1434-35 (D.Colo.1996); McLellan v. Columbus I-70 W. Auto-Truckstop, Inc., 525 F.Supp. 1233 (N.D.Ill.1981); Enblom v. Milwaukee Golf Dev., 227 Ill.App.3d 623, 169 Ill.Dec. 703, 592 N.E.2d 190 (1992); Johnson v. Bundy, 129 Mich.App. 393, 342 N.W.2d 567 (1983); Rigney v. Superior Court, 17 Ariz.App. 546, 499 P.2d 160 (1972). This conclusion is further supported by the fact that many such cases do not address directly the issue before this Court. See McLellan, 525 F.Supp. at 1234-35 (addressing whether a defendant can file suit against a former codefendant for contribution where the former codefendant's liabilities were determined at the summary judgment stage of the same or a former suit); Enblom, 169 Ill.Dec. 703, 592 N.E.2d at 194; Johnson, 342 N.W.2d at 570-73; see also Siemens Med. Sys., 945 F.Supp. at 1433-35 (rejecting Golman's holding, though not in the context of comparative fault, that partial summary judgments are not sufficiently "final" to give them preclusive effect). Thus, the Court finds that the district court did not err in adopting the holding from Golman in this case and allowing evidence of Hudspeth's negligence to be admitted in Mr. and Mrs. McDonald's case against Petree.2

2
C. Plaintiffs-Appellants' Motion for New Trial

3
Mr. and Mrs. McDonald next argue that the district court abused its discretion in denying their motion for new trial. They argue that the only medical evidence presented was that of their expert, Dr. Geissler, and that the jury verdict was against the clear weight of the evidence. The district court denied Mr. and Mrs. McDonald's motion noting that although "no party seriously contends that Petree was not negligent in causing the accident," the jury did not have to accept Dr. Geissler's opinion and could have reasonably concluded that legal cause was lacking. (Order Den. Mot. for New Trial at 5-6, JA at 216-17.) This Court agrees.

4
Dr. Geissler testified that at least some of Mrs. McDonald's injuries were secondary to the accident. On the other hand, Dr. Geissler noted "significant arthritic changes" in Mrs. McDonald's knees that were unrelated to the accident. Furthermore, despite Mrs. McDonald's candor regarding several former and unrelated surgeries and conditions, Mrs. McDonald neglected to inform Dr. Geissler of her former knee surgery. The jury answered "No" to the two-part question of (1) whether Petree was negligent and (2) whether Petree's negligence legally caused Mrs. McDonald's injuries. Despite the overwhelming evidence of Petree's negligence, the jurors could answer "No" to this two-part question even if they believed that Petree was negligent but did not believe that Petree was the legal cause of Mrs. McDonald's injuries.

5
Dr. Geissler's expert opinion is not conclusive on the issue of causation, and the jury did not have to accept it as true. See Davis v. Combustion Eng'g, Inc., 742 F.2d 916, 920 (6th Cir.1984). Moreover, "[w]itness credibility is solely within the jury's province, and this court may not remake credibility determinations." L.E. Cooke, 991 F.2d at 343. Hudspeth testified that she did not recall Mrs. McDonald's knees hitting the dashboard and that Mrs. McDonald did not complain of pain in her knees on the evening of the accident or the following day. In light of this and because Dr. Geissler was unaware of Mrs. McDonald's prior surgery, the jury could have reasonably believed that Mrs. McDonald's injuries did not result from the automobile accident. Accordingly, the district court did not make a "clear error of judgment" in concluding that the jury verdict was not against the clear weight of the evidence, Logan, 865 F.2d at 790, and, therefore, did not abuse its discretion in denying Mr. and Mrs. McDonald's motion for new trial.

D. Defendants-Appellees' Motions for Costs

6
Fed.R.Civ.P. 54(d)(1) provides, "Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." This Rule raises "a presumption in favor of awarding costs, but allows denial of costs at the discretion of the trial court." White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir.1986). The Sixth Circuit has identified several factors that district courts should ignore in their determination of whether to award costs in a particular matter including (1) "the size of a successful litigant's recovery" and (2) "the ability of the prevailing party to pay his or her costs." Id. Moreover, some factors that a court may consider but that, in the absence of other factors, "do not warrant an exercise of discretion under Rule 54(d)" are "the good faith a losing party demonstrates in filing, prosecuting or defending an action" and the "propriety with which the losing party conducts the litigation." Id.

7
Although the fact that a particular case is "close and difficult" may serve as grounds for denying a motion for costs, a district court does not abuse its discretion merely because it awards costs in a "close and difficult" case. Id. (quoting United States Plywood Corp. v. Gen. Plywood Corp., 370 F.2d 500, 508 (6th Cir.1966)). Contrary to Mr. and Mrs. McDonald's assertion, the issues surrounding the grant of summary judgment to Hudspeth as well as the question of whether evidence of Hudspeth's negligence could be presented to the jury are insufficient to render this a "close and difficult case." Furthermore, the mere fact that Mr. and Mrs. McDonald acted in good faith and with propriety, standing alone, is insufficient to overcome the presumption of Fed.R.Civ.P. 54(d). Thus, the district court did not abuse its discretion in awarding costs to Petree and Hudspeth.

CONCLUSION

8
For the foregoing reasons, we AFFIRM the district court's grant of summary judgment in favor of Hudspeth, admission of evidence of Hudspeth's negligence in Petree's trial, denial of Mr. and Mrs. McDonald's motion for new trial, and grant of both Hudspeth's and Petree's motions for costs.

Notes:

*
 The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation

1
 With respect to Mr. and Mrs. McDonald's claims against Hudspeth, their amended complaint stated only that "if defendant Petree can prove that defendant Hudspeth was negligent and that her negligence proximately caused the injuries alleged in the complaint, defendant Hudspeth is liable to plaintiffs under the doctrine of comparative fault." (Pls.' Am. Compl. at 3, JA at 19.)

2
 If Tennessee comparative fault law urged a contrary result, that factor might weigh against followingGolman; however, Tennessee law has not spoken to this issue. Golman analyzed whether a defendant may introduce evidence of the negligence of a dismissed defendant, in light of the doctrines of collateral estoppel and the law of the case. Summary judgment in favor of a defendant, Golman reasoned, is not a final judgment; therefore, after a court finds that a plaintiff has not created genuine fact questions as to the defendant's fault, collateral estoppel does not bind the court to adhere to the conclusion that the defendant is faultless when, at a later stage in the litigation, a co-defendant seeks to avoid liability by proving the dismissed defendant's negligence. 700 F.2d at 253. The Golman court also concluded, without explanation, that the law of the case doctrine did not require the district court to adhere to its conclusion at the summary judgment stage that the dismissed defendant did not act negligently. Id. Under Erie, when a federal court sits in diversity, federal law applies to the application of preclusion doctrines. See Aerojet-General Corp. v. Askew, 511 F.2d 710, 716 (5th Cir.1975). Similarly, application of the law of the case is procedural.
Arguably, however, because the district court's summary judgment decision was related to Petree's ability to prove that she was not the sole party at fault and Mr. and Mrs. McDonald's ability to prove Petree's negligence, the question could be viewed as a substantive state-law comparative fault issue. Cf. Terrell v. DeConna, 877 F.2d 1267, 1272 (5th Cir.1989)(noting suggestion that, where state issue preclusion rules reflected substantive policy concerns regarding the relationship between spouses' personal injury claims, the application of federal preclusion rules "may have to be tempered by a sensitivity to [state] substantive policy concerns"). However, no Tennessee comparative fault case directly addresses the factual situation here. The closest related case is distinguishable because it involved a failure to object to jury instructions. See Ashe v. McDonald, No. E2000-03151-COA-R3-CV, 2002 WL 597315 (Tenn.Ct.App. Apr.18, 2002)(holding, in a malpractice case against a doctor and the state of Tennessee, that the doctor could not on appeal claim error in jury instructions that precluded a finding of negligence on the part of the state, when he had neither argued that the state was negligent nor contested the jury instructions at trial). Therefore, substantive state-law concerns do not weigh against applying Golman.


                                                                          Digitally signed by
                                                                          Reporter of Decisions
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                        Illinois Official Reports                         accuracy and
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                                                                          document
                                Appellate Court                           Date: 2018.04.26
                                                                          13:10:08 -05'00'

                    People v. Perry, 2017 IL App (1st) 150587

Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            CORDELL PERRY, Defendant-Appellant.

District & No.     First District, Fourth Division
                   Docket No. 1-15-0587

Filed              December 21, 2017
Rehearing denied   February 1, 2018

Decision Under     Appeal from the Circuit Court of Cook County, No. 05-CR-11283; the
Review             Hon. Charles P. Burns, Judge, presiding.

Judgment           Reversed and remanded.

Counsel on         Michael J. Pelletier, Thomas A. Lilien, and Elena B. Penick, of State
Appeal             Appellate Defender’s Office, of Elgin for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Annette Collins, and Tasha-Marie Kelly, Assistant State’s Attorneys,
                   of counsel), for the People.

Panel              JUSTICE McBRIDE delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Burke and Justice Gordon concurred in the judgment
                   and opinion.
                                            OPINION

¶1       Defendant Cordell Perry appeals the trial court’s second stage dismissal of his successive
     petition for postconviction relief, arguing that his postconviction counsel rendered
     unreasonable assistance by withdrawing a supporting affidavit and tacitly agreeing to
     dismissal of his petition and that the $105 costs assessment must be vacated.
¶2       Following a jury trial, defendant was convicted of first degree murder in connection with
     the shooting of the victim, Denzel Calhoun, on April 1, 2005, at Magnum Motors at Cicero
     and Wabansia Avenues in Chicago. Defendant was sentenced to a term of 65 years in prison,
     which included a mandatory enhancement for discharging a firearm.
¶3       At trial, Latavia Hayden testified that on April 1, 2005, she was with her boyfriend,
     Calhoun, at Magnum Motors because Calhoun was selling his car and buying a new one.
     While Calhoun filled out paperwork, Hayden stepped onto the balcony to smoke a cigarette
     and noticed defendant standing on the corner. Hayden and Calhoun left the office to transfer
     Calhoun’s belongings from his old car to his new one. As Calhoun walked between two
     SUVs, shots were fired, and Calhoun fell to the ground. Defendant stood in one spot as he
     fired one shot to Calhoun’s head and three or four shots at Calhoun’s body.
¶4       Hayden identified defendant as the shooter by his nickname, Bushwick, to police that
     afternoon. She subsequently identified defendant in a photo array, a lineup, and in court.
     Hayden admitted that she told her friend, Keisha Reese, that she did not see the shooter’s
     face. Hayden testified that she said that to Reese because Reese would discuss their
     conversation with other people. Hayden also testified that she knew a man named Vernon
     Holman from the neighborhood, but she denied seeing him at the car lot. The trial court
     sustained the State’s objection to questions regarding any prior relationship Hayden may
     have had with Holman.
¶5       Holman testified that he knew Hayden and defendant and that he sold drugs near
     Magnum Motors. On April 1, 2005, while cutting through the car lot, he saw Hayden talking
     to a man who looked like Calhoun, whom he had not met. As Holman passed by, he noticed
     defendant, who was wearing a coat and a black hoodie, standing alone between two vans on
     the lot. As Holman walked toward Wabansia Avenue, he heard three or four shots, at which
     point he ran home. Holman had two prior felony convictions for murder and possession of a
     controlled substance with intent to deliver. On April 2, 2005, Holman was arrested on a drug
     charge and initially denied knowing about the Calhoun shooting. Holman gave information
     to the police about the shooting several days later. Holman also had a pending misdemeanor
     charge. He testified that the State had not promised him anything for his testimony. An
     assistant public defender testified that on May 11, 2007, Holman told her that he had not seen
     defendant in the car lot on April 1, 2005, and was afraid of being charged with perjury.
¶6       Boykin Gradford testified that he and his wife were driving on Cicero Avenue when he
     heard shots. Gradford saw a short, stocky African-American man wearing a black hoodie and
     a white “do-rag” standing behind an SUV on the lot, with his arm outstretched and a gun in
     his hand. Gradford also saw the victim standing between two parked cars, approximately
     three to four feet away from the shooter. He saw the victim fall to the ground and did not
     recall any shots fired thereafter. On April 7, 2005, Gradford viewed a lineup and thought
     defendant looked like the shooter but was not 100% certain. The viewing was recorded by
     police as a “negative lineup.” Officer Robert Bullock testified that his case report did not

                                               -2-
       reflect Gradford saying he saw a man with a gun. Detective Stanley Colon testified that when
       he interviewed Gradford on April 1, 2005, Gradford did not mention seeing a gun fired or
       someone running with a gun.
¶7         After police arrested defendant on April 6, Detective Michael Barz interviewed him.
       Detective Barz testified that defendant admitted he was at the scene of the shooting, but he
       denied seeing who fired the shots. Defendant further stated that he recognized Calhoun as the
       man who killed his friend, Anderson Thomas, also known as “Shug.” Defendant had a tattoo
       on his arm that read “RIP Shug.”
¶8         A certified copy of Calhoun’s 1993 murder conviction was entered into evidence.
¶9         The jury found defendant guilty of first degree murder, and the court sentenced him to 65
       years in prison. On direct appeal, defendant argued that the trial court excessively restricted
       his attempts to cross-examine the State’s witnesses and present a theory of defense, the trial
       court erred in refusing defense counsel’s request for a jury instruction on the meaning of the
       reasonable doubt standard, and the trial court erred in refusing defense counsel’s request for
       the jury to be given an addict instruction regarding Holman. This court affirmed defendant’s
       conviction and sentence on direct appeal. People v. Perry, No. 1-07-2761 (2009)
       (unpublished order under Illinois Supreme Court Rule 23).
¶ 10       In July 2010, defendant filed his pro se postconviction petition, raising several allegations
       of ineffective assistance of trial counsel. Specifically, the petition alleged (1) the failure to
       investigate and call several witnesses, including forensic witnesses, witnesses who would
       have testified that Hayden had been romantically involved with defendant’s brother, which
       ended when defendant exposed Hayden’s infidelity, and that Hayden was romantically
       involved with Holman at the time of Calhoun’s murder, and a witness who witnessed
       Holman admit to committing the murder; (2) trial counsel refused to allow defendant to
       testify at trial and coerced him to waive his right to testify; (3) trial counsel presented a
       defense theory he knew to be false; and (4) cumulative error based on these allegations.
       Defendant attached four affidavits, one from himself and three from potential witnesses, but
       none were notarized. The trial court summarily dismissed defendant’s petition in September
       2010. Defendant appealed, and this court affirmed the dismissal. People v. Perry, 2012 IL
       App (1st) 103225-U.
¶ 11       In April 2013, defendant filed his pro se successive postconviction petition asserting a
       claim of actual innocence. In support of his petition, defendant attached an affidavit
       purportedly from Hayden. In the affidavit, Hayden averred that she did not see who shot
       Calhoun. She identified defendant “after pressure” from the police and the assistant State’s
       Attorney (ASA). She was given defendant’s name from detectives. Hayden stated that prior
       to defendant’s trial, she was advised by the ASA with the details of her testimony, including
       that she was not forced to identify defendant. She further averred that she was now willing to
       testify that she did not see defendant shoot Calhoun and she did not see who killed Calhoun.
       She “falsely testified and identified [defendant] at his trial, because [she] had already lied in
       [her] statement and [she] feared prosecution.” She stated that she was not forced or induced
       to give this statement. The affidavit was signed and notarized and included a photocopy of
       Hayden’s state identification card.
¶ 12       In June 2013, the trial court docketed defendant’s successive petition. The public
       defender was appointed to represent defendant. In March 2014, defendant’s public defender
       filed her Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) certificate, stating that she

                                                   -3-
       had spoken with defendant, had examined the proceedings and trial record, and had not
       amended defendant’s petition. In June 2014, at a status hearing, the prosecutor stated that she
       had conducted an investigation and had related the results of the investigation to defendant’s
       postconviction counsel to review. In August 2014, postconviction counsel answered ready
       for a third stage hearing and asked for a status date to set the hearing.
¶ 13       In September 2014, the State filed its answer to defendant’s postconviction petition. In its
       answer, the State agreed that defendant had “met the burden required to proceed to a stage
       three post conviction hearing.” Also in September 2014, postconviction counsel filed a
       motion to disqualify the assigned ASA. The motion asserted that counsel received a written
       investigative report prepared by an ASA investigator. The written report noted that Hayden
       stated in an interview with the ASA that Hayden did not sign the affidavit and her
       identification had been stolen. The ASA also gave counsel a DVD of an interview with
       Hayden and the ASA recorded in June 2014. On information and belief, the video was
       recorded by the ASA investigator. Hayden stated in the video interview that her identification
       was lost. Counsel stated that based on the investigation, the ASA’s testimony for
       impeachment purposes “may be vital,” and the ASA was potential witness at the evidentiary
       hearing. The trial court denied counsel’s motion following a hearing.
¶ 14       In October 2014, the parties appeared for the evidentiary hearing. Counsel waived
       defendant’s appearance and asked for a date. She stated that she “may have made some
       mistakes that [would] cause this to come back on a remand, so I’m asking for date.” When
       asked by the trial court what she meant, counsel responded, “It means that I need to, I talked
       to my supervisor on the phone and he raised some issues, so I don’t want to go through the
       evidentiary hearing an[d] have it come back on appeal.”
¶ 15       In December 2014, counsel filed a motion to withdraw Hayden’s affidavit “after much
       investigation” and to substitute an affidavit from defendant. Defendant’s affidavit simply
       stated his date of birth, current address in prison, a statement that “I am innocent of all
       charges and I still maintain my innocence,” and that this affidavit was attached to and
       incorporated by reference to his postconviction petition.
¶ 16       At the hearing on the motion, the ASA asserted that defendant’s affidavit cannot meet the
       burden to set forth actual innocence and orally moved to dismiss defendant’s petition.
       Postconviction counsel responded that she would waive notice and had no argument. The
       court stated it needed to take the matter under advisement because the court had not had a
       situation like this before and wanted to look into it.
¶ 17       At a status hearing in January 2015, postconviction counsel informed the trial court that
       she needed to file an amended Rule 651(c) certificate. She stated that she had received a
       letter from defendant. She said that defendant was “under the misapprehension of—regarding
       me withdrawing the affidavit. My position still stands. I’m just asking, so this doesn’t come
       back on an ineffective assistance of counsel.” The amended Rule 651(c) certificate stated:
                    “I have consulted with Petitioner, Cordell Perry, by phone, mail, electronic mean
                or in person to ascertain his contentions of deprivation of constitutional rights; I have
                examined the record of the proceedings at the trial, Petitioner’s post-conviction
                claims and investigated the Affidavit attached to the pro se Petition; I have attached a
                new Affidavit to the pro se Petition but I have made no amendment to the pro se
                Petition previously filed, as the pro se Petition is sufficient for the adequate
                presentation of Petitioner’s contentions.”

                                                   -4-
¶ 18        At the next status hearing in January 2015, postconviction counsel informed the trial
       court as follows.
                “The reason the case passed the first stage was due to the affidavit. And the affidavit,
                according to my own investigations, and with the State’s investigations, as an officer
                of the Court, I cannot proceed with the affidavit.”
       Counsel indicated that defendant “does not agree” with her, but “as an officer of the Court, I
       stand by my decision.” The trial court subsequently issued a written order dismissing
       defendant’s postconviction petition because the petition with defendant’s “self-serving
       affidavit” was “frivolous and completely without merit.” The court then assessed $105 in
       filing fees, $90 for filing the petition, and $15 for mailing fees.
¶ 19        This appeal followed.
¶ 20        On appeal, defendant argues that his postconviction counsel rendered unreasonable
       assistance by withdrawing the affidavit purportedly by Hayden over defendant’s objection
       and tacitly agreeing to the dismissal of his petition.
¶ 21        The Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to 122-8
       (West 2012)) provides a tool by which those under criminal sentence in this state can assert
       that their convictions were the result of a substantial denial of their rights under the United
       States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2012);
       People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to
       constitutional deprivations that occurred at the original trial. Coleman, 183 Ill. 2d at 380. “A
       proceeding brought under the [Post-Conviction Act] is not an appeal of a defendant’s
       underlying judgment. Rather, it is a collateral attack on the judgment.” People v. Evans, 186
       Ill. 2d 83, 89 (1999).
¶ 22        At the first stage, the circuit court must independently review the postconviction petition
       within 90 days of its filing and determine whether “the petition is frivolous or is patently
       without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). If the circuit court does not dismiss
       the postconviction petition as frivolous or patently without merit, then the petition advances
       to the second stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS
       5/122-4 (West 2012)), and the State is allowed to file responsive pleadings (725 ILCS
       5/122-5 (West 2012)). At this stage, the circuit court must determine whether the petition and
       any accompanying documentation make a substantial showing of a constitutional violation.
       See Coleman, 183 Ill. 2d at 381. If no such showing is made, the petition is dismissed. “At
       the second stage of proceedings, all well-pleaded facts that are not positively rebutted by the
       trial record are to be taken as true, and, in the event the circuit court dismisses the petition at
       that stage, we generally review the circuit court’s decision using a de novo standard.” People
       v. Pendleton, 223 Ill. 2d 458, 473 (2006). If, however, a substantial showing of a
       constitutional violation is set forth, then the petition is advanced to the third stage, where the
       circuit court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2012). “Only those
       claims in which a substantial showing has been made entitle the defendant to an evidentiary
       hearing.” People v. Cleveland, 2012 IL App (1st) 101631, ¶ 55 (citing People v. Lara, 317 Ill.
       App. 3d 905, 908 (2000)).
¶ 23        However, the Post-Conviction Act only contemplates the filing of one postconviction
       petition with limited exceptions. 725 ILCS 5/122-1(f) (West 2012); see also People v.
       Pitsonbarger, 205 Ill. 2d 444, 456 (2002). The supreme court has recognized two bases upon
       which the bar against successive proceedings will be relaxed. People v. Edwards, 2012 IL

                                                    -5-
       111711, ¶ 22. First, under section 122-1(f), a defendant must satisfy the cause and prejudice
       test for failure to raise the claim earlier in order to be granted leave to file a successive
       postconviction petition. 725 ILCS 5/122-1(f) (West 2012). The second basis to relax the bar
       against a successive postconviction is “what is known as the ‘fundamental miscarriage of
       justice’ exception.” Edwards, 2012 IL 111711, ¶ 23. “The United States Supreme Court has
       stated that the exception serves as an additional safeguard against compelling an innocent
       man to suffer an unconstitutional loss of liberty [citation], guaranteeing that the ends of
       justice will be served in full.” (Internal quotation marks omitted.) Id. (quoting People v.
       Szabo, 186 Ill. 2d 19, 43 (1998) (Freeman, C.J., specially concurring, joined by Heiple, J.),
       quoting McCleskey v. Zant, 499 U.S. 467, 495 (1991)).
¶ 24       “In order to demonstrate a miscarriage of justice to excuse the application of the
       procedural bar, a petitioner must show actual innocence.” Id. With respect to those seeking to
       relax the bar against successive postconviction petitions on the basis of actual innocence, the
       supreme court has held that “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.” Id. ¶ 24.
       “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.’ ” Id. (quoting Schlup v. Delo,
       513 U.S. 298, 327 (1995)). “The elements of a claim of actual innocence are that the
       evidence in support of the claim must be ‘newly discovered’; material and not merely
       cumulative; and of such conclusive character that it would probably change the result on
       retrial.” Id. ¶ 32 (citing People v. Ortiz, 235 Ill. 2d 319, 333 (2009)).
¶ 25       The issue before us on appeal does not involve a consideration of the merits of
       defendant’s petition, but rather a review of whether defendant received a reasonable level of
       assistance as he was entitled during the postconviction proceedings.
¶ 26       Defendant in postconviction proceedings is only entitled to a “reasonable” level of
       assistance, which is lower than the standard given under federal or state constitutions.
       Pendleton, 223 Ill. 2d at 472. “Counsel’s duties, pursuant to Rule 651(c), include
       consultation with the defendant to ascertain his contentions of deprivation of constitutional
       right, examination of the record of the proceedings at the trial, and amendment of the
       petition, if necessary, to ensure that defendant’s contentions are adequately presented.” Id.;
       see also Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984). Under Rule 651(c), postconviction counsel is
       required “to examine as much of the record ‘as is necessary to adequately present and
       support those constitutional claims raised by the petitioner.’ ” Pendleton, 223 Ill. 2d at
       475-76 (quoting People v. Davis, 156 Ill. 2d 149, 164 (1993)). Postconviction counsel may
       conduct a more thorough examination of the record and raise additional claims, but he or she
       is under no obligation to do so. Id. at 476. Postconviction counsel is not required to advance
       frivolous or spurious claims and “ ‘is only required to investigate and properly present the
       petitioner’s claims.’ ” (Emphasis in original.) Id. at 475 (quoting Davis, 156 Ill. 2d at 164).
       “[E]thical obligations prohibit counsel from doing so if the claims are frivolous or spurious.”
       People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008) (citing People v. Greer, 212 Ill. 2d 192,
       205 (2004)). “The question remains what should counsel do if counsel investigates the claims
       but finds them without merit.” Id. Illinois case law provides options: (1) “stand on the
       allegations in the pro se petition and inform the court of the reason the petition was not

                                                  -6-
       amended” or (2) withdraw as counsel. Id. “In both of these scenarios, the allegations in the
       pro se petition remained to proceed according to the parameters of the Act.” Id.
¶ 27        We find the supreme court’s discussion in People v. Kuehner, 2015 IL 117695,
       describing postconviction counsel’s responsibilities in filing a motion to withdraw, to be
       instructive. When at the second stage of proceedings after the trial court has found that
       petition is not frivolous or without merit, then “appointed counsel’s task is not to second
       guess the trial court’s first-stage finding but rather is to move the process forward by
       cleaning up the defendant’s pro se claims and presenting them to the court for adjudication.”
       Id. ¶ 20. However, the supreme court acknowledged that postconviction counsel may
       discover “something that ethically would prohibit [him or her] from actually presenting the
       defendant’s claims to the court.” Id. ¶ 21. Postconviction counsel “bears the burden of
       demonstrating, with respect to each of the defendant’s pro se claims, why the trial court’s
       initial assessment was incorrect.” Id. The supreme court compared postconviction counsel’s
       motion to withdraw to a motion to reconsider, in that “a motion to withdraw filed subsequent
       to a trial court’s affirmative decision to advance the petition to the second stage does not ask
       the trial court to conduct its first-stage assessment a second time but rather seeks to bring to
       the trial court’s attention information that was not apparent on the face of the pro se petition
       at the time such assessment was made.” Id. Therefore, “where a pro se postconviction
       petition advances to the second stage on the basis of an affirmative judicial determination
       that the petition is neither frivolous nor patently without merit, appointed counsel’s motion to
       withdraw must contain at least some explanation as to why all of the claims set forth in that
       petition are so lacking in legal and factual support as to compel his or her withdrawal from
       the case.” Id. ¶ 27.
¶ 28        In this case, postconviction counsel did not stand on the petition or move to withdraw but
       withdrew a supporting affidavit over defendant’s objection. Defendant argues that counsel’s
       decision to withdraw the affidavit rather than withdraw as counsel deprived him of
       reasonable assistance. In the trial court, defendant’s petition raising a claim of actual
       innocence was advanced to the second stage, and postconviction counsel was appointed to
       represent defendant. Initially, counsel filed a Rule 651(c) certificate indicating that she was
       not amending defendant’s petition as it adequately presented his postconviction claims. The
       State agreed that the petition should be advanced to a third stage evidentiary hearing. Later,
       the State disclosed that its investigation called into question the authenticity of the Hayden
       affidavit attached to defendant’s petition. Hayden was interviewed by an ASA and an
       investigator and stated that she did not sign the affidavit and her identification had been
       stolen. Subsequently, postconviction counsel moved to withdraw Hayden’s affidavit “after
       much investigation” but did not describe her investigation. Counsel then substituted
       defendant’s affidavit in which he simply proclaims his innocence. The State then orally
       moved to dismiss the petition and postconviction counsel waived notice and offered no
       argument. The trial court took the motion under advisement and later dismissed the petition
       as frivolous and without merit because defendant’s affidavit failed to set forth the elements
       necessary to establish a claim of actual innocence. Postconviction counsel also filed an
       amended Rule 651(c) certificate indicating her withdrawal and substitution of affidavits.
       Counsel also stated on the record that defendant did not agree with her actions, but “as an
       officer of the Court, I stand by my decision.”

                                                  -7-
¶ 29       Defendant relies on two decisions to support his claim of unreasonable assistance of
       postconviction counsel. In People v. Shortridge, 2012 IL App (4th) 100663, the defendant
       had plead guilty to one count of criminal drug conspiracy. He subsequently filed a pro se
       postconviction petition arguing ineffective assistance of trial counsel and due process
       violations. He attached his own affidavit, denying his involvement in a drug conspiracy. Id.
       ¶¶ 3-4. Postconviction counsel filed a Rule 651(c) certificate but did not amend the
       defendant’s petition. The State moved to dismiss the defendant’s petition. At a hearing,
       postconviction counsel stated that he was “ ‘going to confess the motion to dismiss.’ ” Id.
       ¶ 6. The court then dismissed the petition. Defendant later filed pro se motions for
       withdrawal of postconviction counsel and to reconsider the dismissal of his petition. The
       court ruled that the withdrawal motion was moot and the motion to reconsider was stricken
       for not being filed by counsel. Id. ¶ 7.
¶ 30       On appeal, the Fourth District held that “[i]f counsel, in fact, found the allegations
       ‘nonmeritorious,’ even with any necessary amendments, then he should have moved to
       withdraw as counsel, not confess the State’s motion to dismiss.” Id. ¶ 14. The court reversed
       the dismissal of the defendant’s petition and ordered for new counsel to be appointed to
       represent the defendant. Id. ¶ 15. “If newly appointed counsel, after complying with the
       mandates of Rule 651, determines that defendant’s petition lacks any meritorious issue, then
       he should move to withdraw as counsel. At that point, the circuit court would need to
       determine whether the record supported counsel’s assertion that the petition was without
       merit.” Id. “Depending on the court’s assessment, defendant could be allowed to proceed
       pro se. In other words, appointed counsel should either represent defendant’s interests in the
       proceedings or move to withdraw.” Id.
¶ 31       In People v. Elken, 2014 IL App (3d) 120580, ¶¶ 19-20, postconviction counsel informed
       the trial court that the defendant’s postconviction petition had no merit by explaining why
       each issue failed, but he did not move to withdraw. In response, the trial court then dismissed
       the defendant’s postconviction petition “ ‘based upon arguments of defense counsel.’ ” Id.
       ¶ 21. The State did not raise its motion to dismiss or make any arguments. Id. The defendant
       filed a motion to reconsider the dismissal of his petition and allowing counsel to withdraw,
       which the trial court denied. Id. ¶¶ 22-23.
¶ 32       On appeal, the Third District noted the “unorthodox procedure” in the trial court and
       observed that postconviction counsel never moved to withdraw and the record does not show
       that the trial court allowed counsel to withdraw, but it did dismiss the petition. Id. ¶ 27. The
       reviewing court reversed the dismissal of the defendant’s postconviction petition, finding the
       reversal was warranted when counsel failed to file a motion to withdraw and instead “simply
       stood up at the hearing and stated that defendant’s contentions had no merit.” Id. ¶ 32. The
       court reasoned:
               “If counsel finds that defendant’s contentions are frivolous or patently without merit
               at the second stage, he cannot in good faith continue, so he must file a motion to
               withdraw. If he files a motion to withdraw, he must give his reasons for doing so. He
               is then, in essence, ‘confessing’ that the defendant has no viable arguments and is, in
               essence, agreeing that the petition should be dismissed. Our point is only that the
               confession is not necessarily wrong, but defendant should be afforded the opportunity
               to prepare for such an attack on his petition and to make any arguments in rebuttal.
               He was denied that opportunity here. The appropriate procedure under these

                                                  -8-
               circumstances would be for appointed counsel to file a motion to withdraw, giving
               defendant notice of the same. This allows defendant to prepare to argue against
               appointed counsel’s motion. It further obviates any opportunity for a defendant to
               argue that he was blindsided by his appointed counsel’s arguments.” Id. ¶ 36.
¶ 33       The State responds that the circumstances present in this case are distinguishable from
       Shortridge and Elken, and are more in line with People v. Malone, 2017 IL App (3d) 140165,
       and People v. Rivera, 2016 IL App (1st) 132573. In Malone, the defendant’s petition
       advanced to the second stage, and counsel was appointed. The State moved to dismiss the
       petition, arguing that none of the issues raised had merit. At the hearing on the motion,
       postconviction counsel stated that he disagreed with the State’s motion and then stood on the
       arguments raised in the petition. Counsel filed a Rule 651(c) certificate and did not amend
       the defendant’s petition. Malone, 2017 IL App (3d) 140165, ¶ 5.
¶ 34       On appeal, the defendant argued that he received unreasonable assistance from his
       postconviction counsel as counsel should have either amended the petition or sought to
       withdraw from representation. Id. ¶ 7. The Third District concluded that once counsel filed a
       compliant Rule 651(c) certificate, the rebuttable presumption arose that counsel provided
       reasonable assistance and the defendant failed to rebut that presumption. Id. ¶ 11. The court
       further found that while the supreme court in Greer, 212 Ill. 2d at 211, allowed
       “postconviction counsel to withdraw when the allegations of the petition are without merit
       and frivolous, it does not compel withdrawal under such circumstances.” (Emphasis in
       original.) Malone, 2017 IL App (3d) 140165, ¶ 12.
¶ 35       In Rivera, the defendant had been convicted of first degree murder as the shooter in a
       gang-related shooting. In his postconviction petition, the defendant raised a claim of actual
       innocence based on an affidavit from his codefendant. Rivera, 2016 IL App (1st) 132573,
       ¶ 1. The codefendant had pleaded guilty to first degree murder under a theory of
       accountability, and in the affidavit, the codefendant stated for the first time that he was the
       shooter in the murder, not the defendant. Id. ¶¶ 6-7. At second stage proceedings,
       postconviction counsel filed a Rule 651(c) certificate and stated that the defendant’s petition
       adequately presented the claims. The State moved to dismiss the petition, asserting that the
       codefendant’s affidavit was unreliable. Id. ¶¶ 8-9. At a hearing, the trial court requested the
       transcript from the codefendant’s guilty plea hearing. During a colloquy on that request,
       postconviction counsel stated, “ ‘It is probably important to see what the factual basis was.’ ”
       Id. ¶ 11-12. At a later court date, the trial court indicated that it had obtained the transcript
       and the factual basis conflicted with the codefendant’s affidavit in support of the defendant’s
       postconviction petition. Postconviction counsel offered no argument. The court then
       dismissed the defendant’s petition. Id. ¶¶ 14-15.
¶ 36       On appeal, the defendant argued that the trial court erred in considering evidence outside
       the record of his case in assessing the credibility of his codefendant’s affidavit at second
       stage and that his postconviction counsel provided unreasonable assistance by effectively
       agreeing that the trial court should consider the transcripts of codefendant’s plea hearing.
       Based on the supreme court’s decision in People v. Sanders, 2016 IL 118123, the reviewing
       court held that the trial court erred in considering evidence outside the record of the
       defendant’s case. Nevertheless, the court affirmed the dismissal after concluding that the
       codefendant’s affidavit was not of such conclusive character that it would probably change to
       result on retrial. Rivera, 2016 IL App (1st) 132573, ¶ 33.

                                                   -9-
¶ 37       Finally, the reviewing court concluded that postconviction counsel’s representation of the
       defendant did not fall below the standard set forth in Rule 651(c). In reaching this
       conclusion, the court distinguished that case from Shortridge, noting that “at no point did
       counsel express the view that defendant’s postconviction claims were without merit, as
       occurred in Shortridge. Instead, counsel told the court he would ‘stand on the pro se petition’
       of defendant.” Id. ¶ 39. Further, “[u]nlike in Shortridge, postconviction counsel’s remark in
       this case that the factual basis for [the codefendant’s] plea was ‘probably important’ did not
       represent a concession of the petition’s merits.” Id.
¶ 38       The State contends that in Rivera the court drew a line in the sand between those actions
       which affirmatively damage a defendant’s claims (Shortridge and Elken) and either passive
       or forfeited actions which, at most, result in a failure to advance a defendant’s specific claim
       (Rivera). The State further asserts that this case falls into the latter category because
       postconviction counsel never indicated that defendant’s claim of actual innocence was
       frivolous or without merit. According to the State, any claim that the withdrawal of the
       Hayden affidavit over defendant’s objection damaged defendant’s claim should be rejected
       because the affidavit had “no evidentiary value” based on the ASA’s and postconviction
       counsel’s investigations. We disagree with the State.
¶ 39       We find the circumstances in this case more analogous to Shortridge and Elken. While
       postconviction counsel did not explicitly “confess” that the petition was frivolous and
       without merit, counsel’s actions fell below a reasonable level of assistance. Here,
       postconviction counsel acted, over defendant’s objection, to withdraw the Hayden affidavit
       from defendant’s petition and substituted defendant’s self-serving affidavit. While the record
       establishes serious questions regarding the reliability of the Hayden affidavit, counsel’s
       actions amounted to an affirmative action that damaged defendant’s claims. Defendant’s
       claim of actual innocence could not stand absent Hayden’s affidavit, as defendant’s bald
       assertion of innocence cannot support a claim of actual innocence. See Edwards, 2012 IL
       111711, ¶ 32. As our analysis illustrates, when confronted with an ethical dilemma, such as
       the authenticity of the Hayden affidavit, counsel has two options: stand on the petition or
       move to withdraw. Counsel in this case took neither option and removed the factual support
       from defendant’s petition and then tacitly agreed with the State’s oral motion to dismiss the
       petition. Defendant was given no opportunity to respond to his counsel’s actions.
       Accordingly, we reverse the dismissal of defendant’s postconviction petition and remand for
       new second stage proceedings on his original pro se successive postconviction petition with
       new counsel appointed to represent defendant. New counsel will have the opportunity to
       review defendant’s petition and the record and either proceed in his or her representation or
       move to withdraw, allowing defendant an opportunity to respond.
¶ 40       Since we have remanded the case for new second stage proceedings, we vacate the
       imposition of the $105 fees and costs assessed against defendant for filing a frivolous
       petition. See 735 ILCS 5/22-105 (West 2012); 705 ILCS 105/27.2a (West 2012). We make
       no finding as to whether the fees may be assessed based on the proceedings on remand.
¶ 41       Based on the foregoing reasons, we reverse the dismissal of defendant’s successive
       postconviction petition and remand for further proceedings in accordance with this decision.

¶ 42      Reversed and remanded.

                                                  - 10 -


577 F.2d 748
Special March 1978 Grand Jury, Matter of
No. 78-1552
United States Court of Appeals, Seventh Circuit
5/22/78

1
N.D.Ill.

AFFIRMED


22 F.3d 1104NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Robert H. LOWE, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 93-3318.
United States Court of Appeals, Federal Circuit.
March 16, 1994.

Before MAYER, MICHEL, and RADER, Circuit Judges.
PER CURIAM.

1
Robert H. Lowe appeals the March 12, 1993, decision of the Merit Systems Protection Board, No. AT1221930236-W-1, which became final on April 16, 1993, in which the board held it did not have jurisdiction over Lowe's appeal because he failed to show that an adverse personnel action occurred in retaliation for a disclosure protected by the Whistleblower Protection Act.  We affirm.

2
The board correctly stated that it had no jurisdiction to review the agency action challenged by Lowe--failure to be promoted--unless Lowe showed that the adverse action was taken in retaliation for whistleblowing as defined at 5 U.S.C. Sec. 2302(b)(8).  The board then considered the only incident of whistleblowing it discerned Lowe had alleged--that he reported an incident of racial discrimination which occurred while he was working for the agency in 1987.  Lowe, however, failed to establish that his report was more than "an individual's complaint about the discriminatory behavior of a particular supervisor."   Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 692 (Fed.Cir.1992).  The board correctly concluded that this disclosure was not a protected whistleblowing activity.

3
Lowe asserts on appeal that the correct facts were not considered, that the board addressed the "wrong case," that he did not seek to appeal the denial of a promotion, and that the case "should be about whistleblowing."   The board's decision was wholly devoted to the issue of whistleblowing, and Lowe offers neither an explanation for his claim that the wrong case and facts were considered nor informs the court of any other alleged protected whistleblowing activity or adverse personnel action.  Therefore, the board's decision was not arbitrary or capricious, was supported by substantial evidence, and was issued in accordance with applicable provisions of the law.  See 5 U.S.C. Sec. 7703(c) (1988).


                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-2106
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Bryan R. Dunn,                          *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: September 16, 2011
                                Filed: October 4, 2011
                                 ___________

Before LOKEN, BYE, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

      Bryan Dunn appeals the sentence the district court1 imposed after revoking his
supervised release. Upon careful review, we reject Dunn’s arguments on appeal, and
we conclude that the revocation sentence of 12 months in prison with 19 months of
supervised release was not unreasonable, see United States v. Perkins, 526 F.3d 1107,
1110-11 (8th Cir. 2008). Accordingly, we affirm the judgment of the district court,
and we grant counsel’s motion to withdraw.

      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.


902 F.2d 1572
Stout (Ray Gene)v.U.S.
NO. 89-1549
United States Court of Appeals,ighth Circuit.
FEB 07, 1990

1
Appeal From:  E.D.Mo.

2
AFFIRMED.