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Docket No. 89458-Agenda 5-September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
ROOSEVELT LUCAS, Appellant.

A jury found defendant, Roosevelt Lucas, guilty of firstdegree murder. The same jury found defendant eligible for deathon the ground that the victim was a correctional officer andconcluded that there were no mitigating factors sufficient topreclude imposition of the death penalty. The trial court sentenceddefendant to death, and this court affirmed defendant's convictionand sentence on direct appeal. See People v. Lucas, 151 Ill. 2d 461(1992). Pursuant to the Illinois Post-Conviction Hearing Act,defendant petitioned the circuit court for post-conviction relief.725 ILCS 5/122-1 et seq. (West 1996). Following a hearing on theState's motion to dismiss, the circuit court dismissed defendant'spetition without an evidentiary hearing. Defendant appeals directlyto this court (134 Ill. 2d R. 651(a)), and we now affirm thejudgment of the circuit court.

BACKGROUND

On September 3, 1987, Robert Taylor, a superintendent at thePontiac Correctional Center, was attacked while he worked in hisoffice and died as a result of multiple stab wounds to his heart andmultiple lacerations to his scalp caused by a blunt instrument. Inour opinion on direct appeal we detailed the evidence presentedagainst defendant at trial. Lucas, 151 Ill. 2d at 468-76. In theinstant appeal, we will only discuss the facts necessary to addressthe claims raised by defendant in his post-conviction petition.

At trial, the State presented several witnesses to prove thatdefendant and another inmate killed Taylor. Two inmates gaveeyewitness testimony at trial. Inmate Lawrence Spillar testifiedthat he was in Taylor's office discussing his assignment to apainting detail when the attack began. Spillar testified that whilehe spoke with Taylor, inmate Ike Easley ran into Taylor's office,jumped onto Taylor's desk and began to hit and stab Taylor in thechest with a knife. Spillar attempted to flee the office, but wasprevented from leaving when he collided with defendant at thedoor. Defendant and Spillar briefly struggled at the door untildefendant pushed Spillar aside; Spillar then observed defendantrush towards Taylor and beat Taylor several times in the head witha pipe. Spillar stood at the door of Taylor's office and watched asdefendant and Easley discarded their weapons and ran. InmateDemetre Brown testified that on the morning of the murder he sawEasley and defendant approach Taylor's office prior to the attack;both wore hats and gloves. Brown testified that he watched Easleyand defendant rush into Taylor's office, and saw Easley stabTaylor repeatedly in the torso while defendant struck himrepeatedly in the head with a metal pipe. After the attack, Brownalso observed Easley and defendant run from the office, discardingtheir weapons as they ran. Defendant cross-examined eacheyewitness regarding their prior convictions and gang affiliations.Spillar was the leader of the Stones, while Brown was a ViceLord, an ally gang of the Stones. Defendant belonged to theStones' and Vice Lords' rival gang, the Black Gangster Disciples(BGD), and conceded his membership in the gang at trial.

Another State witness, Officer Don Lyons, testified thatimmediately after the attack all inmates were secured in their cells.During his patrol of the cell-block one-half hour after the attack,he observed defendant inside his cell, naked waist-up, washing hisarms, torso and hands. Lyons testified that this behavior wasunusual because defendant's cell-block had been given theopportunity to shower earlier that morning. Further, Lyonstestified that unlike other inmates who stood at the front of theircells shouting to one another to learn about the attack, defendantasked no questions and seemed disinterested.

The State argued that Taylor's murder was a retaliation killingby gang members of the BGD for the death of a fellow gangmember, Billy "Zodiac" Jones, three months earlier at Pontiac.The State presented witnesses to show that defendant's affiliationand leadership position within the BGD led to his participation inthe killing. Further, the State offered witnesses to support itstheory that the killing was retaliatory. Deputy Director DonaldLong testified that his investigation confirmed that "the motive, asshown through the investigation, was that the murder of [Taylor]was a direct result of the death of inmate [Jones]." Inmate HarryMartin, a former BGD member, testified about the motive for thekilling and discussed defendant's participation in the killing.Martin first outlined the structure of the BGD and its activities,including extortion, gambling, prostitution, tax fraud, armedrobbery and credit card fraud. Martin testified that he had gainedinformation concerning the BGD's structure and activities becausehe was previously a board member and financial advisor to LarryHoover, the BGD's chairman of the board. He explained, however,that in 1987 he began to cooperate with the Department ofCorrections (DOC) because he learned that BGD gang memberswere planning to assassinate him:

"I was Larry's financial adviser from 1984 until 1987.During that time we established policies for theinstitutions, throughout the state and all the states. One ofthe policies was no heroin inside of the institutions. Noguns, no violence, etcetera, things that would stunt thefinancial growth of the organization. After Larry Hooverleft in February or March [1987], the majority of theboard were disgruntled by the policies that wereestablished when he was there saw me as the steppingstone between what they wanted to do and what wasgoing on at the time, so they put together a conspiracy toassinate [sic] me.

* * *

[The warden told me of the conspiracy to assassinateme.] When he told me this I didn't believe it. I'd been amember of the B.O.S [BGD] all my life. I'd given my lifeto the organization. I was a Board member. I was-it mademe mad, so I wouldn't believe him. *** I went back andtalked to a couple of board members who were my alliesat the time, and they confirmed the conspiracy.

* * *

I had a dilemma. I was in between assasinating [sic]seven members of the board or throwing away thirteenyears of my life. So rather than become what they were, Ithrew away thirteen years and left the institution."

Martin testified that only after he learned of the assassinationplans against him did he begin to cooperate with the DOC. Martinfurther testified that he was introduced to Pontiac BGD memberswhen he was transferred to that facility in 1987. He first met gangmembers in the cafeteria, including the BGD's facility "co-chairman," Corwyn "Ketchup" Brown. Martin testified that duringthis meeting with Ketchup defendant was present, and based upondefendant's conduct he believed defendant was a member of theBGD's security group called the United Front Organization(UFO). Specifically, he stated that he observed defendant"trailing" Ketchup and other board members, and observeddefendant take orders from Ketchup. UFO members wereprotectors and responsible for security, making certain thatmembers had weapons or body guards. Additionally, UFOmembers carried out attacks or murders against other inmates orprison staff. Martin testified that during this same meeting in thecafeteria, Ketchup conveyed the BGD's outrage and hostilitytowards the administration for Jones' death. Specifically, while thedefendant was present, Martin was told by Ketchup that the BGDwanted to "retaliate against the administration." On cross-examination, Martin admitted that his statement that defendantwas a member of the UFO was an assumption based on hisknowledge and experience of the gang structure and defendant'sconduct which fit the stereotypical characteristics of a UFOmember. Defense counsel further cross-examined Martinregarding his motive to testify and asked specifically whetherMartin received anything in exchange for his cooperation. Martintestified that he did not receive immunity for his testimony andwas not offered anything in exchange for his testimony by eitherthe prosecution or the DOC. Martin responded that the only thinghe "received" for his testimony was "solitary confinement, a deadson, and my wife in exile."

Two inmates, Darryl Knighten and Louis Roberson, testifiedfor the defense. Knighten testified that he observed Taylor's bodylying on the ground in front of his office. He then saw an inmatecalled "Iron Man" enter Taylor's office and stand by Taylor'sbody. Knighten testified that he watched Iron Man reach for anobject and eventually return to his cell. Next, Roberson testifiedthat on his way to get a cup of coffee he passed defendant's cell,where he saw defendant sitting. After he returned to his own cell,Roberson testified, he heard noises and stepped outside the cell tosee what was causing the commotion. According to his testimony,he saw Taylor lying on the ground outside his office and, at thesame time, saw defendant standing at the front of his own cell.However, on cross-examination Roberson admitted that he onlysaw defendant standing at the front of his cell after he heard thenoise, and that he did not know if the noise he heard was the attackupon Taylor or instead the guards rushing to Taylor's office afterthe attack.

The jury found defendant guilty of first degree murder and ata subsequent sentencing hearing found defendant eligible for thedeath sentence. After hearing evidence in aggravation andmitigation, the jury concluded there were no mitigating factorssufficient to preclude the death penalty and the trial court imposedthe death penalty. On direct appeal, this court affirmed defendant'sconviction and sentence (Lucas, 151 Ill. 2d at 497-98). We nowconsider the circuit court's dismissal of defendant's post-conviction petition without an evidentiary hearing.

ANALYSIS

The Illinois Post-Conviction Hearing Act (Act) provides aprocedural mechanism by which criminal defendants can assertthat "in the proceedings which resulted in his or her convictionthere was a substantial denial of his rights under the Constitutionof the United States or of the State of Illinois or both." 725 ILCS5/122-1(a) (West 1996). The purpose of the post-convictionproceeding is to permit inquiry into constitutional issues involvedin the original conviction and sentence that were not, nor couldhave been, adjudicated previously on direct appeal. People v.Morgan, 187 Ill. 2d 500, 528 (1999). Therefore, a post-convictionpetition is a collateral proceeding and does not relitigate adefendant's innocence or guilt. People v. Evans, 186 Ill. 2d 83, 89(1999). Any issues considered by the court on direct appeal arebarred by the doctrine of res judicata, and issues which could havebeen raised on direct appeal are deemed waived. People v. West,187 Ill. 2d 418, 425 (1999).

A defendant is not entitled to an evidentiary hearing on hisclaims as a matter of right. Rather, a defendant is only entitled toan evidentiary hearing where the allegations contained in thepetition, supported by the trial record and any accompanyingaffidavits, make a substantial showing of a constitutionalviolation. People v. Orange, 195 Ill. 2d 437, 448 (2001). A trialcourt must examine the legal sufficiency of the defendant'sallegations taking all well-pleaded facts as true. People v. Towns,182 Ill. 2d 491, 503 (1998). A trial court's ruling on thesufficiency of defendant's allegations is a legal determination and,therefore, we review de novo a trial court's decision to dismiss thepetition without an evidentiary hearing. People v. Coleman, 183Ill. 2d 366, 388 (1998). Defendant raises three claims for ourreview.

I. Ineffective Assistance of Counsel-Mitigation

Defendant first alleges that his trial counsel was ineffectivebecause he failed to investigate and call numerous witnesses inmitigation. An appellate issue is moot when it is abstract orpresents no controversy. People v. Blaylock, 202 Ill. 2d 319(2002). An issue can become moot if circumstances change duringthe pendency of an appeal that prevent the reviewing court frombeing able to render effectual relief. People v. Jackson, 199 Ill. 2d286, 294 (2002). We observe that subsequent to the filing of hisappeal, the Governor commuted his death sentence to natural lifeimprisonment without the possibility of parole or mandatorysupervised release. Commutation removes the judicially imposedsentence and replaces it with a lesser, executively imposedsentence. People ex rel. Johnson v. Murphy, 257 Ill. 564, 566(1913); Black's Law Dictionary 274 (7th ed. 1999). Thus, thecommutation has rendered this issue moot. See, e.g., Lewis v.Commonwealth, 218 Va. 31, 38, 235 S.E.2d 320, 325 (1977); Statev. Mitchell, 239 Or. 87, 88, 396 P.2d 572, 573 (1964). We,therefore, address only the viable, nonsentencing issues.

II. State Witness Harry Martin-Brady Violation

Defendant claims that his constitutional right to due processof law was violated at his trial when the State allowed its witness,Martin, to proffer perjured testimony. In his petition, defendantrequests we grant him an evidentiary hearing on this claim. Attrial, Martin testified that he had no cooperation agreement withthe State in exchange for his testimony. Defendant contradicts thisassertion with Martin's affidavit, dated September 5, 1997. In theaffidavit, originally filed in the case against defendant'scodefendant, Martin explains that he was compensated by theState for his cooperation in Taylor's murder investigation:

"A day or two after I arrived at Pontiac, my wife visitedme and told me that the word 'in the street' was that theBGDs were planning to assassinate me in prison. Aftervisiting me, my wife went to Warden James Chrans'office and told him the same thing. Chrans called me intohis office that evening and said that he was not going tohave me killed on his watch. He then transferred me toLogan Correctional Center. All of this happened withinthree days of my being sent to Pontiac.

*** Within a day or two after the murder of RobertTaylor on September 3, 1987, Russ Nelson [aninvestigator for the DOC] telephoned me at Logan. I tookthe call in an office there. Nelson asked me to help in theirinvestigation of the murder. I refused.

*** The very next morning Warden Chrans telephonedme-I was again brought to an office to take the call-andreminded me that he had saved my life by sending me toLogan and I owed him a favor. I said I would listen towhat the State had to say.

*** The next day, Gerald Long, a Deputy Director ofDOC, and Jerry Donovan, a DOC investigator, came toLogan to see me. They said they needed my help ***.

*** At that same meeting, which took place at an officeat Logan within a week of Taylor's murder, we ironed outa deal, whereby Long and Donovan promised me thefollowing benefits in return for my cooperation:

a. they would immediately move my wife and threechildren downstate so that they could be near me.

b. I would be allowed to make 'home visits' orfurloughs, beginning immediately. Home visitsconsisted of leaving Logan once or twice a week to visitmy wife and children. During these day and night visits,I was free to do whatever I wanted to do and gowherever I wanted to go.

c. I would get paid generously. They stressed thatthere was lots of different ways of paying me, includingcash, commissary goods, witness funds, federal moneyand 'O.A.F.' funds (they did not say what that stoodfor).

d. All of the state officials with whom I cooperated,including Long, Donovan, McKinney, and LivingstonCounty State's Attorney's lawyers Bernardi, Brown,and Wasson, would vouch for me in court or throughclemency petitions to get me released fromincarceration once the investigation and trials werecompleted. (At the time of this meeting, I had servedabout six years of two sentences totaling 45 years-10from a Cook County conviction and 35 from a Du PageCounty conviction).

e. Long and Donovan said that the DOC Directorwould bring a clemency petition to the Governor to signto make sure I was released, if the courts did notcommute my sentences. (In fact, in October of 1990,Deputy Director Klemm took a clemency petition to theGovernor, but I was out by the time the petition wasdecided.)

*** This 'deal' was set out on that first day I met withLong and Donovan at Logan. In subsequent meetings,details were ironed out, such as where the money wouldcome from. (For example, Long gave me a DOC phonecard number issued to Stu Erickson, by DOC, inSeptember, 1987.) But the basic outline as set forth abovewas laid out before [September 17, 1987] ***."

Additionally, defendant attaches the following exhibits to his post-conviction petition: a transcript of hearings held before theHonorable James F. Holderman of the United States District Courtfor the Northern District of Illinois, wherein Martin testified thathis 1981 Du Page County sentences were reduced from 35 to 21years because of his cooperation with the State; an October 1,1991, order signed by a Du Page County circuit court judgereducing Martin's time from 35 to 21 years, time consideredserved; a transcript of hearings held in the Cook County circuitcourt on February 17, 1994, wherein Martin testified about hiscooperation with the State in order to reduce a 10-year sentencethat was to run consecutively with the 35-year Du Page Countysentence; and statements made by Martin's attorney at theFebruary 17, 1994, hearing providing that Martin's cooperationagreement began with the State in 1987 and that "there was anagreement made if in fact [Martin] continued to cooperate with theProsecuting authorities, we would be able to come before thesentencing Judge and there would be minimal or no opposition torelief requested. In fact, that was accomplished in Du PageCounty." Thus, defendant claims that his right to due process oflaw was violated because this information was not tendered to himbefore his trial, nor did the State correct Martin's testimony at trialthat he had no cooperation agreement.

The State moved to dismiss defendant's petition, and,therefore, we must take as true defendant's allegations that Martintestified falsely about his cooperation agreement, and that the Stateknew that the testimony was perjured. Coleman, 183 Ill. 2d at 390-91 ("By seeking to dismiss the post-conviction petition, the Stateassumed the truth of the factually supported allegations containedin that petition, at least for purposes of the motion. Therefore, theState, as the movant, has eliminated all factual issues from theinquiry"). A conviction obtained through the use of false testimonyimplicates due process concerns and is subject to reversal. Gigliov. United States, 405 U.S. 150, 153-54, 31 L. Ed. 2d 104, 108, 92S. Ct. 763, 766 (1972); Coleman, 183 Ill. 2d at 391. We have heldthat where the State's case includes perjured testimony, and theState knew, a " 'strict standard of materiality' " applies, and acourt of review must overturn the conviction "if there is anyreasonable likelihood that the false testimony could have affectedthe judgment of the jury." Coleman, 183 Ill. 2d at 392, citingUnited States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349-50, 96 S. Ct. 2392, 2397 (1976). "This standard is equivalent tothe harmless error standard ***." Olinger, 176 Ill. 2d at 349, citingPeople v. McNeal, 175 Ill. 2d 335, 354-55 (1997). The strictstandard of materiality applies even if the State did not solicit thefalse testimony, but rather left it to go uncorrected. Olinger, 176Ill. 2d at 345.

Defendant argues that our decisions in Olinger and Steidlwarrant an evidentiary hearing on his claim that, with the State'sknowledge, he was convicted on the basis of false testimony. InOlinger, the defendant was convicted for the murder of threeindividuals. At trial, a State witness testified that he had beengiven immunity against prosecution for a burglary in exchange forhis testimony against the defendant. In his post-convictionpetition, the defendant attached evidence to show that the witnessfalsely testified about other promises made to him in return for histestimony, including a multijurisdictional deal and the dismissalof several other pending charges. We held that the defendant wasentitled to an evidentiary hearing on his claim. Olinger, 176 Ill. 2dat 350-51.

In Steidl, the defendant was convicted for the murder of twoindividuals and subsequently sentenced to death. The State's caseincluded an eyewitness to the murders, who testified at trial that inreturn for her testimony she pled guilty to concealment of ahomicidal death in exchange for a five-year sentence. However,she testified that she did not know of or expect a reward in returnfor her favorable testimony. Attached to the defendant's post-conviction petition was evidence that the witness failed to disclosethat she was to be paid $2,500 in relocation money after the trial.We reversed the dismissal of the defendant's claim and held thatthe State's knowing use of perjured testimony violated thedefendant's right to due process of law. Steidl, 177 Ill. 2d at 261-62.

Defendant argues that, similar to Olinger and Steidl, theState's knowing use of perjured testimony prevented the jury fromassessing the witness' credibility or motive to testify falsely, suchthat he was prejudiced. We disagree that Olinger and Steidlcontrol our decision in the instant matter. In Olinger, werepeatedly observed that the State witness who testified falsely"was critical to the State's case" and offered "[t]he mostsignificant evidence" to connect the defendant to the threemurders. Olinger, 176 Ill. 2d at 338, 350. Specifically, we statedthat the witness' credibility was crucial to the State's case becausehis testimony was the only evidence to connect the murder weaponto the defendant and the only evidence to supply motive. Olinger,176 Ill. 2d at 350. For this reason, the defendant was prejudiced.Furthermore, in Steidl the witness who falsely testified about hercooperation agreement was the State's only direct identificationwitness. Steidl, 177 Ill. 2d at 245-47. In fact, the witnessparticipated in the crime and testified about the intimate details ofthe murder, including defendant's participation during the killing.Steidl, 177 Ill. 2d at 247. Conversely, in the instant case Martin didnot offer direct identification evidence against defendant and didnot connect defendant to the murder weapon. Rather, Martintestified in support of the State's motive theory and notably did notprovide the only evidence of motive. Therefore, in this case, wecannot equate the prejudice caused by the failure to disclose anagreement with a nonoccurrence witness with the prejudice causedby the State's failure to disclose evidence of a cooperationagreement with a direct identification witness. That is, Martin'stestimony, although helpful, was not crucial to the State's case.

Certainly, we do not condone the State's use of perjuredtestimony, and in those cases where it is proven we condemn it.⁽¹⁾The State had an obligation to correct the falsity (Olinger, 176 Ill.2d at 347); however, whether defendant is entitled to anevidentiary hearing on his claim is a separate issue that requires usto consider whether defendant has made a substantial showing ofa due process violation. That is, defendant is only entitled to anevidentiary hearing if there is a substantial showing of areasonable likelihood that the false testimony could have affectedthe judgment of the jury. In this case, because the record containsoverwhelming evidence of guilt, in the form of two eyewitnesseswho offered identification testimony, we find that defendant doesnot make the requisite substantial showing.

Turning to the evidence, the State's case primarily rested uponSpiller's and Brown's direct identification testimony. This directidentification testimony was bolstered by Officer Lyon'sdescription of defendant's conduct following the killing andDeputy Director Long's investigative findings, including hisfinding that the killing was motivated by retaliation. DeputyDirector Long testified that: "The motive, as it was shown throughthe investigation, was that the murder of Superintendent Taylorwas a direct result of the death of inmate Billy Jones."

We also consider Martin's testimony in this case. Martin, amotive witness, established that defendant was a member of theBGD; that defendant was a member of the UFO security faction;and that defendant was a party to a conversation concerning theBGD's intent to retaliate against the administration for Jones'death. This testimony was partially corroborated by defendant,who admitted he was a member of the BGD, and Deputy DirectorLong, who, as noted, testified that the killing was retaliatory.Furthermore, Martin's statement that defendant was a UFOmember, although never corroborated, was weakened by asuccessful cross-examination during which Martin admitted thathe only assumed defendant was a member of the UFO. Thus, theonly uncorroborated aspects of Martin's testimony were hisgeneral descriptions of the gang structure and his placingdefendant within the UFO security faction and at a conversationconcerning the BGD's intent to retaliate.

Importantly, the issue of whether Martin's uncorroboratedtestimony was so crucial to the State's case that defendant wasprejudiced by Martin's false testimony is answered by our decisionon direct appeal. On direct appeal, we first discussed the evidenceunder a harmless error analysis. Lucas, 151 Ill. 2d at 478.Specifically, we examined the admission of a correctional officer'stestimony that after Jones' death BGD members, other than thedefendant, frequently threatened him with physical harm. LikeMartin's testimony, the State presented the correctional officer'stestimony to show evidence of motive. Again, our review ofdefendant's claim in the instant appeal is equivalent to theharmless error standard we applied on direct review. Olinger, 176Ill. 2d at 349. Therefore, our comments on direct appealconcerning the overall evidence of guilt are instructive in thismatter:

"[T]he admission [of Officer's Jarrett's testimony that hewas threatened] did not affect the outcome of the trial, andwe hold that the erroneous admission of the evidence washarmless. *** [The improper testimony] did not go to theheart of the case; *** [the jury] still had to decide whetherdefendant had murdered Taylor. The proof of defendant'sguilt was overwhelming. There was direct identificationof defendant by two eyewitnesses as having seendefendant in Taylor's office and beat him over the headwith a pipe. One defense witness testified that he saw aninmate walking around Taylor's body after he had beenattacked and another testified that he saw defendant in hiscell around the time of the murder, although he did notknow when the attack took place. This evidence canhardly be equated to the testimonies of two witnessespresent when the attack occurred." (Emphasis added.)Lucas, 151 Ill. 2d at 478.

A second time on direct appeal, we examined the balance of theevidence within our discussion of the plain error rule. Lucas, 151Ill. 2d at 482. Specifically, we examined whether the admission ofhearsay evidence introduced to show motive, including Martin'stestimony that he was told the BGD planned to retaliate against theadministration for Jones' death, warranted our review. We heldthat our review was not warranted under the plain error rulebecause the overall evidence was neither closely balanced, nor wasthe error so fundamental as to deny defendant a fair trial. Lucas,151 Ill. 2d at 482. We stated that the evidence in support ofdefendant's conviction included the testimony of twoeyewitnesses, who identified defendant as the individual who beatTaylor over the head with a pipe. Lucas, 151 Ill. 2d at 482. Onceagain we held that the evidence was "direct and overwhelming"and "plainly not closely balanced" such that we refused to considerthe issues found waived under the plain error rule. Lucas, 151 Ill.2d at 482, 484. Further, we stated that the admission of the hearsayevidence did not affect the outcome of the case: "[w]hile evidenceof motive may be helpful to understand the reason why a crimewas committed, it is not essential to conviction. Had this evidencebeen excluded, the evidence in support of defendant's convictionremains." Lucas, 151 Ill. 2d at 482. Accordingly, defendant wasnot denied a fair trial. Lucas, 151 Ill. 2d at 482.

While we considered different issues on direct appeal, ourcharacterization of the evidence in this case does not change.Defendant was convicted on the basis of overwhelmingevidence-the testimony of two eyewitnesses who observeddefendant participate in the killing. These two eyewitnessesconvincingly described the attack in great detail, including themanner of the attack, the weapons used during the attack, and theassailant's clothing. More importantly, the two eyewitnessesidentified defendant as one assailant. We cannot equate Martin'suncorroborated testimony-testimony which did not placedefendant at the scene of the attack or with a weapon-to theeyewitness' testimony. Accordingly, we find that the instant casedoes not present facts which demonstrate that there is a reasonablelikelihood that the false testimony affected the judgment againsthim. Because defendant does not establish materiality, the circuitcourt correctly dismissed defendant's claim without an evidentiaryhearing.

III. Post-Conviction Discovery

Defendant also argues that the circuit court improperlyvacated existing discovery orders and wrongly denied a laterrequest for discovery. Accordingly, defendant asks this court toremand for discovery on his claim that Martin falsely testifiedabout his cooperation agreement and that the State knew histestimony was perjured.

After filing his post-conviction petition, defendant filed amotion for discovery and a motion for subpoenas. In particular,defendant requested information concerning State witness Martin,including Martin's state and federal prison records, all documents,notes, or oral transcripts of agreements between Martin and stateauthorities, and copies of all documents concerning Du PageCounty and federal court cases in which Martin was involved. OnFebruary 2, 1994, the trial judge, Judge Glennon, ordered that theIllinois DOC, the United States DOC, and the Du Page Countycircuit court clerk tender to defense counsel all copies and masterfiles concerning Martin. These files were previously impoundedby the Du Page County circuit court in 1991. Several months later,on June 8, 1994, Judge Glennon ordered both the Du Page Countycourt reporter and the county clerk for the second division totranscribe and tender a complete record of all cases pertaining toMartin for his in camera inspection. On January 29, 1996, JudgeGlennon reviewed portions of the files requested, copied andfurnished the material to the defense.

On November 12, 1998, Judge Glennon, who had presidedover the trial, sentencing, and subsequent post-convictionproceedings, retired. The case was reassigned. Upon reassignment,the new trial judge, Judge Frobish, after reviewing the transcripts,order, and file in the case, vacated all previously ordered discoveryin a written order. The written order concluded that defendantfailed to show good cause for the discovery sought. However, theorder granted defendant five weeks to resubmit "any discoveryrequest to the attention of the court." On December 17, 1998,defendant resubmitted his previous request for the same material,and following oral argument on March 11, 1999, the circuit courtdenied defendant's request for further discovery. In his post-conviction petition, defendant claims that Judge Frobish abusedhis discretion when he sua sponte vacated all previous discoveryorders and denied the later request for discovery.

We have held that the circuit court has inherent authority toorder discovery in the context of post-conviction proceedings.People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 183 (1988). Acircuit court may grant discovery, but only after a hearing for"good cause shown." Daley, 123 Ill. 2d at 183. However, becausethere exists the potential for abuse of the discovery process inpost-conviction proceedings, courts must exercise discretion ingranting discovery requests. Daley, 123 Ill. 2d at 183. In decidingwhether to grant discovery, courts may consider "the scope of thediscovery sought, the length of time between the conviction andthe post-conviction proceeding, the burden [of granting thediscovery] ***, and the availability of the desired evidencethrough other sources." Daley, 123 Ill. 2d at 183-84. A circuitcourt's denial of a discovery request will not be disturbed absentan abuse of this discretion. People v. Fair, 193 Ill. 2d 256, 264-65(2000).

We first turn to Judge Frobish's order vacating existingdiscovery orders upon his assignment to the case. At the time thiscase was reassigned, post-conviction proceedings wereapproaching five years in duration. Judge Frobish examinedtranscripts and prior discovery orders at length before he entereda written order vacating the prior discovery order. The recordshows that Judge Frobish observed that some of the discoverymaterial requested dated back approximately 11 years andincluded voluminous amounts of documents. Quoting JudgeGlennon, Judge Frobish stated in his written order: "The amountof material here will consist of stacks of material, I don't know, 8feet-10 feet high. I am not sure. I mean, it is a tremendous amountof material," and "I reviewed thousands of pages of inmate files,and I mean thousands of pages, over the course of a number ofmonths. *** We were running a copier for days in my officefurnishing material [to defense counsel]." Further quoting JudgeGlennon, Judge Frobish noted Judge Glennon's growing concernswith the scope of discovery:

"I think we are going to need to talk seriously aboutdiscovery at this point. And hear some arguments on whatauthority the defense has for much of their requests fortheir requests for the type of discovery they are seeking.*** And I would express for the record that we seem tohave gone wildly beyond those general ground rules [forpost-conviction discovery]. And I have been doing somethinking about that. And I think we are going to need totalk about that in order to reach some resolution ***.

* * *

*** Well, I think the record in this case is becomingperhaps an example of what post-conviction proceedingsare not intended to do. Part of that has been through myown fault.

* * *

I am not going to extend in this case discovery in myopinion that would take a 'quantum leap' beyond what thelaw allows, or more fundamentally, what I feel isappropriate, fair and just."

After reviewing the record, including Judge Glennon'scomments, and the large scope of discovery requested, JudgeFrobish concluded that defendant did not establish the requisitegood cause for continued post-conviction discovery. It is clear thatJudge Frobish based his order on the appropriate considerationsoutlined in Daley, such as the scope of discovery sought, thecontinued burden of production on the parties, the availability ofthe desired evidence, and the length of time between theconviction and the post-conviction proceeding. Daley, 123 Ill. 2dat 183-84. Accordingly, we find no evidence to suggest JudgeFrobish abused his discretion in his November 12, 1998, writtenorder vacating the existing post-conviction discovery order.

We further reject defendant's claim that Judge Frobish abusedhis discretion by denying defendant's subsequent discoveryrequest. After four years of extensive discovery, Judge Frobishgranted defendant the opportunity to resubmit his discoveryrequests. Defendant filed a request substantially similar to, andequally extensive as, his initial discovery request. Defendantargued that defendant needed "substantial discovery, because thepuzzle pieces *** are spread out over the years throughout thedifferent systems *** [a]nd that with depositions or possibly livewitness testimony, we can make the case that [defendant] wasdeprived of the necessary information that he needed" to castdoubt on Martin's credibility.

On March 11, 1999, at the hearing to show good cause for thediscovery request, defendant explained that he sought theinformation requested in order to amend his petition and statedthat he was "willing to defer [the discovery] request, obviously,until after the petition is filed in its final form and the State hasresponded with a motion to dismiss." The State agreed. The Statefurther argued, however, that it did not possess or have controlover the material requested, that the material requested was toobroad, and that the majority of material sought was not relevant todefendant's claim. The circuit court held that "no discovery isneeded in order to put the defense in a position [to amend thepetition]," and further held that defendant failed to show goodcause because Martin's alleged bias was collateral and added littleadditional value to the trial. Specifically, according to the circuitcourt, whether Martin was truthful about his cooperation was"irrelevant" based on defendant's admission during trial that hewas a member of the BGD, such that Martin's testimony aboutdefendant's gang membership only reaffirmed that fact.

As an initial matter, we note that defendant now argues beforethis court a position opposite of the one that he took before JudgeFrobish. At the hearing on his discovery request, defense counselreadily admitted that he had sufficient information to amend thepetition and was willing to defer the request. Defendant did in factamend his petition. The State filed its motion to dismiss, whichwas ultimately granted, and the discovery request was notrevisited. Nevertheless, we conclude that Judge Frobish did notabuse his discretion in denying defendant's subsequent discoveryrequest. The record shows Judge Frobish considered appropriatefactors, such as the protracted discovery in the case, the widebreadth of material sought in defendant's discovery request, thegreat burden of production on the parties, and the likelyunavailability of the desired evidence a second time. Further, aswe have already held, the evidence against defendant wasoverwhelming and defendant was not prejudiced by Martin's falsetestimony.

CONCLUSION

For the reasons stated, the judgment of the circuit courtdismissing defendant's petition without an evidentiary hearing isaffirmed.

Affirmed.

1. ¹Again, for purposes of this appeal, we only accept as true theallegations that Martin testified falsely and that the State knew that thetestimony was perjured because the State moved to dismiss defendant'spetition. Coleman, 183 Ill. 2d at 390-91.