People v. Ligon

Docket No. 108855.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

__________________

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

DENNIS LIGON, Appellant.

Opinion filed November 18, 2010.

JUSTICE THOMAS delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier,

Burke, and Theis concurred in the judgment and opinion.

OPINION

At issue is whether the federal constitution requires appointment

of counsel for indigent postconviction petitioners at the summary

dismissal stage whenever the appellate court on direct review has

declined to address an ineffective assistance of counsel claim because

the facts needed to adjudicate the claim are dehors the record and thus

cannot be resolved on direct review. For the reasons that follow, we

hold that the constitution does not require the appointment of counsel

in such cases.

Following a jury trial, defendant, Dennis Ligon, was convicted of

aggravated vehicular hijacking (720 ILCS 5/18–4(a)(3) (West 2002)).

The circuit court of Cook County sentenced him to a term of natural

life in prison as a habitual offender. Defendant’s conviction and

sentence were affirmed on direct appeal, but the appellate court

declined to rule on two of his claims regarding ineffectiveness of trial

counsel, finding that those issues could be more appropriately

addressed in a proceeding for postconviction relief. People v. Ligon,

365 Ill. App. 3d 109, 122 (2006) (Ligon I). Defendant subsequently

filed a pro se postconviction petition, but did not raise the two issues

that the appellate court declined to adjudicate. The circuit court

summarily dismissed defendant’s postconviction petition as frivolous

and patently without merit. The appellate court affirmed that

dismissal. 392 Ill. App. 3d 988 (Ligon II). We allowed defendant’s

petition for leave to appeal. 210 Ill. 2d R. 315.

BACKGROUND

Defendant’s trial began on April 2, 2003. Defendant was

represented by assistant public defenders Anthony Thomas and

Camille Calabrese. Just before opening statements on April 2, 2003,

Thomas informed the court that he intended to call the defendant’s

son, Dennis Compton, as a witness, stating that he had interviewed

Compton for the first time the previous day. Thomas further explained

to the court that the name was given to him by the prosecution, which

learned of Compton when interviewing another witness. The

prosecutor did not object to the defense calling Compton, noting that

she also had an opportunity to speak to him the prior day.

In her opening statement, Calabrese told the jury that this would

be a “text book case of misidentification,” stating that defendant’s son,

Dennis Compton, is almost his father’s look-alike and that the jury

would learn that “the actual story behind this case is of a father who

is protecting his son.” She also told the jury that she believed she was

going to be able to produce Dennis Compton, noting that he had been

subpoenaed. She stated that she was confident that after the jury heard

his testimony, it would have a reasonable doubt as to defendant’s

guilt. She concluded that defendant “may be guilty of protecting his

son, but that doesn’t mean he’s guilty of taking this automobile.”

Briefly, the evidence presented by the State at trial included the

testimony of several witnesses. Ana Diaz testified that on December

16, 2000, defendant approached her in broad daylight as she exited

her red Ford pickup truck at a Sears parking lot off of Western

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Avenue in Chicago. Defendant pushed a gun into her ribs and told her

to leave the keys in the ignition and to get out. He then proceeded to

drive away in her truck. On January 3, 2001, the day her truck was

recovered by police and defendant was arrested, she immediately and

unequivocally picked defendant out of a lineup as the man who stole

her truck and held her up at gunpoint. She also identified a BB gun

recovered by police from the truck as the gun used by defendant to

commit the crime.

Three other witnesses that knew defendant testified that they

observed him driving the truck between December 16, 2000, and

January 3, 2001. On the evening of January 2, 2001, defendant drove

Georgio Dawson, a 13-year old boy, and Tenita Barber, a 17-year-old

girl, around in the truck. After dropping Dawson off at an apartment

building where the truck was eventually recovered, defendant drove

Barber around town drinking liquor and smoking marijuana with her.

Defendant told Barber he had just bought the truck. Around 5:10

a.m., on January 3, 2001, the two returned to the place where they

had left Dawson. Defendant honked his horn, but then got out of the

truck when Dawson did not come out. After defendant had walked

away from the truck, Dawson came out and got in the truck. Shortly

thereafter, police arrived and discovered that the truck had been

stolen. They searched it and recovered a BB gun from the driver’s

side. Dawson told police that the man who had been driving the truck

was named “Dennis.” Police then took Dawson to look for the man

who had been driving the truck in question. Dawson pointed

defendant out at an El station about a block and a half from where the

truck had been parked. After verifying from defendant that his first

name was Dennis, police placed him under arrest.

The jury found defendant guilty of aggravated vehicular hijacking.

Following his trial, defendant filed a pro se motion for judgment

notwithstanding the verdict, arguing, among other things, that his trial

counsel was ineffective by confessing defendant’s “guilt in protecting

his son” and then not calling Dennis Compton to testify, thereby

leaving the jury with the impression that defendant must have

committed the crime. The trial court allowed the public defender’s

office to withdraw. The court appointed attorney Stephen Decker as

defendant’s counsel for the posttrial proceedings. After obtaining and

reviewing all of the transcripts of defendant’s trial, Decker filed a

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supplemental motion for a new trial, which incorporated by reference

the claims asserted in defendant’s pro se motion. Decker’s motion

alleged in relevant part that trial counsel’s performance was deficient

in failing to produce Compton or explain his nonappearance after

telling the jury during opening statements that Compton had

committed the crime and had been subpoenaed to testify.

At the hearing on defendant’s posttrial motion, Thomas,

defendant’s trial counsel, testified that prior to trial he developed a

strategy of misidentification because he believed the descriptions of

the hijacker more closely resembled Compton than defendant. During

two interviews with defense counsel, Compton’s account with regard

to the red Ford pickup truck was erratic, contradictory and

inconsistent. At one point during the interviews, when Thomas

pointed out that Compton’s account was inconsistent, Compton asked

Thomas, “What do you want me to say?” This comment caused

Thomas to believe that he would be suborning perjury if he called

Compton to testify. Moreover, on the day that Compton was to

testify, he was arrested in the courthouse for intimidating Dawson.

Thomas was concerned that if Compton should be called, the facts of

the intimidation offense would come out before the jury and harm

defendant’s case. Thomas noted that due to the above-discussed

considerations, the jury would not view Compton as a favorable

witness. Thomas expressed his concerns about Compton to defendant,

but told defendant he would call Compton if defendant wanted.

Defendant agreed that Compton should not be called. Thomas

acknowledged that he did not call Compton to testify, nor did he

display him to the jury.

Compton testified at the hearing that during his interviews with the

public defenders he did not indicate what his testimony would be.

During the hearing, Compton testified that neither he nor defendant

committed the hijacking and that he had not witnessed who did.

Compton admitted that during the trial, he was arrested and eventually

pled guilty to communicating with the witness Dawson.

Defendant testified at the hearing on his posttrial motion that he

did not tell Thomas not to call Compton. According to defendant, on

the morning he was arrested, he was on his way to visit Compton,

who happened to live near where the truck was recovered and who

had knowledge of the truck’s origins.

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The trial court denied defendant’s posttrial motion. At sentencing,

the State presented certified copies of two of defendant’s prior

convictions. The trial court sentenced him to life in prison as a

habitual offender, as it was required to do by statute (720 ILCS

5/33B–1 (West 2002)).

On direct appeal, defendant argued that he was denied the

effective assistance of counsel in three ways: (1) his trial attorneys said

in opening statements that they would produce defendant’s look-alike

son, Dennis Compton, at trial and would show that he lived near

where the truck was recovered, but failed to do so; (2) they failed to

properly investigate the case prior to trial when they did not interview

Compton until after the trial had begun; and (3) they did not have a

reasonable basis to believe that Compton would testify when they

made their opening remarks. The appellate court affirmed defendant’s

conviction. Ligon I, 365 Ill. App. 3d 109. In doing so, it rejected his

first ineffective assistance of counsel claim, which argued that his

attorneys erred in stating during opening statement that they would

produce Compton and then failed to do so, finding that trial counsel’s

decision was a matter of sound strategy. Ligon I, 365 Ill. App. 3d at

121. With respect to the latter two claims, the appellate court found

that they were not raised in defendant’s posttrial motion. Nor was any

evidence related to them elicited during the hearing on the motion.

Ligon I, 365 Ill. App. 3d at 122. The appellate court therefore refused

to adjudicate the two contentions because they involved matters

dehors the record that could be more appropriately addressed in a

proceeding for postconviction relief. Ligon I, 365 Ill. App. 3d at 122.

This court denied defendant’s petition for leave to appeal on

September 27, 2006.

In March 2007, defendant filed a pro se petition for postconviction

relief, but made no mention of any of the claims of ineffective

assistance of counsel litigated during the posttrial hearing or on direct

appeal. Instead, defendant’s petition alleged that the applicable

sentencing statute was unconstitutional and that his attorney on direct

appeal had rendered ineffective assistance by failing to argue the

unconstitutionality of the sentencing statute. The circuit court

summarily dismissed the petition as frivolous and patently without

merit.

On appeal from the summary dismissal of his postconviction

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petition, defendant did not contest the propriety of the circuit court’s

determination that the claims presented in his petition were frivolous

and patently without merit. Rather, defendant argued that, following

the direct appeal, the appellate court should have appointed counsel

to represent defendant for the postconviction proceeding. Defendant

contended that the appellate court’s deferral to postconviction review

of claims that defendant attempted to raise on direct appeal served to

create an unconstitutional “additional barrier to direct review.”

Defendant maintained that the appellate court’s action was similar to

the statutory procedure invalidated by the United States Supreme

Court in Halbert v. Michigan, 545 U.S. 605, 162 L. Ed. 2d 552, 125

S. Ct. 2582 (2005) (invalidated Michigan procedure that made first-

tier appeals from guilty-plea convictions discretionary on application

with the appellate court without requiring appointment of counsel for

indigent pro se applicants), and that for the reasons enunciated in

Halbert he was entitled to the assistance of counsel in presenting the

unadjudicated direct appeal claims in a postconviction proceeding.

The appellate court rejected defendant’s arguments. Ligon II, 392

Ill. App. 3d 988. First, the court found that defendant’s claims of

ineffective assistance of trial counsel could not be considered because

defendant did not include them in the petition; they were therefore

waived, and the appellate court had no authority to excuse the waiver.

Ligon II, 392 Ill. App. 3d at 995, citing People v. Jones, 213 Ill. 2d

498, 505 (2004). Second, the appellate court rejected defendant’s

argument that deferral of the two ineffective assistance of counsel

contentions from direct appeal to postconviction entitled defendant to

the appointment of counsel. The court found that nothing in the

treatment of the case on direct appeal removed it from the ambit of

well-established precedent that has long recognized that “neither

fundamental fairness nor due process considerations require that an

attorney be appointed for postconviction petitioners.” Ligon II, 392

Ill. App. 3d at 996, 1000, citing People v. Jones, 211 Ill. 2d 140, 148

(2004). The appellate court held that Halbert was inapplicable

because “defendant’s position in filing his pro se postconviction

petition seeking collateral and second-tier review of his claims was not

analogous to the defendant in Halbert, who was seeking first-tier

review of his conviction.” Ligon II, 392 Ill. App. 3d at 1000. The

appellate court further determined that defendant was not wholly

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without recourse in his ability to raise his ineffective assistance of trial

claims, however, because he could do so in a successive

postconviction petition if he could meet the strictures of the cause and

prejudice test. Ligon II, 392 Ill. App. 3d 996, quoting People v. Jones,

211 Ill. 2d at 148-49.

ANALYSIS

Before this court, defendant raises the same argument that he

raised below in his appeal from the summary dismissal of his

postconviction petition.

The Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq.

(West 2006)) provides a method by which persons under criminal

sentence can assert that their convictions were the result of a

substantial denial of their rights under the United States or the Illinois

Constitution or both. 725 ILCS 5/122–1 et seq. (West 2006); People

v. Petrenko, 237 Ill. 2d 490, 495-96 (2010). A postconviction

proceeding is civil in nature (People v. Johnson, 191 Ill. 2d 257, 270

(2000)) and is a collateral attack on the prior conviction or sentence

that does not relitigate a defendant’s innocence or guilt (People v.

Evans, 186 Ill. 2d 83, 89 (1999)). Therefore, any issues considered by

the court on direct appeal are barred by the doctrine of res judicata,

and issues which could have been considered on direct appeal are

deemed procedurally defaulted. People v. West, 187 Ill. 2d 418, 425

(1999).

Proceedings under the Act are commenced by the filing of a

petition in the circuit court in which the original proceeding took

place. People v. Jones, 213 Ill. 2d 498, 503 (2004). The Act

contemplates a three-stage process for non-death-penalty cases.

Jones, 213 Ill. 2d at 503. A circuit court may summarily dismiss a

postconviction petition if it determines that the petition is “frivolous

or is patently without merit.” 725 ILCS 5/122–2.1(a)(2) (West 2006).

Moreover, any claim of substantial denial of constitutional rights not

raised in the original or amended petition is deemed waived. 725 ILCS

5/122–3 (West 2006). An indigent pro se defendant is entitled to the

appointment of counsel in a non-death-penalty case only if his petition

survives the summary dismissal stage. 725 ILCS 5/122–2.1(a)(2),

122–4 (West 2006); People v. Porter, 122 Ill. 2d 64, 69-70 (1988).

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But a pro se litigant need only present the gist of a constitutional claim

to survive the summary stage of section 122–2.1. Jones, 213 Ill. 2d at

504. With regard to this requirement, a defendant at the first stage

need only present a limited amount of detail (People v. Hodges, 234

Ill. 2d 1, 9 (2009)), and he need not make legal arguments or cite to

legal authority (People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). This

is a purposely low threshold for survival because most petitions are

drafted at this stage by defendants with little legal knowledge or

training. Hodges, 234 Ill. 2d at 9. The summary dismissal of a

postconviction petition poses a legal question that is subject to de

novo review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

In his brief before this court, defendant initially argues that given

the evidence in the record from the posttrial hearing, the appellate

court on direct appeal in Ligon I could have, and should have, ruled

on all of his ineffective assistance claims. He also asserts that in Ligon

II, the appellate court recognized that its refusal to adjudicate the two

ineffective assistance claims on direct appeal was the result of a

misapprehension of the record, as the court in Ligon I mistakenly

believed that defense counsel had not interviewed Compton until after

trial began. Defendant is completely wrong on both counts.

First, we note that the appellate court in Ligon I determined that

the two ineffective assistance claims at issue here involved matters

dehors the record that were more appropriate for a postconviction

proceeding. This determination is res judicata. The appellate court’s

decision became final when leave to appeal from Ligon I, 365 Ill. App.

3d 109, was sought in this court in September 2006. See People v.

Collins, 202 Ill. 2d 59 (2002). Therefore, the ruling that the two direct

appeal claims of ineffectiveness were outside the record is unassailable

at this point. Moreover, defendant’s current argument was not only

not raised below, he specifically disavowed it in the argument he made

below in Ligon II where he underscored in his reply brief that he was

“not arguing that [the appellate court on direct review] erred in

declining to consider two of his ineffectiveness claims on direct

appeal.” (Emphasis in original.) Defendant continued with his

argument in the appellate court as follows:

“Rather, [defendant] is claiming that, once this court decided

to relegate claims raised on direct appeal to the post-

conviction process [Ligon I, 365 Ill. App. 3d at 122-23], the

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equal protection and due process clauses of the constitution

required the automatic appointment of counsel to raise those

claims in a postconviction petition. See Halbert, 545 U.S. at

616-17; Douglas, 372 U.S. at 356. Thus, the claim of error

here is the failure to appoint postconviction counsel before

dismissing the petition, not this Court’s decision to relegate

claims to the postconviction process.” (Emphasis in original.)

Under the circumstances, we find that defendant is now barred from

advancing the argument that the appellate court improperly failed to

adjudicate the ineffective assistance of counsel claims on direct appeal.

We also note that where, as here, the record is insufficient because

it has not been precisely developed for the object of litigating a

specific claim of ineffectiveness raised in the circuit court, thereby not

allowing both sides to have an opportunity to present evidence

thereon, such a claim should be brought on collateral review rather

than on direct appeal. People v. Bew, 228 Ill. 2d 122, 134 (2008),

citing Massaro v. United States, 538 U.S. 500, 504-06, 155 L. Ed. 2d

714, 720-21, 123 S. Ct. 1690, 1694 (2003); compare People v.

Whitehead, 169 Ill. 2d 355, 372 (1996) (a claim of ineffective

assistance of trial counsel cannot be considered on direct appeal where

the evidentiary basis is dehors the record).1 Here, the appellate court

resolved the ineffective assistance claim that was actually raised in

defendant’s posttrial motion, and then correctly directed defendant to

the postconviction process for resolution of the other two claims that

were not precisely raised in his motion. See Bew, 228 Ill. 2d at 135.

Second, there is no indication from Ligon II that it believed that

the court’s refusal in Ligon I to adjudicate the ineffective assistance

claims would have been any different had Ligon I not been mistaken

about the timing of trial counsel’s interview of Compton. Ligon II

acknowledged in a footnote that Ligon I had mistakenly believed that

defense counsel had not interviewed Compton prior to trial. This

misapprehension clearly would not have affected the decision to defer

adjudication of the third claim of ineffective assistance that defendant

raised on direct review, however, because defendant’s trial attorneys

1

Whitehead was overruled on other grounds by People v. Coleman, 183

Ill. 2d 366, 382-83 (1998).

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were not asked at the posttrial hearing about their reasons for their

opening statement that Compton would testify even though it appears

they had their doubts about him as a witness from their interview the

prior day. The footnote in Ligon II went on to explain that the error

in assessing the record was caused by defendant’s repeated

misstatements in his appellate briefs claiming that trial counsel had not

interviewed Compton prior to trial. It must also be pointed out that

had the appellate court undertaken an accurate reading of the record

and then decided to adjudicate the second ineffective assistance

claim–which alleged that defense counsel had not interviewed

Compton prior to trial–the claim surely would have been rejected, as

it was completely contradicted by the trial transcript, which shows that

Thomas had interviewed Compton the day before trial started. As

such, the court in Ligon I did defendant a favor by deferring resolution

of the claims. Given that this is the appropriate method of treatment

for claims that are not specifically raised at a posttrial hearing and

where defendant has failed to prove ineffective assistance on the

record presented to the reviewing court, we find no problem with the

course of action taken by Ligon I in declining to reach the claims. See

Bew, 228 Ill. 2d at 135 (court held that even though defendant had

failed to prove ineffective assistance on the record presented on direct

review, he could still raise those claims under the Post-Conviction

Hearing Act). Accordingly, we reject defendant’s argument that a

different outcome should obtain here just because the appellate court

in Ligon I mistakenly believed that defendant’s trial counsel had not

interviewed Compton until after trial had begun.

We turn now to the main issue raised by defendant’s appeal. He

asserts that in light of the United States Supreme Court’s decision in

Halbert, dismissal of his postconviction petition violated the equal

protection and due process clauses of the federal constitution because

counsel was not appointed to assist him in preparing his

postconviction petition. Despite the well-settled law in this state that

pro se litigants are not constitutionally entitled to the appointment of

counsel in non-death-penalty cases at the summary dismissal stage

(725 ILCS 5/122–2.1(a)(2), 122–4 (West 2006); People v. Porter,

122 Ill. 2d 64, 69-70 (1988)), defendant maintains that Halbert alters

this rule, at least under the circumstances of the present case.

We begin our analysis of Halbert’s application to the current case

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by discussing the United States Supreme Court precedent that

informed the Halbert decision. In Douglas v. California, 372 U.S.

353, 356-57, 9 L. Ed. 2d 811, 814, 83 S. Ct. 814, 816 (1963), the

Court held that an appellate court is required to provide court-

appointed counsel to an indigent defendant when that court reviews

an as-of-right appeal from a criminal conviction. The state procedure

in that case required that the appellate court, upon receiving an

indigent’s request for counsel, make an independent investigation and

determine if the appointment of counsel would benefit the defendant

or the courts. Douglas, 372 U.S. at 354-55, 9 L. Ed. 2d at 813, 83 S.

Ct. at 815. The kind of appeal available to the defendant depended

upon whether he could afford counsel: if not, the appellate court

would “prejudge the merits before it [could] even determine whether

counsel should be provided.” Douglas, 372 U.S. at 356, 9 L. Ed. 2d

at 814, 83 S. Ct. at 816. On the other hand, a nonindigent defendant

with counsel was “not faced with the preliminary ‘ex parte

examination of the record,’ [citation] but had their arguments

presented to the court in fully briefed form.” Ross v. Moffitt, 417 U.S.

600, 608, 41 L. Ed. 2d 341, 349, 94 S. Ct. 2437, 2442-43 (1974),

quoting Douglas, 372 U.S. at 356, 9 L. Ed. 2d at 814, 83 S. Ct. at

816. The Court concluded that an appeal without the benefit of

organization and argument by counsel would be a “meaningless ritual”

for most indigents. Douglas, 372 U.S. at 358, 9 L. Ed. 2d at 815, 83

S. Ct. at 817. Thus, Douglas taught that “where the merits of the one

and only appeal an indigent has of right are decided without benefit of

counsel *** an unconstitutional line has been drawn between rich and

poor.” (Emphasis omitted.) Douglas, 372 U.S. at 357, 9 L. Ed. 2d at

814, 83 S. Ct. at 816. Douglas involved only a defendant’s first appeal

of right and did involve the appointment of counsel “ ‘for the

preparation of a petition for discretionary or mandatory review

beyond the stage in the appellate process at which the claims have

once been presented by a lawyer and passed upon by an appellate

court.’ ” Martinez v. Schriro, No. 09–15170, slip op. at 4 (9th Cir.

September 27, 2010), quoting Douglas, 372 U.S. at 356, 9 L. Ed. 2d

at 814, 83 S. Ct. at 816.

In Ross v. Moffitt, the Court refused to extend the right to counsel

beyond the first appeal as of right from a conviction. Ross, 417 U.S.

at 610-11, 41 L. Ed. 2d at 351, 94 S. Ct. at 2443-44. There, the state

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supreme court provided discretionary review of a conviction after

mandatory review by an intermediate appellate court, and the state

supreme court’s acceptance of the appeal was based on public

importance and other indicia not related to the merits. Ross found it

significant that the defendant had the benefit of counsel in his appeal

to the appellate court, along with the record, the opinion from the

court and counsel’s arguments. The work product of counsel,

supplemented with defendant’s pro se petition for review, would

provide the state supreme court with an adequate basis to grant or

deny review. Ross, 417 U.S. at 615-17, 41 L. Ed. 2d at 353-54, 94 S.

Ct. at 2446-67. Ross rejected due process and equal protection

challenges to the procedure, concluding that a state “need not provide

any appeal at all” and the state does not act unfairly by refusing to

provide indigents with counsel “at every stage of the way.” Ross, 417

U.S. at 611, 41 L. Ed. 2d at 351, 94 S. Ct. at 2444. Ross solidified its

conclusion by discussing the role of the state supreme court as not

sitting to correct an adjudication of guilt in individual cases, but rather

to review cases where a matter of public interest was at stake, a

significant legal principle was involved or a conflict with precedent

existed. Ross, 417 U.S. at 615, 41 L. Ed. 2d at 353-54, 94 S. Ct. at

2446.

Over a decade after Ross, the Supreme Court decided

Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 545,

107 S. Ct. 1990, 1993 (1987), which held that there is no federal

constitutional right to counsel for an appeal mounting a collateral

attack against a criminal conviction. Finley noted that previous cases

had established that the right to the appointment of counsel “extends

to the first appeal of right, and no further.” Finley, 481 U.S. at 555,

95 L. Ed. 2d at 545, 107 S. Ct. at 1993. The Court wrote: “We think

that since a defendant has no federal constitutional right to counsel

when pursuing a discretionary appeal on direct review of his

conviction, a fortiori, he has no such right when attacking a

conviction that has long since become final upon exhaustion of the

appellate process.” Finley, 481 U.S. at 555, 95 L. Ed. 2d at 546, 107

S. Ct. at 1993. The Court continued by observing as follows:

“[T]he analysis that we followed in Ross forecloses

respondent’s constitutional claim. *** Postconviction relief is

even further removed from the criminal trial than is

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discretionary direct review. It is not part of the criminal

proceeding itself, and it is in fact considered to be civil in

nature. [Citation.] It is a collateral attack that normally occurs

only after the defendant has failed to secure relief through

direct review of his conviction. States have no obligation to

provide this avenue of relief [citation], and when they do, the

fundamental fairness mandated by the Due Process Clause

does not require that the State supply a lawyer as well.

Nor was the equal protection guarantee of ‘meaningful

access’ violated in this case. By the time respondent presented

her application for postconviction relief, she had been

represented at trial and in the Supreme Court of Pennsylvania.

In Ross, we concluded that the defendant’s access to the trial

record and the appellate briefs and opinions provided

sufficient tools for the pro se litigant to gain meaningful access

to courts that possess a discretionary power of review.

[Citation.] We think that the same conclusion necessarily

obtains with respect to postconviction review.” Finley, 481

U.S. at 556-57, 95 L. Ed. 2d at 547, 107 S. Ct. at 1994.

We now turn to Halbert, where the Supreme Court addressed

whether indigent criminal defendants who seek to bring a first-tier

direct appeal after pleading guilty or nolo contendere have a right to

appointed counsel. Specifically at issue was both a State of Michigan

law that provided that an appeal by a defendant who pleads guilty or

nolo contendere is discretionary with the appellate court and a state

procedure whereby judges denied the appointment of counsel for

indigents convicted under such pleas. Halbert found that the case

before it was framed by two prior decisions of the Court: Douglas and

Ross. Halbert, 545 U.S. at 616, 162 L. Ed. 2d at 564, 125 S. Ct. at

2590. The Court held that Douglas provided the controlling

precedent, and that two aspects of the Michigan appellate process led

it to that conclusion. Halbert, 545 U.S. at 616-17, 162 L. Ed. 2d at

564, 125 S. Ct. at 2590. First, in deciding whether to grant leave to

appeal upon application from a plea-based conviction, the Michigan

appellate court looks to the merits of the claim spelled out in the

application. Therefore, similar to the defendants’ appeals in Douglas,

the defendant’s appeal in Halbert was subject to ex parte review

without benefit of counsel’s argument, and, although the appeal was

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“ ‘discretionary,’ ” the appellate court sat in an “ ‘error-correction

instance,’ and not as the Michigan Supreme Court.” Martinez, slip op.

at 6, quoting Halbert, 545 U.S. at 617-20, 162 L. Ed. 2d at 564-66,

125 S. Ct. at 2590-92. Second, the Court emphasized that indigent

defendants pursuing first-tier review in the appellate court are

generally ill-equipped to represent themselves, and without counsel’s

assistance in preparing the application for leave to appeal, an indigent

“would be ‘disarmed in [his] endeavor to gain first-tier review.’ ”

Martinez, slip op. at 6, quoting Halbert, 545 U.S. at 617-20, 162 L.

Ed. 2d at 564-66, 125 S. Ct. at 2590-92. It was also highly significant

to the decision that the only manner of review afforded a plea-

convicted defendant under the Michigan procedure was discretionary,

and this appeal was the first, and likely the only, direct review of

defendant’s conviction. Halbert, 545 U.S. at 618-19, 162 L. Ed. 2d

at 565, 125 S. Ct. at 2591. Halbert therefore concluded that review

of the leave to appeal application was tantamount to a first-tier

proceeding that mandated counsel pursuant to Douglas. Martinez, slip

op. at 6, quoting Halbert, 545 U.S. at 609, 162 L. Ed. 2d at 559, 125

S. Ct. at 2586. Accordingly, the defendant in Halbert was entitled to

the assistance of counsel to pursue his first, albeit discretionary, appeal

from his conviction under the Michigan scheme. See Martinez, slip op.

at 6.

In the present case, defendant urges a right to counsel on collateral

review in a postconviction proceeding, as that was essentially the first

genuine opportunity he had to present his ineffective assistance of trial

counsel claims, which as discussed above, were not appropriate for

direct review. We note that under Illinois law, a collateral

postconviction proceeding is most often the first point at which an

ineffective assistance of counsel claim will be presented. Indeed, issues

that could have been considered on direct appeal are deemed

procedurally defaulted in a postconviction proceeding. West, 187 Ill.

2d at 425. Defendant argues, therefore, that his contention is similar

to those considered in Halbert and Douglas. He makes four basic

points in support of his argument: (1) the postconviction proceeding

would be the first time, and thus the “first-tier,” that he would have

been allowed to receive an adjudication on the two ineffective

assistance claims in question; (2) because the Post-Conviction Hearing

Act does not provide for appointment of counsel until after an

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indigent defendant has stated the gist of a meritorious claim, he did

not have the assistance of counsel in preparing his petition; (3) pro se

defendants are not adequately equipped to pursue this sort of first-tier

review; and (4) defendant’s premature assertion of the two ineffective

assistance claims not adjudicated on direct review somehow placed

him in a different position from defendants who wait to bring such

claims until postconviction, so that he should be appointed counsel

even if the others are not.

We find defendant’s arguments unpersuasive. There is no federal

constitutional right to the assistance of counsel connected with

proceedings seeking collateral relief, even where those proceedings

are the first tier of review for an ineffective assistance of counsel

claim. See Martinez, slip op. at 6; see also Finley, 481 U.S. at 555, 95

L. Ed. 2d at 545, 107 S. Ct. at 1993. We are not aware of any federal

or state cases to the contrary; indeed our research indicates that all of

the courts that have touched upon the subject in the wake of Halbert

agree that there is no federal constitutional right to the assistance of

counsel in a collateral proceeding. See, e.g., Martinez, slip op. at 6;

Lopez v. Wilson, 426 F.3d 339, 354, 356-57 (6th Cir. 2005); Muniz

v. Suthers, No. 06–1149 (10th Cir. December 18, 2006) (unpublished

opinion finding that Halbert “extended the right to counsel to a class

of discretionary direct appeals, Halbert did not overrule clearly

established Supreme Court precedent that individuals have no right to

counsel in post-conviction proceedings”); Hnatiuk v. Rapelje, No.

2:08–CV–11574 (E.D. Mich. May 7, 2010); State v. Lopez, 156 N.H.

193, 197-98, 931 A.2d 1186, 1190-91 (2007) (“Halbert did not

question the authority of the Finley decision establishing that there is

no right to counsel in an appeal of a collateral attack on a criminal

conviction. We decline to read such a requirement into the United

States Constitution when the United States Supreme Court has not

done so itself.”); Fluker v. State, 17 So. 3d 181, 183 (Miss. App.

2009); see also District Attorney’s Office for the Third Judicial

District v. Osborne, 557 U.S. ___, 174 L. Ed. 2d 38, 129 S. Ct. 2308

(2009) (postconviction proceedings are sufficiently removed from

criminal trials as to engender different levels of due process

protections, and the Brady obligations imposed on prosecutors at trial

are not constitutionally required during postconviction proceedings).

In Martinez v. Schriro, No. 09–15170, slip op. at 7 (9th Cir.

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September 27, 2010), the Court of Appeals, Ninth Circuit, recently

concluded, under circumstances similar to the present case, that the

right to counsel is not triggered in a collateral proceeding even where

the proceeding would represent the defendant’s first opportunity to

obtain review of his ineffective assistance claims. In Martinez, the

defendant’s convictions and sentences were affirmed on direct appeal.

Under Arizona law, ineffective assistance of trial counsel claims

cannot be brought on direct review, but instead must be brought in a

postconviction proceeding. The defendant’s direct appeal counsel filed

a postconviction proceeding on the defendant’s behalf during the

pendency of the direct appeal, but then proceeded to file a motion

indicating that he had reviewed the trial record and did not find any

tenable issues. Under Arizona law, the defendant was then allowed 45

days to file a pro se petition for postconviction relief. Defendant did

not file such a petition, and he later alleged in a successive

postconviction petition that his appellate counsel had not informed

him of the requirement to file the petition within the 45-day period.

Defendant also alleged that he had valid ineffective assistance of trial-

counsel claims that he could have raised in his first postconviction

proceeding. Defendant’s successive petition was dismissed by the

Arizona superior court, which found his claims procedurally defaulted

due to the defendant’s failure to raise them in the initial postconviction

proceeding. The appellate court affirmed, and the Arizona Supreme

Court denied review. See Martinez, slip op. at 2.

The defendant then filed a habeas petition in federal district court,

which was denied. On appeal to the Ninth Circuit Court of Appeals,

the defendant argued that he was entitled to the effective assistance of

counsel in connection with his first postconviction petition because

that proceeding was the first opportunity for him to present his claims

that his trial counsel had rendered ineffective assistance, thus making

the situation similar to Halbert. The Martinez court rejected the claim,

finding the case more like Ross than Halbert. Martinez, slip op. at 8.

Martinez noted that just like in Ross, the defendant had “already

received direct review of his conviction and received the assistance of

counsel in connection with that appeal.” Martinez, slip op. at 8. In

Halbert, by contrast, the defendant sought the “functional equivalent

of direct review, the first appeal of his conviction.” Martinez, slip op.

at 8. The court concluded that even if collateral review offered the

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first tier of review for the defendant’s ineffective assistance claims, it

nonetheless is “not analogous to a direct appeal–or the first

opportunity for him to obtain review of his conviction–so as to entitle

him to effective counsel” (emphasis added) and therefore the case is

not controlled by Douglas and Halbert. Martinez, slip op. at 8.

Martinez then addressed the contention that pro se defendants are

ill-equipped to represent themselves in collateral proceedings. The

court was unmoved by this general assertion, noting the assistance of

counsel would “aid any indigent defendant in pursuing review of his

conviction, whether by first-tier or second-tier appeal, or by collateral

review.” Martinez, slip op. at 8, citing Ross, 417 U.S. at 616, 41 L.

Ed. 2d at 354, 94 S. Ct. at 2446-47. Martinez found it relevant that

the defendant pursuing collateral review faces less of a handicap than

a defendant pursuing a first appeal because a collateral-review

defendant has already received the assistance of counsel in a prior

proceeding, like the defendant in Ross. Martinez, slip op. at 8. A

defendant pursuing collateral review “would have ‘at the very least,

a transcript or other record of trial proceedings, a brief on his behalf

in the Court of Appeals setting forth his claims of error, and in many

cases an opinion by the Court of Appeals disposing of his case.’ ”

Martinez, slip op. at 8, quoting Ross, 417 U.S. at 615, 41 L. Ed. 2d

at 353, 94 S. Ct. at 2446. Martinez concluded that the defendant did

not face the same burden and disadvantages of a defendant pursuing

direct review without counsel’s assistance, and even though collateral

review might offer the first opportunity to present a particular claim,

the defendant had already benefitted from counsel’s assistance in the

direct appeal. Martinez, slip op. at 8.

We find the rationale of Martinez on this point to be persuasive.

The defendant in Halbert faced “far more daunting legal hurdles” than

defendant in our case. Ligon II, 392 Ill. App. 3d at 999. Defendant in

Halbert had to file an application for review setting forth the law that

supports the defendant’s position and explaining how that law applies

to the facts of the case. Halbert, 545 U.S. at 622, 162 L. Ed. 2d at

567-68, 125 S. Ct. at 2593-94. Here, in contrast, defendant needed

only to present the “gist of a constitutional claim” to survive summary

dismissal. Jones, 213 Ill. 2d at 504. Moreover, he only needed to

present a “limited amount of detail” (Hodges, 234 Ill. 2d at 9) and did

not need to “make legal arguments or cite to legal authority”

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(Gaultney, 174 Ill. 2d at 418). This is a purposely low threshold that

is one of the factors that distinguishes this case from Halbert and

Douglas.

We further note that defendant in the present case was much more

equipped to present his claims on collateral review than any of the

defendants in the cases mentioned above, including Martinez. Here,

defendant was armed with the following at the time he prepared his

petition for postconviction relief: (1) copies of the petition for leave

to appeal drafted by his appellate lawyer, which included 4½ pages on

the issue of ineffective assistance of trial counsel; (2) copies of his

appellate counsel’s appellant and reply briefs; (3) the petition for

rehearing prepared by appellate counsel, which also argued the

ineffective assistance of trial counsel; and finally (4) the appellate

court’s published opinion (see Ligon I, 365 Ill. App. 3d at 122), which

set forth the two ineffective assistance claims and expressly stated that

they could be “ ‘addressed in a proceeding for postconviction relief.’ ”

Ligon II, 392 Ill. App. 3d at 999, quoting Ligon I, 365 Ill. App. 3d at

122. Thus, defendant was in an even better position to raise his claims

in a postconviction proceeding than most other defendants who must

raise their ineffective assistance of counsel claims in a postconviction

proceeding without having had any specific input from counsel or the

court related to those claims. Under the circumstances, we find no

merit to defendant’s assertion that his premature assertion on direct

appeal of his unadjudicated claims somehow tipped the scale in his

favor so that he should be appointed counsel in this case even if others

who must wait to raise ineffective-assistance claims until

postconviction are not appointed counsel at the summary dismissal

stage.

Martinez next addressed the defendant’s argument that collateral

review of his ineffective-assistance claim involves a “determination on

the merits.” Martinez, slip op. at 9. Martinez rejected this contention,

finding that the case did not involve a determination on the merits in

the same way that Halbert and Douglas did. Martinez, slip op. at 9.

This was because there was no impediment presented to the defendant

gaining first-tier review of his conviction, and the court performed no

“gatekeeping function” that would bar the defendant from presenting

his ineffective assistance of counsel claim. Martinez, slip op. at 9.

Similarly, in case before us there was no obstacle presented by the

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court to a review of defendant’s conviction on direct appeal, and

defendant merely had to allege his ineffective assistance claims in his

postconviction petition to receive the appointment of counsel. Thus,

there was no “gatekeeping function” imposed in this case.

Martinez concluded its analysis by finding that neither a due

process nor an equal protection rationale were applicable to the case.

Martinez, slip op. at 9. The due process rationale did not fit because

the state has no duty to provide for an appeal of a criminal conviction

and no duty to provide for collateral review either. Martinez, slip op.

at 9. The equal protection clause was not violated because there were

no unreasoned distinctions in this case, and the clause does not require

absolute equality or the elimination of economic disparities. Martinez,

slip op. at 10.

We find the federal Court of Appeals decision in Martinez to be

well reasoned and persuasive. We therefore adopt its reasoning.

Accordingly, we conclude that defendant had no right to the

appointment of counsel at the summary dismissal stage of his

postconviction proceeding, even where the proceeding may have

presented the first real opportunity he had to raise two of his claims

of ineffective assistance of trial counsel.

As a final matter, we note that defendant made the alternative

argument in his briefs to this court that we should exercise our

supervisory authority to remove the barrier to appellate court review

set forth in Jones, 213 Ill. 2d at 508, and then remand the cause to the

appellate court for consideration of the unadjudicated claims. We find

that defendant forfeited this argument by failing to raise it in his

petition for leave to appeal before this court. See People v. Williams,

235 Ill. 2d 286, 298 (2009). At any rate, the issue is moot given our

resolution of the above-discussed issue, which was raised in

defendant’s petition for leave to appeal, and our holding that, under

the circumstances of the present case, defendant had no federal

constitutional right to the appointment of counsel at the summary

dismissal stage of the postconviction proceeding.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the appellate

court, which affirmed the order of the circuit court dismissing

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defendant’s postconviction petition.

Affirmed.

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