stating that “because this is a successive petition in which petitioner makes no claim of actual innocence ***, the claims raised in his petition must be considered waived unless application of the cause-and-prejudice test dictates otherwise”
How later courts described this case
- stating that “because this is a successive petition in which petitioner makes no claim of actual innocence ***, the claims raised in his petition must be considered waived unless application of the cause-and-prejudice test dictates otherwise”
- stating that in the context of a successive postconviction petition, the procedural bar of waiver is not merely a principle of judicial administration; it is an express requirement of the statute
- explaining that the cause-and-prejudice test for filing successive postconviction petitions in- Illinois mirrors the cause-and-prejudice test used by federal courts reviewing procedurally defaulted claims in habeas corpus proceedings
- stating that “the procedural bar of waiver is not merely a principle of judicial administration; it is an express requirement of the statute”
Written by the judges who cited it.
The opinion
CHIEF JUSTICE HARRISON, dissenting:
The proceedings which culminated in Pitsonbarger’s convictions and sentence of death were fatally flawed because they did not comport with the new rules enacted by our court governing the conduct of cases in which the State is seeking the death penalty. For the reasons set forth in my dissenting opinion in People v. Hickey, 204 Ill. 2d 585, 631-36 (2001) (Harrison, C.J., dissenting), the procedures contained in those rules are indispensable for achieving an accurate determination of innocence or guilt and are applicable to all capital cases now coming before us. Because Pitsonbarger was tried, convicted and sentenced without the benefit of the new rules, his convictions and death sentence should be vacated, and the cause should be remanded to the circuit court for a new trial.
Even if Pitsonbarger were not entitled to the benefit of the new rules, his sentence of death could not stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is void and unenforceable because it violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Absent the new rules, there is no basis for altering that conclusion. At a minimum, Pitsonbarger’s sentence of death should therefore be vacated, and he should be sentenced to a term of imprisonment. Ill. Rev. Stat. 1987, ch. 38, par. 9 — l(j). Because he was convicted of murdering more than one victim, the term of imprisonment must be natural life. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8— 1(a)(1)(c).
JUSTICE KILBRIDE, also dissenting:
I respectfully dissent. For the reasons set forth in my dissents in People v. Hickey, 204 Ill. 2d 585, 636-40 (2001) (Kilbride, J., dissenting), and People v. Simpson, 204 Ill. 2d 536, 581-85 (2001) (Kilbride, J., dissenting), I believe this cause should be remanded for a new trial conducted in compliance with the new rules governing capital cases. As I stated in my dissents, the procedures in capital cases prior to this court’s adoption of the new rules were inherently unreliable and did not sufficiently protect a defendant’s constitutional rights. For this reason, I believe that the new rules should be applied retroactively. People v. Caballero, 179 Ill. 2d 205, 220-21 (1997).
In addition, I disagree with the majority’s conclusion that defense counsel’s failure to file any post-conviction brief is not a fundamental deficiency deeming the initial proceeding a nullity. Instead, the majority holds that defendant must satisfy the cause-and-prejudice test on each issue. 205 Ill. 2d at 463. I believe that the pervasive flaws in defendant’s initial proceeding make this precisely the type of case that demands consideration of the claims made in defendant’s first petition without application of the cause-and-prejudice test to each individual claim. Contra 205 Ill. 2d at 462-64.
In part, the majority’s conclusion relies upon People v. Johnson, 192 Ill. 2d 202, 207 (2000). In Johnson, we ordered new briefs when post-conviction counsel failed to comply with our various briefing rules. The majority notes that Johnson did not direct the filing of an amended post-conviction petition. It reasons that the failure to file proper briefs in Johnson did not open the door for a defendant to raise constitutional claims in a second post-conviction petition. Therefore, the majority concludes that in this case the issues in defendant’s second post-conviction petition are waived unless each satisfies the cause-and-prejudice test.
While I agree that Johnson does not open the door for a defendant to assert new constitutional claims not previously raised in the initial post-conviction petition, the majority overlooks the plain logic of Johnson’s applicability to issues that were actually asserted in the initial post-conviction petition. In Johnson, we stated that “[a]n attorney who files a brief that is so fundamentally deficient that it precludes review by the supreme court has not provided a reasonable level of assistance.” Johnson, 192 Ill. 2d at 207 . The fundamental deficiency in the Johnson brief was the failure to comply with citation rules and record cites, among other meaningful but technical rules. Johnson, 192 Ill. 2d at 204-07 . Here, post-conviction counsel abandoned the proceedings and filed no brief at all. Simply put, it defies logic to conclude that a technically incomplete brief is fundamentally deficient but the failure to file any brief whatsoever and the utter abandonment of the entire proceeding is not just as fundamentally deficient.
Thus, I believe the majority opinion ignores a key issue squarely before us: whether an initial proceeding may be so pervasively flawed as to warrant consideration of those same claims in a subsequent petition without subjecting the individual claims to the cause-and-prejudice test. I believe that it can be and that defense counsel’s complete abandonment of the initial post-conviction proceedings is one such circumstance.
“ ‘Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.’ ” United States v. Cronic, 466 U.S. 648, 654 , 80 L. Ed. 2d 657, 664 , 104 S. Ct. 2039, 2044 (1984), quoting W. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1 , 8 (1956). A defendant is entitled to a reasonable level of assistance of counsel in post-conviction proceedings to assure “one complete opportunity to show a substantial denial of constitutional rights.” People v. Whitehead, 169 Ill. 2d 355, 369 (1996). Moreover, defense counsel’s performance may be so inadequate that defendant’s right to assistance of counsel has effectively been denied. Cronic, 466 U.S. at 654 n.11, 80 L. Ed. 2d at 665 n.11, 104 S. Ct. at 2044 n.11. If an accused does not receive actual assistance, then the constitutional guarantee of the right to effective assistance of counsel is violated. Cronic, 466 U.S. at 654 , 80 L. Ed. 2d at 664-65 , 104 S. Ct. at 2044 .
Although we generally presume defense counsel to be competent, there are instances where prejudice to the accused is so likely that inquiry into the precise effect of counsel’s conduct cannot be justified. Cronic, 466 U.S. at 658 , 80 L. Ed. 2d at 667 , 104 S. Ct. at 2046 . The most obvious of these is the complete absence of assistance from counsel. See Cronic, 466 U.S. at 659 , 80 L. Ed. 2d at 668 , 104 S. Ct. at 2047 .
Here, counsel’s abandonment of the first post-conviction proceedings denied defendant even a single complete opportunity to demonstrate his alleged constitutional deprivations and left him without effective assistance of counsel. “ ‘While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.’ ” Cronic, 466 U.S. at 657 , 80 L. Ed. 2d at 667 , 104 S. Ct. at 2046 , quoting United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975). The majority’s conclusion that the flaws in this case were not so pervasive as to obviate the need for the cause-and-prejudice test is the culmination of defendant’s judicial sacrifice. 205 Ill. 2d at 463.
In view of counsel’s complete abandonment of the first post-conviction proceedings, I believe that it is improper to apply the cause-and-prejudice test to defendant’s entire second post-conviction petition. Accordingly, to the extent defendant’s second post-conviction petition claims mirror those raised in his first post-conviction petition, those repeated claims should be considered without application of the cause-and-prejudice test.
Thus, I respectfully dissent.