People v. Wright

CHIEF JUSTICE FREEMAN, specially concurring:

I strongly disagree with the conclusions reached in today’s opinion, particularly that which holds that section 122 — 1 of the Post-Conviction Hearing Act is a statute of limitation that can be waived by the State on appeal if not first raised in the circuit court. Because I cannot concur in my colleagues’ decision on this point, I join only in the judgment of the court.

r

Section 122 — 1 of the Act states that no proceedings can be commenced under the Act after the passage of certain enumerated periods of time, unless the petition “alleges facts showing that the delay was not due to [the petitioner’s] culpable negligence.” 725 ILCS 5/122 — 1 (West 1994). The dispositive question in this case is what happens when both the State and the circuit judge fail to notice that a filed post-conviction petition does not comply with the above requirement and the issue is raised for the first time on appeal from an order of dismissal. The court rejects the State’s argument that this section is jurisdictional in nature and, instead, concludes that section 122 — 1 constitutes a statute of limitation that is waived by the State if not raised in the circuit court. In so doing, my colleagues concede that the present petition was untimely filed and lacked the allegations that would excuse untimeliness as required by the General Assembly. Notwithstanding this defendant’s failure to meet the affirmative obligation placed upon him by our legislature, the court concludes that the State cannot raise this issue on appeal because the State did not raise the issue in the circuit court. The effect of this seemingly benign holding is the possibility that a circuit court can, in the future, grant post-conviction relief even though a defendant has never alleged a lack of culpable negligence in his or her untimely petition as required by the General Assembly in section 122 — 1. With respect, I cannot join in a holding that permits such a result.

The question raised here, in my opinion, is best answered by recognizing that section 122 — 1 confers the circuit court with jurisdiction to grant post-conviction relief if either the time provisions are complied with or defendant has alleged justification as to why those provisions were not met. As such, section 122 — 1 constitutes a condition precedent to the right to bring the statutory action, which relates to subject matter jurisdiction. Subject matter jurisdiction is conferred on courts by the Constitution or by legislative enactment. Fredman Brothers Furniture v. Department of Revenue, 109 Ill. 2d 202, 210 (1985); Knaus v. Chicago Title & Trust Co., 365 Ill. 588, 592 (1937). Subject matter jurisdiction cannot be waived, stipulated to, or consented to by the parties. The lack of subject matter jurisdiction may be raised at any time, in any court, by the parties or on the court’s own motion. See Currie v. Lao, 148 Ill. 2d 151, 157 (1992). This court has noted that “when a court is in exercise of special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it and the court has no powers from any other source.” Fredman, 109 Ill. 2d at 210 , citing Central Illinois Public Service Co. v. Industrial Comm’n, 293 Ill. 62, 65-66 (1920). Furthermore, “if the mode of procedure prescribed by statute is not strictly pursued, no jurisdiction is conferred on the circuit court.” Fredman, 109 Ill. 2d at 210 , citing Demchuk v. Duplancich, 92 Ill. 2d 1, 6-7 (1982); Avdich v. Kleinert, 69 Ill. 2d 1, 6 (1977); Fitzgerald v. Quinn, 165 Ill. 354, 360 (1896). Without subject matter jurisdiction, a court’s only function is to announce the fact that it lacks jurisdiction and dismiss the cause. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 306 (1998), citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 , 140 L. Ed. 2d 210 , 118 S. Ct. 1003 (1998). In other words, absent subject matter jurisdiction, a court lacks the legal authority to adjudicate the controversy put before it. In the case of the Act, this means that the court is unable to adjudicate whether the petitioner was convicted in a proceeding in which there was a substantial denial of a federal or state constitutional right. This view is supported by both the history of the Act and the precedent of this court.

At common law, a collateral challenge to a criminal conviction was recognized as an action for writ of coram nobis. In 1867, this court observed that “[tjhis old writ [coram nobis] has never been in use in this State, and it has fallen into desuetude even in England. Its place is most effectually supplied by the more summary proceedings, by motion in the court where the error in fact occurred.” McKindley v. Buck, 43 Ill. 579 , 582 (1867). Shortly thereafter, the General Assembly expressly abolished the common law coram nobis action. See People v. Touhy, 397 Ill. 19, 23-24 (1947) (explaining history of the abolition of the writ). The legislature replaced the common law writ, not with the Act, but with a statutory remedy which can be presently found in section 2 — 1401 of the Code of Civil Procedure. See 735 ILCS 5/2 — 1401 (West 1994); Touhy, 397 Ill. at 23-24 . It was not until 1949 that the General Assembly enacted the Act. Ill. Rev. Stat. 1949, ch. 38, par. 826 et seq. See also A. Jenner, The, Illinois Post-Conviction Hearing Act, 9 F.R.D. 347 (1949) (setting forth a detailed history of the Act). The legislature created this new remedy in response to criticisms regarding the available methods by which a judgment of conviction could be attacked in Illinois. See People v. Slaughter, 39 Ill. 2d 278 (1968); People v. Erickson, 161 Ill. 2d 82, 107 (1994) (McMorrow, J., dissenting, joined by Harrison, J.). Along with the statutory coram nobis remedy (section 2 — 1401) and the statutory habeas corpus remedy, the Act provides convicted persons in this state with the opportunity to mount a collateral attack upon a final criminal judgment. J. Decker, “Last Chance” State Judicial Review in Criminal Cases — Illinois’ Collateral Attack Remedies: A Call For Principled Jurisprudence, 38 DePaul L. Rev. 201 (1988). This court, long ago, noted that the purpose of the Act “is to provide a single procedure by which persons within the class specified can obtain a hearing upon the question of whether they were denied due process of law.” People v. Dale, 406 Ill. 238, 243 (1950). The Act is designed to afford an appropriate remedy for one who asserts that a conviction was obtained in proceedings in which there was a denial of his or her rights under the federal constitution or the Illinois Constitution. People v. Morris, 3 Ill. 2d 437, 443-44 (1954).

The foregoing history demonstrates that the Act is a legislative creation with no antecedent in the common law. In light of this fact, the Act should be deemed purely a statutory cause of action, and its requirements should be interpreted in that light. In special statutory proceedings, jurisdiction is acquired only in the manner “pointed out” by the statute. People ex rel. Kilduff v. Brewer, 328 Ill. 472, 480 (1927). The time provision contained in section 122 — 1, viewed in its entirety, constitutes a condition of the right to maintain the statutory action — not a statute of limitation — and is, therefore, jurisdictional in nature. See Brown v. Box, 38 Ill. 2d 80, 82 (1967) (deeming limitation provision in Paternity Act jurisdictional). A jurisdictional limitations period is an absolute requirement; it is not an affirmative defense that is subject to waiver or estoppel. Section 122 — 1 clearly contemplates that a timely filed petition or an untimely petition that contains allegations which establish that the delay in filing was not due to the petitioner’s culpable negligence must precede the institution of the action. As this court has explained in the past, when addressing a similar question raised with respect to the Wrongful Death Act,

“Unlike the general Statute of Limitations, this special statute creating the right and giving the remedy does not merely confer the privilege upon the defendant to interpose a definite time limitation as a bar to the enforcement of a distinct and independent liability, but it defines and limits the existence of the right itself. In the one case the statute furnishes defendant with a technical defense to which he may resort or not, as he sees fit, while in the other it gives the plaintiff a right conditioned upon its enforcement within a definite time. Hence, while the defendant must plead the general Statute of Limitations or give notice by setting it out in a brief statement under the general issue in order to he protected by it, the reasoning that leads to that result as a matter of pleading has no application when *** the statute confers upon the plaintiff a peculiar right which, if not exercised, ceases to exist by its own limitation.” (Emphasis added.) Hartray v. Chicago Rys. Co., 290 Ill. 85, 87 (1919).

This court has consistently recognized that the legislature, having conferred a right of action, “may determine who shall sue and the conditions under which the suit may be brought.” (Emphasis added.) Wilson v. Tromly, 404 Ill; 307, 310 (1949). We have also consistently adhered to the notion that our General Assembly may attach conditions to the relief it creates. See Wilson, 404 Ill. 2d at 311. That being the case, it is the party seeking the statutorily created relief who must “ ‘bring himself within the prescribed requirements necessary to confer the right of action.’ ” Wilson, 404 Ill. at 311, quoting Hartray v. Chicago Rys. Co., 290 Ill. 85, 87 (1919).

Section 122 — 1 expressly provides that no proceedings may be commenced after the passage of certain enumerated time periods “unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.” 725 ILCS 5/122 — 1 (West 1994). In other words, section 122 — 1 establishes what a petitioner must do in order to “ ‘set the court in motion.’ ” Brewer, 328 Ill. at 481 . The General Assembly, by placing the burden on defendant to plead himself within the purview of the statute in order to obtain relief, has, therefore, not seen fit to make the lack of timeliness an affirmative matter that must be raised by the State in order to bar the remedy. The burden, having been placed on the petitioner by the General Assembly, rests on the petitioner, and if the petition is deficient in this respect, the court, sua sponte, must dismiss it. Simply put, if a petitioner does not meet this affirmative burden, the circuit court cannot, as a matter of law, entertain the petition and cannot grant the requested relief, no matter how meritorious the asserted constitutional deprivation may be.

Support for this position can be found in People v. Montgomery, 45 Ill. 2d 94 (1970). There, the defendant filed an untimely petition, claiming that the delay was due to his mental illness. The circuit judge specifically found that the mental illness claimed by defendant in his petition, and supported by the affidavits attached to it, did not satisfactorily excuse defendant’s delay in filing the petition. Nevertheless, the judge ultimately considered the merits of the petition and based his order of dismissal on the merits of defendant’s claims. In affirming the order of dismissal, this court stated that, notwithstanding the circuit court’s dismissal on the merits, the “threshold issue *** must *** be whether Montgomery was barred from proceeding under the Act by virtue of his extended delay in filing, since no relief may be granted on the merits unless the petition is cognizable under the statute.” (Emphasis added.) Montgomery, 45 Ill. 2d at 96 . 3 The court thus looked to defendant’s allegations regarding his lack of culpable negligence and found them insufficient, concluding that it was “of the opinion that the petition for relief was properly dismissed, without further hearings, under the applicable limitations provision.” Montgomery, 45 Ill. 2d at 96 . Significantly, nowhere in the Montgomery opinion does the phrase “statute of limitations” appear. Instead, the court referred to section 122 — 1 as a “limitations provision” and spoke in terms of a petition’s “cognizability” under the statute. Such references, in my view, demonstrate that, up until today at least, this court has implicitly given section 122 — 1 a jurisdictional construction.

Notwithstanding the above, my colleagues rely on People v. Bates, 124 Ill. 2d 81 (1988), as authority for the proposition that section 122 — 1 constitutes a statute of limitations. Bates, however, did not address the precise issue which we are presented with today, namely, whether the time limitation contained in section 122 — 1 is jurisdictional or whether it is a statute of limitation. Rather, the court in Bates considered whether an amendment to section 122 — 1 that shortened the time within which to file a petition under the Act could be applied retroactively. This distinction is critical. The court determined that the amendment had retroactive application and that the dismissal of the petition, which did not include allegations regarding the lack of culpable negligence, required affirmance. In so holding, the court looked to an earlier case, Orlicki v. McCarthy, 4 Ill. 2d 342 (1954), in which a similar question was raised with respect to the Dramshop Act. The court reasoned, as did the court in Orlicki, that

“the legislature, having created rights of action under [the Acts], had the corresponding power to repeal those rights. In other words, persons, had no ‘vested’ rights in statutory remedies. [Citation.] Moreover, the power to repeal statutory enactments includes the lesser power to impose or modify time limitations for bringing actions under such acts.” Bates, 124 Ill. 2d at 85 .

My colleagues today seize upon the sentence which immediately follows the above quotation for its conclusion that section 122 — 1 is a statute of limitation: “Finally, it was noted that statutes of limitation have historically been classified as procedural in character, and that procedural amendments are generally applied retroactively.” Bates, 124 Ill. 2d at 85 . However, the Orlicki decision, relied on heavily in Bates, contains a detailed discussion concerning the propriety of retroactive application of amendments to jurisdictional “conditions of liability” which were of a procedural nature. See Orlicki, 4 Ill. 2d at 350-53 . Moreover, the court in Bates declined to extend, equitably, the statutory time period for the defendant whose petition was both untimely and lacking in allegations regarding lack of culpable negligence. Bates, 124 Ill. 2d at 86-88 . “Because [the] petition was not accompanied by any such allegations [regarding culpable negligence], we find that his petition must be dismissed as untimely.” Bates, 124 Ill. 2d at 88 . In this way, the result reached in Bates is consistent with the principles espoused in Montgomery. Given the fact that the court in Bates was. not concerned with the narrow question raised by the parties in this case, I do not find its generic use of the term “statute of limitations” persuasive authority for the court’s conclusion that the circuit court had jurisdiction to entertain defendant’s petition.

Yet, even if I were to agree that the time provision contained in section 122 — 1 should be labeled a “statute of limitations,” I would still consider the provision to be jurisdictional. As the Seventh Circuit Court of Appeals has aptly noted, “some statutes of limitations are jurisdictional.” Smith v. City of Chicago Heights, 951 F.2d 834, 838 (7th Cir. 1992) (interpreting Illinois law). This court, too, has stated as much. Statutes of limitation only fix the time within which the remedy for a particular wrong may be sought and, as such, are “ ‘procedural in nature [citations] and are not designed to alter substantive rights.’ ” Fredman, 109 Ill. 2d at 209 , quoting Wilson v. Bishop, 82 Ill. 2d 364, 373 (1980). In contradistinction, “statutes which create a substantive right unknown to the common law and in which time is made an inherent element of the right so created, are not statutes of limitation. [Citations.] Such a time period ‘is more than an ordinary statute of limitation.’ ” Fredman, 109 Ill. 2d at 209 , quoting North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 519 (1920).

The history of the Act, as I have set forth above, supports the application of these principles to the case at bar. The Act is a departure from the common law. Moreover, section 122 — 1 plainly states that no proceedings may be commenced after the passage of the enumerated time periods “unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.” 725 ILCS 5/122 — 1 (West 1994). Thus, a petitioner must do one or the other, i.e., be timely or allege the lack of culpable negligence, in order to commence a proceeding under the Act. The court today seems to be unable or unwilling to accept that section 122 — 1 is but a single sentence. The phrase which contains the time limits must be construed in tandem with the phrase that excuses delay if due to a lack of culpable negligence. Time, therefore, is an inherent element of the right to the extent that, without allegations of facts which show that the delay was not due to petitioner’s culpable negligence, no proceeding may be commenced under the Act. 4 Statutes such as section 122 — 1 “set forth the requirements for bringing the right to seek a remedy into existence. They do not speak of commencing an action after the right to do so has accrued. They are jurisdictional, not mandatory.” Fredman, 109 Ill. 2d at 210 . This has been the conclusion reached by two districts of our appellate court (see People v. Caraballo, 304 Ill. App. 3d 288 (3d Dist. 1999); People v. Stenson, 296 Ill. App. 3d 93 (3d Dist. 1998); People v. Heirens, 271 Ill. App. 3d 392 (1st Dist. 1995)), and should be our decision today.

My colleagues and I obviously disagree with respect to the applicability of Bates to this question and to the issue of whether time is an “inherent” element of the right to post-conviction relief. 189 Ill. 2d at 8. I am willing to acknowledge that judges can and do disagree over the proper application of precedent when resolving questions on appeal, just as they can disagree over subjective concepts such as the inherence or importance of a certain element in a statute. However, in such cases, other judicial considerations usually emerge which justify the necessity of adopting one approach over another. And so it is in this case. The Act clearly places a burden upon the petitioner at the outset to allege facts establishing his or her lack of culpable negligence. Accordingly, it appears that the General Assembly did not intend to make this provision an affirmative matter to be raised by the State in order to bar the remedy. In other words, it is the petitioner who must affirmatively raise the lack of culpable negligence issue in order to avoid dismissal. Nevertheless, the court asserts that it does

“not believe that this requirement [of alleging facts which show the lack of culpable negligence in the delay] allows the State to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition.” (Emphasis added.) 189 Ill. 2d at 11.

Thus, the court has transformed defendant’s affirmative burden to raise the lack of culpable negligence into an affirmative defense to be raised by the State. In my view, this amply illustrates the reason why we ought not to construe section 122 — 1 as a statute of limitation that ■can be waived by the State. The judiciary simply lacks the authority to transform an affirmative burden, placed upon the petitioner by the General Assembly, into an affirmative defense to be pleaded by the State. My colleagues appear to choose this course of action because they are obviously troubled by the fact that this defendant might have been able to allege the requisite lack of culpable negligence in an amendment had the State raised the issue in the trial court. See 189 Ill. 2d at 11 (noting that the State here “effectively precluded the defendant from seeking to amend his petition to include allegations that he was not culpably negligent in filing his petition”). The concern, therefore, is that section 122 — 1 has the. potential to become a “trump card” of sorts in the hands of the prosecutor. However, section 122 — 1 is rendered a trump card only because the court today insists on interpreting the provision as a “statute of limitations” that should not “be treated differently from any other.” 189 Ill. 2d at 12. If section 122 — 1 were to be deemed jurisdictional, a petitioner whose untimely petition is dismissed for lack of jurisdiction could return to the circuit court and attempt to take advantage of the “safety valve” by filing a new petition which contains the requisite allegations concerning the lack of culpable negligence. Such a successive petition would not be barred by the doctrine of res judicata because a dismissal for lack of jurisdiction does not constitute an adjudication on the merits. Under this approach, the action would proceed in a way that is consistent with the language of the Act (the petitioner must allege and establish his or her lack of culpable negligence for the delay as required under the Act), and the State has not been allowed to “trump” the truly nonculpably negligent petitioner from the opportunity to seek collateral review under the Act.

Further, if a petitioner’s failure to allege the lack of culpable negligence could easily be rectified by amendment, as the court intimates, why then does the court not remand this cause to the circuit court with instructions to allow defendant the opportunity to file an amendment and meet the burden placed upon him by the General Assembly? If the matter is not one of jurisdiction, as the court holds, then there is no legal impediment to preclude such an option in this case. Such a course of action would, in fact, be consistent with the court’s stated belief that petitioners under the Act “should plead facts demonstrating [their] lack of culpable negligence.” 189 Ill. 2d at 12. The court, however, cannot avail itself of a remand alternative because it has decided that section 122 — 1 operates as an ordinary statute of limitation. Thus, the court leaves itself with no choice but to completely excuse this defendant from complying with the General Assembly’s requirement that his petition contain allegations which demonstrate the lack of culpable negligence in the delay. This result will doubtless provide “incentive” to the State to raise the timeliness question (189 Ill. 2d at 12), but it provides petitioners with little incentive to comply with the Act itself. Moreover, this result also has the potential to allow for the possibility that a circuit court can, in the future, grant post-conviction relief even though a defendant has never alleged a lack of culpable negligence in his or her untimely petition as required by the General Assembly in section 122 — 1. Ultimately, it is these considerations and not the applicability of Bates that, in my view, strongly undermine the court’s resolution of this issue. I believe that this court lacks the power to make these types of substantive revisions to the Act; therefore, the only legally justifiable conclusion to the question raised in this case is the acknowledgment that section 122 — 1 is jurisdictional.

Today’s decision has additional ramifications that must be addressed. Section 122 — 1, which precedes all other provisions in the Act, plainly states that no proceeding may be commenced under the Act unless the petition is either timely or else contains affirmative allegations that demonstrate the petitioner’s lack of culpable negligence in causing the delay. The requirement has been placed on all petitioners, whether they are serving a sentence of imprisonment or are under a sentence of death. The Act, however, requires the circuit court, in a noncapital case, to evaluate a petition in order to determine whether it is frivolous or patently without merit. See 725 ILCS 5/122 — 2.1(a)(2) (West 1996). This determination is to be made by the court without any input from the State. See 725 ILCS 5/122 — 5 (West 1996). If the petition is both untimely and fails to contain the required allegations concerning the lack of culpable negligence, should not the circuit court dismiss it pursuant to section 122 — 2.1? After all, such a petition would be deficient as a matter of law, as it is both untimely and utterly lacking in the requisite allegations that would serve to excuse the delay. Must the circuit court in such situations overlook the fact that the petition fails to comply with section 122 — 1 and therefore order it docketed for a response from the State? The principles relied on in today’s opinion strongly suggest that the judge, in such a situation, must remain mute with respect to the petition’s deficiency and must docket it so that the State can raise the issue, as an “affirmative defense.” Under today’s opinion, it appears that the court in these situations cannot, sua sponte, raise the matter.

Notwithstanding the above, my colleagues

“caution that we are not limiting the trial court’s ability, during the court’s initial review of noncapital petitions (see 725 ILCS 5/122 — 2.1(a)(2) (West 1998)), to dismiss the petition as untimely. The import of our decision is simply that matters relating to the timeliness of a defendant’s petition should be first considered in the trial court, either upon a motion by the State or pursuant to the duty imposed upon the trial court by section 122 — 2.1(a)(2).” 189 Ill. 2d at 11-12.

I am puzzled by these statements. As noted, the Act permits the circuit court to dismiss a noncapital petition without any input from the State whatsoever. If, as my colleagues today hold, the lack of allegations regarding culpable negligence can only be raised by the State, and not a court, then how can a trial judge ever dismiss an untimely petition on his or her own motion, pursuant to the duty imposed upon the trial court by section 122— 2.1(a)(2)? I read today’s opinion as holding that section 122 — 1 is to be treated as an ordinary statute of limitation, i.e., an affirmative defense, and not as a jurisdictional prerequisite. Therefore, in noncapital cases, the untimely petition that lacks culpable negligence allegations must be docketed in order to allow the State to put the culpable negligence matter at issue as an affirmative defense. I am confused, therefore, by the court’s statement that it is not “limiting” the trial court’s initial review of petitions in non-capital cases. The court today clearly is holding that this capital petitioner’s failure to plead the requisite lack of culpable negligence must be raised by the State as an affirmative defense, because section 122 — 1 is not jurisdictional. If the court is correct in its analysis of this question, then the non-capital petitioner’s failure to plead the requisite lack of culpable negligence in filing an untimely petition should likewise be an affirmative defense because section 122 — 1 of the Act requires all petitioners to be timely or else demonstrate that the delay was not due to their culpable negligence. Therefore, today’s holding does, in fact, “limit” the circuit court’s ability to dismiss an untimely petition during its initial review pursuant to section 122— 2.1(a)(2) of the Act. Although my colleagues caution that this is not so, their position on this matter is inconsistent with their analysis of the jurisdictional question. This inconsistency renders the court’s conclusion on this issue ultimately unpersuasive. In my view, the overall structure of the Act indicates that the legislature intended for the courts to be able to dismiss untimely petitions that lack the requisite allegations regarding the lack of culpable negligence on their own motion, without input from the State at any time in both capital and non-capital cases. The court today has succeeded in changing the petitioner’s affirmative burden into an affirmative matter to be raised by the State, and the State alone, in a way that is contrary to the plain language of the Act. For this reason, I would refrain from adopting the approach endorsed by my colleague's.

In light of the above, I would hold that if a petitioner does not timely file a post-conviction petition and does not allege the lack of culpable negligence for the delay, the court cannot entertain the proceeding. In my view, section 122 — 1 defines jurisdiction and constitutes a condition precedent to the bringing of the statutory action. Therefore, it is incumbent on the defendant to comply with it, and it is equally essential that the courts take notice of the issue even when the State does not. Courts, at every level, have an obligation to raise the lack of jurisdiction sua sponte and to dismiss a pending action whenever it becomes apparent that jurisdiction does not exist. I, therefore, would affirm the circuit court’s dismissal on the basis that the court lacked jurisdiction to entertain the petition.

II

Although I would affirm the circuit court’s dismissal for the reasons set forth in section I of my concurrence, the court today does not. Rather, the court ultimately concludes that no basis exists to disturb the circuit court’s judgment because defendant’s second post-conviction petition was not “properly brought.” 189 Ill. 2d at 12. I recognize that, in light of my position on the jurisdictional question, I need not address these points. Nevertheless, I believe that the court’s analysis is not clear in setting forth the standards against which multiple post-conviction actions are judged.

Defendant’s initial justification as to why he believes that he can raise these claims in this petition is based on People v. Brim, 241 Ill. App. 3d 245 (1993). Yet, he also maintains, in the alternative, that the proceedings during his initial post-conviction action were “fundamentally deficient.” The genesis of this argument can be found in language that has routinely appeared in all of our decisions which deal with successive post-conviction petitions, i.e., that such petitions are allowed if or when the proceedings on the original petitions were said to be “deficient in some fundamental way.” See 189 Ill. 2d at 12; People v. Erickson, 183 Ill. 2d 213, 223 (1998); People v. Szabo, 183 Ill. 2d 19 , 23 (1998); see also People v. Flores, 153 Ill. 2d 264, 273-74 (1992) (and cases cited therein).

Our case law holds that a ruling on an initial post-conviction petition has res judicata effect with respect to claims that were raised or could have been raised in the initial petition. People v. Free, 122 Ill. 2d 367 (1988). However, as noted above, this court has allowed successive petitions when the proceedings on the original petitions were said to be deficient in some fundamental way. In Flores, this court attempted to attach some objective meaning to the amorphous phrase “deficient in some fundamental way.” A careful reading of our opinion reveals that the phrase speaks to the notion that the initial proceeding could not have allowed the opportunity for the claims raised in the successive petition to have been heard in that initial forum. Flores, 153 Ill. 2d at 274-75 . We noted that, in such cases, the ordinary procedural bars that are at play in collateral actions “may be ineffectual in bringing about that finality which ordinarily follows direct appeal and the first post-conviction proceeding.” Flores, 153 Ill. 2d at 275 . The court then undertook a thorough examination of the various types of claims a defendant may attempt to bring in a successive petition. Claims which attempt to seek relief from ineffective assistance of post-conviction counsel in the first proceeding are beyond the scope of the Act and cannot form the basis for relief in a successive action. Flores, 153 Ill. 2d at 275-77 . Ineffective assistance of counsel claims which could not have been raised in the prior proceeding, however, required a different analysis. Flores, 153 Ill. 2d at 277-80 . We acknowledged that concerns of “fundamental fairness” colored the inquiry into when the procedural bar could be relaxed in such cases and specifically noted that the federal “cause and prejudice” standard works to accomplish the same goal. Flores, 153 Ill. 2d at 278-79 . Under this analysis, the court concluded that constitutionally ineffective representation that could not have been raised in the initial post-conviction proceeding was “cause,” and such a claim could be considered in a successive proceeding. Flores, 153 Ill. 2d at 279-80 . The court also recognized that “cause” is satisfied by constitutionally ineffective assistance of counsel on direct appeal where attorneys were the same on direct appeal and in the prior collateral proceeding. Flores, 153 Ill. 2d at 279-80 . See also Erickson, 183 Ill. 2d at 228 (holding that, in a successive post-conviction petition, one claim of ineffective assistance of direct appellate counsel could be considered because counsel was the same on direct appeal and on the first post-conviction proceeding). We further acknowledged that, even in the absence of cause and prejudice, a court may, “nonetheless, entertain successive claims if necessary to prevent a fundamental miscarriage of justice.” Flores, 153 Ill. 2d at 279 . The court went on to address, on their merits, defendant Flores’ claims regarding ineffective assistance of appellate counsel. The court, however, found defendant’s third claim, which was not based on ineffective assistance of counsel, barred by res judicata. Flores, 153 Ill. 2d at 280-81 .

Our precedent, therefore, teaches that successive post-conviction petitions must be examined in detail to see if the claims asserted in them are truly barred by res judicata. To that end, each claim in a successive petition must be reviewed individually in order to first ascertain whether the claim is barred by res judicata. See Erickson, 183 Ill. 2d 213 . If the claim is found to be barred, the court must then determine whether some reason exists to excuse the bar so as to permit the court to reach the merits of the claim. As I noted above, this court in Flores stated that the inquiry into whether a procedural bar will be relaxed in the context of successive petitions turns upon considerations of “fundamental fairness.” This court’s position on what constitutes “fundamental fairness” was thoroughly set forth in People v. Owens, 129 Ill. 2d 303, 317-18 (1989) and bears repeating today:

“Where fundamental fairness requires, the rule of waiver will not be applied in post-conviction proceedings. [Citations.] The Supreme Court in Wainwright v. Sykes (1977), 433 U.S. 72 , 53 L. Ed. 2d 594 , 97 S. Ct. 2497 , described when it would be necessary for a court to consider the fundamental fairness principle when the prosecutor relies on a claim of waiver. There the Court held that ‘fundamental fairness’ requires courts to review procedurally defaulted claims in collateral proceedings only when a defendant shows cognizable ‘cause’ for his failure to make timely objection, and shows ‘actual prejudice’ flowing from the error now complained of.” Owens, 129 Ill. 2d at 317 .

The court in Owens went on to evaluate Owens’ claims using the same cause and prejudice standard as that employed by the federal courts in habeas corpus proceedings.

Although Owens does not speak to the cause and prejudice standard in the context of successive petitions under the Act, it does establish that this court has, in the past, equated the term “fundamental fairness” with the cause and prejudice standard. See Flores, 153 Ill. 2d at 278-80 (equating the standard with the concept of “fundamental fairness” in the context of successive petitions under the Act). See also People v. Whitehead, 169 Ill. 2d 355, 407 (1996) (Miller, J., specially concurring); Szabo, 186 Ill. 2d at 42-43 (Freeman, C.J., specially concurring, joined by Heiple, J.).

In my opinion, the time has come for this court to reaffirm these principles in the context of successive petitions for post-conviction relief brought under the Act. 5 As I stated in my special concurrence in Szabo, the cause and prejudice standard provides the best means for determining whether fundamental fairness dictates the relaxation of the procedural bar in cases' involving multiple petitions for post-conviction relief. In fact, the federal courts utilize the very same standard when evaluating successive habeas corpus actions, actions that the federal courts disfavor in much the same way Illinois courts disfavor successive post-conviction actions. In McCleskey v. Zant, the United States Supreme Court held that, in order to excuse the failure to raise the claim in an earlier habeas proceeding, a petitioner

“must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard.” McCleskey v. Zant, 499 U.S. 467, 494 , 113 L. Ed. 2d 517, 545 , 111 S. Ct. 1454, 1470 (1991).

The above standard is, as the United States Supreme Court has observed, an “objective one” which provides a “ ‘sound and workable means of channeling the discretion’ ” (McCleskey, 499 U.S. at 496 , 113 L. Ed. 2d at 546 , 111 S. Ct. at 1471 , quoting Murray v. Carrier, All U.S. 478, 497, 91 L. Ed. 2d 397, 414 , 106 S. Ct. 2639, 2650 (1986)) of the lower courts that entertain collateral attacks against a conviction. See Szabo, 186 Ill. 2d at 43 (Freeman, C.J., specially concurring, joined by Heiple, J.) (recognizing that, by acknowledging the cause and prejudice standard in Flores, the court attempted to “formulate objective guidelines to which the lower courts could turn in determining what constitutes a fundamental deficiency in prior post-conviction proceedings”).

To that end, this court has noted that the term “cause” denotes “ ‘ “some objective factor external to the defense [that] impeded counsel’s efforts” to raise the claim’ in an earlier proceeding.” Flores, 153 Ill. 2d at 279 , quoting McCleskey, 499 U.S. at 493 , 113 L. Ed. 2d at 544 , 111 S. Ct. at 1470 , quoting Murray v. Carrier, 477 U.S. 478, 488 , 91 L. Ed. 2d 397, 408 , 106 S. Ct. 2639, 2645 (1986). Moreover, the United States Supreme Court has identified objective factors that constitute cause to include “ 1 “interference by officials” ’ that makes compliance with the State’s procedural rule impracticable, and ‘a showing that the factual or legal basis for a claim was not reasonably available to counsel.’ [Citation.] In addition, constitutionally ‘[ineffective assistance of counsel ... is cause.’ [Citation.] Attorney error short of ineffective assistance of counsel, however, does not constitute cause ***.” McCleskey, 499 U.S. at 493-94 , 113 L. Ed. 2d at 544 , 111 S. Ct. at 1470 . To establish actual prejudice, a petitioner “must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Murray, 477 U.S. at 494 , 91 L. Ed. 2d at 412 , 106 S. Ct. at 2648 , quoting United States v. Frady, 456 U.S. 152, 170 , 71 L. Ed. 2d 816, 832 , 102 S. Ct. 1584, 1596 (1982). Moreover, even if a federal habeas petitioner cannot show cause and prejudice, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. In order to demonstrate a miscarriage of justice to excuse the application of the procedural bar, a petitioner must show actual innocence. See Sawyer v. Whitley, 505 U.S. 333 , 120 L. Ed. 2d 269 , 112 S. Ct. 2514 (1992). In the context of the death penalty, a defendant must show “by clear and convincing evidence that but for a constitutional error, no reasonable juror would [have found him or her] eligible for the death penalty under [the applicable state] law.” Sawyer, 505 U.S. at 348 , 120 L. Ed. 2d at 285 , 112 S. Ct. at 2523 .

In light of the above, I would employ the cause and prejudice standard in cases such as this in order to determine whether the claims in the successive petition can be considered on their merits. The need for this court to speak definitively as to fundamental fairness is all the more compelling here because the dissenting justice would reach the merits of the contentions raised in defendant’s second petition because of undefined “fundaméntale ] flaw[s]” in the defendant’s initial post-conviction proceeding. See 189 Ill. 2d at 45 (Harrison, J., dissenting). Regrettably, the court today misses the opportunity to provide the criminal bar with a cogent analytical framework within which successive post-conviction proceedings can be evaluated. A review of our docket over the last year reveals that this is the third case in which a successive petition has been reviewed by this court. See Erickson, 183 Ill. 2d 213 ; Szabo, 186 Ill. 2d 9 .1 am confident that it will not be our last. It is my hope that, in some future case, a majority of this court will provide both practitioners and our lower courts with some guidance in this area by recognizing the utility of employing an objective standard to guide consideration of successive post-conviction petitions.

JUSTICE McMORROW joins in this special concurrence.

There is no indication in the opinion that the State raised this “threshold” issue in the circuit court or on appeal.

That the General Assembly considers time to be an important element in such proceedings would seem beyond dispute given the fact that the General Assembly has, over the years, shortened the time within which such a proceeding may be brought absent the lack of culpable negligence. At one time, the Act allowed for the filing of a petition for up to 20 years after the rendition of a final judgment in a criminal proceeding. Subsequently, the legislature reduced the time period to 10 years and then later reduced the period to the three-year provision we address here today. As of January 1, 1996, the General Assembly again amended the section to require that the petition must be filed within 45 days of the appellant’s brief on direct appeal or three years from the date of conviction, whichever is sooner.

It must be pointed out that, with the filing of this opinion, five members of the current court have indicated that they endorse the use of a cause and prejudice standard in the context of post-conviction proceedings — myself and Justices Miller, Bilandic, Heiple and McMorrow.