People v. Wright

JUSTICE BILANDIC, also specially concurring:

I agree that the time limit in section 122 — 1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 (West 1994)) is a statute of limitations, and that the State waived its right to argue that defendant’s petition is untimely by failing to raise the issue in the trial court. I also agree that the issues raised in defendant’s second post-conviction petition are waived or barred by res judicata. I write separately, however, to set forth the proper method of resolving the claims in this successive post-conviction petition. As explained below, the “cause and prejudice” standard provides the best means for determining whether to relax the procedural bar in cases involving successive post-conviction petitions.

The Act contemplates the filing of only one post-conviction petition. People v. Flores, 153 Ill. 2d 264, 273 (1992); People v. Free, 122 Ill. 2d 367, 375 (1988). A defendant, therefore, faces an immense procedural hurdle when bringing a successive post-conviction petition. Section 122 — 3 of the Act provides that “[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122 — 3 (West 1994); Flores, 153 Ill. 2d at 274 ; Free, 122 Ill. 2d at 375-76 . Furthermore, a ruling on an initial post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. Flores, 153 Ill. 2d at 274 ; Free, 122 Ill. 2d at 376 .

In this case, defendant’s second post-conviction petition alleges (1) that the judge for defendant’s trial and sentencing hearing, as well as for both post-conviction proceedings, had a conflict of interest because he had prosecuted defendant for the armed violence conviction that the prosecution used as impeachment evidence during trial and as an aggravating factor during sentencing, and that defendant’s trial and appellate counsel were ineffective for failing to raise the conflict issue; (2) that the prosecutor had a conflict of interest because she was defendant’s attorney in the armed violence case in which the trial judge prosecuted defendant, and that defendant’s appellate counsel was ineffective for failing to raise the issue; (3) that defendant’s trial counsel was ineffective for failing to investigate, argue, and introduce available evidence that defendant should be found guilty but mentally ill; and (4) that defendant’s trial counsel was ineffective for failing to investigate and present available mitigating evidence of defendant’s mental deficiency and psychological problems. Defendant has waived the first three of these claims by failing to raise them in his first post-conviction petition. See 725 ILCS 5/122 — 3 (West 1994); Flores, 153 Ill. 2d at 274 ; Free, 122 Ill. 2d at 375-76 . As to the fourth argument, this court already rejected essentially the same argument on direct appeal from the denial of defendant’s first post-conviction petition. See People v. Wright, 149 Ill. 2d 36, 51 (1992) (Wright II). This argument is therefore barred by res judicata. See Flores, 153 Ill. 2d at 274 ; Free, 122 Ill. 2d at 376 .

This court has, however, held that a successive post-conviction petition may be considered where the proceedings on the initial post-conviction petition were deficient in some fundamental way. Flores, 153 Ill. 2d at 273-74 ; see also Free, 122 Ill. 2d at 376 , citing People v. Hollins, 51 Ill. 2d 68, 70 (1972); People v. Nichols, 51 Ill. 2d 244, 246 (1972); People v. Slaughter, 39 Ill. 2d 278, 285 (1968). This court has held that the strict application of procedural bars may be relaxed where “fundamental fairness” requires. Flores, 153 Ill. 2d at 274-75 , citing People v. Gaines, 105 Ill. 2d 79, 91 (1984); Hollins, 51 Ill. 2d at 70 ; Slaughter, 39 Ill. 2d at 285 . As this court has previously noted in the context of a first post-conviction petition, “fundamental fairness” requires us to review procedurally defaulted claims in collateral proceedings only when the defendant shows both “cause” for failing to raise the error earlier and “prejudice” resulting from the error. People v. Owens, 129 Ill. 2d 303, 317-18 (1989), citing Wainwright v. Sykes, 433 U.S. 72 , 53 L. Ed. 2d 594 , 97 S. Ct. 2497 (1977). Likewise, in the specific context of a successive post-conviction petition, this court has in the past equated the concept of fundamental fairness with the cause and prejudice standard. Flores, 153 Ill. 2d at 278-80 ; see also People v. Whitehead, 169 Ill. 2d 355, 407 (1996) (Miller, J., specially concurring); People v. Szabo, 186 Ill. 2d 19, 42-44 (1998) (Freeman, C.J., specially concurring, joined by Heiple, J.).

Moreover, federal courts use the cause and prejudice standard when evaluating successive habeas corpus actions. See, e.g., McCleskey v. Zant, 499 U.S. 467, 493-94 , 113 L. Ed. 2d 517, 544-45 , 111 S. Ct. 1454, 1470 (1991). Consequently, this court in Flores looked to United States Supreme Court decisions in defining the terms “cause” and “prejudice” in the context of a successive post-conviction petition. The Supreme Court has defined “cause” as an objective factor that impedes an attorney’s ability to raise a claim in an earlier proceeding. Flores, 153 Ill. 2d at 279 , citing McCleskey, 499 U.S. at 493 , 113 L. Ed. 2d at 544 , 111 S. Ct. at 1470 . “Prejudice” has been defined as an error which infects the entire trial to such a degree that the resulting conviction violates the defendant’s due process rights. Flores, 153 Ill. 2d at 279 , citing McCleskey, 499 U.S. at 493-94 , 113 L. Ed. 2d at 544 , 111 S. Ct. at 1470 . This court has stated that the cause and prejudice test “is similar to, and accomplishes no more than, our fundamental fairness concept.” Flores, 153 Ill. 2d at 279 .

Application of the cause and prejudice test to this case reveals that defendant remains procedurally barred from bringing this second post-conviction petition. Defendant has failed to sufficiently allege cause for failing to raise these claims earlier, and he has failed to sufficiently allege prejudice resulting from the alleged errors. Defendant argues as to each issue that fundamental fairness dictates that this court address his claims. In this regard, however, defendant merely claims that the attorneys who represented him on direct appeal were the same attorneys who represented him during the initial post-conviction proceedings. This court has implicitly recognized that a defendant may show cause for failing to raise in a first post-conviction petition an ineffective assistance of appellate counsel claim, where the same attorneys who represented defendant on direct appeal also represented defendant during the initial post-conviction proceedings. See Flores, 153 Ill. 2d at 281-82 . This situation establishes cause because it would be unreasonable to expect counsel to argue his or her own incompetency. Flores, 153 Ill. 2d at 282 .

In any event, as the majority discusses, the record refutes defendant’s claim that the attorneys who represented defendant on direct appeal were the same attorneys who represented defendant during the initial post-conviction proceedings. On direct appeal, defendant was represented by attorneys from the office of the State Appellate Defender. During the trial court proceedings on defendant’s first post-conviction petition, however, the Vermilion County public defender represented defendant.

As a final matter, defendant also appears to argue that fundamental fairness requires us to consider his second post-conviction petition because the judge for defendant’s trial, sentencing hearing, and both post-conviction proceedings should have recused himself from ruling on defendant’s first post-conviction petition. According to defendant, the judge could not impartially rule on defendant’s first post-conviction petition because the petition included an allegation that one of defendant’s trial attorneys was ineffective, and that this attorney had previously worked for the judge as an assistant State’s Attorney when the judge was the State’s Attorney. As the majority discusses, the judge was not required to recuse himself. The mere fact that a judge has a relationship with an attorney involved in the case is not sufficient to establish bias. See People v. Steidl, 111 Ill. 2d 239 ,' 264 (1997). Thus, this argument in no way warrants a relaxation of the procedural bar in this case.

For the foregoing reasons, I concur in the ultimate resolution of this case. I write separately to explain that the cause and prejudice standard provides the best means for determining whether to relax the procedural bar in cases involving successive post-conviction petitions.