People v. Blair

JUSTICE FREEMAN, dissenting:

I believe the analysis offered by the court in support of its result is fundamentally inconsistent with previous decisions issued by this court in the area of postconviction litigation. I, therefore, must respectfully dissent.

Defendant maintains in this appeal that the Post-Conviction Hearing Act does not allow for summary dismissal on the basis of res judicata and waiver. 3 The State responds that claims that are subject to res judicata and procedural default constitute claims that are either “frivolous” or “patently without merit” and are therefore subject to summary dismissal under the plain language of section 122 — 2.1 of the Act.

Our Post-Conviction Hearing Act provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. See 725 ILCS 5/122 — 1 et seq. (West 2000). Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. Section 122 — 2.1 of the Act speaks to orders of dismissal. The statute requires that within 90 days after the filing and docketing of each petition, the circuit court must examine the petition and enter one of two orders set forth within the subsections of the statute. Relevant to this appeal is section 122 — 2.1(a)(2), which states:

“If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law made in reaching its decision.” 725 ILCS 5/122 — 2.1(a)(2) (West 2000).

At this juncture in the proceedings, the Act does not allow the State the opportunity to raise any arguments against the petition. The Act, at this point, provides only that “[i]n considering a petition pursuant to [section 122 — 2.1], the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.” 725 ILCS 5/122— 2.1(c) (West 2000). Thus, at this initial stage of the proceedings, the circuit court is acting solely on the filed petition, without any input from the State. This court has held that to survive dismissal at this stage, the petition need only state “the gist of a constitutional claim.” People v. Gaultney, 174 Ill. 2d 410, 418 (1996). If the petition survives this initial stage, the proceeding advances to the second stage, where the circuit court may then appoint counsel to represent an indigent petitioner (725 ILCS 5/122 — 4 (West 2000)), with counsel being given the opportunity to amend the petition (725 ILCS 5/122 — 5 (West 2000)). At this second stage, the Act requires that the State either file an answer or move to dismiss the petition. 725 ILCS 5/122 — 5 (West 2000). If the petition is not dismissed at the second stage, the proceeding advances to the third stage, where an evidentiary hearing can be held. 725 ILCS 5/122 — 6 (West 2000).

In this case, we must determine whether claims that are procedurally defaulted or res judicata constitute claims that are “frivolous” or “patently without merit” so as to qualify for summary dismissal under section 122 — 2.1. In construing a statute, courts should consider the statutory language and give effect to the language of the Act as written when that language is clear. People v. Rivera, 198 Ill. 2d 364, 371 (2001). It must be initially pointed out that the term res judicata is not used within the Act. The term waiver appears only in section 122 — 3, which 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 2000). This is not the type of “waiver” that is at issue in this case. Moreover, the Act does not define the terms “frivolous” or “patently without merit.” In People v. Boclair, 202 Ill. 2d 89 (2002), this court addressed what constitutes a “frivolous or patently without merit” petition in the context of whether the circuit court could dismiss, at the summary stage, a postconviction petition on timeliness grounds. We held that such a dismissal was not proper under the Act. In so holding, we construed section 122 — 2.1 to require the circuit court, at that stage of the proceedings, to “measuret ] a petition’s substantive virtue rather than its procedural compliance.” Boclair, 202 Ill. 2d at 102 . This view was espoused by all members of the court. See Boclair, 202 Ill. 2d at 124 (McMorrow, J., specially concurring, joined by Freeman, J.) (noting that opinion stands for the proposition that “matters of ‘procedural compliance’ [citation] may not be considered in the initial stage of post-conviction review” (emphasis in original)); Boclair, 202 Ill. 2d at 143 (Thomas, J., specially concurring, joined by Fitzgerald, J.) (noting that in determining whether a postconviction petition is frivolous or patently without merit, the trial court may not consider whether the petition suffers from a procedural defect).

I believe today’s decision is inconsistent with the principles we established in Boclair. Like timeliness, the doctrines of procedural default and res judicata do not address the question of whether a claim is frivolous or patently without merit. Instead, both doctrines serve as procedural devices intended to preclude a court from considering in the first instance the substantive merits of the claim. A claim that is procedurally defaulted is not necessarily without substantive merit. It is because of this very fact, i.e., that such claims may in fact warrant relief, that courts have developed exceptions which serve to excuse the procedural bar. See People v. Simpson, 204 Ill. 2d 536, 552 (2001) (acknowledging in postconviction proceeding that procedural default can be excused upon petitioner’s showing of “cause and prejudice”). It is also why procedural default, in particular, is in the nature of an affirmative defense in that the State must raise it or forfeit it. See People v. O’Neal, 104 Ill. 2d 399, 407 (1984) (noting that principles of procedural default apply to the State as well as to defendants in criminal cases); People v. Holloway, 86 Ill. 2d 78, 91 (1981) (same). The fact that the State can “waive waiver” reinforces the fact that the doctrine is an affirmative matter that must be raised by the State — this court has repeatedly stated that the doctrine does not constitute “a jurisdictional or absolute bar to review of procedurally defaulted claims.” Simpson, 204 Ill. 2d at 552 .

Despite the plethora of case law that establishes that the doctrines of res judicata and procedural default serve as procedural bars to review of the substantive merits of a claim, the court today, throughout its analysis, characterizes the doctrines as substantive components in determining whether a claim is frivolous or patently without merit. The court concludes that the legislature intended that the phrase “ ‘frivolous or *** patently without merit’ encompasses res judicata and forfeiture” because “[determinations of res judicata and forfeiture are inherently legal determinations which may bar relief under the Act.” 215 Ill. 2d at 445. The court, however, fails to take into account that the question of whether a claim is barred by the doctrines of res judicata and forfeiture is not always a purely legal one. There are recognized exceptions to both doctrines that may cause a court to excuse the procedural bar and reach the substantive merits of a claim, and the summary stage of the post-conviction proceeding is not always the appropriate venue to engage in the analysis that is sometimes necessary to answer whether those exceptions have been met. For example, as I have noted, this court has recognized that a claim can be heard on its merits even if that claim could have been raised before if defendant shows cognizable cause for his failure to make timely objections, and shows actual prejudice flowing from the error complained of. See, e.g., People v. Hudson, 195 Ill. 2d 117, 123 (2001) (citing cause and prejudice standard used in postconviction litigation). Oftentimes, in order to determine whether that standard is met, a court may have to hold an evidentiary hearing. See Hudson, 195 Ill. 2d at 137 , citing United States ex rel. Veal v. DeRdbertis, 693 F.2d 642 (7th Cir. 1982). Likewise, res judicata can be defeated if the ends of justice so require. See People v. Tenner, 206 Ill. 2d 381, 402 (2002) (Freeman, J., specially concurring). Thus, the court is wrong to conclude that the determinations surrounding res judicata and procedural default are strictly questions of law. The determination can often raise mixed questions of law and fact which are inherently unsuitable for summary treatment.

The court acknowledges that exceptions to the doctrines exist which may allow an otherwise barred claim to proceed (215 Ill. 2d at 450), but implies that these exceptions are of no moment at the first stage because a petitioner is protected by other means with which to assert these exceptions. The court’s attempts to demonstrate the viability of these other means miss the mark entirely. For example, the court suggests that a petitioner has the ability to respond to a circuit court’s summary dismissal by filing a motion to reconsider. 215 Ill. 2d at 451. My colleagues, however, overlook the fact that filing such a motion would be a largely futile gesture since any legal points sufficient to challenge the initial ruling are beyond the ken of a pro se litigant. The court also states that a petitioner can challenge the summary dismissal on appeal (215 Ill. 2d at 451), an option which would necessitate appointment of counsel, participation of the State, and review by an appellate court, thereby expending even more judicial resources than would have been expended by simply advancing the matter to the second stage. The court also states that successive petitions can be filed as well. 215 Ill. 2d at 451. Successive postconviction petitions, however, are disfavored by law and subject to even greater procedural hoops than an original petition. The court’s attempt to play down the exceptions to the doctrines of res judicata and procedural default are not at all persuasive.

In my view, the plain language of the Act reveals that affirmative defenses such as procedural default and res judicata are more properly addressed during second stage proceedings held pursuant to sections 122 — 4 and 122 — 5 of the Act. As noted at the outset of this dissent, these statutes allow for the (i) appointment of counsel, (ii) amendment of pleadings, and (iii) appearance by the State to answer or move to dismiss. The availability of responsive pleadings at the second stage of a postconviction proceeding seemingly would suggest that the legislature intended to establish a statutory scheme for postconviction litigation which commences with an initial administrative screening by the trial court and proceeds forward in a normal, two-party adversarial setting. To hold as the court does today completely eliminates the State’s role in filing motions to dismiss under section 122 — 5 in cases where defendants are not under sentence of death. I know of no rule of statutory construction which would allow for such a result. 4

I note that the court also cites the language of section 122 — 2.1, which authorizes the circuit court during the summary dismissal stage to examine the record from the underlying proceedings, as support for its conclusion in this area.

“[W]hen evaluating a petition, a trial court ‘may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.’ [Citation.] This provision does not limit a court’s review of the record and appellate court ruling to determine if only the petition’s factual allegations are rebutted. Rather, on the basis of facts and legal rulings that are ascertainable from the court file, appellate court action, and any transcripts, a court may also determine if legal claims have been decided or could have been raised, thus rebutting the claims contained in the petition.” 215 Ill. 2d at 446.

While I agree that section 122 — 2.1(c) authorizes the circuit court to examine the underlying record, I do not read that section as authorizing the circuit court at the first stage of the proceeding not only to examine the record in order to determine whether an affirmative defense such as procedural default is available to act as a bar to the claim raised by the defendant, but to resolve the issue in summary fashion. As I have demonstrated, the question of whether a claim is barred by either procedural default or res judicata can be a complex one. Allowing the circuit court to engage in such questions at the summary dismissal stage runs counter to the “administrative” role that this court has stated our legislature intended for the circuit court at that stage. See People v. Rivera, 198 Ill. 2d 364, 373 (2001) (holding that “the summary dismissal stage of the post-conviction proceeding does nothing more than allow the circuit court to act strictly in an administrative capacity by screening out those petitions which are without legal substance or are obviously without merit”). In this way, today’s opinion is inconsistent with Rivera. Rather than simplifying the circuit court’s job, today’s holding gives that court even more substantive responsibilities. Today’s holding in no way comports with our holding in Rivera that the circuit court is to act strictly in an administrative capacity at the initial summary stage of postconviction litigation. Rather, it requires the judge to don not only an administrative hat at this stage, but an adversarial one as well. A judge’s function, however, is not to advocate. I find the court’s attempt to play down the dual function its holding requires the circuit court to undertake (215 Ill. 2d at 449) to be utterly unpersuasive. Reviewing a criminal record in the manner contemplated by my colleagues— without any assistance or input from the parties— requires that a considerable amount of time be expended to the case by the judge. My colleagues seem to forget that the typical criminal judge’s docket contains multiple postconviction petitions and that, for each petition, the judge will be required to devote a considerable period of time to scouring the record for procedural bars to relief and possible exceptions thereto. The plain language of section 122 — 2.1 does not require that our criminal judges shoulder such a burden, and I see no legitimate reason for this court to hold otherwise.

As a final matter, I wish to point out that it strains logic for this court to hold as it did in Boclair, i.e., that the circuit court at the summary stage cannot rule on the timeliness of a petition — a fact easily ascertainable by a simple glance at a calendar — but rather the circuit court must allow the matter to be raised only by the State at the second stage of the proceedings; and yet today, hold that the circuit court can rule on potentially complex procedural bars without any input from the parties at all. I submit that both Boclair and Rivera stand for the proposition that at the summary dismissal stage, the circuit court functions administratively and is limited to determining whether the petition states the gist of a constitutional claim. All other concerns, i.e., whether the petition is timely, whether procedural bars exist or should be excused, are deferred to the second stage of the post-conviction proceeding, where the court would have the assistance of briefs and argument from both the petitioner and the State. Today’s holding does nothing more than turn the circuit court into an advocate against the petitioner as well as his or her judge.

In light of the above, I respectfully dissent.

CHIEF JUSTICE McMORROW and JUSTICE KIL-BRIDE join in this dissent.

I have pointed out, in previous writings while on this court, that what is meant by the term “waiver” in this context is more precisely a “procedural default” — waiver implies a knowing relinquishment of a right whereas procedural default refers to the failure to adequately preserve an issue for later appellate review. See, e.g., People v. Jung, 192 Ill. 2d 1, 11 (2000) (Freeman, J., specially concurring, joined by Miller and McMorrow, JJ.); People v. Terrell, 185 Ill. 2d 467, 522 (1998) (Freeman, C.J., specially concurring, joined by McMorrow, J.)

I note that the court relies on a statement from Kepresentative Johnson during the legislative debate of the future section 122 — 2.1 where he stated that claims subject to “ ‘waver [sic] and ratio cogno [sic]’ ” cannot be raised again and that these kinds of claims, among others, are subject to summary dismissal. 215 Ill. 2d at 438, quoting 83d Ill. Gen. Assem., House Proceedings, June 21, 1983, at 96 (statements of Representative Johnson). While I do not dispute that the legislature may have intended that such claims be subject to summary dismissal, the legal doctrines of both res judicata and procedural default are subject to well-known and familiar judicial exceptions that are not suited for litigation at the summary dismissal level. The legislative debate reveals that the legislature did not consider the judicial exceptions to the rule nor did it consider how the exceptions might fit within the summary dismissal structure. Thus, the fact that section 122 — 2.1 does not list examples such as those that Representative Johnson gave on the House floor to define the terms “frivolous” and “patently without merit” suggests that the General Assembly sought to leave the matter of deciding what constituted “frivolous” and “patently without merit” claims to the judiciary.