                            ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           People v. Sutherland, 2013 IL App (1st) 113072




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      WILLIAM SUTHERLAND, Defendant-Appellant.



District & No.               First District, Fourth Division
                             Docket No. 1-11-3072


Filed                        June 28, 2013
Rehearing denied             August 13, 2013


Held                         The denial of defendant’s motion for leave to file a successive
(Note: This syllabus         postconviction petition alleging ineffective assistance of his trial and
constitutes no part of       appellate counsel was upheld over defendant’s contention that his failure
the opinion of the court     to show cause for his failure to raise the issue in his first postconviction
but has been prepared        proceedings should be excused because he was not represented by
by the Reporter of           counsel during the first-stage proceedings, since defendant failed to show
Decisions for the            that the claim of ineffective assistance had any arguable basis and thereby
convenience of the           was unable to satisfy the cause-and-prejudice standard for obtaining leave
reader.)
                             to file a successive petition.


Decision Under               Appeal from the Circuit Court of Cook County, No. 97-CR-12507; the
Review                       Hon. Clayton J. Crane, Judge, presiding.



Judgment                     Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
                           J. Keleher, and Joan F. Frazier, Assistant State’s Attorneys, of counsel),
                           for the People.


Panel                      PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
                           opinion.
                           Justices Epstein and Pucinski concurred in the judgment and opinion.



                                              OPINION

¶1          Defendant William Sutherland appeals from the denial of his pro se request to file a
        successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS
        5/122-1 et seq. (West 2010)). On appeal, he argues that under the United States Supreme
        Court’s recent case, Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), his failure to
        raise an ineffective assistance of trial counsel claim in his initial postconviction petition
        should be excused because he did not have the aid of legal counsel in drafting the petition.
        He contends that fact, plus the alleged prejudice, warrants reversal of the circuit court
        judgment. We affirm.

¶2                                        BACKGROUND
¶3          In August 1998, defendant was tried and convicted by a jury for the 1997 attempted
        murder of his former wife, Elaine Sutherland, and his stepdaughter, Erica Ellison. He was
        also convicted of home invasion. Trial evidence showed that following domestic abuse
        incidents, Elaine asked for a divorce, and defendant responded with a “threatening okay.”
        Around 11 p.m. that same evening, defendant burst into the room where Elaine and Erica
        were sleeping, turned on the light, then shot Elaine numerous times, in her forearm, chin,
        jaw, shoulder, and chest, and also shot five-year-old Erica in the face above her lip. Both
        victims survived. Elaine suffered permanent brain damage, including retrograde amnesia, as
        a result of the gunshot wounds but was able to testify at trial, albeit without any recollection
        of the shootings. Defendant’s conviction therefore rested on the identification testimony of
        Erica, who was a six-year-old at the time of trial. Erica testified that she watched as
        defendant shot her mother, “bam, bam, bam, bam,” forcing her to fall off the bed onto the
        floor before defendant turned the weapon on her. Erica knew it was defendant because she
        saw his face and saw he was wearing glasses. A neighbor who entered moments after the
        shooting testified that Erica’s exact words were, “Will done shot us.” Police were radioed
        to the scene around 11:20 p.m. Erica told three police officers that defendant shot her. She

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     identified him in photographs then and later identified him in court at trial.
¶4        The State also presented the testimony of another neighbor who saw a six-foot man,
     sporting glasses, a chin beard, and bearing a “crazy look,” digging inside his car trunk
     outside Elaine’s home around 10:30 p.m. on the evening in question; he walked up to the
     porch, turned around, looked at the neighbor, then returned to his car and eventually drove
     off. She later identified him as defendant. The State posited that defendant returned to
     Elaine’s home and committed the shooting about 11 p.m., leaving behind what the evidence
     technician later determined was a .22-caliber bullet. A search inside defendant’s trunk
     revealed there was a winter mask with the eyes cut out, even though it was April, and rubber
     hospital gloves.
¶5        Defendant’s theory of defense was misidentification. He argued that when Erica said her
     “daddy” was the shooter, she was referring to her biological father, even though she clarified
     to police officers that she was referring to “Will.” Testifying on his own behalf, defendant
     admitted that on the evening in question he, along with his three-year-old son by Elaine, was
     momentarily present outside Elaine’s home somewhere between 9 p.m. and 10 p.m., but
     denied entering the home or shooting Elaine and Erica. After knocking on the window of
     Elaine’s home and receiving no answer, he claimed to have driven to his father’s house,
     which was 10 to 15 minutes away. He was there but five minutes because he found his father
     was either drunk or asleep. He then left and returned to a family party. A former state
     correctional officer himself, defendant admitted having owned a .22-caliber pistol, although
     he denied owning one at the time of the shooting. At 6 feet and 3 inches, he also admittedly
     wore glasses and a chin beard at the time of the crime and at trial.
¶6        Six witnesses testified to either defendant’s whereabouts on the evening in question or
     to his peaceful reputation. Defendant’s cousin, for example, testified he left the family party
     around 9:40 p.m. and returned some time later, but she was not sure when; defendant’s sister
     gave similar testimony but added that defendant returned to the house shortly after 11 p.m.;
     defendant’s other sister testified that she was at the party but unaware of defendant’s
     presence or absence; finally, an acquaintance at the party testified that defendant left about
     10 p.m. and returned by about 10:30 p.m., but her watch was also broken. A seventh defense
     witness, Elaine’s neighbor, testified that she saw a car she recognized as defendant’s parked
     outside Elaine’s home about 10:30 p.m., but it was gone within 15 minutes; she saw flashing
     police lights about 11:20 p.m. An eighth defense witness testified she saw a man who was
     not defendant running near the crime scene but did not get a good look at him because she
     thought he had a gun. Initially, she testified this was around 11 p.m. or 11:30 p.m., but then
     said it was around 10:30 p.m. or 11 p.m., noting she did not have a watch.
¶7        The jury credited the State’s witnesses over the defense and determined defendant was
     guilty as charged. Defendant was sentenced to consecutive terms of 30 years’ imprisonment
     for the attempted murders of Elaine and Erica, as well as 30 years’ imprisonment for home
     invasion, resulting in a total 90-year prison term with the lesser charges merging.
¶8        Defendant filed a direct appeal raising a number of contentions, none of which related
     to trial counsel’s effectiveness. This court affirmed defendant’s convictions and sentence.
     People v. Sutherland, 317 Ill. App. 3d 1117 (2000), appeal denied, 195 Ill. 2d 594 (2001)


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       (table), cert. denied, 534 U.S. 1105 (2002).
¶9         In 2001, defendant, acting pro se, filed his first postconviction petition under the Act. He
       argued that perjured testimony had been introduced at trial, certain witnesses were not
       adequately impeached, he was denied the right to cross-examine Erica at the competency
       hearing and to present a defense, and the prosecutor committed misconduct. Defendant
       claimed that trial and/or appellate counsel was ineffective for these shortcomings. Notably,
       in the context of his prosecutorial misconduct claim, defendant asserted the prosecutor
       should have been precluded from arguing that the absence of defendant’s father (Sutherland
       Senior) as a trial witness implicated defendant’s culpability. For example, the prosecutor
       stated in closing that if defendant had really gone to his father’s house, the jury would have
       heard from Sutherland Senior. In the initial postconviction petition, defendant specifically
       argued his father was unavailable to testify because he was in the hospital at the time of trial.
       He cited hospital records in support. Defendant noted his argument could not have been
       raised on direct appeal because it involved facts outside the record.
¶ 10       The circuit court summarily dismissed the postconviction petition as frivolous and
       patently without merit on the basis of waiver and res judicata. Defendant appealed, and the
       dismissal was eventually affirmed. See People v. Sutherland, No. 1-01-3770 (2005)
       (unpublished order under Supreme Court Rule 23); see also People v. Sutherland, 345 Ill.
       App. 3d 937 (2004) (reversing the summary dismissal); People v. Sutherland, 216 Ill. 2d 727
       (2005) (supervisory order) (ordering the appellate court to reconsider the dismissal in light
       of People v. Blair, 215 Ill. 2d 427 (2005)).
¶ 11       Defendant then filed a petition for a writ of habeas corpus, which apparently raised many
       of the same arguments as the initial postconviction petition. The federal district court denied
       the habeas petition and also denied defendant’s request for a certificate of appealability. See
       United States ex rel. Sutherland v. Hulick, No. 07 C 3469 (N.D. Ill. Nov. 28, 2007); United
       States ex rel. Sutherland v. Hulick, No. 07 C 3469 (N.D. Ill. Feb. 8, 2008). The United States
       Court of Appeals for the Seventh Circuit affirmed the district court decision. Sutherland v.
       Gaetz, 581 F.3d 614 (7th Cir. 2009), cert. denied, ___ U.S. ___, 130 S. Ct. 2352 (2010).
¶ 12       In 2009, defendant filed a pro se petition under section 2-1401 of the Code of Civil
       Procedure (735 ILCS 5/2-1401 (West 2008)). He alleged the trial court issued an erroneous
       jury instruction as to identification testimony, rendering his conviction void. Defendant
       added that his trial counsel was ineffective for failing to “investigate the absence” of his
       father, Sutherland Senior. In support, defendant attached an October 1999 affidavit from his
       father in which Sutherland Senior stated that defendant was at his residence “at or about the
       time” Elaine was shot. Sutherland Senior detailed that defendant woke him up, they had a
       short conversation, then defendant left about 11:20 p.m. Sutherland Senior stated his home
       was at least 15 to 20 minutes from where the shooting occurred and explained he did not
       testify to these facts because he was hospitalized at the time of trial and unaware of the
       proceedings. The circuit court granted the State’s motion to dismiss the section 2-1401
       petition.
¶ 13       On September 29, 2010, defendant filed the instant pro se motion for leave to file a
       successive postconviction petition. Defendant raised claims relating to trial error, rehashing


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       many of the same arguments as before. In particular, he alleged yet again that trial counsel
       was ineffective for failing to investigate his father’s whereabouts and to call Sutherland
       Senior as a witness at trial or, at least, to obtain a continuance and appellate counsel was
       ineffective for failing to raise this issue on direct appeal. Although defendant referred to his
       father’s affidavit–stating Sutherland Senior could “attest” that defendant was at his residence
       when the shooting occurred and that Sutherland Senior did not testify because he was at the
       hospital and unaware of the trial proceedings–defendant did not append the affidavit to the
       petition.
¶ 14       The circuit court denied defendant leave to file a successive postconviction petition. The
       court concluded that the facts alleged had been available when defendant filed his first
       postconviction petition; as defendant had not identified any objective factor impeding his
       ability to raise the claims earlier, nor identified newly discovered evidence, the court
       concluded defendant failed to satisfy the requirements for filing a successive petition. This
       appeal followed.

¶ 15                                         ANALYSIS
¶ 16       The Post-Conviction Hearing Act provides a means for a criminal defendant to assert
       that, in the proceedings resulting in his conviction, there was a substantial denial of his
       constitutional rights. People v. Evans, 2013 IL 113471, ¶ 10. The Act permits the filing of
       only one petition without leave of court (725 ILCS 5/122-1(f) (West 2010)) and expressly
       provides that any claim not raised in the original or amended petition is waived (725 ILCS
       5/122-3 (West 2010)). To initiate a successive postconviction petition, a defendant must first
       obtain leave of court, and unless a defendant asserts actual innocence, leave of court is
       demonstrated only when a defendant shows the “more exacting” standard of cause for his
       failure to bring the claim in his initial postconviction petition and prejudice resulting from
       that failure. 725 ILCS 5/122-1(f) (West 2010); People v. Edwards, 2012 IL 111711, ¶¶ 22-
       29; People v. Conick, 232 Ill. 2d 132, 142 (2008). To show cause, a defendant must identify
       an objective factor that impeded his ability to raise a specific claim during his initial
       postconviction proceedings. Evans, 2013 IL 113471, ¶ 10. To show prejudice, a defendant
       must demonstrate that the claim not raised so infected the trial that the resulting conviction
       or sentence violated due process. Id. These elements serve as a procedural prerequisite to
       obtaining review on the merits (People v. Wyles, 383 Ill. App. 3d 271, 274 (2008)), and both
       must be satisfied for the defendant to prevail (People v. Guerrero, 2012 IL 112020, ¶ 15).
       A defendant faces “immense procedural default hurdles when bringing a successive post-
       conviction petition,” which “are lowered in very limited circumstances” because successive
       petitions “plague the finality of criminal litigation.” People v. Tenner, 206 Ill. 2d 381, 392
       (2002). In short, such actions are generally disfavored by Illinois courts. Edwards, 2012 IL
       111711, ¶ 29.
¶ 17       We review de novo defendant’s contention that he is entitled to file a successive
       postconviction petition with respect to the ineffective assistance of trial counsel claim. See
       People v. Thompson, 383 Ill. App. 3d 924, 929 (2008). On appeal, defendant acknowledges
       he has not shown “cause,” in the traditional sense, because the documents relating to his


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       father were available in 1999, prior to when he filed his first postconviction petition; as such,
       his claim is subject to the normal rules of waiver. See 725 ILCS 5/122-3 (West 2010).
       Nonetheless, relying on Martinez, defendant argues he should be excused from having to
       show cause and forgiven his procedural default because he was not represented by legal
       counsel during first-stage postconviction proceedings. In Martinez, the Supreme Court
       recognized its prior ruling that an attorney’s ignorance or inadvertence in a postconviction
       proceeding does not qualify as cause to excuse procedural default in a habeas proceeding
       (see Coleman v. Thompson, 501 U.S. 722, 752-53 (1991)), but then issued a “narrow
       exception” to that rule. Addressing Arizona criminal procedure, the Court held that when a
       state like Arizona proscribes raising ineffective assistance of trial counsel claims on direct
       appeal, and instead reserves them only for collateral proceedings, a prisoner may establish
       cause before habeas courts for default of that claim (1) where the state courts did not appoint
       counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial
       or (2) where appointed counsel in the initial-review collateral proceeding, when the claim
       should have been raised, was ineffective under Strickland standards. Martinez, 566 U.S. at
       ___, 132 S. Ct. at 1318. Martinez emphasized that its ruling would not “provide defendants
       a freestanding constitutional claim” requiring the appointment of counsel in initial-review
       collateral proceedings; instead, the Court stated it was an “equitable ruling.” Martinez, 566
       U.S. at ___, 132 S. Ct. at 1319; see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
       (there is no constitutional right to an attorney in state postconviction proceedings).
¶ 18       Defendant’s reliance on Martinez suffers from a number of infirmities, the most obvious
       of which is that Martinez addressed federal habeas law and specifically addressed Arizona
       criminal procedure. Unlike in Arizona, in Illinois, ineffective assistance claims generally can
       be raised after trial and on direct appeal. See People v. Krankel, 102 Ill. 2d 181, 188-89
       (1984); see also People v. Miller, 2013 IL App (1st) 111147, ¶ 41 (recognizing this
       distinction). Recognizing this, defendant counters by citing People v. Ligon, 239 Ill. 2d 94,
       112 (2010), to emphasize that “a collateral postconviction proceeding is most often the first
       point at which an ineffective assistance of counsel claim will be presented” (emphasis
       added). Defendant argues the instant claim could not have been raised on direct appeal, as
       it was outside the record, which is surely a distinction without difference. In addition, after
       briefs were filed in this case, defendant filed a motion to cite Trevino v. Thaler, ___ U.S.
       ___, 133 S. Ct. 1911 (2013), a just-issued United States Supreme Court case addressing
       whether Martinez applied in Texas, where a defendant similarly can “in theory” raise a claim
       of ineffective assistance of trial counsel on direct appeal, but “as a matter of procedural
       design and systemic operation” is forced to raise the claim in collateral proceedings. Trevino,
       ___ U.S. at ___, 133 S. Ct. at 1921. Trevino held this was not a meaningful distinction and
       Martinez therefore applied, allowing a federal habeas court to find “cause” in such an
       instance, thereby excusing a defendant’s procedural default. Trevino, ___ U.S. at ___, 133
       S. Ct. at 1921. Defendant now argues his case is analogous to Martinez and Trevino and
       further emphasizes that the Illinois Supreme Court has relied on the reasoning of federal
       habeas cases in adopting certain standards in postconviction proceedings, thus urging us to
       do the same. See, e.g., People v. Hodges, 234 Ill. 2d 1, 12-16 (2009); People v. Pitsonbarger,
       205 Ill. 2d 444, 459 (2002).


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¶ 19        While we appreciate the arguments raised by defendant’s very capable counsel, these
       positions ignore pronouncements on postconviction law by our own state supreme court that
       militate against defendant and are not necessarily at odds with Martinez or Trevino. The
       Illinois Supreme Court has long held that prisoners do not have a constitutional right to be
       represented by counsel in postconviction proceedings. People v. Suarez, 224 Ill. 2d 37, 42
       (2007); People v. Porter, 122 Ill. 2d 64, 75-77 (1988). This is so even where those
       proceedings are the first tier of review for an ineffective assistance of trial counsel claim.
       Ligon, 239 Ill. 2d at 113 (relying in part on Martinez v. Schriro, 623 F.3d 731 (9th Cir.
       2010), overruled in part by Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012)). Instead,
       as a matter of legislative grace, counsel may be appointed at second-stage postconviction
       proceedings. 725 ILCS 5/122-4 (West 2010). What’s more, in People v. Evans, 2013 IL
       113471, ¶ 13, our supreme court’s most recent case on successive postconviction petitions,
       the court held that the petitioner could not claim ignorance of the law as “cause” to justify
       the petitioner’s failure to include a claim in his initial postconviction petition. Yet, that is
       essentially the “cause” defendant now presents. Although college-educated, a fact hammered
       at during trial, defendant claims he did not have the wherewithal to draft an initial
       postconviction petition accusing his trial attorney of unreasonably failing to call a key alibi
       witness, defendant’s father, at trial. Under Evans, this argument does not fare well. In
       addition, Evans also declined to address certain questions swirling around the area of
       successive postconviction petitions and requested that the legislature take the opportunity to
       clarify the law. 2013 IL 113471, ¶¶ 12, 18. Given that, we need not add more to the mix.
¶ 20        Significantly, and most significantly, assuming Martinez were to apply here, defendant’s
       petition still could not survive even under the strictures of that case. Martinez held that to
       overcome procedural default, a defendant must demonstrate the underlying ineffective
       assistance claim is a substantial one, meaning one that has merit. Martinez, 566 U.S. at ___,
       132 S. Ct. at 1318. That, defendant simply cannot do. See Miller, 2013 IL App (1st) 111147,
       ¶ 41. And, this brings us to the prejudice prong of our own successive postconviction test in
       Illinois. As stated, the test for obtaining leave to file a successive postconviction petition is
       cause and prejudice, not cause or prejudice. We note that defendant failed to attach his
       father’s affidavit to his successive petition even though it is his burden to submit enough
       documentation for a court to make the determination of whether leave should be granted. See
       People v. Tidwell, 236 Ill. 2d 150, 161 (2010); see People v. Edwards, 2012 IL App (1st)
       091651, ¶¶ 28-29. Even assuming he had, defendant still cannot establish that the claimed
       error so infected the trial as to deny him due process. To establish ineffective assistance of
       counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must demonstrate
       (1) that trial counsel’s performance was objectively unreasonable and (2) that this deficient
       performance led to substantial prejudice. People v. Harris, 206 Ill. 2d 293, 303 (2002). As
       with the successive postconviction petition test, defendant would have to satisfy both prongs
       of the Strickland test, which he cannot do. See Harris, 206 Ill. 2d at 304.
¶ 21        Here, five-year-old Erica, in what can only be characterized as an excited utterance (see
       People v. Sutton, 233 Ill. 2d 89, 107-08 (2009)), told her neighbor a moment after the
       shooting that “Will done shot us,” then subsequently told three police officers the same, also
       identifying defendant in photographs then and later in court. This can be likened to the

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       excited utterance, “Oh, my God, *** Buster just shot Maria,” in the classic People v. Poland,
       22 Ill. 2d 175, 179-80 (1961). Erica’s identification of defendant as the shooter was
       unequivocal. Given that defendant had been married to her mother since Erica was about age
       one, we have no doubt that even a sleepy five-year-old could recognize her bespectacled
       stepfather under the scenario. The State presented evidence that Erica’s biological father
       neither looked like defendant nor lived in Chicago, thus rebutting defendant’s
       misidentification postulation. Significantly, the circumstantial evidence strongly supported
       the State’s theory. That evidence included defendant’s harassing behavior leading up to the
       day of the shooting, his menacing tone following Elaine’s request for a divorce, his presence
       at her home shortly before the shooting–a fact not only testified to by defendant but by a
       State and a defense witness–defendant’s admitted prior ownership of a .22-caliber gun, the
       discovery of surgical gloves and a face mask in defendant’s trunk, and defendant’s
       inconsistent testimony as to why he was even present at Elaine’s home that evening.
       Although defendant breathlessly urges that his father could have saved the case, defendant
       testified his father was drunk or asleep that evening! This does not invoke the image of a star
       witness. Defense counsel downplayed the significance of Sutherland Senior’s absence at trial
       during closing argument, which effectively rebutted the State’s claim that Sutherland Senior
       was a key witness. It also throws cold water on defendant’s postconviction argument before
       this court. It merits mention that Sutherland Senior’s proposed testimony does not even
       square up with defendant’s time line. Defendant testified he left for Elaine’s around 9 or 10
       p.m., and was there only momentarily before going to his father’s house. Sutherland Senior’s
       affidavit also contradicts the testimony of some alibi witnesses who said defendant was back
       at the house party by 10:30 p.m. or 11 p.m. Finally, Sutherland Senior’s proposed testimony
       taken at face value does not even rebut the State’s theory that defendant committed the
       shooting about 11 p.m.; defendant could have done so and then been at his father’s home,
       which defendant testified was 10 to 15 minutes away, by around 11:20 p.m. On this record,
       defense counsel’s decision not to call Sutherland Senior or to present evidence regarding his
       testimony seems reasonable. See Harris, 206 Ill. 2d at 303.
¶ 22        What’s more, defense counsel called eight witnesses on defendant’s behalf and
       persistently defended a case where the evidence left counsel with hardly any strategic choice
       at all. Given that counsel is presumed to act on sound strategy and judgment (Harris, 206 Ill.
       2d at 303-04), had defendant’s father been a truly worthwhile witness, the record supports
       that counsel would have pursued the matter. As it stands, defendant cannot establish either
       that his counsel was unreasonable in representing him in this specific regard or that there is
       a reasonable probability the testimony of his father would have been sufficient to overcome
       the State’s competent evidence against him or made defendant more believable and changed
       the outcome of the proceeding. See Harris, 206 Ill. 2d at 303-04.
¶ 23        Defendant has failed to establish that the underlying claim of ineffective assistance of
       trial counsel has even an arguable basis and has necessarily failed to establish the more
       stringent cause-and-prejudice standard to warrant granting leave to file a successive
       postconviction petition.
¶ 24        Finally, we note that after the State appellate defender filed the record and its brief in this
       appeal, defendant sought leave to file a pro se supplemental brief and reply brief, which this

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       court granted. While we have reviewed defendant’s supplemental briefs, they merit no more
       mention because a defendant cannot proceed both by counsel and pro se. People v. Flynn,
       341 Ill. App. 3d 813, 821 (2003). Defendant chose to proceed with legal representation on
       appeal, and he did not request the withdrawal of appellate counsel.

¶ 25                                     CONCLUSION
¶ 26       We therefore affirm the decision of the circuit court of Cook County denying defendant
       leave to file a successive postconviction petition.

¶ 27      Affirmed.




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