                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Edwards, 2012 IL App (1st) 091651




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



District & No.             First District, Sixth Division
                           Docket No. 1-09-1651


Filed                      February 17, 2012
Rehearing denied           March 20, 2012
Held                       The denial of defendant’s motion for leave to file a successive
(Note: This syllabus       postconviction petition alleging the ineffectiveness of his appellate
constitutes no part of     counsel was affirmed where defendant failed to show any prejudice under
the opinion of the court   the cause and prejudice test that would warrant the filing of a successive
but has been prepared      petition.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 94-CR-16717; the
Review                     Hon. Marcus R. Salone, Judge, presiding.


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

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                            Margaret M. Smith, Assistant State’s Attorneys, of counsel), for the
                            People.


Panel                       JUSTICE GARCIA delivered the judgment of the court, with opinion.
                            Justices Lampkin and Palmer concurred in the judgment and opinion.



                                              OPINION

¶1          Defendant Wayne Edwards appeals from the denial of a motion for leave to file a
        successive postconviction petition. The defendant was found guilty by a jury of criminal drug
        conspiracy and sentenced to 30 years in prison. While his direct appeal was pending, the
        defendant filed a pro se postconviction petition, which the circuit court summarily dismissed.
        His appeal from the dismissal of his first postconviction petition was consolidated with his
        direct appeal. We affirmed his conviction and the dismissal of his petition. Thereafter, the
        defendant sought leave to file a second postconviction petition in which he raised claims of
        ineffective assistance of trial counsel, appellate counsel, and postconviction counsel, circuit
        court error in its ruling on his first petition, and denial of due process. The circuit court
        denied leave to file the petition. Following the timely filing of his pro se motion to reconsider
        the denial of leave to file a successive petition, the defendant retained counsel, who filed a
        second amended motion to reconsider and reinstate the successive petition. While
        postconviction counsel’s motion was pending, the defendant filed pro se a third amended
        motion for leave to file the successive postconviction petition. He alleged cause and
        prejudice were demonstrated when the statute of limitations in effect at the time for filing
        postconviction petitions expired before his direct appeal was resolved. As a result, his claim
        that appellate counsel rendered ineffective assistance could only be raised in a successive
        postconviction petition. Following a hearing, the circuit court concluded the defendant failed
        to meet the cause and prejudice test to file a successive petition. We affirm.

¶2                                        BACKGROUND
¶3          On June 6, 1994, the defendant, with four codefendants, was charged by indictment with
        multiple counts of criminal drug conspiracy. The charges arose from drug sales by a street
        gang on the west side of Chicago. The indictment alleged that the defendant organized and
        supervised the wholesale and street-level retail distribution of heroin for the street gang.
        According to the indictment, the defendant oversaw the procurement, cutting, packaging, and
        distribution of the heroin and had others arrange meetings with individuals seeking to

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     purchase heroin.
¶4       On October 15, 1997, a jury found the defendant guilty of criminal drug conspiracy to
     deliver between 5 and 10 grams of heroin. He was also found guilty of conspiring to possess
     at least 15 grams but less than 100 grams of heroin with the intent to deliver. The circuit
     court sentenced the defendant to 30 years in prison. The defendant filed a timely notice of
     appeal.
¶5       On October 11, 2000, while his direct appeal was pending, the defendant filed his initial
     pro se postconviction petition. The statute of limitations then in effect under section 122-1(c)
     of the Post-Conviction Hearing Act (Act) required the filing of a postconviction petition
     within three years of the date of conviction. 725 ILCS 5/122-1(c) (West 2000) (“No
     proceedings under this Article shall be commenced more than *** 3 years from the date of
     conviction ***.”). The defendant alleged in his petition that the trial judge violated his
     constitutional rights by threatening to sentence him to the maximum 30-year prison term if
     he refused the judge’s offer of a 29-year sentence in exchange for a guilty plea. The circuit
     court summarily dismissed the initial petition on November 29, 2000. The defendant’s appeal
     from the summary dismissal of his first postconviction petition was consolidated with his
     direct appeal.
¶6       On November 26, 2002, this court affirmed the defendant’s conviction and the summary
     dismissal of his initial postconviction petition. People v. Edwards, 337 Ill. App. 3d 912
     (2002). In the unpublished portion of the opinion, we held that the defendant’s initial
     postconviction petition was subject to summary dismissal because it was unsupported by
     affidavits, records, or other evidence and provided no explanation for the absence of the
     required supporting documentation.
¶7       On April 13, 2004, the defendant filed his pro se motion seeking leave to file a
     successive postconviction petition. The successive petition included allegations of ineffective
     assistance of appellate counsel grounded in part on this court’s opinion that certain issues
     raised on appeal lacked citation to the record or legal authority, which resulted in the issues
     being forfeited. The defendant also faulted appellate counsel for failing to raise several trial
     errors and instances of trial counsel’s ineffectiveness.
¶8       On July 14, 2004, the circuit court denied the defendant’s request for leave to file the
     successive petition. On August 2, 2004, the defendant filed a motion to reconsider the circuit
     court’s denial, arguing (1) the court erred by dismissing his petition sua sponte after more
     than 90 days had passed since the filing of his petition in violation of section 122-2.1(a)(2)
     of the Act (725 ILCS 5/122-2.1(a)(2) (West 2004)), (2) the court erred by ruling on his
     petition when a motion for substitution of judge was pending, and (3) he did not receive
     notice of the denial of his petition within 10 days as required by section 122-2.1(a)(2) of the
     Act.
¶9       On August 12, 2004, the defendant filed a notice of appeal from the July 14, 2004 order.
     While the appeal was pending, retained counsel filed on April 11, 2005, a “Corrected Second
     Amended Motion to Reinstate Post Conviction Petition Because Any Order Of Dismissal
     Was Void,” reasserting that the dismissal of the successive petition was not entered within
     the statutorily prescribed 90 days of the filing of the successive postconviction petition and


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       that the defendant was not given notice of the dismissal within 10 days of its entry as
       provided by statute. This court dismissed the appeal as premature because the August 2, 2004
       motion to reconsider remained pending before the circuit court.
¶ 10        On August 23, 2007, retained counsel appeared before the circuit court to seek resolution
       of the pending motions. On February 27, 2009, before the pending motions were resolved,
       the defendant filed pro se a “Corrected 3rd Amended Motion to Reinstate Petition for Leave
       to file a Successive Post Conviction Petition under § 122-1(f).” The defendant argued he
       satisfied the statutory cause and prejudice test of the Act. He claimed cause to permit the
       filing of a successive postconviction petition based on the impending expiration of the statute
       of limitations for the filing of postconviction petitions in 2000, which forced him to file his
       initial postconviction petition while his direct appeal was pending. 725 ILCS 5/122-1(c)
       (West 2000). The defendant claimed he demonstrated prejudice by the meritorious claims
       of ineffectiveness of appellate counsel he raised, which would escape review if leave to file
       a successive postconviction petition were not granted and thus violate his due process rights.
       725 ILCS 5/122-1(f) (West 2004).
¶ 11        On May 21, 2009, the circuit court heard argument on the defendant’s motion to
       reconsider the denial of his successive petition. The court characterized the defendant’s
       motion to reconsider as a consolidated motion for leave to file a successive petition. The
       court denied the defendant’s motion. The court vacated its order of July 14, 2004, leaving
       the order of May 21, 2009, as the only order in which leave to file was denied. The defendant
       timely appeals.

¶ 12                                        ANALYSIS
¶ 13       The defendant raises the threshold issue of the amount of showing he must make to
       satisfy the cause and prejudice test for filing a successive postconviction petition. He
       contends he need only present a “gist” of cause and prejudice to permit the filing. He relies
       on a decision from the Second District that first addressed this issue in great detail. People
       v. LaPointe, 365 Ill. App. 3d 914, 922-23 (2006), aff’d on other grounds, 227 Ill. 2d 39
       (2007). The defendant argues he made a “gist” showing of cause and prejudice, which means
       the circuit court erred when it denied his motion for leave to file a successive postconviction
       petition. He asserts all the reasons given by the LaPointe appellate court decision in favor
       of the lower threshold “gist” standard to permit the filing of a successive petition.
¶ 14       The defendant asserts the circuit court’s denial of leave to file a successive
       postconviction petition constituted error because it “completely foreclosed [him] from
       challenging his appellate counsel’s actions in violation of his right to due process and to
       effective assistance of counsel.” The defendant asserts he demonstrated cause to permit a
       successive petition because he was forced to file his initial postconviction petition while his
       direct appeal was pending or be barred from filing his petition by the three-year filing period
       in effect at the time. 725 ILCS 5/122-1(c), (f) (West 2004). The defendant contends he
       established prejudice, as he states in his main brief, “because *** appellate counsel’s
       ineffectiveness [on direct appeal and appeal from the summary dismissal of] *** his initial
       petition precluded him from obtaining review of several potentially meritorious claims of


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       error at trial.”
¶ 15       The State rejects the proposition that the gist threshold applies to the cause and prejudice
       test. The State takes the position that the supreme court’s decision not to review the portion
       of the LaPointe opinion endorsing the gist standard for a cause and prejudice showing should
       be read as an implicit rejection of that standard. In LaPointe, the supreme court addressed
       only the defendant’s contention that his successive petition was required to be docketed
       because the dismissal order was entered 91 days after the petition was stamped as filed by
       the clerk’s office. LaPointe, 227 Ill. 2d at 42-44. At oral argument before this court, the State
       declined to take a position as to the threshold showing to satisfy the cause and prejudice test,
       other than to argue that a “gist” showing is insufficient to grant leave to file a successive
       petition. The State repeated its contention that a defendant must make “some showing”
       (greater than a gist) of both cause and prejudice to permit the filing of a successive petition
       under section 122-1(f) of the Act. As to the sufficiency of the defendant’s “cause and
       prejudice” motion in this case, the State concedes the defendant “has established cause for
       his failure to include the claims he sought to raise in a successive postconviction petition in
       his original post-conviction petition.” However, the State insists the defendant “has failed
       to demonstrate that his alleged claims so infected either his trial or his direct appeal that his
       resulting convictions violated due process” to satisfy the prejudice prong.
¶ 16       In 2004, the Illinois legislature amended the Act by adopting the cause and prejudice test
       for successive petitions first announced by the Illinois Supreme Court in People v.
       Pitsonbarger, 205 Ill. 2d 444 (2002). 725 ILCS 5/122-1(f) (West 2004). The Act was
       amended to reflect the legislature’s intent to limit a defendant to a single postconviction
       petition, except where a possible due process violation compels the filing of a successive
       petition. See 725 ILCS 5/122-1(f) (West 2004). Successive petitions are discouraged because
       “the defendant has already had ‘one complete opportunity to show a substantial denial of his
       constitutional rights.’ ” People v. Free, 122 Ill. 2d 367, 376 (1988) (quoting People v. Logan,
       72 Ill. 2d 358, 370 (1978)); see also People v. Mackey, 229 Ill. App. 3d 784, 788 (1992).
¶ 17       The legislative intent to limit successive petitions is also reflected in the enactment of
       section 22-105 of the Code of Civil Procedure (735 ILCS 5/22-105 (West 2006)), which
       mandates the assessment of fees and costs when a postconviction petition is found to be
       frivolous and patently without merit. See People v. Conick, 232 Ill. 2d 132, 141 (2008)
       (purpose of section 22-105 is “to curb the large number of frivolous collateral pleadings filed
       by prisoners which adversely affect the efficient administration of justice, and to compensate
       the courts for the time and expense incurred in processing and disposing of them”).
¶ 18       In People v. Flores, 153 Ill. 2d 264, 274 (1992), the supreme court noted the competing
       interests in assessing when successive postconviction petitions should be permitted to be
       filed.
           “On the one hand, there is the State’s interest in providing a forum for the vindication of
           the petitioner’s constitutional rights. On the other hand, the State has a legitimate interest
           in the finality of criminal litigation and judgments. ‘Without finality, the criminal law is
           deprived of much of its deterrent effect.’ The successive filing of post-conviction
           petitions plagues that finality.” Id. (quoting Teague v. Lane, 489 U.S. 288, 309 (1989)).


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¶ 19        Thus, the cause and prejudice test in section 122-1(f) of the Act balances the competing
       interests by limiting a successive petition only when its filing is necessary “to prevent a
       fundamental miscarriage of justice.” Pitsonbarger, 205 Ill. 2d at 459. Section 122-1(f)
       requires that a defendant first obtain “leave of court” to institute a successive postconviction
       proceeding. 725 ILCS 5/122-1(f) (West 2004); People v. Tidwell, 236 Ill. 2d 150, 157 (2010).
       Indeed, a successive petition “is not considered ‘filed’ for purposes of section 122-1(f), and
       further proceedings will not follow, until leave is granted, a determination dependent upon
       a defendant’s satisfaction of the cause-and-prejudice test.” Tidwell, 236 Ill. 2d at 161; People
       v. Wyles, 383 Ill. App. 3d 271, 274 (2008) (the presentation of a second postconviction
       petition does not necessarily trigger review of its merits). Cause and prejudice must be shown
       before leave of court is granted to file a successive petition. 725 ILCS 5/122-1(f) (West
       2004) (“Leave of court may be granted only if a petitioner demonstrates cause for his or her
       failure to bring the claim in his or her initial post-conviction proceedings and prejudice
       results from that failure.”). The 90-day statutory period within which the circuit court must
       rule or else trigger the automatic docketing of an initial postconviction petition for second-
       stage consideration does not apply to successive petitions until leave is granted to file the
       successive petition. LaPointe, 227 Ill. 2d at 44.
¶ 20        A defendant shows “cause” by identifying an objective factor external to the defense that
       impeded his efforts to raise his claim in the earlier proceeding. People v. Pitsonbarger, 205
       Ill. 2d 444, 462 (2002). “ ‘Prejudice’ exists where the defendant can show that the claimed
       constitutional error so infected his trial that the resulting conviction violated due process.”
       People v. Morgan, 212 Ill. 2d 148, 154 (2004). The cause and prejudice test is to be applied
       to individual claims, not to the petition as a whole. Pitsonbarger, 205 Ill. 2d at 462.
¶ 21        Generally, Illinois courts have adhered to the “more exacting” cause and prejudice
       standard when assessing a motion for leave to file a successive postconviction petition.
       Conick, 232 Ill. 2d at 142; see also People v. Tidwell, 236 Ill. 2d 150, 156 (2010); People v.
       Brown, 225 Ill. 2d 188, 206 (2007); People v. Pendleton, 223 Ill. 2d 458, 476 (2006); People
       v. Munoz, 406 Ill. App. 3d 844, 850-51 (2010); People v. McDonald, 405 Ill. App. 3d 131,
       135 (2010). The Conick court’s juxtaposing the review of an initial petition under the “ ‘gist’
       standard” and “a proffered successive petition subject to the more exacting cause and
       prejudice standard” (emphasis added) (Conick, 232 Ill. 2d at 142), calls into question the
       declaration in the Second District’s decision in LaPointe that “a section 122-1(f) motion need
       state only the gist of a meritorious claim of cause and prejudice.” LaPointe, 365 Ill. App. 3d
       at 924. The supreme court’s rejection in LaPointe that the 90-day period for docketing an
       initial petition applies to successive petitions also argues against the Second District’s
       position. LaPointe, 227 Ill. 2d at 44 (“LaPointe’s argument ignores the fact that the Act treats
       successive petitions differently than initial petitions.”).
¶ 22        Given the clear pronouncements from the Illinois Supreme Court that the successive
       petitions are treated differently from initial petitions and that the cause and prejudice test is
       “more exacting” than a “gist” showing, we are unpersuaded by the Second District’s
       conclusion that a gist showing of cause and prejudice is sufficient to permit the filing of a
       successive petition under section 122-1(f) of the Act. Nonetheless, we begin our examination
       of the defendant’s showing in this appeal with the “gist” showing. If the defendant fails to

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       satisfy the “gist” standard, then it necessarily follows that he cannot meet a “more exacting”
       standard.
¶ 23        A gist is something more than a bare allegation, but something less than a fully stated
       claim. See People v. Edwards, 197 Ill. 2d 239, 244 (2001). To satisfy the “gist” standard a
       pro se petition “must set forth some facts which can be corroborated and are objective in
       nature or contain some explanation as to why those facts are absent.” Delton, 227 Ill. 2d at
       254-55. See also People v. Jones, 399 Ill. App. 3d 341, 358 (2010) (where we noted that the
       supreme court’s decision in People v. Hodges, 234 Ill. 2d 1, 11 (2009), resolved the
       “tension” between the “gist” standard and the legal standard of “frivolous or patently without
       merit”).
¶ 24        In the instant appeal, the State concedes that a sufficient showing of the cause prong of
       the test has been satisfied here. It is fair to say that even if a substantial showing of cause
       were required, the defendant has met that burden. The defendant could not have raised his
       ineffective assistance of appellate counsel claims in his first postconviction petition given
       that he was forced to file his first petition while his direct appeal was pending. The defendant
       identified the statute of limitations then in existence as an “objective factor that impeded his
       *** ability to raise [this] specific claim during his *** initial post-conviction proceedings.”
       725 ILCS 5/122-1(f) (West 2004).
¶ 25        As in most cases, the dispute before us concerns the showing of prejudice. The defendant
       has the burden to plead sufficient facts and submit supporting documentation sufficient to
       allow the circuit court to make its prejudice determination. As with an initial postconviction
       filing, in considering a motion for leave to file a successive petition, all well-pleaded facts
       and supporting affidavits are taken as true. Pitsonbarger, 205 Ill. 2d at 455. A court
       considering whether leave to file a successive petition should be granted must keep in mind
       that “the defendant has already had one complete opportunity to show a substantial denial
       of his constitutional rights.” (Internal quotation marks omitted.) Free, 122 Ill. 2d at 376. We
       review de novo the circuit court’s denial of leave to file a successive petition. People v.
       McDonald, 405 Ill. App. 3d 131, 135 (2010).
¶ 26        The defendant contends he was prejudiced by appellate counsel’s omissions on two
       bases: (1) appellate counsel during his direct appeal failed to provide citations to the record
       or to authority in violation of Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) for
       certain arguments, which we ruled resulted in forfeiture of those issues in affirming his
       conviction and the summary dismissal of his initial postconviction petition; and (2) appellate
       counsel’s failure to raise several “potentially meritorious claims of trial error and trial
       counsel’s ineffectiveness.” According to the defendant, the circuit court’s denial of leave to
       file a successive postconviction petition violated his due process rights by foreclosing his
       challenge to appellate counsel’s performance. The defendant contends, “Because each of
       these claims has an arguable legal and factual basis in the record, they are sufficient to
       demonstrate the gist of a claim under Hodges.”
¶ 27        Problematic for the defendant, however, is that each of his contentions is founded on the
       trial court record. See People v. Rogers, 197 Ill. 2d 216, 222 (2001) (Illinois courts have
       “consistently upheld the dismissal of a post-conviction petition when the record from the


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       original trial proceedings contradicts the defendant’s allegations”).
¶ 28       His initial claim is that appellate counsel forfeited arguably meritorious claims by failing
       to provide this court with supporting citations, either to the record or case law, during the
       defendant’s direct appeal. Given that appellate counsel at bar has the same record that was
       available to counsel on direct appeal, if meritorious issues were forfeited, it would seem an
       easy matter to provide us with that which appellate counsel in his first appeal failed to
       provide. Yet, we are provided with no supporting record citation or case law that purports
       to support the defendant’s claim of ineffective assistance by the omissions of appellate
       counsel that resulted in the forfeiture of issues on direct appeal. Nor does our review of the
       record reveal such support.
¶ 29       As to his second claim, we are once again not provided with any record citation of the
       claimed “potentially meritorious claims of trial error and trial counsel’s ineffectiveness” that
       appellate counsel on direct appeal failed to recognize and bring to our attention. The irony
       of such unsupported claims by appellate counsel in the instant appeal regarding claims
       against appellate counsel on direct appeal is not lost upon this court. Illinois Supreme Court
       Rule 341(h)(7) (eff. July 1, 2008) applies to this appeal as it did to the defendant’s direct
       appeal. Without facts in the record to support arguments raised in the instant appeal, such
       arguments amount to no more than bare contentions, which do not merit consideration and
       are deemed forfeited. See People v. Perea, 347 Ill. App. 3d 26, 37 (2004) (defendants failed
       to articulate how their due process rights were violated). The defendant must demonstrate
       by citation to the record the “arguable” legal and factual bases, at a minimum, for his
       contentions of ineffectiveness of appellate counsel raised in his successive postconviction
       petition. A reviewing court is entitled to have issues clearly defined with pertinent authority
       cited and cohesive arguments presented; this court is not a repository into which an appellant
       may foist the burden of argument and research; it is neither the function nor the obligation
       of this court to act as an advocate or search the record for error. People v. Jacobs, 405 Ill.
       App. 3d 210, 218 (2010). The defendant’s bald contention that he was prejudiced by the
       performance of appellate counsel does not meet the standard of Rule 341(h)(7) (eff. July 1,
       2008).
¶ 30       Forfeiture aside, we have the full record before us. No showing of prejudice can be made
       when it is clear from our review that appellate counsel on direct appeal exercised
       professional judgment in finding no support for those issues we concluded were forfeited on
       direct appeal. Nor do we find support in the record of “potentially meritorious claims of trial
       error and trial counsel’s ineffectiveness” that were overlooked by appellate counsel on direct
       appeal. To the contrary, appellate counsel on direct appeal advocated, with supporting record
       citation and case law, those arguments that presented the best chance of success. “Appellate
       counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence
       of counsel to refrain from raising issues which, in his or her judgment, are without merit,
       unless counsel’s appraisal of the merits is patently wrong.” People v. Easley, 192 Ill. 2d 307,
       329 (2000). The defendant has made no showing that “potentially meritorious claims” the
       defendant now contends should have been raised had a better chance of success than those
       actually pursued. Simply because the arguments raised on direct appeal were not successful
       does not mean the choice to pursue them, over possible others, fell outside “the wide range

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       of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
¶ 31       To succeed in his claim of prejudice, the defendant would also have to overcome the
       strong presumption that appellate counsel’s representation was sound appellate strategy.
       While appellate counsel’s decision as to which issues to raise is not beyond review by this
       court, a review favorable to the defendant depends on citation to the record and the
       presentation of legal authority to support proffered arguments. In the instant case, we are
       presented with not even a “gist” showing that prejudice to the defendant arose from appellate
       counsel’s performance on direct appeal. We will not second-guess counsel’s decision to
       pursue certain issues on direct appeal when nothing more than the defendant’s bare
       contentions are offered to support his contention that “meritorious” issues were left
       undeveloped or omitted. See Easley, 192 Ill. 2d at 329 (“defendant has suffered no prejudice
       from counsel’s failure to raise [nonmeritorious issues] on appeal”).
¶ 32       No prejudice has been shown under the cause and prejudice test to warrant the filing of
       a successive petition for postconviction relief by this defendant. The defendant has failed to
       meet even the claimed minimum threshold level of a “gist” showing to permit the filing of
       a successive postconviction petition. See People v. Anderson, 375 Ill. App. 3d 121, 143
       (2007) (defendant did not “state the gist of a meritorious claim of ineffective assistance of
       counsel, because his assertion *** is directly refuted by the record below”). Though it is clear
       that a substantial showing was made as to “cause,” both prongs must be met before leave to
       file a successive petition will be granted. Here, where an insufficient showing of the
       prejudice prong was made, the cause and prejudice test has not been satisfied. Pitsonbarger,
       205 Ill. 2d at 466-67.

¶ 33                                      CONCLUSION
¶ 34       The circuit court did not err in denying the defendant’s motion for leave to file a
       successive postconviction petition, alleging ineffectiveness of appellate counsel. Under the
       facts of this case, the defendant failed to establish prejudice under section 122-1(f) of the
       Act. Accordingly, the cause and prejudice test has not been met.

¶ 35      Affirmed.




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