                                    No. 3-05-0122
                     _______________________________________
                               Filed February 16, 2006.
                       IN THE APPELLATE COURT OF ILLINOIS

                                       THIRD DISTRICT

                                           A.D., 2006

THE PEOPLE OF THE STATE         )
OF ILLINOIS,                    )      Appeal from the Circuit Court
                                )      for the 12th Judicial Circuit
      Plaintiff-Appellee,        )     Will County, Illinois
                                )
      v.                        )     No. 99-CF-189
                                )
CHRISTOPHER B. McDONALD,        )
                                )
                                )     Honorable Stephen D. White,
      Defendant-Appellant.      )     Judge, Presiding
                                )
                                )
_________________________________________________________________________
_____

     JUSTICE O=BRIEN delivered the opinion of the court:
______________________________________________________________________
                                  ________

       Defendant Christopher McDonald appeals from the trial court=s order dismissing his motion

to reconsider the summary dismissal of his second postconviction petition and summarily dismissing

his amended second postconviction petition. We affirm the trial court.

                                            FACTS

       Following a jury trial, defendant Christopher McDonald was found guilty of first degree

murder (720 ILCS 5/9-1(a)(2) (West 1998)), two counts of aggravated battery with a firearm (720

ILCS 5/12-4.2(a) (1) (West 1998)), aggravated discharge of a firearm (720 ILCS 5/24-1.2 (West

1998)), and unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1998)). McDonald

was sentenced to a total of 50 years= imprisonment. This court affirmed McDonald=s conviction in
People v. McDonald, 322 Ill. App. 3d 244, 749 N.E.2d 1066 (2001). McDonald filed a pro se

postconviction petition which was summarily dismissed by the trial court. The trial court=s order

was affirmed by this court in a Rule 23 order, People v. McDonald, 3-02-0650, August 29, 2003.

          McDonald filed a successive (second) postconviction petition on July 26, 2004. In his second

petition, McDonald alleged due process violations; that his legs were shackled during the trial

although the trial judge made no findings warranting shackling; that he was forced to testify while in

shackles; and that his trial counsel failed to object to the shackling. This petition was summarily

dismissed by the trial court as frivolous and without merit on September 15, 2004. On October 6,

2004, McDonald filed a motion to reconsider the summary dismissal of the July 26 petition. On

October 13, 2004 McDonald filed an amended second postconviction petition with affidavits

attached. The amended petition contained the allegations of the second petition with the additional

allegation that the jury had observed McDonald shackled and that the successive petition satisfied

the cause-and-prejudice test because McDonald became aware that his rights were violated only

after this court issued the opinions in People v. Doss, 347 Ill. App. 3d 418, 807 N.E.2d 697 (2004)

and People v. Martinez, 347 Ill. App. 3d 1001, 808 N.E.2d 1089 (2004). On December 20, 2004 the

trial court denied McDonald=s motion for reconsideration of the dismissal of the second

postconviction petition and summarily dismissed as frivolous and without merit the amended second

postconviction petition. Appellate counsel was appointed for McDonald and he follows with this

appeal.



                                             ANALYSIS

          On appeal, McDonald argues the trial court erred in summarily dismissing his


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second postconviction petition at the first stage of the postconviction proceedings because

the petition adequately alleged the gist of a meritorious constitutional claim. Despite the

absence of any indication in the record that he was shackled, McDonald asserts as evidence of this

fact that the standard operating procedure of the Will County sheriff=s department was to shackle

felony defendants. He bases this assertion on a statement from People v. Allen, in which the court

made a reference to the Will County sheriff=s department=s standard operating procedure of forcing

all felony defendants in custody to wear a stun belt when appearing in court. People v. Allen, 354 Ill.

App. 3d 442, 444, 821 N.E.2d 336, 337 (2004).

        The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 et seq. (West 2002)) provides a

three-stage process for the adjudication of postconviction petitions. People v. Boclair, 202 Ill. 2d 89,

99, 789 N.E.2d 734, 740 (2002). At the first stage, the circuit court determines whether the petition

is Afrivolous or is patently without merit.@ 725 ILCS 5/122-2.1(a) (2) (West 2002); Boclair, 202 Ill.

2d at 99, 789 N.E.2d at 740. At this summary review stage, the circuit court is required to make an

independent assessment whether the allegations in the petition, liberally construed and taken as true,

set forth the gist of a constitutional claim. Boclair, 202 Ill. 2d at 99-100, 789 N.E.2d at 740-41. If

the petition is found to be frivolous or patently without merit, the court shall dismiss the petition in a

written order, specifying the findings of fact and conclusions of law it made in reaching its decision

to dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2002). Trial courts may summarily dismiss

postconviction petitions as frivolous and patently without merit based on both res judicata and

waiver. People v. Blair, 215 Ill. 2d 427, 442, 831 N.E.2d 604, 614 (2005). Where a petitioner has

previously taken a direct appeal from a judgment of conviction, the judgment of the court of review

is res judicata as to all issues that were actually decided by the court. People v. Flores, 153 Ill. 2d


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264, 274, 606 N.E.2d 1078, 1083 (1992). Any other claims that could have been presented to the

court of review, if not presented, are waived. Flores, 153 Ill. 2d at 274, 606 N.E.2d at 1083.

        Further, a ruling on an initial postconviction petition has res judicata effect with respect to

all claims that were raised or could have been raised in the petition. Flores, 153 Ill. 2d at 274, 606

N.E.2d at 1083. Section 122-3 of the Act provides that any claim of a substantial denial of a

constitutional right not raised in a defendant=s original postconviction petition is waived. 725 ILCS

5/122-3 (West 2002); People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 620-21 (2002)

(stating that in the context of a successive postconviction petition, the procedural bar of waiver is not

merely a principle of judicial administration; it is an express requirement of the statute). Successive

petitions elicit unique policy considerations that are not implicated by the filing of the first petition.

People v.Smith, 341 Ill. App. 3d 530, 538, 794 N.E.2d 367, 376 (2003). There is less interest in

providing a forum for the vindication of a defendant=s constitutional rights in a successive

proceeding because the defendant has already been afforded an opportunity to raise such allegations

in his first petition. Smith, 341 Ill. App. 3d at 538, 794 N.E.2d at 376-77.

        A narrow exception to the rule prohibiting successive postconviction petitions holds that a

claim presented in a successive petition may be considered when the proceedings on the initial

petition were A>deficient in some fundamental way.=@ People v. Britt-El, 206 Ill. 2d 331, 339, 794

N.E.2d 204, 209 (2002), quoting Flores, 153 Ill. 2d at 273-74. To determine whether the procedural

hurdle to filing successive postconviction petitions should be lowered as required by fundamental

fairness, a court reviews the claim within the petition under a Acause and prejudice@ test. Smith, 341

Ill. App. 3d at 535, 794 N.E.2d at 374. The cause-and-prejudice test is itself a policy used in the

interest of finality to narrow the window of opportunity to present successive postconviction


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petitions. See Smith, 341 Ill. App. 3d at 539, 794 N.E.2d at 377. It is the defendant=s burden to

demonstrate both cause and prejudice for each claim raised in his successive petition. Smith, 341 Ill.

App. 3d at 536, 540, 794 N.E.2d at 374, 378.

       Cause is defined as an objective factor, external to the defense, that impeded the defendant=s

effort to raise the claim in an earlier proceeding. Smith, 341 Ill. App. 3d at 535-36, 794 N.E.2d at

374. Cause may include a showing that a constitutional claim is so novel that its legal basis was not

reasonably available to defendant=s counsel. Pitsonbarger, 205 Ill. 2d at 461, 793 N.E.2d at 622.

Prejudice is defined as A>an error which so infected the entire trial that the resulting conviction

violates due process.=@ Britt-El, 206 Ill. 2d at 339, 794 N.E.2d at 209, quoting People v. Jones, 191

Ill. 2d 194, 199 (2000). Other than meeting the requirements of the cause and prejudice test, a

defendant will be excused for a failure to raise a claim in an earlier petition only if necessary to

prevent a fundamental miscarriage of justice. Smith, 341 Ill. App. 3d at 536, 794 N.E.2d at 374.

When a case does not involve the death penalty, to show a fundamental miscarriage of justice, a

defendant must show actual innocence. Smith, 341 Ill. App. 3d at 536, 794 N.E.2d at 374.

       In the instant case, McDonald does not claim actual innocence in his successive petition;

therefore, the claims raised in his second and amended second petition must be considered waived

unless application of the cause and prejudice test indicates otherwise. McDonald asserts that the

cause prong of the test is satisfied because until he read this court=s decisions in Martinez and Doss,

he assumed that shackling of felony defendants was legal. See People v. Doss, 347 Ill. App. 3d 418,

807 N.E.2d 697 (2004); People v. Martinez, 347 Ill. App. 3d 1001, 808 N.E.2d 1089 (2004) (a direct

appeal taking issue with the use of a stun belt on the defendant during trial). McDonald

acknowledges that as early as 1977, in the case of People v. Boose, the supreme court stated that


                                                  5
shackling of an accused had been held an undesirable practice unless the trial judge found such a

restraint reasonably necessary to maintain order. People v. Boose, 66 Ill. 2d 261, 265-66, 362

N.E.2d 202, 305 (1977). In Doss, this court concluded that the trial court=s statement that the judge

believed the jurors could not see the shackles, as their view was obstructed by a table, was

insufficient under Boose to satisfy the requirement that the trial court find compelling reason to

shackle the defendant during trial. Doss, 347 Ill. App. 3d at 428, 807 N.E.2d at 705.

        The existence of the rulings in Doss and Martinez do not support McDonald=s assertion that

he was impeded in raising the issue of shackling in his earlier postconviction petition. The rulings of

Doss and Martinez do not involve novel legal analysis. Although the use of stun belts may be

relatively new, the guidelines and rationale the courts use to address the potential for stun belt abuse

are the same principles used to safeguard against the abuse of shackling. See Martinez, 347 Ill. App.

3d at 1003-04, 808 N.E.2d at 1091-92. Furthermore, McDonald does not allege he was subjected to

a stun belt. As McDonald acknowledges, the use of shackles on a defendant during trial is an issue

that has been raised in previous cases. Even if the issue lacked precedent, the lack of precedent in

itself is not the same as cause for failing to raise an issue. People v. Purnell, 356 Ill. App. 3d 524,

531, 825 N.E.2d 1234, 1240 (2005) (stating that even if the law is against him, the defendant must

raise the issue to preserve it for review). McDonald has failed to meet his burden of showing he was

prevented by some objective external factor from presenting his claims in an earlier proceeding. For

this reason, he has waived the right to bring the claims in a successive petition, and the trial court=s

summary dismissal of the petition was not error.

        For these reasons the judgment of the circuit court of Will County is affirmed.

        Affirmed.


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HOLDRIDGE and SLATER, JJ., concur.




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