                                     2013 IL App (1st) 113263
                                                                               FIFTH DIVISION
                                                                               December 31, 2013

No. 1-11-3263

THE PEOPLE OF THE STATE OF ILLINOIS,                            )   Appeal from
                                                                )   the Circuit Court
       Plaintiff-Appellee,                                      )   of Cook County
                                                                )
                v.                                              )   No. 98 CR 22907
                                                                )
TRAMAINE JONES                                                  )   Honorable
                                                                )   Thomas M. Davy,
       Defendant-Appellant.                                     )   Judge Presiding.


       JUSTICE PALMER delivered the judgment of the court, with opinion.
       Justices McBride and Taylor concurred in the judgment and opinion.

                                             OPINION

¶1     Defendant, Tramaine Jones,1 appeals from the September 30, 2011 order of the circuit

court dismissing his successive postconviction petition. The summary dismissal of defendant's

initial pro se postconviction petition was affirmed by this court (see People v. Jones, 341 Ill.

App. 3d 103 (2003) (Jones I), and ultimately by our supreme court (see People v. Jones, 213 Ill.

2d 498 (2004)). The historical path that this case took to the supreme court, including the

original proceedings in the trial court where the defendant pled guilty to the charge of attempted

first degree murder, postjudgment motions to reduce his sentence and to withdraw the guilty plea,

the dismissal of the original pro se postconviction petition, the first appeal to this court (Jones I)

and the granting of leave to appeal to the supreme court, are clearly set forth in our court's

previous opinion and the opinion of the supreme court and will not be repeated here.

1
        Defendant's first name is spelled Termaine, Tremaine, and Tramaine at various points
throughout the record. For the sake of consistency we have used the "Tramaine" spelling used in
the previous published opinions regarding this matter.
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¶2     Our supreme court, in affirming this court's decision in Jones I, rejected the defendant's

attempt to raise the issue of improper plea admonitions for the first time on appeal after the

dismissal of an original postconviction petition.1 The court noted that section 122-3 of the

Illinois Post-Conviction Hearing Act (the Act) provides,"[a]ny claim of substantial denial of

constitutional rights not raised in the original or an amended petition is waived." Jones, 213 Ill.

2d at 504 (quoting 725 ILCS 5/122-3 (West 2000)). Then citing to its recent decision in People

v. Jones, 211 Ill. 2d 140 (2004), the court acknowledged the following:

               " '[T]his holding does not leave a postconviction petitioner such as defendant

       entirely without recourse. A defendant who fails to include an issue in his original or

       amended postconviction petition, although precluded from raising the issue on appeal

       from the petition's dismissal, may raise the issue in a successive petition if he can meet

       the strictures of the "cause and prejudice test." ' " Jones, 213 Ill. 2d at 508 (quoting

       Jones, 211 Ill. 2d at 148-49).

In holding that this defendant's proper vehicle for his improper admonishment claim is a



1
         On appeal and for the first time, defendant contended that he was improperly admonished
at the time he entered into a negotiated plea of guilty that if he wanted to appeal he first had to
file a motion to withdraw his guilty plea or a motion to reconsider his sentence within 30 days.
As the supreme court noted in Jones, 213 Ill. 2d at 500 n.1:
                  "Although the circuit court's admonishment adhered to the text of Rule 605(b)(2),
         the admonishment was legally inaccurate. As this court explained in People v. Evans,
         174 Ill. 2d 320, 332 (1996), a defendant can only challenge his sentence following the
         entry of judgment on a negotiated guilty plea by filing a motion to withdraw the guilty
         plea, not by filing a motion to reconsider sentence. Rule 605 was amended, effective
         November 1, 2000, to add subsection (c), which complied with the holding in Evans. See
         188 Ill. 2d R. 605(c)."

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successive postconviction petition, the court concluded in saying:

       "As we noted in Jones, when appellate counsel discover errors not raised by their clients

       during the summary, first-stage postconviction proceedings, the proper course of action

       for counsel to take is to file a successive petition in which the newly found claim is

       properly alleged." Jones, 213 Ill. 2d at 509 (citing Jones, 211 Ill. 2d at 148-49).

In an attempt to follow the supreme court's guidance, the defendant subsequently decided to

proceed by way of a successive pro se postconviction petition (successive pro se petition)

Importantly, defendant did not obtain leave to file his successive pro se petition as is required by

the Act but, rather, filed the same without leave.2 This successive pro se petition alleged that the

defendant was "affirmatively misled" by the trial court's erroneous admonishments and also that

he received ineffective assistance of counsel when his attorney filed the wrong postplea motion.

The defendant's pro se successive postconviction petition was received by the circuit court clerk

on March 2, 2005. Even though the defendant had filed the successive pro se petition without

leave, and without discussing the question of whether the defendant had demonstrated cause for

his failure to raise these claims in his initial postconviction petition and prejudice resulting from

that failure which would excuse a procedural bar, and without determining that the petition

alleged the gist of a constitutional claim, the trial court docketed the petition on April 29, 2005

and appointed the Public Defender. The State filed a motion to dismiss on September 30, 2005.

¶3     The matter then languished in the trial court for over five years during which time one


2
       See 725 ILCS 5/122-1(f) (West 2004) ("Only one petition may be filed by a petitioner
under this Article without leave of the court.").

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assistant public defender (APD) replaced one that had retired, and the case was continued

numerous times for the purpose of drafting a supplemental petition. Notably, it was not for five

years, until November 19, 2005, that the State raised the question of whether leave was ever

granted to file the successive pro se petition. The parties noted that the petition was docketed but

did not resolve at that time whether leave to file the successive petition was ever granted.

¶4      On December 14, 2010, an APD filed a supplemental successive postconviction petition

as well as a Rule 651(c) certificate. Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984). In response, on

January 28, 2011, the State filed a second motion to dismiss. This motion, in addition to other

arguments, asserted that these claims were procedurally barred, that defendant could not satisfy

the cause-and-prejudice test required to excuse the bar, and further that the proceedings should be

terminated as the pro se successive petition was filed without leave. The matter was then

continued several times for the defendant to answer the second motion to dismiss.

¶5      On August 26, 2011, now more than 6 1/2 years down the road, the APD acknowledged

that her review of the record disclosed that even though the court had docketed the successive

pro se petition, leave had never been granted to file it in the first place. As a result, at that time

the APD filed a motion "formally requesting leave to file the successive postconviction petition."

The record reflects that the trial court noted that this motion referenced the supreme court's

"advising Jones to file a successive post conviction." The trial court then stated, "that may have

been why I docketed it advise [sic] of [t]he [s]upreme [c]ourt." At this point the trial court stated

definitively, "[a]t this time the motion for leave to file successive petition would be allowed."

The court further added, "As I said, probably based on the supreme court advising to file a

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successive petition." Once again, this order was entered with no discussion or findings as to

whether the defendant had shown the cause and prejudice necessary to excuse the procedural bar

resulting from the defendant not raising his claims earlier. The matter was then continued for a

hearing on the State's motion to dismiss, the APD having indicated that she would not be filing a

written response.

¶6     On September 30, 2011, a hearing was held on the pending motion to dismiss. During

argument the State contended, inter alia, that the pending claims were procedurally barred as

they were not raised in the original postconviction petition and that, "there is no excuse for it. It

was in the record." In answer to the trial court's inquiry as to what claim was newly found such

that it was not raised in the initial petition, the APD responded that "the newly found issue is Mr.

Jones did not know as a lay person that he was given improper admonishments."

¶7     At the conclusion of the arguments the trial court granted the State's motion to dismiss on

the grounds that the claims brought in the successive postconviction petition were procedurally

barred. In so holding the court stated:

               "At this time, I'm going to grant the State's motion relying somewhat on the

       language in the paragraph that I have been citing as far as newly found claim.

       Procedurally, this would be barred; and, at this time, the State's motion to dismiss is

       granted. The successive post-conviction petition is dismissed."

The defendant appeals this dismissal order.

¶8     Before this court the defendant makes several claims of error. First, that the trial court

violated his due process rights by returning to the question of whether his claims were

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procedurally barred after it had already granted leave to file the successive petition, and in a

related claim that his due process rights were further violated when this question was revisited

without notice to the parties, causing his counsel to be unprepared for the hearing. Secondly,

defendant claims that the trial court erred by denying him an evidentiary hearing after he had

made a substantial showing of a constitutional violation. Next, the defendant claims that the trial

court erred in its finding that his claims were not newly discovered and thus were procedurally

barred. Lastly, defendant asks this court to excuse his procedural default based on the United

States Supreme Court's reasoning in Martinez v. Ryan, 566 U.S. __, 132 S. Ct. 1309 (2012).

¶9     The State responds that the trial court correctly considered the question of whether

defendant's claims were procedurally barred as they had never been addressed by the trial court at

the time leave to file was belatedly granted or, alternatively, that the order granting leave to file

could be revisited as it was interlocutory in nature. Further, the State contends that the trial court

correctly determined that the defendant had not satisfied the cause-and-prejudice test necessary to

avoid the procedural bar resulting from his failure to raise his claims earlier. The defendant's

attempt to analogize the reasoning in Martinez to these proceedings fails due to procedural

differences. Lastly, the State asserts that the defendant failed to make a substantial showing of a

constitutional violation and was thus not entitled to an evidentiary hearing. We affirm the trial

court's order dismissing this successive postconviction petition as procedurally barred.

¶ 10   The Act provides a mechanism by which those under criminal sentences 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. Jones, 213 Ill. 2d at 503 (citing 725 ILCS

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5/121-1 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. The Act contemplates a

three-stage process. Jones, 213 Ill. 2d at 503. Section 122-2 of the Act provides that "[t]he

petition shall *** clearly set forth the respects in which petitioner's constitutional rights were

violated." 725 ILCS 5/122-2 (West 2004). "Any claim of substantial denial of constitutional

rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West

2004). Section 122-2.1 provides that "[i]f 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 ***. *** If the petition is not dismissed pursuant to this Section, the court

shall order the petition to be docketed for further consideration in accordance with Sections 122-

4 through 122-6." 725 ILCS 5/122-2.1(a)(2), (b) (West 2004). A pro se litigant need only

present the gist of a constitutional claim to survive the summary dismissal stage of section 122-

2.1. Jones, 213 Ill. 2d at 504. Our supreme court has held that the threshold is a low one, and at

this stage defendant need only present a modest amount of detail and need not make legal

arguments or cite to legal authority. Id. (citing People v. Gaultney, 174 Ill. 2d 410, 418 (1996)).

Once a petitioner has survived the summary dismissal stage of section 122-2.1, the circuit court

can appoint counsel if the petitioner is indigent. Jones, 213 Ill. 2d at 504.

¶ 11   The Act contemplates the filing of only one postconviction petition, and any claim not

raised in that petition is waived. People v. Tenner, 206 Ill. 2d 381, 392 (2002); 725 ILCS 5/122-

3 (West 2004). In this case, it is undisputed that defendant did not raise his claims of improper

admonishments and ineffective assistance of counsel in his initial postconviction petition and

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therefore they may be deemed waived. See People v. Jones, 191 Ill. 2d 194, 199 (2000).

¶ 12   However, the procedural bar of waiver may be relaxed with respect to successive

postconviction petitions when fundamental fairness so requires. People v. Pitsonbarger, 205 Ill.

2d 444, 458 (2002). Our supreme court has held that the cause-and-prejudice test is the proper

means to determine whether fundamental fairness requires that a claim raised in a successive

postconviction petition may be considered on its merits. See id. at 459. Under this test, claims

in a successive petition are barred unless defendant can show cause for failing to raise the claim

in his initial postconviction petition and prejudice resulting from the failure. 725 ILCS 5/122-

1(f) (West 2004). Section 122-1(f) of the Act states:

       "Only one petition may be filed by a petitioner under this Article without leave of the

       court. 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. For purposes of this subsection (f): (1) a prisoner shows cause by

       identifying an objective factor that impeded his or her ability to raise a specific claim

       during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice

       by demonstrating that the claim not raised during his or her initial post-conviction

       proceedings so infected the trial that the resulting conviction or sentence violated due

       process." 725 ILCS 5/122-1(f) (West 2004).

To show "cause," defendant must demonstrate that "some objective factor external to the defense

impeded his ability to raise the claim in the initial post-conviction proceeding." People v.

Tenner, 206 Ill. 2d 381, 393 (2002). To show "prejudice," defendant must demonstrate that the

                                                 8
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claimed error so infected his trial that the resulting conviction violated due process. Id.

Defendant has the burden of establishing both elements of the cause-and-prejudice test in order

to prevail. Pitsonbarger, 205 Ill. 2d at 464.

¶ 13    Defendant asserts a twofold claim with regard to the trial court's August 26, 2011, order

granting leave to file the successive postconviction petition. First, he claims that the trial court's

order granting leave to file raises a presumption that it found that the defendant had satisfied the

requirements of the cause-and-prejudice test. Additionally, he claims that once that finding was

entered the trial court did not have the authority to revisit it.

¶ 14    At the outset we note that the above claims are made without any citation to authority.

While defendant cites to section 122-1(f) of the Act for the proposition that leave to file may only

be granted if the defendant demonstrates cause and prejudice, he cites no authority for the

proposition that an order granting leave to file raises a presumption that this was done. Similarly,

the defendant cites to no authority for his claim that an order granting leave to file may never be

revisited. See People v. Ward, 215 Ill. 2d 317, 332 (2005) ("A point raised in a brief but not

supported by citation to relevant authority fails to satisfy the requirements of Supreme Court

Rule 341([h])(7) and is therefore forfeited.").

¶ 15    Forfeiture aside, any presumption that the court found that the cause-and-prejudice test

was satisfied is rebutted by the record. The Act provides that no successive postconviction

petition claims shall proceed unless the petitioner demonstrates cause for his failure to raise those

claims in the initial postconviction proceedings and prejudice resulting from that failure. 725

ILCS 5/122-1(f) (West 2004); People v. Tidwell, 236 Ill. 2d 150, 157 (2010). " 'In the context of

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a successive post-conviction petition, however, the procedural bar of waiver is not merely a

principle of judicial administration; it is an express requirement of the statute.' " People v. Smith,

383 Ill. App. 3d 1078, 1085 (2008) (quoting Pitsonbarger, 205 Ill. 2d at 458). The record clearly

reflects that unfortunately the trial court was laboring under the misconception that it was

instructed by our supreme court to allow the defendant to proceed with a successive petition. As

noted above, during the August 26, 2011, hearing the trial court twice indicated that it was

allowing the petition to proceed based on the instruction of our supreme court when the trial

court stated, "that may have been why I docketed it advise [sic] of [t]he [s]upreme [c]ourt," and

later in the same hearing, "[a]s I said, probably based on the supreme court advising to file a

successive petition."

¶ 16   In fact, the supreme court did no such thing. To the contrary, our supreme court made it

clear that while a successive postconviction petition was the only way for this defendant to

proceed, he still must establish cause and prejudice in order to go forward. As noted above, this

was made clear when it quoted from its earlier decision in Jones and stated,

               " 'A defendant who fails to include an issue in his original or amended

               postconviction petition, although precluded from raising the issue on appeal from

               the petition's dismissal, may raise the issue in a successive petition if he can meet

               the strictures of the "cause and prejudice test." [Citation.]

       ***[T]he proper course of action for counsel to take is to file a successive petition in

       which the newly found claim is properly alleged.' " (Emphasis added.) Jones, 213 Ill. 2d

       at 508-509 (quoting Jones, 211 Ill. 2d at 148-49).

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¶ 17   As a result of this misconception, neither at the time of docketing the petition, April 29,

2005, nor at the time of the granting of the belated motion for leave to file, August 26, 2011, did

the trial court engage in any analysis or make any findings as to whether the petitioner had

established cause and prejudice to avoid the statutory bar.

¶ 18   We therefore find that at the time that leave to file the successive petition was granted no

finding had been made that the defendant had satisfied the cause-and-prejudice test. Further, it

was incumbent on the trial court to consider the question of whether the claims were procedurally

barred as argued by the State. As we find that no finding as to cause and prejudice had been

made, we decline to address the interesting issue of whether such a finding can be revisited under

the auspices of it being an interlocutory order.

¶ 19   In the event that we were to rule as above, the defendant argues alternatively that he was

deprived of due process when the trial court entertained the State's arguments concerning cause

and prejudice at the hearing on the motion to dismiss. The defendant claims that this was done

without notice and that his counsel was unprepared to address the question. In support of this

argument, defendant relies on People v. Bounds, 182 Ill. 2d 1 (1998). Bounds involved the trial

court's order granting the State's motion to dismiss a defendant's postconviction petition. The

defendant's conviction for murder and sentence of death had previously been affirmed on direct

appeal. Id. at 2. Postconviction counsel had filed a four-count petition for postconviction relief.

The trial court had granted leave to file an amended petition by a certain date. Id. at 4. Counsel

had requested time to file the amended petition in order to enable him to obtain the trial record

which had been lost. In the interim, the State filed a motion to dismiss and defense counsel had

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issued subpoenas to the police department which had not yet been complied with. At a

subsequent hearing, the State announced that it had located the trial record and turned it over

along with some police reports. The matter was then continued for "status" on a later date. At

that later date, counsel appeared with a new discovery motion as well as a motion for an

additional continuance. Id. at 4-5. These motions were not ruled upon and the trial court granted

the State's motion to dismiss the postconviction petition without hearing argument. Id. at 5. The

defendant claimed that the trial court's unexpected ruling denied him a full and fair opportunity to

present his claims in violation of his right to due process of law by dismissing his postconviction

petition without proper notice and before he was able to complete discovery. Our supreme court

agreed and held that the trial court violated the defendant's right to procedural due process of law

when it converted a status call to a hearing on the merits without notice to the parties. Id.

¶ 20   We find that Bounds is clearly distinguishable from the case at bar for several reasons.

First, this case was specifically set for a hearing on the State's motion to dismiss as opposed to

the "status" date in Bounds. Additionally, there were no outstanding requests for discovery or to

amend the pending petition. In fact, here counsel for the defendant answered ready for the

hearing. Defendant's claim that his counsel was surprised that the issue of cause and prejudice

was to be considered at the hearing is belied by the fact that the issue was raised in the pending

motion to dismiss. In that regard, we do not accept the defendant's characterization of the record

that the State had abandoned the issue of cause and prejudice. The record reflects that while on

the day of the hearing the State recognized that the trial court had previously granted leave to file

the petition, it is clear from the record that it had never abandoned the argument that the

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defendant's claims were procedurally barred. Further, no objection was raised by defense counsel

when the State argued that the claims were barred and no continuance was requested in order to

prepare for the issue. To the contrary, defense counsel answered the State's arguments as well as

the trial court's questions on this issue with the same arguments that counsel put forward in the

motion for leave to file the successive petition as well as before this court, that the defendant, as

a layperson, was unaware at the time of the filing of his original petition that he was given

improper admonishments and did not learn of this until his appellate counsel informed him of the

issue. Lastly, defense counsel did not object to the trial court's ruling that the claims were

procedurally barred and did not ask the court to reconsider. We find that the defendant has failed

to show that his procedural due process rights have been violated here.

¶ 21   This brings us to the question of whether the trial court correctly determined that the

claims brought forth in this successive postconviction petition were procedurally barred. At the

conclusion of the hearing on the State's motion to dismiss, the trial court focused on our supreme

court's language in Jones and found that this was not a "properly newly found claim." As a

result, it found the claims to be barred and the motion to dismiss was granted.

¶ 22   As noted above, in order to overcome the statutory procedural bar set forth in the section

122-3 of the Act, section 122-1(f) of the Act requires that the petitioner show cause for failing to

raise the claim in his initial post-conviction petition and prejudice resulting from the failure. 725

ILCS 5/122-1(f) (West 2004). To show "cause," defendant must demonstrate that "some

objective factor external to the defense impeded his ability to raise the claim in the initial post-

conviction proceeding." Tenner, 206 Ill. 2d at 393. To show "prejudice," defendant must

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demonstrate that the claimed error so infected his trial that the resulting conviction violated due

process. Id.

¶ 23   The parties agree that pursuant to People v. Evans, 2013 IL 113471, the defendant was

not given the appropriate admonitions with regard to his appeal rights. He was told that before

he could appeal he had to file either a motion to reconsider his sentence or a motion to withdraw

his guilty plea. Subsequent to the plea proceedings, defendant filed a motion to reconsider his

sentence, which was denied after a hearing. Then defendant filed his motion to withdraw his

guilty plea. The trial court denied that motion in a written order, which held that the motion was

not timely filed. This timeliness problem, of course, probably occurred as a result of the faulty

admonitions. Defendant did not raise this issue in his original postconviction petition and was

barred from doing so in the first instance on appeal.

¶ 24   We find that the defendant has failed to satisfy the cause prong of the cause-and-prejudice

test for several reasons. The defendant asserts that the trial court and his defense counsel at the

time of the plea are the cause of his failure to assert his claim. However, this is a misapplication

of the test. What is in issue here is not the reason he did not file the right motion after his guilty

plea. What is at issue here is whether there was some external cause that prevented him from

asserting his claims in his original postconviction petition. Neither the trial court nor his original

defense counsel prevented defendant from presenting these claims in his original postconviction

petition. Actually, once the trial court denied his motion to withdraw the guilty plea on the basis

of timeliness, the defendant had all the information he needed to raise his claims in his original

petition. He was advised to file either of two motions, he followed those admonitions upon the

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advice of his attorney, lost the first motion and was then told that his second motion was barred

as being too late. At that point defendant should have raised this claim in his first postconviction

petition.

¶ 25    The argument that as a layperson defendant did not realize that he had a claim is not

persuasive. Merely failing to recognize your claim cannot be an objective factor external to the

defense that prevents one from bringing the claim in the initial postconviction petition. In a

somewhat analogous situation, our supreme court has recently held that a defendant being

subjectively unaware that he would have to serve a period of mandatory supervised release would

not qualify as an objective factor that would impede his ability to raise the claim that his sentence

exceeded the term specifically announced by the trial court. Evans, 2013 IL 113471, ¶ 13. We

find that the defendant's failure to recognize his claim does not qualify as an external cause

impeding his ability to raise it in his original petition. In this regard, the State makes the

insightful point that if merely failing to recognize a claim when in full possession of the

necessary facts would suffice as cause under the cause-and-prejudice test, the statutory bar would

be swallowed by the exception as all one would have to do was claim ignorance to avoid it.

¶ 26    We find that the trial court correctly found that the defendant's claims here are

procedurally barred and that he has not demonstrated cause preventing him from bringing those

claims such that he could avoid the bar.

¶ 27    While acknowledging that it is not controlling here, defendant invites this court to

consider the United States Supreme Court's ruling in Martinez as analogous to his situation. In

Martinez, the Supreme Court considered an Arizona prisoner's access to federal habeas corpus

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proceedings. Martinez had been convicted in the Arizona state court of certain sexual assault

offenses and sentenced to imprisonment. Martinez, 566 U.S. at __, 132 S. Ct. at 1313. He

pursued a direct appeal with appointed counsel that did not represent him at trial. Id. at __, 132

S. Ct. at 1314. Arizona law precludes an appellant from raising the claim of ineffective

assistance of trial counsel on direct appeal, reserving such claims in all cases for collateral

review. While his appeal was pending, Martinez, through his newly appointed counsel, filed his

initial petition for postconviction relief. This petition did not raise the issue of ineffective

assistance of counsel at trial. The state trial court found that the petition raised no meritorious

claims and dismissed the petition. A second postconviction petition was then filed which did

allege that Martinez's trial counsel was ineffective for various reasons. The state trial court,

relying on an Arizona rule of criminal procedure much like the provisions of the Act at issue

here, found that this claim was procedurally defaulted as it was not raised in the previous

collateral proceeding. This decision was upheld by the Arizona Court of Appeals and the

Arizona Supreme Court declined to review Martinez's appeal. Id. at __, 132 S. Ct. at 1314. He

then sought habeas corpus relief in the United States District Court for the District of Arizona.

That court found that federal review was barred due to the doctrine of procedural default, which

required that Arizona's rule of procedural default be honored. Id. at __, 132 S. Ct. at 1315. The

Court of Appeals for the Ninth Circuit affirmed the dismissal of the petition for writ of habeas

corpus.

¶ 28      The Supreme Court ruled that Martinez would not be barred from seeking habeas corpus

relief. Id. at __, 132 S. Ct. at 1315. In so ruling the Court recognized that Arizona did not allow

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the claim of ineffective assistance of trial counsel on direct appeal, but rather reserved such

claims for collateral proceedings. Id. at __, 132 S. Ct. at 1317. As a result, with regard to this

claim, the Court coined the phrase, "initial-review collateral proceedings." The Court ultimately

found that since the first opportunity to bring this claim was at this initial-review collateral

proceeding, the lack of counsel or the ineffective assistance of counsel there could be a sufficient

cause to excuse the failure to raise the claim earlier for the purpose of habeas corpus

proceedings. Id. at __, 132 S. Ct. at 1317-20. Thus Martinez was able to avoid the effect of the

doctrine of procedural default and obtain a substantive review of his writ of habeas corpus in the

federal court.

¶ 29   We find that Martinez does not affect our decision here for two very important reasons.

First, unlike Arizona, Illinois does not preclude defendants from raising the claim of ineffective

assistance of trial counsel on direct appeal and thus this concept of "initial-review collateral

proceedings" does not apply here. In the case at bar, the faulty admonishments, the denial of

defendant's motion for reduction of sentence and the denial of his motion to withdraw his guilty

plea were all apparent from the record and thus the issue of the ineffective assistance of his trial

counsel could have been raised on direct appeal. Importantly, defendant would have had the

right to appointed counsel on direct appeal. Defendant elected not to proceed by way of a direct

appeal. Applying the Martinez result here would allow a prisoner to elect not to file a direct

appeal where he would have the right to appointed counsel thus voluntarily forgoing his first

opportunity to raise this issue, file a pro se petition for postconviction relief again without raising

the issue, and then file a successive petition claiming he should avoid the procedural bar because

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he did not recognize the issue. We decline the invitation to do so.

¶ 30    Second, defendant here fails to recognize the real effect of Martinez. The Supreme Court

did not hold that Arizona had to excuse Martinez's procedural default. To the contrary, Arizona's

rulings holding that Martinez's ineffective assistance of counsel claims were procedurally

defaulted were not vacated and remained in place. Martinez, as a result of this ruling, could

receive no further relief in the Arizona courts. Rather, the result of this ruling was simply that

the federal courts, as a result of Arizona's particular rules of appellate procedure would find

cause to avoid the federal doctrine of procedural default and thus he would be allowed to have a

substantive review of his writ of habeas corpus in the federal district court.

¶ 31    As a result of the above, we find that Martinez should have no effect on our decision

here.

¶ 32    In that we have found that the defendant's claims herein are procedurally defaulted, we

find it unnecessary to address the question of whether his successive petition made a substantial

showing of any constitutional violation.

¶ 33    We therefore hold here that the claims raised in the defendant's successive postconviction

petition are procedurally barred and that he has not shown cause to avoid the default. As a result,

the trial court's order dismissing the petition is affirmed.

¶ 34    For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

¶ 35    Affirmed.




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