                        Docket No. 103095.


                             IN THE
                     SUPREME COURT
                                OF
                THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
          PHILLIP E. LaPOINTE, Appellant.

                 Opinion filed September 20, 2007.



   JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
   Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.



                             OPINION

     The circuit court of Du Page County denied petitioner, Phillip E.
LaPointe, leave to file a second postconviction petition. 725 ILCS
5/122–1 et seq. (West 2004). The appellate court affirmed the circuit
court’s order. 365 Ill. App. 3d 914. We granted leave to appeal (210
Ill. 2d R. 315) and now affirm the judgment of the appellate court.

                             Background
    LaPointe pled guilty to the 1978 murder of a taxi driver and
received a natural life sentence. Although the appellate court, on
direct appeal, reduced LaPointe’s sentence to a 60-year term (People
v. LaPointe, 85 Ill. App. 3d 215 (1980)), this court reinstated the
natural life sentence. People v. La Pointe, 88 Ill. 2d 482 (1981).
     Until 1998, LaPointe took no further action with respect to his
conviction or sentence. Beginning in 1998, though, he began filing a
series of collateral challenges to the conviction. The first, a federal
habeas corpus petition, was ultimately dismissed by the district court
as untimely. United States ex rel. LaPointe v. Cooper, No.
98–C–7557 (N.D. Ill. 1999). LaPointe then initiated state habeas
corpus proceedings in 2001, arguing that his sentence was
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 147
L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The circuit court dismissed the
action, and the appellate court affirmed. LaPointe v. Chrans, 329 Ill.
App. 3d 1080 (2002). In 2002, LaPointe filed his first postconviction
petition, alleging that he had received ineffective assistance of trial and
appellate counsel. In that petition, LaPointe again alleged that his
sentence was unconstitutional under Apprendi. He later amended the
petition to add a claim of actual innocence. The circuit court dismissed
the petition, and the appellate court affirmed. People v. LaPointe, No.
2–02–0702 (2003) (unpublished order under Supreme Court Rule 23).
A year later, LaPointe petitioned under section 116–3 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/116–3 (West 2002)) for
DNA and fingerprint testing of evidence found at the murder scene,
asserting that such testing would establish that he did not commit the
murder. The circuit court dismissed the petition, and the appellate
court affirmed. People v. LaPointe, No. 2–03–0890 (2005)
(unpublished order under Supreme Court Rule 23).
     The record indicates that on January 28, 2004, the clerk of the
circuit court of Du Page County file stamped LaPointe’s second
petition for postconviction relief, which had been received by the
clerk’s office in the mail. In that petition, LaPointe alleged that his
trial, appellate, and postconviction counsel had all been ineffective.
Later, on April 2, 2004, LaPointe filed a “motion for leave to file” the
second petition. In this motion, LaPointe acknowledged that he had
been unaware, at the time he mailed his second petition to the clerk,
that the legislature had recently amended the Act to limit the filing of
successive petitions. He acknowledged that under the new amendment
(725 ILCS 5/122–1(f) (West 2004)), he was entitled to file only one
postconviction petition without leave of court. LaPointe requested the
court to grant him leave to file the petition because he satisfied the
new statute’s conditions to permit the filing of his second petition.

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    On April 28, 2004, the circuit court denied La Pointe leave to file
his second petition in an order. LaPointe thereafter filed a notice of
appeal on May 11, 2004.
    Three months later, LaPointe filed a motion in the circuit court.
He alleged that he had never received an order disposing of the
petition he filed in January 2004 and that, under section 122–2.1 of
the Act (725 ILCS 5/122–2.1 (West 2004)), the circuit court’s failure
to rule on the merits of the petition within 90 days required that the
petition be docketed for further proceedings. On July 23, 2004, the
circuit court denied the motion, explaining that the April denial of
LaPointe’s motion for leave to file his second petition had ended the
case.
    LaPointe appealed from the July 23 order as well, and the
appellate court consolidated it with LaPointe’s appeal from the circuit
court’s denial of leave to file the second petition. After holding that it
lacked jurisdiction to hear the appeal arising from the June 23 order,
the appellate court affirmed the circuit court’s order denying LaPointe
leave to file his second postconviction petition. 365 Ill. App. 3d at
920.

                                Analysis
     LaPointe contends that because the circuit court did not enter its
order denying leave to file the petition within 90 days after its “filing,”
section 122–2.1 of the Post-Conviction Hearing Act (725 ILCS
5/122–2.1 (West 2004)) required that the petition should have
automatically advanced to the second stage of proceedings. Because
this issue presents a question regarding the interpretation of a statute,
our review is de novo. People v. Donoho, 204 Ill. 2d 159, 172 (2003).
     The Post-Conviction Hearing Act permits collateral constitutional
challenges to criminal convictions and sentences. See 725 ILCS
5/122–1 et seq. (West 2004). Proceedings under the Act are
commenced by the filing of a petition in the circuit court in which the
original proceeding took place. 725 ILCS 5/122–1 (West 2004).
Section 122–2.1 requires that “[w]ithin 90 days after the filing and
docketing” of a petition, the circuit court is to examine the petition
and enter an appropriate order pursuant to section 122–2.1. 725 ILCS
5/122–2.1(a) (West 2004). For example, the statute provides that “if

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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.” (Emphasis added.) 725 ILCS 5/122–2.1(a)(2), (b)
(West 2004); People v. Porter, 122 Ill. 2d 64, 85 (1988).
    LaPointe notes that no action was taken by the circuit court on the
petition received on January 28, 2004, until April 28, 2004. Because
the April date was one day beyond the 90-day period allowed by
statute, LaPointe argues, the petition should have been docketed for
further consideration.
    LaPointe’s argument ignores the fact that the Act treats successive
petitions differently than initial petitions. Specifically, section 122–1(f)
of the Act provides:
             “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.” 725 ILCS
        5/122–1(f) (West 2004).
The plain language of section 122–1(f) prohibits the filing of a
successive postconviction petition without first obtaining leave of
court. 725 ILCS 5/122–1(f) (West 2004). Because the statute
expressly conditions leave to file on the petitioner’s satisfaction of the
cause-and-prejudice test, a second or successive petition cannot be
considered filed despite its having been previously accepted by the
clerk’s office.
    When LaPointe mailed his petition to the clerk’s office for filing,
he did so without the express leave of court mandated by section
122–1(f) of the Act. Under the plain language of the statute, the
petition could be not accepted for filing until such leave had been
given. LaPointe realized this in early April 2004, when he filed a
motion expressly seeking leave from the circuit court to file the
previously submitted second petition. Roughly three weeks later, the
circuit court denied the motion, finding that LaPointe had failed to
satisfy section 122–1(f)’s cause-and-prejudice test. Having been


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denied leave to file the petition, LaPointe’s case ended at that point
without his second petition having ever been properly filed under the
statute. Contrary to LaPointe’s contentions, there is no statutory basis
to return the matter to the circuit court for further proceedings under
the Act.

                              Conclusion
    A second postconviction petition will not be considered filed until
leave to file is expressly granted by the circuit court in accordance
with section 122–1(f) of the Act. For this reason, the judgment of the
appellate court is affirmed.

                                  Appellate court judgment affirmed.




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