                        Docket No. 102017.


                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
           CHARLES HARRIS, Appellant.

                  Opinion filed January 19, 2007.



   CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
   Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.



                            OPINION

    Defendant, Charles Harris, was convicted of first degree murder.
The circuit court of Champaign County sentenced him to 55 years’
imprisonment. While his direct appeal was pending, defendant filed a
pro se petition under the Post-Conviction Hearing Act (the Act) (725
ILCS 5/122–1 et seq. (West 2002)). The trial court summarily
dismissed the petition as frivolous and patently without merit. The
Appellate Court, Fourth District, affirmed. No. 4–02–1005
(unpublished order under Supreme Court Rule 23). We granted
defendant’s petition for leave to appeal (210 Ill. 2d R. 315), and we
now affirm.
                            BACKGROUND
     On May 17, 1999, defendant was convicted of the first degree
murder of Barry Robinson. Defendant’s trial attorney, Malcolm
Barnes, filed a posttrial motion and a motion to withdraw as counsel,
and defendant moved pro se for a new trial, withdrawal of counsel,
and appointment of new counsel. The trial court granted Barnes’
motion to withdraw as counsel, and defendant obtained private
counsel. Defendant then filed an amended posttrial motion. Following
a hearing, the trial court denied all of defendant’s motions. In
September 1999, the trial court sentenced defendant to 55 years’
imprisonment.
     On August 30, 2002, defendant placed a pro se petition for
postconviction relief in the mail, and it was file stamped on September
4, 2002. In the petition, defendant noted that the three-year statute of
limitations for filing a postconviction petition was set to expire on
September 1, 2002, and that his direct appeal still had not been
decided. He raised the following claims in the petition: (1) he was
denied his constitutional right to an unbiased jury when the trial court
and counsel failed to propound voir dire questions that would expose
juror biases towards illegal drugs, drug users, and drug dealers; (2)
trial counsel was ineffective in numerous respects; (3) he was denied
a fair trial by the prosecutor’s use of peremptory challenges to dismiss
jurors on the basis of race; (4) he was denied a fair trial because of a
violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S.
Ct. 1194 (1963); (5) he was denied due process and a fair trial by the
cumulative and synergistic effects of claims one through four; and (6)
he received ineffective assistance of appellate counsel when appellate
counsel failed to timely file a brief and also failed to raise several
issues. In the petition’s conclusion and prayer for relief, defendant
requested that the court: (1) set a date to resolve preliminary matters;
(2) grant him sufficient time and leave to amend and/or supplement
the petition; (3) grant him authority to obtain subpoenas for discovery;
(4) appoint counsel to represent him; (5) order an evidentiary hearing;
and (6) enter any other appropriate order.
     Attached to the petition were several documents. Defendant
attached his own affidavit, in which he denied any knowledge of sting
operations involving the murder victim. He also listed several
shortcomings of his trial attorney, including a complaint that the

                                  -2-
attorney did not interview and present the testimony of eight witnesses
who could have helped his case. He listed the proposed witnesses and
what he believed they would have testified to. Additionally, he
attached documents purporting to be affidavits from these eight
witnesses, but none of them were signed. Defendant explained that he
had mailed the proposed affidavits to these witnesses, but that no one
had signed them and mailed them back. He claimed, however, that no
one had expressly refused to sign the affidavits. He also attached
documents to support his claim that trial counsel was ineffective for
failing to explore an undisclosed deal that the State had with witness
Billy Mullins. The documents showed that a petition to revoke
Mullins’ probation had been dismissed.
     On September 27, 2002, the trial court summarily dismissed the
petition, finding it frivolous and patently without merit. The court
explained its findings in a written order. In addition to finding all of
the claims substantively without merit, the trial court noted that the
petition was not properly supported by “affidavits, records, or other
evidence” as required by section 122–2 of the Act (725 ILCS 5/122–2
(West 2002)). The court found that the purported affidavits did not
qualify as affidavits under the Act because they were unsigned; rather,
they were merely what defendant wanted these people to say.
Addressing defendant’s claim of ineffective assistance of appellate
counsel, the trial court wrote the following:
              “In claim number six, the Petitioner alleges a substantial
         violation of his constitutional rights when he was denied
         effective assistance of appellate counsel. Since this matter is
         still on appeal and there has been no ruling or holding by the
         Fourth District Appellate Court, this court does not know if
         appellate counsel is or was ineffective. Also, the court would
         note that since a number of allegations of ineffective assistance
         of appellate counsel were that appellate counsel did not raise
         some of the previously alleged errors of trial counsel, the
         court cannot find appellate counsel ineffective if trial counsel
         was not found ineffective.”
     Defendant appealed, and the appellate court ordered the appeal
stayed pending resolution of the direct appeal. On October 19, 2004,
the appellate court decided defendant’s direct appeal. People v.
Harris, No. 4–99–0800 (2004) (unpublished order under Supreme

                                   -3-
Court Rule 23). In the direct appeal, the court affirmed defendant’s
conviction and sentence. The stay was then lifted, and the court
decided the appeal from the dismissal of defendant’s postconviction
petition on November 17, 2005. No. 4–02–1005 (unpublished order
under Supreme Court Rule 23).
     The appellate court first addressed defendant’s argument that the
trial court erred in summarily dismissing his petition while his direct
appeal was pending. According to the defendant, the trial court either
should have (1) held the petition in abeyance until the conclusion of
the direct appeal; or (2) dismissed the petition without prejudice, with
leave to file a new petition when the direct appeal had concluded.
Defendant relied on People v. Williams, 308 Ill. App. 3d 567 (1999),
a decision of the Appellate Court, Fifth District. In Williams, the court
reversed a trial court’s summary dismissal of a postconviction petition
that had been filed before briefs had been filed in the direct appeal.
The trial court in that case found that the petition was patently
without merit and that the petition’s allegations related to issues that
should be addressed on direct appeal. The Fifth District held:
        “[T]he trial court would have better served the interests of
        justice by holding the petition in abeyance until appellate
        counsel filed a brief in the direct appeal or by dismissing the
        petition ‘without prejudice,’ thus allowing defendant the
        opportunity to refile his postconviction petition once he
        determined what issues were raised by his counsel in the direct
        appeal.” Williams, 308 Ill. App. 3d at 571-72.
In this case, the Fourth District disagreed with Williams. First, the
court noted that section 122–2.1(a)(2) of the Act (725 ILCS
5/122–2.1(a)(2) (West 2002)) does not contemplate dismissals
without prejudice. If the circuit court determines pursuant to its initial
review that the petition should be dismissed, that dismissal order is a
final judgment. 725 ILCS 5/122–2.1(a)(2) (West 2002). The court
also noted that, in an earlier opinion, the Fifth District had rejected the
proposition that a summary dismissal may be based solely on the
pendency of a direct appeal; rather, a dismissal must be based on the
specific allegations contained in the petition. See People v. Edsall, 94
Ill. App. 3d 469, 473 (1981). As for holding the petition in abeyance,
the court noted that the Act contained no provision barring a trial
court from considering a petition while a direct appeal of the

                                   -4-
conviction is pending. The court held that it may be reasonable to hold
a petition in abeyance when a direct appeal is pending but rejected
defendant’s contention that the trial court is required to do so. Rather,
the court held that this was a matter within the trial court’s discretion.
    The court next addressed defendant’s contention that the trial
court erred in dismissing the petition a mere 23 days after it was file
stamped, while ignoring defendant’s request for a continuance, for
leave to amend, and for subpoena authority for discovery. The court
held that defendant’s requests were merely general requests that are
contained in postconviction petitions, and that defendant did not
specify how much time he needed or why he needed a continuance or
leave to amend. Moreover, the court believed that it would be a waste
of judicial resources to require trial courts, during first-stage review,
to rule on every general request by a defendant in a postconviction
petition. The court noted that trial courts are required to determine
within 90 days whether the petition is frivolous or patently without
merit and that defendants should not be able to use general requests
for continuances or leave to amend to circumvent that requirement.
The court also found no error in the trial court’s not waiting the full
90 days to dismiss the petition.
    The defendant contended on appeal that one of his claims stated
the gist of a meritorious claim and thus his petition should have
proceeded to the second stage. Defendant argued that his claim that
defense counsel was ineffective for failing to interview and present the
testimony of eight witnesses stated the gist of a meritorious claim. The
court disagreed with defendant, holding that defendant’s failure to
attach affidavits from the proposed witnesses was fatal. Thus, the
court concluded that defendant’s petition was frivolous and patently
without merit.
    Finally, the court addressed defendant’s claim that the trial court
failed to address his ineffective assistance of appellate counsel claims.
The court held that the trial court did address those claims and
specifically explained why they were frivolous and patently without
merit. Accordingly, the court affirmed the summary dismissal of
defendant’s postconviction petition.




                                   -5-
                              ANALYSIS
     Defendant raises the following issues: (1) whether the appellate
court erred in holding that the trial court had no duty either to hold
the postconviction petition in abeyance or dismiss it without prejudice
because defendant’s direct appeal was still pending; (2) whether the
trial court erred in dismissing the petition within 23 days and without
ruling on defendant’s requests for leave to amend, a continuance,
additional discovery, and subpoena power; (3) whether review by this
court is premature because all claims of ineffective assistance of
appellate counsel have not been reviewed by the circuit court or the
appellate court; and (4) whether the petition stated the gist of a
meritorious claim for ineffective assistance of trial counsel regarding
counsel’s failure to interview and present witnesses.

                          Standard of Review
    When a postconviction petition is dismissed without an evidentiary
hearing, our review is de novo. People v. Lander, 215 Ill. 2d 577, 583
(2005). Additionally, the proper interpretation of the Act is a question
of law that we review de novo. People v. Brooks, 221 Ill. 2d 381, 388
(2006). The Act vests the decision whether to allow leave to amend
in the discretion of the circuit court. 725 ILCS 5/122–5 (West 2002).
Accordingly, we will reverse a trial court’s ruling on a motion for
leave to amend only when there is an abuse of that discretion. See
People v. Williams, 256 Ill. App. 3d 445, 449 (1993), aff’d, 171 Ill.
2d 475 (1996).

                         Pending Direct Appeal
    Defendant first argues that the trial court erred when it summarily
dismissed his petition with prejudice while the direct appeal of his
conviction was pending. Defendant contends that he filed his petition
while the direct appeal was pending only because the statute of
limitations was about to run. Moreover, his petition raised a claim of
ineffective assistance of appellate counsel and also included a general
request for leave to amend. According to defendant, because his direct
appeal was pending, it was premature for the trial court to rule on the
merits of the petition because the court could not have known whether
defendant would need to amend the petition to address the brief his

                                  -6-
appellate lawyer would eventually file. Defendant relies on Williams,
another case in which a postconviction petition was filed before the
defendant’s brief was filed in the direct appeal. In that case, the court
held that the petition should have been held in abeyance until the brief
was filed in the direct appeal or dismissed without prejudice with leave
to refile once the direct appeal brief was filed. We disagree with
defendant’s argument and find no error in the trial court’s dismissal
order.
    Initially, we review basic procedure under the Act. The Act
provides a procedural mechanism in which a convicted criminal can
assert “that in the proceedings which resulted in his or her conviction
there was a substantial denial of his or her rights under the
Constitution of the United States or of the State of Illinois or both.”
725 ILCS 5/122–1(a) (West 2002). Postconviction proceedings are
not a continuation of, or an appeal from, the original case. People v.
Flowers, 208 Ill. 2d 291, 303 (2003). Rather, a postconviction
proceeding is a collateral attack upon the prior conviction and affords
only limited review of constitutional claims not presented at trial.
People v. Greer, 212 Ill. 2d 192, 203 (2004). The scope of the
proceeding is limited to constitutional matters that have not been, nor
could have been, previously adjudicated. Any issues that could have
been raised on direct appeal, but were not, are procedurally defaulted,
and any issues that have previously been decided by a reviewing court
are barred by res judicata. People v. Rissley, 206 Ill. 2d 403, 412
(2003).
    The legislature has frequently amended the statute of limitations
for filing a postconviction petition. The version in effect at the time
defendant filed his petition provided as follows:
             “No proceedings under this Article shall be commenced
         more than 6 months after the denial of a petition for leave to
         appeal or the date for filing such a petition if none is filed or
         more than 45 days after the defendant files his or her brief in
         the appeal of the sentence before the Illinois Supreme Court
         (or more than 45 days after the deadline for the filing of the
         defendant’s brief with the Illinois Supreme Court if no brief is
         filed) or 3 years from the date of conviction, whichever is
         sooner, unless the petitioner alleges facts showing that the
         delay was not due to his or her culpable negligence.” 725

                                   -7-
        ILCS 5/122–1(c) (West 2002).1
    In noncapital cases, the Act provides a three-stage process for the
adjudication of postconviciton petitions. People v. Boclair, 202 Ill. 2d
89, 99 (2002). At the first stage, section 122–2.1 directs the circuit
court to independently assess the substantive merit of the petition. 725
ILCS 5/122–2.1 (West 2002). If the court finds that the petition is
“frivolous” or “patently without merit,” the Act requires that the court
dismiss it, and this dismissal is a final order. 725 ILCS 5/122–2.1(a)(2)
(West 2002). A postconviction petition is frivolous or patently
without merit when its allegations, taken as true and liberally
construed, fail to present the gist of a constitutional claim. People v.
Edwards, 197 Ill. 2d 239, 244 (2001). Additionally, section 122–2 of
the Act requires that the petition have attached thereto “affidavits,
records, or other evidence supporting its allegations” or explain why
they are not attached. 725 ILCS 5/122–2 (West 2002). The failure to
comply with section 122–2 is fatal and by itself justifies the petition’s
summary dismissal. People v. Collins, 202 Ill. 2d 59, 66 (2002). If the
petition is not dismissed at this stage, it advances to the second stage
(725 ILCS 5/122–2.1(b) (West 2002)), where the court may appoint
counsel and the State may move to dismiss the petition (725 ILCS
5/122–4, 122–5 (West 2002); Edwards, 197 Ill. 2d at 245-46). If at
the second stage a substantial showing of a constitutional violation is

  1
    The Act’s statute of limitations has been amended again, and the current
version for noncapital cases provides that “[w]hen a defendant has a sentence
other than death, no proceedings under this Article shall be commenced more
than 6 months after the conclusion of proceedings in the United States
Supreme Court, unless the petitioner alleges facts showing that the delay was
not due to his or her culpable negligence. If a petition for certiorari is not
filed, no proceedings under this Article shall be commenced more than 6
months from the date for filing a certiorari petition, unless the petitioner
alleges facts showing that the delay was not due to his or her culpable
negligence. If a defendant does not file a direct appeal, the post-conviction
petition shall be filed no later than 3 years from the date of conviction, unless
the petitioner alleges facts showing that the delay was not due to his or her
culpable negligence.” 725 ILCS 5/122–2.1(c) (West 2004). The parties
agree that this statute does not apply to this case. The applicable statute of
limitations for a postconviction petition is the one in effect at the time the
petition is filed. See People v. Bates, 124 Ill. 2d 81, 85-86 (1988).

                                      -8-
established, the petition proceeds to the third stage for an evidentiary
hearing. 725 ILCS 5/122–6 (West 2002).
    There is no provision in the Act barring a postconviction case
from proceeding at the same time as a direct appeal. The legislature
has amended the Act’s limitations period many times, but has never
enacted a provision stating that the petition may not be filed while a
direct appeal of the conviction is proceeding.2 In fact, the opposite is
true. In the version of the statute of limitations under consideration,
the determining date for the filing of the petition is the soonest of
three dates, and two of them are (1) three years after conviction; and
(2) “45 days after the defendant files his or her brief in the appeal of
the sentence before the Illinois Supreme Court.” 725 ILCS 5/122–1(c)
(West 2002). This statutory language led this court to conclude in
Rissley that “the legislature removed any doubt that postconviction
petitions must sometimes be filed before the termination of
proceedings on direct appeal.” Rissley, 206 Ill. 2d at 415.
    In addition to there being no provision in the Act prohibiting a
postconviction petition from being filed while a direct appeal is
pending, this court has already determined that postconviction
proceedings and direct appeals may proceed at the same time. In
People v. Partee, 125 Ill. 2d 24, 35 (1988), this court stated that
“[s]ince a collateral attack upon a judgment is a case separate and
apart from the case in which the judgment has been attacked, it has
been held that the availability or pendency of a direct appeal will not
affect the ripeness of a claim for post-conviction or post-judgment
relief.” The Partee court cited with approval People v. Edsall, 94 Ill.
App. 3d 469 (1981), which the appellate court in the present case
relied upon, and People v. Alfano, 95 Ill. App. 3d 1026 (1981).
Partee, 125 Ill. 2d at 35-36. In Edsall, the appellate court stated that


  2
   An example of a state postconviction statute containing such a provision
is Oregon’s, which states that “[t]he failure of petitioner to have sought
appellate review of the conviction, or to have raised matters alleged in the
petition at the trial of the petitioner, shall not affect the availability of relief
under ORS 138.510 to 138.680. But no proceeding under ORS 138.510 to
138.680 shall be pursued while direct appellate review of the conviction of
the petitioner, a motion for new trial, or a motion in arrest of judgment
remains available.” Or. Rev. Stat. §138.550 (2005).

                                        -9-
it could find no provision in the Act “barring a trial court from
considering a post-conviction petition while a direct appeal of
petitioner’s criminal conviction is pending.” Edsall, 94 Ill. App. 3d at
473. Because there was no such provision, the court concluded that
“a trial court’s dismissal of a petition without an evidentiary hearing
must be based upon the specific allegations appearing in the petition.”
Edsall, 94 Ill. App. 3d at 473. Alfano dealt with a petition filed under
section 72 of the Civil Practice Act (the statutory predecessor to
section 2–1401) (Ill. Rev. Stat. 1979, ch. 110, par. 72) while a direct
appeal was pending. In Alfano, the trial court dismissed the petition
because a direct appeal was pending. The appellate court held that this
was error and that the court had jurisdiction to consider the petition
despite the pendency of the defendant’s direct appeal. The court
explained that “[s]ection 72 petitions and direct appeals are not
conflicting routes, but may be considered parallel and both may be
followed simultaneously.” Alfano, 95 Ill. App. 3d at 1030.
     Thus, there is no basis in either the Act’s language or in this
court’s jurisprudence for the proposition that a postconviction
proceeding may not proceed at the same time as a direct appeal. And
this makes perfect sense. As we stated earlier, a postconviction
proceeding is not a substitute for a direct appeal, nor is it a second
direct appeal. Rather, it is a vehicle for asserting constitutional claims
that could not be raised on direct appeal. Rissley, 206 Ill. 2d at 411;
People v. Derengowski, 44 Ill. 2d 476, 479 (1970) (“it is not within
the view of the Act to have claims determined which could have been
presented upon a direct review of the conviction”). The legislature’s
failure to include a prohibition in the Act for filing a petition while the
direct appeal is pending could very well have been deliberate. If a
defendant has a meritorious claim of a denial of his constitutional
rights that could not have been raised on direct appeal, the legislature
might not have wanted to force him to wait for the direct appeal
process to conclude before proceeding with his claim.
     For these reasons, we disagree with defendant’s argument that a
trial court faced with a postconviction petition filed while the direct
appeal is pending must either hold it in abeyance or dismiss it without
prejudice with leave to file after the direct appeal is concluded.
Neither of these actions has any basis in the language of the statute.
Rather, the Act requires that, within 90 days, the trial court examine

                                   -10-
the petition and determines if it is frivolous and patently without merit.
725 ILCS 5/122–2.1(a) (West 2002). If the court dismisses the
petition pursuant to this section, that order is a final judgment. 725
ILCS 5/122–2.1(a)(2) (West 2002).
     We note that, if a trial court did hold a petition in abeyance and 90
days passed without the court ruling on the petition, the proceeding
would have to move to the second stage. The appellate court
recognized this in People v. Dauer, 293 Ill. App. 3d 329 (1997). In
that case, the trial court held the postconviction petition in abeyance
because the direct appeal was still pending. The appellate court held
that the Act was violated when the court failed to examine the petition
within 90 days and that this failure required the appellate court to
reverse the dismissal and remand for second stage proceedings. The
appellate court relied on this court’s decision in People v. Porter, 122
Ill. 2d 64, 85-86 (1988), which held that the time limit in section
122–2.1(a) is mandatory and that a failure to comply with it requires
that the petition be docketed for second stage proceedings. Dauer,
293 Ill. App. 3d at 331.
     Defendant contends that Dauer was abrogated by People v.
Watson, 187 Ill. 2d 448 (1999). In Watson, this court held that when
a defendant files an amended postconviction petition during the initial
90-day period, the 90-day period restarts and the trial court has 90
days from the date of the filing of the amended petition to determine
if it is frivolous and patently without merit. By analogy, defendant
argues that the circuit court can hold a petition in abeyance for
however long the direct appeal is pending and that the 90-day period
would then start whenever the circuit court lifted the stay.
Defendant’s analogy is imprecise, because in Watson the amended
petition was filed before the initial 90-day period expired. In other
words, during the initial 90-day period, the petition was replaced by
a new petition, and the 90-day period began anew. In defendant’s
example, if the 90-day period passes and the direct appeal is still
pending, then the court would have failed to rule timely on the only
petition pending before it. This would be contrary to both the plain
language of the statute and this court’s decision in Porter, which
construed section 122–2.1(a)’s time period to be mandatory. As
Dauer properly recognized, if the 90-day period passes without the
trial court examining the petition pursuant to section 122–2.1(a)(2),

                                  -11-
the petition must proceed to the second stage. Dauer, 293 Ill. App. 3d
at 331. There is no provision in the Act allowing the trial court to
delay the beginning of the 90-day period when a petition is pending
before it. Thus, if we were to require trial courts to hold
postconviction petitions in abeyance when direct appeals were
pending, then any defendant could circumvent section 122–2.1(a) and
automatically receive appointment of counsel and second stage
proceedings simply by filing his or her petition while the direct appeal
is pending. We will not so hold.
    Similarly, we do not believe that a trial court is required to dismiss
a postconvcition petiton without prejudice if the direct appeal is still
pending. Defendant relies on section 122–5 of the Act, which
provides, inter alia:
        “The court may in its discretion grant leave, at any stage of the
        proceeding prior to entry of judgment, to withdraw the
        petition. The court may in its discretion make such order as to
        amendment of the petition or any other pleading, or as to
        pleading over, or filing further pleadings, or extending the time
        of filing any pleading other than the original petition, as shall
        be appropriate, just and reasonable and is generally provided
        in civil cases.” 722 ILCS 5/122–5 (West 2002).
By necessary implication, this court held in Watson that this section
applies during the first stage of proceedings. Again, Watson held that
when a defendant files an amended petition during the first stage, the
90-day review period begins anew. Watson, 187 Ill. 2d at 451. One
justice dissented in Watson, contending that the Act does not allow
amendments at the first stage. Watson, 187 Ill. 2d at 456 (Rathje, J.,
dissenting). No other justice joined in this dissent, so the question of
whether section 122–5 applies at the first stage was settled by Watson.
    We do not believe, however, that, simply because the trial court
has the discretion at the first stage to allow amendments to the
petition, or to allow the petition to be withdrawn, or to allow the
defendant to plead over, the trial court necessarily abuses that
discretion by failing to dismiss the petition without prejudice when a
direct appeal is pending. As set forth above, there is nothing in the Act
or in this court’s jurisprudence that would prohibit a postconviction
proceeding and a direct appeal from proceeding at the same time.
Moreover, this court has already held that, in the version of the Act

                                  -12-
under consideration, “the legislature removed any doubt that
postconviction petitions must sometimes be filed before the
termination of proceedings on direct appeal.” Rissley, 206 Ill. 2d at
415. If we were to hold that the trial court should have dismissed this
petition without prejudice with leave to refile when the direct appeal
had concluded, that would be directly contrary to the statute of
limitations then in effect. Under that version of the Act, the legislature
required that the petition be filed by the soonest of the three following
dates: (1) three years after conviction; (2) six months after the denial
of a petition for leave to appeal or the date for filing such a petition if
none is filed; or (3) 45 days after the defendant’s brief is filed in the
Illinois Supreme Court or 45 days after the due date for such a brief
if none is filed. 725 ILCS 5/122–1(c) (West 2002). Here, defendant
filed his petition two days before the soonest of these time periods
ran, but he argues that the trial court should have allowed him to wait
and file the petition when the direct appeal had concluded. Such an
action would have thwarted the legislature’s intent as to when the
petition needed to be filed. One thing that section 122–5 does not
permit the trial court to do is to extend the deadline for filing the
original petition (725 ILCS 5/122–5 (West 2002)), and that is, in
effect, what the court would be doing if it overrode the statutory
deadline and allowed the defendant to wait until the direct appeal had
concluded to file his petition. It would be absurd for this court to
construe this version of the Act both as leaving “no doubt” that the
legislature intended that postconviction petitions must sometimes be
filed before the direct appeal had concluded and as requiring the trial
court to dismiss a petition without prejudice because a direct appeal
is pending.
     Defendant contends, nevertheless, that his situation is unique
because he wanted to argue that he received the ineffective assistance
of appellate counsel, but was required by the Act to file his petition
before his attorney had filed a brief in the direct appeal.3 Thus,


  3
    We note that this situation would never arise under the Act’s new statute
of limitations. Under the current version of the Act, the three-year time limit
applies only to those defendants who do not file direct appeals. Defendants
who do file direct appeals are entitled to wait until the end of that process
before filing postconviction petitions. 725 ILCS 5/122–1(c) (West 2004).

                                     -13-
according to defendant, the trial court was required to either hold the
petition in abeyance or dismiss it without prejudice so that he could
properly frame his argument. Defendant also claims that the trial court
failed to rule on his ineffective assistance of appellate counsel claims
and that, therefore, there was nothing for this court to review with
respect to those claims. We disagree with both of these contentions.
     First, the trial court did not fail to rule on defendant’s ineffective
assistance of appellate counsel claims. The trial court found that the
petition as a whole was frivolous and patently without merit, and it
specifically addressed each of defendant’s claims. With respect to
defendant’s appellate counsel claims, the trial court made two
findings: (1) that the matter was still on appeal and there had been no
ruling by the appellate court, so the trial court had no way of knowing
if appellate counsel had been ineffective; and (2) some of the claims
that defendant contended that appellate counsel was ineffective for
failing to raise were those ineffective assistance of trial counsel claims
that the postconviction court had found to be without merit. The trial
court stated that, if those claims themselves were without merit, then
appellate counsel could not have rendered ineffective assistance of
counsel by failing to raise them. Thus, we find that the trial court did
properly explain why defendant’s claims were frivolous and without
merit. Moreover, the claims were even more frivolous than the trial
court found them to be. The problem with defendant’s claims was not
simply that the appellate court had not rendered a decision yet, but
rather that defendant’s attorney had not even filed a brief yet. What
could be more frivolous and patently without merit than to argue that
an attorney rendered constitutionally ineffective assistance by failing
to raise certain issues on appeal before that attorney has raised any
issues on appeal? The trial court properly carried out its statutory duty
in ruling on this claim within 90 days, and we will not hold that a
defendant can thwart the Act’s statute of limitations simply by
including a wholly speculative claim of ineffective assistance of
appellate counsel in the petition.
     This does not leave persons in defendant’s position without a
remedy. The State correctly argues that a successive petition is the
proper means for a defendant to assert a claim of ineffective assistance
of appellate counsel when the statute of limitations forced him or her
to file the initial petition while the direct appeal was pending. If

                                  -14-
defendant believes that he has a meritorious claim of ineffective
assistance of appellate counsel, he may seek leave of court to file a
successive petition. 725 ILCS 5/122–1(f) (West 2004). Defendant
may obtain leave of court to do so if he demonstrates cause for failing
to bring the claim in the initial petition and prejudice resulting from
that failure. 725 ILCS 5/122–1(f) (West 2004). The Act states that a
prisoner demonstrates 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.” 725 ILCS 5/122–1(f) (West
2004). It is difficult to conceive of a more obvious case of cause for
failing to raise a claim of ineffective assistance of appellate counsel in
the initial proceeding than that the statute of limitations required that
the petition be filed before the defendant’s brief had been filed in the
direct appeal.4 A prisoner shows prejudice under the Act 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)(2)
(West 2004). In his brief, defendant’s only response to the State’s
argument that the successive petition route is still open is to state that
“there is no guarantee that he can obtain leave to do so.” This is no
answer. Defendant will be granted leave of court to file a successive
petition if he demonstrates cause and prejudice, and he would
seemingly have an obvious case of cause. Thus, he must be allowed
leave to file a successive petition if he can meet the prejudice prong.
If he cannot do so, then he has no complaint. In other words, persons
in defendant’s position will not be denied relief under the Act if they
can demonstrate meritorious claims of ineffective assistance of
appellate counsel. At oral argument, counsel for defendant claimed
that it not fair to require pro se petitioners to demonstrate prejudice.
That, however, is the legislature’s requirement. 725 ILCS
5/122–2.1(f)(2) (West 2004). It is worth noting in this regard that
postconviction and other collateral proceedings are a matter of


  4
    A defendant who simply chooses to file a petition while the direct appeal
is pending but is not forced to do so by the statute of limitations would be in
a very different position. In that case, it would be the defendant’s voluntary
decision to file the petition early that impeded his ability to raise the claim in
the earlier petition.

                                      -15-
legislative grace, and the states “have no obligation to provide this
avenue of relief.” Pennsylvania v. Finley, 481 U.S. 551, 556-57, 95
L. Ed. 2d 539, 547, 107 S. Ct. 1990, 1994 (1987). The legislature
enacted a statute under which it left “no doubt” that postconvicton
petitions must sometimes be filed while direct appeals are pending.
Rissley, 206 Ill. 2d at 415. If this means that, under this version of the
Act, the only means for some defendants to assert ineffective
assistance of appellate counsel claims is in successive petitions, then
that is the legislature’s choice and this court must enforce the statute
as written.
     Our holding on this issue necessarily includes a repudiation of
Williams. In that case, the defendant was convicted in August 1995
and filed a pro se postconviction petition in September 1996, before
a brief had been filed in his direct appeal. The issue raised in the
petition was that defendant was denied a fair trial because the
photographic lineup used in the case was suggestive and prejudicial.
In October 1996, the trial court dismissed the petition as frivolous and
patently without merit. The trial court’s order stated that “ ‘[a]t this
time an appeal is pending in the Appellate Court of Illinois, Fifth
District, and the post[ ]conviction petition is pending therein. The
Court finds that the petition is patently without merit and dismisses
same with prejudice for the reason that the allegations in the petition
relate to issues that should be addressed on appeal.’ ” Williams, 308
Ill. App. 3d at 569. The parties disagreed over the meaning of the
court’s order. Defendant argued that the trial court dismissed the
petition on the basis that a direct appeal was pending, which is error.
The State disagreed with the defendant that the trial court dismissed
the petition because the direct appeal was pending. According to the
State, the circuit court properly found that the petition lacked merit
because it asserted a claim that could be raised on direct appeal. If this
issue were to be raised on direct appeal it would be res judicata and,
if not, it would be procedurally defaulted. Williams, 308 Ill. App. 3d
at 569-70. The appellate court found that the language was
ambiguous, but overall it meant that the trial court dismissed the
petition because a direct appeal was pending and that it believed the
issue could be raised on direct appeal. Williams, 308 Ill. App. 3d at
570-71. Then the court concluded that the trial court had gone too far
in dismissing the petition with prejudice and that it should have either

                                  -16-
held the petition in abeyance or dismissed it without prejudice with
leave to refile once the defendant determined what issues would be
raised by his counsel on direct appeal. Williams, 308 Ill. App. 3d at
571-72. The court found that the defendant was concerned with the
time limits of the Act and was simply trying to be prompt by filing his
petition when he did. Thus, the court said that it would not “cut off
defendant’s postconviction rights because defendant attempted to be
prompt and file his petition in a timely manner.” Williams, 308 Ill.
App. 3d at 571-72.
    It is difficult to follow Williams’s reasoning or to reconcile it with
the plain language of the Act. First, it is not clear how the court
concluded that the defendant was concerned with the time limits of the
Act. The defendant filed his petition only a year after the conviction
was entered and before a brief had even been filed in the appellate
court. The appellate court failed to identify what time limit the
defendant was up against, and it even acknowledged that the direct
appeal brief was filed within two years of the conviction. Moreover,
as set forth above, even if the defendant had been up against the
statutory time limit, that would have not have required the circuit
court to hold the petition in abeyance or to dismiss it without
prejudice. We also see no error in the trial court’s order in Williams.
The defendant asserted a claim that should have been asserted on
direct appeal. Thus, the trial court determined that it was patently
without merit and dismissed it pursuant to section 122–2.1. The State
correctly argued in Williams that issues that are determined on direct
appeal have res judicata effect and that issues that could have been
raised on direct appeal but were not are procedurally defaulted. These
are proper bases for a trial court to enter a first-stage dismissal.
People v. Blair, 215 Ill. 2d 427, 442 (2005). Moreover, the Act does
not permit consideration of questions raised on direct appeal simply
because the reviewing court has yet to announce its disposition of the
direct appeal. People v. Wright, 111 Ill. 2d 18, 25 (1986). Faced with
a petition raising a claim that should have been asserted on direct
appeal, the trial court summarily dismissed it as without merit, and this
dismissal order was a final judgment. 725 ILCS 5/122–2.1 (West
2002). The trial court was not going “too far,” as the appellate court
claimed; it was simply fulfilling its duty under the Act. There was no
basis for the appellate court to reverse that order. The appellate court

                                  -17-
stated that it was not going to cut off defendant’s postconviction
rights by upholding the dismissal with prejudice. Williams, 308 Ill.
App. 3d at 571. It was not the trial court that was cutting off the
defendant’s postconviction rights. Rather, the defendant cut off his
own postconviction rights by filing a petition that was frivolous and
patently without merit. Williams is overruled.

                      Requests in Prayer for Relief
     Defendant next argues that the circuit court erred in failing to
specifically rule on the requests in his prayer for relief. Defendant also
contends that the court acted too hastily in dismissing his petition on
the twenty-third day after it was filed, especially in light of his requests
in the prayer for relief. As we noted, in the prayer for relief, defendant
asked the circuit court to: (1) set a date to resolve preliminary matters;
(2) grant him sufficient time and leave to amend and/or supplement
the petition; (3) grant him authority to obtain subpoenas for discovery;
(4) appoint counsel to represent him; (5) order an evidentiary hearing;
and (6) enter any other appropriate order. The only one of these that
the trial court specifically denied was the request for counsel.
     The appellate court found no error. First, it noted that there is no
requirement that the circuit court wait until the ninetieth day to
dismiss a petition. Second, the court held that defendant’s requests
were merely general requests that are contained in postconviction
petitions and that defendant had not provided any indication of how
much time he needed or the reasons for a continuance or leave to
amend. The court held that it would be a waste of judicial resources
to require circuit courts to rule on every general request by a
defendant in a postconviction petition, particularly when some of the
requests cannot even be granted until the second or third stage. The
court noted that, at the first stage, the Act requires only that the trial
court determine if the petition is frivolous and patently without merit,
which is exactly what the trial court did. The State echoes the
appellate court’s reasoning, and also notes that the Act’s statute of
limitations requires that the petition, including its accompanying
evidentiary support, be filed by a certain date. Here, the petition was
filed right before the statute of limitations expired. The State argues
that it would contravene the Act’s statute of limitations to give the
defendant more time to prepare a proper petition. In response,

                                   -18-
defendant argues that, procedurally, there was no problem with the
requests in the prayer for relief, as the Act requires neither a separate
motion seeking a continuance or leave to amend nor specificity in the
request. Defendant also argues that his statement at the beginning of
his petition that he had mailed affidavits to prospective witnesses but
that they had not mailed them back was adequate to alert the trial
court as to why he needed a continuance and leave to amend.
Defendant further contends that, at a minimum, the trial court should
have given him until the end of the 90-day period to obtain the
affidavits and that its failure to do so was an abuse of discretion.
Defendant’s sole support for this argument is People v. Jennings, 411
Ill. 21, 26 (1952), in which this court recognized that a circuit court
has the authority to grant a postconviction petitioner more time in
which to obtain supporting affidavits.
     We find no error by the circuit court. First, we disagree with
defendant’s argument that the circuit court failed to rule on the
requests in his prayer for relief. By entering a final order summarily
dismissing the petition as frivolous and patently without merit, the
court impliedly denied the requests in defendant’s prayer for relief.
The question is whether it was an abuse of discretion to do so.
Clearly, it was not. As the appellate court noted, the requests in
defendant’s prayer for relief were simply generic, boilerplate requests.
Defendant did not provide any details about why he wanted leave to
amend, more time, subpoena power for discovery, or what he wanted
to add to the petition. Defendant is correct that the Act does not
require a defendant to file a separate motion for leave to amend or for
a continuance or to provide any details as to why he wants the court
to grant his requests. Absent such detail or explanation, however, a
defendant will be hard-pressed to show that the court abused its
discretion in denying the requests. Defendant argues that it should
have been clear from his statements at the beginning of the petition
that he needed more time to obtain affidavits from witnesses that he
believed would have offered testimony favorable to his defense. He
attached their unsigned affidavits, explaining that he had mailed them
to the prospective witnesses but that no one had mailed them back.
Moreover, he was filing the petition at that time only because the
statute of limitations was about to run. The trial court could very well
have concluded, nevertheless, that if defendant had not obtained the

                                  -19-
affidavits in three years that there was little chance he was going to
obtain them at all. Defendant did not provide the trial court with an
explanation of when he mailed the proposed affidavits or when he
expected that they might be returned. Defendant tries to leave the
impression that he was rushed and that he was simply not given
enough time to prepare a proper petition. In fact, he was given the
maximum amount of time that the statute allowed at the time. Under
the statute of limitations then in effect, the longest possible time a
defendant could have to file a postconviction petition (absent a delay
not due to the defendant’s culpable negligence) was three years from
the date of conviction (725 ILCS 5/122–1(c) (West 2002)), and that
was the time limit applicable to defendant. If his direct appeal would
have concluded within a year after the conviction, then defendant
would have had a much shorter period in which to prepare his petition
and obtain affidavits. Defendant is correct that Jennings said that a
trial court could grant a continuance for a defendant to obtain
affidavits. However, the full passage from Jennings states that
“[w]here there are no supporting affidavits and their absence is neither
explained nor excused, the trial court should either dismiss the
petition or grant a further time within which such affidavits may be
obtained.” (Emphasis added.) Jennings, 411 Ill. at 26.5 Here, the court
dismissed the petition, and defendant has not shown that the court
abused its discretion in failing to grant him more time.
     We likewise see no error in the trial court’s dismissing the petition
on the twenty-third day. The Act merely requires the trial court to
make its first-stage order “[w]ithin 90 days after *** filing and
docketing.” 725 ILCS 5/122–2.1(a) (West 2002). The Act does not
require the court to wait the full 90 days, and defendant has failed to
cite a single case in which a postconviction court was found to have
erred by ruling too quickly. Defendant contends that the trial court
should have given him at least until the ninetieth day to obtain the
witness affidavits to support his claim. As set forth above, however,


  5
    Jennings was decided before the Act contained the summary dismissal
provision. Now that that provision is in effect, it would appear that, at the
first stage, the trial court could grant the defendant only until the ninetieth
day to obtain the affidavits if it did not intend for the proceeding to move to
the second stage.

                                     -20-
the trial court could have found that if defendant had already been
given the maximum time contemplated by the legislature–three years
from the date of conviction–and had failed to obtain the affidavits in
that time, another 68 days was not going to make a difference. Nor
did defendant give the court any reason to believe that the affidavits
would be forthcoming. The court did not err in dismissing the petition
on the twenty-third day.

                       Gist of a Meritorious Claim
     Finally, defendant claims that the trial court erred in summarily
dismissing his petition because one of its allegations stated the gist of
a meritorious claim. According to defendant, his allegation that trial
counsel was ineffective for failing to interview and present the
testimony of certain witness stated the gist of a meritorious claim.
This allegation was supported by defendant’s affidavit as to what
these witnesses would have said, and defendant contends that the trial
court erred in ignoring his affidavit. The trial court found that
defendant’s claim was mere speculation because he had not provided
the required affidavits. The proposed affidavits submitted by plaintiff
were unsigned, and the court found that they were merely what
defendant wished these people would say. The trial court’s ruling was
correct. This court held in People v. Enis, 194 Ill. 2d 361, 380 (2000),
that “[a] claim that trial counsel failed to investigate and call a witness
must be supported by an affidavit from the proposed witness.” The
reason for such a requirement is clear. “In the absence of such an
affidavit, a reviewing court cannot determine whether the proposed
witness could have provided testimony or information favorable to the
defendant, and further review of the claim is unnecessary.” Enis, 194
Ill. 2d at 380. Defendant’s affidavit was not sufficient to satisfy Enis’s
requirement. Because defendant failed to supply the necessary
evidentiary support for his claim, the trial court did not err in finding
it frivolous and patently without merit.

                            CONCLUSION
    The Act requires that, in a noncapital case, the trial court must,
within 90 days after the filing and docketing of a postconviction
petition, review the petition to determine if it is frivolous and patently

                                   -21-
without merit. This requirement is mandatory, and that is precisely
what the trial court did here. The trial court’s order was correct,
because this petition did not state the gist of a meritorious claim.
Whether to allow an amendment to the petition is discretionary, and
defendant has failed to demonstrate that the court abused its discretion
in ruling on the merits of the petition without granting him leave to
amend. Under the version of the Act under consideration, the
legislature required that some petitions would have to be filed while
the direct appeal was still pending. This was one of those cases, and
to hold that the trial court was required to hold the petition in
abeyance or dismiss it without prejudice would be contrary to clearly
expressed legislative intent. A defendant who is forced by the statute
of limitations to file his petition while the direct appeal is pending and
who later wishes to argue that he received constitutionally ineffective
assistance of counsel on appeal must proceed by way of a successive
petition. Defendant has failed to demonstrate error by the circuit
court; therefore, the judgment of the appellate court, which affirmed
the circuit court’s summary dismissal of defendant’s postconviction
petition, is affirmed.



                                   Appellate court judgment affirmed.




                                  -22-
