                          NO. 4-06-0658             Filed 3/11/08

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,       )   Appeal from
          Plaintiff-Appellee,              )   Circuit Court of
          v.                               )   Macon County
RICKY E. DANIEL,                           )   No. 91CF526
          Defendant-Appellant.             )
                                           )   Honorable
                                           )   Scott B. Diamond,
                                           )   Judge Presiding.


           JUSTICE MYERSCOUGH delivered the opinion of the court:

           Defendant, Ricky E. Daniel, appeals the trial court's

dismissal of his second postconviction petition.   Defendant,

however, failed to seek leave to file the petition prior to

filing his successive petition.   Including a request for leave to

file a successive postconviction petition within the second

postconviction petition does not comport with the statutory

requirement that a petitioner seek leave prior to filing a

successive postconviction petition (725 ILCS 5/122-1(f) (West

2006)).   Therefore, we affirm.

                           I. BACKGROUND

           In August 1991, the State charged defendant with three

counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par.

9-1(a)(1),(a)(2)) arising out of the death of Earley Mae Taylor.

In November 1991, defendant entered an open plea of guilty to one
count of first degree murder in exchange for dismissal of the

remaining two counts.    Thereafter, in December 1991, the trial

court sentenced defendant to 50 years' imprisonment.     Defendant

filed a motion to reconsider sentence, which the court denied.

Defendant did not file a direct appeal.

           In December 1993, defendant filed a pro se petition for

postconviction relief.    The trial court appointed counsel to

represent defendant on his petition.    However, in May 1994,

appointed counsel moved to withdraw because defendant failed to

respond to counsel's attempts to contact him by mail.    In

response, the State filed a motion to dismiss on the ground that

defendant had abandoned his petition.

           In June 1994, after notice was given to defendant, the

trial court granted appointed counsel leave to withdraw.      The

court also granted the State's motion to dismiss the

postconviction petition on the ground that defendant had

abandoned his petition by failing to "respond to communications

given."   The clerk of the court sent to defendant, by certified

mail, a copy of the June 24, 1994, docket entry.    No appeal was

filed.

           On June 5, 2006, defendant filed his second

postconviction petition.    Although not noted by the parties in

their respective briefs, a paragraph on page two of the

postconviction petition requested leave of court to file the


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successive petition.    Defendant asserted the trial court

committed reversible and prejudicial error by allowing

postconviction counsel to withdraw and granting the State's

motion to dismiss the December 1993 petition.    Defendant claimed

(1) counsel and the court should have known from the record that

defendant suffered from borderline mental retardation and had

extremely low intelligence, which prevented him from

understanding written correspondence; (2) the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2006))

does not permit appointed counsel to withdraw; and (3)

postconviction counsel operated under a conflict of interest

because he had ties to trial counsel (both worked in the Public

Defender's office).

          On July 10, 2006, the trial court dismissed defendant's

second postconviction petition as frivolous and without merit.

The court also found that the dismissal of defendant's first

postconviction petition on the ground of abandonment was a

finding on the merits such that "the doctrines of res judicata

and waiver" (better referred to as "forfeiture") applied to

successive petitions.    The court further found defendant failed

to meet the cause-and-prejudice test required for filing a

successive petition.

          This appeal followed.

                            II. ANALYSIS


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          When a defendant files a successive postconviction

petition, section 122-3 of the Act mandates that any claim not

raised in the original or amended petition is forfeited.    725

ILCS 5/122-3 (West 2006).   This statutory bar is only relaxed

when fundamental fairness requires.     People v. Flores, 153 Ill.

2d 264, 274, 606 N.E.2d 1078, 1083 (1992).    In determining

whether fundamental fairness requires relaxation of the statutory

bar, reviewing courts use the "cause-and-prejudice" test.      725

ILCS 5/122-1(f) (West 2006); People v. Pitsonbarger, 205 Ill. 2d

444, 459, 793 N.E.2d 609, 621 (2002).    Section 122-1(f) provides

as follows:

               "Only one petition may be filed by a

          petitioner under this [a]rticle 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) the prisoner shows prejudice by


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           demonstrating that the claim not raised

           during his or her initial post[]coinviction

           proceedings so infected the trial that the

           resulting conviction or sentence violated due

           process."   725 ILCS 5/122-1(f) (West 2006).

See also People v. Morgan, 212 Ill. 2d 148, 153-54, 817 N.E.2d

524, 527 (2004) (defining cause and prejudice).    In a non-death-

penalty case, a showing of actual innocence may also relax the

statutory bar.   Pitsonbarger, 205 Ill. 2d at 459, 793 N.E.2d at

621.   However, a defendant must seek leave of court before filing

a second or successive postconviction petition.    725 ILCS 5/122-

1(f) (West 2006).   This court reviews the summary dismissal of a

postconviction petition de novo.    People v. Leason, 352 Ill. App.

3d 450, 452, 816 N.E.2d 747, 751 (2004) (reviewing the dismissal

of a successive postconviction petition).

           In his appellate brief, defendant concedes he did not

seek leave to file a successive postconviction petition but

argues that his petition alleged sufficient facts to establish

cause and prejudice to relax the forfeiture rule.    The State

argues that the failure to seek leave to file the successive

petition warranted dismissal of defendant's second postconviction

petition, citing People v. DeBerry, 372 Ill. App. 3d 1056, 1059,

868 N.E.2d 382, 384 (2007) (requiring that a defendant seek leave

before filing a successive petition).


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            Neither party notes the portion of defendant's second

postconviction petition that requests leave to file the succes-

sive petition.    Nonetheless, this court, in DeBerry, held that

leave must be obtained before the successive petition is filed,

thus suggesting that a request for leave within the successive

petition itself is insufficient:

            "[A] defendant must obtain leave of court

            before filing a successive petition, and if a

            defendant fails to do so, the court, whether

            sua sponte or on the State's motion, should

            dismiss any such petition.     In taking this

            action, the court need not--and should not--

            concern itself with the merits of any claims,

            contentions, or arguments that the petition

            contains.   Section 122-1(f) constitutes a

            procedural hurdle to any such consideration

            that the legislature has intentionally chosen

            to impose regarding such petitions."

            (Emphasis in original.)      DeBerry, 372 Ill.

            App. 3d at 1060, 868 N.E.2d at 384.

The DeBerry court affirmed the trial court's dismissal because

the petitioner failed to seek leave to file the successive

petition.    DeBerry, 372 Ill. App. 3d at 1060, 868 N.E.2d at 384.

            Here, although defendant requested leave within his


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petition, he did not seek leave prior to filing his successive

petition.    See People v. LaPointe, 227 Ill. 2d 39, 42, 879 N.E.2d

275, 277 (2007) (finding that a successive postconviction

petition is not even deemed filed unless the trial court grants

leave to file the petition).     The requirement that a party

request leave separately and not within the petition is necessary

because (1) the petition is not deemed filed unless leave is

granted and (2) the court could easily miss the request for leave

buried within a petition, as both parties apparently did in this

case.   Therefore, the trial court's dismissal is affirmed.

            This court also notes that currently pending

legislation, House Bill 3452, seeks to amend section 122-1(f) to

specifically provide that a petitioner seek leave of court prior

to filing a postconviction petition.     The proposed amendment

would provide as follows:



            "A petitioner must seek leave of court by

            filing a motion when he or she sends his or

            her proposed subsequent petition.   The

            circuit court must review the motion within

            30 days of its receipt by the Circuit Court

            Clerk.   If the court grants the motion for

            leave to file the petition, the Circuit Court

            Clerk shall docket it, and the petition shall


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            proceed under [s]ection 122-2.1 of this

            [a]rticle.   If the court denies the motion,

            the Circuit Court Clerk shall notify the

            petitioner by certified mail within 10 days

            of the entry of the order."   95th Ill. Gen.

            Assem., House Bill 3452, §5, 2007 Sess.

Should this pending legislation pass, it will add much needed

clarity to this area of the law.

                            III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

            Affirmed.

            KNECHT and STEIGMANN, JJ., concur.




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