People v. Smith

2014 IL 115946

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 115946)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WILLIAM SMITH,
Appellant.

Opinion filed December 4, 2014.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis
concurred in the judgment and opinion.

OPINION

¶1 Defendant, William Smith, 1 appeals from a judgment of the circuit court of Cook
County denying him leave to file a successive pro se petition for relief under section
122-1(f) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2008)).
The issue in this case focuses on the interpretation of section 122-1(f) of the Act. The
trial court denied defendant leave to file a successive postconviction petition, finding
that he failed to meet the cause-and-prejudice test. The appellate court affirmed. 2013
IL App (1st) 111069-U. We allowed defendant’s petition for leave to appeal (Ill. S. Ct.
R. 315 (eff. July 1, 2013)). We affirm the judgments of the appellate court and the
circuit court of Cook County.

1
The record indicates that defendant’s legal name is Ricky Harris.
¶2 BACKGROUND

¶3 Defendant and codefendant, Marlan Barber, along with three other men (the
group), were indicted on charges of first degree murder and aggravated discharge of a
firearm in the 1998 shooting death of 14-year-old Deon Alexander. Defendant and
Barber were tried simultaneously by two different juries before the same judge in
severed trials. During opening statements, the prosecutor told the jury that it would
“present the testimony of several young men” who saw defendant immediately prior to
the shooting emerge from a gangway while holding a gun, and that one of the young
men identified defendant in a lineup as one of the people who had a gun prior to the
shooting.

¶4 At trial, Steven Small testified that on November 12, 1998, at 7 p.m., he and his
friends, Deon Alexander (the victim), Darryl Jones, and Daniel Hudson, were standing
near the corner of 57th and Peoria Streets. Small indicated that he and Deon Alexander
were 14 years old on the night of the shooting. Small stated that a group of older boys
stood on the sidewalk about three to four houses down, or about 20 feet away from
where Small and Hudson were standing. Small saw a cream colored station wagon with
black tinted rear windows drive onto the street. The station wagon stopped on Peoria
Street, and five or six men exited the car and started arguing with the older boys who
were standing down the street. Eventually, a woman came out of her house and told the
group to stop fighting. The men who had been in the car said they would be back, threw
a bottle at the boys on the sidewalk, returned to the station wagon, and drove north on
Peoria Street.

¶5 A short time later, Small saw some men walking toward where he was standing,
across the street on the sidewalk. Small heard gunshots and then saw the station wagon
drive past on Peoria Street. Small stated that he saw the station wagon twice on the
street that night: once prior to the argument and again as the shots went off. Small later
identified defendant in a lineup as one of the individuals who got into the station wagon
after the argument on the street.

¶6 Small admitted he was reluctant to come to court and that a petition for contempt
had been filed against him for his failure to respond to subpoenas. Small identified
defendant in court as the person he previously identified in the lineup on the night of
the shooting. Small further identified the station wagon from photograph exhibits
presented by the State.

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¶7 Daniel Hudson testified that he knew one of the older boys who was standing
several houses away as “Joval.” Hudson stated that a “gang of guys” drove up in a
brown station wagon, got out, and began arguing with the older boys and Joval. Hudson
stated that Barber approached Joval and Joval said to him, “if you swing, you better
knock me out.” The guys got back into their car and drove away after Barber said,
“We’ll be back.” A few minutes later, Hudson saw the station wagon drive slowly back
down Peoria Street. This time, only one or two persons occupied the car. As the station
wagon passed Hudson and his friends, he heard gunshots but did not see the source of
the gunshots. Hudson ran to get away and heard the victim, Deon Alexander, fall
behind him. Hudson also identified the State’s photograph exhibits of the station
wagon as the car he saw on the night of the shooting.

¶8 Chicago police officer John Paulson testified that he found eleven 9-millimeter
cartridge cases and five .45-caliber cartridge cases on the 5700 block of Peoria Street.
Beth Patty, an expert in firearms identification, testified that the .45-caliber cartridge
cases were all fired from the same gun and that the 9-millimeter cartridge cases were
also fired by the same weapon. Medical examiner Dr. John Denton testified that the
victim died as a result of a gunshot that severed his aorta.

¶9 Assistant State’s Attorney Ron DeWald testified that defendant was in custody
when he arrived at police headquarters around 9 p.m. on November 13, 1998. DeWald
read defendant his Miranda rights and ensured that defendant understood his rights.
According to DeWald, defendant said he was willing to speak with DeWald and opted
to provide a handwritten statement. Defendant told DeWald that he was treated fine by
the police and that he was fed and allowed to use the restroom. After DeWald wrote out
the statement, defendant read every page, signed the pages, and made and initialed
corrections.

¶ 10 The evidence presented at trial included defendant’s statement detailing his
participation in the group’s plan to shoot two people. The plan required defendant to
drive the group to retrieve two guns and then approach the intended victims while other
members of the group would shoot them. Defendant’s statement was read to the jury. 2

¶ 11 The jury found defendant guilty of first degree murder and aggravated discharge of
a firearm based on a theory of accountability. He was sentenced to concurrent terms of
28 and 15 years’ imprisonment.

2
Defendant’s statement was not included in the record submitted to this Court.
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¶ 12 On appeal, defendant contended that: (1) the trial court improperly denied his
motion to quash arrest and suppress evidence; (2) he was not properly found
accountable for first degree murder and aggravated discharge of a firearm; and (3) he
was denied a fair trial when, during the rebuttal closing argument, the prosecutor
commented on the failure of certain State’s witnesses to testify as she had indicated
they would in her opening argument. The appellate court affirmed the trial court’s
judgment on direct appeal. People v. Smith, No. 1-02-0721 (2003) (unpublished order
under Supreme Court Rule 23).

¶ 13 On September 10, 2004, defendant filed a pro se petition for postconviction relief,
alleging ineffective assistance of trial counsel for failing to investigate his claim that he
suffered from a mental disability and asserting that his sentence was unconstitutional.
Defendant alleged that he informed his counsel that he was diagnosed as mentally
retarded. Defendant claimed he did not understand his Miranda rights and, although he
responded affirmatively to understanding those rights, “one of the traits of petitioner’s
particular mental deficiency is that petitioner would often agree or give responses that
he thought others wanted to hear, whether it is correct or not.” Defendant attached
documentation from the Social Security Administration indicating defendant was
found disabled due to mental retardation, with current verbal IQ of 72; performance IQ
of 79; and full-scale IQ of 74. Defendant asserted that this information would have
been relevant to his “understanding of his right to remain silent, and the statement he
allegedly made upon arrest,” and that it would have “enlightened the court” as to his
fitness to stand trial, his ability to assist trial counsel, and his ability to “fully
understand[ ] what was happening at trial.”

¶ 14 Defendant also attached a signed affidavit from his mother and designated Social
Security payee, Rochella Harris. Harris stated that defendant was diagnosed as
mentally retarded at a young age, that defendant is “easily influenced” and “has the
tendency of trying to please others and will do and say what they want him to, for their
approval,” and that people often “try to take advantage of him.”

¶ 15 Defendant’s petition was advanced to the second stage of review and
postconviction counsel was appointed to represent defendant in the proceedings. On
February 26, 2009, counsel filed a Rule 651(c) (Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984))
certificate indicating he consulted with defendant, he reviewed the case, and that an
amended petition was not necessary because defendant adequately set forth his claims
in his pro se petition. The trial court granted the State’s motion to dismiss the petition,
finding defendant failed to make a substantial showing that his constitutional rights
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 were violated. The appellate court affirmed the dismissal on appeal. People v. Smith,
2012 IL App (1st) 101479-U.

¶ 16 On March 8, 2011, defendant filed a motion for leave to file a successive
postconviction petition, along with a successive petition. Defendant claimed he
received: (1) ineffective assistance of appellate counsel who, on direct appeal, failed to
raise the issue of improper comments by the prosecutor during opening statements; and
(2) inadequate representation by postconviction counsel, who failed to amend his
initial pro se petition to include a claim of ineffective assistance of appellate counsel.
Defendant maintained that he was impeded in raising those claims in his initial petition
because of his low IQ. For support, defendant attached a 1997 letter from the Social
Security Administration stating that he was “found to be disabled with an onset of
9/01/78 due to mental retardation.” The trial court denied defendant leave to file his
successive postconviction petition, finding that he failed to meet the
cause-and-prejudice test.

¶ 17 On appeal, defendant contended that the circuit court erred in denying his motion
for leave to file a successive postconviction petition. Defendant argued that the
standard applicable to first-stage dismissals of postconviction petitions should be
applied to successive petitions in determining whether a defendant has demonstrated
cause and prejudice.

¶ 18 The appellate court affirmed. 2013 IL App (1st) 111069-U. The appellate court
determined that a defendant must make a “more exacting” showing of cause and
prejudice to merit leave to file a successive petition. The appellate court held that
defendant was required to satisfy both prongs of the cause-and-prejudice test.

¶ 19 The appellate court found that defendant failed to satisfy the prejudice prong. The
court noted that both of defendant’s claims stemmed from his allegation that he was
prejudiced by the prosecutor’s reference during opening statements to testimony
placing a gun in defendant’s hand on the night of the shooting, when that testimony was
not later presented at trial. The appellate court concluded that the misstatement by the
prosecutor was not deliberate and that defendant was not prejudiced by the
misstatement because the trial court twice instructed the jury that an opening statement
is not evidence. The appellate court, therefore, held that the trial court did not err in
denying defendant leave to file his successive postconviction petition. This court
allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).

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¶ 20 ANALYSIS

¶ 21 On appeal, defendant contends that the circuit court erred in denying his motion for
leave to file a successive postconviction petition. The issue in this case is the
interpretation of section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2008). We
review this issue of statutory construction de novo. People v. Davison, 233 Ill. 2d 30,
40 (2009).

¶ 22 The Act provides a method for criminal defendants to 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)(1) (West 2008). “A proceeding under the Act is a collateral
attack on the judgment of conviction.” People v. Wrice, 2012 IL 111860, ¶ 47.

¶ 23 Section 122-1(f) of the Act addresses successive postconviction petitions, as
follows:

“(f) 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 2008).

¶ 24 When construing a statute, this court’s primary objective is to give effect to the
legislature’s intent. People v. Greer, 212 Ill. 2d 192, 208 (2004). “[S]ection 122-1(f)
was clearly intended by the General Assembly to codify the cause-and-prejudice test
adopted by this court in People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002), and thus
evinces an intent to limit the filing of both successive and frivolous postconviction
petitions.” People v. Tidwell, 236 Ill. 2d 150, 156 (2010).

¶ 25 Defendant contends that section 122-1(f) should be interpreted “such that the
determination of whether to grant leave to file a successive petition occurs in
conjunction with the first-stage proceedings, and that leave should be granted where
the pleadings make an arguable showing of cause and prejudice.” Defendant raises the

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 same issue of the applicable standard for successive postconviction petitions as was
raised in People v. Evans, 2013 IL 113471. As this court observed in Evans:

“When it enacted section 122-1(f), the legislature grafted into the Act two new
requirements: the obtaining of leave to file a successive postconviction petition,
and the demonstration of cause and prejudice. In doing this, however, the
legislature made no provision for when or precisely how a successive
postconviction petitioner satisfies these requirements. For example, is cause
and prejudice evaluated prior to the first stage of postconviction proceedings,
or in conjunction with the first stage of postconviction proceedings? Does a
successive postconviction petitioner ‘demonstrate’ cause and prejudice by
adequately pleading it, or by actually proving it? And if by actually proving it,
what provision is there for the presentation of evidence? Is cause and prejudice
a one-sided question, or may the State contest a cause and prejudice claim?
These are just some of the questions that section 122-1(f) raises, and the Act
answers none of them. *** In light of this, we would invite the legislature to
seize the window of opportunity that this case provides and, sometime before
the next such case arrives on our docket, enact a more complete statutory
framework for successive postconviction practice. Because the next case will
arrive, and when it does, our analysis will be governed either by the
legislature’s judgment or by our own. We would prefer it be the legislature’s.”
(Emphases in original.) Evans, 2013 IL 113471, ¶ 18.

¶ 26 In Evans, this court did not address the issues on the construction of section
122-1(f) because we found the defendant’s alleged cause for failing to raise his claim
earlier was insufficient. In Evans, the defendant’s proffered “cause” was that he “just
discovered” he would be subject to a three-year mandatory supervisory release (MSR)
term following his release from imprisonment. Defendant essentially claimed he was
ignorant of the law. This court stated, “[i]mportant as these arguments [on the
construction of section 122-1(f)] are [citation], we need not address either of them in
this case. This is because, in his motion for leave to file the successive petition,
defendant asserts as ‘cause’ something that, as a matter of law, can never be ‘cause.’ ”
Evans, 2013 IL 113471, ¶ 12.

¶ 27 The arguments presented by defendant in this appeal are essentially the same as
those presented by the defendant in Evans. Regrettably, the legislature still has not
provided any guidance, and this lack of guidance has caused confusion and conflict in
our courts. See People v. LaPointe, 365 Ill. App. 3d 914, 924 (2006) (holding that a
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 section 122-1(f) motion “need state only the gist of a meritorious claim of cause and
prejudice”), aff’d on other grounds, 227 Ill. 2d 39 (2007); People v. Evans, 2011 IL
App (1st) 100391-U, ¶ 13 (rejecting LaPointe, and finding that a stricter standard
applies to pro se successive petitions); People v. Smith, 2011 IL App (1st) 091938-U,
¶¶ 15-17 (rejecting LaPointe); People v. McKinley, 2012 IL App (1st) 110513-U,
¶¶ 13-15 (rejecting LaPointe); People v. Edwards, 2012 IL App (1st) 091651, ¶¶ 21-22
(rejecting LaPointe); People v. Files, 2012 IL App (2d) 110012-U, ¶ 12 (noting
disagreement).

¶ 28 Section 122-1(f) contains no express provision for fully resolving the
cause-and-prejudice determination prior to proceeding with the three-stage
postconviction process outlined in the Act. Section 122-1(f) does not answer whether a
successive postconviction petitioner must demonstrate cause and prejudice by actively
pleading it, or by actually proving it. If the petitioner is required to prove cause and
prejudice, section 122-1(f) does not provide a method for presentation of evidence.

¶ 29 From a practical standpoint, if a petitioner is required to establish cause and
prejudice conclusively prior to being granted leave to file a successive petition, it may
render the entire three-stage postconviction process superfluous. Section 122-1(f) does
not provide that a petitioner is entitled to relief upon satisfaction of the
cause-and-prejudice test. It only gives a petitioner an avenue for filing a successive
postconviction petition. The legislature clearly intended for further proceedings on
successive postconviction petitions.

¶ 30 The State cites to People v. Edwards, 2012 IL 111711, to support its position that
first-stage standards are inapplicable when considering a motion for leave to file a
successive postconviction petition. Edwards involves the standard a petitioner who
claims actual innocence must meet in seeking leave to file a successive postconviction
petition. Edwards recognizes two exceptions to the bar against successive
postconviction proceedings: (1) “when a petitioner can establish ‘cause and prejudice’
for the failure to raise the claim earlier”; and (2) under “what is known as the
‘fundamental miscarriage of justice’ exception.” Edwards, 2012 IL 111711, ¶¶ 22-23
(citing Pitsonbarger, 205 Ill. 2d at 459). In Edwards, this court observed that Tidwell
noted that “a petitioner seeking to institute a successive postconviction proceeding
must first obtain ‘leave of court.’ ” Edwards, 2012 IL 111711, ¶ 24 (quoting Tidwell,
236 Ill. 2d at 157). “We also made clear in Tidwell that it is the petitioner’s burden to
obtain ‘leave’ before further proceedings on his claims can follow.” Edwards, 2012 IL
111711, ¶ 24 (citing Tidwell, 236 Ill. 2d at 157). We recognized that “[d]efendant not
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 only has the burden to obtain leave of court, but also ‘must submit enough in the way of
documentation to allow a circuit court to make that determination.’ [Citation.] This is
so under either exception, cause and prejudice or actual innocence.” Edwards, 2012 IL
111711, ¶ 24. In Edwards, this court rejected the defendant’s argument that first-stage
standards should apply in evaluating his successive postconviction petition claiming
actual innocence, stating:

“First, applying the frivolous or patently without merit standard here would
render the ‘leave of court’ language in section 122-1(f) superfluous. We have
repeatedly held that statutes should be read as a whole and construed so that no
part is rendered meaningless or superfluous. E.g., People v. Jones, 214 Ill. 2d
187, 193 (2005).

Second, there is simply no basis in the statute for applying a first-stage
analysis to a successive petition. Section 122-1(f), which governs successive
petitions, describes the ‘leave of court’ requirement but makes no mention of
the frivolous or patently without merit standard, which is set forth in a separate
provision, section 122-2.1(a)(2). The legislature was clearly aware of the
frivolous or patently without merit language in 2004, when section 122-1(f)
was added, and could have incorporated it into that section if it chose to do so.
Where language is included in one section of a statute but omitted in another
section of the same statute, we presume the legislature acted intentionally and
purposely in the inclusion or exclusion.” (Emphasis in original.) Edwards, 2012
IL 111711, ¶¶ 26-27 (citing Chicago Teachers Union, Local No. 1 v. Board of
Education of the City of Chicago, 2012 IL 112566, ¶ 24; 2A Norman J. Singer
& J.D. Shambie Singer, Sutherland on Statutory Construction § 46:5, at 228-29
(7th ed. 2007) (“where the legislature has employed a term in one place and
excluded it in another, it should not be implied where excluded”).

¶ 31 In Edwards, this court also discussed the legislative history of section 122-1(f), and
concluded that the legislative history shows that section 122-1(f) was intended to make
Illinois law consistent with federal law and not apply the first-stage standards under the
Act to successive postconviction petitions. Edwards, 2012 IL 111711, ¶ 28. We further
recognized that “[a]nother reason for rejecting the first-stage standard is that treating
successive petitions the same as initial petitions *** ignores the well-settled rule that
successive postconviction actions are disfavored by Illinois courts.” Edwards, 2012 IL
111711, ¶ 29.

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¶ 32 Edwards, however, only addressed the process for the fundamental miscarriage of
justice exception in a claim of actual innocence. Although this court made statements
regarding the cause-and-prejudice test, this court did not address the
cause-and-prejudice exception provided in section 122-1(f), as it was not at issue in
Edwards. In fact, our subsequent decision in Evans recognized that the issue of the
legal standard applicable for a petitioner to demonstrate cause and prejudice involved
important deficiencies in the Act that we were unable to reach. The precise issue raised
in Evans and in this case was not raised or resolved in Edwards. Nonetheless, we note
that, in Edwards, this court stated that “[d]efendant not only has the burden to obtain
leave of court, but also ‘must submit enough in the way of documentation to allow a
circuit court to make that determination.’ ” Edwards, 2012 IL 111711, ¶ 24 (quoting
Tidwell, 236 Ill. 2d at 161).

¶ 33 Section 122-1(f) unambiguously requires a defendant to obtain leave of the trial
court prior to filing a successive postconviction petition. The trial court may grant
leave to file a successive postconviction petition under section 122-1(f) only if the
petitioner demonstrates cause for the failure to bring the claim in the initial
postconviction proceedings and that prejudice results from that failure. Section
122-1(f) further provides that “(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 2008). Section 122-1(f) does not provide for an evidentiary hearing
on the cause-and-prejudice issues and, therefore, it is clear that the legislature intended
that the cause-and-prejudice determination be made on the pleadings prior to the first
stage of postconviction proceedings.

¶ 34 As noted, section 122-1(f) was intended by the General Assembly to codify the
cause-and-prejudice test adopted by this court in Pitsonbarger, 205 Ill. 2d 444. Supra
¶ 24. In Pitsonbarger, this court specifically held “that the cause-and-prejudice test is
the analytical tool that is to be used to determine whether fundamental fairness requires
than an exception be made to section 122-3 so that a claim raised in a successive
petition may be considered on its merits.” Pitsonbarger, 205 Ill. 2d at 459. We
analogized the cause-and-prejudice test in the context of a successive postconviction
petition to the cause-and-prejudice test for ineffective assistance of counsel articulated
in Strickland v. Washington, 466 U.S. 668, 687 (1984). Pitsonbarger, 205 Ill. 2d at 464.
“To support a claim of ineffective assistance of counsel, a defendant must allege facts
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 demonstrating that his attorney’s representation fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different.” (Emphasis added.) People v.
Patterson, 192 Ill. 2d 93, 107 (2000) (citing Strickland, 466 U.S. at 687, 695).
Similarly, a defendant’s pro se motion for leave to file a successive postconviction
petition will meet the section 122-1(f) cause and prejudice requirement if the motion
adequately alleges facts demonstrating cause and prejudice.

¶ 35 This court was clear, however, in Edwards, that the cause-and-prejudice test for a
successive petition involves a higher standard than the first-stage frivolous or patently
without merit standard that is set forth in section 122-2.1(a)(2) of the Act. Edwards,
2012 IL 111711, ¶¶ 26-27. To meet the cause-and-prejudice test for a successive
petition requires the defendant to “submit enough in the way of documentation to allow
a circuit court to make that determination.” Tidwell, 236 Ill. 2d at 161. “This is so under
either exception, cause and prejudice or actual innocence.” Edwards, 2012 IL 111711,
¶ 24. Consistent with our holdings in Pitsonbarger, Tidwell, and Edwards, we
conclude that leave of court to file a successive postconviction petition should be
denied when it is clear, from a review of the successive petition and the documentation
submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of
law or where the successive petition with supporting documentation is insufficient to
justify further proceedings. See, e.g., Pitsonbarger, 205 Ill. 2d at 463 (“a petitioner
must establish cause and prejudice as to each individual claim asserted in a successive
petition”); Tidwell, 236 Ill. 2d at 161 (a defendant seeking leave to institute a
successive postconviction “must submit enough in the way of documentation to allow a
circuit court to make that determination”); Edwards, 2012 IL 111711, ¶ 24 (“leave of
court should be denied only where it is clear, from a review of the successive petition
and the documentation provided by the petitioner” that the petitioner’s claims fail as a
matter of law). 3

¶ 36 Here, defendant’s motion for leave to file a successive postconviction petition
alleged: (1) ineffective assistance of appellate counsel who, on direct appeal, failed to
raise the issue of improper comments by the prosecutor during opening statements; and
(2) inadequate representation by postconviction counsel, who failed to amend his
initial pro se petition to include a claim of ineffective assistance of appellate counsel.
Defendant maintained that he was impeded in raising those claims in his initial pro se

3
The parties have not argued or briefed whether the trial court may consider the record in ruling on a
petition brought under section 122-1(f) of the Act. Accordingly, we do not address that issue.
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 postconviction petition because of his low IQ. For support, defendant attached a 1997
letter from the Social Security Administration stating that he was “found to be disabled
with an onset of 9/01/78 due to mental retardation.”

¶ 37 The appellate court determined that defendant did not satisfy the prejudice prong of
the cause-and-prejudice test. 2013 IL App (1st) 111069-U, ¶ 14. As this court
recognized in Pitsonbarger, to establish prejudice, defendant must show that the claim
not raised in his initial postconviction petition “so infected the entire trial that the
resulting conviction or sentence violates due process.” Pitsonbarger, 205 Ill. 2d at 464
(citing People v. Flores, 153 Ill. 2d 264, 279 (1992)). Defendant submits that his right
to due process was violated by the prosecutor’s comment that a witness would testify
that he had a gun on the night of the shooting and that the witness identified him in a
lineup as one of the people who had a gun in his hand right before the shooting.
However, it is undisputed that the trial court twice instructed the jury that an opening
statement is not evidence and, following closing argument, advised the jury that
“[n]either opening statement nor closing arguments are evidence, any statement or
argument made by the attorneys which is not based on the evidence should be
disregarded.” Moreover, during closing argument, the prosecutor acknowledged that
defendant did not have a gun on the night of the incident, and then discussed the
principles of accountability. Defense counsel also pointed out in his closing argument
the inconsistency between the State’s opening and closing arguments. Thus, the jury
was made aware during closing arguments that defendant did not have a gun on the
night of the incident, and defendant was convicted under a theory of accountability.
Accordingly, defendant’s claim that the prosecutor committed reversible error due to
his comments during opening statements could not have “so infected the entire trial that
the resulting conviction or sentence violates due process.” Pitsonbarger, 205 Ill. 2d at
464 (citing People v. Flores, 153 Ill. 2d 264, 279 (1992)). Thus, defendant failed to
satisfy the prejudice prong of the cause-and-prejudice test. Defendant’s underlying
claim has no merit and, necessarily, defendant’s postconviction counsel and appellate
counsel cannot be ineffective for failing to raise the meritless claim. Having concluded
that defendant cannot show prejudice, we need not address defendant’s claim of cause.
We therefore affirm the lower courts’ determinations that defendant failed to establish
the prejudice prong of the cause-and-prejudice test and, as a result, we affirm the trial
court’s denial of defendant’s motion for leave to file a successive postconviction
petition.

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¶ 38 CONCLUSION

¶ 39 For the foregoing reasons, we affirm the judgments of the appellate court and the
circuit court of Cook County.

¶ 40 Affirmed.

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