People v. Barber

No. 3--05--0847
_________________________________________________________________
Filed April 11, 2008
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 82--CF--358
)
BILLIE D. BARBER, ) Honorable
) Stuart P. Borden,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE CARTER delivered the opinion of the court:
Modified Upon Denial of Rehearing
_________________________________________________________________

The defendant, Billie D. Barber, appealed the trial court's

denial of leave to file a successive postconviction petition.

After modifying our opinion upon denial of the defendant's

petition for rehearing, we affirm.

In 1982, a jury found the defendant guilty of murder (Ill.

Rev. Stat. 1981, ch. 38, par. 9--1). The trial court sentenced

him to natural life imprisonment.

The defendant filed a document with the trial court, which

the court construed as a postconviction petition. The trial

court dismissed the petition at the first stage of the

proceedings. This court affirmed the trial court's dismissal of
the defendant's first postconviction petition. People v. Barber,

No. 3--87--0044 (1987) (unpublished order under Supreme Court

Rule 23).

The defendant then filed a petition for a writ of habeas

corpus, which the trial court denied. The defendant appealed.

During the pendency of the appeal concerning the defendant's

habeas petition, the defendant filed a second postconviction

petition on February 9, 2004. On June 29, 2004, the trial court

dismissed the second postconviction petition without prejudice,

with leave to refile. The trial court reasoned that it lacked

jurisdiction to consider the defendant's second postconviction

petition during the pendency of the appeal concerning the

defendant's habeas petition.

On September 12, 2005, the defendant filed a third

postconviction petition, which is the subject of this appeal.

The defendant asserts that his third petition was the refiling of

his second petition, which the trial court had allowed in its

June 29, 2004, order. The record shows that the defendant's

third petition was not merely a refiling of the second, but

rather, was substantially different from the second petition.

Although the defendant acknowledged in his third

postconviction petition that it was a successive petition, he did

not seek leave from the trial court to file a successive petition

(725 ILCS 5/122--1(f) (West 2004)). In the third petition, the

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defendant made eight arguments, but he did not state any facts to

show why he could not have raised these arguments in his first

postconviction petition.

On October 25, 2005, the trial court issued its order

concerning the defendant's third postconviction petition. In its

order, the court (1) denied the defendant leave to file a

successive postconviction petition; and (2) alternatively,

dismissed the petition on the merits at the first stage of the

proceedings. On appeal, the defendant argued that the trial

court erred by (1) denying him leave to file his successive

postconviction petition; and (2) alternatively, dismissing the

petition at the first stage of the proceedings.

Section 122--1(f) states that a defendant may only file one

postconviction petition without leave of the court. 725 ILCS

5/122--1(f) (West 2004). "Leave of court may be granted only if

a petitioner demonstrates cause for his or her failure to bring

the claim in his or her initial post-conviction proceedings and

prejudice results from that failure." 725 ILCS 5/122--1(f) (West

2004).

A trial court's decision concerning whether to grant a

defendant leave to file a successive postconviction petition is

controlled by statute. A court's compliance with statutory

procedure is a question of law, which we review de novo. Woods

v. Cole, 181 Ill. 2d 512, 693 N.E.2d 333 (1998).

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 In his petition for rehearing, the defendant contends that

he did not seek leave to file his successive postconviction

petition because he relied upon the trial court's order granting

him leave to refile. We acknowledge that the defendant may have

failed to seek leave to file his successive petition because he

detrimentally relied upon the trial court's order granting him

leave to refile a previous successive postconviction petition.1

However, the defendant's reliance on the trial court's order

granting leave to refile is not dispositive of the matter.

Even if the defendant had sought leave to file his

successive postconviction petition, he would have been required

to show that his arguments passed the statutory cause and

prejudice test. In his petition for rehearing, the defendant

asserts that his arguments passed this test. However, his

assertion is merely conclusory. In his petition for rehearing,

1
We note that the trial court's order dismissing the

defendant's second postconviction petition without prejudice with

leave to refile was erroneous because, under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2004)), (1)

the trial court did not lack jurisdiction to consider a

postconviction petition while the defendant's habeas petition was

on appeal; and (2) the Act does not authorize dismissals at the

first stage of the proceedings without prejudice with leave to

refile.

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the defendant did not state any facts to show the cause for his

failure to bring the claims in his initial postconviction

petition. Likewise, the defendant did not raise such facts in

his briefs on appeal.

Under section 122--1(f), the defendant has failed to show

cause why the trial court should have granted him leave to file a

successive postconviction petition, even if he had sought such

leave. Therefore, we hold that the trial court was correct as a

matter of law to deny the defendant leave to file his successive

postconviction petition. Because our decision is based on the

trial court's denial of leave to file the petition, we need not

consider, in the alternative, the trial court's first-stage

dismissal of the petition on the merits.

For the foregoing reasons, we affirm the judgment of the

Tazewell County circuit court concerning the defendant's

successive postconviction petition.

Affirmed.

HOLDRIDGE and WRIGHT J. J. concurring.

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