John Szabo v. Jonathan R. Walls, Warden, Menard Correctional Center

RIPPLE, Circuit Judge,

dissenting.

The State of Illinois proposes to put Mr. Szabo to death despite the fact that, in its own state courts, he did not receive the quality of legal representation required by state law. Nor was his claim of ineffective assistance of resentencing counsel addressed with precision or care by the Illinois courts., Despite this stark reality, we are required to limit our inquiry to the complex and difficult question of whether the federal courts can afford him any relief. Our authority is limited; we may inquire only as to whether a federal right, properly raised and preserved in earlier state proceedings, was so unreasonably adjudicated in the state courts as to justify our intervention.

The State takes the view that we cannot reach the merits of Mr. Szabo’s ineffective assistance of resentencing counsel claim. In its view, Mr. Szabo has procedurally defaulted this claim. My colleagues agree; they believe that Mr. Szabo procedurally defaulted his Sixth Amendment claim when he failed to submit affidavits in support of this claim in his first post-conviction petition. In their view, this forfeiture is analytically separate from the Supreme Court of Illinois’ “contestable” interpretation of Rule 651(c) in Szabo III that Mr. Szabo’s counsel “had complied functionally with Rule 651(c)” even though that counsel did not attach the necessary affidavits to conform the petition to state-law requirements. See Op. at 396. In my view, Mr. *400Szabo’s failure to submit the required affidavits in the first post-conviction review and the state court’s treatment of that failure on appeal from that determination cannot so easily be unbundled for purposes of determining whether there has been a procedural default that bars federal review of Mr. Szabo’s federal claim that resen-tencing counsel failed to render constitutionally effective assistance of counsel. In the following paragraphs, I shall set forth more fully the reasons for my taking this view.

A.

Our focus will be sharpened by beginning with some basic and undisputed principles. We begin with the fundamental rule that we shall not address a question of federal law raised in a habeas petition if the decision of the state court “ ‘rests on a state law ground that is independent of the federal question and adequate to support the judgment.’ ” Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). This rule applies with equal force whether the rule is substantive or procedural in nature. Id. at 376, 122 S.Ct. 877. Under this principle, “if a state court did not reach a federal issue because it applied, evenhandedly, a state procedural rule, the matter is closed to the federal habeas court absent a showing of cause and prejudice.” Willis v. Aiken, 8 F.3d 556, 561 (7th Cir.1993) (citing Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). However, the Supreme Court consistently has made clear that whether an asserted procedural ground is independent and adequate, and therefore a bar to federal relief, is a federal question. See Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).

As my colleagues note, there is no question that the decision of the Supreme Court of Illinois in Szabo III — that his counsel had complied with the requirements of Rule 651(c) — was independent of Mr. Szabo’s constitutional claim of ineffective assistance of resentencing counsel. See Op. at 395-96. The state’s determination of procedural default, however, must also be adequate. Our case law consistently has required that, in order to be adequate, the procedural rule must be applied in a “consistent and principled way.” Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990). A state rule is “consistent and principled” when it is “firmly established and regularly followed.” Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir.1999); Rosa v. Peters, 36 F.3d 625, 633 (7th Cir.1994); see also Johnson, 486 U.S. at 587, 108 S.Ct. 1981; James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984); Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir.2002); Duncan v. Cain, 278 F.3d 537, 542 (5th Cir.2002). “State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999) (quoting Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982)); see also Romano v. Gibson, 239 F.3d 1156, 1170 (10th Cir.2001), cert. denied, 534 U.S. 1045, 122 S.Ct. 624, 151 L.Ed.2d 545 (2001); Willis, 8 F.3d at 561. We therefore must determine whether Illinois’ application of a state waiver doctrine is adequate to support its judgment and preclude federal habeas review.

B.

In Mr. Szabo’s first state post-conviction petition, he alleged that both his original *401trial counsel and his resentencing counsel were constitutionally ineffective. With respect to resentencing counsel, one of Mr. Szabo’s allegations was that his counsel failed to introduce mitigating evidence in the form of testimony-of prison employees. Mr. Szabo’s counsel in the first state post-conviction proceeding did not substantiate those claims with affidavits or other support. Consequently, the state trial court dismissed those claims as unsubstantiated. This decision was .reviewed by the Supreme Court of Illinois in Szabo III. In that appeal, Mr. Szabo argued that his counsel in the trial-level state post-conviction proceeding had not provided him with the representation required by state law because he had not provided the court with the necessary affidavits to support his claim that his resentencing counsel had been constitutionally ineffective.1 Consequently, Mr. Szabo submitted, his pre-ex-isting federal right to competent counsel at the resentencing hearing had not been presented adequately to the trial court at the state post-conviction hearing. Because a determination that resentencing counsel was constitutionally inadequate .would constitute “cause” for the failure to develop the case at resentencing, Mr. Szabo argued that he was entitled to another post-conviction hearing at which counsel would establish, with the requisite support, the constitutional ineffectiveness of resentenc-ing counsel.

Although there is no federal right to counsel in state post-conviction proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), Illinois has chosen to require that counsel representing defendants in such actions meet certain state-imposed standards. Today, and at all times pertinent to this case, those standards are embodied in Rule 651(c). However, even prior to the adoption of.Rule 651, the Supreme Court of Illinois had set forth the responsibilities of post-conviction counsel under the Illinois Post-Conviction Hearing Act in terms that are relevant to our present inquiry:

To the end that the complaints of a prisoner with respect to the validity of his conviction might be adequately presented, the statute contemplated that the attorney appointed to represent an indigent petitioner would consult with him either by mail or in person, ascertain his alleged grievances, examine the record of the proceedings at the trial and then amend the petition that had been filed Pro se, so that it would adequately present the prisoner’s constitutional contentions. The statute can not perform its function unless the attorney appointed to represent an indigent petitioner ascertains the' basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.

People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566, 569 (1968). Applying this standard in People v. Garrison, 43 Ill.2d 121, 251 N.E.2d 200 (1969), the Supreme Court of Illinois reversed a circuit court order dismissing a petition in which “[t]he record d[id] not affirmatively show” that appointed counsel had conferred with the defendant prior to filing the post-conviction petition. Id. at 201.

Rule 651 was adopted in 1969 and requires in pertinent part:

The record [on appeal on a collateral attack] shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail *402or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of proceedings at the trial, and has made any amendments to the petition filed Pro se that are necessary for an adequate presentation of petitioner’s contentions.

Ill. S.Ct. R. 651(c). Applying the recently adopted rule, the Supreme Court of Illinois in People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663 (1972), remanded a case to the circuit court because post-conviction counsel failed to comply with the “examination” portion of the rule. In Brown, post-conviction counsel had received a letter from the defendant stating that he believed that he had “other grounds that I could rely on but they’re in the court records concerning my first post-conviction hearing .... ” Id. at 664. Counsel took this assertion to mean that the petitioner’s other complaints already had been presented by way of an initial post-conviction proceeding and, consequently, the petitioner had no right to proceed on the current petition. On appeal, the Supreme Court of Illinois stated:

Without considering the necessity of a consultation with the petitioner concerning the contents of the letter received by the attorney on the morning of the hearing, it is clear there is nothing in the record to show that appointed counsel examined the record of the petitioner’s trial proceedings. The State does not dispute this but first replies that there is nothing to indicate that counsel did not examine the trial record. There is no merit to this reply, for Rule 651(c) explicitly requires a showing that counsel has examined the trial record.

Id. at 665. The Illinois appellate courts also routinely have reversed trial court dismissals of post-conviction petitions if post-conviction counsel had failed to meet the requirements of Rule 651(c) to consult, to review or to present the claims. See, e.g., People v. Treadway, 186 Ill.Dec. 83, 615 N.E.2d 887, 890 (Ill.App.Ct.1993) (remanding for further post-conviction proceedings in part because “counsel did not amend the petition to present the claim adequately”); People v. Alexander, 197 Ill.App.3d 571, 144 Ill.Dec. 39, 554 N.E.2d 1078, 1079-80 (1990) (stating that “[a]bsent an affirmative showing on the record, we cannot presume that post-conviction counsel fulfilled his obligation to review the trial record,” holding that “[i]t is error to dismiss a post-conviction petition on the pleadings where, as here, there has been no showing of adequate representation by counsel, even where the petition itself failed to present a substantial constitutional claim,” and remanding for further post-conviction proceedings); People v. Allen, 151 Ill.App.3d 391, 104 Ill.Dec. 600, 502 N.E.2d 1260, 1263 (1987) (remanding petition when counsel had failed to amend petition to include an affidavit from the defendant explaining how defendant would have testified had he not followed counsel’s advice to remain silent).

In other cases, the Supreme Court of Illinois, applying the above standard, concluded that post-conviction counsel had complied with the requirements of Rule 651(c). For instance, in People v. Owens, 139 Ill.2d 351, 151 Ill.Dec. 522, 564 N.E.2d 1184 (1990), the petitioner alleged that his counsel had not met his obligations under Rule 651(c) because his counsel “failed to introduce any such evidence in support of the ineffective assistance claim.” Id. at 1191. The court held otherwise:

The record shows that counsel consulted with the petitioner and filed an amended post-conviction petition which raised numerous allegations of trial error. It would have been impossible for counsel to have raised many of these errors without having examined the record of the proceedings at trial. In addition, petitioner’s post-conviction *403counsel presented adequate evidence in support of the ineffective-assistance claim at the evidentiary hearing on the post-conviction petition. For example, he questioned Scott Belford, the petitioner’s trial counsel, at length regarding his failure to request a hearing to determine the defendant’s competency to stand trial and be sentenced. Petitioner’s counsel also questioned Belford regarding his failure to call the defendant’s father to testify in mitigation, his failure to introduce the defendant’s school records and his failure to introduce evidence of the defendant’s psychological problems in mitigation at sentencing. In addition, petitioner’s counsel called the petitioner to testify, so that he might advise the court of mitigation witnesses who were not called and to explain what those witnesses might have said in mitigation. Because the record demonstrates that petitioner’s counsel adequately presented the petitioner’s ineffective-assistance claim, we reject the petitioner’s contention that his post-conviction counsel did not comply with Rule 651(c).

Id. at 1191 (parallel citation omitted).

It was against this background that the Supreme Court of Illinois decided Mr. Sza-bo’s appeal from his first posLconviction hearing. In denying relief, the Supreme Court stated that post-conviction counsel’s failure to file the requisite affidavit under Rule 651(c) was of no consequence because the record affirmatively demonstrated that counsel had fulfilled these responsibilities: This court has held that Rule 651(c)
works in conjunction with the PosNCon-viction Hearing Act to ensure that counsel appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court. Rule 651(c), therefore, requires that the record on appeal disclose that appointed counsel took the necessary steps to secure adequate representation of petitioner’s claims. Failure of appointed counsel to file a Rule 651(c) certificate of compliance is harmless error if the record establishes that counsel met the requirements of the rule. The record indicates that there was considerable communication between post-conviction counsel and defendant, and that defendant received reasonable assistance of counsel as contemplated by the rule. Transcripts include comments by post-trial counsel regarding his recent conversations with defendant. Counsel called defendant’s father to testify about hiring Landau. Additionally, counsel secured investigative services from the court and conducted an exhaustive search for Landau. Looking beyond certification to the attorney’s actions, the record clearly supports the trial court finding of effective assistance of appointed counsel.

Szabo III, 163 Ill.Dec. 907, 582 N.E.2d at 176 (internal quotation marks and citations omitted).

In Szabo III, the Supreme Court of Illinois correctly stated the standard it had developed in earlier cases, but it failed to apply that standard properly to the claims raised. As noted above, the Supreme Court of Illinois in Szabo III stated that Rule 651(c) requires counsel to “ascertain[] the basis of [the petitioner’s] complaints, shape[] those complaints into appropriate legal form and present[ ] them to the court.” Id. (emphasis added). Although the court properly recited the standard in the plural — and thus applicable to all of the petitioner’s complaints — it did not apply the standard to each of the allegations in the post-conviction petition.

Mr. Szabo had two primary complaints in his first post-conviction petition: 1) *404David Landau, his trial attorney, “had been prevented from rendering effective assistance of counsel to defendant due to disciplinary problems which led to Landau’s subsequent disbarment”; and 2) Mr. Szabo did not receive effective assistance of resentencing counsel because that counsel had not called prison employees to testify to Mr. Szabo’s adjustment to prison life. Id. at 174. The court, however, did not analyze whether counsel had fulfilled his responsibilities under Rule 651(c) with respect to each of these claims. The court found compliance with the rule based only on counsel’s actions with respect to the first of these claims:

The record indicates that there was considerable communication between post-conviction counsel and defendant, and that defendant received reasonable assistance of counsel as contemplated by the rule. Transcripts include comments by post-trial counsel regarding his recent conversations with defendant. Counsel called defendant’s father to testify about hiring Landau. Additionally, counsel secured investigative services from the court and conducted an exhaustive search for Landau. Looking beyond certification to the attorney’s actions, the record clearly supports the trial court finding of effective assistance of appointed counsel.

Id. at 176. Notably, nothing is said about post-conviction counsel’s failure to present, in the fashion contemplated by Rule 651(c), the contention that resentencing counsel had performed in a constitutionally inadequate manner by failing to present available evidence with respect to Mr. Szabo’s behavior while incarcerated. Because the court in Szabo III did not consider the requirements of Rule 651(c) with respect to each of Mr. Szabo’s claims, its analysis does not comport with the standards it had set forth in its earlier cases.

The failure to decide Szabo III in conformity with the established body of precedent becomes even more clear upon examination of developments after this deviation. Shortly after its decision in Szabo III, the Supreme Court of Illinois returned to the question of counsel’s obligations under Rule 651(c) in People v. Johnson, 154 Ill.2d 227, 182 Ill.Dec. 1, 609 N.E.2d 304 (1993). In that case, the petitioner alleged that “his post-conviction counsel did not adequately represent him because he did not amend the pro se petition in the manner necessary to adequately present the petitioner’s claims.” Id. at 309. Specifically, “post-conviction counsel failed to interview any of the witnesses named in the post-conviction petition, marshaled no evidence in support of the petitioner’s contentions, attached no affidavits or other records to the amended petition, and failed to explain the absence of supporting documentation.” Id. at 309-10. The Supreme Court of Illinois held that counsel had failed to comply with the requirements of the rule; it stated:

In the ordinary case, a trial court ruling upon a motion to dismiss a post-conviction petition which is not supported by affidavits or other documents may reasonably presume that post-conviction counsel made a concerted effort to obtain affidavits in support of the post-conviction claims, but was unable to do so. Here, however, this presumption is flatly contradicted by the record. Post-conviction counsel filed an affidavit as a supplemental record in this appeal, which unequivocally establishes that counsel made no effort to investigate the claims raised in the defendant’s post-conviction petition or to obtain affidavits from any of the witnesses specifically identified in the defendant’s pro se petition. To adequately establish the manner in which post conviction counsel deviated from his duties, it is necessary to *405discuss in some detail post-conviction counsel’s actions as to each claim raised in the post-conviction petition.
Post-conviction counsel’s affidavit, which was filed in this court, likewise states that he made no attempt to contact two of the parole officers named in the post-conviction petition, and that he was unable to reach the third parole officer. Counsel failed to take any action to obtain the affidavits of potential witnesses whose identities were known to him for more than two years during which the post-conviction petition was pending.

Id. at 311-12.

Reviewing these cases, it is apparent that the Supreme Court of Illinois has articulated a consistent rule concerning the adequacy of post-conviction counsel’s performance under Rule 651(c). Those cases have held that, absent a certification of compliance, there must -be evidence in the record demonstrating that counsel has performed the three distinct duties stated in the rule: consultation, examination' of the record and amendment of the petition. If counsel has not performed these responsibilities with respect to each- of the petitioner’s complaints, a remand for additional post-conviction proceedings is warranted. In Szabo III, however, it failed to apply this standard to each of the claims raised by Mr. Szabo. It did- not address the application of this standard to the crucial matter of his post-conviction counsel’s failure to make the case that Mr. Szabo’s resentencing counsel was constitutionally ineffective by failing to present important evidence of Mr. Szabo’s behavior while incarcerated.

c.

After the decision of the Supreme Court of Illinois in People v. Flores, 153 Ill.2d 264, 180 Ill.Dec. 1, 606 N.E.2d 1078 (1992), it is well-established that, as a general rule, a petitioner cannot raise non-compliance with Rule 651(c) in a second post-cohviction petition. Prior to that decision, at least two decisions of the Supreme Court of Illinois, People v. Hollins, 51 Ill.2d 68, 280 N.E.2d 710 (1972), and People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566 (1968), had suggested that, when post-conviction counsel had not performed his responsibilities under Rule 651, subsequent filings would be allowed. Flores, however, made it very clear under what circumstances it would allow ineffective assistance of counsel claims to be raised in a successive post-conviction petition:

In sum, where a defendant files a second or subsequent post-conviction petition in which he claims sixth amendment ineffective assistance of prior post-conviction counsel, because there is no right to sixth amendment counsel in post-conviction proceedings, such claims do not present a basis upon which relief may be granted under the Act. Further, where a defendant files a second or subsequent post-conviction petition wherein he claims ineffective assistance in his first post-conviction proceeding, because the Act is confined to errors which occurred in the original proceeding, only, such claims are beyond the scope of the Act.
Where, however, a defendant files a second or subsequent post-conviction petition in which he raises meritorious claims of ineffective assistance of appellate counsel, which could not have been raised in a prior post-trial proceeding, the defendant is entitled to consideration of those claims.

Flores, 180 Ill.Dec. 1, 606 N.E.2d at 1086.2 Consequently, after Flores (which preced*406ed Mr. Szabo’s filing of his second post-conviction petition), substandard performance by state post-conviction counsel is no longer a basis for relief in a second state post-conviction petition.

In any event, the Supreme Court of Illinois’ treatment of the second post-conviction petition, even if it should not have been entertained, demonstrates graphically that it had deviated from its usual course of proceeding in Szabo III. In Sza-bo TV, the Supreme Court of Illinois’ struggle to find a principled basis for denying further review of the claim demonstrates the difficulty posed by its earlier decision. Three justices believed that Mr. Szabo should be precluded from filing a second petition because he could not rely on the intervening decision in Johnson. They wrote: “We do not believe that Johnson controls the outcome of the present case, any more than we believe that Johnson governs other post-conviction matters that were concluded long ago.” Szabo IV, 237 Ill.Dec. 56, 708 N.E.2d at 1096. If the justices were claiming that Johnson set forth a new procedural rule not applicable retroactively on collateral review, their opinion never identifies that new procedural rule.3 Indeed, as noted earlier, Johnson fits comfortably within the entire line of cases setting forth the requirements of Rule 651(c). If the justices intended to convey, as two of their colleagues appear to have believed, that Mr. Szabo was precluded by the doctrine of res judicata, they fail to explain how that doctrine could be applicable when Mr. Szabo squarely raised the issue of his counsel’s lack of compliance but the Supreme Court of Illinois in Szabo III failed to adjudicate the matter.

In short, Szabo TV demonstrates Szabo Ill’s, failure to apply the established law of Illinois in an evenhanded manner. Mr. Szabo never has received an adjudication of the contention that the failure of resen-tencing counsel to bring pertinent information to the attention of the court was constitutionally inadequate representation that constitutes “cause” for purposes of avoiding procedural default in the federal habeas context. Under state law, he had the right to have that failure on the part of resentencing counsel brought to the attention of the post-conviction court through the efforts of counsel. Although otherwise uniformly ensuring that right to other defendants, the Supreme Court of Illinois denied that protection in this case — a case when the evidence at issue was a vital part of Mr. Szabo’s attempt to convince the trier of fact to spare his life.

D.

Let us now return to the basic principles set forth in Part A. As noted there, my colleagues can dismiss quickly the question of the “adequacy” of the state rule only because they believe that Mr. Szabo committed a final forfeiture incapable of remedy when counsel failed to develop the ineffective assistance of resentencing counsel claim at the trial level of the first state post-conviction hearing. See Op. at 396. By artificially cabining the forfeiture in the trial court, my colleagues need not explain the significance of the consistent (with the exception of this case) approach of the *407Supreme Court of Illinois to afford relief to post-conviction petitioners whose deficient petitions were attributable to their counsels’ failure to comply with Rule 651(c).

I cannot share this artificial view of the nature of the state forfeiture. It is true that, under Illinois law, “a post-conviction petition may be dismissed without an evi-dentiary hearing where the petition raises claims outside the record which are not supported by affidavits or other documents.” Johnson, 609 N.E.2d at 314. However, infirmities in the post-conviction petition cannot be separated from the rest of the post-conviction process. That process anticipates the involvement of competent counsel. Indeed, the Supreme Court of Illinois has stated that “Rule 651(c) establishes the level of assistance appointed counsel must provide to post-conviction petitioners.” People v. Williams, 186 Ill.2d 55, 237 Ill.Dec. 112, 708 N.E.2d 1152, 1154 (1999) (emphasis added). When the record, as developed in the trial court, reveals that counsel has not complied with his or her responsibilities under Rule 651(c), the result has been a remand for further post-conviction proceedings. See supra at Part B. Consistently, the Supreme Court of Illinois has treated Rule 651(c) non-compliance as an exception to the general rule that unsupported petitions must be dismissed. Rule 651(c) requires counsel to “make any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” People v. Kluppelberg, 327 Ill.App.3d 939, 262 Ill.Dec. 65, 764 N.E.2d 1182, 1185 (2002) (internal quotation marks and citations omitted). Furthermore, this requirement applies to each claim raised by the petitioner. See Johnson, 182 Ill. Dec. 1, 609 N.E.2d at 311-12; cf. People v. Moore, 189 Ill.2d 521, 245 Ill.Dec. 95, 727 N.E.2d 348, 359 (2000) (analyzing compliance with 651(c) on a claim-by-claim basis). Failure to meet Rule 651(c)’s requirements has consistently resulted in a remand of the matter for additional consultation, proper review, or adequate presentation of the claims. See supra at Part B. Although the Illinois Supreme Court paid lip-service to these requirements in Szabo III, it did not apply these standards to each of Mr. Szabo’s ineffective assistance claims. Had the Illinois Supreme Court acted in conformity with Illinois case law, it would have taken note of counsel’s failure to support the claim of constitutionally ineffective assistance of counsel at resen-tencing with affidavits or other evidence. Furthermore, counsel’s failure to present the claim adequately would have resulted in a remand to require counsel to fulfill this obligation under the rule. Because the Supreme Court of Illinois deviated from the ordinary and usual course of adjudication, its application was not evenhanded and, therefore, was not adequate for purposes of barring federal habeas review. Because the panel sanctions this departure and the consequent result to Mr. Szabo, I respectfully dissent.

. Notably, his argument was not that his post-conviction counsel had been ineffective in the constitutional sense, but that his right to effective assistance' of post-conviction counsel as guaranteed by state law had been violated.

. See also People v. Pitsonbarger, No. 89368, 2002 WL 1038729 (Ill. May 23, 2002), cert. *406denied, - U.S. -, 123 S.Ct. 620, 154 L.Ed.2d 525 (2002) (clarifying that, absent a claim of actual innocence or ineligibility for the death penalty, cause and prejudice must be shown in order for a court to entertain a successive post-conviction petition).

. Neither in Szabo IV, nor in any of its subsequent cases, has the Supreme Court of Illinois really grappled with the issue of whether Johnson represents a "new rule,” why it represents a new rule, or what that rule is.