People v. Tatum ( 2021 )

NOTICE FILED
This Order was filed under
Supreme Court Rule 23 and is 2021 IL App (4th) 200206-U September 14, 2021
not precedent except in the Carla Bender
th
limited circumstances allowed 4 District Appellate
NO. 4-20-0206
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
BOBBY TATUM, ) No. 07CF968
Defendant-Appellant. )
) Honorable
) Heidi N. Ladd,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Cavanagh and Holder White concurred in the judgment.
ORDER
¶1 Held: The circuit court properly denied defendant leave to file a successive
postconviction petition.
¶2 In November 2019, defendant, Bobby Tatum, filed pro se his second motion for
leave to file a successive postconviction petition, asserting his trial counsel had a per se conflict
of interest. In March 2020, the Champaign County circuit court dismissed defendant’s petition,
finding defendant failed to satisfy the cause-and-prejudice test.
¶3 Defendant appeals, contending he made a prima facie showing of cause and
prejudice regarding his claim of a per se conflict of interest. We affirm.
¶4 I. BACKGROUND
¶5 In June 2007, the State charged defendant with two counts of aggravated battery
of a child (720 ILCS 5/12-4.3(a) (West 2006)) for his actions between March 1, 2007, and April
21, 2007, against S.D., the son of his girlfriend. The State also charged S.D.’s maternal aunt,
Latasha Seets, with two counts of aggravated battery of a child, but those charges were later
dismissed. People v. Seets, No. 07-CF-967 (Cir. Ct. Champaign County). A grand jury indicted
defendant with the same two charges. The circuit court appointed the public defender to
represent defendant. On July 3, 2007, Assistant Public Defender Janie Miller-Jones appeared on
defendant’s behalf. Miller-Jones represented defendant during the pretrial proceedings and at
defendant’s August 2007 jury trial. At the beginning of defendant’s jury trial, the circuit court
dismissed one of the aggravated battery of a child counts. The State presented the testimony of
several witnesses, including S.D. and Seets. Seets admitted to hitting S.D. with a belt three times
for taking a game memory card from her home but denied causing the injuries at issue. S.D.
testified defendant “whupped” him after Seets left their home. S.D. testified it hurt and he
screamed. Defendant did not present any evidence. The jury found defendant guilty of
aggravated battery of a child.
¶6 Miller-Jones filed a posttrial motion and a supplemental posttrial motion. In her
supplemental posttrial motion, Miller-Jones argued she was ineffective for not properly
impeaching Seets. Miller-Jones admitted she knew Seets had been found unfit to stand trial and
Seets’s case had been dismissed. Miller-Jones also admitted she neglected to get Seets’s court
file. The circuit court appointed defendant new counsel on the posttrial motions. Defendant
filed several pro se posttrial motions. Defendant’s new counsel also filed a posttrial motion,
asserting, inter alia, Miller-Jones was ineffective for failing to investigate Seets’s case and to file
a motion in limine to exclude Seets’s testimony. At the November 2007 hearing on the posttrial
motions, the court took judicial notice of Seets’s case and Miller-Jones testified. The court
denied the posttrial motions. After a December 2007 hearing, the circuit court sentenced
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defendant to 24 years in prison.
¶7 Defendant appealed and argued, inter alia, Miller-Jones was ineffective for failing
to impeach Seets with her unfitness to stand trial finding. This court affirmed defendant’s
conviction and sentence. People v. Tatum, 392 Ill. App. 3d 1147, 984 N.E.2d 216 (table) (Aug.
20, 2009) (unpublished order under Illinois Supreme Court Rule 23). Defendant appealed to the
Illinois Supreme Court, which denied his petition for leave to appeal. People v. Tatum, 234 Ill.
2d 546, 920 N.E.2d 1079 (2009) (table).
¶8 In April 2010, defendant filed a pro se petition for relief under the
Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 et seq. (West 2010)),
which set forth claims of ineffective assistance of trial and appellate counsel. In his petition,
defendant noted Seets was charged with the same offense as him. In June 2010, the circuit court
summarily dismissed defendant’s postconviction petition, finding it frivolous and patently
without merit. Defendant appealed but only challenged the imposition of a fine. Thus, this court
affirmed the dismissal of defendant’s postconviction petition. People v. Tatum, 2011 IL App
(4th) 100562-U, ¶ 12.
¶9 Defendant next filed a March 2013 pro se petition for relief from judgment under
section 2-1401 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-1401 (West
2012)). Defendant argued his three-year term of mandatory supervised release must be vacated
because it was never expressly imposed by the circuit court. The State filed a motion to dismiss
defendant’s petition. In June 2013, the circuit court dismissed the petition and ordered defendant
to pay $40 for the filing fees and court costs. The court also directed the Department of
Corrections to withhold and collect the $40 from defendant’s prisoner trust account. Defendant
appealed and asserted the $40 fee imposed by the circuit court should be vacated and the amount
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refunded to his account. This court affirmed the dismissal of defendant’s section 2-1401 petition
but agreed with defendant’s argument regarding the $40 fee. People v. Tatum, 2015 IL App
(4th) 130561-U, ¶ 19.
¶ 10 In February 2014, defendant filed his first motion for leave to file a successive
postconviction petition under section 122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f)
(West 2014)). The circuit court denied defendant’s motion in June 2014. Defendant appealed,
and the Office of the State Appellate Defender (OSAD) moved to withdraw its representation of
defendant on appeal, contending no colorable claim of actual innocence could be raised and
defendant’s petition failed to meet the cause-and-prejudice test. We agreed with OSAD and thus
granted OSAD’s motion to withdraw as counsel and affirmed the circuit court’s judgment.
People v. Tatum, No. 4-14-0579 (Apr. 18, 2016) (unpublished summary order under Illinois
Supreme Court Rule 23(c)).
¶ 11 In June 2016, defendant filed a petition entitled, “Petition For Relief From
Judgment Pursuant to 735 ILCS 5/2-1401 Section C-F and 725 ILCS 5/122-1 ect [sic] seq.”
Along with the petition, defendant filed (1) a 30-day notice to respond to defendant’s petition for
relief from judgment, (2) a motion to proceed in forma pauperis and for the appointment of
counsel on his petition for “postjudgment relief,” and (3) a letter to the Champaign County
circuit clerk asking her to make sure the State was aware of the petition and notice of 30 days to
respond. In the petition, defendant asserted the two-year limitations period should be excused
because the grounds and facts raised in the petition were fraudulently concealed from him. In
paragraph eight of the petition, defendant stated relief under the Postconviction Act was
unavailable to him at the present time due to his successive postconviction petition being on
appeal. Defendant raised a claim of a per se conflict of interest with his public defender because
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the public defender simultaneously represented him as well as Seets, one of the State’s witnesses.
Defendant included several attachments to the petition, including the docket sheets for Seets’s
case. The docket sheets show the circuit court appointed the public defender to represent Seets
at a July 13, 2007, hearing and Miller-Jones appeared instanter. On July 19, 2007, the circuit
court vacated the appointment of the public defender and appointed Walter Ding to represent
Seets. Defendant also attached his own affidavit and his May 2016 request for the transcript of
the July 19, 2007, hearing in Seets’s case.
¶ 12 In a July 14, 2016, letter, the circuit court informed defendant as follows:
“The Court has reviewed your ‘Petition For Relief From Judgment
Pursuant to 735 ILCS 5/2-1401 Section C-F and 725 ILCS 5/122-1 ect [sic] seq.’
The Court does not recognize hybrid pleadings. You may only file under only
one section for each individual petition and must specify the section you are
seeking relief under. Further, because you filed for relief under 725 ILCS 5/122-1
previously, you must file a request for leave to file a subsequent petition.”
¶ 13 On August 9, 2016, defendant filed a letter with the circuit clerk asking the clerk
to withdraw his June 1, 2016, petition because the judge told him it was filed “wrong.” In the
letter, defendant noted he was filing a new petition for postjudgment relief. On that same day,
defendant filed (1) a petition for postjudgment relief under section 2-1401 of the Procedure
Code, (2) a 30-day notice to respond to defendant’s petition for relief from judgment, and (3) a
motion to proceed in forma pauperis and for the appointment of counsel on his petition for
“postjudgment relief.” Defendant filed amended section 2-1401 petitions on August 29, 2016,
and September 21, 2016. Both amended petitions set forth defendant’s conflict of interest claim.
¶ 14 In October 2016, the State filed a motion to dismiss defendant’s August 9, 2016,
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petition and the August 29, 2016, amendment. The State later filed a second motion to dismiss
addressing defendant’s September 2016 amended petition. Defendant filed replies to both
motions to dismiss. On March 28, 2017, the circuit court entered a written order granting the
State’s motion to dismiss defendant’s August 2016 petition and the subsequent amended
petitions. In granting the State’s motion to dismiss, the court noted all the parties knew
“Miller-Jones appeared with Seets one time in arraignment court at the first appearance, and then
a private attorney was appointed to represent Seets.” The court further stated defendant was
aware of Seets’s case and the records in her court file as demonstrated by his posttrial motion.
Defendant appealed, asserting the circuit court erred by not treating his June 2016 petition as a
request for leave to file a successive postconviction petition and the petition should be remanded
for second-stage proceedings under the Postconviction Act. We disagreed and affirmed the
dismissal of defendant’s petition. People v. Tatum, 2019 IL App (4th) 170295-U. Defendant
appealed to the Illinois Supreme Court, which denied his petition for leave to appeal. People v.
Tatum, No. 124890 (Ill. Sept. 25, 2019) (supervisory order).
¶ 15 In November 2019, defendant filed his second pro se motion for leave to file a
successive postconviction petition, which is at issue in this appeal. In his petition, defendant
asserted Miller-Jones had a per se conflict of interest due to her representation of Seets and he
did not learn of that representation until 2016. Defendant again attached his own affidavit and
the docket sheets from Seets’s case. On March 30, 2020, the circuit court entered a written order
denying defendant’s second pro se motion for leave to file a successive postconviction petition.
The court found defendant failed to set forth both cause and prejudice. As to cause, the court
noted defendant was “fully aware” of Seets’s case and the record in her court file 12 years ago
when those matters were the subject of his posttrial motion and direct appeal. It specifically
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noted the existence and significance of Seets’s court file was known to defendant no later than
December 2007. Additionally, the court pointed out the public court file in Seets’s case was not
fraudulently concealed, and defendant failed to identify any objective factor that impeded his
ability to raise his specific claim during his initial postconviction proceedings.
¶ 16 On April 27, 2020, defendant timely filed a notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. July 1, 2017). See Ill. S. Ct. R. 651(d)
(eff. July 1, 2017) (providing the procedure for appeals in postconviction proceedings is in
accordance with the rules governing criminal appeals). Thus, we have jurisdiction of
defendant’s appeal under Illinois Supreme Court Rule 651(a) (eff. July 1, 2017).
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant challenges the circuit court’s denial of his second request
for leave to file a successive postconviction petition to raise a per se conflict of interest. When
the circuit court has not held an evidentiary hearing, this court reviews de novo the denial of a
defendant’s motion for leave to file a successive postconviction petition. See People v.
Gillespie, 407 Ill. App. 3d 113, 124, 941 N.E.2d 441, 452 (2010).
¶ 19 The Postconviction Act (725 ILCS 5/122-1 et seq. (West 2018)) contemplates the
filing of only one postconviction petition. People v. Bailey, 2017 IL 121450, ¶ 15, 102 N.E.3d
114. Specifically, section 122-3 of the Postconviction Act (725 ILCS 5/122-3 (West 2018))
declares “[a]ny claim of substantial denial of constitutional rights not raised in the original or an
amended petition is waived.” Section 122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f)
(West Supp. 2019)) represents an exception to the waiver rule. See Bailey, 2017 IL 121450,
¶ 15. It provides the following:
“Only one petition may be filed by a petitioner under this Article
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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 Supp. 2019).
Thus, for a defendant to obtain leave to file a successive postconviction petition, both prongs of
the cause-and-prejudice test must be satisfied. People v. Guerrero, 2012 IL 112020, ¶ 15, 963
N.E.2d 909.
¶ 20 With a motion for leave to file a successive postconviction petition, the court is
just conducting “a preliminary screening to determine whether defendant’s pro se motion for
leave to file a successive postconviction petition adequately alleges facts demonstrating cause
and prejudice.” Bailey, 2017 IL 121450, ¶ 24. The court is only to ascertain “whether defendant
has made a prima facie showing of cause and prejudice.” Bailey, 2017 IL 121450, ¶ 24. If the
defendant did so, the court grants the defendant leave to file the successive postconviction
petition. Bailey, 2017 IL 121450, ¶ 24. In conducting the preliminary screening, our supreme
court has held the State should not be allowed to participate. Bailey, 2017 IL 121450, ¶ 24.
¶ 21 As to cause, defendant asserts his pleadings must be taken as true and he did not
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learn of the facts showing Miller-Jones had a conflict of interest until 2016. The State contends
because the information defendant relies upon was reasonably available to defendant for the past
14 years, he cannot show cause because there was no objective factor that impeded his ability to
bring the claim earlier. In response, defendant emphasizes his lack of knowledge.
¶ 22 Initially, we note that, in reviewing a circuit court’s denial of leave to file a
successive postconviction petition, our supreme court has examined the record in determining
whether the defendant could establish the cause prong of the cause-and-prejudice test. Guerrero,
2012 IL 112020, ¶ 16. Also, the United States Supreme Court has identified objective factors
that constitute cause to include the following:
“[I]nterference by officials that makes compliance with the State’s procedural rule
impracticable, and a showing that the factual or legal basis for a claim was not
reasonably available to counsel. [Citation.] In addition, constitutionally
[i]neffective assistance of counsel ... is cause. [Citation.] Attorney error short of
ineffective assistance of counsel, however, does not constitute cause ***.”
(Internal quotation marks omitted.) People v. Jackson, 205 Ill. 2d 247, 274-75,
793 N.E.2d 1, 18 (2001) (quoting McCleskey v. Zant, 499 U.S. 467, 493-94
(1991)).
¶ 23 Here, the factual basis for defendant’s claim was reasonably available to him.
The record shows defendant was aware of Seets’s case and that her court file had information
relevant to his case during his posttrial proceedings. Defendant does not identify any objective
factor that prevented him from obtaining Seets’s court file with its docket sheets before he filed
his initial postconviction petition. Thus, we agree with the circuit court defendant did not make a
prima facie showing of cause and find denial of his second pro se motion for leave to file a
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successive postconviction petition was proper.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the Champaign County circuit court’s denial of
defendant’s second motion for leave to file a successive postconviction petition.
¶ 26 Affirmed.
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