People v. Ligon , 239 Ill. 2d 94 ( 2010 )

Docket No. 108855.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
__________________
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DENNIS LIGON, Appellant.
Opinion filed November 18, 2010.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
At issue is whether the federal constitution requires appointment
of counsel for indigent postconviction petitioners at the summary
dismissal stage whenever the appellate court on direct review has
declined to address an ineffective assistance of counsel claim because
the facts needed to adjudicate the claim are dehors the record and thus
cannot be resolved on direct review. For the reasons that follow, we
hold that the constitution does not require the appointment of counsel
in such cases.
Following a jury trial, defendant, Dennis Ligon, was convicted of
aggravated vehicular hijacking (720 ILCS 5/18–4(a)(3) (West 2002)).
The circuit court of Cook County sentenced him to a term of natural
life in prison as a habitual offender. Defendant’s conviction and
sentence were affirmed on direct appeal, but the appellate court
declined to rule on two of his claims regarding ineffectiveness of trial
counsel, finding that those issues could be more appropriately
addressed in a proceeding for postconviction relief. People v. Ligon,
365 Ill. App. 3d 109, 122 (2006) (Ligon I). Defendant subsequently
filed a pro se postconviction petition, but did not raise the two issues
that the appellate court declined to adjudicate. The circuit court
summarily dismissed defendant’s postconviction petition as frivolous
and patently without merit. The appellate court affirmed that
dismissal. 392 Ill. App. 3d 988 (Ligon II). We allowed defendant’s
petition for leave to appeal. 210 Ill. 2d R. 315.
BACKGROUND
Defendant’s trial began on April 2, 2003. Defendant was
represented by assistant public defenders Anthony Thomas and
Camille Calabrese. Just before opening statements on April 2, 2003,
Thomas informed the court that he intended to call the defendant’s
son, Dennis Compton, as a witness, stating that he had interviewed
Compton for the first time the previous day. Thomas further explained
to the court that the name was given to him by the prosecution, which
learned of Compton when interviewing another witness. The
prosecutor did not object to the defense calling Compton, noting that
she also had an opportunity to speak to him the prior day.
In her opening statement, Calabrese told the jury that this would
be a “text book case of misidentification,” stating that defendant’s son,
Dennis Compton, is almost his father’s look-alike and that the jury
would learn that “the actual story behind this case is of a father who
is protecting his son.” She also told the jury that she believed she was
going to be able to produce Dennis Compton, noting that he had been
subpoenaed. She stated that she was confident that after the jury heard
his testimony, it would have a reasonable doubt as to defendant’s
guilt. She concluded that defendant “may be guilty of protecting his
son, but that doesn’t mean he’s guilty of taking this automobile.”
Briefly, the evidence presented by the State at trial included the
testimony of several witnesses. Ana Diaz testified that on December
16, 2000, defendant approached her in broad daylight as she exited
her red Ford pickup truck at a Sears parking lot off of Western
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Avenue in Chicago. Defendant pushed a gun into her ribs and told her
to leave the keys in the ignition and to get out. He then proceeded to
drive away in her truck. On January 3, 2001, the day her truck was
recovered by police and defendant was arrested, she immediately and
unequivocally picked defendant out of a lineup as the man who stole
her truck and held her up at gunpoint. She also identified a BB gun
recovered by police from the truck as the gun used by defendant to
commit the crime.
Three other witnesses that knew defendant testified that they
observed him driving the truck between December 16, 2000, and
January 3, 2001. On the evening of January 2, 2001, defendant drove
Georgio Dawson, a 13-year old boy, and Tenita Barber, a 17-year-old
girl, around in the truck. After dropping Dawson off at an apartment
building where the truck was eventually recovered, defendant drove
Barber around town drinking liquor and smoking marijuana with her.
Defendant told Barber he had just bought the truck. Around 5:10
a.m., on January 3, 2001, the two returned to the place where they
had left Dawson. Defendant honked his horn, but then got out of the
truck when Dawson did not come out. After defendant had walked
away from the truck, Dawson came out and got in the truck. Shortly
thereafter, police arrived and discovered that the truck had been
stolen. They searched it and recovered a BB gun from the driver’s
side. Dawson told police that the man who had been driving the truck
was named “Dennis.” Police then took Dawson to look for the man
who had been driving the truck in question. Dawson pointed
defendant out at an El station about a block and a half from where the
truck had been parked. After verifying from defendant that his first
name was Dennis, police placed him under arrest.
The jury found defendant guilty of aggravated vehicular hijacking.
Following his trial, defendant filed a pro se motion for judgment
notwithstanding the verdict, arguing, among other things, that his trial
counsel was ineffective by confessing defendant’s “guilt in protecting
his son” and then not calling Dennis Compton to testify, thereby
leaving the jury with the impression that defendant must have
committed the crime. The trial court allowed the public defender’s
office to withdraw. The court appointed attorney Stephen Decker as
defendant’s counsel for the posttrial proceedings. After obtaining and
reviewing all of the transcripts of defendant’s trial, Decker filed a
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supplemental motion for a new trial, which incorporated by reference
the claims asserted in defendant’s pro se motion. Decker’s motion
alleged in relevant part that trial counsel’s performance was deficient
in failing to produce Compton or explain his nonappearance after
telling the jury during opening statements that Compton had
committed the crime and had been subpoenaed to testify.
At the hearing on defendant’s posttrial motion, Thomas,
defendant’s trial counsel, testified that prior to trial he developed a
strategy of misidentification because he believed the descriptions of
the hijacker more closely resembled Compton than defendant. During
two interviews with defense counsel, Compton’s account with regard
to the red Ford pickup truck was erratic, contradictory and
inconsistent. At one point during the interviews, when Thomas
pointed out that Compton’s account was inconsistent, Compton asked
Thomas, “What do you want me to say?” This comment caused
Thomas to believe that he would be suborning perjury if he called
Compton to testify. Moreover, on the day that Compton was to
testify, he was arrested in the courthouse for intimidating Dawson.
Thomas was concerned that if Compton should be called, the facts of
the intimidation offense would come out before the jury and harm
defendant’s case. Thomas noted that due to the above-discussed
considerations, the jury would not view Compton as a favorable
witness. Thomas expressed his concerns about Compton to defendant,
but told defendant he would call Compton if defendant wanted.
Defendant agreed that Compton should not be called. Thomas
acknowledged that he did not call Compton to testify, nor did he
display him to the jury.
Compton testified at the hearing that during his interviews with the
public defenders he did not indicate what his testimony would be.
During the hearing, Compton testified that neither he nor defendant
committed the hijacking and that he had not witnessed who did.
Compton admitted that during the trial, he was arrested and eventually
pled guilty to communicating with the witness Dawson.
Defendant testified at the hearing on his posttrial motion that he
did not tell Thomas not to call Compton. According to defendant, on
the morning he was arrested, he was on his way to visit Compton,
who happened to live near where the truck was recovered and who
had knowledge of the truck’s origins.
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The trial court denied defendant’s posttrial motion. At sentencing,
the State presented certified copies of two of defendant’s prior
convictions. The trial court sentenced him to life in prison as a
habitual offender, as it was required to do by statute (720 ILCS
5/33B–1 (West 2002)).
On direct appeal, defendant argued that he was denied the
effective assistance of counsel in three ways: (1) his trial attorneys said
in opening statements that they would produce defendant’s look-alike
son, Dennis Compton, at trial and would show that he lived near
where the truck was recovered, but failed to do so; (2) they failed to
properly investigate the case prior to trial when they did not interview
Compton until after the trial had begun; and (3) they did not have a
reasonable basis to believe that Compton would testify when they
made their opening remarks. The appellate court affirmed defendant’s
conviction. Ligon I, 365 Ill. App. 3d 109. In doing so, it rejected his
first ineffective assistance of counsel claim, which argued that his
attorneys erred in stating during opening statement that they would
produce Compton and then failed to do so, finding that trial counsel’s
decision was a matter of sound strategy. Ligon I, 365 Ill. App. 3d at
121. With respect to the latter two claims, the appellate court found
that they were not raised in defendant’s posttrial motion. Nor was any
evidence related to them elicited during the hearing on the motion.
Ligon I, 365 Ill. App. 3d at 122. The appellate court therefore refused
to adjudicate the two contentions because they involved matters
dehors the record that could be more appropriately addressed in a
proceeding for postconviction relief. Ligon I, 365 Ill. App. 3d at 122.
This court denied defendant’s petition for leave to appeal on
September 27, 2006.
In March 2007, defendant filed a pro se petition for postconviction
relief, but made no mention of any of the claims of ineffective
assistance of counsel litigated during the posttrial hearing or on direct
appeal. Instead, defendant’s petition alleged that the applicable
sentencing statute was unconstitutional and that his attorney on direct
appeal had rendered ineffective assistance by failing to argue the
unconstitutionality of the sentencing statute. The circuit court
summarily dismissed the petition as frivolous and patently without
merit.
On appeal from the summary dismissal of his postconviction
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petition, defendant did not contest the propriety of the circuit court’s
determination that the claims presented in his petition were frivolous
and patently without merit. Rather, defendant argued that, following
the direct appeal, the appellate court should have appointed counsel
to represent defendant for the postconviction proceeding. Defendant
contended that the appellate court’s deferral to postconviction review
of claims that defendant attempted to raise on direct appeal served to
create an unconstitutional “additional barrier to direct review.”
Defendant maintained that the appellate court’s action was similar to
the statutory procedure invalidated by the United States Supreme
Court in Halbert v. Michigan, 545 U.S. 605, 162 L. Ed. 2d 552, 125
S. Ct. 2582 (2005) (invalidated Michigan procedure that made first-
tier appeals from guilty-plea convictions discretionary on application
with the appellate court without requiring appointment of counsel for
indigent pro se applicants), and that for the reasons enunciated in
Halbert he was entitled to the assistance of counsel in presenting the
unadjudicated direct appeal claims in a postconviction proceeding.
The appellate court rejected defendant’s arguments. Ligon II, 392
Ill. App. 3d 988. First, the court found that defendant’s claims of
ineffective assistance of trial counsel could not be considered because
defendant did not include them in the petition; they were therefore
waived, and the appellate court had no authority to excuse the waiver.
Ligon II, 392 Ill. App. 3d at 995, citing People v. Jones, 213 Ill. 2d
498, 505 (2004). Second, the appellate court rejected defendant’s
argument that deferral of the two ineffective assistance of counsel
contentions from direct appeal to postconviction entitled defendant to
the appointment of counsel. The court found that nothing in the
treatment of the case on direct appeal removed it from the ambit of
well-established precedent that has long recognized that “neither
fundamental fairness nor due process considerations require that an
attorney be appointed for postconviction petitioners.” Ligon II, 392
Ill. App. 3d at 996, 1000, citing People v. Jones, 211 Ill. 2d 140, 148
(2004). The appellate court held that Halbert was inapplicable
because “defendant’s position in filing his pro se postconviction
petition seeking collateral and second-tier review of his claims was not
analogous to the defendant in Halbert, who was seeking first-tier
review of his conviction.” Ligon II, 392 Ill. App. 3d at 1000. The
appellate court further determined that defendant was not wholly
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without recourse in his ability to raise his ineffective assistance of trial
claims, however, because he could do so in a successive
postconviction petition if he could meet the strictures of the cause and
prejudice test. Ligon II, 392 Ill. App. 3d 996, quoting People v. Jones,
211 Ill. 2d at 148-49.
ANALYSIS
Before this court, defendant raises the same argument that he
raised below in his appeal from the summary dismissal of his
postconviction petition.
The Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq.
(West 2006)) provides a method by which persons under criminal
sentence can assert that their convictions were the result of a
substantial denial of their rights under the United States or the Illinois
Constitution or both. 725 ILCS 5/122–1 et seq. (West 2006); People
v. Petrenko, 237 Ill. 2d 490, 495-96 (2010). A postconviction
proceeding is civil in nature (People v. Johnson, 191 Ill. 2d 257, 270
(2000)) and is a collateral attack on the prior conviction or sentence
that does not relitigate a defendant’s innocence or guilt (People v.
Evans, 186 Ill. 2d 83, 89 (1999)). Therefore, any issues considered by
the court on direct appeal are barred by the doctrine of res judicata,
and issues which could have been considered on direct appeal are
deemed procedurally defaulted. People v. West, 187 Ill. 2d 418, 425
(1999).
Proceedings under the Act are commenced by the filing of a
petition in the circuit court in which the original proceeding took
place. People v. Jones, 213 Ill. 2d 498, 503 (2004). The Act
contemplates a three-stage process for non-death-penalty cases.
Jones, 213 Ill. 2d at 503. A circuit court may summarily dismiss a
postconviction petition if it determines that the petition is “frivolous
or is patently without merit.” 725 ILCS 5/122–2.1(a)(2) (West 2006).
Moreover, any claim of substantial denial of constitutional rights not
raised in the original or amended petition is deemed waived. 725 ILCS
5/122–3 (West 2006). An indigent pro se defendant is entitled to the
appointment of counsel in a non-death-penalty case only if his petition
survives the summary dismissal stage. 725 ILCS 5/122–2.1(a)(2),
122–4 (West 2006); People v. Porter, 122 Ill. 2d 64, 69-70 (1988).
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But a pro se litigant need only present the gist of a constitutional claim
to survive the summary stage of section 122–2.1. Jones, 213 Ill. 2d at
504. With regard to this requirement, a defendant at the first stage
need only present a limited amount of detail (People v. Hodges, 234
Ill. 2d 1, 9 (2009)), and he need not make legal arguments or cite to
legal authority (People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). This
is a purposely low threshold for survival because most petitions are
drafted at this stage by defendants with little legal knowledge or
training. Hodges, 234 Ill. 2d at 9. The summary dismissal of a
postconviction petition poses a legal question that is subject to de
novo review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
In his brief before this court, defendant initially argues that given
the evidence in the record from the posttrial hearing, the appellate
court on direct appeal in Ligon I could have, and should have, ruled
on all of his ineffective assistance claims. He also asserts that in Ligon
II, the appellate court recognized that its refusal to adjudicate the two
ineffective assistance claims on direct appeal was the result of a
misapprehension of the record, as the court in Ligon I mistakenly
believed that defense counsel had not interviewed Compton until after
trial began. Defendant is completely wrong on both counts.
First, we note that the appellate court in Ligon I determined that
the two ineffective assistance claims at issue here involved matters
dehors the record that were more appropriate for a postconviction
proceeding. This determination is res judicata. The appellate court’s
decision became final when leave to appeal from Ligon I, 365 Ill. App.
3d 109, was sought in this court in September 2006. See People v.
Collins, 202 Ill. 2d 59 (2002). Therefore, the ruling that the two direct
appeal claims of ineffectiveness were outside the record is unassailable
at this point. Moreover, defendant’s current argument was not only
not raised below, he specifically disavowed it in the argument he made
below in Ligon II where he underscored in his reply brief that he was
“not arguing that [the appellate court on direct review] erred in
declining to consider two of his ineffectiveness claims on direct
appeal.” (Emphasis in original.) Defendant continued with his
argument in the appellate court as follows:
“Rather, [defendant] is claiming that, once this court decided
to relegate claims raised on direct appeal to the post-
conviction process [Ligon I, 365 Ill. App. 3d at 122-23], the
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equal protection and due process clauses of the constitution
required the automatic appointment of counsel to raise those
claims in a postconviction petition. See Halbert, 545 U.S. at
616-17; Douglas, 372 U.S. at 356. Thus, the claim of error
here is the failure to appoint postconviction counsel before
dismissing the petition, not this Court’s decision to relegate
claims to the postconviction process.” (Emphasis in original.)
Under the circumstances, we find that defendant is now barred from
advancing the argument that the appellate court improperly failed to
adjudicate the ineffective assistance of counsel claims on direct appeal.
We also note that where, as here, the record is insufficient because
it has not been precisely developed for the object of litigating a
specific claim of ineffectiveness raised in the circuit court, thereby not
allowing both sides to have an opportunity to present evidence
thereon, such a claim should be brought on collateral review rather
than on direct appeal. People v. Bew, 228 Ill. 2d 122, 134 (2008),
citing Massaro v. United States, 538 U.S. 500, 504-06, 155 L. Ed. 2d
714, 720-21, 123 S. Ct. 1690, 1694 (2003); compare People v.
Whitehead, 169 Ill. 2d 355, 372 (1996) (a claim of ineffective
assistance of trial counsel cannot be considered on direct appeal where
the evidentiary basis is dehors the record).1 Here, the appellate court
resolved the ineffective assistance claim that was actually raised in
defendant’s posttrial motion, and then correctly directed defendant to
the postconviction process for resolution of the other two claims that
were not precisely raised in his motion. See Bew, 228 Ill. 2d at 135.
Second, there is no indication from Ligon II that it believed that
the court’s refusal in Ligon I to adjudicate the ineffective assistance
claims would have been any different had Ligon I not been mistaken
about the timing of trial counsel’s interview of Compton. Ligon II
acknowledged in a footnote that Ligon I had mistakenly believed that
defense counsel had not interviewed Compton prior to trial. This
misapprehension clearly would not have affected the decision to defer
adjudication of the third claim of ineffective assistance that defendant
raised on direct review, however, because defendant’s trial attorneys
1
Whitehead was overruled on other grounds by People v. Coleman, 183
Ill. 2d 366, 382-83 (1998).
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were not asked at the posttrial hearing about their reasons for their
opening statement that Compton would testify even though it appears
they had their doubts about him as a witness from their interview the
prior day. The footnote in Ligon II went on to explain that the error
in assessing the record was caused by defendant’s repeated
misstatements in his appellate briefs claiming that trial counsel had not
interviewed Compton prior to trial. It must also be pointed out that
had the appellate court undertaken an accurate reading of the record
and then decided to adjudicate the second ineffective assistance
claim–which alleged that defense counsel had not interviewed
Compton prior to trial–the claim surely would have been rejected, as
it was completely contradicted by the trial transcript, which shows that
Thomas had interviewed Compton the day before trial started. As
such, the court in Ligon I did defendant a favor by deferring resolution
of the claims. Given that this is the appropriate method of treatment
for claims that are not specifically raised at a posttrial hearing and
where defendant has failed to prove ineffective assistance on the
record presented to the reviewing court, we find no problem with the
course of action taken by Ligon I in declining to reach the claims. See
Bew, 228 Ill. 2d at 135 (court held that even though defendant had
failed to prove ineffective assistance on the record presented on direct
review, he could still raise those claims under the Post-Conviction
Hearing Act). Accordingly, we reject defendant’s argument that a
different outcome should obtain here just because the appellate court
in Ligon I mistakenly believed that defendant’s trial counsel had not
interviewed Compton until after trial had begun.
We turn now to the main issue raised by defendant’s appeal. He
asserts that in light of the United States Supreme Court’s decision in
Halbert, dismissal of his postconviction petition violated the equal
protection and due process clauses of the federal constitution because
counsel was not appointed to assist him in preparing his
postconviction petition. Despite the well-settled law in this state that
pro se litigants are not constitutionally entitled to the appointment of
counsel in non-death-penalty cases at the summary dismissal stage
(725 ILCS 5/122–2.1(a)(2), 122–4 (West 2006); People v. Porter,
122 Ill. 2d 64, 69-70 (1988)), defendant maintains that Halbert alters
this rule, at least under the circumstances of the present case.
We begin our analysis of Halbert’s application to the current case
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by discussing the United States Supreme Court precedent that
informed the Halbert decision. In Douglas v. California, 372 U.S.
353, 356-57, 9 L. Ed. 2d 811, 814, 83 S. Ct. 814, 816 (1963), the
Court held that an appellate court is required to provide court-
appointed counsel to an indigent defendant when that court reviews
an as-of-right appeal from a criminal conviction. The state procedure
in that case required that the appellate court, upon receiving an
indigent’s request for counsel, make an independent investigation and
determine if the appointment of counsel would benefit the defendant
or the courts. Douglas, 372 U.S. at 354-55, 9 L. Ed. 2d at 813, 83 S.
Ct. at 815. The kind of appeal available to the defendant depended
upon whether he could afford counsel: if not, the appellate court
would “prejudge the merits before it [could] even determine whether
counsel should be provided.” Douglas, 372 U.S. at 356, 9 L. Ed. 2d
at 814, 83 S. Ct. at 816. On the other hand, a nonindigent defendant
with counsel was “not faced with the preliminary ‘ex parte
examination of the record,’ [citation] but had their arguments
presented to the court in fully briefed form.” Ross v. Moffitt, 417 U.S.
600, 608, 41 L. Ed. 2d 341, 349, 94 S. Ct. 2437, 2442-43 (1974),
quoting Douglas, 372 U.S. at 356, 9 L. Ed. 2d at 814, 83 S. Ct. at
816. The Court concluded that an appeal without the benefit of
organization and argument by counsel would be a “meaningless ritual”
for most indigents. Douglas, 372 U.S. at 358, 9 L. Ed. 2d at 815, 83
S. Ct. at 817. Thus, Douglas taught that “where the merits of the one
and only appeal an indigent has of right are decided without benefit of
counsel *** an unconstitutional line has been drawn between rich and
poor.” (Emphasis omitted.) Douglas, 372 U.S. at 357, 9 L. Ed. 2d at
814, 83 S. Ct. at 816. Douglas involved only a defendant’s first appeal
of right and did involve the appointment of counsel “ ‘for the
preparation of a petition for discretionary or mandatory review
beyond the stage in the appellate process at which the claims have
once been presented by a lawyer and passed upon by an appellate
court.’ ” Martinez v. Schriro, No. 09–15170, slip op. at 4 (9th Cir.
September 27, 2010), quoting Douglas, 372 U.S. at 356, 9 L. Ed. 2d
at 814, 83 S. Ct. at 816.
In Ross v. Moffitt, the Court refused to extend the right to counsel
beyond the first appeal as of right from a conviction. Ross, 417 U.S.
at 610-11, 41 L. Ed. 2d at 351, 94 S. Ct. at 2443-44. There, the state
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supreme court provided discretionary review of a conviction after
mandatory review by an intermediate appellate court, and the state
supreme court’s acceptance of the appeal was based on public
importance and other indicia not related to the merits. Ross found it
significant that the defendant had the benefit of counsel in his appeal
to the appellate court, along with the record, the opinion from the
court and counsel’s arguments. The work product of counsel,
supplemented with defendant’s pro se petition for review, would
provide the state supreme court with an adequate basis to grant or
deny review. Ross, 417 U.S. at 615-17, 41 L. Ed. 2d at 353-54, 94 S.
Ct. at 2446-67. Ross rejected due process and equal protection
challenges to the procedure, concluding that a state “need not provide
any appeal at all” and the state does not act unfairly by refusing to
provide indigents with counsel “at every stage of the way.” Ross, 417
U.S. at 611, 41 L. Ed. 2d at 351, 94 S. Ct. at 2444. Ross solidified its
conclusion by discussing the role of the state supreme court as not
sitting to correct an adjudication of guilt in individual cases, but rather
to review cases where a matter of public interest was at stake, a
significant legal principle was involved or a conflict with precedent
existed. Ross, 417 U.S. at 615, 41 L. Ed. 2d at 353-54, 94 S. Ct. at
2446.
Over a decade after Ross, the Supreme Court decided
Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 545,
107 S. Ct. 1990, 1993 (1987), which held that there is no federal
constitutional right to counsel for an appeal mounting a collateral
attack against a criminal conviction. Finley noted that previous cases
had established that the right to the appointment of counsel “extends
to the first appeal of right, and no further.” Finley, 481 U.S. at 555,
95 L. Ed. 2d at 545, 107 S. Ct. at 1993. The Court wrote: “We think
that since a defendant has no federal constitutional right to counsel
when pursuing a discretionary appeal on direct review of his
conviction, a fortiori, he has no such right when attacking a
conviction that has long since become final upon exhaustion of the
appellate process.” Finley, 481 U.S. at 555, 95 L. Ed. 2d at 546, 107
S. Ct. at 1993. The Court continued by observing as follows:
“[T]he analysis that we followed in Ross forecloses
respondent’s constitutional claim. *** Postconviction relief is
even further removed from the criminal trial than is
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discretionary direct review. It is not part of the criminal
proceeding itself, and it is in fact considered to be civil in
nature. [Citation.] It is a collateral attack that normally occurs
only after the defendant has failed to secure relief through
direct review of his conviction. States have no obligation to
provide this avenue of relief [citation], and when they do, the
fundamental fairness mandated by the Due Process Clause
does not require that the State supply a lawyer as well.
Nor was the equal protection guarantee of ‘meaningful
access’ violated in this case. By the time respondent presented
her application for postconviction relief, she had been
represented at trial and in the Supreme Court of Pennsylvania.
In Ross, we concluded that the defendant’s access to the trial
record and the appellate briefs and opinions provided
sufficient tools for the pro se litigant to gain meaningful access
to courts that possess a discretionary power of review.
[Citation.] We think that the same conclusion necessarily
obtains with respect to postconviction review.” Finley, 481
U.S. at 556-57, 95 L. Ed. 2d at 547, 107 S. Ct. at 1994.
We now turn to Halbert, where the Supreme Court addressed
whether indigent criminal defendants who seek to bring a first-tier
direct appeal after pleading guilty or nolo contendere have a right to
appointed counsel. Specifically at issue was both a State of Michigan
law that provided that an appeal by a defendant who pleads guilty or
nolo contendere is discretionary with the appellate court and a state
procedure whereby judges denied the appointment of counsel for
indigents convicted under such pleas. Halbert found that the case
before it was framed by two prior decisions of the Court: Douglas and
Ross. Halbert, 545 U.S. at 616, 162 L. Ed. 2d at 564, 125 S. Ct. at
2590. The Court held that Douglas provided the controlling
precedent, and that two aspects of the Michigan appellate process led
it to that conclusion. Halbert, 545 U.S. at 616-17, 162 L. Ed. 2d at
564, 125 S. Ct. at 2590. First, in deciding whether to grant leave to
appeal upon application from a plea-based conviction, the Michigan
appellate court looks to the merits of the claim spelled out in the
application. Therefore, similar to the defendants’ appeals in Douglas,
the defendant’s appeal in Halbert was subject to ex parte review
without benefit of counsel’s argument, and, although the appeal was
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“ ‘discretionary,’ ” the appellate court sat in an “ ‘error-correction
instance,’ and not as the Michigan Supreme Court.” Martinez, slip op.
at 6, quoting Halbert, 545 U.S. at 617-20, 162 L. Ed. 2d at 564-66,
125 S. Ct. at 2590-92. Second, the Court emphasized that indigent
defendants pursuing first-tier review in the appellate court are
generally ill-equipped to represent themselves, and without counsel’s
assistance in preparing the application for leave to appeal, an indigent
“would be ‘disarmed in [his] endeavor to gain first-tier review.’ ”
Martinez, slip op. at 6, quoting Halbert, 545 U.S. at 617-20, 162 L.
Ed. 2d at 564-66, 125 S. Ct. at 2590-92. It was also highly significant
to the decision that the only manner of review afforded a plea-
convicted defendant under the Michigan procedure was discretionary,
and this appeal was the first, and likely the only, direct review of
defendant’s conviction. Halbert, 545 U.S. at 618-19, 162 L. Ed. 2d
at 565, 125 S. Ct. at 2591. Halbert therefore concluded that review
of the leave to appeal application was tantamount to a first-tier
proceeding that mandated counsel pursuant to Douglas. Martinez, slip
op. at 6, quoting Halbert, 545 U.S. at 609, 162 L. Ed. 2d at 559, 125
S. Ct. at 2586. Accordingly, the defendant in Halbert was entitled to
the assistance of counsel to pursue his first, albeit discretionary, appeal
from his conviction under the Michigan scheme. See Martinez, slip op.
at 6.
In the present case, defendant urges a right to counsel on collateral
review in a postconviction proceeding, as that was essentially the first
genuine opportunity he had to present his ineffective assistance of trial
counsel claims, which as discussed above, were not appropriate for
direct review. We note that under Illinois law, a collateral
postconviction proceeding is most often the first point at which an
ineffective assistance of counsel claim will be presented. Indeed, issues
that could have been considered on direct appeal are deemed
procedurally defaulted in a postconviction proceeding. West, 187 Ill.
2d at 425. Defendant argues, therefore, that his contention is similar
to those considered in Halbert and Douglas. He makes four basic
points in support of his argument: (1) the postconviction proceeding
would be the first time, and thus the “first-tier,” that he would have
been allowed to receive an adjudication on the two ineffective
assistance claims in question; (2) because the Post-Conviction Hearing
Act does not provide for appointment of counsel until after an
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indigent defendant has stated the gist of a meritorious claim, he did
not have the assistance of counsel in preparing his petition; (3) pro se
defendants are not adequately equipped to pursue this sort of first-tier
review; and (4) defendant’s premature assertion of the two ineffective
assistance claims not adjudicated on direct review somehow placed
him in a different position from defendants who wait to bring such
claims until postconviction, so that he should be appointed counsel
even if the others are not.
We find defendant’s arguments unpersuasive. There is no federal
constitutional right to the assistance of counsel connected with
proceedings seeking collateral relief, even where those proceedings
are the first tier of review for an ineffective assistance of counsel
claim. See Martinez, slip op. at 6; see also Finley, 481 U.S. at 555, 95
L. Ed. 2d at 545, 107 S. Ct. at 1993. We are not aware of any federal
or state cases to the contrary; indeed our research indicates that all of
the courts that have touched upon the subject in the wake of Halbert
agree that there is no federal constitutional right to the assistance of
counsel in a collateral proceeding. See, e.g., Martinez, slip op. at 6;
Lopez v. Wilson, 426 F.3d 339, 354, 356-57 (6th Cir. 2005); Muniz
v. Suthers, No. 06–1149 (10th Cir. December 18, 2006) (unpublished
opinion finding that Halbert “extended the right to counsel to a class
of discretionary direct appeals, Halbert did not overrule clearly
established Supreme Court precedent that individuals have no right to
counsel in post-conviction proceedings”); Hnatiuk v. Rapelje, No.
2:08–CV–11574 (E.D. Mich. May 7, 2010); State v. Lopez, 156 N.H.
193, 197-98, 931 A.2d 1186, 1190-91 (2007) (“Halbert did not
question the authority of the Finley decision establishing that there is
no right to counsel in an appeal of a collateral attack on a criminal
conviction. We decline to read such a requirement into the United
States Constitution when the United States Supreme Court has not
done so itself.”); Fluker v. State, 17 So. 3d 181, 183 (Miss. App.
2009); see also District Attorney’s Office for the Third Judicial
District v. Osborne, 557 U.S. ___, 174 L. Ed. 2d 38, 129 S. Ct. 2308(2009) (postconviction proceedings are sufficiently removed from
criminal trials as to engender different levels of due process
protections, and the Brady obligations imposed on prosecutors at trial
are not constitutionally required during postconviction proceedings).
In Martinez v. Schriro, No. 09–15170, slip op. at 7 (9th Cir.
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September 27, 2010), the Court of Appeals, Ninth Circuit, recently
concluded, under circumstances similar to the present case, that the
right to counsel is not triggered in a collateral proceeding even where
the proceeding would represent the defendant’s first opportunity to
obtain review of his ineffective assistance claims. In Martinez, the
defendant’s convictions and sentences were affirmed on direct appeal.
Under Arizona law, ineffective assistance of trial counsel claims
cannot be brought on direct review, but instead must be brought in a
postconviction proceeding. The defendant’s direct appeal counsel filed
a postconviction proceeding on the defendant’s behalf during the
pendency of the direct appeal, but then proceeded to file a motion
indicating that he had reviewed the trial record and did not find any
tenable issues. Under Arizona law, the defendant was then allowed 45
days to file a pro se petition for postconviction relief. Defendant did
not file such a petition, and he later alleged in a successive
postconviction petition that his appellate counsel had not informed
him of the requirement to file the petition within the 45-day period.
Defendant also alleged that he had valid ineffective assistance of trial-
counsel claims that he could have raised in his first postconviction
proceeding. Defendant’s successive petition was dismissed by the
Arizona superior court, which found his claims procedurally defaulted
due to the defendant’s failure to raise them in the initial postconviction
proceeding. The appellate court affirmed, and the Arizona Supreme
Court denied review. See Martinez, slip op. at 2.
The defendant then filed a habeas petition in federal district court,
which was denied. On appeal to the Ninth Circuit Court of Appeals,
the defendant argued that he was entitled to the effective assistance of
counsel in connection with his first postconviction petition because
that proceeding was the first opportunity for him to present his claims
that his trial counsel had rendered ineffective assistance, thus making
the situation similar to Halbert. The Martinez court rejected the claim,
finding the case more like Ross than Halbert. Martinez, slip op. at 8.
Martinez noted that just like in Ross, the defendant had “already
received direct review of his conviction and received the assistance of
counsel in connection with that appeal.” Martinez, slip op. at 8. In
Halbert, by contrast, the defendant sought the “functional equivalent
of direct review, the first appeal of his conviction.” Martinez, slip op.
at 8. The court concluded that even if collateral review offered the
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first tier of review for the defendant’s ineffective assistance claims, it
nonetheless is “not analogous to a direct appeal–or the first
opportunity for him to obtain review of his conviction–so as to entitle
him to effective counsel” (emphasis added) and therefore the case is
not controlled by Douglas and Halbert. Martinez, slip op. at 8.
Martinez then addressed the contention that pro se defendants are
ill-equipped to represent themselves in collateral proceedings. The
court was unmoved by this general assertion, noting the assistance of
counsel would “aid any indigent defendant in pursuing review of his
conviction, whether by first-tier or second-tier appeal, or by collateral
review.” Martinez, slip op. at 8, citing Ross, 417 U.S. at 616, 41 L.
Ed. 2d at 354, 94 S. Ct. at 2446-47. Martinez found it relevant that
the defendant pursuing collateral review faces less of a handicap than
a defendant pursuing a first appeal because a collateral-review
defendant has already received the assistance of counsel in a prior
proceeding, like the defendant in Ross. Martinez, slip op. at 8. A
defendant pursuing collateral review “would have ‘at the very least,
a transcript or other record of trial proceedings, a brief on his behalf
in the Court of Appeals setting forth his claims of error, and in many
cases an opinion by the Court of Appeals disposing of his case.’ ”
Martinez, slip op. at 8, quoting Ross, 417 U.S. at 615, 41 L. Ed. 2d
at 353, 94 S. Ct. at 2446. Martinez concluded that the defendant did
not face the same burden and disadvantages of a defendant pursuing
direct review without counsel’s assistance, and even though collateral
review might offer the first opportunity to present a particular claim,
the defendant had already benefitted from counsel’s assistance in the
direct appeal. Martinez, slip op. at 8.
We find the rationale of Martinez on this point to be persuasive.
The defendant in Halbert faced “far more daunting legal hurdles” than
defendant in our case. Ligon II, 392 Ill. App. 3d at 999. Defendant in
Halbert had to file an application for review setting forth the law that
supports the defendant’s position and explaining how that law applies
to the facts of the case. Halbert, 545 U.S. at 622, 162 L. Ed. 2d at
567-68, 125 S. Ct. at 2593-94. Here, in contrast, defendant needed
only to present the “gist of a constitutional claim” to survive summary
dismissal. Jones, 213 Ill. 2d at 504. Moreover, he only needed to
present a “limited amount of detail” (Hodges, 234 Ill. 2d at 9) and did
not need to “make legal arguments or cite to legal authority”
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(Gaultney, 174 Ill. 2d at 418). This is a purposely low threshold that
is one of the factors that distinguishes this case from Halbert and
Douglas.
We further note that defendant in the present case was much more
equipped to present his claims on collateral review than any of the
defendants in the cases mentioned above, including Martinez. Here,
defendant was armed with the following at the time he prepared his
petition for postconviction relief: (1) copies of the petition for leave
to appeal drafted by his appellate lawyer, which included 4½ pages on
the issue of ineffective assistance of trial counsel; (2) copies of his
appellate counsel’s appellant and reply briefs; (3) the petition for
rehearing prepared by appellate counsel, which also argued the
ineffective assistance of trial counsel; and finally (4) the appellate
court’s published opinion (see Ligon I, 365 Ill. App. 3d at 122), which
set forth the two ineffective assistance claims and expressly stated that
they could be “ ‘addressed in a proceeding for postconviction relief.’ ”
Ligon II, 392 Ill. App. 3d at 999, quoting Ligon I, 365 Ill. App. 3d at
122. Thus, defendant was in an even better position to raise his claims
in a postconviction proceeding than most other defendants who must
raise their ineffective assistance of counsel claims in a postconviction
proceeding without having had any specific input from counsel or the
court related to those claims. Under the circumstances, we find no
merit to defendant’s assertion that his premature assertion on direct
appeal of his unadjudicated claims somehow tipped the scale in his
favor so that he should be appointed counsel in this case even if others
who must wait to raise ineffective-assistance claims until
postconviction are not appointed counsel at the summary dismissal
stage.
Martinez next addressed the defendant’s argument that collateral
review of his ineffective-assistance claim involves a “determination on
the merits.” Martinez, slip op. at 9. Martinez rejected this contention,
finding that the case did not involve a determination on the merits in
the same way that Halbert and Douglas did. Martinez, slip op. at 9.
This was because there was no impediment presented to the defendant
gaining first-tier review of his conviction, and the court performed no
“gatekeeping function” that would bar the defendant from presenting
his ineffective assistance of counsel claim. Martinez, slip op. at 9.
Similarly, in case before us there was no obstacle presented by the
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court to a review of defendant’s conviction on direct appeal, and
defendant merely had to allege his ineffective assistance claims in his
postconviction petition to receive the appointment of counsel. Thus,
there was no “gatekeeping function” imposed in this case.
Martinez concluded its analysis by finding that neither a due
process nor an equal protection rationale were applicable to the case.
Martinez, slip op. at 9. The due process rationale did not fit because
the state has no duty to provide for an appeal of a criminal conviction
and no duty to provide for collateral review either. Martinez, slip op.
at 9. The equal protection clause was not violated because there were
no unreasoned distinctions in this case, and the clause does not require
absolute equality or the elimination of economic disparities. Martinez,
slip op. at 10.
We find the federal Court of Appeals decision in Martinez to be
well reasoned and persuasive. We therefore adopt its reasoning.
Accordingly, we conclude that defendant had no right to the
appointment of counsel at the summary dismissal stage of his
postconviction proceeding, even where the proceeding may have
presented the first real opportunity he had to raise two of his claims
of ineffective assistance of trial counsel.
As a final matter, we note that defendant made the alternative
argument in his briefs to this court that we should exercise our
supervisory authority to remove the barrier to appellate court review
set forth in Jones, 213 Ill. 2d at 508, and then remand the cause to the
appellate court for consideration of the unadjudicated claims. We find
that defendant forfeited this argument by failing to raise it in his
petition for leave to appeal before this court. See People v. Williams,
235 Ill. 2d 286, 298 (2009). At any rate, the issue is moot given our
resolution of the above-discussed issue, which was raised in
defendant’s petition for leave to appeal, and our holding that, under
the circumstances of the present case, defendant had no federal
constitutional right to the appointment of counsel at the summary
dismissal stage of the postconviction proceeding.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate
court, which affirmed the order of the circuit court dismissing
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defendant’s postconviction petition.
Affirmed.
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