APPEAL from the Circuit Court of Cook County; the Hon. FELIX
M. BUOSCIO, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
This is an appeal from the dismissal of the post-conviction petition of Edgeworth (hereafter at times petitioner) without an evidentiary hearing. On 24 April 1968, petitioner was convicted in a jury trial of four counts of attempt murder and one count of aggravated battery. After sentencing, petitioner filed a timely notice of appeal and petitioner was admitted to bail pending the appeal. Successive appellate counsel (at least one of whom had been petitioner's trial counsel) moved for and were allowed nine extensions of time in which to file petitioner's brief. The last extended date (marked final) on which the brief was due was 15 July 1970. The brief was not filed as of that date, nor was any motion filed for a further extension of time. On 8 September 1970, this court, on its own motion, dismissed the appeal for want of prosecution.
On 14 September 1970, petitioner's appellate counsel moved to vacate the dismissal of the appeal and for permission to file the brief instanter. On 21 September 1970, the motion to vacate was denied, as was a subsequent motion to reconsider the denial of the motion to vacate. In the motion to reconsider, petitioner's appellate counsel apologized to the court for the negligence which had resulted in the dismissal of the appeal. On 22 October 1970, the mandate of this court issued.
Petitioner's appellate counsel filed in the supreme court a petition for leave to appeal to that court from the dismissal of the direct appeal and from the denial of the motion to vacate the dismissal. In response, the State filed its answer asking that the petition be denied. Appellate counsel then filed in this court a motion to recall the mandate; the State filed a response thereto, to which it attached a copy of its answer to the petition for leave to appeal. On 2 December 1970, the petition for leave to appeal to the supreme court was denied. On 14 January 1971, petitioner's motion to reconsider the denial of leave to appeal was denied. On 12 October 1971, the United States Supreme Court denied certiorari (Edgeworth v. Illinois, 404 U.S. 835, 30 L.Ed.2d 66, 92 S.Ct. 116).
In the record on the instant appeal appear copies of the several motions in this court and of the responses thereto and a copy of the State's answer in the supreme court to the petition for leave to appeal. From these materials we know what issue was actually raised in those proceedings. The issue was: Is Edgeworth bound by the negligent omissions of his appellate counsel so that the dismissal of his appeal was a proper exercise of discretion on the part of this court even though Edgeworth thereby lost his right to appeal? Edgeworth relied on the case of People v. Brown (1968), 39 Ill.2d 307, 235 N.E.2d 562, in which our supreme court held that the dismissal of Brown's appeal was an abuse of discretion. The State sought to distinguish Brown in that Brown involved a set of special circumstances for which there was no counterpart in Edgeworth's case, namely, Brown's appellate counsel in repeated instances had accepted the representation of a defendant on appeal and then, after having filed a timely notice of appeal, had done nothing further to prosecute the appeal (for which pattern of conduct he had subsequently been disbarred). The State then relied on People v. Baze (1969), 43 Ill.2d 298, 253 N.E.2d 392, in which, on an appeal from the dismissal of a post-conviction petition, the court held, in reviewing the alleged impropriety of the dismissal of petitioner's direct appeal for want of prosecution, that petitioner was bound by the negligent omissions of his counsel on direct appeal in the absence of special circumstances such as were present in the Brown case. *fn1
• 1 In passing, we also infer from Aliwoli that the better procedure by which to raise the issue of abuse of discretion in dismissing the appeal for want of prosecution would appear to be by motion in the appellate court to vacate the dismissal and to reinstate the appeal, rather than by post-conviction petition.
As will appear below, in the instant post-conviction proceeding, the State contends that the denial of the petition for leave to appeal to the supreme court from the dismissal of the direct appeal by this court (and, presumably, the denial by the United States Supreme Court of the subsequent petition for writ of certiorari) constituted, in effect, a holding (1) that Edgeworth was bound by the negligent omissions of his counsel on his direct appeal, so that there was no abuse of discretion on the part of this court in dismissing that appeal and in refusing to vacate the dismissal, and (2) that no special circumstances comparable to those in Brown existed in Edgeworth's case. On that premise, the State contends that the issue of abuse of discretion thereby became res judicata.
Again as will appear below, the relevance of those contentions of the State to the instant post-conviction proceedings is as follows: the crucial allegation in the post-conviction petition is that the petitioner was denied his right to effective assistance of appellate counsel in that his appeal was dismissed solely because of the failure of counsel either to file the brief or to obtain necessary extensions of time therefore. The State contends that this issue also was either res judicata by reason of the proceedings which followed the dismissal of the direct appeal and the refusal to vacate that dismissal, or was waived by failure to raise it in those proceedings, in which it might have been raised. The post-conviction court then held, inter alia, that the post-conviction issue of the incompetence of appellate counsel was res judicata.
• 2 We have not been cited to any authority, *fn2 nor have we found any authority, for the contention that the denial of the petition for leave to appeal has any res judicata effect, even as to the issue of abuse of discretion actually raised in the petition and answer. On the contrary, the Committee comments to Supreme Court Rule 315 state:
"The practice [petition for leave to appeal] is similar to the certiorari procedure in the United States Supreme Court, and the considerations are in the main the same * * *.
In prescribing the contents of the petition, [paragraph (b)] it makes clear that the purpose is to state why the Supreme Court should take the case, and not merely to argue the case on the merits, though a statement as to why the decision below should be reversed is usually pertinent to the former question as well as the latter, as with the petition for certiorari in the United States Supreme Court."
Hence, the petition for leave to appeal to our supreme court is analogous to the petition for writ of certiorari in the United States Supreme Court.
But the United States Supreme Court has consistently taken the position that its denial of a petition for writ of certiorari decides nothing as to the merits of the issues raised in the petition, and merely denotes that fewer than four justices deemed it advisable to review the lower court's holding. (Maryland v. Baltimore Radio Show, Inc. (1949), 338 U.S. 912, 94 L.Ed. 562, 70 S.Ct. 252; Brown v. Allen (1953), 344 U.S. 443, 97 L.Ed. 469, 73 S.Ct. 397.) In Brown, the relevant issue was the legal effect of the United States Supreme Court's denial of certiorari upon Federal constitutional issues which had been adjudicated by a State court of last resort in the case as to which certiorari had been denied, when the same Federal constitutional issues were raised in subsequent habeas corpus proceedings in a Federal District Court. Mr. Justice Frankfurter, speaking for the majority of the Court on this issue, said:
"If we were to sanction a rule directing the District Courts to give any effect to a denial of certiorari, let alone the effect of res judicata * * * we would be ignoring actualities recognized ever since certiorari jurisdiction was conferred upon this Court more than sixty years ago." (344 U.S. 443, 491.)
Mr. Justice Frankfurter further said:
"Just as there is no ground for holding that our denial [of certiorari] is in effect res judicata, so equally is there no basis for leaving the District Judge free to decide whether we passed on the merits." 344 U.S. 443, 494.
We note also that, under Supreme Court Rule 315(e), the opposing party may, but need not under penalty of default, file an answer to the petition for leave to appeal. Hence, the petition itself is not necessarily an adversary proceeding to which the application of the doctrine of res judicata (and much less the doctrine of waiver) is appropriate. *fn3
• 3 We cannot, therefore, accept the contention of the State that the denial of Edgeworth's petition for leave to appeal to our supreme court, to which the State filed an answer asking that the petition be denied, rendered res judicata even the issue of abuse of discretion which was actually raised by the petition and answer, much less the issue of incompetence of Edgeworth's counsel on direct appeal which was not actually raised. It is even more obvious that the doctrine of waiver can have no application to the proceeding by petition and answer. We conclude that the post-conviction court erred in holding res judicata the issue of incompetence of petitioner's counsel on direct appeal, nor was that issue waived by failure to raise it in the petition and answer.
To resume the statement of the facts in the instant case: On 3 December 1971, the instant post-conviction petition was filed. The petition made the following allegations (adequately supported by further specific allegations):
(1) petitioner was denied his constitutional right to have the jury properly instructed as to ...