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January 30, 1997


The Honorable Justice Miller delivered the opinion of the court.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

The defendant, James Tenner, brings this appeal from an order of the circuit court of Cook County dismissing his post-conviction petition without an evidentiary hearing. Because the defendant received the death penalty for the underlying first-degree murder convictions, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).

The circumstances of the defendant's offenses are fully set forth in our opinion on direct appeal and require only brief restatement here. The offenses in question occurred in South Chicago Heights on September 2, 1987, when the defendant shot and killed two persons and injured a third. The defendant had been acquainted with two of the victims, Albert and Donna Sauls, for a lengthy period; the third victim, Alvin Smith, was employed by Albert Sauls. The offenses occurred in a garage where the defendant rented space. Testimony was received at trial from both Albert Sauls, who survived the attack, and Shirley Garza, who was the defendant's former girlfriend and who was present during the offenses. According to the trial testimony, the Saulses' and Smith's hands and feet were first bound, and the three victims were then ordered by the defendant to proceed to an area where three nooses were hanging from the rafters. After placing the victims in the nooses, the defendant proceeded to harangue them for several hours, complaining that they had interfered in his relationship with Garza, his former girlfriend. The defendant later shot the Saulses and Smith with a shotgun, killing Donna Sauls and Smith. The defendant then left the premises with Garza, and he was apprehended later that night. In his own testimony at trial, the defendant explained that he believed that the Saulses had previously abducted Garza, and that they were plotting to kill him.

The jury found the defendant guilty of two counts of first degree murder, one count of attempted first degree murder, four counts of aggravated unlawful restraint, and one count of armed violence. After a capital sentencing hearing before the same jury, the defendant was sentenced to death for his convictions for first degree murder. On direct appeal, this court vacated the defendant's conviction for attempted first degree murder but otherwise affirmed the remaining convictions and corresponding sentences. People v. Tenner, 157 Ill. 2d 341, 193 Ill. Dec. 105, 626 N.E.2d 138 (1993). The United States Supreme Court denied the defendant's petition for a writ of certiorari. Tenner v. Illinois, U.S. , 129 L. Ed. 2d 882, 114 S. Ct. 2768 (1994). In December 1994 the defendant instituted the present action in the circuit court of Cook County, seeking post-conviction relief. The defendant submitted a supplemental petition in March 1995. The circuit judge dismissed the defendant's petitions without an evidentiary hearing. Because the death penalty was imposed for the underlying first-degree murder convictions, the defendant's appeal from the dismissal of his post-conviction petition lies directly to this court. 134 Ill. 2d R. 651(a).

The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1994)) enables a defendant to challenge a conviction or sentence for violations of federal or state constitutional rights. People v. Thompkins, 161 Ill. 2d 148, 157, 641 N.E.2d 371, 204 Ill. Dec. 147 (1994). An action for post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Brisbon, 164 Ill. 2d 236, 242, 207 Ill. Dec. 442, 647 N.E.2d 935 (1995); People v. Free, 122 Ill. 2d 367, 377, 119 Ill. Dec. 325, 522 N.E.2d 1184 (1988). To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that produced the judgment being challenged. 725 ILCS 5/122-1 (West 1994); People v. Guest, 166 Ill. 2d 381, 389, 211 Ill. Dec. 490, 655 N.E.2d 873 (1995). Considerations of res judicata and waiver limit the range of issues available to a post-conviction petitioner "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346, 180 Ill. Dec. 109, 606 N.E.2d 1186 (1992). Thus, rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were not, will be deemed waived. People v. Coleman, 168 Ill. 2d 509, 522, 214 Ill. Dec. 212, 660 N.E.2d 919 (1995); People v. Silagy, 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830 (1987).


The defendant raises a number of contentions here in opposition to the trial court's decision to dismiss the amended post-conviction petition without an evidentiary hearing. The defendant's principal arguments on appeal concern the conduct of trial and appellate counsel, and the defendant alleges that the attorneys rendered constitutionally ineffective assistance in a number of respects. Although the defendant focuses on the conduct of trial counsel, he makes the allied claims that his attorney on direct appeal was ineffective for failing to raise claims of trial counsel's incompetence that were available at that time. Because these issues overlap, we will address the challenges to appellate counsel's competence at the same time as we consider the arguments pertaining to trial counsel. See People v. Guest, 166 Ill. 2d 381, 390, 211 Ill. Dec. 490, 655 N.E.2d 873 (1995). We note that the same standards govern our assessment of the performance of trial and appellate counsel here. People v. Whitehead, 169 Ill. 2d 355, 381, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996); People v. Johnson, 154 Ill. 2d 227, 233-34, 182 Ill. Dec. 1, 609 N.E.2d 304 (1993).


The defendant first argues that trial counsel was ineffective for failing to have the defendant undergo an evaluation of his mental condition prior to trial and sentencing. The defendant contends that a mental evaluation could have provided the basis for an insanity defense at trial and could have supplied important mitigating evidence at the capital sentencing hearing. In support of this contention, the defendant included with his original and supplemental post-conviction petitions two reports by Dr. Lyle Rossiter, a psychiatrist. Dr. Rossiter prepared a preliminary report after reviewing the trial transcript and other materials supplied by post-conviction counsel. After interviewing the defendant on January 10, 1995, Dr. Rossiter submitted a supplemental report, which incorporated the impressions he gleaned on that occasion. In the supplemental report, Dr. Rossiter expressed the view that the defendant "was in a highly irrational state caused by a paranoid delusional disorder" at the time of the offenses committed here. Dr. Rossiter believed that the defendant's condition warranted a psychiatric examination to determine whether he was insane or was suffering from extreme mental or emotional distress.

The constitutional guarantee of the assistance of counsel (U.S. Const., amends. VI, XIV) includes the right to the effective assistance of counsel ( Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 343-44, 100 S. Ct. 1708, 1716 (1980)), both at trial and on a defendant's first appeal as of right ( Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37 (1985)). The relevant standard for gauging the performance of counsel is provided by Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsel's performance was deficient and that he was prejudiced as a result of counsel's alleged deficiency. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.


The defendant initially argues that trial counsel was ineffective for failing to have the defendant undergo a mental evaluation prior to trial. The defendant believes that an examination could have revealed evidence that would have supported an insanity defense to the charges.

This is not a case in which counsel wholly failed to investigate the defendant's background prior to trial or sentencing. Here, defense counsel retained a mitigation expert, who conducted an investigation into the defendant's personal history, though counsel later decided not to call that person as a witness either at trial or at sentencing. Nothing in the record at that time, however, suggested that the defendant suffered from any mental impairment, or that there was any need to pursue a separate inquiry into the defendant's mental condition. "Where the circumstances known to counsel at the time of his investigation do not reveal a sound basis for further inquiry in a particular area, it is not ineffective for the attorney to forgo additional investigation. [Citation.]" People v. Holman, 164 Ill. 2d 356, 371, 207 Ill. Dec. 467, 647 N.E.2d 960 (1995).

We believe that trial counsel's failure to have the defendant undergo a mental evaluation was a strategic choice made after sufficient investigation. ...

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