The opinion of the court was delivered by: Justice Miller
The defendant, John Szabo, brings this appeal from an order of the circuit court of Will County denying his post-conviction petition after an evidentiary hearing. Because the defendant received the death penalty for the underlying murder convictions, the present appeal lies directly to this court. 134 Ill. 2d R. 651(a).
The defendant was convicted of murder and sentenced to death in the circuit court of Will County in 1979. In the appeal from that judgment, this court vacated the defendant's convictions and remanded the cause for a determination whether a new trial was necessary because of an alleged discovery violation. At the same time, the court vacated the defendant's death sentence and directed the trial court to conduct a new sentencing hearing if the convictions were able to stand. People v. Szabo, 94 Ill. 2d 327, 447 N.E.2d 193 (1983). On remand, the trial court reinstated the defendant's convictions, and a new sentencing hearing, conducted before a jury in 1984, again resulted in a sentence of death. This court subsequently affirmed the defendant's convictions and death sentence (People v. Szabo, 113 Ill. 2d 83, 497 N.E.2d 995 (1986)), and the United States Supreme Court denied certiorari (Szabo v. Illinois, 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330 (1987)).
The defendant initiated post-conviction proceedings in August 1987. In a pro se petition, the defendant challenged the competence of the lawyer who represented him at trial in 1979, David Landau. The defendant also challenged the competence of the two lawyers who represented him at the second sentencing hearing in 1984, Paul Bjekich and Daniel Doyle. The defendant contended that Landau, the 1979 trial lawyer, was ineffective because he was under investigation by the Attorney Registration and Disciplinary Commission while he was representing the defendant. Separately, the defendant contended that Bjekich and Doyle, his 1984 resentencing lawyers, did not adequately prepare and present certain mitigating evidence, including evidence of the defendant's good conduct while incarcerated for the present offenses, and evidence that the defendant was acting under extreme mental or emotional disturbance at the time of the offenses. Counsel, Lawrence Morrissey, was appointed to represent the defendant in the post-conviction proceedings. The circuit court denied relief after an evidentiary hearing, and this court affirmed the judgment (People v. Szabo, 144 Ill. 2d 525, 582 N.E.2d 173 (1991)). The United States Supreme Court denied certiorari. Szabo v. Illinois, 506 U.S. 832, 121 L. Ed. 2d 59, 113 S. Ct. 99 (1992).
In February 1993, this court filed an opinion in an unrelated post- conviction matter, People v. Johnson, 154 Ill. 2d 227, 609 N.E.2d 304 (1993), which addressed the duties of post-conviction counsel under Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). Regarding the record that must be prepared in the circuit court by appointed counsel in a post-conviction case, Rule 651(c) provides in pertinent part:
"The record filed in that court 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 or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions."
Johnson found that post-conviction counsel in that case had failed to comply with Rule 651(c) because he had not amended the defendant's pro se petition or submitted affidavits from possible mitigation witnesses identified in the petition. The court remanded the cause so that counsel could satisfy the requirements of the rule.
In May 1993, several months after the Johnson decision, the defendant, represented by new counsel, initiated the present action by filing a second post-conviction petition in the circuit court of Will County. By agreement of the parties a pending federal habeas corpus proceeding, which the defendant had filed in late April 1993, was dismissed without prejudice, so that the defendant could proceed on his state action. As the contents of the second post-conviction petition make clear, the impetus for the defendant's new petition was this court's decision in Johnson. Citing Johnson, the defendant alleged in his second petition that the lawyer representing him in the first post-conviction proceeding, Lawrence Morrissey, had failed to comply with Rule 651(c) by not submitting affidavits in support of the petition and by not amending the original pro se petition, as Rule 651(c) requires. In addition, the second post-conviction realleged the claims raised in the first petition regarding the conduct of Bjekich and Doyle at the resentencing hearing. The State initially moved to dismiss the defendant's second post- conviction petition, arguing that it was a repetitive action barred by this court's earlier decision on the defendant's first post-conviction petition. The circuit court denied the State's dismissal motion. An evidentiary hearing on the substantive allegations in the defendant's second post-conviction petition was later conducted before a different Judge, who denied relief. The defendant now brings this appeal from the denial of his second post-conviction petition. 134 Ill. 2d R. 651(a).
As a preliminary matter, we believe it is appropriate to consider whether the defendant may prosecute a second post-conviction petition in this case. Although the State does not renew before this court its contention that the present matter must be dismissed as a repetitive action, we believe that this inquiry, undertaken on our own initiative, is proper here. Waiver is not a bar to our consideration of the issue, for we have an obligation to ensure the uniform and orderly development of the law (see Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967)), and therefore we will consider here the timeliness of the defendant's second post-conviction petition.
As we have stated, this court previously affirmed the circuit court's denial of relief on the defendant's first post-conviction petition. People v. Szabo, 144 Ill. 2d 525, 582 N.E.2d 173 (1991). At that time the court found that the lawyer who represented the defendant at the initial post-conviction hearing, Lawrence Morrissey, had substantially complied with Supreme Court Rule 651(c). Szabo, 144 Ill. 2d at 531-33. Notwithstanding that determination, the defendant subsequently initiated the present proceeding, which constitutes his second post-conviction challenge to the underlying convictions and death sentence. The question that arises is whether the defendant may now pursue a second post- conviction petition, following the rejection of his first.
This court has previously allowed a successive post-conviction petition to go forward only when the proceedings on the initial petition were "deficient in some fundamental way." People v. Flores, 153 Ill. 2d 264, 273-74, 606 N.E.2d 1078 (1992). This limitation on the circumstances in which successive petitions are allowed is designed to achieve a balance between society's interest in the finality of criminal convictions and the individual defendant's interest in vindicating constitutional rights. Flores, 153 Ill. 2d at 274. In opposition to the State's dismissal motion in the circuit court below, the defendant contended that the proceedings on his initial post-conviction petition were fundamentally deficient. The defendant argued below, in opposition to the State's dismissal motion, that our earlier decision regarding the initial petition should not preclude the present action, because the earlier decision did not adequately resolve all the issues then pending. The defendant asserted that this court had misapprehended the basis for the argument on appeal that counsel had failed to comply with Rule 651(c). The defendant believed that this court had focused on the challenge to the performance of trial counsel, David Landau, and had failed to consider the separate challenges to the performance of counsel at the resentencing hearing, Bjekich and Doyle.
Our earlier decision affirming the denial of post-conviction relief, People v. Szabo, 144 Ill. 2d 525 (1991), would normally be sufficient to negate any suggestion that the defendant is now entitled to a second opportunity to establish a constitutional defect in the sentencing proceedings. The defendant's first post-conviction petition alleged incompetence by the defendant's trial lawyer and by the two lawyers who represented the defendant at the resentencing hearing. On appeal from the denial of post-conviction relief, the defendant argued before this court that post-conviction counsel had failed to properly substantiate those claims. Szabo, 144 Ill. 2d at 532. At that time, this court rejected the defendant's challenge to post-conviction counsel's performance, concluding that adequate compliance with Rule 651(c) had been shown. Although the record did not contain an affidavit from post- conviction counsel, as required by Rule 651(c), the court nonetheless excused its absence, noting that the record as a whole evidenced sufficient compliance with the requirements of the rule. The court explained, "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." Szabo, 144 Ill. 2d at 532.
Our subsequent decision in Johnson cited favorably to this court's Disposition of defendant Szabo's first post-conviction petition. Johnson stated:
"Rule 651(c) requires post-conviction counsel to file an affidavit certifying that he or she has complied with these requirements. Although this court has held that compliance with the duties set out in Rule 651(c) is mandatory, the absence of counsel's affidavit will be excused where the record demonstrates that counsel adequately fulfilled his duties as post-conviction counsel. People v. Szabo (1991), 144 Ill. 2d 525." Johnson, 154 Ill. 2d at 238.
Thus, our earlier opinion in Szabo concluded that Rule 651(c) had been complied with, and our later opinion in Johnson reaffirmed that holding. Nonetheless, the defendant now wishes to challenge that earlier determination-in substance, the defendant now seeks a reexamination of the holding in the appeal from the first post-conviction petition (Szabo, 144 Ill. 2d 525) that post-conviction counsel sufficiently complied with Rule 651(c)'s requirements. We believe that a number of important considerations bar a reexamination of our earlier ruling.
We see no reason to excuse this repetitive filing, even on the ground that the holding in Johnson required post-conviction counsel to do more than what was done in that earlier proceeding. Johnson was decided after the present defendant's appeal from the denial of his first post- conviction petition. 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. The proceedings on defendant Szabo's first post-conviction petition had been entirely completed by the time Johnson was decided. Johnson remanded a post- conviction appeal to the circuit court so that post-conviction counsel could submit affidavits from potential witnesses in support of the petition. That we did not order the same remedy in defendant Szabo's earlier appeal, decided before Johnson, does not mean that we must now permit defendant Szabo to proceed with a second post-conviction petition, which is based, in substance, on a challenge to the performance of his initial post-conviction lawyer.
We have previously held that the post-conviction process does not provide a forum by which a defendant may challenge the conduct of counsel at an earlier post-conviction proceeding. People v. Flores, 153 Ill. 2d 264, 276-77, 606 N.E.2d 1078 (1992). The reasons for this rule are clear. Post-conviction relief is limited to constitutional deprivations occurring at trial or sentencing. 725 ILCS 5/122-1(a) (West 1996). The conduct of counsel in an earlier post-conviction proceeding, however, is by definition outside the ambit of post-conviction relief. Moreover, because there is no constitutional right to counsel in post- conviction proceedings (Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 546, 107 S. Ct. 1990, 1993 (1987)), the conduct of post- conviction counsel is not subject to a later constitutional challenge. Because the present defendant's second post-conviction petition is, in essence, a challenge to the performance of counsel at the initial post- conviction proceeding, this successive petition should be barred. Flores, 153 Ill. 2d at 280. Johnson itself does not endorse successive petitions; that case involved a first post-conviction petition.
Even if we were to consider the merits of the defendant's second post- conviction petition, we would not find that the defendant had established a violation of the right to the effective assistance of counsel occurring at his resentencing hearing.
Allegations of ineffective assistance of counsel are generally measured against the two-part standard expressed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To prevail on a claim of ineffective assistance under Strickland, a defendant must establish both that counsel's performance was deficient and that the deficiency proved to be prejudicial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Judicial scrutiny of counsel's performance is highly deferential under Strickland, and a court considering an ineffectiveness claim "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
To establish prejudice resulting from an asserted deficiency in counsel's performance, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
The defendant first argues that counsel at the resentencing hearing should have presented favorable testimony from a number of jail and prison officers who would have described the defendant as a model prisoner following his incarceration on the charges here. The Judge below concluded that the defendant sustained prejudice by his attorneys' failure to present this evidence. Still, the Judge concluded that counsel was not deficient in failing to do so, and the Judge accordingly rejected this claim of ineffective assistance of counsel.
At the evidentiary hearing on the defendant's second post-conviction petition, the Judge heard the testimony of one of the lawyers, Paul Bjekich, who represented the defendant on resentencing. Bjekich stated that it was his understanding that the defendant would still testify, even after the denial of a defense motion in limine that sought to restrict any cross-examination of the defendant. Counsel proposed to present evidence of the defendant's favorable adjustment to prison life through the testimony of the defendant himself.
At the evidentiary hearing below, Bjekich was confronted with a portion of the transcript from the resentencing hearing, at which the defendant briefly took the stand in the wake of the denial of the defense motion in limine. At that time the defendant said that, because the motion had been denied, he would not testify in his own behalf. At the evidentiary hearing below, however, Bjekich stated that it had still been the defense plan for the defendant to testify, even after the denial of the motion in limine. The Judge in the proceedings below credited Bjekich's testimony, and the Judge found that counsel was not deficient for failing to have an alternative plan ready in case the defendant did not take the stand in his own behalf at the resentencing hearing. The credibility determination made by the Judge is entitled to substantial weight, and we will not interfere with it.
The defendant further suggests, however, that counsel acted unreasonably, even if Bjekich's testimony at the evidentiary hearing below is accepted as true. The defendant apparently believes that counsel should have made the defendant's good conduct while incarcerated the centerpiece of the mitigation case at the second sentencing hearing. In fact, although counsel did not choose to make this the central feature of the defense, counsel did introduce some evidence on this point, and we will not attempt to second-guess this strategic decision. At the resentencing hearing, counsel chose instead to emphasize the disparity between a death sentence for the defendant and the relatively brief prison term received by a co-defendant convicted of the same offenses. In addition, counsel presented testimony from the defendant's family members, who described, among other things, the defendant's favorable adjustment to prison life. To be sure, counsel could have introduced testimony from jail and prison officials, for evidence like that may not be barred at a capital sentencing hearing. Skipper v. South Carolina, 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986). Skipper did not also hold, however, that counsel must be deemed ineffective for failing to present available testimony of that nature.
In describing the proposed testimony of these omitted witnesses, the defendant mentions their opinions that the defendant should not have received the death sentence for these crimes. We note, however, that testimony of that nature is not allowed at a death penalty hearing. This court has consistently held that mitigation witnesses' views that the defendant should not be sentenced to death are inadmissible at a capital sentencing hearing. People v. Stewart, 105 Ill. 2d 22, 67 (1984); People v. Yates, 98 Ill. 2d 502, 535 (1983); People v. Williams, 97 Ill. 2d 252, 300-01 ...