The opinion of the court was delivered by: Chief Justice Freeman
Defendant, Johnnie Lee Evans, petitioned the circuit court of Cook County for relief pursuant to the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 1996). The circuit court dismissed defendant's amended petition without an evidentiary hearing. Defendant appeals directly to this court. 134 Ill. 2d R. 651(a). We affirm.
In defendant's direct appeal, this court recited the details of his crimes. See People v. Evans, 125 Ill. 2d 50 (1988). We need not repeat those details here. Defendant was charged with, inter alia, the knowing, intentional, and felony murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) and the attempted rape (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 11-1) of 16-year-old Adrian Allen. At the close of the evidence, the jury returned general verdicts of guilty of murder and attempted rape.
Defendant waived a sentencing jury. At the first stage of the death sentencing hearing, the trial Judge determined that defendant was eligible for the death penalty because he murdered the victim in the course of committing another felony, i.e., attempted rape. See Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6). At the close of the second stage of the death sentencing hearing, the circuit court sentenced defendant to death on the murder conviction and to an extended prison term of 30 years on the attempted rape conviction.
Defendant appealed directly to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603. While defendant's appeal was pending, the United States Supreme Court issued its decision in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). On May 1, 1987, this court entered a supervisory order remanding the cause to the circuit court for a Batson hearing. People v. Evans, No. 60705, 506 N.E.2d 1314 (1987). The circuit court found that defendant had failed to establish a prima facie case of purposeful discrimination in the State's exercise of its peremptory challenges.
On return of the case, this court affirmed defendant's convictions and sentences. People v. Evans, 125 Ill. 2d 50 (1988). The United States Supreme Court denied defendant's petition for a writ of certiorari. Evans v. Illinois, 490 U.S. 1113, 104 L. Ed. 2d 1036, 109 S. Ct. 3175 (1989).
On June 27, 1990, defendant filed in the circuit court a petition for post-conviction relief. Nearly seven years later, defendant filed an amended post-conviction petition. On May 17, 1997, the circuit court, in the person of the same Judge who sentenced defendant, granted the State's motion to dismiss the petition without an evidentiary hearing. We will discuss additional relevant facts in the context of the issues raised on appeal.
A proceeding brought under the Post-Conviction Hearing Act (Act) is not an appeal of a defendant's underlying judgment. Rather, it is a collateral attack on the judgment. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. To be entitled to post-conviction relief, the petitioner bears the burden of establishing a substantial deprivation of federal or state constitutional rights. Also, determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided; issues that could have been presented on direct appeal, but were not, are deemed waived. People v. Johnson, 183 Ill. 2d 176, 186 (1998); People v. Whitehead, 169 Ill. 2d 355, 371 (1996); People v. Mahaffey, 165 Ill. 2d 445, 452 (1995).
The petitioner in a post-conviction hearing is not entitled to an evidentiary hearing as of right. Rather, the Act permits summary dismissal of a non-meritorious petition. The allegations in the petition, supported where appropriate by the trial record or accompanying affidavits, must show a substantial violation of constitutional rights. Johnson, 183 Ill. 2d at 187; Whitehead, 169 Ill. 2d at 370-71; Mahaffey, 165 Ill. 2d at 452. For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits, in light of the original trial record, are to be taken as true. People v. Coleman, 183 Ill. 2d 366, 380-82 (1998); People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995). The circuit court's dismissal of a post-conviction petition is reviewed de novo. Coleman, 183 Ill. 2d at 387-89.
On appeal, defendant contends that he was denied his constitutional rights at trial due to the: (1) prosecution's discriminatory use of its peremptory challenges during voir dire to exclude African-American venirepersons from the jury; (2) ineffective assistance of his trial counsel at the death sentencing hearing; and (3) cumulative effect of these errors.
Defendant contends that the prosecution used its peremptory challenges during voir dire to exclude African-American venirepersons from the jury. In Batson, the United States Supreme Court reaffirmed the principle that the State denies an African-American defendant the equal protection of the laws when it tries the defendant before a jury from which members of the defendant's race have been purposely excluded. Batson, 476 U.S. at 85, 90 L. Ed. 2d at 80, 106 S. Ct. at 1716; see Evans, 125 Ill. 2d at 62. The ramifications of Batson continue to be realized. See, e.g., Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991); Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991).
Batson requires that a defendant first establish a prima facie case of discrimination. Batson, 476 U.S. at 93-94, 90 L. Ed. 2d at 85-86, 106 S. Ct. at 1721. Once the defendant establishes a prima facie case, the burden shifts to the prosecution to come forward with race-neutral and trial-specific reasons for striking the African-American venirepersons. Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. The trial court must then consider those explanations and determine if the defendant has established purposeful discrimination. Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724; see People v. Williams, 147 Ill. 2d 173, 219-20 (1991); People v. Andrews, 146 Ill. 2d 413, 424 (1992).
In this case, the circuit court found that defendant had failed to establish a prima facie case of purposeful discrimination. On direct review, this court upheld that finding. Evans, 125 Ill. 2d at 61-67; see People v. Peeples, 155 Ill. 2d 422, 469 (1993) ("a trial Judge's determination that a defendant failed to establish a Batson prima facie case is a finding of fact and will not be overturned unless it is against the manifest weight of the evidence").
In his post-conviction petition, defendant points to one observation of this court in its Discussion of this issue on direct review: "Perhaps even more significantly, unlike Batson this is not a case involving an interracial crime in which specific racial groups would be prone to take sides of prejudice. [Citation.] Here, the defendant is black, the victim was black, and the majority of witnesses are black. Any racial issue inherent in the selection of the jury is therefore minimal, if not nonexistent." Evans, 125 Ill. 2d at 65-66.
Defendant assigns error to this observation. The petition, supported by affidavits, alleges that the trial record fails to indicate the race of most of the witnesses and, further, that 8 of the 15 witnesses who testified at the guilt phase of the trial were white. The circuit court found that this claim was res judicata.
Before this court, defendant argues that,"[b]ecause [defendant's] claim was supported by new evidence, res judicata did not apply." The State initially responds that defendant failed to include the race of the trial witnesses in the record of the Batson hearing. Thus, the State contends, "because defendant's `new evidence' is not really new, and could have been made part of the record on direct appeal, it is insufficient to overcome res judicata." In his reply, defendant denies the existence of "a requirement ...