JUSTICE RATHJE delivered the opinion of the court:
Defendant, Patrick Wright, appeals from the trial court's dismissal of his second-amended post-conviction petition. Because defendant was sentenced to death for the underlying murder conviction, defendant appeals directly to this court. See 134 Ill. 2d R. 651(a).
A jury convicted defendant of the 1983 murder of Carol Specht, the attempted murder of Connie Specht, and related counts of home invasion, residential burglary, armed robbery, and attempted rape. Defendant waived a jury for purposes of sentencing, and the circuit court of Coles County, Honorable Paul Komada presiding, sentenced him to death. This court affirmed defendant's convictions and sentence of death. People v. Wright, 111 Ill. 2d 128 (1985) (Wright I).
Subsequently, defendant filed a post-conviction petition. The trial court, Judge Komada presiding, denied all post-conviction relief. Defendant appealed, and this court affirmed. People v. Wright, 149 Ill. 2d 36 (1992) (Wright II). Thereafter, defendant filed a "Second Petition for Post-Conviction Relief" and a "Second Amended Petition for Post- Conviction Relief." The second petition and the second-amended petition are the same, except that the amended petition alleges that the first post-conviction proceedings were void. *fn1 The State moved to dismiss defendant's petitions, and the trial court, Judge Komada presiding, granted the State's motion. Defendant now appeals.
On appeal, defendant contends that the trial court erred in granting the State's motion because (1) Judge Komada violated defendant's due process rights by ruling on defendant's second post-conviction petition, which alleged that, during defendant's trial and sentencing hearing, Judge Komada was operating under a conflict of interest because he had prosecuted defendant for the armed violence conviction that the State used as impeachment evidence during trial and as an aggravating factor during sentencing; (2) Judge Komada had a conflict of interest during the original proceedings, defendant's trial counsel was ineffective for failing to raise the conflict issue, and defendant's counsel on direct appeal was ineffective for failing to argue that trial counsel was ineffective; (3) the prosecutor had a conflict of interest because she served as defendant's attorney on the case in which Judge Komada had prosecuted defendant, and defendant's counsel on direct appeal was ineffective for failing to raise this issue; (4) defendant's trial counsel was ineffective for failing to investigate, argue, and introduce available evidence that defendant should be found guilty but mentally ill (see 725 ILCS 5/115-4(j) (West 1994)); and (5) defendant's attorney was ineffective for failing to investigate the existence of and not introducing available mitigating evidence of defendant's mental deficiency and his psychological problems.
The State contends that defendant's petition is untimely. Alternatively, the State asserts that, even if the petition is not untimely, the allegations in that petition are waived and barred by res judicata.
We first address the State's argument that defendant's second petition is untimely. The trial court entered final judgment on defendant's convictions and sentences on October 31, 1983. This court affirmed defendant's convictions and sentences in October 1985 (Wright I, 111 Ill. 2d 128), and the United States Supreme Court denied certiorari in February 1987 (Wright v. Illinois, 481 U.S. 1024, 95 L. Ed. 2d 519, 107 S. Ct. 1914 (1987)). Defendant filed his initial post- conviction petition in August 1987. In May 1992, this court affirmed the trial court's denial of post-conviction relief (Wright II, 149 Ill. 2d 36), and, on February 22, 1993, the United States Supreme Court denied defendant's motion to reconsider the denial of his request for certiorari (Wright v. Illinois, 507 U.S. 955, 122 L. Ed. 2d 749, 113 S. Ct. 1372 (1993)). Defendant filed his second petition on September 20, 1993.
Section 122-1 of the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1994)) provides, in pertinent part:
"No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none is filed or 3 years from the date of conviction, whichever is later, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence." 725 ILCS 5/122-1 (West 1994). *fn2
The State asserts that compliance with the time limit in section 122-1 is a jurisdictional prerequisite to maintaining a post-conviction petition. Defendant argues that the time limit is not jurisdictional and that the State has waived its right to argue that defendant's petition is untimely.
Relying upon People v. Heirens, 271 Ill. App. 3d 392 (1995), and People v. Stenson, 296 Ill. App. 3d 93 (1998), the State argues that the time limit provided in section 122-1 is a jurisdictional prerequisite to maintaining a post-conviction proceeding and that defendant's failure to file timely his petition deprived the trial court of jurisdiction to consider his claims. Defendant does not contend that he filed his petition within the time limit of section 122-1. Instead, he asserts that Heirens was incorrectly decided and that the time limit in section 122-1 is a statute of limitations that the State, by failing to raise the issue in the trial court, has waived.
Both Heirens and Stenson hold that the limitations period found in section 122-1 is a jurisdictional provision that confers subject matter jurisdiction upon the trial court to adjudicate a defendant's post- conviction petition. Stenson, 296 Ill. App. 3d at 96; Heirens, 271 Ill. App. 3d at 402. In reaching this Conclusion, the courts relied upon this court's decision in Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202 (1985). In Fredman, this court addressed the difference between statutes of limitations and statutes that both confer jurisdiction on a court and fix a time within which such jurisdiction may be exercised. The court noted that statutes of limitations are procedural in nature and "only fix the time within which the remedy for a particular wrong may be sought." Fredman, 109 Ill. 2d at 209. "On the other hand, `statutes which create a substantive right unknown to the common law and in which time is made an inherent element of the right so created, are not statutes of limitation.' " (Emphasis added.) Fredman, 109 Ill. 2d at 209, quoting Smith v. Toman, 368 Ill. 414, 420 (1938). In such cases, the time limit is "a condition precedent to the plaintiff's right to seek a remedy." Fredman, 109 Ill. 2d at 209. Time is a condition of the liability itself and not of the remedy alone. Fredman, 109 Ill. 2d at 209. "Such statutes set forth the requirements for bringing the right to seek a remedy into existence. They do not speak of commencing an action after the right to do so has accrued." Fredman, 109 Ill. 2d at 210.
A review of the time limitation found in section 122-1 reveals that it has more in common with statutes of limitations than it does with statutes conferring jurisdiction. The plain language of section 122-1 demonstrates that time is not an integral part of the remedy. The mere passage of time does not deprive a defendant of his right to seek a remedy. In fact, if a petitioner can demonstrate that the late filing was not due to his culpable negligence, there is no time limit within which a petitioner must file his post-conviction petition. See People v. Bates, 124 Ill. 2d 81, 88 (1988); 725 ILCS 5/122-1 (West 1994). A safety valve that allows an unlimited time in which to file a post-conviction petition cannot be reconciled with a concept that makes time a condition of the liability or with a position that time is an inherent element of the right created. As a lack of culpable negligence permits the filing of a post-conviction petition regardless of the length of time that has passed, a lack of culpable negligence-not time-is the inherent element.
We agree with Chief Justice Freeman that the remedy provided by the Post-Conviction Hearing Act is a remedy unknown at common law. This, however, is not dispositive of the question of whether the time period is jurisdictional. In Fredman, this court held that a limitations period is jurisdictional only if it creates a substantive right unknown to the common law, and if time is an inherent element of the right created. Fredman, 109 Ill. 2d at 209. Clearly both of these provisions must be met. Because time is not an inherent element of the right to bring a post-conviction petition, compliance with section 122-1 cannot be a jurisdictional prerequisite.
This Conclusion is supported by the fact that we have previously considered the limitations period to be a statute of limitations. In Bates, this court questioned whether an amendment to section 122-1, shortening the limitations period, applied retroactively to a defendant who had been convicted before the amendment was adopted. In holding that the amendment applied retroactively, the court treated the limitations period in section 122-1 as a statute of limitations and specifically noted that "statutes of limitations have historically been classified as procedural in character, and that procedural amendments are generally applied retroactively." Bates, 124 Ill. 2d at 85.
Chief Justice Freeman's special concurrence attempts to minimize the effect of this court's decision in Bates by suggesting that the question of whether section 122-1 establishes a statute of limitations was not the precise question before the Bates court. Notwithstanding these reservations, the fact is that in Bates the court held that the time limit in section 122-1 is a procedural statute of limitations and that therefore amendments to it may be applied retroactively. See Bates, 124 Ill. 2d at 85. While the court did not address the precise issue raised in this action, it did carefully consider the character of the limitations period and found it to be an ordinary statute of limitations. This is further emphasized by the fact that, in affirming the trial court's judgment, the court stated that defendant's "petition must be dismissed as untimely." Bates, 124 Ill. 2d at 88. Such a Conclusion is significant when one considers that we have a duty to consider, sua sponte, whether the trial court had jurisdiction to enter the judgment that it did. See People v. Bounds, 182 Ill. 2d 1, 3 (1998); People v. Canty, 75 Ill. 2d 566, 570 (1979). The fact that, in Bates, the court reviewed the trial court's judgment on the merits is an implicit, if not explicit, recognition that compliance with section 122-1 is not jurisdictional. See Hamilton v. Williams, 237 Ill. App. 3d 765, 772-73 (1992). Similarly, in People v. Reed, 42 Ill. 2d 169 (1969), this court affirmed the dismissal of an untimely post-conviction petition. Just as in Bates, the court dismissed the petition as untimely and not because the trial court lacked jurisdiction. See Reed, 42 Ill. 2d at 172. This court's treatment of these untimely petitions reveals that it has always considered the time limit in the Post-Conviction Hearing Act to be a statute of limitations and not a jurisdictional prerequisite.
We therefore hold that the time limit found in section 122-1 is a statute of limitations and that defendant's failure to file his petition within the limitations period did not deprive the trial court of jurisdiction to consider defendant's petition.
The State next contends that, if the limitations period is a statute of limitations, defendant's petition must be dismissed as untimely. The State explains that, even if the limitations period did not begin until after the United States Supreme Court denied certiorari in defendant's initial post-conviction proceedings (see People v. Caballero, 179 Ill. 2d 205, 214 n.1 (1997)), defendant's petition is untimely because it was filed on September 20, 1993, more than six months after the February 22, 1993, denial of defendant's motion to reconsider the denial of his request for certiorari. Defendant does not contend that the petition is timely, but argues that, by not raising the limitations argument in the trial court, the State has waived its right to argue that defendant's petition is untimely. During oral argument, the State asserted that it has not waived this contention because, as the appellee, it may raise on appeal any argument that might support the trial court's judgment. See People v. Monroe, 118 Ill. 2d 298, 300 (1987).
In raising this argument, however, the State ignores the second half of the Monroe rule, which requires that any points advanced in support of the trial court's ruling must have a sufficient factual basis before the trial court. Monroe, 118 Ill. 2d at 300. Here, although the facts support the Conclusion that defendant did not file his petition within the time limits found in section 122-1, that section allows a defendant to file a petition outside the limitations period if the late filing is not due to the defendant's culpable negligence. 725 ILCS 5/122-1 (West 1994). By not raising this issue until the cause was on appeal, the State has effectively precluded defendant from seeking to amend his petition to allege facts demonstrating that the late filing was not caused by his culpable negligence. While we recognize that section 122-1 requires the defendant to allege the facts demonstrating a lack of culpable negligence, we do not believe that this requirement allows the State to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition. By failing to raise this issue below, the State has waived its right to argue that defendant's petition is untimely.
In reaching this Conclusion, we caution that we are not limiting the trial court's ability, during the court's initial review of non-capital petitions (see 725 ILCS 5/122-2.1(a)(2) (West 1998)), to dismiss the petition as untimely. The import of our decision is simply that matters relating to the timeliness of a defendant's petition should first be considered in the trial court, either upon a motion by the State or pursuant to the duty imposed upon the trial court by section 122-2.1(a)(2).
Significantly, the opposite Conclusion provides an incentive for the State not to bring timeliness to the trial court's attention. If the State waits until appeal to raise the issue, it has effectively precluded the defendant from seeking to amend his petition to include allegations that he was not culpably negligent in filing his petition.
In sum, while we believe that a defendant should plead facts demonstrating his lack of culpable negligence, we see no reason that this statute of limitations should be treated different from any other. Thus, if the State wishes to challenge the timeliness of a defendant's petition, it should raise that argument first in the trial court, where any amendments can be made and factual disputes resolved.
Although we do not find that defendant's second post-conviction petition is untimely, that does not mean that it is properly brought. Generally, a ruling on an initial post-conviction petition is res judicata with respect to all claims that were raised or could have been raised in the initial petition. People v. Flores, 153 Ill. 2d 264, 274 (1992) "Further, any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." Flores, 153 Ill. 2d at 274; 725 ILCS 5/122-3 (West 1994). A second post- conviction petition is permitted only if the proceedings on the initial petition were deficient in some fundamental way. Flores, 153 Ill. 2d at 273-74. This limitation strikes a balance between society's interest in the finality of criminal convictions and the defendant's interest in vindicating violations of constitutional rights. Flores, 153 Ill. 2d at 274.
Here, defendant argues that he need not demonstrate that his claims are not barred by waiver or res judicata. Instead, he asserts that the proceedings during his initial petition were void and that, therefore, we must treat this successive petition as an initial petition.
Defendant contends that the initial proceedings were void because Judge Komada refused to recuse himself from considering the initial petition which included an allegation that James Dedman, one of defendant's trial attorneys, was ineffective. During the initial proceedings, defendant orally requested that Judge Komada recuse himself. Defendant alleged that Judge Komada could not impartially rule on the ineffective assistance argument because when Judge Komada was the State's Attorney, Dedman had worked for Judge Komada as an assistant State's Attorney. Judge Komada denied defendant's request. Defendant asserts that the relationship between Judge Komada and Dedman created a conflict of interest that required Judge Komada's recusal. Further, relying upon People v. Brim, 241 Ill. App. 3d 245 (1993), defendant contends that Judge Komada's improper refusal to recuse himself rendered void all of Judge Komada's subsequent actions. Defendant concludes that, because the initial proceedings are void, this successive petition is proper.
A defendant in a post-conviction proceeding has no absolute right to a substitution of Judge. People v. Steidl, 177 Ill. 2d 239, 264 (1997). Unless the defendant can show that it would cause him substantial prejudice, the same Judge who presided over the defendant's trial should also preside over the post-conviction proceedings. People v. Hall, 157 Ill. 2d 324, 331 (1993). Here, defendant's only allegation that the Judge was prejudiced was based on the fact that Dedman once worked for the Judge. It is well established, however, that "[t]he mere fact that the Judge has some kind of relationship with someone involved in the case, without more, is insufficient to establish judicial bias or to warrant a Judge's removal from the case." Steidl, 177 Ill. 2d at 264. In fact, that an attorney was once the Judge's law partner is insufficient, by itself, to demonstrate bias. Steidl, 177 Ill. 2d at 263-64. Without some specific allegations or evidence to support a Conclusion that Judge Komada's relationship with Dedman was so close or so involved that Judge Komada could not fairly rule on defendant's post-conviction petition, we are unable to conclude that the mere fact that Dedman once worked for Judge Komada required Judge Komada to recuse himself. Because Judge Komada was not required to recuse himself, no basis exists to support the Conclusion that the original proceedings were void.
We turn now to the claims raised in defendant's ...