The opinion of the court was delivered by: Justice Freeman
Defendant, Floyd Richardson, petitioned the circuit court of Cook County for post-conviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 1998). The circuit court dismissed defendant's 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. Richardson, 123 Ill. 2d 322 (1988). We need not repeat those details here. Defendant was charged with, inter alia, the intentional, knowing, and felony murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) and the armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2) of the victim, George Vrabel. The victim was a grocery store clerk whom defendant fatally shot while robbing the store. At the close of the evidence, the jury returned general verdicts of guilty of murder and armed robbery.
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., armed robbery. See Ill. Rev. Stat. 1981, 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 a concurrent, extended prison term of 60 years on the armed robbery conviction.
Defendant's sentence was stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). This court affirmed defendant's convictions and sentences. People v. Richardson, 123 Ill. 2d 322 (1988). The United States Supreme Court denied defendant's petition for a writ of certiorari. Richardson v. Illinois, 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S. Ct. 1577 (1989).
On January 7, 1991, defendant filed in the circuit court a petition for post-conviction relief. On March 4, 1997, the circuit court 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 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. Evans, 186 Ill. 2d 83, 89 (1999); People v. Tenner, 175 Ill. 2d 372, 377-78 (1997).
The petitioner in a post-conviction proceeding 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. Evans, 186 Ill. 2d at 89; People v. Caballero, 126 Ill. 2d 248, 259 (1989). 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. Evans, 186 Ill. 2d at 89; People v. Coleman, 183 Ill. 2d 366, 380-82 (1998). 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 counsel at trial and on direct review; and (3) circuit court's denial of additional funds for expert witnesses.
Defendant claims that the prosecution denied his constitutional rights by its discriminatory use of peremptory challenges during voir dire at his trial. When defendant was tried in 1984, Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), and its Illinois offspring expressed the controlling law.
In Swain, the United States Supreme Court held that a criminal defendant could not claim an equal protection violation based on a prosecutor's racially discriminatory use of peremptory challenges to exclude African-Americans from the jury in that particular trial. Rather, a defendant would prevail on such a claim if the defendant could show that a prosecutor in a county was systematically excluding persons from juries for racially motivated reasons "in case after case." Swain, 380 U.S. at 223, 13 L. Ed. 2d at 774, 85 S. Ct. at 837. This court repeatedly declared Swain to be controlling in Illinois. E.g., People v. Lyles, 106 Ill. 2d 373, 392-95 (1985); People v. Williams, 97 Ill. 2d 252, 273-80 (1983).
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the 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 79-80, 106 S. Ct. at 1716. Batson held that a defendant could establish a case of racial discrimination in the selection of his jury solely on evidence concerning the prosecutor's use of peremptory challenges at defendant's own trial. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; see People v. Andrews, 146 Ill. 2d 413, 423 (1992). Because defendant's case was pending on direct review when Batson was decided, Batson was applicable retroactively to defendant's trial. See Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987).
However, Batson requires "a defendant's timely objection to a prosecutor's challenges." (Emphasis added.) Batson, 476 U.S. at 99, 90 L. Ed. 2d at 89-90, 106 S. Ct. at 1725. A defendant who fails to raise a Batson objection before the jury is sworn waives the issue. People v. Fair, 159 Ill. 2d 51, 71 (1994). This rule applied under the old rule of Swain (e.g., People v. Gaines, 88 Ill. 2d 342, 359 (1981)) and applies to cases pending on appeal when Batson was decided (e.g., People v. Evans, 125 Ill. 2d 50, 61-62 (1988); accord People v. Holder, 153 Ill. App. 3d 884, 886 (1987)). Thus, a defendant who failed to object to the prosecution's use of peremptory challenges under the old rule of Swain cannot receive on appeal the benefit of the new rule announced in Batson. People v. Pecor, 153 Ill. 2d 109, 125-26 (1992); accord Teague v. Lane, 489 U.S. 288, 297, 103 L. Ed. 2d 334, 347, 109 S. Ct. 1060, 1068 (1989) (under Illinois law, failure to raise Swain claim at trial and on direct review waives Batson-type claim in state post-conviction proceeding).
In this case, defendant concedes, as our review of the record confirms, that his trial counsel did not object during voir dire to the prosecution's use of its peremptory challenges or include this issue in the post-trial motion. We note that while defendant's direct appeal was being briefed, this court remanded several pending cases to trial courts for Batson hearings, where the Batson issue was timely raised at trial. People v. Hooper, 118 Ill. 2d 244, 249 (1987) (Ryan, J., concurring) (describing court as remanding "all cases on review in which the Batson issue is viable" to circuit courts for Batson hearings); see, e.g., Evans, 125 Ill. 2d at 59-60. Defendant has waived this claim.
II. Ineffective Assistance of Counsel
Defendant next claims that he was denied his constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8. Defendant contends that: (A) appellate counsel failed to raise a Batson objection, and (B) trial counsel failed to investigate and introduce evidence at the death sentencing hearing.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the familiar Strickland test. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The test is composed of two prongs: deficiency and prejudice. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; see People v. Brisbon, 164 Ill. 2d 236, 245-46 (1995).
First, the defendant must prove that counsel made errors so serious, and that counsel's performance was so deficient, that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. A court measures counsel's performance by an objective standard of competence under prevailing professional norms. To establish deficiency, the defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. Evans, 186 Ill. 2d at 93; People v. Hampton, 149 Ill. 2d 71, 108-09 (1992).
Second, the defendant must establish prejudice. The defendant must prove 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. The prejudice prong of Strickland entails more than an "outcome-determinative" test. The defendant must show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Evans, 186 Ill. 2d at 93; People v. Whitehead, 169 Ill. 2d 355, 380-81 (1996).
A defendant must satisfy both prongs of the Strickland test. Therefore, "failure to establish either proposition will be fatal to the claim." People ...