JUSTICE HEIPLE delivered the opinion of the court:
The defendant, William T. Jones, was convicted in the circuit court of Jefferson County of murder, attempted murder, armed robbery, residential burglary, and aggravated battery. Defendant waived his right to a jury for purposes of sentencing, and the trial court found him eligible for the death penalty. After hearing evidence in aggravation and mitigation, the trial court sentenced defendant to death.
Defendant's convictions were affirmed on direct appeal (People v. Jones, 123 Ill. 2d 387 (1988)), and the United States Supreme Court denied review (People v. Jones, 489 U.S. 1040, 103 L. Ed. 2d 236, 109 S. Ct. 1174 (1989)). Subsequently, defendant filed a pro se petition for post-conviction relief. After the trial court appointed counsel to assist defendant in his post-conviction proceedings, defendant filed an amended petition. Thereafter, on the State's motion, the trial court dismissed the post-conviction petition without an evidentiary hearing. This court affirmed the circuit court, and the United States Supreme Court denied review. People v. Jones, 155 Ill. 2d 357 (1993), cert. denied, 510 U.S. 966, 126 L. Ed. 2d 378, 114 S. Ct. 444 (1993).
On August 15, 1996, defendant filed a second petition for post-conviction relief. In this petition, defendant alleged that at the time of his trial, he was taking the psychotropic medication Valium. At the time of defendant's trial, section 104-21(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 104-21(a) (later codified as 725 ILCS 5/104-21(a))) required a court that was informed that a criminal defendant was taking psychotropic medication to hold a hearing to determine the defendant's fitness for trial. Defendant's petition alleged that even though defendant's use of Valium was disclosed to the trial court, the court failed to conduct the required fitness hearing. According to defendant, the trial court's actions deprived him of due process of law. In addition, defendant's petition claimed that his attorney's failure to request a fitness hearing constituted ineffective assistance of counsel.
The trial court dismissed defendant's second post-conviction petition without an evidentiary hearing on the grounds that the petition was time-barred by defendant's noncompliance with the statute of limitations and that, in any event, defendant's petition improperly sought the benefit of a new rule of criminal procedure on collateral review. Defendant now appeals directly to this court. 134 Ill. 2d Rs. 603, 651.
As an initial matter, the State argues that defendant's petition is time-barred because it was filed outside the statutory limitations period. 725 ILCS 5/122-1(c) (West 1998). At the time defendant was sentenced on October 17, 1985, the Post-Conviction Hearing Act required defendant to file his post-conviction petition within 10 years from the date of his conviction. Ill. Rev. Stat. 1985, ch. 38, par. 122-1. Defendant was sentenced on October 17, 1985. However, effective January 1, 1992, the General Assembly shortened the applicable limitations period to three years from the date of the conviction. This amendment was made retroactive to final judgments rendered before its January 1, 1992, effective date. Thus, the last day defendant could have timely filed his post-conviction petition was December 31, 1991 (the day before the effective date of the amendment). Defendant, however, did not file the instant post-conviction petition until August 15, 1996. As a consequence, the State argues, defendant's petition is untimely.
In addition, the State argues that defendant's claims are procedurally defaulted due to defendant's failure to raise them in either his direct appeal or his initial post-conviction petition. According to the State, claims raised in a successive post-conviction petition are not reviewable unless the defendant shows that the initial proceedings were deficient in some fundamental way. The State argues that defendant has failed to make such a showing.
Defendant argues that the late filing of his second post-conviction petition should be excused. Defendant correctly notes that a post-conviction petition will not be considered time-barred if the petition alleges facts demonstrating the delay in filing was not due to his culpable negligence. Ill. Rev. Stat. 1985, ch. 38, par. 122-1. In the instant case, defendant argues, the claims raised in his second petition were predicated upon this court's decision in People v. Nitz, 173 Ill. 2d 151 (1996). In Nitz, this court held that the failure to hold a section 104-21(a) fitness hearing was a constitutional error which could be raised for the first time in post-conviction proceedings. Because Nitz was decided just two months before defendant filed the instant petition, defendant argues that his petition should not be considered untimely. Furthermore, defendant argues that this court's decisions in People v. Brandon, 162 Ill. 2d 450 (1994), People v. Gevas, 166 Ill. 2d 461 (1995), People v. Kinkead, 168 Ill. 2d 394 (1995), People v. Nitz, 173 Ill. 2d 151 (1996), and People v. Britz, 174 Ill. 2d 163 (1996), suggest that the issue of the failure to hold a section 104-21 (a) fitness hearing can never be waived and thus is not subject to procedural default.
After considering the arguments of the parties, we hold that the claims raised in defendant's second post-conviction petition have been procedurally defaulted and cannot properly be raised in this successive petition. Accordingly, we need not address whether defendant's petition established a lack of culpable negligence sufficient to delay his late filing.
The Post-Conviction Hearing Act contemplates the filing of only one post-conviction petition. People v. Flores, 153 Ill. 2d 264, 273 (1992); People v. Free, 122 Ill. 2d 367, 375 (1988). Moreover, section 122-3 of the Act provides that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 1998); Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 375-76. Furthermore, a ruling on an initial post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 376. As a consequence, a defendant faces a daunting procedural hurdle when bringing a successive post-conviction petition.
In the instant case, defendant's second post-conviction petition alleges that he was taking psychotropic medication at the time of his trial. Based upon this allegation, defendant claims that: (1) he was denied his right to due process because the circuit court failed to conduct a fitness hearing; and (2) his trial counsel was ineffective for failing to request a fitness hearing. We note that under our recent decision in People v. Mitchell, No. 83281 (January 27, 1999), the first claim is not cognizable on post-conviction review. Even if it were, however, defendant has waived both claims by failing to raise them in his first post-conviction petition.
This court held in Flores that the procedural bars of waiver and res judicata may be relaxed with respect to successive post-conviction petitions under certain circumstances. Flores, 153 Ill. 2d at 274. In Flores, we adopted the "cause and prejudice" test, borrowed from United States Supreme Court cases considering successive habeas corpus petitions, as the proper means of identifying the extremely narrow class of cases in which a defendant's successive post-conviction petition is entitled to consideration on the merits. Flores, 153 Ill. 2d at 279. Under the test announced in Flores, claims in a successive post-conviction petition are barred unless the defendant can establish good cause for failing to raise his claims in prior proceedings and actual prejudice resulting from the claimed errors. For purposes of this test, "cause" is further defined as some objective factor external to the defense that impeded counsel's efforts to raise the claim in an earlier proceeding, and "prejudice" is defined as an error which so infected the entire trial that the resulting conviction violates due process. Flores, 153 Ill. 2d at 279.
Applying the cause and prejudice test to the instant case, it is clear that defendant remains procedurally barred from bringing his claims in this second post-conviction petition. Even if defendant were able to show cause for failing to raise his claims earlier, he would not be able to establish prejudice ...