The opinion of the court was delivered by: Justice Heiple
On August 23, 1979, the petitioner, Andre Jones, pleaded guilty to three counts of first degree murder. On April 15, 1980, petitioner was sentenced to death. Petitioner currently appeals from a St. Clair County circuit court order dismissing his third post-conviction petition without an evidentiary hearing. Because petitioner was sentenced to death, this court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)). We affirm.
Petitioner pleaded guilty in the circuit court of St. Clair County to three counts of first degree murder. A jury sentenced petitioner to death for each of the murder convictions. On direct appeal, this court affirmed petitioner's convictions and two of his death sentences. We vacated petitioner's third death sentence, however, and remanded for imposition of a sentence other than death on that conviction. People v. Jones, 94 Ill. 2d 275 (1982). The United States Supreme Court denied petitioner's petition for writ of certiorari. Jones v. Illinois, 464 U.S. 920, 78 L. Ed. 2d 264, 104 S. Ct. 287 (1983).
Petitioner subsequently filed a petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at both the guilty plea stage and at sentencing. The circuit court dismissed the post-conviction petition without an evidentiary hearing, and we affirmed, holding petitioner's claims were barred by res judicata because they could have been raised on direct appeal but were not. People v. Jones, 109 Ill. 2d 19 (1985). Petitioner filed a second post-conviction petition alleging his attorney on direct appeal and in the first post-conviction proceedings was ineffective for failing to challenge the competency of his trial attorney. After conducting an evidentiary hearing, the circuit court denied petitioner's second post-conviction petition. Once again, we affirmed. People v. Jones, 144 Ill. 2d 242 (1991).
Petitioner then filed a petition for a writ of habeas corpus in federal court. The district court dismissed the petition (Jones v. Welborn, 877 F. Supp. 1214 (S.D. Ill. 1994)), and the Seventh Circuit Court of Appeals affirmed (Jones v. Page, 76 F.3d 831 (7th Cir. 1996)).
Petitioner subsequently filed a third post-conviction petition, which is the subject of this appeal. In this petition, petitioner alleges that his due process rights under the United States and Illinois Constitutions were violated when the trial judge failed to conduct a fitness hearing based on petitioner's ingestion of psychotropic drugs at the time of his plea and sentencing. Petitioner also alleges that his trial counsel was ineffective for failing to request such a fitness hearing. The circuit court dismissed the post-conviction petition without an evidentiary hearing.
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. 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. Consequently, defendant faces a daunting procedural hurdle when bringing a successive post-conviction petition. People v. Jones, No. 85354, slip op. at 3 (April 20, 2000).
In Flores, this court held that the procedural bars of waiver and res judicata may be relaxed with respect to successive post-conviction petitions only under certain circumstances. Under the "cause and prejudice" test announced in Flores, claims in a successive post-conviction petition are barred unless the petitioner can establish good cause for failing to raise his claims in prior proceedings and actual prejudice resulting from the claimed errors. Flores, 153 Ill. 2d at 279. For purposes of this test, "cause" is defined as " ` "some objective factor external to the defense [that] impeded counsel's efforts" to raise the claim' in an earlier proceeding" (Flores, 153 Ill. 2d at 279, quoting McClesky v. Zant, 499 U.S. 467, 493, 113 L. Ed. 2d 517, 544, 111 S. Ct. 1454, 1470 (1991), quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 408, 106 S. Ct. 2639, 2645 (1986)) 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, quoting United States v. Frady, 456 U.S. 152, 169, 71 L. Ed. 2d 816, 831, 102 S. Ct. 1584, 1595 (1981), quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1737 (1977)).
We need not decide whether petitioner's first claim, that the trial court violated petitioner's due process rights when it failed to conduct a fitness hearing based on petitioner's ingestion of psychotropic drugs, is procedurally barred because this claim is not a constitutional claim which is cognizable in post-conviction proceedings. People v. Mitchell, 189 Ill. 2d 312, 328-29 (2000) (holding a trial court's failure to conduct a fitness hearing under section 104-21(a) of the Code of Criminal Procedure of 1963 when a defendant is taking psychotropic drugs at trial or sentencing does not constitute a violation of due process, and, therefore, is not a cognizable claim in post-conviction proceedings).
Petitioner's ineffective assistance of counsel claim, unlike petitioner's first claim, is cognizable in post-conviction proceedings. Therefore, we must determine whether petitioner's claim is procedurally barred. Applying the cause and prejudice test to the instant case, it is clear that petitioner remains procedurally barred from bringing this ineffective assistance of counsel claim in his third post-conviction petition. Even if petitioner could establish cause for failing to raise his claims earlier, he cannot establish prejudice resulting from his trial counsel's failure to request a fitness hearing.
The record in this case belies petitioner's assertion that his trial counsel was ineffective for failing to request a fitness hearing in light of petitioner's ingestion of psychotropic drugs and his history of mental illness. Cheryl Prost, a psychologist, evaluated petitioner before and after he entered his guilty plea and concluded that petitioner was sane at the time he committed the murders and that he was fit to stand trial. Jones, 144 Ill. 2d at 258. In a report filed with the trial court one week after petitioner pleaded guilty, Prost reached the following conclusion:
"No pathology was found concerning psychosis or mental retardation nor significant substance abuse. What has been found is a very pathological personality disorder which has been present since childhood and which has not changed through the efforts of numerous state penal institutions. Mr. Jones has had poor control over his anger ...