The opinion of the court was delivered by: Justice Freeman
Agenda September 4, 1999.
In June 1983, defendant, Renaldo Hudson, was indicted in the circuit court of Cook County on four counts of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)), armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2), unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3), aggravated arson (Ill. Rev. Stat. 1983, ch. 38, par. 20-1.1), residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3); two counts of home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12-11); and three counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2). At the ensuing trial, a jury was unable to reach a verdict, and the circuit court declared a mistrial. After an unsuccessful interlocutory appeal to the appellate court (see People v. Hudson, 171 Ill. App. 3d 1029 (1987)), a new trial was held. A jury convicted defendant of murder, armed robbery and aggravated arson. The same jury subsequently found defendant eligible for the death penalty under section 9-1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)). The jury further concluded, after hearing the evidence in aggravation and mitigation, that there were no mitigating factors sufficient to preclude the imposition of the death penalty, and the circuit court sentenced defendant to death. This court affirmed the convictions and sentence on direct appeal, and the United States Supreme Court denied certiorari. People v. Hudson, 157 Ill. 2d 401 (1993), cert. denied, 513 U.S. 844, 130 L. Ed. 2d 77, 115 S. Ct. 135 (1994).
Defendant thereafter timely filed a petition, to which an addendum was later filed, for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)). The State moved to dismiss the petition. After a hearing, the circuit court granted the State's motion with respect to all but one of the claims raised in the petition. As to the remaining issue, the circuit court ruled that, pursuant to this court's decision in People v. Mack, 167 Ill. 2d 525 (1995), defendant's death sentence had to be vacated and a new sentencing hearing had to be held as a matter of law. Both the State and defendant appealed the orders (see 134 Ill. 2d R. 651(a)), and this court consolidated the appeals.
Defendant's convictions stem from the June 7, 1983, murder and armed robbery of Folke Peterson. This court previously detailed the facts leading to defendant's convictions in our opinion on direct appeal. See Hudson, 157 Ill. 2d 401. In light of our disposition of the cause, we need not repeat those facts here. At the conclusion of the direct appeal proceedings, defendant filed, on April 3, 1995, a petition for post- conviction relief, which was amended on October 20, 1995. The petition contained allegations of ineffective assistance of both trial and appellate counsel, as well as a claim of gender discrimination during jury selection. Defendant subsequently filed an addendum to his amended petition, in which he raised an additional claim of ineffective assistance of appellate counsel based upon this court's decision in People v. Mack, 167 Ill. 2d 525 (1995).
The State moved to dismiss defendant's petition in its entirety. After hearing arguments on the motion, the circuit court granted the State's motion with respect to all of defendant's claims, with the exception of the claim involving the death-eligibility verdict. The court concluded that Mack compelled vacatur of defendant's death sentence and ordered a new sentencing hearing.
As noted previously, both the State and defendant appealed from the circuit court's order. Defendant's appeal concerns the propriety of the circuit court's dismissal, without an evidentiary hearing, of, inter alia, several claims pertaining to the guilt phase of his trial. We must consider these claims first, for if a new trial is necessary, then the need for the court-ordered new sentencing hearing (pursuant to Mack) is obviated.
We begin our discussion by noting the familiar principles involved in post-conviction proceedings. The Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)) provides a statutory remedy by which prisoners may collaterally attack a prior conviction and sentence. People v. Brisbon, 164 Ill. 2d 236, 242 (1995). The scope of the proceeding is limited to constitutional matters that neither have been, nor could not have been, previously adjudicated. Any issues which could have been raised on direct appeal, but were not, are procedurally defaulted (People v. Ruiz, 132 Ill. 2d 1, 9 (1989)), and any issues which have previously been decided by a reviewing court are barred by the doctrine of res judicata (People v. Silagy, 116 Ill. 2d 357, 365 (1987)). Nevertheless, this court recognized, in People v. Owens, 129 Ill. 2d 303, 317 (1989), that where fundamental fairness requires, "the rule of waiver will not be applied in post-conviction proceedings." This recognition was premised upon the United States Supreme Court's decision in Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). There, the Supreme Court described when it would be necessary for a court to consider the fundamental fairness principle when the prosecutor relies on a claim of waiver. As we explained in Owens, the Supreme Court noted that " `fundamental fairness' requires courts to review procedurally defaulted claims in collateral proceedings only when a defendant shows cognizable `cause' for his failure to make timely objection, and shows `actual prejudice' flowing from the error now complained of." Owens, 129 Ill. 2d at 317. See also People v. Mahaffey, No. 85215 (October 13, 2000); People v. Franklin, 167 Ill. 2d 1, 20 (1995).
To that end, this court has noted that the term "cause" denotes " ` "some objective factor external to the defense [that] impeded counsel's efforts" to raise the claim' in an earlier proceeding." People v. Flores, 153 Ill. 2d 264, 279 (1992), quoting McCleskey 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). Moreover, the United States Supreme Court has identified objective factors that constitute cause to include " ` "interference by officials" ' that makes compliance with the State's procedural rule impracticable, and `a showing that the factual or legal basis for a claim was not reasonably available to counsel.' [Citation.] In addition, constitutionally `[i]neffective assistance of counsel ... is cause.' [Citation.] Attorney error short of ineffective assistance of counsel, however, does not constitute cause ***." McCleskey, 499 U.S. at 493-94, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470. To establish actual prejudice, a petitioner "must show `not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.' " Murray, 477 U.S. at 494, 91 L. Ed. 2d at 412, 106 S. Ct. at 2648, quoting United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 832, 102 S. Ct. 1584, 1596 (1982). Moreover, even if a federal habeas petitioner cannot show cause and prejudice, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. In order to demonstrate a miscarriage of justice to excuse the application of the procedural bar, a petitioner must show actual innocence. See Sawyer v. Whitley, 505 U.S. 333, 120 L. Ed. 2d 269, 112 S. Ct. 2514 (1992). In the context of the death penalty, a defendant must show "by clear and convincing evidence that but for constitutional error, no reasonable juror would [have found him or her] eligible for the death penalty under [the applicable state] law." Sawyer, 505 U.S. at 348, 120 L. Ed. 2d at 285, 112 S. Ct. at 2523.
In addition to the procedural bars mentioned above, a defendant is not entitled to an evidentiary hearing unless the allegations set forth in the petition, as supported by the trial record or accompanying affidavits, make a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). The dismissal of a post- conviction petition is warranted only when the petition's allegations of fact-liberally construed in favor of the petitioner and in light of the original trial record-fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d at 382. On appeal, the circuit court's decision to dismiss the petition without an evidentiary hearing is subject to plenary review. Coleman, 183 Ill. 2d at 387-88.
Defendant maintains that he is entitled to a new trial because he was deprived of equal protection of the law under the fourteenth amendment to the United States Constitution by the State's alleged use of a peremptory challenge to exclude a juror on the basis of gender. The arguments of the parties with respect to this issue, as well as our resolution of it, necessitate a review of what occurred during jury selection.
During voir dire, the State exercised 11 peremptory challenges. The State excused five black venirepersons. See Hudson, 157 Ill. 2d at 428- 29. Six of the State's peremptory challenges were used to strike women. After voir dire, the jury consisted of seven women and five men. *fn1
The record reveals that, at the end of voir dire, defendant, relying on Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), moved to strike the jury on the grounds that the State had engaged in purposeful racial discrimination in exercising its peremptory challenges. Although the trial judge stated that he did not believe that defendant had established a prima facie case of racial discrimination during voir dire, he asked the prosecutor to state on the record his reasons for striking the prospective African-American jurors. One of these prospective jurors was Robin Praser, a female. The trial judge ultimately denied the Batson challenge on the basis that the State's reasons for striking the venirepersons in question were race-neutral.
This court, on direct appeal, rejected defendant's contention that the State had engaged in purposeful racial discrimination during voir dire. See Hudson, 157 Ill. 2d at 424-34. We issued our decision on defendant's direct appeal on November 18, 1993, and denied defendant's subsequent petition for rehearing on January 31, 1994. Defendant then filed a petition for writ of certiorari before the United States Supreme Court, which was denied on October 3, 1994. While that petition was pending, however, the Supreme Court issued its decision in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), in which the Court held that the equal protection clause of the fourteenth amendment prohibited gender discrimination by the State during jury selection.
In his post-conviction petition, defendant relied on J.E.B. to argue that the State had engaged in gender discrimination during voir dire because venireperson Praser had been excluded on the basis of gender. The circuit court dismissed this claim on the ground that defendant had failed to make a prima facie showing of gender discrimination. The court also stated, alternatively, that defendant had waived the claim because he had failed to raise it on direct appeal.
In analyzing defendant's claim, we must first determine whether the holding in J.E.B. applies to this case. As this court has previously noted, judicial opinions announcing new constitutional rules applicable to criminal cases are retroactive to all cases pending on direct review at the time the new constitutional rule is declared. People. v. Erickson, 117 Ill. 2d 271, 288 (1987), citing Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). In Griffith, the Supreme Court ruled that its decision in Batson applied retroactively to all cases, state or federal, pending on direct review or not yet final. Given that J.E.B. is an extension of Batson, we believe that Griffith controls on the question of retroactivity. Defendant's petition for writ of certiorari was pending when the Court decided J.E.B; consequently, the constitutional rule announced in J.E.B. is applicable. See People v. Blackwell, 164 Ill. 2d 67, 74 (1995).
Having decided that the holding in J.E.B. applies to the case at bar, we must next determine whether defendant, as the State suggests, has procedurally defaulted the claim due to his failure to raise the issue on direct appeal. We note that defendant has established cause for his failure to raise the issue on direct appeal. Although arguments concerning gender bias during voir dire had been raised in other appellate cases at the time of defendant's direct appeal (see People v. Washington, 257 Ill. App. 3d 26, 31-34 (1993); People v. Mitchell, 228 Ill. App. 3d 917, 927 (1992), aff'd in part, vacated in part & cause remanded, 155 Ill. 2d 344, 356-57 (1993)), the United States Supreme Court did not definitively speak to the issue until its decision in J.E.B., which was announced while defendant's petition for certiorari was pending. Defendant therefore has established cause, as he is seeking to assert a legal claim the basis of which was not readily available to counsel at the time the direct appeal was taken.
We must next determine whether defendant has established the requisite prejudice in this matter. As we explain below, we believe that an evidentiary hearing is needed in order to determine if defendant has established the needed prejudice to excuse the procedural default.
The crux of defendant's claim is that the State discriminated against venireperson Praser because of her gender. According to the Supreme Court's decision in J.E.B., a defendant must first make a prima facie showing that the State exercised the peremptory challenge to exclude the venireperson on account of gender. J.E.B., 511 U.S. at 144-45, 128 L. Ed. 2d at 106-07, 114 S. Ct. at 1429. As in a Batson challenge, if the trial court determines that a prima facie case has been made, the burden then shifts to the State to provide a gender-neutral explanation for the challenge at issue. J.E.B., 511 U.S. at 144-45, 128 L. Ed. 2d at 106-07, 114 S. Ct. at 1429. The State's explanation need not rise to the level justifying a challenge for cause, but must be based on a juror characteristic other than gender and cannot be pretextual. J.E.B., 511 U.S. at 145, 128 L. Ed. 2d at 107, 114 S. Ct. at 1430. The Supreme Court has clarified that in order to satisfy this second step, "a `legitimate reason' is not a reason that makes sense, but a ...