Appeal from the Circuit Court of Cook County No. 94 CR 16717 Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
delivered the judgment of the court, with opinion. Justices Lampkin and Palmer concurred in the judgment and opinion.
¶ 1 Defendant Wayne Edwards appeals from the denial of a motion for leave to file a successive post-conviction petition. The defendant was found guilty by a jury of criminal drug conspiracy and sentenced to 30 years in prison. While his direct appeal was pending, the defendant filed a pro se post-conviction petition, which the circuit court summarily dismissed. His appeal from the dismissal of his first post-conviction petition was consolidated with his direct appeal. We affirmed his conviction and the dismissal of his petition. Thereafter, the defendant sought leave to file a second post-conviction petition in which he raised claims of ineffective assistance of trial counsel, appellate counsel, post-conviction counsel, circuit court error in its ruling on his first petition, and denial of due process. The circuit court denied leave to file the petition. Following the timely filing of his pro se motion to reconsider the denial of leave to file a successive petition, the defendant retained counsel, who filed a second amended motion to reconsider and reinstate the successive petition. While post-conviction counsel's motion was pending, the defendant filed pro se a third amended motion for leave to file the successive post-conviction petition. He alleged cause and prejudice were demonstrated when the statute of limitations in effect at the time for filing post-conviction petitions expired before his direct appeal was resolved. As a result, his claim that appellate counsel rendered ineffective assistance could only be raised in a successive post-conviction petition. Following a hearing, the circuit court concluded the defendant failed to meet the cause and prejudice test to file a successive petition. We affirm.
¶ 3 On June 6, 1994, the defendant, with four co-defendants, was charged by indictment with multiple counts of criminal drug conspiracy. The charges arose from drug sales by a street gang on the west side of Chicago. The indictment alleged that the defendant organized and supervised the wholesale and street-level retail distribution of heroin for the street gang. According to the indictment, the defendant oversaw the procurement, cutting, packaging, and distribution of the heroin and had others arrange meetings with individuals seeking to purchase heroin.
¶ 4 On October 15, 1997, a jury found the defendant guilty of criminal drug conspiracy to deliver between 5 and 10 grams of heroin. He was also found guilty of conspiring to possess at least 15 grams but less than 100 grams of heroin with the intent to deliver. The circuit court sentenced the defendant to 30 years in prison. The defendant filed a timely notice of appeal.
¶ 5 On October 11, 2000, while his direct appeal was pending, the defendant filed his initial pro se post-conviction petition. The statute of limitations then in effect under section 122-1(c) of the Post-Conviction Hearing Act (Act) required the filing of a post-conviction petition within three years of the date of conviction. 725 ILCS 5/122-1(c) (West 2000) ("No proceedings under this Article shall be commenced more than *** 3 years from the date of conviction ***."). The defendant alleged in his petition that the trial judge violated his constitutional rights by threatening to sentence him to the maximum 30-year prison term if he refused the judge's offer of a 29-year sentence in exchange for a guilty plea. The circuit court summarily dismissed the initial petition on November 29, 2000. The defendant's appeal from the summary dismissal of his first post-conviction petition was consolidated with his direct appeal.
¶ 6 On November 26, 2002, this court affirmed the defendant's conviction and the summary dismissal of his initial post-conviction petition. People v. Edwards, 337 Ill. App. 3d 912 (2002). In the unpublished portion of the opinion, we held that the defendant's initial post-conviction petition was subject to summary dismissal because it was unsupported by affidavits, records, or other evidence and provided no explanation for the absence of the required supporting documentation.
¶ 7 On April 13, 2004, the defendant filed his pro se motion seeking leave to file a successive post-conviction petition. The successive petition included allegations of ineffective assistance of appellate counsel grounded in part on this court's opinion that certain issues raised on appeal lacked citation to the record or legal authority, which resulted in the issues being forfeited. The defendant also faulted appellate counsel for failing to raise several trial errors and instances of trial counsel's ineffectiveness.
¶ 8 On July 14, 2004, the circuit court denied the defendant's request for leave to file the successive petition. On August 2, 2004, the defendant filed a motion to reconsider the circuit court's denial, arguing (1) the court erred by dismissing his petition sua sponte after more than 90 days had passed since the filing of his petition in violation of section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 2004)), (2) the court erred by ruling on his petition when a motion for substitution of judge was pending, and (3) he did not receive notice of the denial of his petition within 10 days as required by section 122-2.1(a)(2) of the Act.
¶ 9 On August 12, 2004, the defendant filed a notice of appeal from the July 14, 2004 order. While the appeal was pending, retained counsel filed on April 11, 2005, a "Corrected Second Amended Motion to Reinstate Post Conviction Petition Because Any Order Of Dismissal Was Void," reasserting that the dismissal of the successive petition was not entered within the statutorily prescribed 90 days of the filing of the successive post-conviction petition and that the defendant was not given notice of the dismissal within 10 days of its entry as provided by statute. This court dismissed the appeal as premature because the August 2, 2004 motion to reconsider remained pending before the circuit court.
¶ 10 On August 23, 2007, retained counsel appeared before the circuit
court to seek resolution of the pending motions. On February 27, 2009,
before the pending motions were resolved, the defendant filed pro se a
"Corrected 3rd Amended Motion to Reinstate Petition for Leave to file
a Successive Post Conviction Petition under § 122-1(f)." The defendant
argued he satisfied the statutory cause and prejudice test of the Act.
He claimed cause to permit the filing of a successive post-conviction
petition based on the impending expiration of the statute of
for the filing of post-conviction petitions in 2000,
which forced him to file his initial post-conviction petition while his
direct appeal was pending. 725 ILCS 5/122-1(c) (West 2000). The
defendant claimed he demonstrated prejudice by the meritorious claims
of ineffectiveness of appellate counsel he raised, which would escape
review if leave to file a successive post-conviction petition were not
granted and thus violate his due process rights. 725 ILCS 5/122-1(f)
¶ 11 On May 21, 2009, the circuit court heard argument on the defendant's motion to reconsider the denial of his successive petition. The court characterized the defendant's motion to reconsider as a consolidated motion for leave to file a successive petition. The court denied the defendant's motion. The court vacated its order of July 14, 2004, leaving the order of ...