Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 99 CR 10066
Honorable Neera L. Walsh, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Deepa Punjabi, of State Appellate Defender’s Office, of
Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State’s
Attorney, of Chicago (Alan J. Spellberg Annette Collins and
Joseph Alexander, Assistant State’s Attorneys, of
counsel), for the People.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Pierce concurred in the
judgment and opinion.
1 Following a 2000 jury trial, defendant, Rory Cook, was
convicted of first degree murder and sentenced to 30
years' imprisonment. We affirmed on direct appeal.
People v. Cook, 352 Ill.App.3d 108 (2004). We
affirmed the dismissal of his 2005 postconviction petition
and the denial of leave to file a successive postconviction
petition in 2012. People v. Cook, 2013 IL App. (1st)
111551-U; People v. Cook, 2015 IL App. (1st)
123236-U. We also affirmed the denial of defendant's 2013
pro se "Motion for Prosecutorial Misconduct,
" denial of his 2014 mandamus petition, denial of his
2015 motion for forensic testing, and dismissal of his 2015
petition for relief from judgment.
2 Defendant now appeals from the circuit court's
disposition of his pro se "Motion for New Trial
for Newly Discovered Evidence, State's Miscarriage of
Justice for Witholding [sic] Evidence in Defendants
[sic] Judicial Proceedings." Defendant's
contention is that the court erred in recharacterizing his
motion as a successive postconviction petition and denying
leave to file it without first notifying him and giving him
an opportunity to withdraw or amend it. For the reasons
stated below, we vacate the denial of leave to file and
remand for the requisite notice and opportunity to withdraw
or amend the motion.
3 I. BACKGROUND
4 Defendant filed his "Motion for New Trial for Newly
Discovered Evidence, State's Miscarriage of Justice for
Witholding [sic] Evidence in Defendants
[sic] Judicial Proceedings" on December 31,
2015. He did not name or cite any statute as a basis for the
filing. In the motion, defendant claimed newly discovered
evidence showed he was not proved guilty beyond a reasonable
doubt, he was actually innocent, and he was wrongfully
convicted. Defendant claimed he was denied a fair trial and
due process of law because the State withheld evidence from
the jury and made prejudicial, inflammatory, and erroneous
statements in closing argument, and the trial court erred in
denying his motion to suppress. Defendant did not support the
motion with attachments.
5 On April 1, 2016, the circuit court issued an order finding
that defendant's filing of December 31, 2015, asserted
constitutional claims as a collateral attack on his
conviction and characterized the filing as a successive
postconviction petition. In the same order, the court denied
leave to file the petition, finding defendant's claims
barred by waiver and res judicata and he did not
state the requisite cause and prejudice for a successive
6 II. ANALYSIS
7 On appeal, defendant's sole contention is that the
court erred by recharacterizing his pro se
"pleading" as a successive postconviction petition
without notice and an opportunity to amend or withdraw the
"pleading, " as required by People v.
Shellstrom, 216 Ill.2d 45 (2005), and People v.
Pearson, 216 Ill.2d 58 (2005). The State does not
dispute that the court characterized defendant's filing
as a successive postconviction petition without providing
said notice and opportunity. It contends, however, that the
court was not required to do so because defendant's
filing was not a pleading commencing an action cognizable
under Illinois law. See id. at 68 (holding the
three-step Shellstrom notice procedure applies to
"recharacterizing as a successive postconviction
petition a pleading that a pro se litigant
has labeled as a different action cognizable under
Illinois law" (emphases added)).
8 The Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1(a)(1) (West 2016)) allows a defendant to file a
petition claiming that "in the proceedings which
resulted in his or her conviction there was a substantial
denial of his or her rights under the Constitution of the
United States or of the State of Illinois or both."
Generally, a defendant may file only one petition under the
Act without leave of court, and claims not raised in an
initial petition as amended are waived. Id.
§§ 122-1(f), 122-3. Leave to file a successive
petition is granted if the defendant can show cause for not
raising the new claim in an earlier proceeding and
prejudice-a deprivation of due process-from not raising it
earlier. Id. § 122-1(f). Thus, the requirements
for filing a successive postconviction petition are higher
than those for an initial postconviction petition. See
Shellstrom, 216 Ill.2d at 55-56 (cause-and-prejudice
test is "not easy to overcome"); Pearson,
216 Ill.2d at 68 ("rigorous standards of a successive
9 It is well settled that the circuit court can
recharacterize a pro se pleading alleging a
deprivation of rights cognizable in a postconviction
proceeding but not labeled a postconviction petition, even
one clearly labeled as something ...