2025 IL App (2d) 240640-U No. 2-24-0640 Order filed December 3, 2025
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 09-CF-2452 ) ROBERT J. BUNCH, ) Honorable ) George D. Strickland Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice Kennedy and Justice Mullen concurred in the judgment.
ORDER
¶1 Held: The circuit court properly denied defendant’s petition for leave to file a successive postconviction petition, as the petition was deficiently pleaded, unreasonable assistance of prior postconviction counsel is not a cognizable claim, and case law does not support reviving defendant’s pro se allegations. Affirmed.
¶1 Defendant, Robert J. Bunch, appeals from the circuit court’s order denying him leave to
file a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2022)). Defendant contends he adequately alleged cause and prejudice, was
subjected to tiers of ineffective and unreasonable assistance of counsel, and was denied an
adequate opportunity to collaterally attack his conviction. Moreover, he asserts that the circuit 2025 IL App (2d) 240640-U
court misapprehended the law when it denied his petition and improperly engaged in “fact finding”
at the leave-to-file stage. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 A. Trial and Direct Appeal
¶4 In 2011, defendant was represented by private counsel, James Schwarzbach and Lawrence
Wade, and convicted of first degree murder (725 ILCS 5/9-1(a)(1) (West 2008)) under a theory of
accountability. Defendant was sentenced to 38 years’ imprisonment. See People v. Bunch, 2012
IL App (2d) 110404-U. In his post-trial motion, defendant alleged, inter alia, that (1) audio tapes
between defendant, witness Ebony Moore, and co-defendant Lorenzo White, and the Sprint
telephone records were admitted without proper foundation; (2) White’s testimony was improperly
admitted in contravention of his fifth amendment rights; (3) witness Ethyl Amos’ redacted
statement was improperly admitted as a prior inconsistent statement; (4) White’s and Moore’s
audio recordings were improperly admitted under the coconspirator exception to the hearsay rule;
(5) the court precluded defendant from raising an alibi defense and cross-examining the State’s
witnesses in line with this defense; (6) the court erred by providing Illinois Pattern Jury
Instructions, Criminal, Nos. 5.03, 5.03A, 7.01, 7.02, 26.01, and 11.54 (4th ed. 2000) (hereinafter,
IPI Criminal 4th); and (7) the court erred in denying his Batson challenge (Batson v. Kentucky,
476 U.S. 79 (1986)).
¶5 On direct appeal, appellate counsel argued only that the circuit court erred when it denied
defendant’s Batson challenge, and the court improperly imposed a DNA analysis fee. This court
affirmed the circuit court’s ruling but vacated the DNA analysis fee. See Bunch, 2012 IL App (2d)
110404-U, ¶¶ 14-16.
¶6 B. First Postconviction Petition and Appeal
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¶7 On December 10, 2012, defendant filed a pro se postconviction petition, alleging (1) the
State committed a Brady violation (Brady v. Maryland, 373 U.S. 83 (1963)), where White
previously told prosecutors that defendant was not involved in the murder; (2) ineffective
assistance of trial counsel where counsel failed to present Amos’ recantation affidavit at trial and
failed to investigate and locate Michelle Pierson, an eyewitness to the murder; (3) ineffective
assistance of appellate counsel for failing to raise trial counsels’ ineffectiveness; (4) improper
denial of White’s fifth amendment rights; (5) newly-discovered evidence of actual innocence from
Pierson indicating that defendant was not involved in the murder; (6) improper admission of audio
recordings and Sprint telephone records without the necessary foundation; (7) the court improperly
precluded defendant from presenting an alibi defense and cross-examining the State’s witnesses
in line with that defense; and (8) denial of a fair trial, where the court utilized improper jury
instructions (IPI Criminal 4th Nos. 5.03, 5.03A, 7.01, 7.02, 26.01, and 11.54).
¶8 On March 7, 2013, the court advanced defendant’s petition to second-stage proceedings,
having found the petition stated the gist of a constitutional violation. Thereafter, the court
provisionally appointed the public defender, pending an investigation of a potential conflict of
interest. Specifically, the public defender’s office was investigating whether a conflict existed by
representing defendant in his postconviction petition, where it had previously represented the co-
defendant, White, at trial. Ultimately, assistant public defender Erin Deeley was appointed;
however, shortly after her appointment, on May 20, 2013, defendant asked private counsel,
Schwarzbach and Wade (his trial attorneys), to represent him. Both private attorneys explained to
the court that their own conflict analysis would be undertaken, as defendant’s pro se claims of
ineffectiveness implicated their representation. Nonetheless, both attorneys believed that
defendant would abandon his claims of ineffectiveness, as “he [w]as attempting to champion the
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issues [sic] of newly discovered evidence.” In response, Deeley indicated that she discontinued
working on defendant’s case and advised him “about potential conflicts.” At the conclusion of the
hearing, the court granted Deeley leave to withdraw.
¶9 Thereafter, defendant’s private attorneys sought additional time to speak with him about
his claims and the potential conflict of interest. The court refused to bring defendant to court for
future status hearings regarding the conflict, noting “[i]f he tells you that he wants you to raise the
ineffective assistance claim, you then ethically have to remove yourself.” Alternatively, the court
further noted, if defendant waived his ineffective-assistance-of-counsel claim due to the conflict,
it need not hold another hearing to discuss the matter further; rather, defense counsel “w[ould]
submit an amended petition without [that claim].”
¶ 10 On August 20, 2013, defendant’s private attorneys moved to withdraw, due to a conflict of
interest. The court granted the motion and reappointed the public defender’s office. John Hock
appeared on behalf of defendant.
¶ 11 On May 14, 2015, Hock amended defendant’s postconviction petition, asserting only two
freestanding claims of actual innocence. Since defendant’s trial, he obtained affidavits from
Tashanda Mason and White averring that defendant did not commit the murder. Counsel did not
incorporate by refence defendant’s pro se claims. Additionally, he filed a Rule 651(c) certificate
(Ill. S. Ct. R. 651(c) (eff. July 1, 2017)), affirming that he consulted with defendant, examined the
record of the trial proceedings, and made any necessary amendments to the pro se petition. On
June 22, 2015, the State moved to dismiss the postconviction petition, asserting that the evidence
was not newly discovered, but, rather, cumulative of evidence adduced at trial. Defendant,
thereafter, replied that the State argued only factual and credibility issues, which were not ripe for
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second-stage review. On November 19, 2015, the court denied the State’s motion to dismiss and
advanced defendant’s postconviction petition to the third stage.
¶ 12 On February 10, 2016, the day of defendant’s scheduled third-stage hearing, defendant
notified the court that he wished to rehire Schwarzbach and Wade as postconviction counsel. The
court continued the cause for the attorneys’ entry of appearance. On February 25, 2016, another
attorney, David Weinstein, filed his appearance, and the court discharged the public defender’s
office. On June 6, 2016, Weinstein moved to withdraw. The court granted the motion and, on
September 7, 2016, reappointed the public defender (Hock).
¶ 13 On March 21, 2017, while still in second-stage proceedings, Hock sought leave to file a
supplemental postconviction petition adding an affidavit from witness, Charmin Tillman, to
defendant’s pending actual-innocence claim. Three months later, the court granted defendant leave
to file the supplemental petition.
¶ 14 On August 25, 2017, the court conducted a stage-three hearing, heard testimony from
White, and reviewed affidavits from Tillman and Mason. White testified that, on the night of the
murder, he was already incarcerated in Lake County jail. There, he called Moore and had her
initiate a three-way call with Anton Robinson. While on the phone, White and Robinson discussed
framing defendant, as Robinson agreed to beat up White’s brother and retrieve some property.
White indicated that the phone records admitted at defendant’s trial showed that defendant and
White talked the night of the murder, and White testified that he asked defendant to beat up his
brother; however, White did not believe defendant would carry out his request. White orchestrated
framing defendant because he was angry at defendant, as defendant owed him money. After the
murder, White called Robinson from a correction officer’s phone. On the call, Robinson admitted
to killing the victim. Robinson did not indicate that defendant was with him during the murder.
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White did not disclose this information, or information about the three-way call, to the State before
he testified against defendant.
¶ 15 On February 16, 2018, the court denied defendant’s petition. The court found that while
the evidence was noncumulative and newly discovered, the affidavits of Tillman and Mason were
unreliable, untested (as the affiants failed to appear for the third-stage hearing), and would not
have changed the outcome at trial. Regarding White’s testimony, the court found he was not a
credible witness, as his testimony contradicted the reliable telephone evidence, which
demonstrated that the conversations between defendant, White, and Moore “interlocked” with each
other and consistently discussed defendant’s, not Robinson’s, commission of the crime. Defendant
timely appealed the denial of his petition.
¶ 16 On appeal, defendant was represented by the Office of the State Appellate Defender,
specifically the same attorney who handled his direct appeal. On September 16, 2019, counsel
moved to withdraw, pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). This court granted
defense counsel’s motion and dismissed the case on December 13, 2019. People v. Bunch, 2019
IL App (2d) 180144-U.
¶ 17 C. Successive Postconviction Petition
¶ 18 On March 15, 2023, attorney Jed Stone entered his appearance in defendant’s case, and, a
week later, filed a motion for leave to file a successive postconviction petition. Therein, defendant
argued that he established cause, where his postconviction attorney acted unreasonably by (1)
abandoning defendant’s pro se claims after filing an amended postconviction petition, (2) failing
to raise claims of ineffective assistance of appellate counsel, and (3) being per se conflicted.
Separately, he asserted that he was prejudiced, where (1) he was denied a fair trial because the
court considered unauthenticated telephone records, which were never connected to him; (2) the
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State failed to correct the perjury of its witness, Moore; (3) the State committed prosecutorial
misconduct when it misstated the facts, called defendant a “killer,” and called defendant’s
witnesses liars; and (4) the State committed a Brady violation by failing to disclose authenticating
witness, Dina Navarro, counsel improperly failed to challenge Navarro’s testimony, and counsel
improperly failed to challenge the admission of his phone records, where the phone was seized 18
months prior to its search. Also, within the motion for leave, defendant alternatively requested that
he be granted leave to amend his initial pro se petition and proceed to second-stage proceedings
as to his abandoned pro se claims.
¶ 19 On July 20, 2023, defense counsel filed a “Memorandum of Law in Support of
[Defendant]’s Motion for Leave to File a Successive (or Second) Post-Conviction Petition, as
Requested by This Honorable Court.” Therein, defendant asserted that he was entitled to a
“rehearing” of his initial postconviction petition because his pro se claims of error were improperly
abandoned by counsel at the second stage, which amounted to unreasonable assistance of
postconviction counsel.
¶ 20 On August 3, 2023, a hearing was held on defendant’s motion for leave to file a successive
postconviction petition, and the court denied it. Regarding defendant’s phone calls, the court found
that a sufficient foundation was laid to introduce audio from defendant’s calls because he testified
that it was his voice on the calls. Further, trial counsel and appellate counsel were not ineffective
for failing to challenge the admission of the phone records, where their admission would not have
changed the result of the case on retrial because defendant admitted that his voice was on the
recorded call. The circuit court also concluded that defendant waived this issue, as it was not raised
on direct appeal or in the initial postconviction proceedings. Next, the court found White’s
testimony not credible, thus, his testimony would not likely change the result on retrial.
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¶ 21 As to any potential perjury, prosecutorial misconduct, and counsel’s failure to file a motion
to suppress evidence because defendant’s phone was searched 18 months after it was seized, the
court found that these issues were known “beginning at the trial and then going through the first
appeal, first post conviction [sic] and then the second appeal,” and were therefore waived.
Additionally, as to prosecutorial misconduct, defendant’s jury was given corrective instructions.
Regarding the allegations of perjury, Moore was impeached regarding her inconsistent statements
at trial, and her statements would not have changed the result of the case. Finally, as to the motion
to suppress, the court found there were no facts (apart from the length of time) that challenged the
veracity of the search warrant.
¶ 22 The court also found that defendant’s claims that postconviction counsel operated under a
per se conflict are not cognizable under the Act, as it requires that “the postconviction petition
must be aimed at the proceedings which resulted in the conviction.” 725 ILCS 5/122-1(a)(1) (West
2022). Moreover, the court found that no per se conflict existed. The court also found that
defendant’s attorneys were not unreasonable or ineffective, where they failed to pursue defendant’s
other pro se postconviction claims because the claims were non-constitutional. These claims,
according to the court, were also waived, as defendant’s postconviction and appellate counsel were
aware of the claims and did not pursue them.
¶ 23 On September 1, 2023, defendant timely filed a motion to reconsider the denial of his
motion for leave to file a successive postconviction petition. Therein, defendant argued that the
circuit court utilized an incorrect standard in making its decision, improperly engaged in fact
finding, and misstated the facts and the law. Appended to the motion to reconsider was a “draft”
for a second successive postconviction petition.
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¶ 24 On June 3, 2024, defendant formally filed a second motion for leave to file a successive
postconviction petition, alleging his actual innocence based on an affidavit from Pierson, stating
that defendant did not commit the murder.
¶ 25 Three months later, on September 25, 2024, the court held a hearing addressing defendant’s
motion to reconsider the denial of leave to file his first successive postconviction petition and
defendant’s second motion for leave to file a successive postconviction petition (alleging actual
innocence). Importantly, here, the court denied the motion to reconsider primarily basing its ruling
on defendant’s failure to establish cause and prejudice and, secondarily, on waiver. The court also
noted that it did not engage in any improper credibility findings, as it considered only the well-
pleaded facts regarding prejudice. However, the court granted defendant leave to file his second
successive postconviction petition. 1
¶ 26 On October 24, 2024, defendant filed a timely notice of appeal in this case.
¶ 27 II. ANALYSIS
¶ 28 Defendant alleges that he sufficiently showed cause and prejudice to warrant granting him
leave to file his successive postconviction petition. Defendant also argues that the court
misinterpreted the law, misapplied waiver, and improperly made factual determinations at the
leave-to-file stage. Next, defendant raises unreasonable- and ineffective-assistance-of-counsel
claims, based on “tiers” of deficient performance by his prior attorneys. Finally, as an alternative
1 On October 18, 2024, defendant filed a motion to stay proceedings of his actual-innocence case
while an appeal was taken on the denied motion to reconsider. The court, ultimately, granted defendant’s
motion to stay.
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remedy, defendant asserts that his pro se petition should be restored to second-stage proceedings
because his postconviction attorney abandoned his pro se claims for relief.
¶ 29 In response, the State alleges pleading deficiencies with defendant’s motion for leave to
file a successive petition and procedural bars to defendant’s claims. Moreover, the State asserts
that initial postconviction counsel was not obligated to raise defendant’s pro se claims, nor do
those claims now establish cause and prejudice. Finally, the State argues that defendant’s pro se
claims should not be returned to second-stage proceedings, as he obtained a full and fair third-
stage hearing on his petition.
¶ 30 For the following reasons, we conclude that defendant’s successive petition is deficiently
pleaded. In accordance with section 122-1(f) of the Act and People v. Pitsonbarger, 205 Ill. 2d
444, 456 (2002), a successive postconviction petition must allege claims for relief, and, regarding
each claim, a defendant must “identify[] an objective factor that impeded his or her ability to raise
a specific claim during his or her initial post-conviction proceedings” and “show[] prejudice by
demonstrating that the claim not raised during his or her initial post-conviction proceedings so
infected the trial that the resulting conviction or sentence violated due process.” 725 ILCS 5/122-
1(f) (West 2022) (emphasis added). Defendant has failed to assert claims for relief that relate to
individual allegations of cause and prejudice. This is fatal to his appeal. Additionally, we conclude
that the circuit court did not err in denying defendant’s leave to file a successive postconviction
petition; defendant’s claims of unreasonable and ineffective assistance of counsel, as alleged here,
are not cognizable under the Act; and defendant’s pro se petition should not be revived at the
second stage.
¶ 31 A. Pleading Cause and Prejudice
¶ 32 1. Legal Standard
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¶ 33 The Act provides a procedural mechanism for a defendant to challenge his conviction and
sentence, where there was a substantial violation of his federal or state constitutional rights. People
v. Coleman, 183 Ill. 2d 366, 378-79 (1998); People v. Davis, 2014 IL 115595, ¶ 13. However, the
Act contemplates the filing of only a single petition. Pitsonbarger, 205 Ill. 2d at 456; 725 ILCS
5/122-1(f) (West 2022). Successive petitions are disfavored, as any claim of a substantial denial
of a constitutional right not raised in the original petition is deemed waived. People v. Coleman,
2013 IL 113307, ¶ 81. This statutory bar will be relaxed only when fundamental fairness requires
it. Id.
¶ 34 A successive filing requires leave of court. 725 ILCS 5/122-1(f) (West 2022). For leave to
be granted, a defendant must make a prima facie showing of both cause and prejudice—cause for
the failure to raise the claims in the initial petition and prejudice resulting from the claimed errors.
Id. The cause-and-prejudice test is a higher burden than the frivolous-or-patently-without-merit
standard for initial postconviction pleadings. People v. Edwards, 2012 IL 111711, ¶¶ 24-29. To
establish cause, a defendant must show “an objective factor that impeded his or her ability to raise
a specific claim during his or her initial post-conviction proceedings.” 725 ILCS 5/122-1(f) (West
2022). To establish prejudice, a defendant must show the claimed constitutional error “so infected
the trial that the resulting conviction or sentence violated due process.” Id. A defendant must
establish cause and prejudice as to each individual claim asserted in a successive postconviction
petition to circumvent res judicata and waiver principles. Pitsonbarger, 205 Ill. 2d at 463 (this
rule was subsequently codified into statute when the General Assembly passed section 122-1(f) of
the Act). We review the circuit court’s denial of a motion for leave to file a successive
postconviction petition de novo. People v. LaPointe, 365 Ill. App. 3d 914, 923 (2006).
¶ 35 2. Defendant’s Pleading Approach
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¶ 36 In defendant’s opening brief, he disjointedly alleges that he made “both a ‘gist’ showing
and a prima facie showing” of “cause” for his late filing and separate allegations of “prejudice.”
Defendant failed to assert claims for relief and justify each individual claim under the cause-and-
prejudice standard. Moreover, no allegation of cause is related to any single allegation of prejudice.
As to cause, defendant asserts two reasons for his late filing: (1) “[postconviction] [c]ounsel failed
to amend his pro se claims and subjected [defendant] to procedural bars, and (2) [postconviction]
[c]ounsel performed under a per se conflict where he was tasked with challenging the precise
testimony procured by his office in earlier proceedings.” Regarding his separate allegations of
prejudice, defendant argues he sufficiently pleaded prejudice in four ways: (1) “the cellphone was
attenuated from [defendant] and the recordings were absent proper authentication”; (2) “[the
defense] was ambushed by an undisclosed witness [Navarro] who laid the foundation for the
cellphone used in the recordings, but possessed exculpatory information”; (3) “[t]rial [c]ounsel
was ineffective for failing to object to [witness] Navarro’s testimony and failing to examine her”;
and (4) “[t]rial [c]ounsel should have moved to suppress the fruits of a search warrant obtained 18
months after the State had the item in their possession.” Also, within his prejudice argument, he
attempts to incorporate additional contentions of prejudice by reference to the circuit court record.
¶ 37 In response, the State argues that defendant “asserted one set of arguments as to cause, and
a disconnected array of arguments on prejudice,” thus, the “circuit court was not obligated to
attempt to assemble [defendant’s arguments] into individuals claims for his benefit.” Thereafter,
in reply, defendant argues an additional reason for cause—that he received ineffective assistance
of appellate counsel—and that no case law requires a nexus between cause and prejudice. We
agree with the State.
¶ 38 3. Analysis of the Pleadings - Generally
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¶ 39 In Pitsonbarger, the supreme court held that “the fundamental fairness exception applies
to claims, not to petitions, and the cause-and-prejudice test must be applied to individual claims,
not to the petition as a whole.” Pitsonbarger, 205 Ill. 2d at 462. “That is, [a defendant] must show
how the deficiency in the first proceeding affected his ability to raise each specific claim.” Id. at
463.
¶ 40 Here, defendant fails to make that showing. Defendant’s claimed cause for filing his motion
for leave to file a successive petition do not relate to his allegations of prejudice, nor does defendant
show how his proposed prejudicial errors “so infected the trial” that his constitutional rights were
violated. See 725 ILCS 5/122-1(f) (West 2022). Rather, defendant makes no connection or
individual analysis of cause and prejudice as to each of his proposed claims for relief. For example,
as to cause, defendant alleged unreasonable assistance of postconviction counsel and that same
counsel also operated under a per se conflict. However, he does not indicate how these allegations
excused his failure to allege any presently listed claim in his initial postconviction petition. Instead,
we, like the circuit court, would be obligated to connect these disjointed arguments to meet the
pleading requirements. We decline to do so.
¶ 41 4. Failure to Sufficiently Plead Ineffective Assistance of Counsel
¶ 42 In addition to defendant’s failure to properly plead cause and prejudice, he has also failed
to sufficiently plead ineffective assistance of counsel. Within defendant’s opening brief, he alleges
that unreasonable assistance of postconviction counsel and a per se conflict are sufficient to
establish prejudice under the cause-and-prejudice standard. However, neither a conflict of interest
nor unreasonable assistance of postconviction counsel, as alleged here, are complete justifications
that excuse defendant’s failure to allege, in the initial postconviction petition, prejudicial trial
errors (failure to authenticate evidence, object to witness testimony, allege discovery violations,
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and file a motion to suppress). Instead, to establish a complete claim, defendant should have
alleged ineffective assistance of trial and appellate counsel, along with unreasonable assistance of
postconviction counsel. Defendant failed to do that here. Rather, for most of his claims, defendant
failed to allege any form of ineffective assistance of trial or appellate counsel. And, to the extent
that he raised ineffective assistance of trial counsel for failing to object to testimony from, or failing
to examine, Navarro, he failed to also allege ineffective assistance of appellate counsel.
Defendant’s failure to sufficiently allege both ineffective assistance of trial and appellate counsel
is fatal to his case.
¶ 43 Defendant asserts in his reply brief that he argued ineffective assistance of appellate
counsel as to cause, however, this is neither supported by defendant’s opening brief, related to
individual claims, nor a complete savings clause for the error. First, as to “cause,” defendant failed
to argue ineffective assistance of appellate counsel at all in his opening brief. As such, there were
also no arguments framing defendant’s individual claims of prejudice within the lens of ineffective
assistance of appellate counsel. Instead, defendant attempts to incorporate by reference claims of
ineffective assistance of appellate counsel and allegations of prejudice made in his motion for leave
to file a second successive postconviction petition and his “draft” petition. Defendant fails to raise
these contentions on appeal with citation to relevant legal authority. Accordingly, defendant’s
attempts to incorporate additional claims of prejudice and ineffective assistance of appellate
counsel into his appellate brief are forfeited. See Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993)
(“A reviewing court is entitled to have issues clearly defined with pertinent authority cited and
cohesive arguments presented (134 Ill. 2d R. 341(e)(7) [eff. Oct. 1, 2020]), and it is not a repository
into which an appellant may foist the burden of argument and research [citation]; it is neither the
function nor the obligation of this court to act as an advocate or search the record for error
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[citation].”); People v. Dorsey, 2021 IL 123010, ¶ 70 (issues not raised in a motion for leave to
file a successive postconviction petition are forfeited); People v. Harris, 2024 IL 129753, ¶ 63
(noting that points raised for the first time on reply are, generally, forfeited). Accordingly, any
attempt by defendant to backdoor ineffective-assistance-of-counsel arguments into his motion for
leave to file a successive postconviction petition or opening brief are forfeited.
¶ 44 5. Defendant’s Allegations of Cause do not Justify his Successive Filing
¶ 45 Defendant alleges that postconviction counsel’s per se conflict and unreasonable assistance
of counsel were sufficient to meet the cause-and-prejudice standard. However, here, neither a
conflict of interest nor unreasonable assistance of postconviction counsel excuses defendant’s
failure to raise his present allegations of prejudice in his initial pro se postconviction petition. As
alleged, many of defendant’s current claims of error could have been, but were not, included in his
pro se petition. Defendant’s failure to include those allegations in his pro se petition failed to alert
postconviction counsel to those potential claims. Where counsel was unaware of potential claims,
he never had the opportunity to research and shape these allegations into a proper legal form. Thus,
counsel could not have performed unreasonably.
¶ 46 Specifically, in defendant’s pro se petition, he argued, inter alia, (1) the State committed a
Brady violation, where White previously told prosecutors that defendant was not involved in the
murder; (2) ineffective assistance of trial counsel because counsel failed to present Amos’
recantation affidavit at trial, and failed to investigate and locate Pierson; (3) ineffective assistance
of appellate counsel for failing to raise trial counsels’ ineffectiveness; (4) improper denial of
White’s fifth amendment rights; (5) newly discovered evidence of actual innocence from Pierson
indicating that defendant was not involved in the murder; (6) improper admission of audio tapes
and Sprint telephone records without the necessary foundation; (7) the court improperly precluded
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defendant from presenting an alibi defense and cross-examining the State’s witnesses in line with
that defense; and (8) he was denied a fair trial, where the court utilized improper jury instructions.
In comparison to his present allegations, defendant’s initial petition never discussed being
ambushed by an undisclosed witness (Navarro), his counsel’s failure to examine Navarro or object
to her testimony, or the circuit court’s failure to “suppress the fruits of a search warrant obtained
18 months after the State had [defendant’s phone] in their possession.”
¶ 47 Postconviction counsel is not required to comb the record for allegations of constitutional
violations. People v. Rials, 345 Ill. App. 3d 636, 641 (2003). Rather, counsel need only to consult
with defendant, examine the records of defendant’s trial proceedings, and make all necessary
amendments to defendant’s pro se petition. People v. Addison, 2023 IL 127119, ¶ 20. These
requirements also encompass counsel’s duty to shape defendant’s pro se claims into appropriate
legal form. Id. ¶ 19. Here, many of defendant’s present allegations of prejudice were not included
in his pro se postconviction petition. Meaning, the initial postconviction counsel was never
afforded the opportunity to research and shape these claims into the proper legal form. Nor did
counsel have an obligation to search the record for those claims raised in the post-trial motion but
not raised on direct appeal. Ergo, counsel cannot be unreasonable for failing to shape claims that
were never presented to him. Thus, defendant’s justifications for cause, related to his prejudice
allegations, are unhelpful.
¶ 48 6. Incognizable Errors
¶ 49 Finally, most of defendant’s allegations of prejudice are not constitutional errors
cognizable under the Act. Relief under the Act is only available for constitutional deprivations that
occurred at the defendant’s original trial. People v. Guerrero, 2012 IL 112020, ¶ 14. For example,
defendant’s assertions that (1) “the cellphone was attenuated from [defendant] and the recordings
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were absent proper authentication”; (2) “[he] was ambushed by an undisclosed witness who laid
the foundation for the cellphone used in the recordings, but possessed exculpatory information”;
and (3) the “[t]rial [c]ourt should have moved to suppress the fruits of a search warrant obtained
18 months after the State had the item in their possession,” are all alleged trial errors, without any
constitutional underpinnings, where insufficient ineffective-assistance-of-counsel claims are tied
to cause. Accordingly, defendant’s failure to present cognizable claims in his motion for leave to
file a successive postconviction petition precludes review.
¶ 50 B. Circuit Court’s Determination
¶ 51 Defendant next argues that the circuit court erred in denying his motion for leave to file a
successive postconviction petition because it conducted improper fact-finding, misconstrued the
law of “cause and prejudice,” and misapplied waiver. We conclude that the circuit court did not
err in denying the motion for leave to file, as defendant’s successive postconviction petition was
insufficiently pleaded, thus, precluding proper review.
¶ 52 At the motion to reconsider hearing, regarding the issue of unreasonable assistance of
counsel, the court found that postconviction counsel filed a Rule 651(c) certificate, thereby raising
a presumption that counsel performed reasonably. The court determined, first, that defendant failed
to rebut the presumption that counsel performed reasonably. Second, the court determined that
counsel could not raise a claim addressing unreasonable assistance of postconviction counsel in a
successive postconviction petition because a claim attacking a ruling from another postconviction
petition was not cognizable under the Act. People v. LaPointe, 2023 IL App (2d) 210312, ¶¶ 15-
17.
¶ 53 On appeal, defendant asserts that he pleaded unreasonable assistance of counsel as to cause,
and not prejudice. Counsel’s claim, by admission, was not a freestanding claim of unreasonable
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assistance of counsel. Instead, he is arguing that the court improperly applied LaPointe to his
allegations of cause contained in the motion for leave.
¶ 54 Operating under the constraints of defendant’s arguments, as indicated above, he failed to
properly plead unreasonable assistance of postconviction counsel as cause, relating to the late
filing of any of defendant’s underlying claims. Defendant’s allegation of unreasonable assistance
of counsel was neither connected to any underlying claim, nor pleaded sufficiently in the motion
for leave to create a meritorious chain of ineffective assistance of trial and appellate counsel. The
circuit court was in the unenviable position of deciphering defendant’s claims for relief by
attempting to connect unrelated ideas, thus, it defaulted to examining defendant’s unreasonable-
assistance allegation as a freestanding claim. As defendant now admits, this was not a freestanding
claim, and we will not construct new arguments for the defense. People v. Chatman, 357 Ill. App.
3d 695, 703 (2005) (noting this court is “not simply a repository in which appellants may dump
the burden of argument and research”). Unlike the circuit court, we will not engage in “gap-filling”
methods to concoct cohesive arguments on defendant’s behalf. See id.; Ill. S. Ct. Rule 341(h)(7)
(eff. Feb.6, 2013) (requiring that appellant’s brief include “[a]rgument, which shall contain the
contentions of the appellant and the reasons therefor, with citation of the authorities and the pages
of the record relied on.”). As we may affirm for any reason substantiated by the record, we
conclude that the circuit court did not err in denying defendant’s motion for leave to file because
the motion for leave to file a successive postconviction petition was deficiently pleaded. People v.
Lee, 344 Ill. App. 3d 851, 853 (2003) (under a de novo standard, the appellate court reviews only
the circuit court’s judgment and not the reasons for the judgment).
¶ 55 Defendant also asserts that the circuit court improperly made factual determinations at the
leave-to-file stage and misapplied waiver. Specifically, defendant argues that the (1) court
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provided speculative commentary, when it stated that defendant’s pro se claims, not incorporated
into the amended petition, would not have survived second-stage review; (2) court’s finding that
defendant admitted that his voice was on the phone recording was contrary to the well-pleaded
facts and record; and (3) court’s determination that the public defender’s office was not per se
conflicted should have been reserved for a third-stage hearing. As to waiver, he opines that “if
[defendant] sufficiently pled cause and prejudice as argued supra, he was entitled to have his
claims reviewed without consideration of waiver.” Defendant’s arguments are unpersuasive.
¶ 56 As noted above, our review of defendant’s motion for leave to file a postconviction petition
is de novo. LaPointe, 365 Ill. App. 3d at 923. Given our standard of review, we need not address
defendant’s arguments that the circuit court’s reasons for denying the motion for leave to file were
improper. We may affirm the circuit court for any basis supported by the record, even if the court
reasoned incorrectly. Lee, 344 Ill. App. 3d at 853. As noted previously, defendant’s motion for
leave to file a successive postconviction petition was so deficiently pleaded, his claims are
insufficient for review. Irrespective of the court’s factual and legal findings, the court was correct
to deny defendant’s motion for leave to file.
¶ 57 C. Unreasonable Assistance of Counsel
¶ 58 Next, despite defendant’s initial contention that his unreasonable-assistance-of-counsel
claim was “expressly phrased as arguments for ‘cause’ in his motion for leave to file,” and, thus,
was not a freestanding claim, he now contends, however, that he suffered cause and prejudice due
to unreasonable assistance of postconviction counsel during his initial postconviction proceedings.
Despite defendant’s deficient pleadings, the circuit court addressed defendant’s argument as a
freestanding claim of unreasonable assistance and found that it was not cognizable under the Act.
The circuit court’s ruling was not erroneous.
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¶ 59 Pursuant to the Act, a defendant may collaterally attack his or her conviction and sentence,
where there has been a substantial constitutional violation. 725 ILCS 5/122-1(a)(1) (West 2022).
Although there is a constitutional right to counsel at trial (Strickland v. Washington, 466 U.S. 668
(1984)), the right has not been found to apply in postconviction proceedings. Pennsylvania v.
Finley, 107 S. Ct. 551, 555 (1987). Rather, the right to postconviction counsel is “a matter of
legislative grace.” People v. Custer, 2019 IL 123339, ¶ 30. As such, postconviction petitioners are
entitled only to “the level of assistance guaranteed by the Act.” Id. That assistance has been
judicially deemed to be a “reasonable” level of assistance. Id. Accordingly, petitioners cannot
claim sixth amendment ineffective assistance of counsel relating to postconviction proceedings,
because counsel is not constitutionally mandated in those proceedings. People v. Flores, 153 Ill.
2d 264, 276 (1992) (citing Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (holding that where
there is no constitutional right to counsel there can be no deprivation of effective assistance)).
Therefore, a defendant’s claim of unreasonable assistance of counsel at a prior postconviction
proceeding is not cognizable under the Act, because the Act only addresses constitutional
deprivations. Id.
¶ 60 This intent is also expressly noted in the Act: a petitioner may assert constitutional
deprivations that occurred “in the proceeding which resulted in his or her conviction.” Id.
(Emphasis added.); see also 725 ILCS 5/122-1(a)(1) (2022). The Act is intended to “permit inquiry
into the constitutional issues involved in the ‘original’ proceeding,” not as a mechanism for
challenging prior postconviction proceedings. Flores, 153 Ill. 2d at 277; accord People v.
LaPointe, 2023 IL App (2d) 210312, ¶ 16.
¶ 61 Defendant now claims that he suffered cause and prejudice from “tiers” of deficient
counsel, including unreasonable assistance of postconviction counsel and ineffective assistance of
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appellate counsel stemming from his original postconviction petition. Counsels’ deficient
performance in a prior postconviction proceeding is not a cognizable claim under the Act. Not
only are these claims not attacking the “proceeding which resulted in [defendant’s] conviction,”
but they are also not constitutional in nature. As such, defendant’s claims of ineffective assistance
of appellate counsel and unreasonable assistance of counsel, regarding his first postconviction
proceeding, are beyond the scope of the Act and our review.
¶ 62 D. Reinstate the Pro-se Petition
¶ 63 Finally, defendant asserts that the circuit court erroneously assumed that defendant sought
to reinstate his initial pro se petition. Citing People v. Taylor, 2022 IL App (2d) 190951, defendant
asserts that his pro se allegations were abandoned and, thus, his petition should be revived at the
second stage. We find Taylor is inapposite to this case.
¶ 64 In Taylor, the defendant appealed his convictions but his case was ultimately dismissed
because two attorneys withdrew and no other appellate counsel entered an appearance. Id. ¶ 1. In
response to this dismissal, on March 13, 2019, the defendant filed a pro se petition for relief
pursuant to the Act, arguing his appellate counsel was ineffective for failing to proceed with the
appeal. Nine days later, counsel filed an appearance and an opening brief, so the appellate court
reinstated the defendant’s appeal. Id. Thereafter, the circuit court dismissed the defendant’s pro se
petition for relief, finding that his claims were moot after his appeal was reinstated. Thereafter, on
May 9, 2019, the defendant filed a subsequent postconviction petition. The circuit court dismissed
this petition, finding that it was a successive postconviction petition, which was filed without leave
of the court. Id.
¶ 65 On appeal, this court held that the defendant’s May 9 petition was not a successive petition
(requiring leave of the court), because his initial petition was dismissed as moot, rather than as
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frivolous or patently without merit, and was “not a true collateral attack on his conviction and
sentence.” Id. ¶¶ 24, 31. Therefore, the defendant’s March 13 petition was not dismissed pursuant
to the Act. Id. ¶ 24. We further find that the reference to “one petition *** without leave of the
court,” in section 122-1(f), requires that a defendant be given one complete opportunity to
collaterally attack his or her conviction. Id. ¶ 29. Because the defendant in Taylor was denied an
initial, complete opportunity to challenge his conviction, we restored his petition to the procedural
posture he would have enjoyed had his March 13 petition not been filed. Id. As such, the
defendant’s May 9 petition was recharacterized as an initial postconviction petition. Id. ¶ 31.
¶ 66 Taylor is inapplicable here. Unlike Taylor, defendant here had an initial, complete
opportunity to challenge his conviction and sentence. He raised six pro se contentions of error, one
of which advanced to a third-stage hearing. That postconviction counsel’s amended petition did
not include five of defendant’s pro se contentions does not mean those claims were abandoned, or
that defendant’s challenge was incomplete. Postconviction counsel is not compelled to advance
every claim included in the pro se petition, especially if those claims are frivolous. See People v.
Kuehner, 2015 IL 117695, ¶ 15; People v. Blake, 2022 IL App (2d) 210154. In so finding, we
conclude that defendant’s claimed error here is not akin to Taylor and does not warrant
reinstatement of his pro se petition at the second stage.
¶ 67 III. CONCLUSION
¶ 68 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 69 Affirmed.
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