2020 IL App (1st) 171821 No. 1-17-1821 Order filed March 6, 2020 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 96 CR 32393 ) EDWARD GRAHAM, ) Honorable Defendant-Appellant. ) Maura Slattery Boyle, ) Judge, presiding.
JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Hoffman and Justice Delort concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of defendant’s motion for leave to file a successive postconviction petition because he failed to demonstrate the requisite “prejudice” element of the cause and prejudice test under the Post-Conviction Hearing Act.
¶2 Defendant Edward Graham appeals from the circuit court’s denial of his motion for leave
to file a successive postconviction petition pursuant to the Post-Conviction Hearing Act (Act). 725
ILCS 5/122-1 et seq. (West 2016). On appeal, defendant contends that the court erred in denying
his motion because he offered newly discovered documentary evidence that his trial counsel No. 1-17-1821
operated under a per se conflict of interest. Specifically, he claims that a police report shows that
his trial counsel represented two of the State’s witnesses. For the following reasons, we affirm. 1
¶3 Following a 1998 jury trial, defendant was convicted of the first degree murders of Johnny
Jones, Sr., Erica Chotoosingh, and Marshall Mason, who were shot to death in September 1996.
Mr. Jones, Sr.’s adult son, Johnny Jones, Jr., was one of the State’s eyewitnesses. Defendant was
sentenced to death. On direct appeal, our supreme court affirmed defendant’s convictions. People
v. Graham, 206 Ill. 2d 465 (2003). Because our supreme court set out the facts in detail on direct
appeal, we summarize the evidence presented as necessary to resolve the issue raised on appeal.
¶4 At trial, defendant was represented by private counsel, George Howard. On the first day of
trial prior to jury selection, Mr. Howard disclosed to the trial court that, shortly after the murders,
he had been contacted by an individual who was Mr. Jones, Sr.’s brother and Mr. Jones, Jr.’s
uncle. That person asked Mr. Howard to “see about” his nephew, Mr. Jones, Jr., who at that time
was being questioned by police. Mr. Howard told the court: “So I drove to the police station
pursuant to that request to see what was going on. I did not speak to [Mr. Jones, Jr.]. I was told by
the investigating officer that he was not a suspect and I said then I don’t have any business here
and I left.” Mr. Howard told the court that he had never talked to Mr. Jones, Jr. and that he was
not paid by Mr. Jones, Jr.’s family. Mr. Howard further told the court that he had disclosed these
facts to defendant “immediately upon being retained.” Mr. Howard explained: “I knew myself
there was no conflict because I was not involved but I did want to let [defendant] know at least I
had been in contact with the case to that extent.” The trial judge then questioned defendant about
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order stating with specificity why no substantial question is presented.
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Mr. Howard’s disclosure and asked whether he still wanted Mr. Howard to represent him.
Defendant agreed that Mr. Howard’s statements to the court accurately reflected his understanding
of the situation. Defendant told the court that he had no objection with Mr. Howard continuing to
represent him. The court asked defendant if he was “satisfied there is no conflict here?” Defendant
answered: “Not between, you know, with me, with him representing me, as far as [Mr. Jones, Jr.].”
¶5 At trial, the evidence showed the following. Defendant met Mr. Jones, Sr., a major Chicago
cocaine distributor, in the mid-1980s. For a number of years, defendant worked for Mr. Jones, Sr.
by delivering cocaine to dealers, collecting drug-sale proceeds, and returning the money to
Mr. Jones, Sr. Mr. Jones, Sr. lived in a house with Mr. Mason and Ms. Chatoosingh. Occasionally,
Mr. Jones, Jr. and his friend Cory Williams stayed overnight at the house in second-floor
bedrooms. Mr. Jones, Jr. and Mr. Williams were sleeping at the house on the night of the murders.
Mr. Jones, Jr. awoke to a loud thump and heard the sound of gunfire. Mr. Jones, Jr. and Mr.
Williams crept downstairs, where Mr. Jones, Jr. saw defendant shooting a handgun into
Mr. Mason’s bedroom. Mr. Jones, Jr. and Mr. Williams went back upstairs and attempted to call
police on a cellular phone. According to Mr. Williams, Mr. Jones, Jr. said, “That’s Ed.” As they
discovered that the cell phone was not working, they heard a woman scream and more gunfire.
When Mr. Jones, Jr. returned downstairs, he saw defendant in Mr. Jones, Sr.’s bedroom with a
handgun. Defendant fired several shots into Mr. Jones, Sr.’s bedroom and then crouched down and
fired several more shots. Defendant fired another shot in Mr. Mason’s room, then grabbed a white
box and fled from the house. According to Mr. Williams, Mr. Jones, Jr. repeated “[T]hat was Ed.”
Mr. Jones, Jr. and Mr. Williams called police after discovering that the victims were dead. After
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leaving the house, defendant flew to Las Vegas, Nevada. He was arrested in Las Vegas more than
one month later.
¶6 While defendant was incarcerated in Las Vegas, he had a number of conversations with
Carl Torrence, who was being held on drug charges. Mr. Torrence testified that when he asked
defendant why he had been arrested, defendant answered that he was involved in a murder in
Chicago. Defendant initially told Mr. Torrence that he had visited Mr. Jones, Sr.’s house early one
morning to drop off money. Inside the house, he smelled gun smoke and saw that Mr. Jones, Sr.
was dead. Defendant left but returned to the home a short time later. He then noticed Mr. Jones, Jr.
standing on the stairs and left immediately. In a later conversation, after Mr. Torrence urged
defendant to “come clean,” defendant admitted to Mr. Torrence that he had been stealing from
Mr. Jones, Sr. and that he shot the three victims. Mr. Torrence contacted the authorities, offering
to exchange his information on defendant for “a deal.”
¶7 Mr. Jones, Jr., Mr. Williams, and Mr. Torrence testified for the State. Defendant testified
on his own behalf and told a story consistent with the story he initially told Mr. Torrence.
¶8 The jury found defendant guilty on three first degree murder counts. Defendant was
sentenced to death but his sentence was later commuted to natural life in prison.
¶9 On direct appeal to our supreme court, defendant argued, inter alia, that he received
ineffective assistance of counsel because his trial attorney, Mr. Howard, “labored under a per se
conflict of interest.” People v. Graham, 206 Ill. 2d 465, 470 (2003). He argued that “[Mr.] Howard
previously represented [Mr. Jones, Jr.] a key prosecution witness and the son of one of the murder
victims, when Mr. Howard went to the police station on the night of the murder at the request of
[Mr. Jones, Jr.’s] uncle after [Mr. Jones, Jr.] had been taken there for questioning.” Id. at 470.
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After reviewing Mr. Howard’s statements to the trial court on this topic, our supreme court
determined that there was no per se conflict of interest because “[Mr.] Howard simply had no
relationship – attorney-client or otherwise – with [Mr. Jones, Jr.]” Id. at 474. Our supreme court
noted there was no evidence that Mr. Jones, Jr. “agreed to let [Mr.] Howard represent him” or that
[Mr.] Howard agreed to represent him. Id. Rather, “[a]t best, [Mr.] Howard conditionally assented
to be [Mr. Jones, Jr.’s] attorney if [Mr. Jones, Jr.] was a suspect” but Mr. Howard left the police
station when he learned that Mr. Jones, Jr. was not a suspect. Id. Our supreme court proceeded to
affirm defendant’s convictions.
¶ 10 On November 5, 1999, (while his direct appeal to our supreme court was pending),
defendant filed a pro se petition for postconviction relief under the Act. In the petition, defendant
included a number of claims of ineffective assistance of counsel. The petition was summarily
dismissed on December 23, 1999. However, in January 2001, the trial court entered an order
pursuant to an “agreement of the parties” stating that the “dismissal order entered 12/23/98 is
vacated nunc pro tunc” and that postconviction proceedings were “reinstated.”
¶ 11 In December 2008, defendant filed an amended postconviction petition, in which he
alleged that he was denied his sixth amendment right to counsel of choice when he was
misinformed on the first day of trial regarding disciplinary proceedings involving Mr. Howard;
that the trial court coerced him into keeping Mr. Howard as his attorney; and that Mr. Howard
provided ineffective assistance by failing to consult a forensic expert. The trial court granted the
State’s motion to dismiss the petition on July 22, 2010. On appeal, our court affirmed the dismissal
of the amended petition. People v. Graham, 2012 IL App (1st) 102351.
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¶ 12 Defendant filed a petition for writ of habeas corpus in the United States District Court.
Defendant’s habeas petition included a claim that Mr. Howard labored under a per se conflict of
interest, based upon the “call that [Mr.] Howard received from [Mr. Jones, Jr.’s] uncle immediately
after the murders asking [Mr.] Howard to go to the jail where [Mr. Jones, Jr.] was being
interrogated.” Graham v. Pfister, No. 12-C-8870, 2013 WL 3944297, *5 (N.D. Ill. July 29, 2013).
In denying that petition, the district court concluded that, given the “lack of evidence that any
relationship was established” between Mr. Howard and Mr. Jones, Jr., defendant “cannot establish
that [Mr.] Howard labored under a constitutionally impermissible conflict of interest.” Id. That
decision was affirmed by the United States Court of Appeals for the Seventh Circuit. Graham v.
Pfister, 614 Fed. Appx. 847 (7th Cir. 2015).
¶ 13 On March 22, 2017, defendant filed a motion for leave to file a successive postconviction
petition under the Act. In that motion, defendant claimed that he had obtained new evidence
showing that Mr. Howard worked under a per se conflict of interest, in that Mr. Howard
represented both Mr. Jones, Jr. and Mr. Williams. Defendant’s motion attached, as Exhibit A, a
single-page, untitled typewritten document that defendant claims to be a “police report.”
Defendant’s name, address and date of birth appear at the top of Exhibit A. Although the document
bears no heading and does not identify its author, it appears to summarize statements by defendant
to detectives. An entry dated November 12, 1996 reflects that defendant told detectives that he
wanted to hire Mr. Howard, who subsequently met with defendant at the police station, and “PER
[Mr.] HOWARD D[efendant] WILL NOT GIVE STATEMENT.” That entry then states:
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“NOTE: W6 HAS INHERENT CONFLICT W6 REPRESENTED W1 AND W2 THE
NIGHT OF THE SHOOTING. [Mr.] HOWARD CAME AND MET WITH W1 + W2 AT
AREA 2 THE DAY OF INCIDENT PER DETECTIVES.”
¶ 14 Although Exhibit A does not explicitly identify “W6,” “W1,” and “W2”, defendant argued
that they refer to Mr. Howard, Mr. Jones, Jr. and Mr. Williams. Based on Exhibit A, defendant’s
motion for leave to file a successive postconviction petition asserted that Mr. Howard
“misrepresented the facts to the court and defendant regarding his involvement with Mr. Jones, Jr.
and never informed the court or this defendant about also appearing on behalf of [Mr.] Williams
as his counsel too.”
¶ 15 Defendant’s motion acknowledged that in his direct appeal, he previously raised a per se
conflict of interest claim, but argued that, at that time, the “only facts that were known” were
Mr. Howard’s statements to the trial judge. Defendant submitted a supporting affidavit in which
he states that he only learned of Exhibit A after he received his “client file” from the attorney who
represented him in his habeas appeal before the Seventh Circuit. His motion attached a letter from
that attorney dated July 14, 2015, in which the attorney confirms that her representation of
defendant has concluded and states “I will shortly be sending you your Client File.”
¶ 16 According to defendant’s affidavit, he “did not become immediately aware of” Exhibit A
after receiving that file in 2015 “due to the volume of the material.” He states that he “only
discovered [Exhibit A] during a lockdown” on February 12, 2017 “while looking through the legal
material” sent by the attorney. Defendant’s motion argued that there is “cause” to grant him leave
to file a successive petition, because “the full content of this claim was hidden” from him by
Mr. Howard and the prosecuting attorneys. He further contended that, since Mr. Howard labored
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under a per se conflict of interest, he did not need to show “actual prejudice” resulting from the
conflict.
¶ 17 On June 22, 2017, the trial court entered an order denying defendant’s motion for leave to
file a successive postconviction petition. The trial court concluded that res judicata barred
defendant’s claim that his trial counsel had a conflict of interest, as defendant “already raised this
claim on direct appeal *** and in a petition for a writ of habeas corpus.” The trial court found that
Exhibit A did not preclude application of res judicata, reasoning:
“Assuming, arguendo, that the report is actually newly discovered, at best it only serves to
support the evidence previously entered into the record. [Mr.] Howard testified that he was
called by [Mr. Jones, Jr.’s] uncle to represent [Mr. Jones, Jr.], agreed to conditionally
represent him if he was a suspect, went to the Area 2 police station, determined that
[Mr. Jones, Jr.] was not a suspect, and left. [Citation.] [Defendant] was aware of all of this
at trial and stated that he did not have reservations about [Mr.] Howard’s representation.
[Citation.] This report does not provide any evidence that [Mr.] Howard had anything
resembling an undisclosed attorney-client relationship with [Mr. Jones, Jr.].”
The trial court thus found that defendant’s claim “is barred as res judicata and he has otherwise
failed to satisfy the cause and prejudice test necessary to file his successive petition.”
¶ 18 On appeal, defendant argues that the trial court erred in denying him leave to file a
successive postconviction petition. Defendant first argues that his conflict of interest claim is not
barred by res judicata because it differs from the claim he raised on direct appeal. Specifically, he
now alleges that Mr. Howard represented Mr. Williams as well as Mr. Jones, Jr., and his “present
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claim relies on different facts” based on “a newly-discovered police report” not available on direct
appeal.
¶ 19 Apart from res judicata, defendant asserts that he otherwise demonstrated the requisite
“cause” and “prejudice” to permit a successive postconviction petition under the Act. With respect
to “cause,” he argues that he could not have raised the instant claim in his 1999 initial post-
conviction petition or his 2008 amended postconviction petition because he had no knowledge of
Exhibit A and did not receive it until his attorney sent him his “client file” in 2015. Defendant
further urges that he established “prejudice” because the police report “flatly contradicts” Mr.
Howard’s statements that he never spoke to Mr. Jones, Jr., and demonstrates that Mr. Howard had
an undisclosed attorney-client relationship with Mr. Jones, Jr. and Mr. Williams. He argues that
“a per se conflict may very well have existed” if Mr. Howard represented Mr. Jones, Jr. and
Mr. Williams on the night of the murders. Defendant argues that where a per se conflict of interest
exists, “prejudice is presumed and reversal is automatic” unless the defendant knowingly waived
his right to conflict-free counsel. Defendant thus requests that we reverse the trial court’s denial of
his motion for leave to file a successive petition, and that we remand for second-stage
postconviction proceedings.
¶ 20 The Act “provides a statutory remedy to criminal defendants who claim that substantial
violations of their constitutional rights occurred at trial” which “is not a substitute for an appeal,
but rather, is a collateral attack on a final judgment.” People v. Edwards, 2012 IL 111711, ¶ 21.
The Act provides that “[o]nly one petition may be filed *** without leave of the court.” 725 ILCS
5/122-1(f) (West 2016). Nevertheless, there are “two bases upon which the bar against successive
proceedings will be relaxed.” Edwards, 2012 IL 111711, ¶ 22. “The first basis for relaxing the bar
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is when a petitioner can establish ‘cause and prejudice’ for the failure to raise the claim earlier.”
Id. (quoting People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002)). The cause and prejudice test is
now codified in the Act. 725 ILCS 5/122-1(f) (West 2016). Second, a colorable claim of “actual
innocence” will permit a successive postconviction petition. People v. Wideman, 2016 IL App
(1st) 123092, ¶ 40 (citing Edwards, 2012 IL 111711, ¶ 23). Thus, in order to file a successive
petition, the defendant’s petition must satisfy the cause-and-prejudice test or it must state a
colorable claim of actual innocence. People v. Jackson, 2016 IL App (1st) 143025, ¶ 19. “This
standard is higher than the normal first-stage ‘frivolous or patently without merit’ standard applied
to initial petitions. [Citations.]” Id.
¶ 21 In this case, defendant asserts that he has satisfied the cause and prejudice test. “It is the
defendant’s burden to demonstrate both cause and prejudice for each claim raised in his successive
petition.” People v. Thompson, 383 Ill. App. 3d 924, 929 (2008). The Act provides that “(1) a
prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a
specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows
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 2018).
¶ 22 “[A] defendant’s pro se motion for leave to file a successive postconviction petition will
meet the section 122-1(f) cause and prejudice requirement if the motion adequately alleges facts
demonstrating cause and prejudice.” People v. Smith, 2014 IL 115946, ¶ 33. “To meet the cause-
and-prejudice test *** requires the defendant to submit ‘enough in the way of documentation to
allow a circuit court to make that determination.’ [Citation.] Id. ¶ 35. “[L]eave of court to file a
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successive postconviction petition should be denied when it is clear, from a review of the
successive petition and the documentation submitted by the petitioner, that the claims alleged by
the petition fail as a matter of law or where the successive petition with supporting documentation
is insufficient to justify further proceedings. [Citations.]” Id.
¶ 23 We review a trial court’s ruling on a motion for leave to file a successive postconviction
petition de novo. People v. Bailey, 2017 IL 121450, ¶ 13. We also note that we may affirm on any
basis in the record and are not constrained by the trial court’s reasoning. Thompson, 383 Ill. App.
3d 924, 929 (2008) (“Our review is of the trial court’s judgment, not the reasons for that judgment
[Citation.] Therefore, our decision is not dependent upon the trial court’s reasoning.”).
¶ 24 As an initial matter, the State argues that defendant’s “claim that Mr. Howard operated
under a conflict of interest because he had an attorney-client relationship with [Mr. Jones, Jr.] is
barred by the doctrine of res judicata” because defendant “already raised this same claim on direct
appeal” and in his petition for writ of habeas corpus. 2 Defendant responds that the doctrine of
res judicata should be “relaxed” because his current claim “is based on substantial new evidence
– the police report.” However, we need not decide the res judicata issue. This is because, even
assuming that res judicata did not bar defendant’s claim, he must still show cause and prejudice.
As discussed below, we conclude that he failed to do so.
¶ 25 Our review of the motion and the supporting documentation makes clear that defendant
fails to allege facts demonstrating “prejudice” under the Act. In reaching this conclusion, we
emphasize that the specific per se conflict of interest claim that defendant seeks to assert in his
2 It is not entirely clear if the State’s argument means to concede that res judicata would not apply, to the extent that defendant claims that Mr. Howard represented Mr. Williams, rather than Mr. Jones, Jr.
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successive petition is dependent upon the purported “police report” in Exhibit A. For a number of
reasons, Exhibit A is insufficient to support the claimed per se conflict of interest.
¶ 26 First, defendant fails to establish that Exhibit A is what he purports it to be. As the State
points out, there is nothing on the face of Exhibit A that verifies that it is, in fact, a “police report.”
The document is untitled and does not indicate that it was produced by the Chicago Police
Department or any other agency. The author is unnamed and the document does not specify the
source of the information contained therein. Defendant provides no clue as to its origin, other than
to say that it was in his “client file” sent to him by his attorney in 2015. Even if that is true,
defendant offers nothing to corroborate that Exhibit A was created by police rather than by a third
party, such as an attorney. In this regard, we note that it seems incongruous for a police report to
suggest that Mr. Howard “has [an] inherent conflict.” There is no apparent reason why the police
would include such a legal conclusion in an investigative report.
¶ 27 More important, the statements in Exhibit A are insufficient to support the specific per se
conflict of interest claim that defendant urges on appeal. Our supreme court has “found three
situations where a per se conflict exists: (1) where defense counsel has a prior or contemporaneous
association with the victim, the prosecution or an entity assisting the prosecution; (2) where
defense counsel contemporaneously represents a prosecution witness; and (3) where defense
counsel was a former prosecutor who had been personally involved with the prosecution of
defendant.” People v. Fields, 2012 112438, ¶ 18. Defendant’s motion for leave to file a successive
petition was premised on the second category, under the theory that Mr. Howard
contemporaneously represented two State’s witnesses. However, even assuming that Exhibit A
accurately states that Mr. Howard “met with” those individuals, it does not establish that
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Mr. Howard represented either of them. “The attorney-client relationship is a voluntary,
contractual relationship that requires the consent of both the attorney and client [Citations.]”
People v. Simms, 192 Ill. 2d 348 382 (2000). “It cannot be created by the attorney alone or by an
attorney and a third party who has no authority to act.” (Internal quotation marks omitted.) Id.
“Being a consensual relationship, ‘[t]he client must manifest [his] authorization that the attorney
act on his behalf, and the attorney must indicate [her] acceptance of the power to act on the client’s
behalf’” Id. (quoting Simon v. Wilson, 291 Ill. App. 3d 495 (1997)). Even if Mr. Howard met with
Mr. Jones, Jr. and Mr. Williams, this fact alone would not demonstrate that they consented to hire
Mr. Howard, or that Mr. Howard consented to represent either of them. Similarly, to the extent
Exhibit A claims that Mr. Howard “represented” Mr. Jones, Jr. and Mr. Williams, that
characterization by an unnamed third party cannot be construed as a manifestation of consent by
either attorney or client.
¶ 28 Finally, even assuming arguendo that Mr. Howard represented Mr. Jones, Jr. and
Mr. Williams on the night of the murders, Exhibit A does not indicate that this representation was
contemporaneous with Mr. Howard’s representation of defendant, as is necessary to support his
allegation of a per se conflict. “Illinois supreme court case law has clearly and consistently held
that, in cases where defense counsel has represented a State’s witness, a per se conflict of interest
will not be held to exist unless the professional relationship between the attorney and the witness
is contemporaneous with defense counsel’s representation of the defendant.” People v. Fields,
2012 IL 112438, ¶ 20; see also People v. Murphy, 2013 IL App (4th) 111128, ¶ 46 (“In Fields, the
supreme court rejected the notion that the defense counsel’s prior representation of the State’s
witness created a per se conflict of interest. [Citation]”). Nothing in Exhibit A reflects
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contemporaneous representation. At most, it suggests the possibility that Mr. Howard represented
Mr. Jones, Jr. and Mr. Williams on the “night of the shooting” in September 1996, and that weeks
later, on or about November 12, 1996, defendant hired Mr. Howard. There is nothing in Exhibit A
to suggest that Mr. Howard represented Mr. Jones, Jr. or Mr. Williams beyond the night of the
murders, let alone that Mr. Howard continued to represent them after he was hired by defendant.
¶ 29 As the motion and supporting documents do not allege facts sufficient to state the elements
of a per se conflict of interest claim, we cannot find that defendant “adequately alleges facts
demonstrating cause and prejudice.” Smith, 2014 IL 115946, ¶ 34. Specifically, defendant cannot
show “prejudice” under the Act, which requires defendant to demonstrate that the purported
conflict “so infected the trial that the resulting conviction or sentence violated due process.” 725
ILCS 5/122-1(f) (West 2016). Defendant’s failure to establish the “prejudice” element of the cause
and prejudice test independently justifies the denial of his motion for leave to file a successive
postconviction petition. Thus, we need not address whether defendant otherwise demonstrated the
requisite “cause” under the Act. See Smith, 2014 IL 115946, ¶ 38 (“Having concluded that
defendant cannot show prejudice, we need not address defendant’s claim of cause.”).
¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 31 Affirmed.
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