People v. Nicholson

2026 IL App (5th) 241197-U

• Court: Appellate Court of Illinois
• Decided: March 18, 2026
• Docket: 5-24-1197
• Status: Unpublished

Opinion

NOTICE 2026 IL App (5th) 241197-U NOTICE Decision filed 03/18/26. The This order was filed under text of this decision may be NO. 5-24-1197 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Macon County. ) v. ) No. 07-CF-1120 ) ROBERT E. NICHOLSON, ) Honorable ) Thomas E. Griffith, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Barberis and McHaney concurred in the judgment.

ORDER

¶1 Held: Where the defendant failed to establish cause for not presenting his postconviction claims earlier, the trial court did not err in denying him leave to file a successive postconviction petition. Because no argument to the contrary would have arguable merit, this court grants appellate counsel leave to withdraw and affirms the judgment of the trial court.

¶2 The defendant, Robert E. Nicholson, is serving a prison sentence for first degree murder.

He appeals from the trial court’s order denying his third motion for leave to file a successive

postconviction petition. The defendant’s appointed attorney on appeal, the Office of the State

Appellate Defender (OSAD), has concluded that this appeal lacks merit, and on that basis, OSAD

has filed a motion for leave to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551

(1987)), along with a supporting memorandum of law. OSAD served the defendant with notice.

This court gave him ample opportunity to file a written response to OSAD’s motion, but the 1 defendant has not filed a response. This court has examined OSAD’s Finley motion and

memorandum of law, the record on appeal, and prior decisions in appeals stemming from the

defendant’s criminal case. This court concludes that this appeal does indeed lack merit, and

accordingly, this court grants OSAD leave to withdraw as counsel and affirms the trial court’s

judgment.

¶3 I. BACKGROUND

¶4 On August 1, 2007, the defendant strangled and killed his wife, Donna Nicholson. In

connection with that killing, the State charged the defendant with three counts of first degree

murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2006)), plus another felony. In June 2008, the cause

proceeded to a trial by jury. At every stage of the trial, from voir dire through the reading of the

verdict, the defendant was present in the courtroom with trial counsel. The jury found the defendant

guilty of first degree murder. In September 2008, the trial court sentenced him to imprisonment

for 30 years and mandatory supervised release for 3 years.

¶5 To the Appellate Court, Fourth District, 1 the defendant appealed from the judgment of

conviction. In his direct appeal, the defendant argued that (1) the trial court erred in failing to

suppress his videotaped interrogation, (2) the State failed to prove him guilty beyond a reasonable

doubt, (3) the court erred in precluding him from presenting evidence, and (4) the prosecutor

engaged in misconduct by eliciting certain testimony. The appellate court affirmed the judgment

of conviction. People v. Nicholson, No. 4-08-0792 (Jan. 6, 2010) (unpublished order under Illinois

Supreme Court Rule 23). Included in that decision was a detailed discussion of the trial evidence

establishing the defendant’s guilt.

1 Macon County was redistricted from the Fourth District to the Fifth District. Ill. S. Ct., M.R. 30858 (eff. Dec. 8, 2021). 2 ¶6 In November 2010, the defendant pro se filed his initial petition for relief under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)). The postconviction petition

raised a wide variety of claims including, inter alia, claims of actual innocence, prosecutorial

misconduct, and ineffective assistance of trial counsel. The trial court appointed postconviction

counsel for the defendant, and counsel filed an amended postconviction petition. The amended

petition merely adopted the claims presented in the pro se petition. The State filed a motion to

dismiss the amended petition. After a hearing, the court granted the State’s motion, dismissing the

defendant’s amended postconviction petition. The defendant appealed. The Fourth District

affirmed the judgment. People v. Nicholson, 2014 IL App (4th) 120761-U.

¶7 On January 8, 2021, the defendant pro se filed a motion for leave to file a successive

postconviction petition (motion for leave). He claimed “newly discovered evidence.” In April

2021, the trial court denied the defendant’s motion for leave. The court noted that the defendant

alleged newly discovered evidence but did not indicate in any way “what this newly discovered

evidence may be.” The defendant appealed. His appointed counsel on appeal, OSAD, moved to

dismiss the appeal. The appellate court granted OSAD’s motion, dismissing the appeal. People v.

Nicholson, No. 4-21-0318 (Oct. 21, 2021) (unpublished order).

¶8 On June 21, 2022, the defendant pro se filed his second motion for leave to file a successive

postconviction petition. Among the claims the defendant sought to raise were claims related to

Batson v. Kentucky, 476 U.S. 79 (1986). It was the first time that the defendant had raised Batson-

related claims. In Batson, the United States Supreme Court held that the prosecution’s intentional

use of peremptory challenges to exclude blacks from a jury violates a defendant’s right to equal

protection under the fourteenth amendment of the United States Constitution (U.S. Const., amend.

XIV). In his second motion for leave, the defendant stated:

3 “I asked [trial counsel] to file a motion for Batson v. Kentucky because [I] had a[n] all white

jury and [I] am black and my wife was white. A pool of twenty-eight people was brought

in with only one black in the pool. I knew right then that [I] was not going to get a fair trial!

Of co[u]rse the black man was sent home right away. [Trial counsel] never filed the motion,

and my appeals attorney would not file the motion either.”

As for the “cause”of the defendant’s failure to raise his postconviction claims earlier, the

defendant stated:“medical problems, eye operation, hip operation, blood clotting problems, covid

problems,kidney operation.” As for “prejudice,” the defendant wrote: “I have newly discovered

evidence substantiated by transcript/common law record.” The motion for leave had numerous

exhibits attached thereto.

¶9 The trial court entered a written order that denied the defendant’s second motion for leave.

The defendant appealed to this court, thus initiating the appeal in appellate court No. 5-22-0670.

This court appointed OSAD as appellate counsel for the defendant.

¶ 10 OSAD filed with this court a Finley motion to withdraw as counsel, and it provided the

defendant with notice of the Finley motion. In response, the defendant filed with this court a letter

that focused exclusively on the alleged ineffective assistance provided by trial counsel when he

failed to ensure that jury selection complied with Batson.

¶ 11 On October 12, 2023, this court issued its decision, in which it found, inter alia, that the

defendant had failed to establish cause for his failure to bring his claims in his initial postconviction

proceeding or in his 2021 motion for leave to file a successive petition. Regarding the Batson-

related claims in particular, this court noted that the record showed that the defendant was in court

at the time the alleged lone black juror was excused from jury service. This court granted OSAD’s

4 Finley motion and affirmed the trial court’s denial of the defendant’s second motion for leave.

People v. Nicholson, 2023 IL App (5th) 220670-U.

¶ 12 On June 14, 2024, the defendant filed the motion that is the subject of the instant appeal—

his third motion for leave to file a successive postconviction petition. The defendant again sought

to raise postconviction claims related to Batson. He claimed that he had been deprived of his

constitutional right to (1) equal protection, as articulated in Batson, when the State exercised a

peremptory challenge against the lone black venireperson at his trial; (2) effective assistance of

trial counsel, where counsel failed to challenge, on Batson equal-protection grounds, the State’s

exercise of a peremptory challenge against the black venireperson; and (3) effective assistance of

appellate counsel, where counsel failed to raise the Batson issue because the issue had been

waived. As cause for not raising these Batson-related claims earlier, the defendant stated: “I did

not know about the Batson v. Kentucky claim and my attorney did not tell me about the Batson

claim.” (This court notes that this allegation of ignorance about Batson is inconsistent with the

allegation contained in the defendant’s second motion for leave, wherein the defendant alleged

that he asked trial counsel to challenge the exclusion of the black venireperson on Batson grounds.)

To show prejudice, the defendant stated that the State had peremptorily challenged the sole black

venireperson at his trial to deprive him of his right to a jury drawn from a cross-section of the

community, thus violating equal protection under Batson.

¶ 13 Attached to the defendant’s third motion for leave was, inter alia, the first page of a letter

from OSAD to the defendant, dated February 14, 2023, regarding the appeal in appellate court No.

5-22-0670 (the appeal immediately prior to the instant appeal). That letter included the following

sentence: “Regarding your complaint that the only black juror was removed from the panel (the

5 Batson claim), this claim could have been raised in your initial petition, so it has been waived, and

nothing in your petition explains why you did not raise it earlier.”

¶ 14 On September 13, 2024, the trial court entered an order that denied the defendant leave to

file a successive petition. The court stated, inter alia, that the defendant had not established cause

for not raising the Batson claim earlier. “[H]e could have raised the Batson claim either in his

original post-conviction petition or during the [d]efendant’s original trial and appeal. The

[d]efendant sets forth no reason why this issue was not raised.”

¶ 15 The defendant perfected a late notice of appeal. This court appointed OSAD as the

defendant’s counsel on appeal.

¶ 16 II. ANALYSIS

¶ 17 In the legal memorandum that accompanies its Finley motion to withdraw, OSAD raises

the potential issue of whether the trial court erred when it denied the defendant’s third motion for

leave to file a successive postconviction petition. OSAD concludes that this issue would lack

arguable merit. This court agrees.

¶ 18 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) provides

a mechanism by which a criminal defendant may challenge his conviction by filing a petition for

relief in the circuit court. Id. § 122-1. The Act allows a defendant to assert that there was a

substantial denial of his federal or state constitutional rights in the proceedings that resulted in his

conviction or sentence. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act contemplates the filing

of only one postconviction petition. 725 ILCS 5/122-1(f) (West 2022). If a defendant desires to

file a successive postconviction petition after his initial petition is dismissed, he must request leave

of court before filing it. Id.

6 ¶ 19 Unless a defendant asserts a claim of actual innocence (which this defendant did not do, in

this instance), a court will grant him leave only if he satisfies the cause-and-prejudice test. Id.;

People v. Montanez, 2023 IL 128740, ¶ 77. To establish “cause” under the cause-and-prejudice

test, a defendant must identify an objective factor, external to the defense, that impeded his ability

to raise a specific claim during his initial postconviction proceeding. 725 ILCS 5/122-1(f) (West

2022); Montanez, 2023 IL 128740, ¶ 77. To establish “prejudice,” a defendant must demonstrate

that the claimed constitutional error so infected the trial that the resulting conviction or sentence

violates due process. 725 ILCS 5/122-1(f) (West 2022); Montanez, 2023 IL 128740, ¶ 77. It is the

defendant’s burden to make a prima facie showing of cause and prejudice in order to be granted

leave before any further proceedings on his claims can occur. People v. Bailey, 2017 IL 121450,

¶ 24. A defendant cannot obtain leave of court unless he satisfies each of the two elements of cause

and prejudice; it is not sufficient to establish only one element. People v. Guerrero, 2012 IL

112020, ¶ 15. This court reviews de novo the trial court’s denial of a defendant’s motion for leave

to file a successive postconviction petition. People v. Robinson, 2020 IL 123849, ¶ 39.

¶ 20 Here, the defendant, in his third motion for leave to file a successive postconviction

petition, sought to raise postconviction claims related to Batson. He stated that the cause of his not

raising those claims earlier was that he “did not know about” Batson, and that his attorney “did

not tell [him] about” Batson. In other words, the defendant alleged that his ignorance of the Batson

decision was the reason he did not raise his claims earlier. However, our supreme court has held

that ignorance of the law, at the time of the initial postconviction petition, can never establish cause

for filing a successive postconviction petition. People v. Evans, 2013 IL 113471, ¶¶ 12-13. The

defendant’s ignorance of the Batson decision cannot establish cause. Therefore, the trial court did

not err in declining to grant the defendant leave to file a successive petition.

7 ¶ 21 Furthermore, the defendant had an opportunity to raise his Batson-related claims in the

direct appeal, or in the original or an amended postconviction petition, but he did not raise them

on either occasion. Issues that could have been raised on direct appeal, but were not, are forfeited.

People v. Taliani, 2021 IL 125891, ¶ 53. Any constitutional claim not raised in the original or an

amended postconviction petition is thereafter forfeited. 725 ILCS 5/122-3 (West 2022); Taliani,

2021 IL 125891, ¶ 53. Therefore, the Batson-related claims that the defendant sought to raise in

his third motion for leave to file a successive postconviction petition are forfeited.

¶ 22 III. CONCLUSION

¶ 23 The trial court did not err in denying the defendant’s third motion for leave to file a

successive postconviction petition. No argument to the contrary would have arguable merit.

Accordingly, this court grants OSAD’s Finley motion to withdraw as counsel and affirms the trial

court’s order denying the defendant’s third motion for leave.

¶ 24 Motion granted; judgment affirmed.