People v. Wallace

2021 IL App (5th) 190030-U

Opinion

NOTICE 2021 IL App (5th) 190030-U NOTICE Decision filed 05/20/21. The This order was filed under text of this decision may be NO. 5-19-0030 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for limited circumstances allowed Rehearing or the disposition of IN THE 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, ) St. Clair County. ) v. ) No. 99-CF-1492 ) DIWONE A. WALLACE, ) Honorable ) Julie K. Katz, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Welch and Vaughan concurred in the judgment.

ORDER

¶1 Held: We affirm the order of the circuit court of St. Clair County that denied the defendant’s pro se motion for leave to file a successive postconviction petition, because even if we assume, arguendo, that a successive postconviction petition is an available vehicle by which a defendant may pursue a claim that the defendant is entitled to a new evidentiary hearing on the defendant’s first postconviction petition when the defendant has alleged that a due process violation occurred during the proceedings on the first postconviction petition, we conclude that the defendant in this case has not demonstrated the requisite cause and prejudice to warrant the granting of leave to file a successive postconviction petition.

¶2 The defendant, Diwone A. Wallace, appeals the denial, by the circuit court of St. Clair

County, of his pro se motion for leave to file a successive postconviction petition. On appeal, now

represented by counsel, the defendant contends he has satisfied the requisite cause-and-prejudice

1 test and should be allowed to file his petition. For the following reasons, we affirm the circuit

court’s order.

¶3 I. BACKGROUND

¶4 On October 17, 2018, the defendant, who is serving a sentence of natural life in prison for

committing two murders in 1999, filed pro se, inter alia, a motion for leave to file a successive

postconviction petition. Therein, the defendant contended “that his due process rights were

violated” because, the defendant alleged, the judge who presided over the October 2011

evidentiary hearing on his first postconviction petition, the Honorable Michael N. Cook, “was

using drugs” at the time of the hearing, which rendered the results of the hearing “unreliable.” The

defendant asserted that although he first learned of Judge Cook’s drug use in 2014, at that time the

defendant did not know if Judge Cook was using drugs in 2011. He alleged that he “received an

article off the internet” in August 2018 which, according to the defendant, “revealed that Judge

Cook had been addicted and using drugs since 2010,” and that “[t]he drugs he used were

prescription pain pills, cocaine, and heroin.” The defendant next asserted, “So[,] Judge Cook was

using drugs in 2011 when he presided over th[e] defendant’s evidentiary hearing.” The defendant

alleged that “prejudice is presumed and is an automatic violation of his due process rights, where

a presiding judge is addicted to mind and psychological altering drugs that are being consumed

daily and habitually while presiding over this defendant’s evidentiary proceedings.” The relief

requested by the defendant was a new evidentiary hearing on his first postconviction petition.

Attached to the defendant’s motion, as an exhibit, was a March 28, 2014, newspaper article. In the

article, and of relevance to the defendant’s allegations in his pro se motion, the author of the article

discussed Judge Cook’s March 2014 sentencing hearing in federal court and stated that then-U.S.

Attorney Steve Wigginton “said that Cook’s addiction began with prescription pain pills he took

for a health condition, aggravated by the death of his sister in 2010.” 2 ¶5 On November 15, 2018, the Honorable Julie Katz, the trial judge presently assigned to the

defendant’s case, entered an order in which, inter alia, she ruled that the defendant had not shown

the requisite cause and prejudice to warrant leave to file a successive postconviction petition. She

also noted that the defendant appealed the order entered by Judge Cook following the evidentiary

hearing on the defendant’s first postconviction petition, and that this court affirmed Judge Cook’s

decision on its merits. Judge Katz denied the defendant’s pro se motion for leave to file a

successive postconviction petition. The defendant filed a motion to reconsider, which also was

denied. This timely appeal followed. Additional facts will be provided as necessary throughout the

remainder of this order.

¶6 II. ANALYSIS

¶7 Pursuant to section 122-1(f) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1(f) (West 2018)), a defendant must obtain leave of the circuit court before that defendant is

entitled to review of a second or subsequent—in other words, a successive—postconviction

petition on its merits. People v. Bland, 2020 IL App (3d) 170705, ¶ 9. The threshold requirement

to obtain leave to file a successive petition is that the defendant must satisfy the cause-and-

prejudice test. Id. Under this test, the defendant must demonstrate both (1) “cause” for failing to

raise, in prior proceedings, the error the defendant now wishes to raise, and (2) actual “prejudice”

resulting from the claimed error. Id. Illinois courts have defined “cause” as an objective factor that

impeded the defendant’s efforts to raise the claim in an earlier proceeding, and have defined

“prejudice” as an error that so infected the entire trial that the defendant’s conviction violates

standards of due process. Id. This court has recognized that the Illinois Supreme Court has held

that the cause-and-prejudice test for successive postconviction petitions involves a higher standard

than the frivolous or patently without merit standard that is applied to first-stage postconviction

petitions. Id. A defendant who seeks leave from the circuit court to file a successive petition must 3 submit enough in the way of pleadings and documentation to allow the circuit court to make an

independent determination on the legal question of whether adequate facts have been alleged for

a prima facie showing of cause and prejudice. Id. If a defendant fails to adequately allege cause

and prejudice, the circuit court does not reach the merits of the defendant’s successive petition, or

conduct further proceedings, because the cause-and-prejudice test is a procedural prerequisite to

obtaining that review. Id.

¶8 We review de novo a circuit court’s ruling on a defendant’s motion for leave to file a

successive postconviction petition. People v. Bailey, 2017 IL 121450, ¶ 13. As we do so, we are

mindful of the fact that successive postconviction petitions are “highly disfavored.” Id. ¶ 39; see

also People v. Simms, 2018 IL 122378, ¶ 39 (section 122-1(f) of the Act shows intent of legislature

to curtail filings of successive petitions, in recognition of need for finality in criminal

prosecutions). We are also mindful of the fact that when a defendant files a motion seeking leave

to file a successive postconviction petition, “[t]he defendant has the burden to plead sufficient facts

and submit supporting documentation sufficient to allow the circuit court to make its [cause-and-

prejudice] determination.” People v. Edwards, 2012 IL App (1st) 091651, ¶ 25. “As with an initial

postconviction filing, in considering a motion for leave to file a successive petition, all well-

pleaded facts and supporting affidavits are taken as true.” Id. However, it is a well-established

principle in Illinois that even in circumstances where a court is to accept as true all well-pleaded

facts and any reasonable inferences that may arise from those facts, the court nevertheless cannot

accept as true mere conclusions unsupported by specific facts. See, e.g., Better Government Ass’n

v. Illinois High School Ass’n, 2017 IL 121124, ¶ 57; see also People v. Wideman, 2016 IL App

(1st) 123092, ¶¶ 59-62 (supporting documentation that does not contain well-pleaded facts is

insufficient to support granting leave to file a successive postconviction petition).

4 ¶9 On appeal in this case, the defendant contends that Judge Katz erroneously denied the

defendant’s pro se motion for leave to file a successive postconviction petition, because, according

to the defendant, Judge Cook “was a narcotics addict at the time of the” October 2011 evidentiary

hearing on the defendant’s first postconviction petition. He further contends that he has alleged

the requisite cause for failing to bring this claim in his first postconviction petition because during

the course of the proceedings on that petition, he was not aware of the drug use he now alleges on

the part of Judge Cook. He argues that he suffered actual prejudice in this case because although

this court affirmed Judge Cook’s 2011 ruling, he contends that this court did so after reviewing

Judge Cook’s reasoning for manifest error, which he suggests means that this court offered

“deference to a trier of fact who was a narcotics addict.” In terms of the relief he requests on appeal,

the defendant suggests that there should be an evidentiary hearing at which the circuit court

considers whether Judge Cook was “intoxicated” or “clouded in his judgment from his addiction”

at the time of the defendant’s October 2011 evidentiary hearing.

¶ 10 The State raises two objections in its brief on appeal. First, the State contends that because

the defendant’s claim of error does not arise from the trial that led to his murder convictions and

sentence of life imprisonment, he cannot bring his claim of error in a successive postconviction

petition filed pursuant to the Act. The State posits that the appropriate vehicle by which a defendant

may contend that there was a problem in the proceedings on a postconviction petition is a petition

for relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS

5/2-1401 (West 2018)). Second, the State argues that even if this court were to find that a

successive postconviction petition filed pursuant to the Act is an available vehicle by which a

defendant may pursue a claim that the defendant is entitled to a new evidentiary hearing on the

defendant’s first postconviction petition, this court should conclude that the defendant in this case

has not demonstrated the requisite cause and prejudice to warrant the granting of leave to file a 5 successive postconviction petition. With regard to the latter point, the State notes that the March

2014 newspaper article presented by the defendant in support of his allegations demonstrates, at

most, that Judge Cook might have been using drugs in 2011, not that he was. The State also

contends that the defendant bears the burden of proving that Judge Cook was actually, rather than

probably, biased against him, and also bears the burden of proving the nexus between Judge

Cook’s alleged drug use and the outcome of the defendant’s evidentiary hearing. The State posits

as well that a harmless error analysis may be applied to allegations of judicial bias, and that the

evidence against the defendant at trial in this case was overwhelming. The State further alleges

that the defendant, who admits he learned in 2014 of Judge Cook’s drug issues, did not act with

reasonable diligence where he failed to discover the March 2014 newspaper article until August

2018. Finally, the State contends that the defendant cannot show that he was prejudiced by this

court’s purported review, for manifest error, of Judge Cook’s 2011 order, because this court’s

review in the present appeal will be de novo, and will reveal that Judge Cook did not err.

¶ 11 In his reply brief, the defendant contends that a successive postconviction petition is an

appropriate vehicle by which to bring his current claim, because the proceedings on his first

postconviction petition were tied directly to his underlying trial, and thus create a sufficient nexus

between the two proceedings to satisfy the requirements of the Act. He points to cases in which

courts of review have allowed a successive postconviction petition as a means to address problems

in the proceedings on a prior postconviction petition. He claims the outcome would have been

different on his first postconviction petition “had [Judge] Cook not been drug-addled.” He

reiterates his belief that probable, rather than actual, judicial bias is all that must be shown, and

that a harmless error analysis may not be applied to claims of judicial bias. He further claims that

the March 2014 newspaper article he attached to his pro se motion for leave to file a successive

6 postconviction petition “demonstrate[s] former Judge Cook was a heroin, cocaine, and prescription

drug addict around the time of [the defendant’s] 2011 hearing.”

¶ 12 We begin with the State’s first contention on appeal, which is that because the defendant’s

claim of error does not arise from the trial that led to his murder convictions and sentence of life

imprisonment, he cannot bring his claim of error in a successive postconviction petition filed

pursuant to the Act. The State bases this argument on the plain language of the Act. However, we

conclude that it is not appropriate for this court to consider this contention at this time, because

doing so is not necessary to our disposition of this appeal. We conclude this because even if we

assume, arguendo, that the State is incorrect, and that a successive postconviction petition is an

available vehicle by which a defendant may pursue a claim that the defendant is entitled to a new

evidentiary hearing on the defendant’s first postconviction petition when the defendant has alleged

that a due process violation occurred during the proceedings on the first postconviction petition,

we conclude that the defendant in this case has not demonstrated the requisite cause and prejudice

to warrant the granting of leave to file a successive postconviction petition.

¶ 13 The defendant’s claim of error in this case is that his due process rights were violated

because, he asserts, as a matter of law a judge violates a defendant’s due process rights if that judge

uses illegal drugs, or abuses legal prescription drugs, at the time the judge presides over the

defendant’s third-stage evidentiary hearing. Implicit in this legal premise is an underlying fact that

must exist before the due process violation can occur: the fact that the judge—in this case, Judge

Cook—was using illegal drugs or abusing legal prescription drugs at the time the judge was

presiding over the defendant’s third-stage evidentiary hearing―which, in this case, occurred in

October 2011. If this “fact” was not sufficiently demonstrated by the documentation accompanying

the defendant’s motion, then both his cause and his prejudice arguments fail, because each of those

arguments was also premised on the “fact” of Judge Cook’s drug use at the time of the October 7 2011 hearing: the defendant’s “cause” argument was premised on him not being aware of the fact

of such drug use at that time, and his “prejudice” argument was premised on him being prejudiced

by having his case decided by a judge who was in fact using illegal drugs or abusing legal

prescription drugs at that time.

¶ 14 It is apparent from the record that throughout these proceedings the defendant has

recognized the necessity of demonstrating this factual premise. The March 2014 newspaper article

he attached to his pro se motion as an exhibit is the only evidence he has provided as purported

documentation of his factual premise. In his motion, he alleged that the article “revealed that Judge

Cook had been addicted and using drugs since 2010,” and that “[t]he drugs he used were

prescription pain pills, cocaine, and heroin.” The defendant next asserted, “So[,] Judge Cook was

using drugs in 2011 when he presided over th[e] defendant’s evidentiary hearing.” He further

asserted, pro se, that “prejudice is presumed and is an automatic violation of his due process rights,

where a presiding judge is addicted to mind and psychological altering drugs that are being

consumed daily and habitually while presiding over this defendant’s evidentiary proceedings.” On

appeal, the defendant’s counsel repeatedly asserts that Judge Cook “was” (not “might have been”)

“a narcotics addict at the time of the” October 2011 evidentiary hearing, and even makes the rather

strident claim in his reply brief that Judge Cook was “drug-addled” during the hearing. He adds,

in his reply brief, that the March 2014 newspaper article “demonstrate[s] former Judge Cook was

a heroin, cocaine, and prescription drug addict around the time of [the defendant’s] 2011 hearing.”

¶ 15 The problem for the defendant is that the newspaper article does not even remotely make

such a demonstration, and is not sufficient to meet the defendant’s “burden to plead sufficient facts

and submit supporting documentation sufficient to allow the circuit court to make its [cause-and-

prejudice] determination.” Edwards, 2012 IL App (1st) 091651, ¶ 25. Of relevance to the factual

premise the defendant relies upon for both his cause and his prejudice arguments—and for his due 8 process claim—the newspaper article discusses Judge Cook’s March 2014 sentencing hearing in

federal court and states that then-U.S. Attorney Steve Wigginton “said that Cook’s addiction began

with prescription pain pills he took for a health condition, aggravated by the death of his sister in

2010.” There are a number of problems with the defendant’s pro se assertion, on the basis of this

sentence in the article, that “So[,] Judge Cook was using drugs in 2011 when he presided over th[e]

defendant’s evidentiary hearing,” and that Judge Cook was “addicted to mind and psychological

altering drugs that [were] being consumed daily and habitually,” as well as with counsel’s repeated

assertions on appeal about Judge Cook’s purported drug use at that time. First, the sentence in

question states only that Judge Cook’s sister died in 2010, not that Judge Cook began taking, and

became addicted to, prescription pain pills in 2010, or on any specific date thereafter. Even when

taken as true, the statement that Judge Cook had a health condition that was aggravated by the

death of his sister in 2010, and that at some point he used prescription pain pills to deal with that

health condition, does not reasonably support the inference that he used—let alone abused—

prescription pain pills, or any other drugs, during the defendant’s October 2011 evidentiary

hearing. The article does not in any way purport to speak with such precision about when Judge

Cook’s addiction began, and the defendant’s unfounded leap of logic with regard to this point

eviscerates the reliability of the factual basis for his repeated contention that he has established the

“fact” of Judge Cook’s drug use at that time. Second, although the sentence in the article that

references the death of Judge Cook’s sister in 2010 mentions an addiction, at some point in time,

to prescription pain pills, it does not state that Judge Cook abused the pills—even if addicted to

them—to the extent that it would have impaired him, and certainly provides no factual support for

the notion that he did so in October 2011. Third, the sentence in the article that references the death

of Judge Cook’s sister in 2010 mentions only prescription pain pills, it does not mention cocaine

or heroin at all. 9 ¶ 16 In short, the defendant’s leap from the sentence in the March 2014 article quoted above to

his pro se purportedly factual assertions that “So[,] Judge Cook was using drugs in 2011 when he

presided over th[e] defendant’s evidentiary hearing,” and was “addicted to mind and psychological

altering drugs that [were] being consumed daily and habitually”—let alone the leap to counsel’s

repeated purportedly factual assertions on appeal about Judge Cook’s alleged drug use at that time,

including counsel’s assertion that Judge Cook was “drug-addled”—is too disconnected from any

specific facts to be sustainable.

¶ 17 It is certainly true, as explained above, that “as with an initial postconviction filing, in

considering a motion for leave to file a successive petition, all well-pleaded facts and supporting

affidavits are taken as true.” Edwards, 2012 IL App (1st) 091651, ¶ 25. However, it is equally true

that even in circumstances where a court is to accept as true all well-pleaded facts and any

reasonable inferences that may arise from those facts, that court nevertheless cannot accept as true

mere conclusions unsupported by specific facts. See, e.g., Better Government Ass’n, 2017 IL

121124, ¶ 57; see also Wideman, 2016 IL App (1st) 123092, ¶¶ 59-62 (supporting documentation

that does not contain well-pleaded facts is insufficient to support granting leave to file a successive

postconviction petition). In this case, the factual premises upon which the defendant relies are no

such things; to the contrary, rather than being well-pleaded facts, they instead are unsupported

conclusions that simply cannot reasonably be derived from the contents of the March 2014

newspaper article. The defendant’s assertions that are actually supported by facts, reasonable

inferences drawn therefrom, and documentation are simply that (1) Judge Cook presided over the

defendant’s October 2011 evidentiary hearing and (2) Judge Cook was later determined to have

had a drug problem at some point while he was on the bench, with his drug problem purportedly

beginning with prescription pain pills he took for a health condition, aggravated by the death of

his sister in 2010. These facts are a far cry from the purported “fact”—that Judge Cook was using 10 illegal drugs or abusing legal prescription drugs at the time of the defendant’s October 2011 third-

stage evidentiary hearing—that, as explained above, the defendant invoked in support of both his

cause argument and his prejudice argument, as well as his underlying due process claim.

Accordingly, because the supporting documentation provided by the defendant in this case was

too tenuous and speculative to support the defendant’s assertion that Judge Cook was using drugs

at the time of the defendant’s evidentiary hearing, it also was too tenuous and speculative to allow

a court to conclude from it that the defendant satisfied the cause-and-prejudice test. As a result,

Judge Katz did not err when she denied the defendant’s motion for leave to file a successive

postconviction petition. See, e.g., Bland, 2020 IL App (3d) 170705, ¶ 9.

¶ 18 The denial of the defendant’s pro se motion for leave to file a successive postconviction

petition was proper for a second reason as well. The defendant posits on appeal that his motion

established that he suffered actual prejudice in this case because although this court affirmed Judge

Cook’s 2011 ruling, he argues that this court did so after reviewing Judge Cook’s reasoning for

manifest error, which he suggests means that this court offered “deference to a trier of fact who

was a narcotics addict.” The defendant does not explain how his argument fits the definition of

prejudice as an error that so infected the entire trial that the defendant’s conviction violates

standards of due process. See, e.g., id. Moreover, in making this argument, the defendant misreads

our earlier order in this case. In that order, this court noted the general proposition that “[w]hen a

ruling after an evidentiary hearing requires the postconviction court to make credibility

determinations and findings of fact, we will not reverse unless the court’s decision is manifestly

erroneous.” People v. Wallace, 2013 IL App (5th) 110496-U, ¶ 24. However, in the sentences

immediately following this statement, we added: “Here, the defendant has alleged ineffective

assistance of counsel. We evaluate his claim under the standards set forth in Strickland v.

Washington, 466 U.S. 668 (1984).” Id. ¶ 25. We then noted that under Strickland, to prevail on his 11 claim of ineffective assistance, the defendant was required to show, inter alia, that he suffered

prejudice as a result of counsel’s deficient performance, which in turn required the defendant to

demonstrate that but for counsel’s mistakes, there is a reasonable probability that he would not

have been convicted at trial. Id.

¶ 19 We thereafter meticulously analyzed, in accordance with relevant case law, the sole

contention raised on appeal by the defendant: that his trial counsel was ineffective for failing to

call an additional alibi witness for the defendant, Calvery Brown. Id. ¶¶ 27-42. In so doing, we

thoroughly reviewed the relevant evidence, set out earlier in our order (see id. ¶¶ 4-14), that was

presented at the defendant’s trial, which took place over a decade prior to the defendant’s October

2011 evidentiary hearing, and which was not presided over by Judge Cook. In our analysis, we

first noted that we did not believe that we could determine, from the record, whether the failure to

call Brown as a witness was trial strategy. Id. ¶ 27. We concluded, however, that regardless of

whether it was trial strategy, “the defendant’s claim of ineffective assistance of counsel must fail

because he cannot demonstrate that a different outcome was reasonably probable had Calvery

Brown been called as an additional alibi witness.” Id. In our analysis of this point—which was the

point upon which we affirmed the circuit court’s judgment (see id. ¶ 43)—we did not defer at all

to Judge Cook’s assessment of the defendant’s trial; in fact, we never mentioned, even once, Judge

Cook’s order or analysis as we conducted our own assessment of whether the defendant had

demonstrated the prejudice required under Strickland. Id. ¶¶ 28-42. To the extent any credibility

determinations about the evidence presented at the defendant’s trial were necessary, those

determinations were made by this court (see id.), not by Judge Cook, who in any event never

mentioned, when rendering his decision, any assessments he might have made as to the credibility

of any of the witnesses who testified at the defendant’s trial over a decade earlier. In fact, other

than the one-sentence reference, in paragraph 24 of our order, to the standard of review that is 12 applied when a ruling after an evidentiary hearing requires the postconviction judge to make

credibility determinations and findings of fact, we did not, in the entirety of our order, mention a

manifest weight of the evidence standard of review, and at no point did we state that we were

affirming Judge Cook’s judgment because it was not manifestly erroneous. See id. ¶¶ 1-44.

¶ 20 Thus, the record on appeal in this case completely repudiates the defendant’s contention

that when deciding the defendant’s previous appeal, in People v. Wallace, 2013 IL App (5th)

110496-U, this court deferred to Judge Cook’s findings of fact or credibility determinations, and

thoroughly rebuts the notion that the defendant was in any way prejudiced as a result of Judge

Cook presiding over the defendant’s evidentiary hearing. The sole potentially-meritorious issue 1

presented in the defendant’s first postconviction petition was considered on appeal by a panel of

three impartial judges of this court, without deference to Judge Cook’s analysis of, and conclusions

about, that petition, and was found to be without merit. We conclude that our review of the

evidence presented at the defendant’s trial, and our conclusion that the evidence was not closely

balanced and that accordingly the defendant’s ineffective assistance of counsel claim failed on

appeal because the defendant could not show the required prejudice as a result of the alleged

ineffective assistance, means this case is not “one of those rare instances where the defendant

should be allowed to proceed in his successive postconviction petition” (People v. White, 2020 IL

App (5th) 170345, ¶ 31), because the outcome would nevertheless be the same. In light of that

conclusion, we do not believe that justice would be served in this case by allowing further

proceedings on a meritless claim. In short, because of the manner in which this court handled the

1 At no point has the defendant contended that other issues raised in the defendant’s first postconviction petition (1) should have been raised by his counsel on appeal, (2) had merit, or (3) were improperly denied by Judge Cook. Accordingly, the defendant has forfeited consideration of any such arguments. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (argument must contain the contentions of the appellant, the reasons therefor, and the citation of authorities; points not argued in an opening brief are forfeited and shall not be raised in the reply brief, in oral argument, or in a petition for a rehearing). 13 defendant’s appeal from Judge Cook’s ruling, not only was there no actual prejudice to the

defendant, there also was no potential prejudice to the defendant. In other words, this is not a case

in which the court is left to speculate as to whether there was prejudice: we see clearly that there

was not. Accordingly, the defendant failed to adequately allege prejudice in this case. See Bland,

2020 IL App (3d) 170705, ¶ 9 (if a defendant fails to adequately allege cause and prejudice, the

circuit court does not reach the merits of the defendant’s successive petition, or conduct further

proceedings, because the cause-and-prejudice test is a procedural prerequisite to obtaining that

review).

¶ 21 III. CONCLUSION

¶ 22 For the foregoing reasons, we affirm the order of the circuit court of St. Clair County that

denied the defendant’s motion for leave to file a successive postconviction petition.

¶ 23 Affirmed.