Court holds that petitioner does not have right to counsel (or to complain about counsel) before court grants motion for leave to file successive petition

The appellant in People v. Moore, 2019 IL App (3d) 170485, appealed the trial court’s order denying his motion for leave to file a successive post-conviction petition on the grounds that appointed counsel provided unreasonable assistance. The Third District ultimately affirmed the judgment of the trial court.

Moore was found guilty of seven counts of first-degree murder and one count each of home invasion, aggravated criminal sexual assault, robbery, residential burglary, and arson. Appellant was sentenced to death, which was subsequently commuted by Governor George Ryan (in 2003) to a term of natural life imprisonment. Id. at ¶ 3. Thirteen years later, Moore filed a pro se motion for leave to file a successive post-conviction petition.

The petition argued that “(1) the state’s attorney lacked jurisdiction to file the indictment and prosecute defendant; (2) the statutes he is under are unconstitutional; (3) the home invasion and aggravated criminal sexual assault statutes were unconstitutional, and therefore, those charges should not have been put before the jury and violated defendant’s right to due process; and (4) his present sentence is unconstitutional.” A pro se post-conviction petition accompanied the motion for leave. The court appointed counsel to represent Moore. Id. at ¶ 5.

Appointed counsel filed an amended successive post-conviction petition asking the court to “vacate and void the Judgement and Sentence” with no legal arguments and no cause and prejudice argument. Id. at ¶ 6. No separate motion for leave was filed. Following counsel’s appointment, appellant filed several pro se motions that complained of the reasonableness of counsel’s performance. Id. at ¶ 7. Prior to considering any of the arguments contained within the post-conviction petition and subsequent motions, the court denied leave, finding defendant had not satisfied the cause-and-prejudice test. Id. at ¶ 7. Moore appealed.

Moore argued on appeal that appointed counsel provided unreasonable assistance at the leave to file stage of the successive post-conviction proceeding. The court noted that the trial court had not erred in denying Moore leave to file the petition, as in order to obtain leave of the court, Moore had to show cause for his failure to bring the claim in his initial post-conviction petition and prejudice resulting from that failure. Id. at ¶ 10. The court further expanded that appellant had failed to support his claims of cause-and-prejudice with any assertions of fact. The court found the assertions of cause-and-prejudice, made absent any citations to relevant case law, to be insufficient to warrant leave to file a successive post-conviction petition. Id. at ¶ 11.

As to Moore’s assertion of unreasonable assistance of counsel, the court held that Moore was not entitled to counsel at this stage of the proceedings and thus, “cannot complain of the reasonableness of counsel’s assistance as he did not have the right to counsel.” Id. at ¶ 12. The court held that because Moore “had not yet reached the first stage, let alone the second stage [of post-conviction proceedings], the court’s appointment of counsel was both premature and unsupported by the Act.” Id. at ¶ 14. The appellate court affirmed.

Appellate Counsel was not Ineffective for Failing to Brief All Issues in Motion for New Trial

The appellant in People v. Borizov, 2019 IL App (2d) 170004 appealed the decision of the trial court dismissing his pro se post-conviction petition, which alleged ineffective assistance of appellate counsel for failing to raise each issue in the motion for a new trial. The Appellate Court of Illinois Second District affirmed the decision of the circuit court.

Borizov was convicted of three counts of first-degree murder and one count of solicitation to commit murder. Following conviction, Borizov filed a motion for new trial, alleging 31 trial errors. One of the alleged errors was that a juror should have been dismissed after informing the court that she went to church with a cousin of one of the victims in the case. Id. at ¶ 3. The trial court held a hearing on the motion and denied it before sentencing Borizov to three consecutive terms of natural life in prison for the murders and a consecutive term of 30 years imprisonment for the solicitation charge.

On direct appeal, appellant contended, through counsel, that a new trial should be granted due to a “pervasive pattern of prosecutorial misconduct.” Id. at ¶ 4. The appellate court held that although the prosecution committed several instances of misconduct, the evidence was not closely balanced, and the prosecution did not engage in a pervasive pattern of prosecutorial misconduct warranting a new trial. Id. at ¶ 4. Borizov then filed a pro se petition under the Post Conviction Hearing Act alleging ineffective assistance of appellate counsel relating to appellate counsel’s alleged failures to consult with trial counsel regarding his decision to raise only one issue at the time of trial and failure to consult with Borizov regarding other issues. Id. at ¶ 5. The trial court summarily dismissed the petition, characterizing the petition as “non-specific, bald and conclusory” and failing to specify prejudice resulting from any alleged error, as required under Strickland. Id. at ¶ 6. This appeal followed.

On appeal, Borizov argued that appellate counsel’s failure to raise the preserved structural error of the juror’s implied bias is a claim of constitutional dimension with an arguable basis in law and fact. Id. at ¶ 9. The court noted that the Strickland test applies to claims of ineffective assistance of appellate counsel and thus applies in this instance. Id. at ¶ 13. As such, the court held that Borizov must allege facts demonstrating that the alleged failure was objectively unreasonable and prejudiced the defendant. Id. at ¶ 14. Moreover, the court noted appellate counsel is not required to brief every conceivable issue on appeal, and it is not incompetence for counsel to refrain from raising issues that, in his or her judgement, are without merit.

The Appellate Court noted that counsel did in fact raise issues regarding prosecutorial misconduct, arguing a pervasive pattern of prosecutorial misconduct as a ground for a new trial. Moreover, counsel specifically raised issues about the introduction of irrelevant and prejudicial evidence. Id. at ¶ 17-20. As a result, the court found appellants claims that counsel raised none of the issues in his motion to be patently false. Additionally, the court noted the impossibility of gauging the precise basis for the claim that counsel’s performance fell below an objective standard of reasonableness, meaning that the petition lacked grounds for showing sufficient prejudice. The court disagreed with Borizov that he had raised the gist of a constitutional claim. Id. at ¶ 21. The court further noted that, even if they could, the claim would still fail because of the aforementioned requirements for counsel under Strickland.

On the specific issue related to the potentially biased juror, the court held “To find that the trial court’s decision here to allow Juror 189 to remain impaneled amounts to structural error would be fanciful at best. The record reveals that the trial court went to great lengths to ensure that Juror 189 understood her role as an impartial juror. Further, her relationship to a cousin of the victims is insufficient to show that defendant suffered any prejudice, as all the record reflects is that Juror 189 and the cousin attended the same church.” Id. at ¶ 32.

Ultimately, the Second District held that Borizov’s petition lacked an arguable basis in law or fact, as it was completely contradicted by the record. As such, the court affirmed the judgement of the Circuit Court of DuPage County.