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.

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