THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RICHARD HUFF, Petitioner-Appellant.
No. 1-20-1278
Appellate Court of Illinois, First Judicial District
April 12, 2022
2022 IL App (1st) 201278
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Cobbs concurred.
SECOND 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). Appeal from the Circuit Court of Cook County. No. 97 CR 26081. Honorable Carol M. Howard, Judge Presiding.
¶ 1 Held: The circuit court’s second stage dismissal of the petitioner’s postconviction petition is affirmed where the petitioner failed to establish that his appointed postconviction counsel rendered unreasonable assistance by not substantially complying with
¶ 2 After a jury trial in the circuit court of Cook County, the petitioner, Richard Huff was
I. BACKGROUND
¶ 4 The record before us reveals the following relevant facts and procedural history. In September 1997, the petitioner was indicted with one count of first-degree murder for repeatedly beating the victim, his five-year-old daughter, with a belt over a period of several hours, ultimately resulting in her death.
¶ 5 On September 10, 1997, the 26-year-old petitioner returned home after midnight and found the victim awake because she had not finished her kindergarten homework, which consisted of tracing and coloring. After learning that the victim’s teacher had complained that the victim had not been turning in her homework, the petitioner told the victim that she had 15 minutes to finish
¶ 6 Over the next three hours, the petitioner repeatedly whipped the naked victim every 15 to 20 minutes with a leather belt and electrical wire. During that time, the victim tried to run away from the petitioner several times. Consequently, she fell and hit her head numerous times. At the end of the three hours, the victim was naked, bleeding and bruised.
¶ 7 While the petitioner’s girlfriend, who was also present in the home, asked the petitioner to “cool out,” the petitioner retorted that she had no right to tell him how to discipline his children, and continued beating the victim. In fact, the petitioner did not cease the whipping until his girlfriend told him that the victim was bleeding, which he failed to notice.
¶ 8 After the victim washed herself, the petitioner put her to bed, but kept her awake because he was worried about her head injuries. A few hours later, he found her unresponsive, lying on the floor of her bedroom. After being taken to the hospital, the victim was pronounced dead. An autopsy subsequently revealed that she died from multiple blunt force trauma.
¶ 9 At the close of trial, the jury found the petitioner guilty of first-degree murder and the parties proceed with sentencing.
¶ 10 The State sought the imposition of the death penalty, arguing that because the victim was under 12 years old, the offense was exceptionally brutal and heinous and indicative of wanton cruelty. The petitioner waived his right to a jury for the death penalty sentencing phase and agreed that the circuit court alone should determine whether he was eligible for the death penalty. The circuit court found that the defendant was eligible but declined to impose the death penalty based on the petitioner’s lack of prior criminal history. Nonetheless, finding that the petitioner’s conduct
¶ 11 The petitioner appealed his conviction and sentence, arguing, inter alia, that his natural life sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because the sentence was based on a finding of “exceptionally brutal and heinous behavior” made by the trial judge, rather than a jury. This appellate court affirmed the petitioner’s conviction and sentence, finding that Apprendi did not apply to a circuit court’s finding of “exceptionally brutal and heinous behavior,” and that where a defendant is first found eligible for the death penalty, the circuit court is permitted to impose a sentence of natural life without implicating Apprendi. See People v. Huff, No. 1-00-2414 (September 28, 2001) (unpublished order pursuant to
¶ 12 On February 10, 2005, the petitioner filed a pro se petition for relief from judgment pursuant to
¶ 13 On July 19, 2016, the petitioner filed the instant pro se postconviction petition again contending that his natural life sentence, based on the trial judge’s finding that the offense was “brutal and heinous” was unconstitutional under Apprendi. The petitioner recognized that he had already raised this issue and that it had been rejected by this appellate court twice. Nonetheless, he asserted that the law had evolved since his direct appeal, and that therefore the court should reconsider his claim. With respect to the timeliness of his petition, the petitioner asserted that because his petition advanced a claim that the court lacked the inherent power to enter the order involved, i.e., a claim that his sentence was void, the claim was not subject to the ordinary statutory limitation period for post-conviction petitions and could be raised at any time.
¶ 14 On February 15, 2017, the petition was docketed for second stage postconviction proceedings, and the circuit court appointed the Office of the Cook County Public Defender to represent the petitioner. On June 2, 2017, appointed postconviction counsel appeared on behalf of the petitioner and asked the court to order the release of the petitioner’s transcripts and records from the clerk of the circuit court.
¶ 15 Over the next year and a half, postconviction counsel repeatedly informed the court that the records in the petitioner’s case had yet to be released to her by the clerk’s office. On January 3, 2018, counsel presented a motion for rule to show cause against the clerk of the circuit court, which the court granted.
¶ 16 On February 2, 2018, postconviction counsel informed the court that she had finally received the records from the clerk’s office and that she would begin reviewing them. At the next several court hearings, counsel informed the court that she was still reviewing the records and that because the petitioner was raising an Apprendi claim she wanted to reach out to a colleague who
¶ 17 On December 12, 2019, the State filed a motion to dismiss the petition on three grounds. First, the State argued that the petitioner was procedurally barred from filing the petition because it was filed beyond the statute of limitations. The State pointed out that the petition was due on May 2, 2002, but that it was not filed until July 19, 2016. In addition, the State pointed out that the petitioner had not asserted any facts showing that the delay in filing was not a result of his own culpable negligence. Moreover, in response to the petitioner’s assertion that his sentence was void, and could therefore be attacked at any time, the State contended that the void sentence rule was abolished by People v. Castleberry, 2015 IL 116916. Second, the State argued that the petitioner’s claim was barred by res judicata because the appellate court had considered the same Apprendi arguments in affirming his sentence on direct appeal and in affirming the dismissal of his section 2-1401 petition for relief from judgment (
¶ 18 After the State filed its motion, the case was continued several times. On October 27, 2020, postconviction counsel informed the court that she “had the chance to review the case at length,” and that she would not be filing a written response. Instead, she stated that she would be resting on her
¶ 19 On November 2, 2020, the court heard arguments on the State’s motion to dismiss via Zoom. The petitioner’s postconviction counsel waived the petitioner’s appearance and rested on his pro se petition. The State reiterated its most salient argument, i.e., that the petitioner’s claim was barred by res judicata because the Apprendi issue had already been considered and rejected twice by the appellate court. The circuit court granted the State’s motion based on res judicata. The petitioner now appeals.
II. ANALYSIS
¶ 21 On appeal, the petitioner does not argue the merits of his petition, nor does he contend that dismissal of his petition was improper based on either timeliness or res judicata.1 Instead, he solely contends that he did not receive reasonable assistance from his postconviction counsel. In this respect, the petitioner asserts that postconviction counsel essentially conceded the State’s motion to dismiss by failing to: (1) amend his pro se postconviction petition; (2) file a written response to the State’s motion; or (3) make any arguments during the motion to dismiss hearing. The petitioner asserts that postconviction counsel was required to either amend his pro se petition to adequately present his claim of error and respond to the State’s motion or, in the alternative withdraw from the case, thereby allowing the petitioner to advance his claim on his own or through new counsel.
The petitioner therefore urges this court to reverse the circuit court’s dismissal order and remand
¶ 22 The
¶ 23 The Act creates a three-stage procedure for postconviction relief. People v. Makiel, 358 Ill. App. 3d 102, 104 (2005); see also People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Proceedings under the Act are commenced by the filing of a petition in the circuit court that contains the allegations pertaining to the substantial denial of the petitioner’s constitutional rights. People v. Jones, 213 Ill. 2d 498, 503 (2004). At the first stage, the circuit court must, within 90 days after the petition is filed and docketed, independently review the petition and determine whether the allegations, if taken as true, demonstrate a constitutional violation or whether they are “frivolous” or “patently without merit.”
¶ 24 If, as here, the circuit court does not dismiss the petition as frivolous or patently without merit within the first 90 days, the petition automatically advances to the second stage, where it is docketed for additional consideration.
¶ 25 During the second stage, the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a violation of constitutional rights. People v. Edwards, 197 Ill. 2d 239, 246 (2001). In doing so, the circuit court may not “engage in fact finding or credibility determinations,” but must take all well-pleaded facts in the petition as true unless positively rebutted by the record. People v. Domagala, 2013 IL 113688, ¶ 35; People v. Pendleton, 223 Ill. 2d 458, 473 (2006); see also People v. Towns, 182 Ill. 2d 491, 501 (1998). If the circuit court determines that the petitioner made a substantial showing of a constitutional violation, the petition proceeds to the third stage for an evidentiary hearing. Domagala, 2013 IL 113688, ¶ 35; see also Edwards, 197 Ill. 2d at 246. Conversely, where no substantial showing is made the petition is dismissed. Id.
¶ 26 When, as here, counsel is appointed to represent an indigent petitioner at the second stage of postconviction proceedings, the petitioner is only entitled to a “reasonable” level of assistance. People v. Custer, 2019 IL 123339, ¶ 30; see also People v. Johnson, 2018 IL 122227, ¶ 16; People v. Greer, 212 Ill. 2d 192, 204 (2004). Because appointment of counsel at this stage is a matter of “legislative grace” and not a constitutionally guaranteed right, the standard is significantly lower than the “effective assistance of counsel” level required at trial. Perkins, 229 Ill. 2d at 42; Custer, 2019 IL 123339, ¶ 30.
¶ 27 Our supreme court has explained that to provide a “reasonable” level of assistance, postconviction counsel must perform specific duties as articulated by
¶ 28 The filing of a
¶ 29 We review both the dismissal of a second stage postconviction petition and the question of whether counsel provided reasonable assistance de novo. People v. Wallace, 2018 IL App (5th) 140385, ¶ 31. In doing so, we may affirm the circuit court’s dismissal on any basis shown in the record. People v. Davis, 382 Ill. App. 3d 701, 706 (2008).
¶ 30 In the present case, after a review of the record, we find that the petitioner has failed to rebut the presumption that his postconviction counsel rendered reasonable assistance in substantial compliance with
¶ 31 The record before us reveals that after being appointed to represent the petitioner on June 2, 2017, postconviction counsel immediately requested the transcripts and records of the
¶ 32 On appeal, the petitioner contends that counsel’s decision not to amend his petition and her subsequent failure to respond to the State’s motion to dismiss rendered him with unreasonable assistance. The petitioner, however, does not explain how counsel should have amended his pro se petition or responded to the State’s motion to dismiss to further his Apprendi claim. Nor can he, since he himself acknowledges that his claim was already addressed and rejected by this appellate court twice. Rather, the petitioner argues that if counsel determined that his petition lacked merit, which he presumes she did by mere failure to respond to the State’s motion to dismiss, counsel had an ethical duty to withdraw. In support, the petitioner relies on Greer, 212 Ill. 2d 192 (2004), People v. Kuehner, 2015 IL 117695, ¶ 21, and People v. Shortridge, 2012 IL App (4th) 100663. For the following reasons, we disagree and find those case inapposite.
¶ 33 Contrary to the petitioner’s position, postconviction counsel was not required to choose between amending the pro se petition or withdrawing as counsel. Rather, our appellate courts have repeatedly held that both options were available to her. See e.g., People v. Pace, 386 Ill. App. 3d 1056, 1062 (2008) (“Rule 651(c) does not require counsel to amend the pro se petition. [Citation.]
¶ 34 The petitioner’s reliance on Greer, Kuehner, and Shortridge to the contrary is misplaced.
¶ 35 In Greer, 212 Ill. 2d at 195-96, the petitioner’s appointed postconviction counsel determined that the pro se petition was meritless and therefore sought to withdraw as counsel. After the circuit court dismissed the petition sua sponte, the appellate court affirmed the circuit court’s decision to grant postconviction counsel’s request to withdraw but reversed the sua sponte dismissal. Id. The case proceeded to our supreme court solely on the issue of postconviction counsel’s right to withdraw. Id. at 195-96. The supreme court held that once postconviction counsel determines that the petitioner’s claims are frivolous and patently without merit, counsel is under no obligation to continue representing the petitioner. Id. at 209. The court also noted that if the claims are frivolous, counsel is ethically prohibited from further representing the petitioner. Id.
¶ 36 Accordingly, while Greer authorizes withdrawal of postconviction counsel where the petition cannot be amended to state a meritorious claim, it nowhere creates a per se requirement that counsel must withdraw instead of complying with
¶ 37 The petitioner’s reliance on Kuehner, 2015 IL 117695 is similarly misplaced. In that case our supreme court considered the duties of a postconviction counsel who attempts to withdraw after an “affirmative judicial determination that the pro se petition is neither frivolous nor patently without merit.” Id. ¶ 27. The court held that where a pro se petition is advanced to the second stage of proceedings on an explicit finding by the circuit court that the petition is not frivolous or patently without merit, appointed postconviction counsel cannot second guess the circuit court’s findings but rather must “move the process forward by cleaning up the [petitioner’s] pro se claims and presenting them to the court for adjudication.” Id. ¶ 21. The court further held, however, that if postconviction counsel discovers a reason that would ethically prohibit him from presenting the claims to the court, he “bears the burden of demonstrating, with respect to each of the [petitioner’s] pro se claims, why the trial court’s initial assessment was incorrect.” Id.
¶ 38 Contrary to the petitioner’s position, nothing in Kuehner suggests that appointed postconviction counsel has the same obligation where, as here, the pro se petition is automatically
¶ 39 Lastly, we also reject the petitioner’s reliance on Shortridge, 2012 IL App (4th) 100663. In that case, appointed postconviction counsel did not just fail to amend the pro se petition. Instead, he “confess[ed] the motion to dismiss.” Id. ¶ 6. The appellate court held that counsel’s act of “confessing the motion to dismiss,” did not fall within the reasonable level of assistance guaranteed under the Act. Id. ¶ 15. Citing Greer, the court stated that “[i]f counsel, in fact, found the allegations ‘nonmeritorious,’ even with any necessary amendments, then he should have moved to withdraw as counsel, not confess the State’s motion to dismiss.” (Emphasis added). Id. ¶ 14.
¶ 40 Unlike in Shortridge, where postconviction counsel neither stood on the pro se petition nor moved to withdraw but, instead, pursued a third, impermissible alternative—confessing the State’s motion to dismiss, here, postconviction counsel chose to rest on the pro se petition, explaining that the petition adequately set forth the petitioner’s arguments. Accordingly, counsel’s decision to rest on the pro se petition does not support the petitioner’s claim of unreasonable assistance. See Dixon, 2018 IL App (3d) 150630, ¶¶ 21-22; see Malone, 2017 IL App (3d) 140165, ¶ 10; see Pace, 386 Ill. App. 3d at 1062.
III. CONCLUSION
¶ 42 For the following reasons we find that the petitioner has failed to rebut the presumption that his postconviction counsel rendered reasonable assistance in substantial compliance with
¶ 43 Affirmed.