delivered the opinion of the court:
Defendant Italic Sanders
1
appeals from the third-stage dismissal of his postconviction petition for new trial. In 1994, defendant was convicted of first-degree murder for the shooting death of John Pinkerton amidst evidence that the shooting was a gang-related crime. He subsequently filed for postconviction relief, contending that the trial court erred in failing to inquire into potential gang bias of venire members under the standard articulated in People v. Strain,
I. BACKGROUND
Defendant Italic Sanders was arrested and charged with the first-degree murder of Pinkerton on April 26, 1992. The State’s theory of the case was that on January 24, 1992, Pinkerton was visiting relatives at the Robert Taylor Homes housing project at 4500 South State Street in Chicago. At the time of the shooting, he was walking down the fifth-floor hallway with his cousin, Alexander Robinson, and his other cousin, Manuel Woods, who was then seven years old. Defendant was allegedly standing on the nearby stairwell landing, and as the three of them walked by, he allegedly drew a gun and shot Pinkerton multiple times. Pinkerton died from his injuries two months later. The defense, for its part, denied that defendant had any involvement in the murder. It alleged that at the time of the shooting, defendant was at home in his fifteenth-floor apartment at 4500 South State Street.
The case proceeded to a jury trial. Before jury selection, the defense expressed concerns about the potential prejudicial impact of expected testimony by Michael Stewart, the victim’s brother. Stewart was expected to testify that a couple days after the shooting, defendant told him that the shooting was “BD business,” i.e., business of the street gang known as the Black Disciples. Accordingly, defense counsel filed an in limine motion to exclude any evidence related to gangs. In the alternative, the defense asked the court to question the veniremen to find out whether they had any preconceived notions about gangs that might prejudice them against the defendant due to this evidence of gang affiliation.
The court denied both motions, finding that the statement was admissible as evidence of motive and that voir dire questioning on the subject of gangs was unnecessary. The court explained that “questions concerning an individual juror’s impression or notions about gang activity, I feel, is really not relevant. It’s a highly subjective question and can only, I think, have the effect to possibly inflame the other members of the venire.”
In its opening statements, the State laid out its theory of the case as described above. In setting out the scene of the crime, counsel for the State described defendant as “walking] along with at least two other people” in the stairwell facing the fifth-floor hallway that the victim was passing through. The State also summarized the evidence that it intended to bring against defendant. First, it said that Woods had identified defendant as the one who shot his cousin in a police lineup and that Woods would testify that defendant was the shooter. Second, it said that it would call Pinkerton’s brother Stewart to testify as follows:
“[A]bout two or three days after the shooting, Michael Stewart *** saw Italio Sanders on the fifth floor, and he went up to him and asked Italio Sanders if he knew who shot his brother. Italio Sanders told him that it was BD business, it was not his business. He couldn’t tell him. Italio Sanders wanted to know if his brother was dead, and at that time it was only two or three days after, he wasn’t dead, and Michael Stewart said no, he’s not dead. And you will hear what Italio Sanders responded, what he said to Michael Stewart. And what he said was, ‘Well, it wasn’t meant for him, it was meant for the other guy that was with him.’ ”
The State further said that one week after the shooting, police responded to a call and saw defendant drop something in a bush while running from them. According to the State, after police apprehended defendant, they checked the bush and found a .38-caliber handgun whose characteristics were consistent with the gun that shot Pinkerton.
The State called nine-year-old Manuel Woods to testify. Manuel stated that he was Pinkerton’s cousin. In January 1992, he lived with his mother in apartment 503 at 4500 State Street, and his cousin Michael Stewart lived down the hall in apartment 508.
On the night of the shooting, according to Manuel, Pinkerton and his cousin Alexander Robinson came to visit his apartment. Manuel allegedly left with them; the three of them were going to pick up Stewart and then go to watch a Bulls game together. Manuel testified that he was walking on Pinkerton’s left side, holding his hand. As they went down the hall, Manuel said, he heard gunshots and saw Pinkerton “jumping.” At that time, Manuel testified, he saw defendant on top of the staircase shooting at Pinkerton. He did not see anyone else on the stairwell. Manuel said that Pinkerton pushed him out of the way, and then Manuel ran to Stewart’s apartment, telling him, “They shot Johnnie.”
During Manuel’s testimony, the State showed the jury several photographs of the area where the shooting took place and had Manuel indicate where he was standing at the time of the shooting and where he said he saw defendant. In one of the photographs, gang graffiti reading “GDs die” and “BDs live” was visible on the wall.
Manuel further testified that sometime in April 1992, he went to the police station with his mother. There, he said, he viewed a five-man lineup, from which he identified defendant as the shooter. He stated that he had seen defendant around the apartment building about four times before the shooting occurred, and defendant was the only person in the lineup that he had ever seen before.
Manuel’s mother, Janese Woods, also testified; she said that she went with Manuel to view a police lineup on April 6, 1992. From five people seated in chairs, she said, he picked one as his cousin’s shooter. She stated that, while she and a police officer were with Manuel in the room, neither of them said anything to him.
The State also called Alexander Robinson, Pinkerton’s cousin, to testify regarding events on the night of the shooting. Robinson testified that on January 24, 1992, he went with Pinkerton to visit his aunt Janese and his cousin Stewart. When they entered the building, he said, he saw four men, including the defendant, come in the front door. He said that they were shooting dice in front of the first floor elevator. According to Robinson, they paused for Pinkerton to speak with a girl, then went up to the fifth floor, where they saw “a lot of people out there,” including the defendant.
Robinson said that after visiting apartment 503, the two of them left with Manuel for Stewart’s apartment. On the way there, Robinson said, he heard shots from the stairway, looked up, and saw two people on the landing. However, Robinson testified that he did not identify defendant at the time of the shooting and did not know who shot Pinkerton.
The State also called Michael Stewart to testify. Stewart testified that Pinkerton was his youngest brother. He stated that on January 24, 1992, shortly before 7 p.m., he noticed a group of at least five men, including defendant, standing in the hallway by the elevator. According to Stewart, defendant was wearing a light blue Charlotte Hornets coat. Stewart said that he did not know defendant by name at that time, but he had seen defendant several times before, “always with other guys.”
Shortly afterward, Stewart testified, he heard gunfire in the hallway, and Woods came knocking on his door screaming “they shot Johnnie.” Stewart says that he ran down the hallway and saw Pinkerton lying on the floor bleeding; at that time, Stewart did not see defendant or the others he had seen earlier.
Two or three days after the shooting, according to Stewart, he saw defendant near his apartment and approached to speak with him:
“Q. What did you say?
A. I asked him, I say, you was out here on the porch the night my brother got shot and would you tell me who shot my brother.
Q. Did he say anything to you at the time?
A. He asked me was he dead.
Q. What did you say?
A. I said no, he’s not.
Q. Then what did you say?
A. And he said it was BD business and he couldn’t tell me anything other than that the shots weren’t meant for my brother, they were meant for the n.....that was with my brother. I say that’s my cousin.”
Over objection, Stewart testified that he knew that “BD” stood for Black Disciples, a street gang. He also admitted that he had never told the police about this conversation with defendant, not during his meetings with them on March 27, 1992, and on April 7, 1992, nor at any other time. He said that the first time he told the prosecutors of this conversation was on March 21, 1994, less than a week before the trial.
The State also called a number of witnesses for the purpose of establishing a link between defendant and the gun used in the shooting. Officer Curtis Thomas, a Chicago police officer, testified that early in the morning on January 31, 1992, he drove in his squad car to 4500 State Street pursuant to a call. There, he testified, he saw defendant running away from him. He allegedly followed in his squad car. While following, he allegedly saw defendant leaning over some bushes and reaching his hand in. He says that he did not see defendant holding a gun at any time. Shortly thereafter, he allegedly apprehended defendant and checked the bushes that defendant had been leaning over, whereupon he found a .38 special.
Irma Jean Pinkerton, the victim’s mother, testified that after the shooting, Pinkerton was taken to Cook County Hospital, where he remained in critical condition until his death on March 24, 1992. She testified that she received her son’s clothing from personnel of Cook County Hospital. When she examined the clothing, she allegedly discovered a bullet in one of his socks. She testified that she handed that bullet over to police.
Dr. Edmund Donoghue testified that he was the chief medical examiner in the Cook County medical examiner’s office, and as a forensic pathologist, he was trained in determining the cause and manner of death where death was sudden, unexpected, or due to violence. He stated that on March 25, 1992, he performed an autopsy on the victim and determined that he died of complications due to multiple gunshot wounds. He also stated that he retrieved two bullets from the victim’s body, which he gave to the Chicago police department crime lab.
Jerome DeRoba testified that he was a detective for the Chicago police department. He stated that on June 9, 1992, he met with Irma Pinkerton, who gave him a bullet she had found in the victim’s clothes, and on October 21, 1993, he met with Dr. Baird from the Cook County Hospital, who gave him another bullet recovered from the victim’s person. He stated that he took both bullets to the crime lab and inventoried them.
Detective DeRoba also testified regarding the lineup in which Manuel identified the defendant. He stated that the standard practice for lineups is to choose people from the lockup who closely resemble the suspect in appearance, height, and weight. In this case, according to Detective DeRoba, defendant was 16 years old at the time of the lineup; the other four men in the lineup were ages 18, 19, 21, and 30. Because there was a height difference between the subjects, Detective DeRoba said, he had them all seated in chairs at the time Manuel viewed them. He characterized Manuel’s identification of defendant as immediate.
James van Tilburg testified that he was a firearms examiner for the Chicago police department crime lab. He stated that when matching bullets with firearms, two characteristics of the firearms are taken into account: class characteristics, such as the type of weapon and the caliber, and individual characteristics, which are the microscopic imperfections occurring during manufacture of each weapon. He testified that he compared the .38 special retrieved from defendant with the bullets purportedly from the shooting: the one given by Irma Pinkerton, the one given by the Cook County Hospital, and the one from the medical examiner’s office. Tilburg stated that all three bullets were made by the same manufacturer and had class characteristics that matched defendant’s weapon. However, he said that there were insufficient individual characteristics to determine whether they had actually been fired from defendant’s weapon.
The State then rested. The defense called three witnesses, all for the purpose of establishing an alibi for defendant. The first, Wanda Byles, identified herself as defendant’s mother. She said that in 1992, she lived in apartment 1505 on the fifteenth floor of 4500 South State. On the evening of January 24, 1992, she was allegedly at home, along with defendant, her daughters Keisha and Chandra, defendant’s girlfriend Nicole Jackson, and her neighbor’s nine-month-old son Christopher. Around 6:30 p.m., she heard gunfire and ran out to the hallway to see what was happening. Defendant and Jackson also came out.
During cross-examination, the following exchange occurred:
“Q. Is it fair to say that there is — that it is common in this building for shootings to occur?
A. Occasionally.
Q. Have you been in the building when there have been other shootings?
A. No.
Q. Have you ever heard gunshots fired in that building while you were present?
A. Only that night.”
Counsel for the State also asked Byles whether defendant had friends in the 4500 South State building, to which she replied, “Associates.” Byles further testified that defendant had never owned a Charlotte Hornets jacket.
The defense then called her daughter, Keisha Sanders, to the stand. Keisha likewise testified that on January 24, 1992, defendant had been at home in their apartment when the shooting occurred. Counsel for the State inquired about whether she had heard gunfire in or around the building at other times; Keisha answered that in the three years she lived there, she had only heard gunfire one other time. During neither incident could she tell where the gunfire was coming from. Counsel for the State then asked:
“Q. [The shots] could have been pointed at the 15th floor where you live, right?
A. Right.
Q. It is your testimony that after these shots were fired, you and your mother and your sister ran out to this porch area that is exposed to the outside?
A. Yes.”
Counsel for the State also asked Keisha whether she remembered exactly what she did on all the other dates that she was at her apartment with defendant, Jackson, and her mother, to which she responded that she did not.
Finally, the defense called Jackson to testify. Jackson stated that she was defendant’s girlfriend at the time of the shooting, but that she was no longer his girlfriend. As with the other defense witnesses, she testified that she was with defendant in defendant’s apartment at the time of the shooting.
The defense then rested, and the parties presented their closing arguments. During closing arguments, counsel for the State said:
“[Pinkerton] ran into a man who was about ‘BD business.’ BD business, ladies and gentlemen, has become our business here in this trial, this week, and today. That is the business we are about here today, BD business, and bringing justice to the man who sits before you.
Make no mistake, ladies and gentlemen, on January 24, 1992, in the hallway of 4500 South State on the fifth floor, there was Italio Sanders or maybe Italio Sanders and his associates, but certainly Italio Sanders on the landing between those two floors with the gun in his hand.”
Counsel for the State went on to recap the testimony of each of its witnesses. When he reached Stewart’s testimony, he described the alleged conversation between Stewart and defendant in which defendant said that the shooting was “BD business” and that Pinkerton was not the intended victim. He argued:
“What does that tell you, ladies and gentlemen? It tells you this. It tells you, who else would know who the bullets were meant for other than the person who was shooting the gun? Who else would know that? Maybe someone else that was with him, maybe someone else that was involved in it, and certainly there may have been others, but certainly the person who shot the gun would know who the bullets were meant for.”
In addition, regarding the testimony of the defense witnesses, counsel for the State said:
“Remember, ladies and gentlemen, that each one of them said that never before in the three years that they had been in that building at 4500 South State had they ever heard shots fired in the building or they ever heard a shooting in the building. If you believe that, ladies and gentlemen, then I have a building to sell you at 4500 South State that is a very — that is at a very peaceful and tranquil location, and I am offering it for a very cheap price. That simply is not the truth. It simply isn’t believable.”
Counsel for the State went on to say that the defense witnesses had such concern for defendant that they wished he had been home with them on the night of January 24, 1992, and that in 2 1 fa years they had come to believe it was the case, but it was not.
During its rebuttal closing argument, counsel for the State referenced the photo of the stairwell with gang graffiti where the shooting took place: “Look closely right on the wall, ladies and gentlemen. Here it is in magic marker. ‘CDs die. BDs live.’ *** If you want to know what the motive in this case is, just look at the physical evidence, ladies and gentlemen. That is BD business.”
On March 26, 1994, the jury found defendant guilty of first-degree murder. The judge subsequently sentenced Sanders to 40 years of imprisonment. Defendant appealed his conviction, alleging, among other things, that the trial court erred in allowing admission of gang evidence and that it conducted an inadequate voir dire by failing to ask prospective jurors questions regarding potential gang bias. We affirmed his conviction. People v. Sanders, No. 1—94—1710 (1996) (unpublished order under Supreme Court Rule 23). His petition for leave to appeal to the Illinois Supreme Court was denied on April 2, 1997. People v. Sanders,
Four years later, and seven years after his conviction, on November 21, 2001, defendant filed a petition for postconviction relief. He alleged that the trial court’s failure to voir dire potential jurors for gang bias, in tandem with the State’s reliance on prejudicial gang-related evidence at trial, constituted a substantial denial of his right to an impartial jury. In support, he cited the 2000 Strain decision (Strain,
The circuit court denied defendant’s petition, finding that it was untimely and that he had not established a lack of culpable negligence, as was needed to excuse an untimely filed petition. Defendant appealed that dismissal, and we reversed and remanded, finding that it was procedurally improper to dismiss a postconviction petition on grounds of untimeliness at the first stage of postconviction proceedings. People v. Sanders, No. 1 — 02—0880 (2003) (unpublished order under Supreme Court Rule 23).
Following our remand, the circuit court found that the petition was not untimely or barred by the doctrine of res judicata pursuant to the recent decision of People v. Gardner,
II. ANALYSIS
On appeal, the State contends that the dismissal of Sanders’ petition should be affirmed for three reasons. First, it argues that the Strain decision should not be applied retroactively to defendant’s case. Second, it argues that defendant’s petition is time-barred, regardless of his reliance on the after-filed Strain. Third, it argues that even if we were to consider his petition on the merits under the principles in Strain, the facts of his case still would not justify granting of a new trial, as the gang-related evidence was not sufficiently prevalent at trial.
A. Retroactive Application of Strain
The State first contends that defendant’s petition is barred under the doctrine of res judicata, as the appellate court already rejected his contention of inadequate gang-related voir dire on direct appeal. Defendant argues that res judicata does not apply, as the law has changed since his direct appeal was decided, thanks to the Strain decision. However, the State argues that Strain should not be applied retroactively to defendant’s case, since the voir dire requirements set out in Strain constitute a “new rule.” We agree with the State.
Postconviction petitions are generally subject to the doctrine of res judicata, which bars consideration of issues that have previously been raised and decided on direct appeal. People v. Blair,
In this case, defendant argues that Strain represents a change in the law, thereby allowing him to raise the issue of inadequate voir dire questioning with respect to gang bias even though he already obtained a ruling on direct appeal. The State, on the other hand, argues that Strain should not be retroactively applied to defendant’s case; therefore, the law with respect to defendant’s case remains unchanged, and res judicata bars his present claim.
Illinois has adopted the retroactivity standards set out by the United States Supreme Court in Teague v. Lane,
Second, the court determines whether the rule that defendant appeals to (in this case, the rule articulated by the holding in Strain) existed at the time the conviction became final. If the answer is yes, then no further inquiry is needed; the rule will be applied on collateral review, “since it is the law that should have been utilized in the first place.” Kizer,
In this case, defendant concedes that the Strain decision came after his conviction became final. Defendant also does not contend that either of the third-stage exceptions apply. Rather, the contested issue is whether the Strain decision represents a “new rule” under Teague.
In deciding this issue, we are mindful that our supreme court has stated that retroactive application of decisions “ ‘seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect.’ ” Flowers,
The Teague court explained that “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. [Citations.] To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague,
“[T]he fact that a court says that its decision is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision, is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague. Courts frequently view their decisions as being ‘controlled’ or ‘governed’ by prior opinions even when aware of reasonable contrary conclusions reached by other courts.” Butler,494 U.S. at 415 ,108 L. Ed. 2d at 356 ,110 S. Ct. at 1217 .
The Butler Court applied this principle to find that the decision in Arizona v. Roberson,
The Illinois Supreme Court applied similar reasoning in Flowers,
On the other hand, in People v. Moore,
Thus, the Moore court found that Butler was distinguishable, because, unlike in Butler, it was not presented with a situation where “reasonable contrary conclusions [had been] reached by other courts” (emphasis added) (Butler,
With regard to the present case, we find that the Strain decision more closely resembles the decisions examined in Butler and Flowers than the decision examined in Moore, thereby rendering it beyond the reach of retroactive application.
It is a long-standing principle in Illinois law that the manner and scope of voir dire questioning lies within the discretion of the trial court, which possesses “great latitude” in determining the questions to be asked. People v. Terrell,
In light of this existing law, it would not have been unreasonable if the Illinois Supreme Court had chosen to maintain the status quo by leaving the issue of gang bias voir dire questioning to the discretion of the trial judge in each individual case. In fact, the Illinois Supreme Court seemed potentially inclined toward such a position in People v. Porter,
Strain thus represented a distinct progression in the law in its holding that, where gang evidence is integral at trial, the failure to allow voir dire as to gang bias is deemed to be a per se abuse of the trial court’s discretion. Strain,
Defendant nevertheless urges us to follow the decision in Gardner,
As much as we respect the opinions of the Gardner court, we cannot align ourselves with its analysis on this matter. The Butler and Flowers decisions both demonstrate that the mere fact that a decision is premised upon prior law is insufficient to establish that a rule announced in this case is not new. Butler,
Accordingly, because Strain does not apply retroactively to defendant’s case, the issue of inadequate voir dire that defendant raises in his postconviction petition warrants dismissal under the doctrine of res judicata.
B. Untimeliness of Defendant’s Petition
Even if we were to adopt the Gardner court’s view of Strain’s retroactivity, our decision would remain unchanged, due to the untimeliness of defendant’s petition. Here, too, our finding is at variance with that of the court in Gardner. The State urges that defendant’s petition warrants dismissal because defendant did not file his petition until several years after the statutory filing deadline had passed and because defendant lacked sufficient justification for his tardiness. For the reasons discussed below, we agree.
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 2006)) sets out the process for adjudicating postconviction petitions. At the time defendant filed his petition, the timeliness requirements under the Act for such petitions were as follows:
“No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for the filing of the defendant’s brief with the Illinois Supreme Court if no brief is filed) or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.” 725 ILCS 5/122 — 1(c) (West 2000).
In this case, defendant’s postconviction petition was filed over four years after the denial of his petition for leave to appeal to the Illinois Supreme Court (People v. Sanders,
In Gardner, as in the present case, the defendant filed an untimely postconviction petition seeking relief under Strain, which had not been decided at the time that the filing deadline had passed. In dealing with the timeliness issue, the Gardner court found that the defendant’s untimely filing was not due to culpable negligence on his part, reasoning that culpable negligence, as defined in prior case law, meant “ ‘more than the failure to use ordinary care’ or ‘negligence of a gross and flagrant character.’ ” Gardner,
“As defendant points out, he pursued the gang bias voir dire issue on direct appeal, in a petition for leave to appeal the decision on direct appeal, and before the federal court in a habeas corpus proceeding. His argument was rejected in each of these venues. Given that defendant raised the issue on direct appeal, defendant could not have argued it again in a postconviction petition before the supreme court issued its decision in Strain because it would have been barred by res judicata. [Citation.] We do not see how defendant’s failure to raise the issue yet again, in a postconviction petition that would have been doomed to fail pre-Strain, constitutes ‘negligence of a gross and flagrant character.’ ” Gardner,331 Ill. App. 3d at 365 ,771 N.E.2d at 32 .
The State, on the other hand, relies on the case of People v. Walker,
Once more, despite our respect for the Gardner court, we are unable to agree with its reasoning on this matter. While, as shall be more fully discussed later in this opinion, we disagree with the Walker court on the applicability of the cause-and-prejudice test to accommodate untimely filed postconviction petitions, we agree with the Walker court that, under the rubric of culpable negligence, the deadline for filing an initial postconviction petition is not deferred merely due to the emergence of subsequent legal developments that give defendant a stronger legal position to argue from.
At the outset, we note that the Gardner court is somewhat inconsistent in finding, on the one hand, that the principles underlying Strain were sufficiently well enshrined in prior law to give Strain retroactive application, and, on the other hand, implying that there was insufficient support in the law upon which to predicate defendant’s requested voir dire mandate before Strain. As discussed in Gardner, these principles were already present in the law at the time defendant’s conviction became final on direct appeal. See, e.g., People v. Jimenez,
More overridingly, we feel compelled to disagree with the Gardner court’s reasoning because it appears to inappropriately apply the culpable negligence standard in light of the context in which it has been previously applied under existing law, namely, to excuse untimely filings where outside forces intervene to prevent defendants from meeting the deadline. Thus, for instance, if a defendant fails to file his postconviction petition in a timely manner because he has been placed in prison segregation without his legal materials through no fault of his own, he lacks culpable negligence and his late filing will be excused. People v. Scullark,
As can be gleaned from these various contexts in which the standard has been applied, the rubric of “culpable negligence” does not apply well to a situation where a defendant does not file a timely postconviction petition because of the relative lack of merit of the arguments available to him in a timely fashion, but he thereafter discovers subsequent legal developments which give greater strength or merit to his position. Indeed, the line of reasoning adopted by the Gardner court and urged by defendant in the current case does not assert that defendant was not cognizant of the deadline due to no fault of his own, nor that defendant was not able to meet the deadline due to no fault of his own, but merely that there would be no foreseeable tactical benefit to filing a petition before the Strain decision was handed down. See Gardner,
Accordingly, we find that the “culpable negligence” framework does not adequately address situations such as the present one, where a defendant deliberately allows the filing period to run and then seeks to reopen the filing period when the law evolves in a posture that is more favorable to him. Contrary to the decision in Walker, we find that claims such as the one in the instant case more appropriately lend themselves to analysis under the cause-and-prejudice standard which applies to mitigate the strictures of the Act with respect to the filing of successive postconviction petitions under People v. Pitsonbarger,
We find the situation at hand, in which a defendant seeks in the first instance to file an untimely postconviction petition because of a change in the law that occurred after the filing deadline had passed, to be analogous to the situation in which a defendant has already filed an unsuccessful postconviction petition, but seeks to file a successive postconviction petition because of a change in the law that occurred after the rejection of his first petition. In both situations, defendant is arguing that his procedural default should be excused due to a development in the law that, he contends, occurred too late for him to take advantage of it without relaxation of the statutory rules. Accordingly, there is a symmetry between these situations, such that the standards for excusing a procedural default in the former are the same as in the latter. As shall be developed in more detail below, the Illinois Supreme Court has held that there could be cause for the filing of a successive postconviction petition where the constitutional claim brought in that petition “ ‘is so novel that its legal basis is not reasonably available to counsel’ ” at the time when the earlier petition was filed. Pitsonbarger,
Therefore, if a defendant never filed a postconviction petition within the time limits prescribed by section 122 — 1(c), but he can meet the cause and prejudice test with respect to his late-filed petition, his late filing should be viewed under the same fundamental fairness concerns which animate the Pitsonbarger and Flores decisions.
Thus the first relevant inquiry is whether there was cause for defendant’s failure to raise his present argument in a timely postconviction petition. In that regard, the Pitsonbarger court stated that “ ‘ “a showing that the factual or legal basis for a claim was not reasonably available to counsel *** would constitute cause under this standard.” ’ ” Pitsonbarger,
“Counsel’s failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a State’s procedural bar. Just as it is reasonable to assume that a competent lawyer will fail to perceive the possibility of raising such a claim, it is also reasonable to assume that a court will similarly fail to appreciate the claim. ***
*** [I]f we were to hold that the novelty of a constitutional question does not give rise to cause for counsel’s failure to raise it, we might actually disrupt state-court proceedings by encouraging defense counsel to include any and all remotely constitutional claims that could, some day, gain recognition.” Reed,468 U.S. at 15-16 ,82 L. Ed. 2d at 14-15 ,104 S. Ct. at 2910 .
In Reed, defendant brought a federal habeas proceeding, alleging that faulty jury instructions required reversal of his conviction based upon a United States Supreme Court decision that was decided six years after his conviction. Under such circumstances, the Reed Court found that there was cause for defendant’s failure to raise the jury instruction issue on direct appeal as required by state law. Reed,
In Smith v. Murray, All U.S. 527,
The foregoing reasoning would be all the more applicable to the facts of the instant case if we were to follow the Gardner court’s lead in finding that the Strain decision applied retroactively to defendant’s case, since those very factors that would provide for retroactivity would negate any excuse or cause for defendant’s failure to raise the issue of inadequate voir dire questioning in a timely postconviction petition. That is, if we were to accept defendant’s argument that the holding in Strain did not represent a new rule, but already existed as “the law that should have been utilized in the first place” (Kizer,
Based on our finding that defendant’s petition is procedurally barred due to both res judicata and untimeliness, we need not determine whether sufficient gang-related evidence was adduced at trial to require gang-bias voir dire under Strain. Accordingly, we affirm the trial court’s dismissal of defendant’s petition.
Affirmed.
McBRIDE and CAHILL, JJ., concur.
Notes
Athough the defendant’s name is spelled “Italo” in the case caption, he is consistently referred to in the record as “Italic.”