*1 (No. 90394. ILLINOIS, Appel OF THE STATE OF
THE PEOPLE TENNER, Appellant. H. lee, v. JAMES rehearing on denial Opinion October 2002. Modified filed 31, 2003. March *2 RARICK, J., no part. took FREEMAN, J., concurring. specially Kim Schiedel, Defender, and Deputy M. Charles Defender, Fawcett, of Office of Robert Assistant Defender, Chicago, appellant. State of Appellate General, and Ryan, Springfield, E. Attorney James (William Devine, Attorney, Chicago Richard A. State’s Browers, L. Attorney General, Chicago, Assistant Goldfarb, L. DeAn- Fitzgerald Judy Renee James E. *3 counsel), gelis, Attorneys, of for the Assistant State’s People. of the opinion
JUSTICE FITZGERALD delivered the court: defendant, Tenner, County appeals
The James a Cook dismissing court order his second post-conviction circuit evidentiary Because petition hearing. without death, directly his lies appеal defendant was sentenced 651(a). court. 134 Ill. 2d R. See 10, 2003, the defendant’s January On while George Ryan rehearing pending, former Governor inmates, Illinois row commuted the sentences of all death defendant, imprisonment life without including the release. parole mandatory of possibility supervised The appeal defendant’s primarily concerns his compe- tency sentencing. at trial and This appeal survives commutation order because fitness remain an would is- sue regardless penalty imposed of the upon defendant. follow, For the reasons that we affirm.
BACKGROUND The defendant and Albert together Sauls worked in throughout various businesses By the 1970s. the mid- 1980s, the defendant and Sauls each operated own trucking company, sharing South garage Chicagо Heights. On the evening September 2, 1987, Sauls and Smith, his employee, Alvin garage returned to the after work and on one repairs started trucks. Sauls’ Sauls’ wife, Donna, and the girlfriend, defendant’s former Garza, Shirley Later, soon arrived at the garage. as Smith left garage, he was met outside by the defendant car- rying shotgun. a loaded The defendant forced Smith back and, inside, into the garage Smith, Sauls, once ordered and wife to on the Sauls’ lie floor. The defendant instructed Garza to their tie wrists and ankles. The everyone defendant then directed to his side of the garage where he had strung three nooses over a beam. He told Garza to place Smith, Sauls, noose around the necks of wife, and Sauls’ he tied another noose for Garza. With incapacitated, proceeded his victims hours, them than harangue for more two complaining Sauls his wife had interfered with relation- ship with Garza. The defendant released Garza and sent garage. her outside the The defendant then shot Donna Sauls in the head and point- Smith the abdomen at blank Both range. died. The defendant also shot Albert face; Sauls in the he survived. defendant was convicted two counts murder,
of first count of first degree attempted degree one murder, aggravated restraint, four counts of unlawful *4 violence; and one of armed sentenced count was
385 at the defendant’s direct we vacated appeal, death. On his conviction, affirmed degree first murder tempted See convictions, his death sentence. and affirmed other (1993). Tenner, The United Ill. 2d 341 People v. for Court the defendant’s denied Supreme States Illinois, U.S. See writ of certiorari. Tenner 2d 114 Ct. 2768 L. Ed. S. his the defendant filed first were alia, attorneys inter that his trial petition, alleging, failing psychiatric for a evaluation ineffective to obtain an The that such defendant asserted defendant. an support evidence to provided evaluation would have mitigating factor at sentenc- insanity defense trial or a a from Dr. ing. upon report relied The Lyle Rossiter, Jr., by post- consulted his expert an summarized his attorney. report Dr. Rossiter’s a of whether there is opinions “regarding question likelihood significant suffering that James Tenner was the time from a state of mental and emotional distress at 2, 1987, September his offense sufficient warrant insanity an or factors psychiatric evaluation for defense Dr. stated that mitigation.” Rossiter highly paranoid in “a irrational state caused disorder” on that date and that the defendant delusional “continues to suffer from a less but severe obvious impairs ability which significantly mental disorder [post-conviction] According with communicate counsel.” Rossiter, “vague, to Dr. is characterized disorder self-contradictory and com- evasive, illogical, oppositional mental thought processes munications about at the time of the his current state offense about Dr. Ros- post-conviction proceedings.” participation at- original my opinion “[I]t siter concluded: that his examined torney’s psychiatrically failure have him mitiga- factors in insanity psychiatric defense or for counsel, and tion ineffective assistance of may represent *5 that Mr. Tenner now impaired ability to assist determination.” present counsel in that supplemen- In a tal petition, alleged the defendant a pretrial also that psychiatric evaluation would have enabled his trial at- “[wjhether torneys to make an informed decision a bona doubt existed as to the defendant’s fitness to cooper- ate trial, with counsel and thus to stand a doubt which appears light to exist in of Dr. Rossiter’s evaluation and conclusion.” The trial court dismissed the an evidentiary without hearing, the defendant ap- to pealed this court. People Tenner,
We affirmed. See Ill. 2d rejected We argument defendant’s that defense performance counsel’s was deficient: wholly
“This is a cаse not in which counsel failed to investigate background the defendant’s to prior trial or Here, sentencing. mitigation defense counsel retained a expert, investigation who conducted an into the defendant’s personal history, though later counsel not to call decided person that a at sentencing. as witness either trial or at time, however, Nothing in record suggested at that any impairment, that the defendant suffered from mental any pursue that separate inquiry or there was need to a *** into defendant’s mental condition. [***]
Nothing in the defendant’s record or personal history
any history
disclosed
of mental
illness
emotional
disturbance;
nothing
separate
there was
to
a
prompt
inquiry
rejecting
into the defendant’s mental
conditiоn.
portion
post-conviction petition,
of the defendant’s
below,
judge
trial,
had
presided
explained:
who
also
nothing
psychiatric
‘There
to
suggest
exam in
young
background.
Defendant’s
If there had been
suggested
psychiatric
anything
[a]
that would have
exam,
sponte.
I probably would have ordered it sua
I’ve
satisfy
been
myself
known
do that
as to the
competency
mental
of a
in front of
bench. There’s none of
in this
record.’
below,
judge
Like the
we do
believe
that counsel acted
failing to
a mental evaluation
unreasonably in
obtain
Tenner, 2d at 380-81.
prior
trial.”
Ill.
counsel’s
that even if the defense
held
We further
defendant suffered
deficient, the
had been
performance
Ill.
381. We stated:
Tenner, 175
2d at
no prejudice.
insane at
does nоt claim
he was
“The defendant
case, and the
involved in this
the time of
offenses
evaluation
that mental
defendant has failed
show
that could have resulted
would have revealed evidence
Dr.
grounds
insanity. Notably,
Rossiter
acquittal
on
did
that the defendant was insane when
com
not find
Although Dr.
believed
present
mitted the
offenses.
Rossiter
time,
at the
Dr.
that the defendant was delusional
relevant
insane.”
Rossiter did not conclude that the defendant was
Tenner,
The
Court denied
defendant’s
Illinois, 522
L.
petition.
rari
See Tenner v.
U.S.
Ed. 2d
The then filed 38-claim writ defendant in United Court for corpus of habeas the States District of The federal district the Northern District Illinois. in a lengthy unpub court denied the defendant relief Gilmore, rel. lished order. See United States ex Tenner 1998). (N.D. C The defendаnt’s No. 97 2305 Ill. October appear habeas does not in the record corpus us, precisely we cannot determine what before so court, According the district alleged. charged his constitu defendant’s “first two claims” that rights tional were violated because bona fide existed, mental but the state trial competence about his hearing. not hold a fitness The district court court did that these claims were rejected argument the State’s raised them defaulted because the defendant procedurally his ineffec post-conviction petition only through in his rule general “the that tive assistance counsel claim: *** proceedings in are barred claims not raised state competency claims.” does not mental apply substantive The district court then turned to the merits of the competency defendant’s “claim” and held: case, in reviewing “After record we find no merit in Tenner’s competency Although claim. the circumstances surrounding bizarre, the crime were irrational and equated incompetence. alone cannot be [Cita- with mental prior history tion.] Tenner no has of mental illness and there no of past hospitalizations is evidence or treatment *** for a mental disorder. any
Tenner did not exhibit
irrational
behavior or
during pretrial proceedings
unusual behavior
or at trial. At
trial,
testimony
was lucid and he understood and testi-
fied consistent
strategy,
with his trial
which was to
establish that
guilty
only
degree murder,
he was
second
***
a noncapital offense.
It
clear that
pаrticipated
Tenner
actively
meaningfully
and
in the
process
adversarial
was
fit to do so.”
The district court reviewed the evidence
offered
defendant,
including Dr. Rossiter’s 1994
report,
rejected the
“thought
defendant’s
that a
assertion
disorder” characterized by
qualities
various
exhibited
vagueness, evasiveness,
guardedness, op-
defendant —
position
charges
him unable
understand the
—rendered
against him to assist
his defense. The district court
observed, “Such
atypical
characteristics are not
of one
so
peaceful
who has led a
life
suddenly
but
finds himself as
perpetrator
gruesome murders.” The
court
district
concluded that
the trial
entertaining
the defen-
post-conviction petition
dant’s first
was not unreasonable
concluding
comрetent
that Tenner
to stand trial
was
hearing
unnecessary.
and that a fitness
*7
The United States
Appeals
Seventh Circuit Court of
(7th
Gilmore,
affirmed.
See Tenner
The
Court denied the defendant’s
certio-
1052, 145
petition.
Schomig,
rari
See Tenner v.
U.S.
L.
2d
Ed.
The defendant then second corpus As he had in his federal habeas petition. at trial and petition, challenged his fitness made related claims: sentencing. The defendant two I, rights were alleging claim his constitutional a fitness thе trial court failed hold denied because a bona establishing hearing despite evidence that his constitu- fitness; II, alleging and claim about was, fact, unfit rights were denied because tional *8 trial and sentencing. support As for this set of fitness al- legations, the initially upon relied Dr. Ros- report. siter’s 1994 The State filed a motion to dismiss petition. supplemental the In a response to the State’s motion, the claim, defendant added alleg- an additional ing that his constitutional rights were violated because this court refused to consider claims in his se brief on pro direct appeal. The defendant supplied also a second report by report Dr. Rossiter. Dr. purport- Rossiter’s edly addressed issue not answered in report: his 1994 “whether or not James Tenner was fit to stand trial in charges March 1990 on of murder related the events of September 1987.” After a “current review” the case, in materials but not a current interview defendant, Dr. Rossiter opined that defendant was likely “more than not unfit to stand trial in March *** and attorneys unable to assist his during his subse- added.) quent post proceedings.” (Emphasis According Rossiter, to Dr. from a suffers “long-standing mental disorder characterized paranoid thinking and deny delusional that leads him to that he is mentally ill and to communicate in manner evasive, highly oppositional, vague, illogical, and self- ’’ contradictory. claims, In ruling its on the trial fitness reviewed previous opinion court, as well as the two opinions. federal court The trial court stated: “Now, Rossiter, there’s a letter from in new *** оpinion
letter he [that defendant] offers the likely my more than opinion not unfit. that letter is of no I opinion use whatsoever. have never seen a medical phrased appears It[ ] those terms. almost me to be not, speculation guess likely my more than *** opinion probative has no value whatsoever. looking as as So far the evidence based —at least here objective standpoint, competent from an there is no know, you here, here there is no evidence evidence that — report], [1994 at Dr. Rossiter’s other you look also when alleg- be unfit was saying that would [for] sole his basis (Inaudible), but cooperate with he refused to edly because record, cooperate with he did objectively looking at [It] his defеnse. attorneys, cooperate with he was able to of the that he’s aware certainly pro filings se is clear *9 par- various him, he the function of knows charges against court he knows the ties, possible penalties, the knows ***. counsel and he’s able to communicate with procedure, *** issue whatsoever.” merit[ ] no [T]here’s regard- the defendant’s claim rejected The trial court also again The ing appealed se brief. defendant pro court.
ANALYSIS Hearing a provides proce Act The Post-Conviction defendant through dural mechanism which a criminal in his proceedings can “that in the which resulted assert or or a denial of his her conviction there was substantial or her the United States rights under the Constitution of 1(a) of the State of Illinois both.” 725 ILCS 5/122 — (West 366, Coleman, Ill. 1998); see v. 183 2d People (1998). a files a capital post- 378-79 Once the trial examines the petition, attorney defendant, necessary. if appoints an for 1998). 2.1(a)(1) (West 725 ILCS The State then 5/122 — petition. answer or move to dismiss the 725 ILCS must (West 1998). If a motion to the State files 5/122 —5 sufficiency dismiss, legal the trial rule on the court must allegations, taking all well-pleaded the defendant’s (1999). 249, 255 Ward, v. 187 Ill. 2d People facts as true. un evidentiary hearing not A defendant is entitled to trial supported of the allegations petition, less the affidavits, a any accompanying make substan record Enis, v. People tial of a constitutional violation. showing (2000). 361, ruling a trial 194 Ill. 2d 376 Because court’s allegations legal a sufficiency on the of the defendant’s is 392
determination, Coleman, our review is de novo. 183 Ill. 2d at 388.
A a petition collateral attack upon a prior sentence, conviction and surrogate (1999). appeal. West, direct v. People Ill. 418, 2d Any issues which were on appeal decided direct are judicata-, barred any res issues which could have been on raised direct appeal West, are defaulted. 187 Ill. 2d at Further, 425. the Act contemplates filing of only one petition: “Any claim of substantial denial of constitu rights tional not raised in original or an amended (West petition is waived.” 725 ILCS 2000); see 5/122—3 (1988). Free, v. People 122 Ill. 2d 375-76 Conse quently, a defendant faces procedural immense default hurdles when bringing a successive post-conviction peti (2000). Jones, People tion. v. 191 Ill. 2d Because successive petitions plаgue finality litiga of criminal tion, these are hurdles lowered in very limited circum stances, “where fundamental so requires.” fairness Flores, Ill. People 2d
We have
defined
fundamental
exception
fairness
*10
to procedural
default
in terms of the “cause-and-
prejudice”
test used
the United
Supreme
States
Court
in the context of successive federal
corpus peti
habeas
Owens,
See People
303,
(1989),
tions.
v.
129 Ill. 2d
317
citing Wainwright
Sykes,
72,
594,
v.
433 U.S.
53 L. Ed. 2d
(1977) (fundamental
97
Ct.
S.
2497
a
requires
fairness
court to review a defaulted
in a
proceed
claim
collateral
ing only when the defendant shows
cognizable cause
his failure to
timely objection
prejudice
make a
and actual
error).
resulting from the claimed
Recently, in
v.
People
(2002),
205 Ill.
Pitsonbarger,
2d
we reaffirmed
cause-and-prejudice
is
analytical
test
tool
used to determine whether fundamental
requires
fairness
a court to make an
to the
exception
provision
waiver
section 122—3 and
a
to consider
claim raised in succes-
post-conviction petition
its merits. Under
on
sive
post-conviction petition are
test,
in a successive
claims
good cause for
can establish
the defendant
barred unless
proceedings
prior
failing
error in
to raise the claimed
People
resulting
prejudice
from the error. See
actual
(2001);
Orange,
Ill.
at
Flores, 153
2d
2d
195 Ill.
“cause,”
must show
the defendant
establish
278-79. To
impeded
objective
to the defense
factor external
some
ability
post-conviction
in the initial
raise
claim
citing
Pitsonbarger,
proceeding.
Ill.
2d
See
“prejudice,” the
Flores,
2d
To establish
153 Ill.
at 279.
error so
the claimed constitutional
defendant must show
resulting
violated
trial that the
infected his
process.
Owens,
In this argues erred in First, that the trial court the defendant dismissing I claims and II of his second evidentiary hearing Dr. an because Ros- without report siter’s 2000 established a bona about competency. Second,
the defendant’s argues procedurally that these claims were not defaulted cause-and-prejudicetest with Dr. because he satisfied the report. argues Third, Rossiter’s dismissing peti- the trial erred in claim of his court XIV evidentiary hearing tion his constitu- without because rights were refused to tional violated when pro appeal, on direct consider the defendant’s se brief though pro it se in other even has considered briefs capitаl cases. short,
The third issue merits little discussion. protec equal defendant contends that this court violated principles capital defendant, he that, as a tion differently capital After treated than other defendants. order, however, the no the commutation defendant is longer People capital See defendant. This issue moot. *11 (2002); v. Jackson, Ill. 2d Lewis Com cf.
monwealth, (1977) 31, 38, 218 Va. 235 S.E.2d (holding that commutation renders sentencing issues moot).
Further, moot, were it not this issue would be procedurally defaulted. The defendant has offered no cause, objective no factor external to defense, which him prevented raising claim post- in his first se brief petition. The defendant filed pro on direct appeal, our refusal to consider it should have been raised Though earlier. attempts cause by asserting show that his direct appeal and attorneys refused raise the issues his pro se brief, mistakes the issues brief for the issue about the brief itself. As the State convincingly demonstrates, every issue in the defendant’s pro se brief was addressed either court or the federal courts. examine
Normally, we would proceed to
whether
first and second
pass
cause-and-prejudice
test,
issues
but
require
these claims
a more nuanced analysis. Citing
(11th
James v. Singletary,
Some federal courts have identified two types corpus peti- available to a habeas competency claims “First, tioner: a petitioner may allege that the trial court sua denied him or her due sponte process by failing *** hold a competency hearing. Second, a petitioner may allege she was denied due process by being James, tried and convicted while F.2d incompetent.” is, That prosecution potentially 1571. unfit defendant, hearing, a fitness procedural without violates process; actually due of an unfit defen- prosecution
395 process. See Medina v. due dant violates substantive (11th 1995); Nguyen Singletary, 1095, 1106 Cir. 59 F.3d (10th 1997). Reynolds, Under 1340, Cir. 131 F.3d 1346 v. subject procedural process claim rubric, a due is this cause-and-prejudicetest, but a substan- default under the process Medina, 59 at 1106- is F.3d tive claim not. See due Understandably, Nguyen, the 1346. 07; 131 F.3d at his fitness claims characterizes at least one of escape process procedural claim to as a due substantive default. recognized proce- have not a distinction between
We competency process claims, dural and substantive due opening so to case. and we need not do decide this arguments concerning us, defendant’s brief before the claims are “combined” the dismissal both fitness recognizes, question because, into his first issue as claims a bona common both is whether sentencing and existed. The about his fitness trial already has decided State contends that issue been by courts, “the law this court and federal and that Although disagree law the case” controls. we that the agree applies, the case doctrine we that the defendant precluded raising question in his second post-convictionpetition. preclusion judicata,
The doctrines of res collateral estoppel, prevent and of the law case defendant from “taking appellate apple.” People out of the same two bites (1988). Specifically, 24, Partee, v. 125 Ill. 2d the law of 37 relitigation already doctrine bars of an case issue People Patterson, in the same case. v. 154 Ill. decided See (1992); People App. McNair, 138 Ill. 3d 2d v. (1985) (“a of an on determination issue its upon appellate merits court is final and conclusive partiеs appeal case, in a and the second the same issues considered decided cannot be reconsidered rehearing”). except petition the same court on a This doctrine not does here apply because instant case involving the post-conviction defendant’s second petition as same case either involving his first or his federal ha- involving beas corpus petition. however,
Collateral estoppel, apply. does The col estoppel lateral doctrine relitigation bars of an issue Enis, already See People prior decided case. is, Ill. 2d That applies “[t]he doctrine *** ‘when a party participates in two separate arising consecutive cases on сauses of action different controlling and some fact question material to the determination of both causes has adjudicated been *13 against party that in the former suit a court of ” competent jurisdiction.’ original.) People (Emphasis Moore, v. 138 (1990), Ill. 2d 166 quoting Housing v. Men’s Authority Young Ottawa, Christian Ass’n 101 (1984). 2d Ill. The collateral estoppel doctrine (1) requirements: has three the court rendered a final (2) judgment case; in the prior party against whom estoppel is asserted was a or in a party privity party with (3) prior case; in the issue prior decided in the presented case is identical with the one in the instant Franklin, People case. 167 Ill. 2d Here, the requirements easily first two are met. This court rendered a on judgment final the defendant’s first post-conviction similarly, petition; the federal courts the defendant’s habeas cor- rendered final on judgments pus petition. The defendant was a in each party case. The sole remaining inquiry is whether the issue decided here, in those cases is identical to the one presented bona namely, a whether doubt about defendant’s fide fitness at trial and sentencing existed. post-
The claim before us in the defendant’s first conviction whether his trial were appeal attorneys was psychiatric ineffective for obtain failing a evaluation as But core of the ineffective at the defendant. of whether the defendant’s claim was the issue sistance fact, In as we warranted examination. mental condition observed, post- first supplemental the defendant’s have evalu psychiatric petition even asserted to make attorneys have his trial ation would enabled existed a bona decision “[w]hether informed fide counsel cooperate with as to the defendant’s fitness rejecting the defendant’s and thus to stand trial.” in the claim, nothing found ineffective assistance we suggested trial record the defendant suffered history nothing showed had a mental disorder Tenner, 175 disturbance. mental illness emotional See “bona phrase Ill. did not use the Although 2d 380. we effect, that did not doubt,” decided, we the record on the contain evidence which would have cast a doubt fitness. defendant’s courts, federal very
This issue was also decided the veneer of an ineffective claim. without assistance clаims corpus The defendant’s first two federal habeas fitness. found no addressed his The federal district court in his participated to these merit claims: The defense, ap- and he was fit to do so. federal court of trial peals found our that the assessment fit- good court lacked a to doubt the defendant’s reason “eminently Tenner, F.3d at reasonable.” ness 614.
The defendant that Dr. contends Rossiter’s *14 report evidence,” “new addresses directly is which the first time the defendant’s fitness trial and sentenc (collateral Enis, 163 does ing. estoppel See Ill. 2d at 386 evidence). if the apply not defendant offers additional by is contrary This to one taken position peti in his first supplemental There, Dr. Rossiter’s tion. defendant asserted that created doubt the defen- report apparent 1994 about competency. importantly, dant’s More Dr. Rossiter’s two strikingly reports findings similar, are and his remain psychiatric report by A the same. refashioned drafted psychiatrist counsel, obtained defense on a based existing evidence, “current review” of is new prevents estoppel. evidence which collateral refuse We piecemeal post-conviction litigation by allowing sanction gild previously rejected the defendant fitness claims expert reports. People with self-described “new” See v. (1989) App. (“petitioner White, 198 Ill. 3d retrying litigated actually barred issues and decided proceeding by rephrasing [citation] in a collateral es sentially argument”); People Evans, the same v. cf. (1999) (“A petitioner 2d Ill. cannot relief obtаin by rephrasing previ issues, under the Act which were terms”). ously addressed, in constitutional previously court, noted, As we have “It is for this Rossiter, not Dr. to determine whether there existed a People Burt, bona defendant’s fitness.” 205 Ill. 2d This issue has been decided every against consider it. We again. correctly decline to it consider The trial court post- I II dismissed claims and defendant’s second petition.
CONCLUSION discussed, For the have we affirm the reasons we judgment County of the Cook circuit court.
Affirmed.
part
no
in the
JUSTICE RARICKtook
consideration
opinion.
of this
decision
specially concurring:
FREEMAN,
JUSTICE
agree
judgment
I
be af-
circuit court’s
must
separately,
express
however,
I
firmed this case. write
my
aspects
today’s opinion.
on several
views
*15
addressing
II, the court asserts
I and
claims
pass
normally
the claims
examine whether
it would
while
require
prejudice
a more
test, “these claims
and
the cause
analysis.”
also
The court
2d at 394.
206 Ill.
nuanced
recog
recognize
distinction,
need not
that it
states
procedural and substan
courts, between
nized in federal
competency
the common
process
claims because
due
tive
has
issue, which
question
the bona
to each is
the federal
previously
court and
both this
decided
been
col
concludes that
The court
2d at 395.
courts. 206 Ill.
reasserting
estoppel precludes
lateral
As the foregoing previous court never considered the compe issue defendant’s tence Incompetence to stand trial. at the time of trial is a question insanity different at the time of of the *17 fense. The latter is concerned with a defendant whether appreciated criminality the of her conduct and whether the defendant could conform that conduct to the contrast, law at the time of the in In question. events questions whether, as to fitness to stand trial address trial, the time of a defendant ability has the to understand proceedings the and to in assist his or her defense. God Moran, inez v. 509 U.S. 125 L. Ed. 2d 113 S. Ct. view, In my previous our decision did not to the speak question competency to stand trial. analysis Instead our was confined to the issue of whether counsel was ineffective for failing have defendant undergo psychiatric examination for a potential insan ity Although aspects defense. of our touched discussion upon during proceedings, defendant’s demeanor trial we
made these observations in the of assessing course investigated pos- whether trial counsel should have the sibility mounting insanity defense. We did not speak of whether a bonа specifically question to the competency as to existed.
I note that points supplemental peti tion, filed in post-conviction defendant his first state in petition, alleged psychiatric which defendant that a evaluation would have trial attorneys enabled his make “an informed decision” about his fitness to stand record, however, trial. 206 Ill. 2d at My 386. review of the that neither the post-conviction judge reveals nor this any the matter of in depth. court addressed fitness fact, in competency when defendant asserted his claims court, federal procedural State raised the bar default, arguing that defendant had failed to raise the court, however, matter in state court. The federal district bar, refused to enforce that specifically noting are incompetency subject procedural claims never (N.D. Gilmore, default. Tenner v. No. 97—C—2305 Ill. 1998). argued proce October The fact that the State default, dural with the district court’s assertion coupled exception bar, of an to the default leads me to procedural judge conclude that neither the State nor the district given issue had a full precise believed ever been circumstances, in the state Under I hearing courts. these decided in the am reluctant to hold that the issue first presented is “identical” to the issue the case at bar.
Nevertheless, I believe that the federal courts have spoken definitively on the issues raised defendant at bar and that the decisions of the federal proceеding collaterally estop litigating courts from argues anew in our state courts. Defendant matters prevents Dr. is new evidence that report Rossiter’s report, Dr. Rossiter’s estoppel applying. collateral *18 however, does constitute new evidence —it is not based on recent any evaluations of defendant nor does it present any new regarding facts defendant’s behavior fact, the time of trial. In opine Dr. Rossiter does not even Rather, defendant was unfit at the time of trial. contends that likely defendant “was more than not unfit view, stand trial March 1990.” In my this conclu- sion, based on a current existing evidence, review of does not rise to the necessary level preclude application of collateral estoppel.
(No. 82536. THE PEOPLE OF THE ILLINOIS, STATE OF Appel
lee, RISSLEY, v. JEFFREY D. Appellant.
Opinion June 2003. filed