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Fourth Division
September 9, 2004

Defendant Martin Leason appeals from the summary dismissalof his successive pro se postconviction petition. He contends onappeal that the trial court erred in summarily dismissing hispetition because it established the gist of a meritorious claimthat he was denied a fair trial where the trial court failed toquestion potential jurors about gang bias despite the fact thatgang testimony was pervasive at trial.

Following a jury trial, defendant was convicted of firstdegree murder on the theory of accountability and sentenced to 50years in prison. As relevant to this appeal, the record showsthat before trial, the trial judge asked the prospective jurorsduring voir dire whether they would be able to be fair andimpartial jurors. The court also asked counsel for both sides,on several occasions, if they wished to ask the prospectivejurors any questions. Defense counsel declined the opportunityand did not ask any questions related to gang bias.

At trial, the evidence showed that on October 13, 1990, atabout 8 p.m., defendant and codefendants Rodney Moore and JoeHodges, all members of the Gangster Disciples street gang, wereinformed that a fellow gang member had been beaten with a bat bythe Vice Lords, a rival gang, near certain railroad tracks thatrepresented the dividing line between the two gangs' territory. Defendant and codefendants ran to the tracks, where a group ofVice Lord gang members were present. During an encounter betweenthe gang members, Moore fired a gun and the Vice Lords ran. Defendant and codefendants chased the Vice Lords, and Moorefatally shot the victim, Shawn Neustradter. Based on thesefacts, defendant was found guilty of first degree murder on thetheory of accountability.

On direct appeal, defendant contested that the evidence wasinsufficient to sustain his conviction, his accomplice'stestimony was improperly restricted, the prosecution madeimproper arguments, his 50-year sentence was impermissiblydisparate from Moore's sentence, and the murder statute wasunconstitutional. We affirmed defendant's conviction andsentence. People v. Leason, No. 1-92-3455 (1994) (unpublishedorder under Supreme Court Rule 23).

In October 1995, defendant filed a pro se postconvictionpetition, which the trial court summarily dismissed as frivolousand patently without merit. Neither defendant's initial pro sepostconviction petition nor any transcripts related thereto werefiled as part of the record in the instant appeal.

On appeal from the dismissal of defendant's initialpetition, the public defender filed a motion pursuant toPennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S.Ct. 1990 (1987), to withdraw as appellate counsel on the basisthat there were no issues of arguable merit that could have beenraised. On January 31, 1997, we granted counsel's motion towithdraw and affirmed the trial court's judgment. People v.Leason, No. 1-96-0186 (1997) (unpublished order under SupremeCourt Rule 23).

On September 12, 2002, defendant filed the instantsuccessive pro se postconviction petition, alleging he wasprejudiced by the trial court's failure to question potentialjurors about gang bias during voir dire, thereby violating theruling in People v. Strain, 194 Ill. 2d 467 (2000). Defendantfurther alleged that because Strain was not decided until afterhe filed his first pro se postconviction petition, he had causefor not raising this claim in the earlier proceeding. Finally,defendant alleged that Strain was retroactively applicable to hiscase pursuant to People v. Gardner, 331 Ill. App. 3d 358 (2002).The trial court summarily dismissed defendant's successivepetition as frivolous and patently without merit withoutspecifying the findings of fact or conclusions of law it made inreaching its decision.

On appeal, defendant initially contends that the trial courterred in dismissing his successive pro se postconviction petitionbecause the petition stated the gist of a meritorious claim andthe court did not state the underlying law and facts it reliedupon in dismissing the petition. Although it is advisable for atrial court to state its reasons for dismissing a postconvictionpetition, it is not mandatory. People v. Porter, 122 Ill. 2d 64,82 (1988). If the trial court fails to specify its findings in awritten order, the defendant is not prejudiced because thedismissal will be reviewed on appeal. Porter, 122 Ill. 2d at 82. Therefore, the trial court did not err in failing to specify thefacts and law it relied upon in summarily dismissing defendant'ssuccessive pro se postconviction petition.

Defendant next contends that the trial court erred indismissing his successive pro se postconviction petition because,pursuant to the ruling in Strain, which applies retroactively tohis case, he was denied a fair trial when the trial court failedto question potential jurors about gang bias, and his trialcounsel was ineffective for failing to raise any questionsregarding gang bias. The State contends that defendant cannotestablish cause and prejudice for failing to raise the gang biasissue earlier.

The standard of review regarding the summary dismissal of a postconviction petition is de novo. People v. Collins, 202 Ill.2d 59, 66 (2002).

The Illinois Post-Conviction Hearing Act (Act) provides aremedy to criminal defendants who have suffered substantialviolations of their constitutional rights. 725 ILCS 5/122-1(West 2002). The defendant has the burden of demonstrating tothe court a substantial violation of his federal or stateconstitutional rights that produced the challenged judgment. People v. Jones, 211 Ill. 2d 140, 143-44 (2004). A proceedingunder the Act is not a direct attack on the underlying judgmentbut, rather, a collateral attack permitting inquiry into issuesthat were not, and could not have been, adjudicated on directappeal. Jones, 211 Ill. 2d at 144. Therefore, the scope ofpostconviction relief is limited by the doctrines of waiver andres judicata. Jones, 211 Ill. 2d at 144.

Unless the death penalty is involved, adjudication of aclaim for postconviction relief follows a three-stage process. Jones, 211 Ill. 2d at 144. Review during the first stage of thisprocess requires the trial court to determine whether thedefendant's petition is frivolous or patently without merit. Jones, 211 Ill. 2d at 144. A postconviction petition isfrivolous and patently without merit only if the allegations inthe petition, taken as true and liberally construed, fail topresent the gist of a constitutional claim. People v. Boyd, 347Ill. App. 3d 321, 327 (2004). The "gist" standard is a lowthreshold in which the petitioner need only present a limitedamount of detail and need not set forth the claim in itsentirety. Jones, 211 Ill. 2d at 144.

The Act prohibits the filing of successive postconvictionpetitions, but an exception exists when fundamental fairness sorequires. People v. Lee, 207 Ill. 2d 1, 4-5 (2003). Accordingly, a defendant who fails to include an issue in hisoriginal or amended postconviction petition may raise the issuein a successive petition if he satisfies the requirements of thecause and prejudice test with respect to each claim presented. Jones, 211 Ill. 2d at 149. Pursuant to the cause and prejudicetest, the defendant must show "cause" for failing to raise theissue in a prior proceeding and actual "prejudice" resulting fromthe claimed error. Jones, 211 Ill. 2d at 149. "Cause" isdefined as an objective factor external to the defense thatimpeded defense counsel's attempts to raise the claim in anearlier proceeding. Lee, 207 Ill. 2d at 5. "Prejudice" isdefined as an error so infectious to the trial proceeding thatthe resulting conviction violates due process. Lee, 207 Ill. 2dat 5.

The State argues that defendant waived the gang bias issueby failing to raise it on direct appeal or in his firstpostconviction petition, and also by failing to allege thatappellate counsel was ineffective for failing to raise this issueon direct appeal. See People v. Britt-El, 206 Ill. 2d 331, 342(2002) (the trial court can summarily dismiss a successivepostconviction petition at the first stage of review on the basisof waiver). As such, the State asserts that unless defendant canmeet the requirements of the cause and prejudice test, which hecannot, summary dismissal of his successive pro se postconvictionpetition was warranted.

We agree with the State's contention that defendant cannotsatisfy the requirements of the cause and prejudice test becausehe has not shown "cause" for failing to raise the gang bias issueat an earlier time. Defendant contends that he met the causerequirement because Strain, which established the legal predicatefor his gang bias claim, was not decided until November 16, 2000,after he filed his first pro se postconviction petition.

In Strain, the trial court asked prospective jurors duringvoir dire whether they, or anyone they knew, were ever involvedin a gang and if they could be fair to each side; however, thetrial court refused defense counsel's request to ask theprospective jurors whether they would find the defendant lessbelievable if they learned he was a gang member. Strain, 194Ill. 2d at 470-73. The defendant was ultimately convicted of twocounts of first degree murder, and on appeal, our supreme courtreversed the conviction, holding that when gang testimony ispervasive, a defendant must be given the opportunity to questionprospective jurors, either directly or through the court, aboutgang bias. Strain, 194 Ill. 2d at 469, 477. The court furtherheld that if a defendant is "denied an informed and intelligentbasis on which to assert challenges for cause or to exerciseperemptory challenges" because of the trial court's refusal toprobe for gang bias, reversible error exists. Strain, 194 Ill.2d at 481.

Despite the ruling in Strain, defendant's contention failsbecause the lack of precedent for a position differs from "cause"for failing to raise an issue, and a defendant must raise theissue, even when the law is against him, to preserve it forreview. See Bousley v. United States, 523 U.S. 614, 140 L. Ed.2d 828, 118 S. Ct 1604 (1998); United States v. Smith, 241 F.3d546 (7th 2001). Bousley involved a federal court proceedingwhere the defendant pled guilty to using a firearm in 1990. Bousley, 523 U.S. at 616, 140 L. Ed. 2d at 835, 118 S. Ct. At1608. Five years after Bousley's conviction, in Bailey v. UnitedStates, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 481, 116 S. Ct.501, 506 (1995), the Supreme Court held that to prove "use" of afirearm, the government must show "active employment of thefirearm." Bousley, 532 U.S. at 616, 140 L. Ed. 2d at 835, 118 S.Ct. at 1608, 1611. The defendant attacked the voluntariness ofhis plea, for the first time, in a habeas corpus petition,alleging that the district court misinformed him about theelements of his offense when he pled guilty. Bousley, 523 U.S.at 617-18, 622, 140 L. Ed. 2d at 836-37, 839, 118 S.Ct. at 1608. The United States Supreme Court held that the voluntariness andintelligence of a guilty plea could not be attacked on collateralreview unless the plea was first challenged on direct appeal, andtherefore, defendant procedurally defaulted his claim that hisguilty plea was constitutionally invalid. Bousley, 523 U.S. at621, 140 L. Ed. 2d at 839, 118 S. Ct. at 1610. The court notedthat defendant could overcome waiver by demonstrating cause andprejudice or actual innocence. Bousley, 523 U.S. at 622, 140 L.Ed. 2d at 839-40, 118 S. Ct. at 1611. The defendant argued thathe had cause for failing to raise his claim earlier because thelegal basis for his claim was not previously available tocounsel. Bousley, 523 U.S. at 622-23, 140 L. Ed. 2d at 840, 118S. Ct. at 1611. The court rejected defendant's argument, findinghis claim was not so novel that it lacked a legal basis. Bousley, 523 U.S. at 622, 140 L. Ed. 2d at 840, 118 S. Ct. at1611.

In Smith, the defendant collaterally attacked his 1992sentence for drug trafficking through a motion to vacate based onApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000), which established that the district court erredby not telling the jury to determine whether the defendant wasaccountable for more than 50 grams of cocaine or a lesser amount. Smith, 241 F.3d at 547. Because the defendant did not previouslyraise this issue, the court found that he could only obtaincollateral relief by demonstrating cause and prejudice. Smith,241 F.3d at 548. Defendant argued that he was unable to raisethis claim prior to Apprendi because there was no precedent tosupport his contention. Smith, 241 F.3d at 548. The court foundthat the defendant failed to establish cause, as the legalfoundation for Apprendi was laid long before his sentence in1992. Smith, 241 F.3d at 548.

Following Bousley and Smith, defendant's contention that hewas unable to raise his claim regarding jury bias earlier becausehe lacked the legal foundation to do so is without merit. Moreover, defendant's jury bias claim is based on facts withinthe original trial record and does not involve any newlydiscovered evidence. Therefore, defendant is unable to establishcause for his default and fails to satisfy the requirements ofthe cause and prejudice test.

Further, this is not a case where the trial court may reviewdefendant's successive pro se postconviction petition to preventa fundamental miscarriage of justice. Although a successivepostconviction petition may be reviewed under such circumstances,even where the defendant cannot satisfy the requirements of thecause and prejudice test, the death penalty or a claim of actualinnocence must be involved. See People v. Pitsonbarger, 205 Ill.2d 444, 459 (2002). Neither of these circumstances applies tothis case.

Finally, defendant contends, for the first time on appeal,that his trial counsel was ineffective because he failed to probeinto the gang bias issue, and had he done so, the outcome of thetrial would have differed. Defendant has waived this issue byfailing to raise it in his successive pro se postconvictionpetition. See Jones, 211 Ill. 2d at 148 (matter not raised inpostconviction petition may not be argued on appeal).

Waiver aside, this court has held that trial counsel'sdecision not to pose gang bias questions during voir dire isreasonable where the defendant and victim are both gang membersand the gang evidence is being used to explain motive. People v.Benford, 349 Ill. App. 3d 721, 733 (2004). Defense counsel mayreasonably conclude, as a matter of trial strategy, thatquestioning prospective jurors about gang bias would undulyemphasize the gang issue and outweigh any potential prejudicethat venire members may have. Benford, 349 Ill. App. 3d at 733. Therefore, defendant's claim alleging ineffective assistance oftrial counsel fails.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

QUINN, P.J., and HARTMAN, J., concur.