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FOURTH DIVISION
December 31, 2003

Defendant Andre Rials appeals from an order of the circuit court dismissing his petitionfor relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West2000)) at the second stage without granting an evidentiary hearing. For the following reasons, weaffirm.

The following facts were adduced at trial. Officer Isaac Lee testified that on January 6,1999, he observed two individuals separately approach defendant in the lobby of a ChicagoHousing Authority (CHA) building and hand him money. On each occasion, after receiving themoney, defendant handed the individuals items contained in a clear sandwich plastic bag he washolding. Officer Lee, who was approximately 10 feet away when he observed these exchanges,radioed back-up officers a description of the two individuals who had approached defendant. Officer Lee then detained defendant, searched him, and found $552 and 15 small plastic bags onhis person containing a rock-like substance suspected to be cocaine. The two individuals who hadapproached defendant were also detained, and small bags containing a white rock-like substancesuspected to be cocaine were recovered from each of them. Officer Lee inventoried the bagsrecovered from defendant under inventory No. 2118073 and the bags recovered from the othertwo individuals under inventory Nos. 2118072 and 2118070.

Bradley Fleming, a forensic drug chemist, was found to be an expert in the area of analysisof controlled substances and chemistry. He testified that he examined the contents of the bagsinventoried under No. 2118073 and determined that they weighed 1.1 grams and tested positivefor cocaine in preliminary screening and confirmatory tests. He also tested the contents of thebags inventoried under Nos. 2118072 and 2118070 and determined that they contained cocaine.

On January 12, 2000, following a bench trial, defendant was convicted of possession of acontrolled substance with intent to deliver on residential property owned, operated and managedby the CHA and was sentenced to 10 years' imprisonment. Defendant appealed and his counselfiled a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87S. Ct. 1396 (1967). Defendant filed two separate responses to the Anders motion, contendingthat the evidence was insufficient to establish his guilt, the trial court improperly denied hisrequest for treatment under the Illinois Alcoholism and Other Drug Abuse and Dependency Act(20 ILCS 301/1-1 et seq. (West 1998)), his sentence was unconstitutional under Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and amendments to twostatutes under which he was convicted were found unconstitutional. Rejecting defendant'sarguments, this court granted defense counsel's motion to withdraw and affirmed the trial court'sjudgment. People v. Rials, No. 1-00-1879 (August 31, 2001) (unpublished order under SupremeCourt Rule 23).

While defendant's direct appeal was pending, defendant filed a pro se post-convictionpetition on October 5, 2000. In his petition, defendant attacked only his sentence and argued thatPublic Acts 88-680 and 89-404, which were found to violate the single subject rule in People v.Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999), and People v. Reedy, 186 Ill. 2d 1, 708 N.E.2d1114 (1999), affected his case and violated his constitutional rights, and generally cited the fifth,sixth, eighth and fourteenth amendments of the United States Constitution. The trial courtappointed the Public Defender's office to represent defendant in the post-conviction proceedings. The State then filed a motion to dismiss defendant's petition, contending that defendant'sallegations failed to make a substantial showing of a denial of defendant's constitutional rightsbecause neither Public Act applied to defendant's case. Post-conviction counsel did not amenddefendant's pro se petition, but filed a certificate of compliance under Supreme Court Rule651(c), certifying that she consulted with defendant by letter and telephone on "numerousoccasions to ascertain his contentions of deprivations of constitutional rights," "obtained andexamined the Report of Proceedings" of defendant's trial, and examined defendant's pro sepetition and determined that because "it adequately presents his claims of deprivations ofconstitutional rights, there is nothing that can be added by an amended or a supplementalpetition." On June 25, 2002, the trial court granted the State's motion to dismiss and defendantthen filed this timely appeal.

The Act provides a remedy for defendants who have suffered a substantial violation oftheir constitutional rights at trial. People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442,445 (2001). Petitions filed under the Act must clearly identify the alleged constitutional violationsand must have attached "affidavits, records, or other evidence supporting its allegations or shallstate why the same are not attached." 725 ILCS 5/122-2 (West 2000). In noncapital cases, theAct creates a three stage process for post-conviction proceedings. Edwards, 197 Ill. 2d at 244,757 N.E.2d at 445. At the first stage, the circuit court, without input from the State, reviews thepetition and determines whether, on its face, "the petition is frivolous or is patently withoutmerit." 725 ILCS 5/122-2.1(a)(2) (West 2000). A post-conviction petition is consideredfrivolous or patently without merit if the petition's allegations, taken as true, fail to present the gistof a meritorious constitutional claim. People v. Collins, 202 Ill. 2d 59, 66, 782 N.E.2d 195, 198(2002).

If the petition is not dismissed at stage one, it proceeds to stage two, where section 122-4of the Act provides for the appointment of counsel for an indigent defendant (725 ILCS 5/122-4(West 2000)) and counsel may file an amended petition. People v. Boclair, 202 Ill. 2d 89, 100,789 N.E.2d 734, 741 (2002). The instant case was dismissed by the trial court at the secondstage of the process. At the second stage, the State is required to either answer or move todismiss the petition. 725 ILCS 5/122-5 (West 2000). The trial court must then determinewhether the petition and any attached documents make a substantial showing of a constitutionalviolation. Edwards, 197 Ill. 2d at 246, 757 N.E.2d at 446. If such a showing is made, thepetition proceeds to the third stage where the court conducts an evidentiary hearing. 725 ILCS5/122-6 (West 2000); Boclair, 202 Ill. 2d at 100, 789 N.E.2d at 741. Our review of the trialcourt's dismissal of a post-conviction petition at the second stage is de novo. People v. Coleman,183 Ill. 2d 366, 378-79, 701 N.E.2d 1063, 1070-71 (1998).

On appeal, defendant contends that he was denied his right to effective assistance ofappellate counsel because appellate counsel failed to raise a meritorious issue, that the State failedto prove defendant guilty beyond a reasonable doubt because the expert chemist's testimonylacked the foundation necessary to prove either the weight of the substance or that it containedcocaine, relying on People v. Raney, 324 Ill. App. 3d 703, 756 N.E.2d 338 (2001).⁽¹⁾ However,we find that this issue is waived because it was not included in defendant's post-convictionpetition. A defendant may not raise for the first time on appeal constitutional claims which werenot actually presented in his petition. 725 ILCS 5/122-3 (West 2000) ("[a]ny claim of substantialdenial of constitutional rights not raised in the original or an amended petition is waived."); Peoplev. Moore, 189 Ill. 2d 521, 544, 727 N.E.2d 348, 360 (2000); People v. Jefferson, No. 1-01-4483(November 26, 2003). In his petition, defendant argued only that Public Acts 88-680 and 89-404impacted his sentence and never made these ineffective assistance of appellate counsel orinsufficiency of the evidence arguments. Accordingly, we find defendant's ineffective assistance ofappellate counsel argument waived.

To circumvent the waiver rule, defendant argues that he was denied reasonable assistanceof post-conviction counsel where post-conviction counsel failed to amend defendant's pro sepetition to add these new ineffective assistance of appellate counsel and insufficiency of theevidence arguments. The State responds that post-conviction counsel is not obligated to examinethe record in search of claims or amend the petition to include claims that are unrelated todefendant's pro se contentions or not necessary to properly present the issues raised by defendantin the original pro se petition. We agree with the State.

A defendant has no constitutional right to the assistance of counsel at a post-convictionproceeding. Moore, 189 Ill. 2d at 541, 727 N.E.2d at 358. Because the source of the right tocounsel in post-conviction proceedings is statutory, post-conviction petitioners are entitled only tothe level of assistance provided in the Act. People v. Turner, 187 Ill. 2d 406, 410, 719 N.E.2d725, 727-28 (1999). The degree of skill and care that a lawyer must exercise in representing apost-conviction petitioner is not "effective assistance of counsel" and is therefore, not governedby the familiar two-part test first enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed.2d 674, 104 S. Ct. 2052 (1984). People v. McNeal, 194 Ill. 2d 135, 142, 742 N.E.2d 269, 273(2000). Defendants are not entitled to receive the same level of assistance of counsel that theConstitution guarantees to defendants at trial. People v. Williams, 186 Ill. 2d 55, 60, 708 N.E.2d1152, 1155 (1999). The Act requires only a reasonable level of assistance by appointed counselat post-conviction proceedings. McNeal, 194 Ill. 2d at 142, 742 N.E.2d at 273; Moore, 189 Ill.2d at 541, 727 N.E.2d at 358-59.

To that end, Supreme Court Rule 651(c) outlines the specific requirements that post-conviction counsel must fulfill in representing post-conviction petitioners. 134 Ill. 2d R. 651(c). Under Rule 651(c), the record must demonstrate that appointed counsel "has consulted withpetitioner either by mail or in person to ascertain his contentions of deprivation of constitutionalright, has examined the record of the proceedings at the trial, and has made any amendments tothe petitions filed pro se that are necessary for an adequate presentation of petitioner'scontentions." 134 Ill. 2d R. 651(c). See also Turner, 187 Ill. 2d at 410, 719 N.E.2d at 728. Post-conviction counsel is not required to amend a defendant's pro se post-conviction petition. Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729. Counsel's obligations under Rule 651(c) are thesame in every case where post-conviction counsel is appointed, regardless of whether thedefendant was sentenced to death. Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729.

"[P]ostconviction counsel is not required to comb the record for issues not raised in thedefendant's pro se postconviction petition." People v. Helton, 321 Ill. App. 3d 420, 424-25, 749N.E.2d 1007, 1011 (2001). Counsel is obligated to amend defendant's pro se petition only whennecessary to adequately present the claims defendant had already raised in his petition and whilecounsel may add new claims, he is not required to amend defendant's pro se post-convictionpetition to include new issues. We find ample support for this holding from Rule 651(c) andseveral supreme court cases.

Under Rule 651(c), counsel is only required to make "any amendments to the petitionsfiled pro se that are necessary for an adequate presentation of petitioner's contentions." 134 Ill.2d R. 651(c) (emphasis added). Further, our supreme court has explained that Rule 651(c) workswith the Act to ensure that counsel appointed to represent an indigent petitioner "ascertains thebasis of his complaints, shapes those complaints into appropriate legal form and presents them tothe court." People v. Szabo, 144 Ill. 2d 525, 532, 582 N.E.2d 173, 176 (1991), quoting People v.Owens, 139 Ill. 2d 351, 359, 564 N.E.2d 1184, 1187 (1990).

In People v. Davis, 156 Ill. 2d 149, 619 N.E.2d 750 (1993), our supreme court held that apost-conviction petitioner is "not entitled to the advocacy of counsel for purposes of exploration,investigation and formulation of potential claims." Davis, 156 Ill. 2d at 163, 619 N.E.2d at 758. "Post-conviction counsel is only required to investigate and properly present the petitioner'sclaims. * * * Counsel's responsibility is to adequately present those claims which the petitionerraises." Davis, 156 Ill. 2d at 164, 619 N.E.2d at 758 (emphasis in original). "[I]t is the substanceof the petitioner's claims, in his initial post-conviction pleading, which, in the first instance,determines the fate of the petitioner's claims. The post-conviction court's determinationconcerning the merit of those claims is based solely upon the petitioner's articulation of the same." Davis, 156 Ill. 2d at 163, 619 N.E.2d at 758 (emphasis in original).

Further, post-conviction counsel is not obligated to examine the entirety of the defendant'strial transcript and is only required to examine as much of the transcript as is necessary toadequately present and support those constitutional claims raised by the defendant. Turner, 187Ill. 2d at 411-12, 719 N.E.2d at 728-29; Davis, 156 Ill. 2d at 164, 619 N.E.2d at 758. "Torequire counsel to examine portions of the record which have no relevance to petitioner's claimswould be an exercise in futility." Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729. Additionally,counsel has no duty to locate witnesses not specifically identified by the defendant and " ' has noobligation * * * to engage in a generalized fishing expedition in search of support for claims raisedin a petition.' " Williams, 186 Ill. 2d at 61, 708 N.E.2d at 1155, quoting People v. Johnson, 154Ill. 2d 227, 248, 609 N.E.2d 304, 314 (1999). It is the defendant's burden to inform counsel, withspecificity, of the identity of the witnesses who should have been called and generally theinformation the witnesses would have offered. Only then does counsel have a duty to attempt tocontact those witnesses to obtain affidavits for the purpose of shaping the allegations in thepetition into appropriate legal form. Moore, 189 Ill. 2d at 542-43, 727 N.E.2d at 359-60;Williams, 186 Ill. 2d at 61, 708 N.E.2d at 1155; Johnson, 154 Ill. 2d at 247-48, 609 N.E.2d at314. If post-conviction counsel is not required to read the entire trial transcript when unnecessaryto present the defendant's pro se contentions or locate witnesses not specifically identified by thedefendant in the petition, counsel certainly need not scour the record to ascertain any otherpotential errors and constitutional issues not implicated in the defendant's pro se petition.

Here, in his pro se petition, defendant raised only issues challenging his sentence underPeople v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999), and People v. Reedy, 186 Ill. 2d 1,708 N.E.2d 1114 (1999), and never raised the lack of foundation for the expert's opinion at trial,an insufficiency of the evidence argument or that his appellate counsel was ineffective for failingto argue this issue on appeal. Thus, counsel was not required to review the record to ascertainany potential claim of error not raised in defendant's original petition or to amend the petition toinclude these claims.

Defendant relies on People v. Turner, 187 Ill. 2d 406, 719 N.E.2d 725 (1999), to supporthis argument that his post-conviction counsel was unreasonable. However, Turner is factuallydistinguishable from the present case and actually supports our holding. In Turner, defendantraised several detailed arguments in his pro se petition, including that the State violated his rightto due process by failing to disclose specific evidence, the State failed to disclose that it promiseda witness favorable treatment in exchange for his testimony, trial counsel was ineffective forfailing to discover and impeach a witness with specific evidence and statements, and that the deathpenalty statute was unconstitutional. Turner, 187 Ill. 2d at 409, 719 N.E.2d at 727. Defendant'sappointed counsel did not amend the petition. The trial court then dismissed defendant's pro sepetition, finding that these arguments were barred by res judicata or waiver because the defendantcould have raised them on direct appeal but failed to do so. The supreme court determined thatthe defendant was denied reasonable assistance of post-conviction counsel because, in order toadequately shape the defendant's contentions into the appropriate legal form and to avoid waiver,counsel should have amended the petition to allege ineffective assistance of appellate counsel forfailing to raise these issues on direct appeal. Turner, 187 Ill. 2d at 413, 719 N.E.2d at 729. Thecourt did not hold that any failure to amend the petition would be unreasonable or that counselhad to amend the petition to add new claims not mentioned in the defendant's pro se petition, butmerely found that counsel's failure to make a routine amendment to a post-conviction petition thatwould overcome a procedural bar constitutes unreasonable assistance in violation of Rule 651(c). People v. Broughton, No. 1-01-2565 (October 31, 2003).

In Turner, the defendant raised several specific contentions of constitutional error in hispro se petition and detailed the factual basis for these claims, yet counsel failed to make theamendments necessary to comply with Rule 651(c) to adequately present these claims to the trialcourt. In this case, however, defendant never raised any issue of ineffective assistance of counselin his pro se petition, nor did he raise the insufficiency of the evidence against him or the lack offoundation for the chemist's testimony.

Defendant's statement in his reply brief that he "made a general claim of ineffectiveassistance of counsel" in his pro se petition is disingenuous and without merit. First, defendantnever made such a claim, rather, he only generally defined the fifth, sixth, eighth and fourteenthamendments and included the phrase "assistance of counsel." By including the terms "sixthamendment" and "assistance of counsel" in his petition, defendant did not raise an ineffectiveassistance of counsel argument triggering post-conviction counsel's duty to investigate the claimand amend the petition. Second, "[m]erely alleging he was denied his sixth amendment right toeffective assistance of counsel, with nothing more, is insufficient" to invoke relief under the Act. People v. Jones, 341 Ill. App. 3d 103, 107, 791 N.E.2d 1118, 1121 (2003), appeal allowed, No.96503 (October 7, 2003). To hold "that defendant's meager allegation constituted the gist of aconstitutional claim, we would effectively eviscerate the requirements and purpose of the Act." Jones, 341 Ill. App. 3d at 107, 791 N.E.2d at 1121.

Additionally, defendant's post-conviction counsel filed a certificate of compliance withRule 651(c) stating that she met with defendant to ascertain his contentions, examined defendant'strial transcript and his pro se petition, and determined that, because "it adequately presents hisclaims of deprivations of constitutional rights, there is nothing that can be added by an amendedor a supplemental petition." Here, where defendant failed to even mention any of these argumentsin his pro se petition, we find that defendant was not denied reasonable assistance of post-conviction counsel when counsel failed to amend the petition to add a new claim not raised indefendant's original petition.

For the foregoing reasons, we affirm the trial court's dismissal of defendant's post-conviction petition because it failed to demonstrate a substantial showing of a constitutionalviolation. Additionally, we find that post-conviction counsel provided reasonable assistance todefendant.

Affirmed.

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

1. We note that trial counsel never specifically objected to the expert's testimony on thesegrounds and never included this issue in his post-trial motion.