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Docket No. 89837-Agenda 9-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
VINCENT D. BRITT-EL, Appellant.

Opinion filed August 29, 2002.

JUSTICE McMORROW delivered the opinion of the court:

The defendant, Vincent Britt-El, filed a second post-conviction petition along with a "Motion For Leave To FileSecond Post-Conviction Petition" in the circuit court of VermilionCounty. The circuit court denied the motion as "untimely" and didnot consider the merits of defendant's petition. On appeal, theappellate court treated the circuit court's ruling as a summarydismissal of defendant's post-conviction petition and affirmed.The appellate court held that defendant's petition was an improper,successive petition that was not permitted under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West2000). No. 4-99-0738 (unpublished order under Supreme CourtRule 23). For the reasons that follow, we affirm the judgment ofthe appellate court.

BACKGROUND

Following a jury trial, defendant was convicted and sentencedon two counts of first degree murder and other felony offenses.Defendant's convictions and sentences were affirmed on directappeal. People v. Britt, 265 Ill. App. 3d 129 (1994). Defendantfiled a petition for leave to appeal from this decision which wasdenied at the September 1995 term of court. People v. Britt, 163Ill. 2d 567 (1995).

On August 29, 1996, defendant filed his first petition for post-conviction relief. In this petition, defendant alleged that he hadbeen denied the effective assistance of counsel at trial.Specifically, defendant asserted that his trial counsel had erred inadvising defendant not to testify at trial and during a hearing ondefendant's motion to suppress. Defendant further alleged that trialcounsel had failed to have a "vital" witness testify during thehearing on the motion to suppress, and that trial counsel had failedto properly cross-examine several of the State's key witnesses attrial. On the same day that defendant filed his first post-convictionpetition, the circuit court concluded that it did not have jurisdictionto consider the petition because it was filed outside the timelimitations set forth in section 122-1 of the Act. See 725 ILCS5/122-1 (West 1996). Accordingly, the circuit court dismissed thepetition.

On September 11, 1996, defendant filed a motion toreconsider. In this motion, defendant conceded that his petitionwas untimely filed. Defendant noted, however, that under section122-1 of the Act, an untimely petition may be considered on themerits if the "petitioner alleges facts showing that the delay infiling was not due to his culpable negligence." 725 ILCS 5/122-1(West 2000). Defendant argued that the prison in which he wasincarcerated had been on "several severe lockdowns", that he hadbeen denied access to the prison law library, and that he had beenunable to prepare his post-conviction petition. Thus, according todefendant, the delay in filing the petition was not due to hisculpable negligence, and his tardiness in filing the petition shouldhave been excused. The circuit court rejected these arguments anddenied defendant's motion to reconsider. Defendant appealed.

On appeal, the appellate court affirmed the circuit court'sdismissal of defendant's first post-conviction petition. People v.Britt, No. 4-96-0730 (1997) (unpublished order under SupremeCourt Rule 23). Citing to People v. Heirens, 271 Ill. App. 3d 392(1995), which was the governing case law at that time, theappellate court held that "the time frame of section 122-1 of theAct within which a defendant must file his postconviction petitionis jurisdictional, so that the petition is barred if not timely filed."The appellate court noted that defendant had conceded that hispetition was untimely. The appellate court then considered andrejected defendant's argument that the delay in filing his petitioncould be excused because it was not due to defendant's culpablenegligence. The appellate court concluded that, even accepting thatdefendant's prison had been on lockdown, this excused only aportion of the delay in filing. According to the appellate court,defendant's petition was still an additional 11 months tardybeyond that which could be excused by the lockdown anddefendant had offered no explanation for this further delay.Accordingly, the appellate court held that the petition wasuntimely filed and, therefore, that the court was "withoutjurisdiction to entertain" defendant's post-conviction petition.Defendant subsequently filed a petition for leave to appeal whichwas denied at the January 1998 term of court. People v. Britt, 176Ill. 2d 578 (1998).

On August 9, 1999, defendant filed a second post-convictionpetition along with a "Motion For Leave To File A Second Post-Conviction Petition" in the circuit court. In this second petition,which is the subject of the present appeal, defendant repeated theallegations of ineffective assistance of counsel that were presentedin his first petition. Defendant also raised numerous additionalallegations of constitutional violations. Defendant alleged, forexample, that his trial counsel was constitutionally ineffectivebecause he failed to request certain limiting instructions, failed toobject to the introduction of autopsy photos, and failed to move tosuppress certain items of evidence. Defendant also contended thatseveral of the trial court's rulings and several comments made bythe prosecutor had denied him certain constitutional rights.

In his "Motion For Leave To File A Second Post-ConvictionPetition," defendant repeated the same argument regardingculpable negligence that he had made during his first post-conviction proceeding, even though this argument had previouslybeen rejected by the appellate court. In his motion, defendantasserted that, during the time in which he was trying to prepare hisfirst post-conviction petition, the prison in which he wasincarcerated was on several "severe lockdowns" and that thisexcused the tardy filing of the first petition. After making theseassertions, defendant concluded by stating that "the failure of thecourt to consider these claims made herein [in his second post-conviction petition] will result in a fundamental miscarriage ofjustice." Defendant then requested that the circuit court "grant[]him leave to file [a] second post-conviction petition."

In a docket entry, the circuit court rejected defendant'sargument that the second petition was timely filed and denieddefendant's motion for leave to file a second post-convictionpetition. Defendant appealed.

On appeal, the appellate court did not consider whetherdefendant's second post-conviction petition was timely filed but,instead, addressed whether the petition was procedurally barred asan improper, successive petition. In so doing, the appellate courttreated the circuit court's denial of defendant's motion for leave tofile a second post-conviction petition as a summary dismissal ofthe second post-conviction petition. See 725 ILCS 5/122-2.1(a)(2)(West 2000).

Before the appellate court, defendant acknowledged that thefiling of successive post-conviction petitions is generallyprohibited under the Post-Conviction Hearing Act. Defendantmaintained, however, that the circumstances of his case fell withinthe exception which allows successive petitions when it can beshown that "the proceedings on the initial petition were deficientin some fundamental way." People v. Flores, 153 Ill. 2d 264, 273-74 (1992). In support of this argument, defendant cited this court'sopinion in People v. Wright, 189 Ill. 2d 1 (1999), a decision whichwas issued after the completion of defendant's first post-conviction proceedings. According to defendant, Wright overruledHeirens and established that the time limitations in the Act are notjurisdictional but are, instead, a statute of limitations which canonly be raised as an affirmative defense by the State in responsivepleadings. Based on this reading of Wright, defendant maintainedthat the circuit court lacked the authority, under section122-2.1(a)(2) of the Act, to sua sponte consider the timeliness ofhis first post-conviction petition during the initial stage of post-conviction review. Therefore, in defendant's view, the proceedingson his initial petition were fundamentally deficient and his secondpetition should have been considered by the circuit court on themerits.

The appellate court rejected these arguments and affirmed thedismissal of defendant's second post-conviction petition. We thengranted defendant's petition for leave to appeal. See 177 Ill. 2d R.315.

ANALYSIS

At the outset, defendant offers an argument, unrelated to theargument concerning Wright which was advanced in the appellatecourt, for why his second post-conviction petition should be givenconsideration on the merits. As he did before the appellate court,defendant acknowledges that the Post-Conviction Hearing Actgenerally prohibits the filing of successive post-convictionpetitions. See People v. Flores, 153 Ill. 2d 264, 273 (1992) ("ThePost-Conviction Hearing Act contemplates the filing of only onepost-conviction petition"), citing People v. Free, 122 Ill. 2d 367,375 (1989). Defendant contends, however, that the disposition ofhis first post-conviction petition, filed in 1996, did not constitutea complete or valid initial post-conviction proceeding. Defendantmaintains that his first post-conviction proceeding did not affordhim the opportunity to have his ineffective assistance of counselclaims heard on the merits because the first post-convictionpetition was dismissed on the basis that it was untimely filed.Since he never received a merits-based ruling on his first petition,defendant argues that his first post-conviction proceeding was, ineffect, a nullity. Therefore, according to defendant, his secondpost-conviction petition, filed in 1999, was not a "successive"petition as that term is used with respect to the Act and theineffective assistance of counsel claims raised in that petition maybe considered on the merits. We disagree.

Defendant received every procedural right, including theopportunity to have his claims heard on the merits, that wasavailable to him at the time his first post-conviction petition wasfiled. When defendant's first petition was filed in 1996, thecontrolling case law interpreting the time limitations in the Actwas found in People v. Heirens, 271 Ill. App. 3d 392 (1995).Under that decision, the time limitations in the Act wereconsidered jurisdictional and it was incumbent upon a petitionerwho filed an untimely post-conviction petition to affirmativelyplead "facts showing that the delay [in filing] was not due to his orher culpable negligence" (725 ILCS 5/122-1(c) (West 2000)) inorder to have his claims heard on the merits. Defendant tookadvantage of this "safety valve" in an effort to have his claimsheard. Before the circuit court, defendant conceded that his firstpost-conviction petition was untimely filed but argued that thedelay in filing the petition was not due to his culpable negligencebecause the prison in which he was incarcerated had been onlockdown. The circuit court rejected this argument. The appellatecourt, after full consideration, affirmed. The appellate court heldthat, even accepting all of defendant's arguments regardingculpable negligence as true, there remained an unexcused delay inthe filing of the petition. This court denied the defendant's petitionfor leave to appeal from the appellate court's decision. Thus, therewas a full and final resolution on whether defendant hadestablished a lack of culpable negligence. Defendant was accordedall the procedural rights and protections any post-convictionpetitioner could have received under the Act as it was interpretedat the time the first petition was filed. Under these circumstances,it cannot be said that defendant's first post-conviction proceedingwas a nullity. Accordingly, defendant's second post-convictionpetition, the petition at issue in the case at bar, is a successivepetition for purposes of the Post-Conviction Hearing Act.

Defendant argues, however, that even if his second post-conviction petition is a successive petition, it may nevertheless beconsidered on the merits because the proceedings on his initialpost-conviction petition were fundamentally deficient pursuant toWright. Before addressing this argument, we clarify the scope ofthe issue presented. Defendant's second post-conviction petitionpresents numerous claims of constitutional violations, the majorityof which were not raised in defendant's first post-convictionpetition. Section 122-3 of the Post-Conviction Hearing Actprovides that "[a]ny claim of substantial denial of constitutionalrights not raised in the original or an amended petition is waived."725 ILCS 5/122-3 (West 2000). In his brief before this court,defendant does not mention the additional claims raised in hissecond post-conviction petition nor does he argue that these claimsare excused from the waiver provision of section 122-3. Further,even under the principal argument advanced by defendant bothhere and in the appellate court, i.e., that defendant's first post-conviction petition was erroneously dismissed on jurisdictionalgrounds, we discern no reason why the additional claims could nothave been included in defendant's first petition. Accordingly,those claims in defendant's second petition which were notincluded in his first petition are waived. That being the case, thescope of our review is limited to consideration of those claims ofineffective assistance of trial counsel which were presented in bothdefendant's first post-conviction petition and his second. SeePeople v. Pitsonbarger, No. 89368, slip op. at 12-13 (May 23,2002) (each claim in a successive petition must be reviewed toascertain whether the claim is barred).

We now turn to defendant's argument that his first post-conviction proceedings were fundamentally deficient underWright. A narrow exception to the rule prohibiting successivepost-conviction petitions holds that a claim presented in asuccessive petition may be given consideration when theproceedings on the initial petition were "deficient in somefundamental way." People v. Flores, 153 Ill. 2d 264, 273-74(1992). To establish a fundamental deficiency which will permitconsideration of the successive petition, a defendant mustdemonstrate both "cause and prejudice" with respect to each claimraised. See generally People v. Pitsonbarger, No. 89368. "Forpurposes of this test, 'cause' is further defined as some objectivefactor external to the defense that impeded counsel's efforts toraise the claim in an earlier proceeding, and 'prejudice' is definedas an error which so infected the entire trial that the resultingconviction violates due process. Flores, 153 Ill. 2d at 279." Peoplev. Jones, 191 Ill. 2d 194, 199 (2000).

Defendant's explanation for why the claims of ineffectiveassistance of counsel which are repeated in his second post-conviction petition should be considered on the merits-hisargument as to why he has satisfied the cause inquiry-is based onthe assertion that the circuit court improperly impeded his abilityto bring those claims in his first post-conviction petition becausethe court sua sponte considered the timeliness of that petition. Insupport of this argument, defendant relies upon this court'sdecision in Wright. Wright, however, was decided in November1999, almost two years after defendant's appeal from the denial ofhis first post-conviction petition was completed. As noted, thecontrolling case law at the time of defendant's first post-conviction proceedings was found in Heirens, an opinion whichheld that the time limitations in the Post-Conviction Hearing Actwere jurisdictional and could properly be raised sua sponte by thecircuit court. Thus, in arguing that his first post-convictionproceedings were fundamentally deficient pursuant to Wright,defendant is contending that our holding in Wright should beapplied retroactively to his first proceeding.

The State, in response to defendant's arguments, first contestsdefendant's reading of Wright. According to the State, even underWright, the circuit court retains the authority to sua sponteconsider the timeliness of a post-conviction petition during theinitial stage of review. Furthermore, in the State's view, even ifWright does stand for the proposition that the circuit court may notsua sponte consider the timeliness of a post-conviction petition,that holding should not be applied to defendant's first post-conviction petition. The State maintains that "the People's interestin the finality of criminal litigation and judgments" shouldpreclude application of Wright and prevent consideration of theclaims raised in defendant's second petition.

Initially, we note that any confusion as to the meaning ofWright, and any confusion as to whether a circuit court possessesthe authority to sua sponte raise the timeliness of a post-convictionpetition during the initial stage of post-conviction review, has beenresolved by our recent decision in People v. Boclair, Nos. 89388,89471, 89534 cons. (August 29, 2002). In that case, we concludedthat the Act does not permit the summary dismissal of a post-conviction petition during the first stage of post-conviction reviewon the ground that the petition is untimely. Boclair, slip op. at 3-9.Consequently, having concluded in Boclair that a circuit court maynot sua sponte dismiss a petition on the basis of timeliness, thequestion in this case becomes whether the holding of Boclairshould be given retroactive application to defendant's first post-conviction proceeding. Under this court's case law, the answer tothis question is no.

In People v. Szabo, 186 Ill. 2d 19 (1998), the defendant fileda second post-conviction petition in which he sought to takeadvantage of a decision of this court, People v. Johnson, 154 Ill.2d 227 (1993), that had been announced after the completion ofhis first post-conviction proceedings. Johnson addressed the dutiesof post-conviction counsel which arise under Supreme Court Rule651(c) (134 Ill. 2d R. 651(c)). In substance, the defendant in Szabosought a reexamination of the holding in the appeal from his firstpost-conviction appeal, arguing that the appeal was deficient basedupon Johnson. This court rejected this argument, stating:

"Johnson was decided after the present defendant's appealfrom the denial of his first post-conviction petition. Wedo not believe that Johnson controls the outcome of thepresent case, any more than we believe that Johnsongoverns other post-conviction matters that wereconcluded long ago. The proceedings on defendantSzabo's first post-conviction petition had been entirelycompleted by the time Johnson was decided." Szabo, 186Ill. 2d at 25.

Applying the logic of Szabo to the instant appeal, this court'sholding in Boclair that a circuit court may not raise the issue oftimeliness sua sponte cannot be applied retroactively todefendant's first post-conviction proceeding.

Further, even under a general fundamental fairness inquiry, itis clear that the holding adopted in Boclair should not be appliedretroactively to defendant's first post-conviction proceeding. Cf.Teague v. Lane, 489 U.S. 288, 307, 103 L. Ed. 2d 334, 353, 109S. Ct. 1060, 1073 (1989) (decisions establishing newconstitutional rules of criminal procedure may be appliedretroactively to cases pending on collateral review where the newrule requires the observance of those procedures that are implicitin the concept of ordered liberty). In the case at bar, afterdefendant's first post-conviction petition was initially dismissed,defendant filed a motion to reconsider in which he alleged that histardy filing was not due to his culpable negligence. See 725 ILCS5/122-1 (West 2000). The circuit court denied that motion. Onappeal in 1997, the appellate court fully discussed the issue ofculpable negligence and held that defendant's petition wasuntimely. Defendant's petition for leave to appeal from thatdecision was denied. Thus, on the critical issues of whetherdefendant's first petition was, in fact, untimely and whether helacked culpable negligence for the tardy filing, defendant has hadhis day in court. These issues were fully and finally litigated in thetrial court, the appellate court, and this court when it denieddefendant's petition for leave to appeal.

Significantly, neither the holding in Wright nor the holding inthe Boclair changed the length of the post-conviction timelimitations or the definition of culpable negligence. Indeed, fromdefendant's perspective, and as a practical matter, the onlyrelevant change that has been made in post-conviction law sincethe first post-conviction proceeding was completed is that now theissue of timeliness must be affirmatively raised by the State, ratherthan the circuit court. Thus, viewing the first post-convictionproceeding from the perspective of the new law established inBoclair, the only way it can be said that defendant has suffered anyprejudice is that, during the first post-conviction proceeding,defendant was denied the possibility that the State might haveelected to waive the timeliness issue. However, in the course ofthe present appeal, the State has continued to argue that defendantwas culpably negligent in filing the first petition and that the firstpetition was therefore untimely filed. In other words, the State,being fully aware of the nature of defendant's claims of ineffectiveassistance of counsel, has made known that it would have pursuedthe timeliness defense during the first post-conviction proceedingand would not have waived it. Defendant has therefore not beenprejudiced in any way by the change in the law announced inBoclair. Under these circumstances, denying retroactiveapplication would not be fundamentally unfair to defendant.

Boclair may not be applied retroactively to defendant's firstpost-conviction proceeding. Accordingly, defendant cannotestablish cause for proceeding on the claims of ineffectiveassistance of counsel which are repeated in his second petition.Thus, the claims of ineffective assistance of counsel which arerepeated in defendant's second post-conviction petition areprocedurally barred from consideration on the merits.

CONCLUSION

For the foregoing reasons, the appellate court properlyaffirmed the dismissal of defendant's second post-convictionpetition.

Affirmed.

Contrary to the majority's assertion, Britt-El was not accordedall of the procedural protections to which he was entitled at thetime his first post-conviction petition was filed. Britt-El's firstpetition was improperly dismissed by the circuit court, on thecourt's own motion, on the grounds that it was untimely. As werecently held in People v. Boclair, Nos. 89388, 89471, 89534cons. (August 29, 2002) such sua sponte dismissals are notpermitted under the Post-Conviction Hearing Act.

A significant feature of Boclair is that it did not limit itsinterpretation of the Post-Conviction Hearing Act to cases pendingon direct review or those arising in the future. We should notimpose such a limitation now. Decisions by our court arepresumed to apply retroactively as well as prospectively. Tosadov. Miller, 188 Ill. 2d 186, 196 (1999); Deichmueller ConstructionCo. v. Industrial Comm'n, 151 Ill. 2d 413, 416 (1992). Althoughthat presumption may be overcome, prospective-only applicationis the exception. Retroactivity is the norm.

Unless our court has expressly stated in its ruling that thedecision will only be applied prospectively, overcoming thepresumption in favor of retroactivity requires consideration ofthree factors: (1)whether the decision established a new principleof law; (2) whether, given the purposes and history of the newrule, its operation would be retarded or promoted by prospectiveapplication; and (3) whether substantial inequitable results wouldbe produced if the decision were applied retroactively. Tosado,188 Ill. 2d at 197; Aleckson v. Village of Round Lake Park, 176 Ill.2d 82, 88 (1997).

The first of these three factors is a threshold requirement. Ifit is not met, that is, if the decision does not establish a newprinciple of law, there is no need for further inquiry. Thepresumption cannot be overcome. The decision will not be limitedto prospective application. Tosado, 188 Ill. 2d at 197.

Contrary to the majority's view, Boclair did not produce achange in the law. The Post-Conviction Hearing Act did not meanone thing prior to our decision in Boclair and something elseafterward. In construing the plain language of the Act as we did inBoclair, our court established no new common law principles. Werecognized no new rules of constitutional procedure. We overruledno prior decisions of this court. Our decision interpreting the Actsimply declared what the law had always meant from its effectivedate forward. See Gates v. United States, 515 F.2d 73, 78 (7th Cir.1975). That being so, there is no basis for overcoming thepresumption in favor of retroactive as well as prospectiveapplication. The interpretation of the Act we followed in Boclairis unquestionably applicable to the present case.

People v. Szabo, 186 Ill. 2d 19 (1998), and Teague v. Lane,489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), thedecisions cited by my colleagues to reach a contrary result, areinapposite. Unlike the post-conviction proceeding before us today,neither of those cases involved the applicability of a decisionwhich merely interpreted and applied the plain language of anexisting statute. Where a judicial interpretation of a statue involvesa commonsense construction based on the clear wording of the lawas enacted by the General Assembly, the notion that the decisionshould be applied only prospectively is untenable. See People v.Turnbeaugh, 116 Ill. App. 3d 199, 205 (1983).

The appellate court's opinion in People v. Heirens, 271 Ill.App. 3d 392 (1995), cited by my colleagues, does not alter thisconclusion. The issue in Heirens was not whether the court couldsummarily dismiss a post-conviction petition as untimely on itsown motion, but whether the State should be barred fromchallenging the petition's timeliness. Unlike Boclair and the casebefore us today, the timeliness of the petition in Heirens wasspecifically challenged by the State in its motions to dismiss.Heirens, 271 Ill. App. 3d at 399. The statutory authority of the trialjudge court to rule, sua sponte, that the petition had been filed toolate was neither raised nor decided.

Even if Heirens could be construed as authorizing the circuitcourt's action at the time Britt-El's first petition was dismissed,that is not a sufficient basis for refusing to follow Boclair now. Aspreviously indicated, Boclair established no new criminal orcommon law rules. It merely interpreted the Post-ConvictionHearing Act in accordance with the Act's plain language. Givingthe clear language of a statute its effect as written cannot be saidto result in a change in the law, even where prior decisions of theappellate court have reached contrary interpretations. See Peoplev. Crete, 113 Ill. 2d 156, 160-63 (1986). Accordingly, new judicialdecisions which do not enlarge the meaning of a statute but simplyinterpret the statute's unambiguous language will be followed inpost-conviction proceedings notwithstanding the fact that theappellate court may once have construed the law differently. SeePeople v. Granados, 172 Ill. 2d 358, 367-69 (1996); People v.Moore, 177 Ill. 2d 421, 430-37 (1997).

Because the circuit court misapplied the Post-ConvictionHearing Act and dismissed Britt-El's original petition when it hadno statutory authority to do so, the initial post-convictionproceedings were fundamentally deficient. They served none ofthe purposes for which the Post-Conviction Hearing Act wasenacted. In this regard, the situation is analogous to that presentedto our court in People v. Nichols, 51 Ill. 2d 244, 246 (1972), wherethe circuit court erroneously dismissed the original post-convictionpetition without appointing counsel. Because of the circuit court'sfundamental error, our court viewed the original proceedings as avirtual nullity. People v. Free, 122 Ill. 2d 367, 376 (1988). I fail tosee how we can take a different view here.

The majority's contention that Britt-El was not prejudiced bythe circuit court's failure to follow the plain language of the Post-Conviction Hearing Act is misguided. It is easy for the State toclaim now that it would have challenged the timeliness of theoriginal post-conviction petition if the circuit court had not raisedthe matter first, but the fact is that it did not. The State was notobligated to move for dismissal of the original petition on thegrounds that it was untimely, and it filed no such motion. Thetimeliness of the petition became an issue only when it wasimproperly injected into the case by the circuit court.

The State does not invariably raise all of the affirmativedefenses available to it, and we have no basis to assume that itwould have raised a limitations defense here. Although the Statedid embrace that defense later, it is important to remember that thesubsequent litigation regarding the timeliness of the originalpetition was necessary only because of the circuit court's initialerror in dismissing the petition. Had the circuit court not acted inviolation of the Post-Conviction Hearing Act, the petition'stimeliness may never have been contested and Britt-El would nothave been forced into a position of having to plead, after the fact,that the delay should be excused.

By allowing the circuit court's undeniable error in dismissingBritt-El's original post-conviction petition on procedural groundsto block Britt-El from litigating the merits of his post-convictionclaims in a subsequent post-conviction proceeding, the majorityhas denied him the " 'one complete opportunity to show asubstantial denial of his constitutional rights' " to which he isentitled. See Free, 122 Ill. 2d at 376, quoting People v. Logan, 72Ill. 2d 358, 370 (1978). That is not justice. It is the impersonationof justice. Fundamental fairness and the law demand a contraryresult.

For the foregoing reasons, the judgment of the appellate courtaffirming dismissal of Britt-El's second petition for post-conviction relief should be reversed, and the cause should beremanded to the circuit court for further proceedings. I thereforedissent.