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Docket No. 89363-Agenda 4-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
HARRY GOSIER, Appellant.

Opinion filed October 18, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

During a jury trial conducted in the circuit court ofChampaign County, defendant, Harry Gosier, pled guilty tocharges of two murders and two separate aggravated criminalsexual assaults. After accepting the guilty pleas, the circuit courtfound that defendant was eligible for the death penalty.Subsequently, the jury that had originally been empaneled todetermine defendant's guilt found that there were no mitigatingfactors sufficient to preclude the imposition of the death penalty.The circuit court then sentenced defendant to death for themurders and to two consecutive 60-year sentences for theaggravated criminal sexual assaults. On direct appeal, this courtaffirmed defendant's convictions and sentences. People v. Gosier,145 Ill. 2d 127 (1991), cert. denied, 504 U.S. 987, 119 L. Ed. 2d590, 112 S. Ct. 2970 (1992).

Thereafter, defendant filed a post-conviction petition (725ILCS 5/122-1 et seq. (West 1992)). The circuit court denied reliefwithout an evidentiary hearing. Defendant appealed, and this courtaffirmed the judgement of the circuit court. People v. Gosier, 165Ill. 2d 16 (1995), cert. denied, 516 U.S. 872, 133 L. Ed. 2d 130,116 S. Ct. 194 (1995). Defendant next filed a petition for habeascorpus in the United States district court. The district court granteddefendant a hearing on the issue of his competency to stand trial,but ultimately denied habeas relief. United States ex rel. Gosier v.Welborn, No. 96-C-2176 (N.D. Ill. June 18, 1998). The UnitedStates Court of Appeals for the Seventh Circuit affirmed the denialof relief. Gosier v. Welborn, 175 F.3d 504 (7th Cir. 1999), cert.denied, 528 U.S. 1006, 145 L. Ed. 2d 387, 120 S. Ct. 502 (1999).

On December 7, 1999, defendant filed a petition seeking reliefpursuant to (i) the Illinois Post-Conviction Hearing Act (725 ILCS5/122-1 et seq. (West 1998)), (ii) the state habeas corpusprovisions (735 ILCS 5/10-101 et seq. (West 1998)), and (iii)section 2-1401 of the Code of Civil Procedure (735 ILCS5/2-1401 (West 1998)). The circuit court dismissed the petition inits entirety, upon motion of the State, and this appeal followed.134 Ill. 2d R. 651. We now affirm the judgment of the circuitcourt.

BACKGROUND

Our previous opinion on direct appeal contains a detailedfactual recitation of the events leading to defendant's convictionsand sentence. See Gosier, 145 Ill. 2d 127. We need not repeatthose facts here given the procedural bases upon which we resolvethis appeal.

Defendant's present petition raised some 15 claims of errorwhich purportedly occurred during the trial proceedings. Due tothe fact that, in this court, defendant has identified only five claimsas necessitating reversal, we will limit our discussion to thoseclaims. As he did below, defendant initially contends that a bonafide doubt existed as to his competency at the time of trial, whichin turns calls into question whether his guilty plea was knowinglyand voluntarily given. Defendant further argues that he was denieda fair and reliable sentencing hearing because (i) the Stateimproperly excused several venirepersons on the basis that theyhad reservations about the application of the death penalty, (ii) oneof the jurors did not understand that his lone vote against asentence of death would preclude its imposition, and (iii) one ofthe jurors was allowed to serve on the panel despite stating that hewould automatically impose the death penalty upon a convictionfor first degree murder. Defendant's final contention is that the hewas denied a fair and reliable sentencing hearing because of the"multiple and cumulative effects of numerous errors."

As noted previously, the State moved to dismiss the petition.In so doing, the State raised several distinct procedural challengesto the petition in the circuit court. The State argued thatdefendant's petition was time-barred under section 122-1 of thePost-Conviction Hearing Act and that defendant had failed to availhimself of the statutory exception to the time limitation. Moreover,the State contended that defendant's petition was an impropersuccessive petition and that defendant had failed to establish thatfundamental fairness necessitated the relaxation of the bar on suchfilings.

In ruling upon the State's motion, the circuit court found thatdefendant's petition was filed beyond the period of time mandatedby the legislature in section 122-1. The circuit court further foundthat defendant did not meet the statutory exception to thetimeliness requirement because his petition failed to include anyallegations regarding the lack of culpable negligence. In thealternative, the circuit court also ruled that each of defendant'sclaims was barred by principles of waiver and res judicata, notingin particular that several of the claims had been thoroughlylitigated in the federal habeas corpus proceedings and found to bewithout merit. The circuit court further found that defendant'sclaims for relief under the Illinois habeas corpus act and section2-1401 of the Code of Civil Procedure were without merit. Thecourt entered a written order to that effect, and this appealfollowed.

ANALYSIS

Relief Under the Illinois Post-Conviction Hearing Act

The Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1et seq. (West 1994)) provides a statutory remedy by whichprisoners may collaterally attack a prior conviction and sentence.People v. Brisbon, 164 Ill. 2d 236, 242 (1995). To be entitled topost-conviction relief, a defendant must establish that a substantialdeprivation of federal or state constitutional rights occurred in theproceedings that resulted in the conviction or sentence beingchallenged. People v. Morgan, 187 Ill. 2d 500, 528 (1999).

The Act contains several procedural hurdles a defendant mustclear in order to claim relief. For example, section 122-1(c) of theAct expressly provides that no proceedings may be commencedafter the passage of certain enumerated time periods "unless thepetitioner alleges facts showing that the delay was not due to hisor her culpable negligence." 725 ILCS 5/122-1(c) (West 1998). Inaddition to the timeliness question, the Act contemplates the filingof only one petition, and "a ruling on a post-conviction petitionhas res judicata effect with respect to all claims that were raisedor could have been raised in the initial petition." People v. Free,122 Ill. 2d 367, 375-76 (1988); accord People v. Flores, 153 Ill. 2d264, 273-74 (1992). Indeed, section 122-3 of the Act expresslystates, "Any claim of substantial denial of constitutional rights notraised in the original or an amended petition is waived." 725 ILCS5/122-3 (West 1998). Nevertheless, exceptions have been madeto this requirement in a limited range of circumstances. This courthas allowed successive petitions when the proceedings on theoriginal petitions were said to be deficient in some fundamentalway. Flores, 153 Ill. 2d at 273-74. In order to establish thisdeficiency, we have held that a defendant must demonstrate bothcause and prejudice for the failure to assert the matter previously.See, e.g., People v. Jones, 191 Ill. 2d 194, 198-99 (2000); Peoplev. Holman, 191 Ill. 2d 204, 210 (2000).

After reviewing defendant's allegations, we agree with thecircuit court that defendant filed the instant petition well outsidethe time limitations set forth in section 122-1 of the Act. At thetime defendant filed his petition, section 122-1(c) provided that,at most, defendant had three years from the date of his convictionto commence proceedings under the Act. See 725 ILCS 5/122-1(c)(West 1998). Defendant's trial took place in October 1988.Defendant filed his petition in this matter on December 7, 1999,some 11 years after the completion of his trial. Accordingly,defendant's filing of the petition falls beyond the time parametersestablished by the General Assembly and must be deemeduntimely.

As noted previously, section 122-1(c) provides that noproceedings may be commenced after the passage of theenumerated time periods "unless the petitioner alleges factsshowing that the delay was not due to his or her culpablenegligence." 725 ILCS 5/122-1(c) (West 1998). Defendant'spetition does not contain any allegations, whatsoever, regardingdefendant's lack of culpable negligence. On appeal, defendant hasfailed to point to any facts contained in the petition which wouldplace him within the ambit of this statutory exception. Indeed,defendant has not made any effort in this proceeding toacknowledge the requirements of section 122-1, the tardiness ofhis petition, and the lack of any allegations regarding culpablenegligence. Under these circumstances, the circuit court properlyconcluded that the petition was untimely and that defendantprovided neither the facts nor the theory to demonstrate that thetardiness was due to his lack of culpable negligence. Accordingly,we affirm the circuit court's dismissal of defendant's petition forpost-conviction relief under the Post-Conviction Hearing Act.

Our ruling that defendant's petition is time-barred isdispositive of this appeal with respect to the claims of relief madepursuant to the Act. Nevertheless, we would point out-in a purelyacademic manner-that even had defendant alleged facts that wouldestablish that the late filing was not due to his culpable negligence,his petition would still be barred as an improper successive filing.Defendant has not satisfied the cause and prejudice test for hisfailure to raise these issues at an earlier point in the history of thiscase. Even if we were to assume defendant had cause for failing toraise these matters previously, he cannot establish prejudice. Webelieve that, as to the issue regarding defendant's competency, theopinions from the federal habeas corpus proceedings demonstratea lack of prejudice. As to defendant's other claims, we cannot saythat the errors identified by defendant so infected the trial andsentencing proceedings that defendant's convictions and sentencemust be considered violations of due process.

Relief Under the Illinois Habeas Corpus Act

We next discuss whether defendant's allegations warrantrelief pursuant to the state habeas corpus provisions.

Under Illinois law, a prisoner may seek habeas corpus reliefin our courts. See 735 ILCS 5/10-101 et seq. (West 1998).However, the habeas corpus act provides relief only on thegrounds specifically enumerated in section 10-124 of the act. See735 ILCS 5/10-124 (West 1998). This court has consistently heldthat a writ under this act is available only to obtain the release ofa prisoner who has been incarcerated under a judgment of a courtthat lacked jurisdiction of the subject matter or the person of thepetitioner, or where there has been some occurrence subsequent tothe prisoner's conviction that entitles him to release. See Barneyv. Prisoner Review Board, 184 Ill. 2d 428, 430 (1998) (and casescited therein). Moreover, a petition for habeas corpus may not beused to review proceedings that do not exhibit one of thesedefects, even though the alleged error involves a denial ofconstitutional rights. Barney, 184 Ill. 2d at 430, citing Newsome v.Hughes, 131 Ill. App. 3d 872, 874 (1985).

The petition at issue in this case does not allege any errorwhich is subject to review in habeas corpus proceedings.Defendant raises no question regarding jurisdiction, nor has healleged a post-conviction event which would entitle him to release.Given these circumstances, we affirm the circuit court's judgmentwith respect to defendant's prayer for habeas corpus relief.

Relief Under Section 2-1401

In light of the fact that defendant also couched his petition interms of relief pursuant to section 2-1401 of the Code of CivilProcedure, we next address whether the circuit court properlydismissed the claims within that context.

Initially, we note that although a section 2-1401 petition isusually characterized as a civil matter, relief under section 2-1401extends to criminal cases. People v. Haynes, 192 Ill. 2d 437, 460-61 (2000). We further note that a petition for relief from judgmentmade pursuant to section 2-1401 must be filed within two yearsafter the entry of the judgment being challenged. 735 ILCS5/2-1401(c) (West 1998). Petitions filed beyond the two-yearperiod will not generally be considered. People v. Caballero, 179Ill. 2d 205, 210 (1997) (and cases cited therein). As we stated inCaballero,

"[T]he two year limitation mandated by section 2-1401and its predecessor, section 72 [citation], must be adheredto in the absence of a clear showing that the personseeking relief is under legal disability or duress or thegrounds for relief are fraudulently concealed. Crowell v.Bilandic, 81 Ill. 2d 422, 427 (1980); People v. Berland,74 Ill. 2d 286, 317 (1978). Moreover, the fact that a post-judgment motion or an appeal may be pending does notserve to toll the period of limitation. See Sidwell v.Sidwell, 127 Ill. App. 3d 169, 174 (1984)." Caballero,179 Ill. 2d at 211.

A person may also seek relief beyond the two-year limitation ofsection 2-1401 where the judgment being challenged is void(People v. Harvey, 196 Ill. 2d 444, 447 (2001)) or where theopposing party has waived the limitation period (People v. Ross,191 Ill. App. 3d 1046, 1053 (1989)).

Defendant's request for section 2-1401 relief was filed 11years after the judgment of conviction was entered and sentenceimposed in 1988. Defendant does not contend that any of thegrounds for tolling the limitations period exist. Nor does he claimthat the judgment being challenged is void. Moreover, waiver doesnot apply because the State raised the issue in its motion todismiss. For these reasons, we affirm the judgment of the circuitcourt in this respect.

CONCLUSION

In light of the foregoing, we affirm the circuit court'sdismissal of defendant's post-conviction petition. The clerk of thiscourt is directed to enter an order setting Tuesday, January 22,2002, as the date on which the sentence of death, entered by thecircuit court of Champaign County shall be carried out. Defendantshall be executed in the manner provided by law. 725 ILCS5/119-5 (West 1996). The clerk of this court shall send a certifiedcopy of this mandate to the Director of Corrections, to the wardenof Tamms Correctional Center, and to the warden of the institutionwhere defendant is now confined.

Circuit court judgment affirmed.

I agree with the result reached in this case. However, I do notagree with the court's statement that relief from a final judgmentmay be had under section 2-1401 of the Code of Civil Procedure(Code) (735 ILCS 5/2-1401 (West 1998)) beyond the two-yearlimitation of that section where the judgment is being challengedas void. I have previously expressed my views on this subject inmy special concurrence in People v. Harvey, 196 Ill. 2d 444, 457-60 (2001) (Garman, J., specially concurring, joined by Fitzgeraldand Thomas, JJ.).

Initially, I note that defendant here did not challenge thejudgment as void. The court's general statement concerning howone may challenge a void judgment is unnecessary to theresolution of this case and is, therefore, dicta.

Section 2-1401 of the Code contains exceptions to its two-year time limitation only where the person seeking relief is undera legal disability or duress, or where the grounds for relief havebeen fraudulently concealed. 735 ILCS 5/2-1401(c) (West 1998).No exception to the time limitation is provided for a petitionchallenging a judgment as void. In fact, section 2-1401(f)explicitly recognizes that petitions to vacate void judgments do notcome within the scope of the statute, stating that nothing containedin section 2-1401 "affects any existing right to relief from a voidorder or judgment, or to employ any existing method to procurethat relief." 735 ILCS 5/2-1401(f) (West 1998).

As I noted in my special concurrence in Harvey, 196 Ill. 2d at459-60, case law demonstrates that a party may challenge a voidjudgment at any time by motion or petition presented to the court.A petition challenging a void judgment is procedurally distinctfrom one brought pursuant to section 2-1401, in that the former isnot subject to the time limitation of a section 2-1401 motion, noris it subject to any due diligence requirements. People v. ReymarClinic Pharmacy, Inc., 246 Ill. App. 3d 835, 841 (1993). Indeed,a party may not properly invoke section 2-1401 relief inchallenging a judgment as void even where the petition is broughtwithin two years following entry of the judgment. In People ex rel.McGraw v. Mogilles, 136 Ill. App. 3d 67 (1985), the defendantfiled a motion to vacate a judgment for lack of jurisdiction. Thechallenged judgment was entered on October 28, 1983, and themotion was filed on May 4, 1984. That motion was not designatedas a section 2-1401 motion. McGraw, 136 Ill. App. 3d at 71.Following denial of the motion, the defendant filed a secondmotion for relief from judgment, this one pursuant to section2-1401 of the Code, alleging that he had a meritorious defense.McGraw, 136 Ill. App. 3d at 69-70. In response to the plaintiff'sargument that the defendant's first motion to vacate must betreated as a section 2-1401 motion, the appellate court stated:

"We do not find merit in plaintiff's argument that bothof defendant's motions must be considered as undersection 2-1401. This court has recently reaffirmed that apleading attacking a judgment for lack of jurisdiction isnot restricted to the requirements of section 2-1401 of theCode of Civil Procedure and void judgments may be setaside on motion even after 30 days from rendition.[Citations.] Subsection (f) of section 2-1401 of the Codeof Civil Procedure also acts to preserve the existing rightof a party to seek relief from a void judgment by meansother than section 2-1401, and we consider defendant byhis first motion to vacate did so here." McGraw, 136 Ill.App. 3d at 72.

Other cases have construed section 2-1401 of the Code or itspredecessor, section 72 of the former Civil Practice Act (Ill. Rev.Stat. 1979, ch. 110, par. 72), as providing no grounds for relieffrom a void judgment where the petition is filed within two yearsfollowing entry of the judgment. See, e.g., Nelson v. UnitedAirlines, Inc., 243 Ill. App. 3d 795, 799 (1993) (motion to vacatedefault judgment as void for lack of personal jurisdiction was filedfour months after entry of judgment; appellate court refused toconsider motion under section 2-1401 of the Code, noting that itis well settled that a motion to vacate a judgment for lack ofjurisdiction is not considered a section 2-1401 petition); Mason v.Freeman National Printing Equipment Co., 51 Ill. App. 3d 581,585 (1977) (motion to vacate default judgment as void for lack ofpersonal jurisdiction was filed less than six months followingjudgment; appellate court held that defendant was not required toplead a meritorious defense, as section 72, by its express terms, isnot applicable to a motion to vacate a void judgment); G. BrockStewart, Inc. v. Valenti, 43 Ill. App. 3d 673, 674 (1976)(construing a petition alleging lack of personal jurisdiction to bein the nature of a special and limited appearance); Mabion v. Olds,84 Ill. App. 2d 291, 294-95 (1967) (holding that a motionattacking a default judgment as void filed less than one year afterentry of judgment would not be considered a petition under section72 of the former Civil Practice Act).

I note that section 2-1401(f) of the Code is identical to thelanguage of section 72(6) of the former Civil Practice Act (Ill.Rev. Stat. 1979, ch. 110, par. 72(6)). Certainly, if section 2-1401of the Code is not applicable to a motion attacking a voidjudgment within that section's two-year time limitation, it wouldbe anomalous to hold that a motion attacking a void judgmentfiled beyond the two-year time limitation may be considered undersection 2-1401.

The language of section 2-1401(f) is clear. There is no basisin the statutory language of section 2-1401 or case lawinterpreting that section for the majority's statement that motionschallenging judgments as void that are filed beyond the two-yearlimitation of section 2-1401 may be brought under that section.

CHIEF JUSTICE HARRISON, dissenting:

The majority is correct in holding that the two-year timelimitation contained in section 2-1401 does not apply when aparty challenges a judgment on the grounds that it is void. Peoplev. Harvey, 196 Ill. 2d 444 (2001). It is incorrect in holding thatGosier is not entitled to substantive relief. The proceedings whichculminated in Gosier's sentence of death were fatally flawedbecause they did not comport with the new rules enacted by ourcourt governing the conduct of cases in which the State is seekingthe death penalty. For the reasons set forth in my dissentingopinion in People v. Hickey, No. 87286, slip op. at 35-39(September 27, 2001) (Harrison, C.J., dissenting), the procedurescontained in those rules are indispensable for achieving anaccurate determination of innocence or guilt and are applicable toall capital cases now coming before us. Because Gosier was tried,convicted and sentenced without the benefit of the new rules, hisconvictions and death sentence should be vacated, and the causeshould be remanded to the circuit court for a new trial.

Even if Gosier were not entitled to the benefit of the newrules, his sentence of death could not stand. For the reasons setforth in my partial concurrence and partial dissent in People v.Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is voidand unenforceable because it violates the eighth and fourteenthamendments to the United States Constitution (U.S. Const.,amends. VIII, XIV) and article I, section 2, of the IllinoisConstitution (Ill. Const. 1970, art. I,