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Docket No. 89368-Agenda 5-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
JIMMY RAY PITSONBARGER, Appellant.

JUSTICE GARMAN delivered the opinion of the court:

Petitioner, Jimmy Ray Pitsonbarger, appeals from orders ofthe circuit court of Peoria County dismissing 34 of the 35 claimsraised in his second post-conviction petition and denying the soleremaining claim after an evidentiary hearing. Because petitionerwas sentenced to death for the underlying convictions, his appeallies directly to this court. 134 Ill. 2d R. 651(a). For the reasons thatfollow, we affirm the judgment of the circuit court.

I. BACKGROUND

This court has previously described the facts underlyingpetitioner's conviction and sentencing in our opinion on his directappeal. See People v. Pitsonbarger, 142 Ill. 2d 353 (1990). Thus,we will summarize here only the proceedings that have occurredsince his conviction.

In 1988, petitioner was convicted in a bench trial of themurders of Claude and Alta Brown. The death penalty hearing washeld before a jury, which found the petitioner eligible for the deathpenalty based on the presence of two aggravating factors, andfurther found that no mitigating factors sufficient to precludeimposition of the death penalty were present. The circuit courtsentenced petitioner to death. On direct appeal, this courtaddressed 14 separate claims of error, affirmed two convictions forintentional murder, vacated four convictions for felony murder,and affirmed the sentence of death. Pitsonbarger, 142 Ill. 2d 353.Petitioner's petition for a writ of certiorari to the United StatesSupreme Court was denied. Pitsonbarger v. Illinois, 502 U.S. 871,116 L. Ed. 2d 163, 112 S. Ct. 204 (1991).

In April 1992, petitioner filed a post-conviction petitionpursuant to the Post-Conviction Hearing Act (Act) (725 ILCS5/122-1 et seq. (West 1992)). The circuit court dismissed thepetition without an evidentiary hearing, finding that all seven ofthe claims raised were either barred by res judicata, because theyhad already been addressed on direct appeal, or waived, becausethey had not been raised on appeal even though they wereavailable to be raised. Counsel filed a "Motion to Reconsider andVacate" in May 1992, which the circuit court denied almost 11months later. The clerk of the court did not give notice of thisdecision to counsel. Thus, when counsel filed a "Motion to FileLate Notice of Appeal" in November 1993, the motion wasgranted. However, after counsel failed to timely file a brief, thiscourt denied various motions for extensions of time and forreconsideration and eventually dismissed the matter for want ofprosecution in June 1994.

Petitioner filed a petition for habeas corpus relief in March1995, in the United States District Court for the Central District ofIllinois, raising 11 claims. The district court issued an unpublisheddecision on October 5, 1995, denying habeas relief. On appeal, theUnited States Court of Appeals for the Seventh Circuit affirmedthe district court's decision. Pitsonbarger v. Gramley, 103 F.3d1293 (7th Cir. 1997). That judgment was vacated by the UnitedStates Supreme Court in Pitsonbarger v. Gramley, 522 U.S. 802,139 L. Ed. 2d 6, 118 S. Ct. 37 (1997) (vacating and remanding forreconsideration in light of Lindh v. Murphy, 521 U.S. 320, 138 L.Ed. 2d 481, 117 S. Ct. 2059 (1997)). The court of appealsthereafter entered a revised decision, again affirming the denial ofhabeas relief. Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir.1998). The Supreme Court denied petitioner's petition for a writof certiorari. Pitsonbarger v. Gramley, 525 U.S. 984, 142 L. Ed.2d 402, 119 S. Ct. 448 (1998).

On February 28, 1996, while his appeal was pending beforethe Seventh Circuit, petitioner filed a second post-convictionpetition in the circuit court of Peoria County, raising 35 claims oferror. The State responded by filing a motion to dismiss on thebasis that the entire petition was time-barred under the statute oflimitations contained in section 122-1 of the Act (725 ILCS5/122-1 (West 1996)). In the alternative, the State argued that all35 claims were either waived by petitioner's failure to raise themin earlier proceedings or barred by res judicata. Petitionerresponded that his first post-conviction proceeding was"fundamentally flawed" due to its virtual "abandonment" by post-conviction counsel and, thus, consideration of the claims raised inhis second post-conviction petition was not barred by section122-1 or by the waiver provision contained in section 122-3 of theAct (725 ILCS 5/122-3 (West 1996)). Therefore, he argued, all 35issues should be addressed. In addition, petitioner argued that oneclaim in particular-his claim that he was denied a fitness hearingin 1988 due to ineffective assistance of counsel-should beaddressed on the merits. Following a hearing on the State's motionon October 31, 1997, the circuit court ruled that "only thoseparagraphs in the Petition that are directed toward *** the issue offitness need be answered and the Petition is dismissed in otherregards." The State then filed an answer addressing the solesurviving claim, which was the subject of an evidentiary hearingon April 11, 2000.

At the evidentiary hearing, the parties stipulated that prior toand during petitioner's bench trial he was taking psychotropicmedication, specifically 10 milligrams of Librium three times aday. Petitioner argued that this fact alone is sufficient to put theburden on the State to prove that he had been fit to stand trial in1988. Further, petitioner argued that he should be given a new trialbecause a retrospective fitness hearing more than a decade latercould not meet due process standards. Other than stipulating to thecontents of the medication records, the petitioner introduced noevidence and presented no testimony.

The State argued that the mere fact petitioner was receivingmedication is not sufficient to require a new trial. Rather, he mustdemonstrate that trial counsel was ineffective for failing to requesta fitness hearing and appellate counsel was ineffective for failingto raise the issue on direct appeal. According to the State,petitioner could prevail on these claims only by demonstrating hewould have been found unfit to stand trial if he had been given afitness hearing in 1988, and he had failed to make the requiredshowing. When the circuit court again denied the State's requestto dismiss this claim, the State called two witnesses.

Robert E. Chapman, M.D., a psychiatrist who interviewedpetitioner in 1988 to evaluate his fitness to stand trial and theapplicability of insanity or intoxication as defenses, testified thathe was aware during his interview with petitioner that he had beenreceiving three 10-milligram doses of Librium per day. Chapmandescribed Librium as "an anti-anxiety medication" and "a minortranquilizer." During the interview, Chapman found petitioner"oriented, alert, cooperative, [and] inquisitive." Petitioner "showedno evidence of psychosis or other symptoms of a severe mentaldisease or mental disorder." Further, he showed no evidence ofdrug side effects such as slurring of speech or staggering or othergait disturbance. Petitioner did not report insomnia or other sleepdisturbances. Chapman found petitioner's behavior appropriateand his thought processes intact. Asked for his opinion, within areasonable degree of medical certainty, of petitioner's fitness tostand trial in 1988, Chapman testified that petitioner "was fit."When specifically asked if that opinion took into account thatpetitioner was taking Librium at the time, Chapman responded,"Yes."

On cross-examination, Chapman stated that his opinion as topetitioner's fitness for trial in 1988 would not be altered bylearning that he subsequently attempted suicide. He alsoacknowledged that one of the effects of Librium is to cause thepatient to be subdued or quiet or to have an emotionlessexpression, and that the patient might tend to become withdrawnfrom other people. However, Chapman explained that these effectsoccur only if the dosage of Librium is "approaching toxic levels."When asked by the court to clarify, Chapman explained that onewould have to take "hundreds of milligrams a day" beforeexperiencing these effects.

Phillip Jobe, Ph.D., a professor of pharmacology at theUniversity of Illinois College of Medicine in Peoria, explained thatLibrium is used primarily for treatment of anxiety as well as totreat insomnia. Jobe was asked to describe, to a reasonable degreeof scientific certainty, the effect on a 24- to 25-year-old male,weighing approximately 165 pounds, of three 10-milligram dosesof Librium per day. Jobe stated that such a dosage would notimpair that person's ability to understand the nature of chargesagainst him or to understand legal proceedings. Further, it wouldnot impair the person's abilities to communicate with counsel, toobserve, recollect, or relate occurrences, or to control his motorprocesses, including facial expressions. Jobe was also asked howlong Librium would remain in the system of a 165-pound maleafter the medication was discontinued. Jobe explained that thedrug, including its metabolites, would "essentially [be] gone frommost people in ten days to 15 days" and that the drug would be"active" for a much shorter period.

Jobe acknowledged on cross-examination that Librium's sideeffects include confusion, drowsiness, fainting, and nausea, and"[i]f the dose were sufficiently high," Librium could cause animpairment in decisionmaking ability. When asked if Libriumcould have a "different effect" on a person, such as petitioner, witha history of alcohol dependence or in alcohol withdrawal, Jobeexplained that Librium is actually "useful in the management ofalcohol abstinence syndrome."

Following the testimony of these two witnesses, the court tookjudicial notice of the testimony of Mortimer Beck, M.D., in thetranscript of petitioner's sentencing hearing. Beck, who conducteda psychiatric evaluation of petitioner prior to Chapman'sevaluation, is the doctor who prescribed the Librium. Petitionerbegan receiving the medication the day after his interview withBeck. Thus, Beck's evaluation of petitioner occurred prior to hisreceiving any medication. Beck found petitioner fit to stand trial.

The record before the circuit court as it considered thetestimony of the State's witnesses documented the followingsequence of events regarding petitioner's treatment with Librium:April 21, 1988, evaluation by Dr. Beck, who found petitioner fitto stand trial and prescribed the medication; April 22, 1988,medication began; June 13, 1988, evaluation by Dr. Chapman,who also found petitioner fit to stand trial; June 22-23, 1988,bench trial; June 29, 1988, medication terminated becausepetitioner refused further doses; July 4, 1988, petitioner attemptedsuicide by ingesting caustic cleaning fluid; September 17, 1988,sentencing hearing began. The court also took judicial notice ofrecords indicating petitioner's age, height, and weight at the timehe was taking Librium, which were consistent with thehypothetical questions posed to the witnesses.

Based on this evidence, the circuit court concluded that"[t]here never was a bona fide doubt of the petitioner's fitness tostand trial raised at the time of the trial or the sentencing hearing."The court stated that it would find trial counsel ineffective forfailing to request a fitness hearing only if petitioner demonstrated"a reasonable probability that if a fitness hearing had been heldback in 1988, he would have been found unfit to stand trial." Thecourt then held that petitioner had not only failed to show areasonable probability, he offered "no evidence at all that hewould have been found unfit." Finally, appellate counsel's failureto raise this issue on direct appeal was "not objectivelyunreasonable." "Accordingly," the court ruled, "all of the claimsthat survived [the] October 31, 1997, order are now denied."

In the present appeal, petitioner raises three claims ofconstitutional error, having abandoned 32 of the 35 claimscontained in his second post-conviction petition. First, he arguesthat his sentencing hearing was unfair because the Stateimproperly used peremptory challenges to excuse jurors whoexpressed reservations about imposing the death penalty. Second,he claims he was deprived of a fair sentencing hearing becausetwo members of the jury engaged in private deliberations. Third,petitioner asserts that the circuit court erred when, after holding anevidentiary hearing, it rejected his claims of ineffective assistanceof trial counsel based on failure to request a fitness hearing andineffective assistance of appellate counsel based on failure to raisethat issue on appeal.

These three issues are before this court for the first time, over10 years after we affirmed petitioner's conviction and sentence ondirect appeal. The State urges us to find petitioner's entire secondpost-conviction petition time-barred under section 122-1 of theAct (725 ILCS 5/122-1 (West 1996)) and to find further thatconsideration of these three issues is barred by the waiverprovision of section 122-3 of the Act (725 ILCS 5/122-3 (West1996)). The State also argues that the circuit court properlyconcluded petitioner would not have been found unfit to stand trialif a fitness hearing had been held at that time. Petitioner respondsthat his first post-conviction proceeding was fundamentally flawedbecause he did not receive a reasonable level of assistance ofcounsel and, therefore, it should not stand as a bar to a subsequentpetition, the Act's limitations and waiver provisionsnotwithstanding.

II. ANALYSIS

The Act provides a remedy to a criminal defendant whosefederal or state constitutional rights were substantially violated inhis original trial or sentencing hearing. People v. Towns, 182 Ill.2d 491, 502 (1998). In capital cases, post-conviction proceedingsare governed by section 122.2-1(b) of the Act (725 ILCS5/122.2-1(b) (West 1996)), which requires the circuit court toinitially determine "whether the petitioner, if indigent, wants to berepresented by counsel. After the petitioner makes that choice, thematter is then docketed for further proceedings." People v.Thomas, 195 Ill. 2d 37, 40 (2001). The State must then eitheranswer the petition or move to dismiss it. 725 ILCS 5/122-5 (West1996); Thomas, 195 Ill. 2d at 40. Unless the petition is disposed ofon a motion to dismiss, the circuit court, considering the petitionand the State's answer, determines whether a hearing is requiredbecause the allegations of the post-conviction petition, supportedby the trial record and accompanying affidavits, make a substantialshowing of a violation of a constitutional right. If not, the petitionmay be dismissed. If the petition does make a substantial showingof a constitutional violation, the matter proceeds to an evidentiaryhearing. People v. Hobley, 182 Ill. 2d 404, 428 (1998). Forpurposes of determining whether an evidentiary hearing iswarranted, all well-pleaded facts in the petition and in anysupporting affidavits are to be taken as true. People v. Caballero,126 Ill. 2d 248, 259 (1989).

Because this is a collateral proceeding, rather than an appealof the underlying judgment, a post-conviction proceeding allowsinquiry only into constitutional issues that were not, and could nothave been, adjudicated on direct appeal. Towns, 182 Ill. 2d at 502.Thus, issues that were raised and decided on direct appeal arebarred from consideration by the doctrine of res judicata; issuesthat could have been raised, but were not, are considered waived.Towns, 182 Ill. 2d at 502-03. In addition, two provisions of the Actmay bar consideration of the claims raised in the present petition.First, section 122-1(c) establishes a limitations period (People v.Wright, 189 Ill. 2d 1, 10 (1999)), beyond which a post-convictionpetition will not be heard unless the petitioner "alleges factsshowing that the delay was not due to his or her culpablenegligence." 725 ILCS 5/122-1(c) (West 1996). Second, at alltimes relevant to this case, the Act has also provided that "[a]nyclaim of substantial denial of constitutional rights not raised in theoriginal or an amended petition is waived." Ill. Rev. Stat. 1987, ch.38, par. 122-3; 725 ILCS 5/122-3 (West 1996). Thus, althoughexceptions may be made in certain circumstances, the Actcontemplates the filing of only one post-conviction petition.People v. Flores, 153 Ill. 2d 264, 273 (1992).

A trial court's dismissal of a post-conviction petition withoutan evidentiary hearing is reviewed de novo. People v. Coleman,183 Ill. 2d 366, 389 (1998). Dismissal of a post-conviction petitionfollowing an evidentiary hearing is reviewed for manifest error.Coleman, 183 Ill. 2d at 385.

A. Second Post-Conviction Petition

The State argues that any consideration of petitioner's secondpost-conviction petition is barred by section 122-3 of the Act.Petitioner argues that he was deprived of his appeal of thedismissal of his initial petition due to the virtual abandonment ofhis case by counsel. Thus, he urges this court to find that his firstpost-conviction proceeding was deficient and that he is, therefore,entitled to consideration of his second petition. Neither party hasaddressed this question in terms of the cause-and-prejudice testthat this court has frequently employed to determine whethermaking an exception to section 122-3 is warranted.

Review of our prior case law suggests a reason for the parties'oversight-we have been less than crystal clear about whether thecause-and-prejudice test must be applied to the claims raised in asuccessive post-conviction petition and how the test relates toclaimed flaws in the initial post-conviction proceeding. See, e.g.,Flores, 153 Ill. 2d at 278-79 (discussing the cause-and-prejudicetest "parenthetically"); People v. Szabo, 186 Ill. 2d 19, 23 (1998),quoting Flores, 153 Ill. 2d at 273-74 (successive petition may goforward "only when" proceedings on the initial petition were" 'deficient in some fundamental way,' " but not applying thecause-and-prejudice test); Wright, 189 Ill. 2d at 12 (same); Peoplev. Jones, 191 Ill. 2d 194, 199 (2000) (stating that Flores "adopted"the cause and prejudice test "as the proper means of identifying theextremely narrow class of cases in which a defendant's successivepost-conviction petition is entitled to consideration on themerits"); People v. Holman, 191 Ill. 2d 204, 210 (2000) (notingthat this court "has previously referred to the cause and prejudicestandard as an aid in determining whether a successive post-conviction proceeding may proceed"); People v. Orange, 195 Ill.2d 437, 449 (2001) (holding that successive petitions may beallowed where proceedings on the initial petition were deficientand noting that the cause-and-prejudice test has been used "as anaid" to determine whether a successive post-conviction petitionmay proceed).

This case presents the opportunity to clarify two areas ofconfusion. First, is the cause-and-prejudice test merely an aid thatcourts may use to determine whether a claim raised in a successivepetition should be allowed to proceed, or is it the analytical toolthat has been adopted by this court for use in all such cases?Second, is a successive post-conviction petition permitted onlywhen the first proceeding was fundamentally deficient, or is aflawed first proceeding but one of the circumstances that mayjustify consideration of a successive petition?

1. The Cause-and-Prejudice Test

In an initial post-conviction proceeding, the common lawdoctrines of res judicata and waiver operate to bar the raising ofclaims that were or could have been adjudicated on direct appeal.Towns, 182 Ill. 2d at 502-03. The doctrine of waiver, however, "isa rule of administrative convenience, not a jurisdictional orabsolute bar to procedurally defaulted claims." People v. Hawkins,181 Ill. 2d 41, 53 (1998). Exceptions to this common law principleof judicial administration are made in three situations: "wherefundamental fairness so requires; where the alleged waiver stemsfrom the incompetence of appellate counsel; or where factsrelating to the claim do not appear on the face of the originalappellate record." People v. Mahaffey, 194 Ill. 2d 154, 171 (2000).And although the "fundamental fairness" exception " 'escapesprecise definition' " (Mahaffey, 194 Ill. 2d at 173, quoting Peoplev. Porter, 164 Ill. 2d 400, 408 (1995)), we have long defined thefundamental fairness exception in the context of an initial post-conviction petition in terms of the cause-and-prejudice test (seePeople v. Owens, 129 Ill. 2d 303, 317 (1989)).

In the context of a successive post-conviction petition,however, the procedural bar of waiver is not merely a principle ofjudicial administration; it is an express requirement of the statute.725 ILCS 5/122-3 (West 1996). Only when fundamental fairnessso requires will the strict application of this statutory bar berelaxed. Flores, 153 Ill. 2d at 274.

In Flores, we referred "parenthetically" (Flores, 153 Ill. 2d at278-79) to the United States Supreme Court decision inMcCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct.1454 (1991), in which the Court adopted the same cause-and-prejudice test for determining whether successive habeas corpuspetitions would be allowed that it had previously adopted todetermine whether to permit habeas adjudication of claims thathad been procedurally defaulted in state court. We acknowledgedthat this test is as appropriate for determining whetherfundamental fairness requires relaxation of the statutory bar to asuccessive petition as it is to determine whether fundamentalfairness requires relaxation of the procedural bar of waiver in aninitial post-conviction proceeding. Flores, 153 Ill. 2d at 278-79.We also noted that the cause-and-prejudice test "is similar to, andaccomplishes no more than" the concept of fundamental fairness.Flores, 153 Ill. 2d at 279.

Since Flores, we have at times used less than explicitlanguage when referring to the cause-and-prejudice test, describingthe test as "an aid" or otherwise suggesting that its application isnot mandatory. We hold today that the cause-and-prejudice test isthe analytical tool that is to be used to determine whetherfundamental fairness requires that an exception be made to section122-3 so that a claim raised in a successive petition may beconsidered on its merits. We reaffirm that even if the petitionercannot show cause and prejudice, his failure to raise a claim in anearlier petition will be excused if necessary to prevent afundamental miscarriage of justice. To demonstrate such amiscarriage of justice, a petitioner must show actual innocence or,in the context of the death penalty, he must show that but for theclaimed constitutional error he would not have been found eligiblefor the death penalty. See Hudson, 195 Ill. 2d at 124, citing Sawyerv. Whitley, 505 U.S. 333, 120 L. Ed. 2d 269, 112 S. Ct. 2514(1992).

As applied to the present case, because this is a successivepetition in which petitioner makes no claim of actual innocence orof ineligibility for the death penalty, the claims raised in hispetition must be considered waived unless application of thecause-and-prejudice test dictates otherwise.

2. Fundamental Deficiency in the Initial Post-ConvictionProceeding

"Cause," for purposes of the cause-and-prejudice test, hasbeen defined as " ' "some objective factor external to the defense[that] impeded counsel's efforts" to raise the claim' " in an earlierproceeding. Flores, 153 Ill. 2d at 279, quoting McCleskey, 499U.S. at 493, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470, quotingMurray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 408, 106S. Ct. 2639, 2645 (1986). We have frequently observed that afundamental deficiency in the initial post-conviction proceedingmay constitute cause for consideration of issues raised in asubsequent petition. Orange, 195 Ill. 2d at 449; People v.Erickson, 183 Ill. 2d 213, 223 (1998); Flores, 153 Ill. 2d at 273-74. On occasion, however, we have said that "only if" the firstproceeding was deficient will a successive petition be considered.See, e.g., Wright, 189 Ill. 2d at 12; Szabo, 186 Ill. 2d at 23.

Recently, the United States Supreme Court, whose lead wefollowed in adopting the cause-and-prejudice test, observed:

" 'Without attempting an exhaustive catalog of suchobjective impediments to compliance with a proceduralrule [of waiver], we note that a showing that the factual orlegal basis for a claim was not reasonably available tocounsel *** would constitute cause under this standard.' "Strickler v. Greene, 527 U.S. 263, 283 n.24, 144 L. Ed. 2d286, 303 n.24, 119 S. Ct. 1936, 1949 n.24, quotingMurray, 477 U.S. at 488, 91 L. Ed. 2d at 408, 106 S. Ct.at 2645, citing Reed v. Ross, 468 U.S. 1, 16, 82 L. Ed. 2d1, 15, 104 S. Ct. 2901, 2910 (1984).

The specific claim raised in Strickler, to which the cause-and-prejudice test was applied, was a claim that conduct by the Statehad impeded counsel's access to the factual basis for making aBrady claim. The Court stated that such conduct would "ordinarilyestablish the existence of cause for a procedural default." Stricklerv. Greene, 527 U.S. at 283, 144 L. Ed. 2d at 303, 119 S. Ct. at1949. Yet the State's failure to disclose Brady material prior totrial does not indicate a fundamental deficiency in the first post-conviction proceeding.

In Reed, which Strickler cited with favor, the Court said:

"Because of the broad range of potential reasons for anattorney's failure to comply with a procedural rule, andthe virtually limitless array of contexts in which aprocedural default can occur, this Court has not given theterm 'cause' precise content. *** Underlying the conceptof cause, however, is at least the dual notion that, absentexceptional circumstances, a defendant is bound by thetactical decisions of competent counsel." Reed, 486 U.S.at 13, 82 L. Ed. 2d at 13, 104 S. Ct. at 2909.

Further,

"[T]he cause requirement may be satisfied under certaincircumstances when a procedural failure is not attributableto an intentional decision by counsel made in pursuit ofhis client's interests. And the failure of counsel to raise aconstitutional issue reasonably unknown to him is onesituation in which the requirement is met." Reed, 486 U.S.at 14, 82 L. Ed. 2d at 14, 104 S. Ct. at 2909.

The Court held that "where a constitutional claim is so novel thatits legal basis is not reasonably available to counsel, a defendanthas cause for failure to raise the claim in accordance withapplicable state procedures." Reed, 486 U.S. at 16, 82 L. Ed. 2d at15, 104 S. Ct. at 2910. Thus, the Supreme Court has not limitedthe scope of "cause" to situations in which the earlier habeascorpus proceeding was deficient.

Some of our prior decisions have suggested that, unlike theSupreme Court, we intended to limit the cause element of thecause-and-prejudice test to a showing of a fundamental deficiencyin the initial post-conviction proceeding. See, e.g., Szabo, 186 Ill.2d at 23-24; Wright, 189 Ill. 2d at 12. In other decisions, we havenoted that a successive petition may be allowed "when" the initialproceedings were deficient (see, e.g., Orange, 195 Ill. 2d at 449),but we did not use the words "only when." To resolve thisapparent inconsistency, we reiterate that "cause" in this contextrefers to any objective factor, external to the defense, whichimpeded the petitioner's ability to raise a specific claim in theinitial post-conviction proceeding. Thus, when "cause" is based ona fundamental deficiency in the first post-conviction proceeding,the petitioner must show that the deficiency directly affected hisability to raise the specific claim now asserted.

3. Application of the Cause-and-Prejudice Test

Section 122-3 of the Act does not forbid the filing of asuccessive petition. Rather, it provides that "[a]ny claim" notraised in the original or an amended petition is waived. 725 ILCS5/122-3 (West 1996). Thus, the fundamental fairness exceptionapplies to claims, not to petitions, and the cause-and-prejudice testmust be applied to individual claims, not to the petition as awhole. See Wright, 189 Ill. 2d at 36 (Freeman, C.J., speciallyconcurring, joined by McMorrow, J.) (noting that each claim in asuccessive petition must be reviewed individually to ascertainwhether the claim is barred by section 122-3; if it is barred, thecourt must then determine whether an exception applies to thatclaim).

Petitioner argues that his first proceeding was fundamentallyflawed by counsel's abandonment of his case on appeal and thathe is, therefore, entitled to consideration of all of the claims raisedin his second petition. This is, essentially, an argument that theflaw was so pervasive that it undermined the entire proceeding,rendering it entirely unreliable as a means of vindicating hisconstitutional rights.

Our prior case law does offer some support for applying the"cause" element of the test to the petition as a whole. In People v.Free, 122 Ill. 2d 367, 376 (1988), we discussed several older casesin which the prior post-conviction proceedings had been "virtualnullities" and successive petitions had been allowed. Weconcluded, however, that because the defendant had already beengiven " 'one complete opportunity to show a substantial denial ofhis constitutional rights,' " his second post-conviction petition wasproperly dismissed. Free, 122 Ill. 2d at 376-77, quoting People v.Logan, 72 Ill. 2d 358, 370 (1978). See also Whitehead, 169 Ill. 2dat 369 (treating third petition as an amended petition rather than asuccessive filing "to ensure that defendant obtain[ed] onecomplete opportunity to show a substantial denial of constitutionalrights").

Petitioner claims that dismissal of his first post-convictionappeal as a result of counsel's failure to file a brief denied him"one complete opportunity," so that all issues raised in his secondpetition should be considered. Nevertheless, because section122-3 applies to claims and not to petitions, we hold that apetitioner must establish cause and prejudice as to each individualclaim asserted in a successive petition, even if he demonstratesthat his initial post-conviction proceeding was deficient in somefundamental way. That is, he must show how the deficiency in thefirst proceeding affected his ability to raise each specific claim.We need not decide whether an initial proceeding could be sopervasively flawed that cause and prejudice are evident withoutindividual claim-by-claim consideration, because this is not sucha case.

In People v. Johnson, 192 Ill. 2d 202, 207 (2000), post-conviction counsel filed a brief with this court, but we found thebrief to be "so fundamentally deficient that it preclude[d] review."We granted a remedy in that case, ordering appointment of newcounsel and rebriefing of the issues. We did not, however, orderthat new counsel take the matter back to the starting point and filean amended post-conviction petition. Similarly, in the presentcase, although we agree with the petitioner that post-convictioncounsel's failure to file a brief at all rendered the initial proceedingdeficient, we reject his contention that the deficiency was sofundamental that the initial proceeding must been deemed anullity. Thus, the three issues raised in this appeal should beconsidered waived unless petitioner demonstrates cause as to eachone.

The cause-and-prejudice test, like the test for ineffectiveassistance of counsel (Strickland v. Washington, 466 U.S. 668,687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)), iscomposed of two elements, both of which must be met in order forthe petitioner to prevail. Because the petitioner did not frame hisargument in terms of cause and prejudice, we will not attempt anitem-by-item assessment of any cause he might have for raisingthese three specific issues in his second petition. Instead, we willconsider whether prejudice would result from application of thewaiver provision of section 122-3 to these claims. Prejudice, inthis context, would occur if the petitioner were deniedconsideration of an error that so infected the entire trial that theresulting conviction or sentence violates due process. Flores, 153Ill. 2d at 279.

a. State's Use of Peremptory Challenges

At trial, defense counsel did not object when the Stateexercised peremptory challenges to excuse certain jurors whoexpressed mild misgivings about imposing the death penalty. Ondirect appeal, petitioner questioned whether other jurors wereproperly excused for cause, an argument that we rejected, but didnot question the State's use of peremptory challenges. SeePitsonbarger, 142 Ill. 2d at 381-88. Petitioner now asserts thatnine jurors were excused "simply because" they expressed somereservations about the death penalty. He argues that trial counselwas ineffective for failing to object and thus preserve this issue forappeal and appellate counsel was ineffective for failing to includethis issue among the 14 claims of error in his direct appeal.Petitioner finally raised this issue in his habeas corpus petitionand, while that matter was still pending in federal court, includedit among the 35 claims of error contained in his second post-conviction petition. The circuit court dismissed this claim withoutan evidentiary hearing.

Claims of ineffective assistance of counsel at trial and ondirect appeal are evaluated under the standard set forth inStrickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at2064, which requires the defendant to demonstrate both deficientperformance by counsel and resulting prejudice. Accordingly, ifthe underlying claim has no merit, no prejudice resulted, andpetitioner's claims of ineffective assistance of counsel at trial andon direct appeal must fail. See People v. Coleman, 168 Ill. 2d 509,523 (1995).

We addressed a similar claim in Coleman:

"Defendant argues that the trial court erred in allowingthe state to exercise peremptory challenges against certainprospective jurors who expressed some reservations aboutthe death penalty, but whose views did not rise to thelevel of cause under Witherspoon v. Illinois (1968), 391U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, and itsprogeny. Under Witherspoon, a prospective juror may notconstitutionally be excused for cause based on generalobjections to the death penalty on moral or religiousgrounds. Defendant contends that through the use ofperemptory challenges the State was able to achieve whatit could not achieve through the use of challenges forcause: 'a jury uncommonly willing to condemn a man todie' [citation]. On several occasions, this court has heldthat Witherspoon does not limit the use of peremptorychallenges. [Citations.] Defendant acknowledges thesedecisions but urges us to reconsider them." Coleman, 168Ill. 2d at 548-49.

In the present case, petitioner would have us reconsider ourholding in Coleman by reading Batson v. Kentucky, 476 U.S. 79,90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), which prohibits the Statefrom exercising peremptory challenges purely on the basis of theprospective juror's race, in conjunction with Witherspoon, ascreating a similar limitation on the State's power to exerciseperemptory challenges on the basis of an opinion or point of viewexpressed by a prospective juror. Batson does not support such areading. Batson was decided entirely on equal protectionprinciples (Batson, 476 U.S. at 84 n.4, 90 L. Ed. 2d at 79 n.4, 106S. Ct. at 1716 n.4 (declining to consider sixth and fourteenthamendment arguments)). Although Batson has been applied to barother discriminatory practices in jury selection (see J.E.B. v.Alabama ex rel. T.B., 511 U.S. 127, 144-45, 128 L. Ed. 2d 89,106-07, 114 S. Ct. 1419, 1429 (1994) (applying Batson doctrineto gender-based peremptory challenges)), it does not apply whenperemptory challenges are used to excuse venire members on thebasis of an opinion they express during voir dire.

We conclude, as we did in Coleman, that "we find nopersuasive reason to depart from this court's holdings in this area."Coleman, 168 Ill. 2d at 549. Because our prior decisions are clearpronouncements on this issue (see Coleman, 168 Ill. 2d at 549,People v. Williams, 161 Ill. 2d 1, 55-56 (1994), People v. Howard,147 Ill. 2d 103, 136-38 (1991), People v. Stewart, 104 Ill. 2d 463,481-82 (1984)), not only did no prejudice result from failure toraise this issue, neither trial counsel's lack of objection norappellate counsel's decision not to raise the issue on direct appealconstituted deficient performance.

As a result, we hold that consideration of this claim in asuccessive petition is barred by section 122-3 of the Act becausepetitioner cannot show that prejudice would result fromapplication of the bar. The circuit court properly declined toconsider this claim in a successive petition.

b. Jury Deliberations

For purposes of determining whether consideration of thisissue is warranted, we take as true all well-pleaded facts in thepetition and in the supporting affidavits. Caballero, 126 Ill. 2d at259. During the sentencing phase of petitioner's trial, whendeliberations were suspended for the night, the trial courtinstructed the jurors that "you are most certainly not to deliberateany further tonight and not to start deliberations until you're backhere in your jury room tomorrow morning." The affidavits revealthat despite this instruction, two jurors who shared a hotel roomdiscussed the case. One of the jurors, who favored imposing thedeath penalty, "was able to dispel some of [the other juror's]anxieties and help [her] sort through the confusion that surrounded[her] decision." The next morning, after an hour and fifteenminutes of deliberations, the jury announced its verdict sentencingpetitioner to death.

Based on affidavits obtained from these two jurors, petitionerargues that he was deprived of his constitutional right to a fairtrial. In addition to revealing improper deliberation, the affidavitsalso reflect some misunderstanding by these jurors about theproceeding. For example, these jurors believed that all membersof the jury had to agree on what specific evidence constitutedmitigation sufficient to preclude imposing the death penalty; theybelieved that a vote of 10 to 2 (as the jury then stood) would resultin a "hung" jury and that they had to reach a unanimous decision;and the juror who had already decided in favor of the death penaltyadvised the undecided juror that the defendant had the burden ofproving why he should not be sentenced to death. Finally, theybelieved that a sentence of natural life imprisonment would notguarantee defendant would never go free.

In general, a jury verdict is not subject to impeachment by thetestimony of the jurors. Hobley, 182 Ill. 2d at 457. Thus, astatement by a juror, taken after the jury has rendered a verdict,been polled in open court, and been discharged, is not admissibleto impeach the verdict. Hobley, 182 Ill. 2d at 457. Strong publicpolicy considerations underlie this rule, which prevents theadmission of a juror's affidavit to show the " 'motive, method orprocess by which the jury reached its verdict.' " Hobley, 182 Ill. 2dat 457, quoting People v. Holmes, 69 Ill. 2d 507, 511 (1978). Asthe United States Supreme Court has noted:

" '[If it is] established that verdicts solemnly made andpublicly returned into court can be attacked and set asideon the testimony of those who took part in theirpublication [then] all verdicts could be, and many wouldbe, followed by an inquiry in the hope of discoveringsomething which might invalidate the finding. Jurorswould be harassed and beset by the defeated party in aneffort to secure from them evidence of facts which mightestablish misconduct sufficient to set aside a verdict. Ifevidence thus secured could be thus used, the result wouldbe to make what was intended to be a private deliberation,the constant subject of public investigation-to thedestruction of all frankness and freedom of discussion andconference.' " Tanner v. United States, 483 U.S. 107,119-20, 97 L. Ed. 2d 90, 105-06, 107 S. Ct. 2739, 2747(1987), quoting McDonald v. Pless, 238 U.S. 264, 267-68, 59 L. Ed. 1300, 1302, 35 S. Ct. 783, 784 (1915).

This rule, preventing admission of juror testimony to impeach theverdict, does not preclude admission of testimony offered as proofof improper extraneous influences on the jury. Hobley, 182 Ill. 2dat 458.

The distinction between "motive, method or process" and"improper extraneous influence" is illustrated in Hobley. Wedetermined that Hobley was not entitled to an evidentiary hearingon his claim that he was prejudiced by the conduct of the juryforeperson, a police officer, who allegedly "sought to intimidateother jurors," claimed to be an expert in proper police conduct,showed the other jurors his gun, " 'elected himself as foreman,' "and, according to one juror, " 'wore her down' " and persuaded herto vote guilty, even though she was not convinced of defendant'sguilt. Hobley, 182 Ill. 2d at 463. Because no improper extraneousinfluence penetrated the jury's deliberations, we found that thisclaim was properly dismissed by the circuit court as an attempt toimpeach the method and process by which the jury reached itsverdict. Hobley, 182 Ill. 2d at 465.

We did, however, determine that Hobley was entitled to anevidentiary hearing on his claim that jury deliberations wereinfluenced by an incident in the hotel dining room while the jurywas sequestered. Hobley, 182 Ill. 2d at 462. Several men who werealso dining in the hotel recognized the jury and shouted outremarks about the defendant and their belief that he was guilty andshould be executed. The jurors stated that they were " 'upset,' "" 'scared,' " and felt their lives threatened. Another juror describedthose who had heard the remarks as " 'extremely shaken' " by theincident. Hobley, 182 Ill. 2d at 459.

In the present case, the affidavits offered by petitioner dealexclusively with the content of private jury deliberations, albeitdeliberations engaged in improperly and in violation of the court'sinstructions. This information purports to describe the jury's"motive, method or process." It does not present any evidence ofan improper extraneous influence and, thus, may not be used toimpeach the verdict.

Petitioner would not have been entitled to an evidentiaryhearing on this claim even if he had raised it in his initial post-conviction petition. He, therefore, will suffer no prejudice if theprocedural bar of section 122-3 is strictly applied. The circuitcourt properly declined to consider this claim.

c. Petitioner's Fitness to Stand Trial

Petitioner also alleges that the Librium he was taking mayhave affected his ability to understand and participate in his benchtrial and sentencing hearing and may also have affected hisappearance and demeanor in the court room, influencing how thejudge and jury perceived him. Based on the statute that was ineffect at the time of his trial ("A defendant who is receivingpsychotropic drugs or other medications under medical directionis entitled to a hearing on the issue of his fitness while undermedication" (Ill. Rev. Stat. 1987, ch. 38, par. 104-2(a))), he arguesthat he is entitled to a new trial because the lack of a fitnesshearing at the time of trial cannot be remedied by a retrospectivefitness hearing conducted more than a decade after the fact.Recognizing that we have previously held that a defendant's rightto a fitness hearing on the basis of his ingestion of psychotropicdrugs is purely statutory, and, as such, is not cognizable in a post-conviction proceeding (People v. Mitchell, 189 Ill. 2d 312, 327(2000)), he has framed his claim in terms of ineffective assistanceof counsel at trial and on direct appeal.

In addition, petitioner urges this court to retreat from ourholding in Mitchell, 189 Ill. 2d at 338, that a post-convictionpetitioner "must show a reasonable probability that, if a section104-21(a) fitness hearing would have been held, he would havebeen found unfit to stand trial," and return to the approach ofPeople v. Brandon, 162 Ill. 2d 450, 461 (1994), and its progeny,under which a defendant in his situation would be automaticallyentitled to a new trial. Finally, petitioner claims that Mitchell,which places the burden on the petitioner to prove that he wouldhave been found unfit had a fitness hearing been held in theoriginal proceeding (Mitchell, 189 Ill. 2d at 334), is inconsistentwith our more recent decision in People v. Johnson, 191 Ill. 2d257, 271 (2000), which held that once the defendant has raised abona fide question of fitness, the State has the burden of provingthe defendant to be fit. We reject each of these arguments in turn.

To prevail on a claim of ineffective assistance of counsel, adefendant must show both that counsel's representation was sodeficient as to fall below an objective standard of reasonablenessunder prevailing professional norms and that the deficientperformance so prejudiced defendant as to deny him a fair trial.Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at2064. In Mitchell, 189 Ill. 2d at 334, we set out the test forevaluating the prejudice prong of the Strickland test when a post-conviction petitioner claims ineffective assistance of counsel onthe basis that he was receiving psychotropic drugs at the time oftrial or sentencing, but did not receive the fitness hearing he wasentitled to by statute. With regard to the performance of trialcounsel, the petitioner must show a "reasonable probability that hewould have been found unfit if counsel had requested a fitnesshearing." Mitchell, 189 Ill. 2d at 334. As applied to a claim thatappellate counsel failed to raise the issue on direct appeal, thepetitioner "must show that the failure to raise the issue wasobjectively unreasonable and that, but for this failure, a reasonableprobability exists that the sentence or conviction would have beenreversed." Mitchell, 189 Ill. 2d at 332.

A defendant is unfit to stand trial "if, because of his mental orphysical condition, he is unable to understand the nature andpurpose of the proceedings against him or to assist in his defense."725 ILCS 5/104-10 (West 1996). The fundamental purpose of afitness hearing, therefore, is "to determine a person's ability tofunction within the context of a trial." Mitchell, 189 Ill. 2d at 335.In Mitchell, 189 Ill. 2d at 337, and later in People v. Jones, 191 Ill.2d 194, 200-01 (2000), we examined the trial record for evidenceof the defendant's demeanor during trial and his participation inhis own defense. We concluded in each case that even if defensecounsel had requested a fitness hearing, there was no reasonableprobability that the defendant would have been found unfit.Mitchell, 189 Ill. 2d at 337; Jones, 191 Ill. 2d at 201. In the presentcase, however, we do not have the benefit of the trial record, so wecannot utilize this approach. We do, however, have the record ofthe evidentiary hearing, which the petitioner characterizes as a"retrospective fitness hearing."

Before addressing the merits of this claim, we will respond topetitioner's argument that a retrospective fitness hearing cannotremedy the lack of a fitness hearing at the time of his trial. Oncea defendant has raised a bona fide doubt as to his fitness to standtrial, the State has the burden of proving him fit. Mitchell, 189 Ill.2d at 328-29. Petitioner did not raise a bona fide doubt; he merelyoffered evidence that he had been receiving psychotropicmedication at or near the time of trial. See Mitchell, 189 Ill. 2d at330-31 (stating that the mere ingestion of psychotropic drugs doesnot create bona fide doubt). Thus, the burden did not shift to theState. The purpose of the evidentiary hearing was not toretrospectively determine petitioner's fitness, but to determine theprobability that if a fitness hearing had been held in 1988, hewould have been found unfit to stand trial. The circuit courtunderstood that the precise question before it was whether thepetitioner had met the prejudice prong of the Strickland test andthat the burden was, therefore, on petitioner.

The evidence presented at the hearing demonstrates thatalmost three months elapsed between the date of petitioner's lastdose of Librium and his sentencing hearing. Based on thetestimony of Dr. Jobe, the circuit court could reasonably haveconcluded that there was no possible psychotropic effect at thattime. With regard to petitioner's fitness at the time of the benchtrial, two psychiatrists who evaluated him at the time had foundhim fit, one before he began taking the medication and one whilehe was taking it. The circuit court could reasonably haveconcluded, based on the evidence presented, that the small dosageof Librium petitioner was taking had no discernable effect on hisdemeanor or on his ability to participate in his defense. Therefore,it was not manifestly erroneous for the circuit court to concludethat petitioner would not have been found unfit had a fitnesshearing been held in 1988.

As to the performance of trial counsel, the circuit court stated:"[M]y understanding of the law is that today the defendant had toshow a reasonable probability that if a fitness hearing had beenheld back in 1988, he would have been found unfit to stand trial,and I think they not only failed to show a reasonable probability,but really have shown no evidence at all that he would have beenfound unfit." Regarding the performance of appellate counsel, thecircuit court denied petitioner's claim, finding the failure to raisethe fitness issue "not objectively unreasonable." Indeed, becausethe petitioner offered absolutely no evidence in support of hisclaim, and merely cross-examined the State's witnesses, the circuitcourt could not possibly have found that he had met his burden.

Thus, we affirm the finding of the circuit court that petitionerhas failed to establish that trial counsel's failure to request afitness hearing and appellate counsel's failure to raise that issue ondirect appeal infected his trial and appeal to such a degree that hisconviction and sentence violate due process.

Anticipating this result, petitioner urges this court to reject ourholding in Mitchell and to return to the previous approach ofPeople v. Brandon, 162 Ill. 2d 450 (1994). In Mitchell, as in thepresent case, the issue presented was whether counsel had beenineffective for failing to obtain a fitness hearing. We rejected ourearlier "automatic reversal" rule that had its origin in Brandon andreplaced it with a prejudice inquiry.

The present case illustrates the logic of the rule articulated inMitchell. Under the old rule, petitioner would have been entitledto a new trial, despite the fact that the evidence adduced at thehearing overwhelmingly demonstrates that his fitness to stand trialwas not affected by the medication. In this case, however,application of the Mitchell prejudice inquiry as part of the cause-and-prejudice test protects both the State's interest in finality andthe petitioner's interest in fairness. We, therefore, decline toreconsider our holding in Mitchell.

Petitioner also argues that our recent decisions in Mitchell andJohnson reach contradictory results regarding the burden of proofas to a defendant's fitness to stand trial. The two cases are notcontradictory. Although both cases involved post-convictionproceedings, they were fundamentally different. In Johnson, theissue presented was not the defendant's fitness at the time of trialbut, rather, his fitness to proceed with his post-convictionproceedings. We held that on post-conviction, as at trial, thedefendant has the initial burden of raising a bona fide doubt as tohis fitness. Once a bona fide doubt is created, the burden thenshifts to the State to prove him fit. Johnson, 191 Ill. 2d at 269. Inthe present case, because there is no question of petitioner's fitnessat this time and because he must demonstrate ineffectiveassistance of counsel, he carried the burden of proof, a burden hefailed to meet.

In sum, we conclude that the circuit court properly granted anevidentiary hearing to explore the factual basis for petitioner'sclaim of ineffective assistance of counsel. At the conclusion of thehearing, the circuit court concluded that petitioner had notdemonstrated any prejudice as a result of trial or appellatecounsels' actions. The prejudice prong of the cause-and-prejudicetest was not shown and the circuit court was correct to dismiss theclaim.

B. Timeliness of Petitioner's Second Post-Conviction Petition 

Because we have determined that the petitioner's claims arebarred by section 122-3 of the Act, we need not address theadditional question posed by the State, that is, whether thelimitations period of section 122-1 applies to bar a successivepetition, if the claims that are raised in that petition are otherwisejustified by the petitioner's demonstration of cause and prejudice.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of thecircuit court. We direct the clerk of this court to enter an ordersetting Wednesday, November 13, 2002, as the date on which thesentence of death entered by the circuit court of Peoria Countyshall be carried out. Petitioner shall be executed in the mannerprovided by law. 725 ILCS 5/119-5 (West 2000). The clerk of thiscourt shall send a certified copy of the mandate in this case to theDirector of Corrections, to the warden of Tamms CorrectionalCenter, and to the warden of the institution where petitioner is nowconfined.

Affirmed.

CHIEF JUSTICE HARRISON, dissenting:

The proceedings which culminated in Pitsonbarger'sconvictions and sentence of death were fatally flawed because theydid not comport with the new rules enacted by our court governingthe conduct of cases in which the State is seeking the deathpenalty. For the reasons set forth in my dissenting opinion inPeople v. Hickey, No. 87286 (September 27, 2001) (Harrison, C.J.,dissenting), the procedures contained in those rules areindispensable for achieving an accurate determination ofinnocence or guilt and are applicable to all capital cases nowcoming before us. Because Pitsonbarger was tried, convicted andsentenced without the benefit of the new rules, his convictions anddeath sentence should be vacated, and the cause should beremanded to the circuit court for a new trial.

Even if Pitsonbarger were not entitled to the benefit of thenew rules, his sentence of death could not stand. For the reasonsset forth 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,