Petitioner unable to show cause and prejudice for successive petition where he had raised a re-sentencing claim before

The appellant in People v. Morrow, 2019 IL App (1st) 161208, appealed the decision of the trial court denying him leave to file a successive post-conviction petition on grounds that his appellate counsel was ineffective for failing to ask the court to remand for re-sentencing following the vacation of his armed robbery conviction. The appellate court ultimately affirmed the trial court’s order.

Morrow was convicted of murder and armed robbery after a jury trial and sentenced to concurrent terms of 60 years imprisonment for murder and 20 years for armed robbery. On direct appeal, the appellate court affirmed appellant’s murder conviction and sentence but vacated his armed robbery conviction and sentence; finding that the State had failed to prove beyond a reasonable doubt that defendant had any intent to rob the victim. Id. at ¶ 18.

Morrow then filed a post-conviction petition, which was dismissed by the court as frivolous and patently without merit. Id at ¶ 19. Morrow appealed, and the trial court’s decision was affirmed. Following unsuccessful filings of a pro se habeas corpus petition, a pro se petition for relief from judgement pursuant to section 2-1401 of the Code of Civil Procedure, multiple motions for leave to file a successive petition, Morrow filed a third motion for leave to file a successive petition, which was the subject of this appeal. Id. at ¶ ¶ 33-37.

The third motion argued that the appellate court erred and that appellate counsel was ineffective for failing to ask the appellate court to remand for re-sentencing when it vacated his armed robbery conviction. Id. at ¶ 38. Further, the motion argued that Morrow’s post-conviction counsel was ineffective for failing to raise these claims before and that his sentence was excessive in light of his criminal history of misdemeanor offenses. Id. at ¶ 38. The trial court found that appellant had failed to establish either cause or prejudice and denied him leave to file the petition. Id. at ¶ 40. This appeal followed.

The court noted that in order to determine whether a successive petition can even be filed, the trial court must first determine whether the petition “(1) states a colorable claim of actual innocence or (2) establishes cause and prejudice.” Id. at ¶ 47. As Morrow exclusively allied cause and prejudice, that is the basis under which the court considered the claim. The court noted that “(u)nder the cause-and-prejudice test, a defendant must establish both (1) cause for his or her failure to raise the claim earlier and (2) prejudice stemming from his or her failure to do so.” The court noted that as “both prongs of the cause and prejudice test must be satisfied, we may uphold the denial of leave to file a claim if defendant has failed to establish either prong.” Id. at ¶¶ 55-57.

The appellate court rejected Morrow’s arguments because it determined that there was no evidence that the trial court was ever influenced by the armed robbery conviction or that appellate counsel’s alleged failure to raise the claim resulted in prejudice. Id. at ¶ 70. In support of this conclusion, the court pointed to statements in the record indicating that the trial court’s determination that the precipitating factor in the murder was defendant’s desire to protect his prostitutes, rather than a desire to rob the victim. Id. at ¶ 69.

The court also could not find cause excusing the failure to raise the claim earlier. Id. at ¶ 72. The court noted that appellate counsel did not seek a remand for re-sentencing, but also noted that Morrow could not possibly establish cause, as he had in fact raised the issue of re-sentencing in an earlier claim. Id. at ¶ 74. The court rejected subsequent arguments made by appellant that he could not have raised those claims earlier, as it would have required him to request his defense lawyer to argue his own ineffectiveness. Id. at ¶ 80.

Having found Morrow unable to establish cause and prejudice, and appellate court affirmed the trial court’s order denying Morrow leave to file a successive petition.

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