In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 02-1800
JOHN SZABO,
                                                Petitioner-Appellee,
                                  v.


JONATHAN R. WALLS, Warden, Menard
Correctional Center,†
                                   Respondent-Appellant.
                      ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 99 C 3580—John W. Darrah, Judge.
                           ____________
   ARGUED AUGUST 2, 2002—DECIDED DECEMBER 10, 2002
                     ____________

 Before EASTERBROOK, RIPPLE, and MANION, Circuit
Judges.




† Szabo’s petition named as respondent the Director of the Illinois
Department of Corrections. We have amended the caption to
identify the proper respondent: the warden of the prison where
Szabo is confined. See Hogan v. Hanks, 

(7th Cir.
1996); Rule 2(a) of the Rules Governing Section 2254 Cases in the
United States District Courts. The caption has been further mod-
ified in light of Circuit Rule 12(b): “Actions seeking habeas corpus
shall be designated ‘Petitioner v. Custodian’ and not ‘United
States ex rel. Petitioner v. Custodian.’ ”
2                                                No. 02-1800

   EASTERBROOK, Circuit Judge. After agreeing to sell
marijuana to two customers, John Szabo appeared at the
site appointed for the exchange with a knife, a gun, and a
henchman, but no marijuana. He stole the $700 that the
customers had brought and murdered both of them to avert
any risk that they would identify him. Szabo has been
sentenced to death for these planned killings. The first cap-
ital sentence was reversed by the Supreme Court of Illinois
because of errors in the hearing, see People v. Szabo, 

327, 

(1983) (Szabo I), but the second was
affirmed. See People v. Szabo, 

, 

(1986) (Szabo II). Two efforts to obtain collateral relief in
the state courts were unavailing. See People v. Szabo, 

, 

(1991) (Szabo III); People v.
Szabo, 

, 

(1998) (Szabo IV).
But in this proceeding under 28 U.S.C. §2254 the district
court issued a writ of habeas corpus after concluding that
Szabo’s lawyer at his second sentencing had rendered in-
effective assistance by failing to call prison guards as wit-
nesses to inform the jurors of Szabo’s good conduct in prison
between 1979 (when he was convicted) and 1984 (when the
resentencing occurred). See Szabo v. Snyder, 2002 U.S.
Dist. LEXIS 4964 (N.D. Ill. Mar. 21, 2002), relying on Hall
v. Washington, 

, 749 (7th Cir. 1991), and Kubat
v. Thieret, 

, 369 (7th Cir. 1989). The state’s
only argument on appeal is that the ineffective-assistance
claim was forfeited in the course of Szabo’s initial collateral
attack—as the Supreme Court of Illinois held in Szabo IV.
By negative implication the state concedes that if the claim
has been preserved, then Szabo is entitled to a third sen-
tencing hearing. We shall do likewise and ask only whether
the claim remains open to decision.
   In Szabo III Szabo raised, but did not develop, an inef-
fective-assistance claim. His petition for collateral relief,
filed pro se, challenged the adequacy of counsel’s work in
the second sentencing hearing. The state judge appointed
No. 02-1800                                                      3

a lawyer to represent him, but that lawyer neither added to
the claims made in the pro se petition nor produced affida-
vits to back them up. Because the record did not reveal
what testimony the guards would have given, had they
been called at the resentencing, the judge concluded that
Szabo had not established any constitutional violation. On
appeal in Szabo III his new lawyer did not contest this
conclusion; instead he contended that, as a matter of state
law, Szabo should be entitled to another hearing with bet-
ter post-conviction counsel who would supplement his pro
se pleadings and secure the essential affidavits from the
guards. The Supreme Court of Illinois rejected that posi-
tion.†† Szabo then filed a second state collateral attack,
which was dismissed as barred by the adverse outcome of
the first.
   Under Illinois law a prisoner is entitled to only one col-
lateral attack unless that proceeding is so defective because
of judicial shortcomings that justice requires a second
opportunity. See, e.g., People v. Flores, 

, 273-
74, 

, 1083 (1992). Deficiencies attributable
to errors and neglects of the petitioner’s lawyer do not jus-
tify a second opportunity. 

Ill. 2d 276, 

. In Szabo IV the Supreme Court of Illinois held that



†† Szabo relied on Ill. S. Ct. R. 651(c), the pertinent portion of
which provides: “The record [on appeal on a collateral attack]
shall contain a showing, which may be made by the certificate of
petitioner’s attorney, that the attorney has consulted with
petitioner either by mail or in person to ascertain his contentions
of deprivation of constitutional right, has examined the record of
proceedings at the trial, and has made any amendments to the
petitions filed pro se that are necessary for an adequate presenta-
tion of petitioner’s contentions.” Szabo III held that counsel
complied with this requirement by stating that he had examined
Szabo’s pro se filings and saw no need to augment them, and that
the lack of a formal certificate to this effect was harmless error.
4                                                 No. 02-1800

Szabo’s failure to develop an ineffective-assistance claim in
Szabo III was the fault of his lawyer; the state’s judicial
system had offered an opportunity, which counsel had not
used. Consequently, Szabo IV held, the state’s forfeiture
rules blocked Szabo’s effort to make a better ineffective-
assistance claim in a new proceeding.
  Relying on the holding of Szabo IV, the state argued that
Szabo’s sixth-amendment claim was forfeited during the
collateral attack that culminated in Szabo III. All the dis-
trict judge said in response is:
    Petitioner’s principal ground for relief . . . is prop-
    erly before this Court. The fact that some of the
    claims were not raised in all four appeals to the
    Illinois Supreme Court does not mean that the
    claims are procedurally defaulted.
Yet the state had not argued that a prisoner must make an
ineffective-assistance claim in every appeal. Neither the
Attorney General (representing Illinois) nor the state’s
highest court faulted Szabo for omitting this contention in
Szabo II: it required development by evidence not then in
the record. Nor would anyone have faulted Szabo if he had
developed the claim in Szabo III and then sought to present
a different theory in a successive collateral attack. The
state’s contention—and the holding of Szabo IV—is that the
claim was forfeited because it was not developed in Szabo
III, when it should have been. The district judge did not
come to grips with that contention. A state is entitled to
treat as forfeited a proposition that was not presented in
the right court, in the right way, and at the right time—as
state rules define those courts, ways, and times. See
Wainwright v. Sykes, 

(1977). Failure to comply
with the state’s procedural rules furnishes an independent
and adequate state ground of decision that blocks federal
collateral review. See Harris v. Reed, 

(1989).
No. 02-1800                                                 5

   No one could doubt that this forfeiture decision is inde-
pendent of federal law, as that term is used in collateral-
review jurisprudence. See Stewart v. Smith, 

(2002); Ake v. Oklahoma, 

(1985). Szabo does
question whether the ruling is adequate to block federal
review. To be adequate, a state’s procedural rule must be
proclaimed in advance and regularly followed. See, e.g., Lee
v. Kemna, 

(2002); Johnson v. Mississippi, 

(1988); Liegakos v. Cooke, 

, rehear-
ing denied, 

(7th Cir. 1997). Ever since 1964
the law on the books in Illinois has specified that a prisoner
is entitled to only one post-conviction proceeding. 725 ILCS
5/122-3. The decision in Szabo IV enforcing this norm
cannot be condemned as retroactive and thus inadequate.
Nor is it “inadequate” as irregular, freakish, or invoked in
an unprincipled way in order to discriminate against the
federal theory of relief.
   On appeal in Szabo III, Szabo contended that Ill. Sup. Ct.
R. 651(c) required his post-conviction lawyer to do more
than he had done to develop the ineffective-assistance con-
tention. The Supreme Court of Illinois rejected that propo-
sition as a matter of state law but had second thoughts, and
in People v. Johnson, 

, 

(1993),
held that post-conviction counsel must do more to satisfy
Rule 651(c) than Szabo’s post-conviction counsel had done.
Szabo IV held that Johnson does not give Szabo a second
chance. If we had to decide whether Johnson shows that the
approach that Szabo III took to the interpretation of Rule
651(c) were “regularly followed” we would need to decide
whether Johnson was a change in the law, or whether
instead Szabo III was an aberration in the application of
settled law. (That question divided the Supreme Court of
Illinois four to three in Szabo IV, with the majority taking
the view that Johnson had altered the law in a way that did
not apply retroactively to Szabo.)
6                                                No. 02-1800

  But it is not necessary to enter this arena, because the
forfeiture does not stem from a contestable interpretation
of Rule 651(c) by the state’s supreme court. After all, that
court concluded that counsel had complied functionally with
Rule 651(c) and that formal noncompliance (the lack of a
certificate) was harmless. Nor does forfeiture lie in appel-
late counsel’s failure to pursue a sixth-amendment claim on
appeal in Szabo III—for by then it was too late, and the
only sensible avenue was the road taken, a request for a
new hearing at the trial level, where the forfeiture had
occurred. The root problem was counsel’s failure on the
initial collateral review to develop the sixth-amendment
claim by adducing evidence that failure to call the guards
to the stand during the second sentencing hearing impaired
Szabo’s chance of obtaining lenity. That depended on what
the guards would have said if called—and as the record was
silent, Szabo’s claim was sunk. Failure to develop the rec-
ord with essential evidence invariably means forfeiture.
Rule 651(c) played a leading role on appeal in Szabo III be-
cause Szabo used his lawyer’s (asserted) noncompliance
with his duties under that rule as an excuse that would
permit him to start anew. In other words, Szabo contended
that the state had not furnished post-conviction counsel of
the quality that the state had promised (through Rule
651(c)) to supply. He asked the Supreme Court of Illinois in
Szabo III to use state law to give him a new hearing with
a better lawyer who would procure the vital evidence then
missing from the record. The state decided that he was not
entitled to that relief—that the legal services he received
had met the state’s standards of quality.
   Let us suppose that this is wrong (as the three dissenting
justices concluded in Szabo IV) and that Szabo did not enjoy
the high standard of legal services that Illinois seeks to
provide on post-conviction review. Still, all that would mean
is that Szabo did not receive the effective assistance of post-
conviction counsel—and it is settled as a matter of federal
No. 02-1800                                               7

law that poor post-conviction lawyering does not relieve a
prisoner of what is otherwise a forfeiture under state law.
See, e.g., Coleman v. Thompson, 

, 752-57
(1991); Pennsylvania v. Finley, 

, 557 (1987).
See also 28 U.S.C. §2254(i) (“The ineffectiveness or incom-
petence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.”). That is to say,
ineffective assistance of post-conviction counsel does not
supply “cause” for the cause-and-prejudice formula under
which federal courts sometimes entertain claims that were
not properly presented to the state courts. Szabo therefore
cannot show a sufficient “cause” for any forfeiture. Because
the last state court to consider the issue unambiguously
invoked a forfeiture doctrine, the lack of evidence at the
trial level in Szabo III supplies an independent and ade-
quate state ground of decision. Szabo’s ineffective-assis-
tance claim was not preserved in state court and cannot
furnish the basis for a writ of habeas corpus.
   Szabo offers an additional argument in support of his
judgment: that during the second sentencing the judge
violated the Confrontation Clause by admitting transcripts
of five witnesses’ testimony from the first sentencing, even
though these witnesses were not shown to be unavailable
at the time of the second sentencing. In Szabo II the
Supreme Court of Illinois held that failure to make a post-
sentencing motion for a new hearing forfeited this conten-
tion, 

, and the district judge agreed.
Szabo contends that the state’s forfeiture decision was “in-
adequate” as a matter of federal law because Szabo II ap-
plied to him a doctrine that did not become firmly estab-
lished in Illinois until after the second sentencing. The
state defends the Supreme Court’s forfeiture decision in
Szabo II and adds that in its view the question is not
properly before us in the first place, because Szabo did not
8                                                No. 02-1800

seek or obtain a certificate of appealability authorizing him
to present this issue for appellate decision.
  Since 1996 both state and federal prisoners have needed
certificates of appealability to obtain appellate review of
adverse decisions in collateral attacks. 28 U.S.C. §2253. But
the statute deals only with appeals by prisoners; it does not
mention arguments by prisoners as appellees offered in
support of relief they have obtained. Section 2253(c)(1)
begins: “Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of
appeals from—”) (emphasis added). Szabo has not taken an
appeal, nor did he need to do so. An appellee may defend
his judgment on any ground properly preserved in the
district court. Compare Massachusetts Mutual Life Insur-
ance. Co. v. Ludwig, 

(1976), with El Paso
Natural Gas Co. v. Neztsosie, 

, 479-81 (1999).
Szabo does not ask for additional relief, so he was entitled
to proceed exactly as he has done. Two opinions—Ainsworth
v. Woodford, 

(9th Cir. 2001), and Williams v.
Cain, 

(5th Cir. 1997)—assume that a certifi-
cate of appealability is needed for a prisoner’s cross-appeal,
and this is a plausible understanding of §2253(c) (though
neither court discussed the question). But no court has
demanded that a prisoner obtain a certificate of appeal-
ability in order to present an extra issue in a case already
before the court on the state’s appeal, and we are content to
apply §2253 as it is written. It serves a gatekeeping func-
tion, see Ramunno v. United States, 

(7th Cir.
2001), and once a case is properly before the court of
appeals—for state and federal governments need not obtain
certificates of appealability, see Fed. R. App. P. 22(b)(3)—
there are no remaining gates to be guarded.
 Szabo II, which held that Szabo failed to preserve his
Confrontation Clause contention, is incontestable as a
matter of state law; the Supreme Court of Illinois has
No. 02-1800                                                 9

resolved any dispute about what state law required Szabo
to do. Whether this decision is “adequate” is, however, a
question of federal law. Relying on Liegakos, Szabo con-
tends that the decision is inadequate because the require-
ment of a motion for a new sentencing hearing was not
announced until after it was too late for his counsel to make
such a motion. The parties have engaged in an extended
debate about what Illinois required along these lines during
the mid-1980s. We think it unnecessary to resolve this ar-
cane procedural point, because Szabo’s legal position is
defective on the merits. He contends that under the Con-
frontation Clause the transcripts of the five witnesses’ tes-
timony at the first sentencing could be used only if they
were unavailable at the time of the second sentencing
hearing—and that the record does not demonstrate unavail-
ability. Yet the Supreme Court has held that the Confronta-
tion Clause does not apply to capital sentencing. It applies
through the finding of guilt, but not to sentencing, even
when that sentence is the death penalty. See Williams v.
New York, 

(1949).
  Since Gregg v. Georgia, 

(1976), and Lockett
v. Ohio, 

(1978), the law of capital sentencing
has changed considerably. Nonetheless, the Supreme Court
of the United States has never questioned the precise
holding of Williams v. New York, and we are not entitled to
do so in this collateral attack. Szabo’s sentence became final
in 1986, and post-1986 developments could apply on col-
lateral review only under rare circumstances. See Teague v.
Lane, 

(1989); Tyler v. Cain, 

(2001). See also 28 U.S.C. §2254(d)(1) (to obtain collateral
relief a state prisoner must show that his claim “resulted in
a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States”)
(emphasis added); Williams v. Taylor, 

, 405-06,
412 (2000).
10                                               No. 02-1800

  Attempting to sidestep Teague, Szabo relies on Specht v.
Patterson, 

(1967), which holds that the Con-
frontation Clause applies during those portions of a sen-
tencing proceeding that can lead to an increase in the
maximum lawful punishment. Specht is a precursor of
Apprendi v. New Jersey, 

(2000), and Ring v.
Arizona, 

(2002), which hold that facts
increasing the statutory maximum punishment must
be proved, to the jury’s satisfaction, beyond a reasonable
doubt, using the procedures normally employed at a trial—
which per Specht includes the opportunity to confront and
cross-examine one’s accusers in the flesh. Unfortunately for
Szabo, however, in order to apply Apprendi to capital sen-
tencing, Ring first had to overrule Walton v. Arizona, 

(1990). Given Teague, it is Walton and not Ring
that governs Szabo’s claims on collateral attack. See Curtis
v. United States, 

(7th Cir. 2002) (Apprendi
does not apply retroactively on collateral attack). Specht
itself just won’t do the job. It distinguished Williams v. New
York on the ground that Colorado’s capital sentencing
procedure (the one at issue in Specht) can boost the maxi-
mum lawful punishment. Illinois has such a proceeding
too—but this is not the one at which the transcripts were
used against Szabo.
  Illinois handles capital cases in three phases. First is the
guilt phase where the jury decides whether a crime oc-
curred, next is the capital-eligibility phase where the jury
decides whether at least one aggravating circumstance
applies, and finally comes the balancing phase, where the
jury weighs aggravating and mitigating circumstances to
select a sentence. Specht dealt with a proceeding of the
second kind. Szabo waived the opportunity to have such a
proceeding and stipulated that he was eligible for the death
sentence. (The multiple-murder aggravating circumstance
was all it took, and there was no point denying it given the
outcome of the guilt phase.) Only during the third, balanc-
No. 02-1800                                               11

ing phase of the Illinois procedure was the transcribed
testimony used, and that phase is outside the ambit of
Specht because the stipulation that pretermitted the second
phase already had lifted the maximum punishment to a
sentence of death.
  We need not attempt to predict how the Supreme Court’s
jurisprudence will develop; Apprendi and Ring may portend
more changes and may eventually be applied to the balanc-
ing phase of capital sentencing, as Szabo contends that they
should. But they were not so applied (indeed, did not exist)
in 1985, and Specht, which did predate Szabo’s sentencing,
does not support his position. As late as 1990, in Walton,
the Supreme Court rendered a decision strongly supporting
the state’s perspective. Williams v. New York shows that in
1985 Illinois was entitled to proceed as it did.
  The judgment is reversed, and the case is remanded for
entry of an order denying Szabo’s petition for a writ of
habeas corpus.




   RIPPLE, Circuit Judge, dissenting. The State of Illinois
proposes to put Mr. Szabo to death despite the fact that, in
its own state courts, he did not receive the quality of legal
representation required by state law. Nor was his claim of
ineffective assistance of resentencing counsel addressed
with precision or care by the Illinois courts. Despite this
stark reality, we are required to limit our inquiry to the
complex and difficult question of whether the federal courts
can afford him any relief. Our authority is limited; we may
inquire only as to whether a federal right, properly raised
and preserved in earlier state proceedings, was so unrea-
12                                               No. 02-1800

sonably adjudicated in the state courts as to justify our
intervention.
   The State takes the view that we cannot reach the merits
of Mr. Szabo’s ineffective assistance of resentencing counsel
claim. In its view, Mr. Szabo has procedurally defaulted this
claim. My colleagues agree; they believe that Mr. Szabo
procedurally defaulted his Sixth Amendment claim when he
failed to submit affidavits in support of this claim in his
first post-conviction petition. In their view, this forfeiture
is analytically separate from the Supreme Court of Illinois’
“contestable” interpretation of Rule 651(c) in Szabo III that
Mr. Szabo’s counsel “had complied functionally with Rule
651(c)” even though that counsel did not attach the neces-
sary affidavits to conform the petition to state-law require-
ments. See slip op. at 6. In my view, Mr. Szabo’s failure to
submit the required affidavits in the first post-conviction
review and the state court’s treatment of that failure on
appeal from that determination cannot so easily be un-
bundled for purposes of determining whether there has
been a procedural default that bars federal review of Mr.
Szabo’s federal claim that resentencing counsel failed to
render constitutionally effective assistance of counsel. In
the following paragraphs, I shall set forth more fully the
reasons for my taking this view.


                             A.
   Our focus will be sharpened by beginning with some basic
and undisputed principles. We begin with the fundamental
rule that we shall not address a question of federal law
raised in a habeas petition if the decision of the state court
“ ‘rests on a state law ground that is independent of the
federal question and adequate to support the judgment.’ ”
Lee v. Kemna, 

, 375 (2001) (quoting Coleman
v. Thompson, 

(1991)). This rule applies with
equal force whether the rule is substantive or procedural in
No. 02-1800                                                 13

nature. 

Under this principle, “if a state court did
not reach a federal issue because it applied, evenhandedly,
a state procedural rule, the matter is closed to the federal
habeas court absent a showing of cause and prejudice.”
Willis v. Aiken, 

, 561 (7th Cir. 1993) (citing Wain-
wright v. Sykes, 

, 90-91 (1977)). However, the
Supreme Court consistently has made clear that whether
an asserted procedural ground is independent and ade-
quate, and therefore a bar to federal relief, is a federal
question. See Henry v. Mississippi, 

, 447
(1965); Johnson v. Mississippi, 

, 587 (1988).
   As my colleagues note, there is no question that the
decision of the Supreme Court of Illinois in Szabo III—that
his counsel had complied with the requirements of Rule
651(c)—was independent of Mr. Szabo’s constitutional claim
of ineffective assistance of resentencing counsel. See slip op.
at 5. The state’s determination of procedural default,
however, must also be adequate. Our case law consistently
has required that, in order to be adequate, the procedural
rule must be applied in a “consistent and principled way.”
Prihoda v. McCaughtry, 

, 1383 (7th Cir.
1990). A state rule is “consistent and principled” when it is
“firmly established and regularly followed.” Franklin v.
Gilmore, 

, 882 (7th Cir. 1999); Rosa v. Peters,

, 633 (7th Cir. 1993); see also 

; James v. Kentucky, 

, 348-51 (1984);
Hamm v. Saffle, 

, 1216 (10th Cir. 2002);
Duncan v. Cain, 

, 542 (5th Cir. 2002). “State
courts may not avoid deciding federal issues by invoking
procedural rules that they do not apply evenhandedly to
all similar claims.” Garcia v. Lewis, 

, 77 (2d Cir.
1999) (quoting Hathorn v. Lovorn, 

, 263
(1982)); see also Romano v. Gibson, 

, 1170
(10th Cir. 2001), cert. denied, 

(2001); 

. We therefore must determine whether Illi-
14                                                   No. 02-1800

nois’ application of a state waiver doctrine is adequate to
support its judgment and preclude federal habeas review.


                                B.
  In Mr. Szabo’s first state post-conviction petition, he
alleged that both his original trial counsel and his resen-
tencing counsel were constitutionally ineffective. With
respect to resentencing counsel, one of Mr. Szabo’s allega-
tions was that his counsel failed to introduce mitigating
evidence in the form of testimony of prison employees. Mr.
Szabo’s counsel in the first state post-conviction proceeding
did not substantiate those claims with affidavits or other
support. Consequently, the state trial court dismissed those
claims as unsubstantiated. This decision was reviewed by
the Supreme Court of Illinois in Szabo III. In that appeal,
Mr. Szabo argued that his counsel in the trial-level state
post-conviction proceeding had not provided him with the
representation required by state law because he had not
provided the court with the necessary affidavits to support
his claim that his resentencing counsel had been constitu-
tionally ineffective.1 Consequently, Mr. Szabo submitted,
his pre-existing federal right to competent counsel at the
resentencing hearing had not been presented adequately to
the trial court at the state post-conviction hearing. Because
a determination that resentencing counsel was constitution-
ally inadequate would constitute “cause” for the failure to
develop the case at resentencing, Mr. Szabo argued that he
was entitled to another post-conviction hearing at which
counsel would establish, with the requisite support, the
constitutional ineffectiveness of resentencing counsel.


1
  Notably, his argument was not that his post-conviction counsel
had been ineffective in the constitutional sense, but that his right
to effective assistance of post-conviction counsel as guaranteed by
state law had been violated.
No. 02-1800                                                15

  Although there is no federal right to counsel in state post-
conviction proceedings, see Pennsylvania v. Findley, 

, 555 (1987), Illinois has chosen to require that
counsel representing defendants in such actions meet cer-
tain state-imposed standards. Today, and at all times per-
tinent to this case, those standards are embodied in Rule
651(c). However, even prior to the adoption of Rule 651, the
Supreme Court of Illinois had set forth the responsibilities
of post-conviction counsel under the Illinois Post-Conviction
Hearing Act in terms that are relevant to our present
inquiry:
    To the end that the complaints of a prisoner with re-
    spect to the validity of his conviction might be ade-
    quately presented, the statute contemplated that the
    attorney appointed to represent an indigent petitioner
    would consult with him either by mail or in person,
    ascertain his alleged grievances, examine the record of
    the proceedings at the trial and then amend the peti-
    tion that had been filed Pro se, so that it would ade-
    quately present the prisoner’s constitutional conten-
    tions. The statute can not perform its function unless
    the attorney appointed to represent an indigent peti-
    tioner ascertains the basis of his complaints, shapes
    those complaints into appropriate legal form and pre-
    sents them to the court.
People v. Slaughter, 

, 569 (Ill. 1968). Apply-
ing this standard in People v. Garrison, 

(Ill.
1969), the Supreme Court of Illinois reversed a circuit court
order dismissing a petition in which “[t]he record d[id] not
affirmatively show” that appointed counsel had conferred
with the defendant prior to filing the post-conviction peti-
tion. 

  Rule 651 was adopted in 1969 and requires in pertinent
part:
16                                                No. 02-1800

     The record [on appeal on a collateral attack] shall
     contain a showing, which may be made by the certifi-
     cate of petitioner’s attorney, that the attorney has con-
     sulted with petitioner either by mail or in person to
     ascertain his contentions of deprivation of constitu-
     tional right, has examined the record of proceedings at
     the trial, and has made any amendments to the peti-
     tion filed Pro se that are necessary for an adequate
     presentation of petitioner’s contentions.
Ill. S. Ct. R. 651(c). Applying the recently adopted rule, the
Supreme Court of Illinois in People v. Brown, 

(Ill. 1972), remanded a case to the circuit court because
post-conviction counsel failed to comply with the “examina-
tion” portion of the rule. In Brown, post-conviction counsel
had received a letter from the defendant stating that he
believed that he had “other grounds that I could rely on but
they’re in the court records concerning my first post-con-
viction hearing . . . .” 

Counsel took this assertion
to mean that the petitioner’s other complaints already had
been presented by way of an initial post-conviction proceed-
ing and, consequently, the petitioner had no right to pro-
ceed on the current petition. On appeal, the Supreme Court
of Illinois stated:
     Without considering the necessity of a consultation with
     the petitioner concerning the contents of the letter
     received by the attorney on the morning of the hearing,
     it is clear there is nothing in the record to show that
     appointed counsel examined the record of the peti-
     tioner’s trial proceedings. The State does not dispute
     this but first replies that there is nothing to indicate
     that counsel did not examine the trial record. There is
     no merit to this reply, for Rule 651(c) explicitly requires
     a showing that counsel has examined the trial record.

The Illinois appellate courts also routinely have
reversed trial court dismissals of post-conviction petitions
No. 02-1800                                                17

if post-conviction counsel had failed to meet the require-
ments of Rule 651(c) to consult, to review or to present the
claims. See, e.g., People v. Treadway, 

, 890
(Ill. App. Ct. 1993) (remanding for further post-conviction
proceedings in part because “counsel did not amend the
petition to present the claim adequately”); People v. Alexan-
der, 

, 1079-80 (Ill. App. Ct. 1990) (stating
that “[a]bsent an affirmative showing on the record, we
cannot presume that post-conviction counsel fulfilled his
obligation to review the trial record,” holding that “[i]t is
error to dismiss a post-conviction petition on the pleadings
where, as here, there has been no showing of adequate rep-
resentation by counsel, even where the petition itself failed
to present a substantial constitutional claim,” and remand-
ing for further post-conviction proceedings); People v. Allen,

, 1263 (Ill. App. Ct. 1987) (remanding peti-
tion when counsel had failed to amend petition to include
an affidavit from the defendant explaining how defendant
would have testified had he not followed counsel’s advice to
remain silent).
  In other cases, the Supreme Court of Illinois, applying the
above standard, concluded that post-conviction counsel had
complied with the requirements of Rule 651(c). For in-
stance, in People v. Owens, 

(Ill. 1990), the
petitioner alleged that his counsel had not met his obliga-
tions under Rule 651(c) because his counsel “failed to
introduce any such evidence in support of the ineffective
assistance claim.” 

The court held otherwise:
    The record shows that counsel consulted with the
    petitioner and filed an amended post-conviction petition
    which raised numerous allegations of trial error. It
    would have been impossible for counsel to have raised
    many of these errors without having examined the
    record of the proceedings at trial. In addition, petition-
    er’s post-conviction counsel presented adequate evi-
    dence in support of the ineffective-assistance claim at
18                                                 No. 02-1800

     the evidentiary hearing on the post-conviction petition.
     For example, he questioned Scott Belford, the peti-
     tioner’s trial counsel, at length regarding his failure to
     request a hearing to determine the defendant’s compe-
     tency to stand trial and be sentenced. Petitioner’s coun-
     sel also questioned Belford regarding his failure to call
     the defendant’s father to testify in mitigation, his fail-
     ure to introduce the defendant’s school records and his
     failure to introduce evidence of the defendant’s psycho-
     logical problems in mitigation at sentencing. In addi-
     tion, petitioner’s counsel called the petitioner to testify,
     so that he might advise the court of mitigation wit-
     nesses who were not called and to explain what those
     witnesses might have said in mitigation. Because the
     record demonstrates that petitioner’s counsel adequate-
     ly presented the petitioner’s ineffective-assistance
     claim, we reject the petitioner’s contention that his
     post-conviction counsel did not comply with Rule 651(c).

(parallel citation omitted).
  It was against this background that the Supreme Court
of Illinois decided Mr. Szabo’s appeal from his first post-
conviction hearing. In denying relief, the Supreme Court
stated that post-conviction counsel’s failure to file the
requisite affidavit under Rule 651(c) was of no consequence
because the record affirmatively demonstrated that counsel
had fulfilled these responsibilities:
     This court has held that Rule 651(c) works in conjunc-
     tion with the Post-Conviction Hearing Act to ensure
     that counsel appointed to represent an indigent peti-
     tioner ascertains the basis of his complaints, shapes
     those complaints into appropriate legal form and pre-
     sents them to the court. Rule 651(c), therefore, re-
     quires that the record on appeal disclose that appointed
     counsel took the necessary steps to secure adequate
     representation of petitioner’s claims. Failure of ap-
No. 02-1800                                               19

    pointed counsel to file a Rule 651(c) certificate of com-
    pliance is harmless error if the record establishes that
    counsel met the requirements of the rule. The record
    indicates that there was considerable communication
    between post-conviction counsel and defendant, and
    that defendant received reasonable assistance of coun-
    sel as contemplated by the rule. Transcripts include
    comments by post-trial counsel regarding his recent
    conversations with defendant. Counsel called defen-
    dant’s father to testify about hiring Landau. Addition-
    ally, counsel secured investigative services from the
    court and conducted an exhaustive search for Landau.
    Looking beyond certification to the attorney’s actions,
    the record clearly supports the trial court finding of
    effective assistance of appointed counsel.
Szabo 

(internal quotation marks and
citations omitted).
  In Szabo III, the Supreme Court of Illinois correctly
stated the standard it had developed in earlier cases, but it
failed to apply that standard properly to the claims raised.
As noted above, the Supreme Court of Illinois in Szabo III
stated that Rule 651(c) requires counsel to “ascertain[] the
basis of [the petitioner’s] complaints, shape[] those com-
plaints into appropriate legal form and present[] them to
the court.” 

Although the court prop-
erly recited the standard in the plural—and thus appli-
cable to all of the petitioner’s complaints—it did not apply
the standard to each of the allegations in the post-convic-
tion petition.
  Mr. Szabo had two primary complaints in his first post-
conviction petition: 1) David Landau, his trial attorney,
“had been prevented from rendering effective assistance of
counsel to defendant due to disciplinary problems which led
to Landau’s subsequent disbarment”; and 2) Mr. Szabo did
not receive effective assistance of resentencing counsel
because that counsel had not called prison employees to
20                                                No. 02-1800

testify to Mr. Szabo’s adjustment to prison life. 

The court, however, did not analyze whether counsel had
fulfilled his responsibilities under Rule 651(c) with respect
to each of these claims. The court found compliance with
the rule based only on counsel’s actions with respect to the
first of these claims:
     The record indicates that there was considerable com-
     munication between post-conviction counsel and defend-
     ant, and that defendant received reasonable assist-
     ance of counsel as contemplated by the rule. Tran-
     scripts include comments by post-trial counsel regard-
     ing his recent conversations with defendant. Counsel
     called defendant’s father to testify about hiring Landau.
     Additionally, counsel secured investigative services
     from the court and conducted an exhaustive search for
     Landau. Looking beyond certification to the attorney’s
     actions, the record clearly supports the trial court find-
     ing of effective assistance of appointed counsel.

Notably, nothing is said about post-conviction
counsel’s failure to present, in the fashion contemplated by
Rule 651(c), the contention that resentencing counsel had
performed in a constitutionally inadequate manner by
failing to present available evidence with respect to Mr.
Szabo’s behavior while incarcerated. Because the court in
Szabo III did not consider the requirements of Rule 651(c)
with respect to each of Mr. Szabo’s claims, its analysis does
not comport with the standards it had set forth in its
earlier cases.
  The failure to decide Szabo III in conformity with the
established body of precedent becomes even more clear
upon examination of developments after this deviation.
Shortly after its decision in Szabo III, the Supreme Court
of Illinois returned to the question of counsel’s obligations
under Rule 651(c) in People v. Johnson, 

(Ill.
1993). In that case, the petitioner alleged that “his post-
No. 02-1800                                                 21

conviction counsel did not adequately represent him be-
cause he did not amend the pro se petition in the manner
necessary to adequately present the petitioner’s claims.” 

Specifically, “post-conviction counsel failed to inter-
view any of the witnesses named in the post-conviction peti-
tion, marshaled no evidence in support of the petitioner’s
contentions, attached no affidavits or other records to the
amended petition, and failed to explain the absence of
supporting documentation.” 

The Supreme
Court of Illinois held that counsel had failed to comply with
the requirements of the rule; it stated:
       In the ordinary case, a trial court ruling upon a mo-
    tion to dismiss a post-conviction petition which is not
    supported by affidavits or other documents may reason-
    ably presume that post-conviction counsel made a
    concerted effort to obtain affidavits in support of the
    post-conviction claims, but was unable to do so. Here,
    however, this presumption is flatly contradicted by the
    record. Post-conviction counsel filed an affidavit as a
    supplemental record in this appeal, which unequivo-
    cally establishes that counsel made no effort to investi-
    gate the claims raised in the defendant’s post-convic-
    tion petition or to obtain affidavits from any of the
    witnesses specifically identified in the defendant’s pro
    se petition. To adequately establish the manner in
    which post conviction counsel deviated from his duties,
    it is necessary to discuss in some detail post-conviction
    counsel’s actions as to each claim raised in the post-
    conviction petition.
    ...
      Post-conviction counsel’s affidavit, which was filed in
    this court, likewise states that he made no attempt to
    contact two of the parole officers named in the post-
    conviction petition, and that he was unable to reach the
    third parole officer. Counsel failed to take any action to
22                                               No. 02-1800

     obtain the affidavits of potential witnesses whose iden-
     tities were known to him for more than two years dur-
     ing which the post-conviction petition was pending.

   Reviewing these cases, it is apparent that the Supreme
Court of Illinois has articulated a consistent rule concern-
ing the adequacy of post-conviction counsel’s performance
under Rule 651(c). Those cases have held that, absent a
certification of compliance, there must be evidence in the
record demonstrating that counsel has performed the three
distinct duties stated in the rule: consultation, examination
of the record and amendment of the petition. If counsel has
not performed these responsibilities with respect to each of
the petitioner’s complaints, a remand for additional post-
conviction proceedings is warranted. In Szabo III, however,
it failed to apply this standard to each of the claims raised
by Mr. Szabo. It did not address the application of this
standard to the crucial matter of his post-conviction coun-
sel’s failure to make the case that Mr. Szabo’s resentencing
counsel was constitutionally ineffective by failing to present
important evidence of Mr. Szabo’s behavior while incarcer-
ated.


                             C.
   After the decision of the Supreme Court of Illinois in Peo-
ple v. Flores, 

(1992), it is well-established
that, as a general rule, a petitioner cannot raise non-com-
pliance with Rule 651(c) in a second post-conviction peti-
tion. Prior to that decision, at least two decisions of the
Supreme Court of Illinois, People v. Hollins, 

(Ill. 1972), and People v. Slaughter, 

(Ill.
1968), had suggested that, when post-conviction counsel
had not performed his responsibilities under Rule 651,
subsequent filings would be allowed. Flores, however, made
No. 02-1800                                                    23

it very clear under what circumstances it would allow in-
effective assistance of counsel claims to be raised in a suc-
cessive post-conviction petition:
    In sum, where a defendant files a second or subsequent
    post-conviction petition in which he claims sixth
    amendment ineffective assistance of prior post-convic-
    tion counsel, because there is no right to sixth amend-
    ment counsel in post-conviction proceedings, such
    claims do not present a basis upon which relief may be
    granted under the Act. Further, where a defendant files
    a second or subsequent post-conviction petition wherein
    he claims ineffective assistance in his first post-convic-
    tion proceeding, because the Act is confined to errors
    which occurred in the original proceeding, only, such
    claims are beyond the scope of the Act.
      Where, however, a defendant files a second or subse-
    quent post-conviction petition in which he raises mer-
    itorious claims of ineffective assistance of appellate
    counsel, which could not have been raised in a prior
    post-trial proceeding, the defendant is entitled to con-
    sideration of those claims.

.2 Consequently, after Flores
(which preceded Mr. Szabo’s filing of his second post-
conviction petition), substandard performance by state post-
conviction counsel is no longer a basis for relief in a second
state post-conviction petition.
  In any event, the Supreme Court of Illinois’ treatment of
the second post-conviction petition, even if it should not


2
   See also People v. Pitsonbarger, No. 89368, 

(Ill. May 23, 2002), cert. denied, No. 02-6027, 

(Dec. 2, 2002) (clarifying that, absent a claim of actual innocence
or ineligibility for the death penalty, cause and prejudice must
be shown in order for a court to entertain a successive post-
conviction petition).
24                                                  No. 02-1800

have been entertained, demonstrates graphically that it had
deviated from its usual course of proceeding in Szabo III. In
Szabo IV, the Supreme Court of Illinois’ struggle to find a
principled basis for denying further review of the claim
demonstrates the difficulty posed by its earlier decision.
Three justices believed that Mr. Szabo should be precluded
from filing a second petition because he could not rely on
the intervening decision in Johnson. They wrote: “We do not
believe that Johnson controls the outcome of the present
case, any more than we believe that Johnson governs other
post-conviction matters that were concluded long ago.”
Szabo 

. If the justices were claiming
that Johnson set forth a new procedural rule not applicable
retroactively on collateral review, their opinion never
identifies that new procedural rule.3 Indeed, as noted
earlier, Johnson fits comfortably within the entire line of
cases setting forth the requirements of Rule 651(c). If the
justices intended to convey, as two of their colleagues
appear to have believed, that Mr. Szabo was precluded by
the doctrine of res judicata, they fail to explain how that
doctrine could be applicable when Mr. Szabo squarely
raised the issue of his counsel’s lack of compliance but the
Supreme Court of Illinois in Szabo III failed to adjudicate
the matter.
  In short, Szabo IV demonstrates Szabo III’s failure to
apply the established law of Illinois in an evenhanded
manner. Mr. Szabo never has received an adjudication of
the contention that the failure of resentencing counsel to
bring pertinent information to the attention of the court
was constitutionally inadequate representation that con-
stitutes “cause” for purposes of avoiding procedural default
in the federal habeas context. Under state law, he had the


3
  Neither in Szabo IV, nor in any of its subsequent cases, has the
Supreme Court of Illinois really grappled with the issue of wheth-
er Johnson represents a “new rule,” why it represents a new rule,
or what that rule is.
No. 02-1800                                                 25

right to have that failure on the part of resentencing coun-
sel brought to the attention of the post-conviction court
through the efforts of counsel. Although otherwise uni-
formly ensuring that right to other defendants, the Su-
preme Court of Illinois denied that protection in this case—
a case when the evidence at issue was a vital part of Mr.
Szabo’s attempt to convince the trier of fact to spare his life.


                              D.
  Let us now return to the basic principles set forth in Part
A. As noted there, my colleagues can dismiss quickly the
question of the “adequacy” of the state rule only because
they believe that Mr. Szabo committed a final forfeiture
incapable of remedy when counsel failed to develop the
ineffective assistance of resentencing counsel claim at the
trial level of the first state post-conviction hearing. See slip
op. at 6. By artificially cabining the forfeiture in the trial
court, my colleagues need not explain the significance of the
consistent (with the exception of this case) approach of the
Supreme Court of Illinois to afford relief to post-conviction
petitioners whose deficient petitions were attributable to
their counsels’ failure to comply with Rule 651(c).
  I cannot share this artificial view of the nature of the
state forfeiture. It is true that, under Illinois law, “a post-
conviction petition may be dismissed without an eviden-
tiary hearing where the petition raises claims outside the
record which are not supported by affidavits or other
documents.” 

. However, infirmi-
ties in the post-conviction petition cannot be separated from
the rest of the post-conviction process. That process antici-
pates the involvement of competent counsel. Indeed, the
Supreme Court of Illinois has stated that “Rule 651(c)
establishes the level of assistance appointed counsel must
provide to post-conviction petitioners.” People v. Williams,

, 1154 (Ill. 1999) (emphasis added). When
26                                              No. 02-1800

the record, as developed in the trial court, reveals that
counsel has not complied with his or her responsibilities
under Rule 651(c), the result has been a remand for further
post-conviction proceedings. 

at Part B. Consis-
tently, the Supreme Court of Illinois has treated Rule 651(c)
non-compliance as an exception to the general rule that
unsupported petitions must be dismissed. Rule 651(c)
requires counsel to “make any amendments to the petitions
filed pro se that are necessary for an adequate presentation
of petitioner’s contentions.” People v. Kluppelberg, 

, 1185 (Ill. App. Ct. 2002) (internal quotation
marks and citations omitted). Furthermore, this require-
ment applies to each claim raised by the petitioner. See

; cf. People v. Moore, 

, 359 (Ill. 2000) (analyzing compliance with
651(c) on a claim-by-claim basis). Failure to meet Rule
651(c)’s requirements has consistently resulted in a remand
of the matter for additional consultation, proper review, or
adequate presentation of the claims. 

at Part B.
Although the Illinois Supreme Court paid lip-service to
these requirements in Szabo III, it did not apply these
standards to each of Mr. Szabo’s ineffective assistance
claims. Had the Illinois Supreme Court acted in conformity
with Illinois case law, it would have taken note of counsel’s
failure to support the claim of constitutionally ineffective
assistance of counsel at resentencing with affidavits or
other evidence. Furthermore, counsel’s failure to present
the claim adequately would have resulted in a remand to
require counsel to fulfill this obligation under the rule.
Because the Supreme Court of Illinois deviated from the
ordinary and usual course of adjudication, its application
was not evenhanded and, therefore, was not adequate for
purposes of barring federal habeas review. Because the
panel sanctions this departure and the consequent result to
Mr. Szabo, I respectfully dissent.
No. 02-1800                                         27

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—12-10-02