FOURTH DIVISION Order filed: July 27, 2023

No. 1-22-0491and 1-22-1819 (cons.)

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 02 CR 16884 ) KELVIN CARTER, ) Honorable, ) Adrienne Davis,, Defendant-Appellant. ) Judge, presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Justices Rochford and Martin concurred in the judgment.

ORDER

¶1 Held: We affirmed the circuit court’s denial of the defendant’s petition for leave to file a successive postconviction petition. Relying upon the supreme court’s decision in People v. Dorsey,

, we found that the defendant’s petition failed to establish cause for failure to raise in his initial postconviction petition a claim that his de facto life sentence violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970 art. 1, § 11) based on recent caselaw governing the sentencing of juvenile and young adult offenders. 1-22-0491 & 1-22-1819 (cons.)

¶2 The defendant, Kelvin Carter, appeals from orders of the circuit court denying him leave

to file two successive postconviction petitions under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2020)). Relying upon cases decided after his initial postconviction

petition was denied and recent research concerning young adult brain development, the defendant

contends that the trial court erred in denying him leave to file his second successive postconviction

petition because he adequately alleged that his “mandatory de facto life sentence” for crimes he

committed when he was 23 years old is unconstitutional. For the reasons that follow, we affirm.

¶3 Following a bench trial, the court found the defendant guilty of first degree murder. After

considering arguments in aggravation and mitigation, the trial court sentenced the defendant to an

aggerate prison term of 45 years, 20 years for first degree murder with a 25-year mandatory

enhancement for personally discharging a firearm that caused the victim’s death. On direct appeal,

this court ordered the mittimus corrected to reflect the defendant’s conviction of one count of first

degree murder ant two days additional sentencing credit but otherwise affirmed the defendant’s

conviction and sentence. See People v. Carter, No. 1-04-1385 (Feb. 8, 2006) (unpublished order

under Illinois Supreme Court Rule 23).

¶4 On April 19, 2007, the defendant filed a pro se petition for postconviction relief claiming

ineffective assistance of counsel and prosecutorial misconduct. The trial court dismissed the

petition as frivolous and patently without merit. The defendant appealed. This court affirmed the

dismissal (People v. Carter, No. 1-04-1385 (Feb. 8, 2006) (unpublished order under Illinois

Supreme Court Rule 23)) and the supreme court denied leave to appeal (People v. Carter,

(2009)).

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¶5 On June21, 2010, the defendant filed a habeas corpus petition in the United States District

Court for the Northern District of Illinois. The district court denied the petition. United States ex

rel. Carter v. Gaetz,

(N.D. Ill. Feb. 24, 2011).

¶6 On May 29, 2012, the defendant filed a petition for relief from judgment pursual to section

2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010), claiming that the firearm

enhancement of his sentence is void. On July 10, 2010, the circuit court dismissed the petition.

The defendant appealed, and this court vacated the circuit court’s order, holding that the dismissal

was premature. People v. Carter,

. The supreme court granted the State’s

petition for leave to appeal and, on December 3, 2015, reversed the judgment of this court and

affirmed the circuit court’s order dismissing the defendant’s section 2-1401 petition. People v.

Carter,

.

¶7 In January 2015, the defendant filed a second petition pursuant to section 2-1401 which

the circuit court dismissed. The defendant appealed, but the Office of the State Appellate Defender

(OSAD) that was representing him filed a motion to withdraw as counsel pursuant to Finley v.

Pennsylvania,

(1987), asserting that there were no issues of arguable merit on appeal.

Following receipt of the defendant’s response to the motion, this court granted OSAD’s motion to

withdraw and affirmed the circuit court’s dismissal. People v. Carter, No. 1-15-2236 (Oct. 30,

2017) (unpublished summary order under Illinois Supreme Court Rule 23).

¶8 On September 19, 2019, the defendant filed a habeas corpus petition in the circuit court,

raising two claims premised on the assertion that a witness at his trial, Leroy Lane, had testified

falsely. On December 20, 2019, the circuit court denied the petition. The defendant appealed.

The OSAD representing the defendant in that appeal filed a motion to withdraw as counsel

pursuant to Finley v. Pennsylvania,

(1987), asserting that there were no issues of

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arguable merit on appeal. On June 21, 2021, this court granted OSAD’s motion to withdraw and

affirmed the circuit court’s denial of the defendant’s habeas corpus petition. People v. Carter,

No. 1-20-0676 (June 1, 2021) (unpublished summary order under Illinois Supreme Court Rule 23).

¶9 On December 18, 2019, the defendant filed a pro se motion for leave to file a successive

postconviction petition, arguing that his arrest pursuant to an investigative alert was

unconstitutional. On January 14, 2021, the defendant filed a motion to amend his successive

postconviction petition again raising the constitutionality of his arrest pursuant to an investigating

alert and adding claims of ineffective assistance of his trial counsel for failing to file a motion to

suppress his arrest and ineffective assistance of his appellate counsel for failing to raise ineffective

assistance of his trial counsel on direct appeal. On July 7, 2021, the defendant filed a second

motion to amend his successive postconviction petition along with his proposed amended petition

in which he raised as grounds the claims contained in his first motion to amend and adding claims

that his mandatory de facto life sentence is, as applied to him, unconstitutional under the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970 art. 1, § 11) and that his

sentence is excessive.

¶ 10 On March 2, 2022, the trial court denied the defendants motion to file a successive

postconviction petition asserting claims that his arrest pursuant to an investigating alert was

unconstitutional, that his trial counsel rendered ineffective assistance for failing to file a motion to

suppress his arrest, and that his appellate attorney on direct appeal rendered ineffective assistance

for failing to raise ineffective assistance of his trial counsel. The defendant filed a notice of appeal

from that order which was docketed in this court as No. 1-22-0491.

¶ 11 On April 19, 2022, the defendant filed a motion titled “Motion Seeking Permission to

Advance Successive Post-Conviction.” That motion pointed out that the trial court in its March

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2, 2022, order did not address either the proportionate penalties claim or the excessive sentencing

claim that he had raised in his second motion to amend his successive postconviction petition and

proposed amended petition which he had filed July 7, 2021. On November 1, 2022, the trial court

denied the defendant’s motion to file a successive postconviction petition raising the claims set

forth in the defendant’s second motion to amend his successive postconviction petition. The

defendant filed a notice of appeal from that order which was docketed in this court as No. 1-22-

1819. On April 14, 2022, this court granted the defendant’s motion to consolidate his appeals,

Nos. 1-22-0419 and 1-22-1819.

¶ 12 Although the defendant raised numerous claims in the proposed successive postconviction

petitions that he filed with his motions for leave to file on December 18, 2019, January 14, 2021,

and July 7, 2021, he raised no arguments in the brief which he filed in these consolidate appeals

other than that he “made a prima facie showing that his mandatory de facto life sentence is

unconstitutional as applied to him because his struggles with substance abuse and the violence and

neglect he experienced as a child made him functionally a juvenile at the time of his offense.”

Arguments not raised in an appellant’s opining brief are forfeited. See Ill. S. Ct. R. 341(h)(7) (eff.

Oct. 1, 2020); Vancura v. Katnis,

(2010). In this case, the defendant has

forfeited any argument as to the propriety of the trial courts orders as they relate to his claims that

his arrest was unconstitutional, that his trial counsel rendered ineffective assistance for failing to

file a motion to suppress his arrest, and that his appellate counsel on direct appeal rendered

ineffective assistance for failing to raise ineffective assistance of his trial counsel.

¶ 13 Under the Act, a defendant may raise claims that his conviction or sentence violates the

United States or Illinois Constitutions. People v. Edwards,

; see also People

v. Wimberly,

. The language of the Act and the cases interpreting it

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make clear that only a single postconviction proceeding is contemplated under the Act. See

Edwards,

. Issues not raised in an initial petition are waived and the bar to

successive petitions is relaxed only where the defendant can establish “cause and prejudice” for

failing to raise the claim earlier or where there has been a “fundamental miscarriage of justice”

based on actual innocence. Id., ¶¶ 21-23; see also People v. Robinson,

. The

defendant must make a prima facie showing of both cause and prejudice. People v. Bailey,

. “Both elements of the test must be met for a defendant to overcome section 122-

3’s waiver provision or to establish fundamental fairness for relaxing the res judicata doctrine.”

People v. Clark,

. The Act defines “cause” as “an objective factor that

impeded his or her ability to raise a specific claim during his or her initial post-conviction

proceedings.” 725 ILCS 5/122-1(f) (West 2020). The Act states that a defendant shows prejudice

by “demonstrating that the claim not raised during his or her initial post-conviction proceedings

so infected the trial that the resulting conviction or sentence violated due process.”

At the leave-

to-file stage, a defendant “‘is not required to make the “substantial showing” that will later be

required at a second-stage hearing after counsel is appointed.’” Wimberly,

(quoting People v. Walker,

). Instead, “‘leave of court

to file a successive postconviction petition should be denied only where it is clear from a review

of the petition and attached documentation that, as a matter of law, the petitioner cannot set forth

a colorable claim.’ ” Walker,

(quoting People v. Sanders,

). We review the denial of leave to file a successive postconviction petition de novo.

Robinson

.

¶ 14 In urging reversal of the circuit court’s order denying him leave to file a successive

postconviction petition, the defendant argues that his proposed successive petition made a prima

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facie showing of both cause and prejudice for having failed to raise his constitutional claims in his

initial postconviction petition. The defendant’s brief is a bit vague in places on the question of

whether his as applied challenge is being made under the provisions of the eighth amendment of

the United States Constitution (U.S. Const., anend. VIII) or the proportionate penalties clause of

the Illinois Constitution (Ill. Const. 1970, art. 1, ₰11) It is true that the defendant never referenced

the eighth amendment in his argument, only the proportionate penalties clause. However,

throughout the argument section of his brief, he states only that his mandatory de facto life sentence

is unconstitutional. It was not until the fourth page in the argument section that he first mentions

the proportionate penalties clause of the Illinois Constitution. We believe from a fair reading of

the defendant’s opening brief and reply brief that he is only arguing that his proposed successive

petition made a prima facie showing of both cause and prejudice for having failed to raise a

constitutional claim under the proportionate penalties clause of the Illinois Constitution in his

initial postconviction petition. However, to dispel any confusion as to the basis of his proposed

constitutional claim, we address briefly whether the defendant could state a colorable claim that

his de facto life sentence violated the eighth amendment to the United States Constitution.

¶ 15 In Miller v. Alabama,

(2012), the Supreme Court held that a sentence of

mandatory life without the possibility of parole for those under the age of 18 at the time of their

crimes violates the eighth amendment’s prohibition against cruel and unusual punishment. In

People v. Harris,

, our supreme court held that “for sentencing purposes, age 18

marks the present line between juveniles and adults.” Id. ¶ 61. Because the defendant in Harris

was over 18 at the time that he committed the crime for which he was sentenced, the supreme court

held that any challenge to his sentence under the eighth amendment necessarily failed. Id. In this

case, the defendant was 23 years old when he committed the murder for which was convicted and

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sentenced. Under the holding in Harris, he could not maintain a colorable claim that his de facto

life sentence violate the eighth amendment. As a consequence, we will address the defendant’s

arguments only in the context of a claim under the proportionate penalties clause of the Illinois

Constitution.

¶ 16 As to the cause prong of the cause and prejudice test applicable to a motion for leave to file

a successive postconviction petition, the defendant argues that the legal basis for his proportionate

penalties claim based on the holding in Miller v. Alabama,

(2012) and subsequent

decisions expanding the special protections afforded to juvenile and young-adult offenders at

sentencing (see People v. Harris,2018 IL 121 IL 121932; People v. Thompson,

)

did not exist when he filed his initial postconviction petition in 2007. He also argues that his

claim that his 45-year sentence was an unconstitutional de facto life sentence was not available to

him until the supreme court rendered its decision in People v. Buffer,

, which

established that a sentence in excess of 40 years is a de facto life sentence. Id. ¶ 40.

¶ 17 In Dorsey, the supreme court held that “Miller’s announcement of a new substantive rule

under the eighth amendment does not provide cause for a defendant to raise a claim under the

proportionate penalties clause.” People v. Dorsey,

; see also Wimberly,

. In Dorsey, the supreme court explained: “Illinois courts have long

recognized the differences between persons of mature age and those who are minors for purposes

of sentencing. Thus, Miller’s unavailability prior to *** [the date that the defendant filed his initial

postconviction petition] at best deprived defendant of ‘some helpful support’ for his state

constitutional law claim, which is insufficient to establish ‘cause.’” Id.; see also People v. Clark,

, ¶ 61.

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¶ 18 In his reply brief, the defendant argues that this court should reject the States Dorsey-based

argument that he cannot show cause for failing to raise his proportionate penalties claim in his

initial postconviction petition. In support of the argument, the defendant cites three cases: People

v. Chrockett,

, a case decided in the context of an initial postconviction

petition, not a successive postconviction petition; People v. Savage,

and

People v. Ashby,

, both of which were decided by this court before the

supreme court issued its decision in Dorsey. We elect to follow Dorsey as we must.

¶ 19 Next, the defendant argues that the supreme court’s recent decision in People v. Moore,

upon which the State relies is distinguishable. We disagree.

¶ 20 In Moore, the two defendants, Troy Moore and Marvin Williams, were both sentenced to

life imprisonment with no possibility of parole for separate murders committed when they were

19 years old. Id. ¶ 1. Both filed motions for leave to file a successive postconviction petition

raising claims that their discretionary life sentences violate both the eighth amendment to the

United States Constitution and the proportionate penalties clause of the Illinois Constitution. Id.

¶¶ 15, 25. Both motions were denied by the circuit court. The supreme court affirmed the denial,

stating that “ as Miller did not change the law applicable to young adults, it does not provide cause

for the proportionate penalties challenges advanced by Moore’s and William’s proposed

successive postconviction petitions.” Id. ¶ 42.

¶ 21 The defendant attempts to distinguish the holding in Moore based upon the fact that the

defendants in that case were given discretionary life sentences; whereas, he received a mandatory

de facto life sentence. We find the factual distinction irrelevant. As noted earlier, the supreme

court in Dorsey held that “Illinois courts have long recognized the difference between persons of

mature age and those who are minors for purposes of sentencing. Thus Millers’ unavailability

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prior to *** [the date that the defendant filed his initial postconviction petition] at best deprived

defendant of ‘some helpful support’ for his state constitutional law claim, which is insufficient to

establish ‘cause.’” Dorsey,

. That holding applies to both claims involving

discretionary life sentences and those involving a mandatory de facto life sentence; a life sentence

for a young adult is a life sentence no matter whether it is discretionary or mandatory.

¶ 22 For the reasons stated, we conclude that the defendant failed to satisfy the cause prong of

the cause and prejudice test applicable to a motion for leave to file a successive postconviction

petition. Based on our ruling on cause, we need not address the issue of whether the defendant

made a prima facie showing of prejudice. See Moore,

.

¶ 23 Affirmed.

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