The trial court correctly determined that Kinberg did not breach the provisions of the parties' September 2000 settlement agreement relating to his 401(k) account. Under the plain meaning of those provisions, Kinberg was only obligated to "execute and consent to the entry" of a qualified domestic relations order (QDRO), not prepare one. Any obligation on Kinberg's part to prepare and submit a QDRO arose subsequently, in a March 2002 order, with which Kinberg complied, and which, after various challenges by plaintiff, resulted in the issuance of a QDRO in June 2002 and the distribution of plaintiffs share of the 401(k) plan in December 2002. Although the process took more than two years, it does not appear that the delay was caused by Kinberg, and no other basis appears for holding Kinberg responsible for the account's loss in value over this two-year period. Contrary to plaintiffs contention, the agreement did not provide that the 401(k) account was to be divided as of the agreement's date of execution, and, indeed, the agreement specifies no date of division whatsoever. Nor should the 401 (k) account be valued as of the date of the divorce, absent a provision to that effect in either the QDRO or the divorce judgment. Article XXV of the agreement, which requires the parties to execute, acknowledge, and deliver any documents that might be necessary to give the agreement full force and effect, does not avail plaintiff, as it is not clear that the documents that Kinberg purportedly failed to provide were necessary to give full force and effect to his obligation to execute and consent to the entry of a QDRO. Nor did Kinberg violate the agreement by investing the 401 (k) funds. The agreement plainly contemplated that he would continue investing the funds and did not obligate him to do so in any particular way.
The trial court also correctly determined that Kinberg did not violate the settlement agreement when, four years after its execution, he canceled plaintiffs health insurance coverage. The agreement required Kinberg to continue to provide plaintiff with the predivorce amount of health insurance "to the extent that [he] is able to [do so] without any additional cost to him[self]," and that within 30 days of the agreement's execution, he advise plaintiff "whether he is able to provide such insurance" and "provide [her] with all information necessary so she may confirm [his] advice in this regard." The trial court credited Kinberg's testimony that he so advised plaintiff within 30 days of agreement's execution, and no basis exists for disturbing that credibility determination. Article XXXIV of the agreement, which involves the addressing of notices required by the agreement, does not avail plaintiff, since the clause pertaining to medical insurance coverage does not require a written notice. Nor is it clear that the medical plan monthly contribution rate sheet that Kinberg admittedly provided to plaintiff was insufficient to confirm any "additional cost." That Kinberg voluntarily provided plaintiff with health insurance for four years after the agreement's execution is insufficient to show that he waived his right to cancel, and nothing in the agreement prohibited Kinberg from canceling plaintiffs health insurance in order to provide health insurance to his new wife.
With respect to plaintiffs claim against Bevans, plaintiff failed to show that she received less than what was due her under the agreement or that Bevans possessed any assets belonging to her ( see Ira E. Garr, PC. v Kinberg, 7 AD3d 453). Plaintiffs claim that she established an account stated, based on certain letters she wrote to Bevans regarding money Bevans was ostensibly holding for payment of a charging lien asserted by plaintiffs former attorney ( see id.), is improperly raised for the first time on appeal, and we decline to consider it.
We have considered and rejected plaintiffs other arguments.
rule, given its reliance on precedent and long-standing principles surrounding
voir dire. Thus, the
Gardner court stated that the holding of
Strain may be applied retroactively to cases on collateral review.
Gardner, 331 Ill. App. 3d at 367.
The State argues that, although Strain may have been doctrinally consistent with the rules regulating voir dire and with case law regarding public disapproval of gang membership, Strain was the first time this court had mandated gang-bias inquiry during voir dire based upon, not just an abuse of discretion, but a denial of the constitutional right to an impartial jury. The State argues this conclusion did not necessarily follow from this court's rules or existing case law.
This court has long recognized that the scope and extent of voir dire examination rests within the discretion of the trial court. People v. Lobb, 17 Ill. 2d 287, 300 (1959); People v. Buss, 187 Ill. 2d 144, 176 (1999); People v. Williams, 164 Ill. 2d 1, 16 (1994). Although Rule 431 requires the trial court to allow counsel to "supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of the examination by the court, the complexity of the case, and the nature of the charges," this court has held that the trial court retains discretion to determine what direct questioning will be allowed, as long as the court exercises its discretion in accordance with the requirements of the rule. See People v. Garstecki, 234 Ill. 2d 430 (2009). Indeed, this court in Garstecki even noted that it was not impossible to conceive of a case in which the trial court might properly conclude, based upon the factors cited above, that no attorney questioning should be permitted. Garstecki, 234 Ill. 2d at 444.
Defendant cites several cases that he believes support his contention that Strain did not announce a new rule. His reasoning is that these cases recognized the disfavor in which street gangs are held by the general public, directly leading, in his view, to this court's holding in Strain.
In People v. Jimenez, 284 Ill. App. 3d 908 (1996), the defendant was charged with murder. The shooting was gang-related and the State focused on gang affiliation as the motive for the murder. The defendant asked the trial court to question the individual members of the venire on whether the fact that the defendant was a member of a street gang would prevent them from giving him a fair trial. The trial court refused the question. On appeal, the defendant argued that the trial court committed reversible error by refusing to question the venire on the subject of gang affiliation. The appellate court reversed and remanded for a new trial. The court noted that the parties had cited no case requiring the trial court to question prospective jurors about biases against gang members. The court observed that in most Illinois cases, the trial court had permitted such questions to be asked. The court noted that gang membership is an area of potential bias due to a widespread prejudice against street gangs. Because the trial court failed to ask any questions concerning this bias, the defendant was deprived of the opportunity to exercise his peremptory challenges in an effective manner. Once the trial court decided to permit evidence of the defendant's gang affiliation, the trial court was under a "clear duty" to insure that the jury selected was free from prejudice against gangs. Jimenez, 284 Ill. App. 3d at 912. We note that Jimenez relied on a California case for this holding, noting that the question was one of first impression in Illinois. Jimenez, 284 Ill. App. 3d at 912.
In People v. Pogue, 312 Ill. App. 3d 719 (1999), the defendant was charged with shooting a member of a rival gang. The appellate court reversed and remanded for a new trial on the basis that the trial court had failed to question individual members of the venire concerning the defendant's right not to testify as required by People v. Zehr, 103 Ill. 2d 472 (1984). Because the issue was likely to recur on retrial, the appellate court also addressed the defendant's contention that the trial court erred by refusing to ask prospective jurors whether the defendant's gang affiliation would affect their ability to be fair and impartial. Relying on Jimenez, the appellate court held that the trial court should have questioned the venire concerning gang bias. Specifically the court noted that, while Jimenez does not impose an affirmative duty on the trial court to make gang bias inquiries sua sponte, "where an appropriate question is tendered prior to voir dire, and the circumstances of the case are such that fundamental fairness requires that the venire be probed on this issue, the refusal to do so constitutes reversible error." Pogue, 312 Ill. App. 3d at 727.
Defendant also cites People v. Cruz, 164 Ill. App. 3d 802 (1987). There, the trial court allowed the State to show the jury a documentary video concerning street gangs in an attempt to support its effort to establish a gang-related motive for the shooting. The victim claimed that he had been harassed by members of the defendant's gang to join the gang and that the shooting was part of an attempt to recruit him. The appellate court found the admission of the video to be highly inflammatory and prejudicial. The court noted that in Chicago there was a "`deep, bitter and widespread prejudice against street gangs.'" Cruz, 164 Ill. App. 3d at 812, quoting People v. Parrott, 40 Ill. App. 3d 328, 331 (1976).
Defendant also cites People v. Smith, 141 Ill. 2d 40, 58 (1990), a capital case involving extensive evidence of gang-related activity. In discussing this evidence and its relevance, this court noted that it has been recognized that, particularly in metropolitan areas, there may be strong prejudice against street gangs.
We note that neither Cruz nor Smith involved any issue concerning voir dire. Regarding Jimenez, the appellate court in Pogue recognized that Jimenez imposed no sua sponte duty on the trial court to question the venire regarding gang bias. Rather, Pogue noted that the thrust of Jimenez was that where gang-bias questions are submitted and "fundamental fairness" so dictates, a trial court is required to question potential jurors on gang bias. Pogue, 312 Ill. App. 3d at 727. This amounts to no more than saying that a trial court abuses its discretion in refusing to question the venire concerning gang bias in appropriate cases. These cases cannot be said to lead inevitably to the holding of Strain.
This court has previously held that a new requirement mandating certain questions during voir dire did not apply retroactively. In Zehr, this court held that it was error for the trial court to refuse to ask prospective jurors, upon the defendant's request, whether they understand and accept the following concepts: (1) the defendant is presumed innocent until proven guilty; (2) the defendant is not required to offer any evidence in his own behalf; (3) the defendant must be proved guilty beyond a reasonable doubt; and (4) the defendant's failure to testify in his own behalf cannot be held against him. Zehr, 103 Ill. 2d at 477. In Zehr, the State argued that because Supreme Court Rule 234 prohibited voir dire questions on matters of law or instructions, the trial court properly refused to ask the defendant's questions. This court rejected that argument, noting that the understanding of the four concepts was essential to the qualification of jurors in a criminal case. If a juror has an objection to any of these basic guarantees, the court opined, an instruction given at the end of the trial will have little curative effect. The court observed that each of the mandated inquiries goes to the heart of a particular bias or prejudice that would deprive a defendant of the right to a fair and impartial jury. The failure to ask such questions thus results in prejudicial error. Zehr, 103 Ill. 2d at 477-78.
Despite the importance of the questions mandated by Zehr, this court held in People v. Britz, 112 Ill. 2d 314, 318-19 (1986), a pre- Teague case, that the holding of Zehr was to be given only prospective effect because it represented a change in Illinois law. In support of this holding, the court cited Rule 234's prohibition of voir dire questions that; directly or indirectly concern matters of law or instructions and noted that Zehr represented a departure from that rule. Defendant here attempts to distinguish Britz by noting that while Zehr was contrary to supreme court rules, Strain was in accord with those rules. This claim is inaccurate. As previously noted, the conduct of voir dire has historically been left to the trial court. Strain represented a break from this precedent by removing the trial court's discretion where gang evidence will be integral to a defendant's trial. Rule 431 was adopted by this court to regulate voir dire examination of prospective jurors. That rule gives the trial court the primary discretion of conducting voir dire and for determining the extent and scope thereof. Strain, 194 Ill. 2d at 475-76. The holding of Strain, removing that discretion when gang evidence is to be integral to the trial, was not consistent with that rule.
In his argument that Strain did not announce a new rule, defendant relies heavily on Strain's recognition of the disfavor in which gangs are held by the general public and its citation of prior cases that had commented on this fact. However, it does not necessarily follow from this that Strain was a mere extension of this prior precedent. And even if Strain is viewed as an extension of prior precedent, this fact alone would not be enough to find that Strain did not announce a new rule. As we noted earlier, "the fact that a court says that its decision is within the `logical compass' of an earlier decision, or indeed that it is `controlled' by a prior decision, is not conclusive for purposes of deciding whether the current decision is a `new rule' under Teague." Butler, 494 U.S. at 415, 108 L. Ed. 2d at 356, 110 S. Ct. at 1217. Rather, the key to the determination of whether a new rule was announced is whether courts considering the defendant's claim at the time his or her conviction became final "would have felt compelled by existing precedent to conclude that the rule *** was required by the Constitution." Saffle v. Parks, 494 U.S. 484, 488, 108 L. Ed. 2d 415, 424, 110 S. Ct. 1257, 1260 (1990); People v. Morris, 236 Ill. 2d at 360.
Defendant has cited no case predating Strain that came to the conclusion that mandated questioning of the venire was required by the Constitution. The case that comes closest to doing so, Jimenez, relied on a California case for its holding. Jimenez, 284 Ill. App. 3d at 912-13. The fact is that, prior to Strain, as the State notes, there were very few subjects concerning which trial courts were required to question potential jurors. Some of those subjects included the Zehr factors ( Zehr, 103 Ill. 2d 472); views concerning the defense of insanity ( People v. Stack, 112 Ill. 2d 301 (1986)); racial bias in certain cases ( People v. Hope, 184 Ill. 2d 39 (1998)); abortion ( People v. Murawski, 2 Ill. 2d 143 (1954)); dram shop and temperance (Lavin v. People, 69 Ill. 303 (1873); Schneider v. Kirk, 83 Ill. App. 2d 170 11967)); and life-qualifying questions in capital cases ( People v. Buss, 187 Ill. 2d 144 (1999)). Instead, as we have noted, the scope of voir dire was committed in the vast majority of cases to the sound discretion of the trial court. For these reasons, at the time defendant's conviction became final, no court would have felt compelled by existing precedent to conclude that the rule announced in Strain was required by the Constitution. Thus, the conclusion is inescapable that Strain announced, a new rule.
Defendant, however, analogizes Strain to this court's decision in People v. Moore, 112 Ill. 2d 421 (1997). There, the issue was whether the decision in People v. Kilpatrick, 167 Ill. 2d 439 (1995), applied retroactively to the defendant's case. Kilpatrick held that section 5-8-1(c) of the Unified Code of Corrections (Code) prohibits a trial court from imposing a longer sentence on reconsideration, even if the aggregate period of imprisonment remains the same. Kilpatrick, 167 Ill. 2d at 446-47. The defendant in Moore had been given consecutive sentences. The appellate court vacated the sentences as improper and remanded for resentencing. The trial court resentenced the defendant to concurrent terms of imprisonment that equaled the combined length of his prior consecutive sentences. The defendant filed a postconviction petition challenging the sentences. This court held that Kilpatrick did not announce a new rule and was therefore applicable to cases on collateral review. In doing so, the court noted that a case does not announce a new rule if "` "`it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law'" [Citations.]'" Moore, 177 Ill. 2d at 431, quoting Penry v. Lynaugh, 492 U.S. 302, 314, 106 L. Ed. 2d 256, 274, 109 S. Ct. 2934, 2944 (1989). Moore concluded that a decision does not announce a new rule if it merely applies existing precedent to an analogous set of facts. Moore, 177 Ill. 2d at 431. The court noted that Kilpatrick had relied on the Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), which stated that due process may prohibit a judge from imposing a more severe sentence where a defendant has been convicted after a retrial in the absence of objective evidence of identifiable misconduct occurring after the time of the original sentencing. Section 5-8-1 of the Code was consistent with Pearce. Moore noted that this court followed Pearce in People v. Baze, 43 Ill. 2d 298 (1969). Moore noted further that the legislature had incorporated the Pearce and Baze decisions into section 5-5-4 of the Code (applicable in Moore), which prohibits a more severe sentence from being imposed on resentencing unless it is based on a defendant's conduct occurring subsequent to the original sentencing. Thus, Moore concluded that this had been the rule in Illinois for over 20 years. Kilpatrick merely applied this precedent to the facts of that case. As such, the rule enunciated in Kilpatrick was predicated on well-settled principles of law. Moore, 177 Ill. 2d at 432-33.
Moore is distinguishable from Strain. The holding of Kilpatrick was a mere extension of existing law. It was already well settled in Illinois that due process prohibited a judge from increasing a sentence upon resentencing unless justified by a defendant's conduct occurring after the original sentencing. In addition, the Illinois legislature had enacted section 5-5-4 of the Code, incorporating Pearce and Baze. Kilpatrick merely applied the then-existing precedent and statutory law to the set of facts in that case. Strain, on the other hand, was a clear break from precedent. Nothing in the case law foretold the holding in Strain. Comments made by the dissenting justices in Strain confirm this fact. Justice Heiple noted in his dissent that this court had consistently held that potential jurors may not be asked about anticipated responses to specific items of evidence. Calling Strain's holding "revolutionary," he worried that the court was setting a troubling precedent which would result in future litigants requesting voir dire on any potential bias merely by showing that the evidence on a particular subject will play a major role in the trial and that segments of our society view the subject with considerable disfavor. He expressed concern that such mandated questioning of the venire would be counterproductive and might corrupt a jury by prematurely exposing potential jurors to evidence. Strain, 194 Ill. 2d at 483-84 (Heiple, J., dissenting, joined by Bilandic, J.).
Defendant, however, maintains that there is a difference between a new rule and a "change" in the law and that Strain represents the latter, thus allowing him to avoid the bar of res judicata. In making this argument, defendant relies primarily on Moore and Kilpatrick. Although he agrees that Kilpatrick applied existing precedent and statutory law to the facts of that case, he argues that it nonetheless changed the law, allowing for retroactive application. Defendant points to the fact that the trial court and the appellate court in Kilpatrick had rejected Kilpatrick's claim. Defendant also notes that, prior to this court's Kilpatrick decision, the appellate court in People v. Todd, 263 Ill. App. 3d 435 (1994), reached a contrary conclusion to that reached by this court in Kilpatrick. Defendant further asserts that because no lower court would reach this contrary conclusion subsequent to this court's Kilpatrick decision, Kilpatrick's "clarification of what the law required represented a change from the previous state of affairs."
We disagree with defendant's argument. This court in Moore stated that the appellate court's decision in Todd was not a reasonable application of existing precedent and that it conflicted with Pearce and with the plain language of sections 5-8-1 and 5-5-4 of the Code. Moore, 177 Ill Ill. 2d at 435-36. Further, that post- Kilpatrick decisions of the appellate court would not reach the contrary position of Todd merely reflects the fact that Kilpatrick, as a decision of this court, is binding on all lower courts. See People v. Artis, 232 Ill. 2d 156, 164 (2009).
We therefore conclude that this court's decision in Strain announced a new constitutional rule of criminal procedure. Under Teague, a new rule may not be applied retroactively except in two limited circumstances: (1) if the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe; or (2) if the rule is a watershed rule of criminal procedure, requiring the observance of those procedures that are implicit in the concept of ordered liberty. Teague, 489 U.S. at 311, 313, 103 L. Ed. 2d at 356, 358, 109 S. Ct. at 1076, 1077. The first exception is obviously not applicable. As to the second exception, we note the Supreme Court stated in Teague that it should be limited to those new procedures without which the likelihood of an accurate conviction is seriously diminished. Teague, 489 U.S. at 313, 103 L. Ed. 2d at 358, 109 S. Ct. at 1077. At oral argument in this case, counsel for defendant candidly acknowledged that neither exception applies to Strain and we agree. Thus, the holding of Strain is not retroactive and does not apply to cases on collateral review.
Because Strain announced a new rule and is not to be applied retroactively to collateral proceedings, defendant's postconviction petition is barred by res judicata. A postconviction proceeding permits review of constitutional issues that were not and could not have been adjudicated on direct appeal. People v. Pitsonbarger, 205 Ill. 2d 444, 455-56 (2002). Thus, issues that were decided on direct appeal are barred from consideration by the doctrine of res judicata. People v. Towns, 182 Ill. 2d 491, 502 (1998). Here., absent the applicability of Strain, the claim raised by defendant in his postconviction petition is the same one raised and decided in his direct appeal. Thus, res judicata bars defendant's petition. Due to our disposition of this case, we need not address the remainder of defendant's arguments.
CONCLUSION
For the reasons stated, we hold that this court's decision in Strain announced a new constitutional rule of criminal procedure and that neither of the Teague exceptions to non retroactivity apply. Therefore, the holding of Strain does not apply retroactively to cases on collateral review. Defendant's postconviction petition is thus barred by res judicata. In addition, we overrule the appellate court's decision in People v. Gardner, 331 Ill. App. 3d 358 (2002), to the extent that case is inconsistent with our holding today.
The judgment of the appellate court is affirmed.
Affirmed.
JUSTICE FREEMAN, specially concurring:
In its opinion, the majority concludes that our prior decision in People v. Strain, 194 Ill. 2d 467 (2000), announced a new constitutional rule of criminal procedure and, therefore, may not be applied retroactively. Although I have no quarrel with the majority's holding on this issue, I believe my colleagues have erred by not first addressing a threshold, procedural question: whether Sanders' postconviction petition was timely filed. The appellate court, using an incorrect standard, determined that Sanders' petition was untimely. Normally, such a holding ends the case, as the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2000)) forbids any proceedings filed beyond the time periods it sets forth. However, the appellate court nevertheless reached the merits of the substantive issue. In their opinion, my colleagues do not address this threshold procedural issue, analyzing only Sanders' substantive claim. By doing so, this court creates confusion for the bench and bar in several respects: not only does the court call into question the proper analytical sequence used to review such claims, the court also leaves standing a published appellate court opinion that applies an incorrect standard to assess the timeliness of Sanders' petition. Because today's opinion leaves these matters unaddressed, I am compelled to write separately.
Section 122-1(c) of the Act ( 725 ILCS 5/122-1(c) (West 2000)) sets forth the specific time period within which a petitioner shall initiate a postconviction proceeding. At the time defendant filed his petition, the Act provided:
"No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for the filing of the defendant's brief with the Illinois Supreme Court if no brief is filed) or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence."
Thus, the General Assembly has not only established a clear framework within the Act for assessing the timeliness of a postconviction petition, but also has specified the test to be used to excuse a petitioner's noncompliance with these requirements: a petition filed outside the delineated time period is considered untimely unless "the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 LLCS 5/122-1(c) (West 2000); see also People v. Rissley, 206 Ill. 2d 403, 420 (2003); People v. Pitsonbarger, 205 Ill. 2d 444, 456 (2002).
The appellate court, despite acknowledging that the clear language of section 122-1(c) mandates the use of the culpable negligence standard to assess the timeliness of Sanders' initial postconviction petition, instead applied the cause-and-prejudice standard set forth in Pitsonbarger which is used to determine the timeliness of successive postconviction petitions. In applying this heightened standard, the appellate panel reasoned that where a "defendant seeks in the first instance to file an untimely postconviction petition because of a change in the law that occurred after the filing deadline had passed," this is "analogous to the situation in which a defendant has already filed an unsuccessful postconviction petition, but seeks to file a successive postconviction petition because of a change in the law that occurred after the rejection of his first petition." 393 Ill. App. 3d at 171-72. This reasoning is without support and in error.
Section 122-1(f) was added to the Act in 2004. and codified the holding of Pitsonbarger. By its plain language, section 122-1(0 applies only to successive postconviction petitions, and provides that a successive petition may be filed only upon leave of court where "`a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure." 725 ILCS 5/122-1(f) (West 2004).
As this is the first postconviction petition filed by Sanders, both the Act and our case law make it clear that challenges to timeliness must be evaluated under the culpable negligence standard and not the more stringent cause-and-prejudice test. The appellate court ignored the distinction between initial and successive postconviction petitions, which mandates that each type of petition be evaluated under different analytical frameworks. In addition, the appellate panel's holding runs counter not only to our long-held view that the Act in general must be "`liberally construed to afford a convicted person an opportunity to present questions of deprivation of constitutional rights'" ( Rissley, 206 Ill. 2d at 421, quoting People v. Correa, 108 Ill. 2d 541, 546 (1985)), but also that the specific exception contained in section 122-1(c) allowing a petitioner to file an otherwise-untimely petition operates as a "`special "safety valve"` in the Act." Rissley, 206 Ill. 2d at 420, quoting People v. Bates, 124 Ill. 2d 81, 88 (1988).
In light of the above, I cannot understand why my colleagues do not address this threshold issue and clarify that the appellate court used the wrong standard. The majority's silence on this issue is even more disturbing in light of the concession made by the State in its brief to this court that the appellate court's holding with respect to timeliness does "not find support in the Act," and that the applicable timeliness standard in this appeal is one of culpable negligence. Further, during oral argument, several members of this court repeatedly questioned the parties concerning the timeliness issue and the manner in which it was handled by the appellate panel. Counsel for both the State and petitioner agreed that the culpable negligence standard applies in this case, and that the appellate court erred in employing the cause-and-prejudice test.
It is my view that when the correct standard is applied to Sanders' postconviction petition, the delay in filing was not due to his culpable negligence. This court has defined culpable negligence as "`something greater than ordinary negligence'" and "`akin to recklessness.'" Rissley, 206 Ill. 2d at 420, quoting People v. Boclair, 202 Ill. 2d 89, 108 (2002). Sanders had argued on direct appeal that the circuit court's voir dire was deficient and denied him his constitutional right to a fair and impartial jury by failing to question the jury regarding potential gang bias. See 393 Ill. App. 3d at 160. Because this argument was rejected on direct appeal, Sanders was barred by res judicata from re-raising it in a postconviction petition. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). As my colleagues hold today, this court's decision in Strain announced a new constitutional rule of criminal procedure which impacted defendant's ability to once again raise this issue in post-conviction proceedings. Thus, it was only after Strain was decided that Sanders was able to resurrect the issue of inadequate voir dire without being barred by res judicata.
Here, Sanders' petition for leave to appeal to this court with respect to his direct appeal was denied on April 2, 1997 ( People v. Sanders, 172 Ill. 2d 563 (1997)), and the six-month statutory postconviction period following that date expired on October 2, 1997. Since he was sentenced on May 4, 1994, the three-year period following that date expired on May 4, 1997. Therefore, under the applicable version of section 122-1(c), Sanders' post-conviction petition was due on May 4, 1997, the earlier of the two dates. We decided Strain on November 16, 2000, and Sanders filed the instant postconviction petition exactly one year later, on November 16, 2001. Under these facts, I conclude that Sanders' delay in filing was not due to his culpable negligence, as he reasonably pursued the voir dire issue again after the new rule in Strain was announced. I note that the Act does not specify an additional time period, after the expiration of the normal filing period, during which a petitioner may be found culpably negligent in filing a postconviction petition based upon a change in the law. In addition, our case law has not squarely addressed this issue. We have, however, traditionally relied upon federal case law in interpreting and applying the Act. People v. Hodges, 234 Ill. 2d 1, 12 (2009). In Dodd v. United States, 545 U.S. 353, 357, 162 L. Ed. 2d 343, 349, 125 S. Ct. 2478, 2481-82 (2005), the Supreme Court held that 28 U.S.C. 2255, ¶ 16(3) establishes that a federal prisoner may file a motion to vacate, set aside or correct his sentence within one year from the date on which the right he asserts was newly recognized by the Court. Relying upon Dodd, there is no question that, at a minimum, Sanders' petition filed one year after Strain was decided was not untimely.
Accordingly, after having survived this threshold procedural inquiry, it only then becomes appropriate to examine the substantive issue of whether Strain applied retroactively to Sanders' case. As stated, I am in agreement with my colleagues' holding that Strain represents a new constitutional rule of criminal procedure that is not to be retroactively applied.
JUSTICE BURKE joins in this special concurrence.