2022 IL App (1st) 191911-U 

 THIRD DIVISION

June 15, 2022

No. 1-19-1911 

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 JUDICIAL DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Respondent-Appellee, ) Cook County.

) 

v. ) No. 02 CR 26277

) 

GARY PINKSTON, ) Honorable 

) Kenneth J. Wadas,

Petitioner-Appellant. ) Judge Presiding.

______________________________________________________________________________ 

JUSTICE ELLIS delivered the judgment of the court.

Justices McBride and Burke concurred in the judgment. 

ORDER

¶ 1 Held: Affirmed. Court properly denied leave to file successive postconviction petition. 

Petitioner could not establish cause for failing to raise proportionate-penalties 

claim in initial petition.

¶ 2 Petitioner Gary Pinkston was 20 years old when he shot and killed Michael Solomon. 

(The facts of the murder and trial, none of which bear repetition here, are discussed in our 

decision on direct appeal. See People v. Pinkston, No. 1-06-1638 (Jan. 13, 2010, unpublished 

order under Supreme Court Rule 23)). Defendant was convicted of murder and sentenced to 85 

years in prison.
No. 1-19-1911 

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¶ 3 In 2018, petitioner filed a successive post-conviction petition in which he raised, for the 

first time, as an-applied challenge to his sentence under the proportionate penalties clause of the 

Illinois Constitution. See Ill. Const. 1970, art. I, § 11. The crux of petitioner’s claim is that his de 

facto life sentence was imposed without the protections “for youthful offenders” established by 

Miller v. Alabama, 567 U.S. 460 (2012), and cases applying it. (Petitioner had filed his initial 

post-conviction petition in 2010, before Miller was decided.) The circuit court denied leave to 

file the successive petition.

¶ 4 To be granted leave to file a successive postconviction petition, among other things, a 

defendant must show “cause” for why he did not raise the claim in his first petition. 725 ILCS 

5/122-1(f) (West 2018). “Cause” in this context means an objective factor that prevented the 

defendant from raising a claim earlier—say, because the claim did not previously exist, but later 

case law created the claim. See id.; People v. Howard, 2021 IL App (2d) 190695, ¶¶ 20-21. 

¶ 5 Petitioner’s proportionate-penalties claim fails because he cannot establish that required 

“cause.” In People v. Dorsey, 2021 IL 123010, ¶ 74, a case decided after petitioner filed his 

opening brief and cited here by the State, our supreme court held that Miller did not provide 

“cause” for a proportionate-penalties claim to be raised, for the first time, in a successive postconviction petition:

“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. 

[Citation.] * * * 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 2012 at best deprived defendant of ‘some helpful support’ for his 

state constitutional law claim, which is insufficient to establish ‘cause.’ ” 
No. 1-19-1911 

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¶ 6 In his reply brief, petitioner argues that Dorsey is distinguishable. Here, petitioner notes, 

he faced a mandatory minimum sentence of 45 years and received an 85-year sentence, which 

would qualify as a de facto life sentence. In Dorsey, by contrast, the juvenile defendant was not

subject to a mandatory de facto life sentence, given the availability of good-time credits, and thus

Dorsey’s claim under the proportionate penalties clause was not “based specifically on the rule 

of Miller.” See id. ¶ 65.

¶ 7 The most obvious reason petitioner’s argument fails is that his claim is not “based 

specifically on the rule of Miller,” either. Petitioner here was 20 years old when he committed 

his offense, so Miller does not apply to him in the first instance. See People v. Harris, 2018 IL 

121932, ¶¶ 53-61. Indeed, petitioner’s claim relies not on Miller itself but rather Illinois case law 

that extends the reasoning of Miller beyond its original boundaries, recognizing that young adult 

offenders (to whom Miller does not apply) might still be able to avail themselves of the logic of 

Miller in challenging their life sentences under a different constitutional provision than the 

eighth amendment. See, e.g., People v. Thompson, 2015 IL 118151, ¶ 44; Harris, 2018 IL 

121932, ¶ 46; People v. Humphrey, 2020 IL App (1st) 172837, ¶ 28 (“In Harris, the court 

opened the door for an offender who was 18 or older to make an as-applied challenge under the 

proportionate penalties clause.”). 

¶ 8 But that case law did not create a new legal basis for petitioner’s proportionate-penalties

claim any more than Miller itself did. It merely added “helpful support” for a claim that already 

existed. See Dorsey, 2021 IL 123010, ¶ 74; People v. Hemphill, 2022 IL App (1st) 201112, ¶¶ 1, 

30-31. And that is why “reviewing courts have repeatedly concluded that Miller and its progeny 

do not provide petitioners seeking leave to file successive petitions with the requisite cause for 

challenging their sentences on proportionate penalties grounds.” People v. Peacock, 2022 IL 
No. 1-19-1911 

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App (1st) 170308-B, ¶ 20 (collecting cases).

¶ 9 The same is true here. Petitioner’s proportionate-penalties claim was available in 2010, 

when he filed his initial petition, so it could have been raised then—even if the case law 

admittedly has become more favorable to the claim in the intervening years. Defendant cannot 

establish cause under Dorsey and its progeny, and his claim thus fails as a matter of law.

¶ 10 CONCLUSION

¶ 11 For these reasons, we affirm the judgment of the circuit court.

¶ 12 Affirmed.