1 

2021 IL App (5th) 170244-U 

NO. 5-17-0244 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________ 

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

 ) Circuit Court of

 Plaintiff-Appellee, ) Jefferson County. 

 ) 

v. ) No. 97-CF-302 

 ) 

CHARLES BRUCE THOMAS, ) Honorable 

 ) Jerry E. Crisel, 

 Defendant-Appellant. ) Judge, presiding.

________________________________________________________________________ 

 JUSTICE WELCH delivered the judgment of the court.

 Justices Barberis and Wharton concurred in the judgment.

 

 ORDER 

¶ 1 Held: The judgment of the circuit court dismissing the defendant’s amended 

successive postconviction petition at the second stage of proceedings is 

affirmed where the claims raised therein were procedurally defaulted. 

¶ 2 The defendant, Charles Bruce Thomas, appeals the dismissal of his amended 

successive postconviction petition. On appeal, he argues, inter alia, he received ineffective 

assistance of counsel in that his trial counsel was an out-of-state attorney and was not 

licensed to practice law in Illinois. For the following reasons, we affirm.

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).

NOTICE

Decision filed 04/15/21. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

¶ 3 BACKGROUND 

¶ 4 In November 1997, Thomas was charged with two counts of first degree murder for 

the death of Anissa Green. Attorneys Terry Kaufman and Charles M. Shaw, a Missouri 

attorney who was not licensed in Illinois, entered their appearance for Thomas. For reasons 

which are not apparent from the record attorney Kaufman did not participate in the case 

after the voir dire. Following a September 1998 jury trial, Thomas was found guilty of both 

counts. At the sentencing hearing, the State noted that attorney Kaufman had not been 

involved in the case since before the voir dire and wanted to “make sure that there’s a 

formal order” admitting attorney Shaw pro hac vice. The trial judge recalled entering such 

an order but stated that “if in looking through the record there has not been an order entered 

of record, the Court will enter that order nunc pro tunc to the date that the Entry of 

Appearance of Mr. Shaw and Mr. Kaufman was filed.” Thomas was sentenced to two 

concurrent 60-year terms of imprisonment. That same day the trial court entered a docket 

order nunc pro tunc finding that on November 26, 1997, attorney Shaw had been granted 

leave to appear pro hac vice. 

¶ 5 Thomas’s convictions were affirmed on appeal. People v. Thomas, No. 5-99-0220 

(2000) (unpublished order under Illinois Supreme Court Rule 23). On December 27, 2000, 

Thomas filed a postconviction petition arguing that the evidence was insufficient, and that 

attorney Shaw had provided ineffective assistance by failing to pursue an involuntary 

manslaughter defense. Counsel was appointed and filed an amended postconviction 

petition. Thomas subsequently filed a motion to dismiss counsel and to proceeded pro se. 

Following a hearing on December 9, 2002, the court granted Thomas’s motions to dismiss 
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appointed counsel, leave to proceed pro se, and leave to file an amended postconviction 

petition. Thomas thereafter filed pro se a second amended postconviction petition arguing 

that trial counsel was ineffective for failing to file a motion to suppress evidence seized 

from Thomas’s home, that the trial court erred in refusing to give an instruction on the 

lesser-included offense of involuntary manslaughter, that he was denied a fair trial when 

the State was permitted to amend the indictment during the trial to add an allegation that 

Thomas had killed Green by forcing her to ingest a lethal dose of cocaine, and that appellate 

counsel was ineffective for failing to raise these issues on direct appeal. The State filed a 

motion to dismiss the second amended postconviction petition. Following an April 7, 2003, 

hearing, the trial court granted the State’s motion and dismissed Thomas’s second amended 

petition for postconviction relief. We affirmed. People v. Thomas, No. 5-03-0256 (2004) 

(unpublished order under Illinois Supreme Court Rule 23).

¶ 6 On February 13, 2007, Thomas filed a petition for relief from judgment pursuant to 

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)). The trial 

court recharacterized the petition as a successive postconviction petition and summarily 

dismissed it. We affirmed. People v. Thomas, No. 5-07-0486 (2010) (unpublished 

summary order under Illinois Supreme Court Rule 23(c)). 

¶ 7 On December 3, 2010, Thomas filed another petition for relief from judgment, 

which the trial court denied sua sponte. We affirmed. People v. Thomas, 2013 IL App (5th) 

110292-U. On May 7, 2013, while his appeal in No. 5-11-0292 was pending, Thomas filed 

yet another petition for relief from judgment, which the trial court dismissed as untimely.

We dismissed the appeal for want of jurisdiction, noting that the trial court had vacated the 
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order of dismissal and that the judge had recused herself the day before Thomas filed his 

notice of appeal. People v. Thomas, No. 5-13-0375 (2014) (unpublished summary order 

under Illinois Supreme Court Rule 23(c)). On August 13, 2013, a different judge again 

dismissed Thomas’s postjudgment petition as untimely and we affirmed. People v. 

Thomas, 2014 IL App (5th) 130529-U. 

¶ 8 On March 25, 2014, Thomas filed a motion for leave to file the successive 

postconviction petition at issue in this appeal. The circuit court granted leave and appointed 

attorney Paige Clark Strawn to represent Thomas. Thomas subsequently filed a motion

seeking to waive counsel and attorney Strawn filed a motion seeking leave to withdraw as 

counsel, alleging that there had been a breakdown in the attorney/client relationship, and 

that Thomas wanted Strawn to withdraw and to proceed pro se. Following a hearing at 

which Thomas requested standby counsel, the court granted attorney Strawn’s motion to 

withdraw and advised Thomas that it would appoint another attorney to represent him.

Attorney Scott Quinn was appointed to represent Thomas. At a subsequent hearing, Quinn 

advised the court that Thomas was concerned that Quinn was unwilling to raise certain 

issues. In response to the court’s inquiry, Thomas proposed that he proceed pro se with 

Quinn as standby counsel. The court agreed. 

¶ 9 On April 1, 2016, Thomas filed pro se an amended successive postconviction 

petition in which he argued (1) that he was denied the effective assistance of counsel 

because attorney Shaw was not licensed to practice law in Illinois; (2) that attorney Shaw 

failed to comply with Illinois Supreme Court Rule 707 (eff. July 1, 1992), which allows 

out-of-state attorneys to appear as counsel and to provide legal services; (3) that the trial 
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court erred in entering an order nunc pro tunc granting attorney Shaw pro hac vice

admission; (4) that attorney Shaw provided ineffective assistance by failing to argue that 

Thomas’s convictions were void because he had been represented at trial by a person who 

was not licensed to practice law in Illinois; (5) that he was denied the effective assistance 

of counsel where trial counsel failed to “seriously” challenge the trial court’s overruling 

his objection to the State’s motion to amend the indictment; (6) that counsel was ineffective 

for failing to offer testimony from a pathologist to counter testimony from the State’s 

pathologist regarding when cocaine was given to Green; (7) that counsel was ineffective 

for failing to challenge the veracity of the affidavit used to obtain the search warrant for 

his residence; (8) that counsel was ineffective for failing to challenge the veracity of the 

affidavit used to obtain the search warrant for his vehicle; (9) that the trial court allowed 

attorney Shaw to represent him at trial knowing that he was not licensed in Illinois; (10) the 

State failed to report Shaw’s unauthorized practice of law to the Attorney Registration and 

Disciplinary Commission (ARDC); (11) that counsel was ineffective for failing to tender 

an instruction on the lesser-included offense of aggravated battery; (12) that appellate 

counsel rendered ineffective assistance by failing to argue that the trial court erred in 

denying his request for a lesser-included offense of manslaughter; (13) that appellate 

counsel rendered ineffective assistance by failing to argue that the trial court erred in 

denying his request for a continuance; (14) that appellate counsel rendered ineffective 

assistance by failing to argue all of the claims above; (15) that postconviction counsel had 

provided unreasonable assistance for failing to raise the aforementioned claims; and 

(16) that the cumulative effect of all of these errors denied him due process. The State 
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responded with a motion to dismiss, arguing that all of Thomas’s claims were either barred 

by res judicata or could have been raised on direct appeal or in his prior collateral attacks 

on his conviction. Following a hearing, the trial court granted the State’s motion to dismiss.

Thomas appeals. 

¶ 10 ANALYSIS 

¶ 11 On appeal, Thomas argues that the trial court erred in dismissing his amended 

successive postconviction petition (1) because attorney Shaw was not licensed to practice 

law Illinois nor granted permission to appear pro hac vice under Rule 707 prior to 

representing him in his trial; (2) in refusing to relax the waiver rules applicable to 

postconviction petitions regarding the licensing issue; (3) because he made a substantial 

showing of actual innocence; (4) because he made a substantial showing of a constitutional 

violation to warrant a third-stage evidentiary hearing; and (5) because the postconviction 

court did not apply a cause-and-prejudice test to each individual claim of his amended 

successive postconviction petition.

¶ 12 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) 

allows state prisoners to “assert that their convictions were the result of a substantial denial 

of their rights under the United States Constitution or the Illinois Constitution.” People v. 

Coleman, 183 Ill. 2d 366, 379 (1998). The Act provides a three-stage process for 

adjudicating postconviction petitions. People v. Tate, 2012 IL 112214, ¶ 9. At the first 

stage, the circuit court has 90 days to examine the petition and to determine, without input 

from the State, whether it is frivolous and patently without merit and, if so, to summarily 

dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2014). If the court does not summarily dismiss 
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the petition it moves to second-stage proceedings. People v. Hodges, 234 Ill. 2d 1, 10 

(2009). At the second stage of proceedings, the State files an answer to the petition or a 

motion to dismiss. Id. at 10-11. When confronted with a motion to dismiss a postconviction 

petition, “the circuit court is concerned merely with determining whether the petition’s 

allegations sufficiently demonstrate a constitutional infirmity which would necessitate 

relief under the Act.” Coleman, 183 Ill. 2d at 380. At this stage of the proceedings, the 

circuit court is not to engage in any fact finding. Id. at 380-81. All facts not rebutted by the 

record are accepted as true. People v. Hall, 217 Ill. 2d 324, 334 (2005). A third-stage 

“hearing is required whenever the petitioner makes a substantial showing of a violation of 

constitutional rights.” Coleman, 183 Ill. 2d at 381. We review the dismissal of a 

postconviction petition de novo. Id. at 387-89. 

¶ 13 Section 122-3 of the Act, which provides that any claim not raised in the original or 

an amended petition is forfeited (725 ILCS 5/122-3 (West 2014)), contemplates the filing 

of only one postconviction petition. People v. Evans, 186 Ill. 2d 83, 89 (1999). All issues 

that were decided in the original postconviction proceeding are barred by the doctrine of 

res judicata, and all issues that could have been raised in the original postconviction 

proceeding, but were not, are forfeited. People v. Holman, 2017 IL 120655, ¶ 25. The 

procedural bar of forfeiture is not merely a rule of judicial administration; it is an express 

statutory requirement under the Act. 725 ILCS 5/122-3 (West 2014). There are two bases 

upon which the bar against successive postconviction petitions will be relaxed. People v. 

Edwards, 2012 IL 111711, ¶ 21. The first is the cause-and-prejudice test enunciated in

People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002), and codified in section 122-1(f) of the 
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Act, which provides that only one postconviction petition may be filed without leave of 

court and that leave may be granted only where the petitioner demonstrates cause for failing 

to raise the claims in question in the initial postconviction petition and prejudice results 

from that failure. 725 ILCS 5/122-1(f) (West 2014). Section 122-1(f) further provides that 

to demonstrate cause, a petitioner must identify an objective factor that prevented him from 

raising the claim in his initial postconviction proceeding and that to demonstrate prejudice, 

the petitioner must demonstrate that the claim so infected the proceeding that the resulting 

conviction or sentence violated due process. Id. This is a higher standard than the frivolous 

and patently without merit standard used to determine whether a postconviction petition 

should be dismissed at the first stage. Id. 

¶ 14 The second basis for relaxing the bar against successive postconviction petitions is 

the “fundamental miscarriage of justice” exception, which requires the petitioner to show 

actual innocence. Edwards, 2012 IL 111711, ¶ 24. A petitioner seeking to file a successive 

postconviction petition based on actual innocence need not show cause and prejudice, but 

the claim must be based on newly discovered evidence which is of such conclusive 

character that it would probably change the result on retrial. People v. Ortiz, 235 Ill. 2d 

319, 333 (2009).

¶ 15 “When a defendant is granted leave to file a successive postconviction petition, the 

petition is effectively advanced to the second stage of postconviction proceedings.” People 

v. Jackson, 2015 IL App (3d) 130575, ¶ 14. The State may seek a dismissal thereof on any 

grounds, including the defendant’s failure to prove cause and prejudice for not having 
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raised the claims in the initial postconviction petition. People v. Bailey, 2017 IL 121450, 

¶ 26. 

¶ 16 Attorney Shaw

¶ 17 We address Thomas’s first, second, and fourth claims together because they are 

interrelated. Thomas argues that he was denied the effective assistance of counsel where 

attorney Shaw was not licensed to practice law in Illinois and his admission pro hac vice

was improper. Thomas contends that these claims were not raised on direct appeal because

appellate counsel provided ineffective assistance, and that they were not raised in any of 

the previous collateral attacks because he first learned that Shaw was not licensed to 

practice law in Illinois on November 14, 2012, when, in response to his inquiry, he received 

a letter from the ARDC stating that attorney Shaw had never been admitted to practice law 

in Illinois. Citing People v. Brigham, 151 Ill. 2d 58 (1992), Thomas argues that appellate 

counsel’s failure to raise the issue on appeal should not result in forfeiture.

¶ 18 In Brigham, the defendant was convicted of numerous drug offenses and of unlawful 

possession of a firearm. His convictions were upheld on appeal. The defendant 

subsequently filed a postconviction petition arguing, inter alia, that he had been denied his 

right to the effective assistance of counsel because, unbeknownst to him, trial counsel was 

not on the master roll of attorneys at the time of trial, having been removed for failing to 

pay his annual registration dues. The circuit court dismissed the defendant’s postconviction 

petition without an evidentiary hearing, finding that the defendant had forfeited this claim 

by failing to raise it on direct appeal. The court further found that forfeiture aside, trial 

counsel’s absence from the master roll of attorneys did not result in ineffective assistance 
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of counsel. Id. at 59. The appellate court reversed, finding that it would be fundamentally 

unfair to apply the waiver rule in this situation, and that the defendant had been denied his 

right to counsel because of trial counsel’s having been removed from the master roll of 

attorneys prior to representing the defendant. Id. at 59-60. Our supreme court agreed that 

application of the waiver rule would be fundamentally unfair but found that the defendant 

had not been denied his right to the effective assistance of counsel. Id. at 60. The court 

reasoned that it could be assumed from trial counsel’s admission to the bar that counsel 

had the training and knowledge to effectively represent the defendant notwithstanding 

counsel’s failure to pay his registration fee. Id. at 70-71. 

¶ 19 This court followed Brigham in People v. Lopez, 242 Ill. App. 3d 160, 170 (1993).

The defendant in Lopez was convicted of several drug offenses and sentenced to six years’ 

imprisonment. On appeal, he argued, inter alia, that he was denied the effective assistance 

of counsel because counsel was not licensed to practice law in Illinois. We first considered 

whether he forfeited this issue by failing to raise it in a posttrial motion. We found that 

although failing to raise an issue in a posttrial motion generally waives that issue on appeal, 

claims that are not generally raised in a posttrial motion, such as ineffective assistance of 

counsel, are an exception to the waiver rule. Id. at 162. 

¶ 20 Turning to the merits of the defendant’s claim, we began by noting that counsel’s 

entry of appearance indicated that he had filed an application for leave to proceed 

pro hac vice, but neither the application nor the order granting leave appeared in the record.

Following Brigham, however, we concluded that the defendant could not establish 
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ineffective assistance of counsel simply because counsel was not licensed in Illinois and 

did not receive permission to proceed pro hac vice. Id. at 170. 

¶ 21 With respect to the forfeiture issue, Brigham and Lopez are readily distinguishable.

Initially, we note that the circuit court’s order granting attorney Shaw leave to appear 

pro hac vice renders Shaw’s lack of Illinois licensure irrelevant. That Thomas did not learn 

that Shaw was not licensed in Illinois until 2012 is likewise irrelevant. Thomas contends 

that the circuit court erred in granting Shaw leave to proceed pro hac vice because Shaw 

did not comply with Rule 707, which allows out-of-state attorneys to appear as counsel and 

to provide legal services. The nunc pro tunc order granting Shaw permission to represent 

Thomas pro hac vice was entered on November 8, 1998. Thus, the fact that Shaw had been 

granted permission to appear pro hac vice was a matter of record even before Thomas’s 

direct appeal, and any deficiency in Shaw’s pro hac vice admission could have been 

discovered through the exercise of due diligence. Thomas argues that the failure to raise 

this issue on direct appeal was the result of ineffective assistance of appellate counsel.

Although ineffective assistance of appellate counsel would excuse his failure to raise this 

claim on direct appeal (Pitsonbarger, 205 Ill. 2d at 456), Thomas did not raise this issue in 

his original or first successive postconviction petition. Unlike Brigham and Lopez, this case 

involves a successive postconviction petition. As noted above, the Act specifically provides 

that any claim not raised in the original or an amended petition is forfeited. 725 ILCS 

5/122-3 (West 2014). In the context of a successive postconviction petition, the procedural 

bar of forfeiture is not merely a rule of judicial administration; it is an express statutory 

requirement which will be relaxed only if the defendant can meet the cause-and-prejudice 
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test. Pitsonbarger, 205 Ill. 2d at 458-59. Thomas offers no reason for failing to raise this 

issue in his initial or first successive postconviction petition nor does he explain how 

Shaw’s allegedly improper pro hac vice admission prejudiced him. Consequently, we find 

that the circuit court did not err in finding Thomas’s claims regarding Shaw’s lack of 

Illinois licensure and allegedly improper pro hac vice admission forfeited.

¶ 22 Forfeiture aside, Thomas failed to demonstrate a substantial denial of his right to 

the effective assistance of counsel based on attorney Shaw’s lack of Illinois licensure or 

allegedly improper pro hac vice admission. Brigham and Lopez establish that a defendant 

is not denied the effective assistance of counsel merely because his attorney was not 

licensed in Illinois or not properly granted permission to proceed pro hac vice. 

¶ 23 Actual Innocence 

¶ 24 Thomas next argues that he was entitled to an evidentiary hearing on his claim that 

trial counsel was ineffective for failing to tender an instruction on the lesser-included 

offense of aggravated battery because this claim inferred a claim of actual innocence to 

murder. We disagree.

¶ 25 “[T]he due process clause of the Illinois Constitution affords postconviction 

petitioners the right to assert a freestanding claim of actual innocence based on newly 

discovered evidence.” Ortiz, 235 Ill. 2d at 331-32. To prevail on a claim of actual innocence 

the evidence must be (1) newly discovered, (2) material and not cumulative, and, most 

importantly, (3) of such conclusive character that it would probably change the result on 

retrial. People v. Robinson, 2020 IL 123849, ¶ 47. Newly discovered evidence is evidence 

that the defendant discovered after and that he or she could not have discovered earlier 
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through the exercise of due diligence. Id. Evidence is material if it is relevant and probative 

of the defendant’s innocence; evidence is noncumulative if it adds to the evidence the 

factfinder heard at trial. Id. This argument fails for numerous reasons.

¶ 26 The “newly discovered evidence” that Thomas contends supports his claim of actual 

innocence is the 2012 ARDC letter stating that attorney Shaw was not licensed in Illinois.

As noted above, that Shaw was not licensed in Illinois is irrelevant because he was granted 

permission to appear pro hac vice, and even assuming, arguendo, that such permission was 

improperly granted, it does not establish that Shaw rendered ineffective assistance. This 

“evidence” is not material to the question of whether Thomas was guilty of murder or any 

other offense, and it would not change the result on retrial.

¶ 27 Cause and Prejudice: Individual Claims 

¶ 28 Lastly, Thomas argues that the circuit court erred by not applying the cause-andprejudice test to each of the individual claims of his amended successive postconviction 

petition. The record refutes this claim. In its order dismissing Thomas’s amended 

successive postconviction petition the court specifically found that Thomas “has not 

alleged any facts that would demonstrate the level of ‘cause’ by which he could avoid the 

waiver issue on any issue.” (Emphasis added.) The record supports the circuit court’s 

determination that Thomas failed to demonstrate cause as to any issue raised in the 

amended successive postconviction petition. 

¶ 29 As noted above, section 122-3 of the Act provides that “[a]ny claim of substantial 

denial of constitutional rights not raised in the original or an amended petition is waived.” 

725 ILCS 5/122-3 (West 2014). Where, as here, the court grants a defendant leave to file a 
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successive postconviction petition, the petition is effectively advanced to the second stage 

of postconviction proceedings and the State may seek a dismissal thereof on any grounds, 

including the defendant’s failure to prove cause and prejudice for not having raised the 

claims in the initial postconviction petition. Bailey, 2017 IL 121450, ¶ 26. 

¶ 30 Although each claim in Thomas’s amended successive postconviction petition 

contains an assertion which he refers to as “cause,” these assertions are merely statements 

regarding the merits of the individual claim. What Thomas did not do with respect to any 

claim is identify an objective factor external to the defense that prevented him from raising 

that claim in the proceedings on his initial postconviction. By failing to do so he forfeited 

these claims. 

¶ 31 Because Thomas failed to demonstrate cause for not raising any of the claims in his 

amended successive postconviction petition in his original or first successive 

postconviction petition, the circuit court properly granted the State’s motion to dismiss the 

amended successive postconviction petition. 

¶ 32 CONCLUSION 

¶ 33 For the foregoing reasons, the judgment of the circuit court of Jefferson County is 

affirmed. 

¶ 34 Affirmed.