SECOND DIVISION

							          March 30, 2001	

No. 1-97-1299

THE PEOPLE OF THE STATE OF ILLINOIS,

		Respondent-Appellee,

v.

ANTHONY JONES a/k/a TONATonya Star,

		Petitioner-Appellant.

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Appeal from the

Circuit Court of

Cook County

Honorable

Thomas M. Davy,

Judge Presiding.

	JUSTICE McBRIDE delivered the opinion of the court:

	In April of 1987, petitioner Anthony Jones was found guilty by

a jury of the murder of his 93-year-old great-grandmother Estella

Small and the aggravated battery of Ms. Small's 61-year-old

caregiver, Dorothy Hill. Jones was sentenced to an extended term of

80 years' imprisonment for the murder and a concurrent term of 5

years for the aggravated battery.  These judgments were affirmed on

direct appeal by this court in an unpublished order.  People v. Jones, 187 Ill. App. 3d 1123 (1989).

	Since that order was entered Jones has sought post conviction

relief on more than one occasion pursuant to the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)).  

	Two of Jones' post conviction challenges have been

unsuccessful on appeal to this court, People v. Jones, No. 1-95- 0207 (1995) (unpublished order under Supreme Court Rule 23), and

People v. Jones, No. 1-96-2486 (1996) (unpublished order under Supreme Court Rule 23).  In one of those orders, No. 1-95-0207, this court found the previous petition untimely.

	The current appeal stems from the dismissal of what Jones and

the respondent (State) both agree is Jones' sixth post conviction

petition.  The subject petition, dated January 7, 1997, was filed

on January 29, 1997.  On January 31, 1997, the trial judge

dismissed the petition on grounds that the circuit court lacked

jurisdiction because one of petitioner's previous post conviction

petitions was still pending on appeal at the time of the filing of

the instant petition.

	Neither Jones nor the State has specifically addressed the

grounds upon which the trial judge dismissed the petition.  Instead

both have proceeded under the theory that the petition was dismissed without an evidentiary hearing because it failed to

allege the gist of a constitutional claim.

	As noted earlier, the current petition represents Jones' sixth

effort at post conviction relief.  The pro se petition alleges that numerous errors occurred during Jones' trial.  Jones also filed a

memorandum of law in support of his claims.  We will discuss only

those claims that are raised by Jones in this appeal.  People v. Coleman, 183 Ill. 2d 366, 378, 701 N.E.2d 1063, 1070 (1998).

	Jones contends that the trial court improperly dismissed the

petition without an evidentiary hearing. He argues that although

his petition was untimely, and  successive, fundamental fairness

requires an evidentiary hearing and appointment of counsel on this

sixth petition because it stated the gist of a substantial constitutional claim.  More specifically, Jones claims that the

trial court violated his constitutional rights when it failed to

conduct a fitness hearing based upon his alleged ingestion of the

psychotropic drug Haldol at or near the time of his trial and

sentencing.  Jones also claims his appointed post conviction

counsel was ineffective because the attorney never amended a

previous petition to include the issue of fitness to stand trial

based upon his ingestion of psychotropic medications.  Thus, Jones

claims he was entitled to an evidentiary hearing. For this

proposition he relies primarily on People v. Neal, 179 Ill. 2d 541, 689 N.E.2d 1040 (1997).

	The State cites numerous reasons for affirming the dismissal

of the sixth petition, but does not discuss the reason given by the

trial judge as the basis for the dismissal.  The State argues that

the sixth petition is untimely and that Jones has not alleged facts

demonstrating his lack of culpable negligence.  Citing People v. Whitehead, 169 Ill. 2d 355 (1996), and People v. Coleman, 168 Ill. 2d 509 (1995) the State additionally argues that principles of

waiver and res judicata bar consideration of the issues because Jones could have raised the question of fitness with medication in

the prior petitions.  The State further argues that Jones'

allegations that he was taking Haldol at or near the time of trial

or sentencing are not supported by the medical records he relies

upon and that fundamental fairness does not dictate a relaxation of

the waiver rule in this particular case given these particular facts.  Although neither Jones nor the State has addressed the

trial court's reasons for dismissing the petition, we believe the

trial court could have properly dismissed Jones' petition where a

previous post conviction petition had not yet been resolved.  See People v. Lieberman, 186 Ill. App. 3d 277, 281, 542 N.E.2d 894 (1989).  We note that the record before us does not indicate

whether a previous petition was pending when Jones filed this

current petition.  Additionally, because the parties have fully

briefed the issues and both sides agree that the petition was

dismissed without an evidentiary hearing, we will address the

merits of this appeal.  

	We agree with the State that Jones' claims are barred because

the petition is untimely, that the fitness issue raised in this

sixth petition is barred by principles of waiver and res judicata, that Jones' claim he was taking psychotropic drugs at the time of

his trial and sentencing is not supported by the record, and that

fundamental fairness would not suggest a relaxation of those rules

in this particular case so as to permit consideration of any of

Jones' claims.  People v. Flores, 153 Ill. 2d 264, 606 N.E.2d 1028 (1992).  However, we also conclude that neither of the issues

raised by Jones amounts to a cognizable constitutional claim. 

Several recent decisions by our supreme court have resolved the

fitness issue so we will address that question first.

	In a series of decisions beginning with People v. Mitchell, 189 Ill. 2d 312, 727 N.E.2d 254 (2000), the supreme court held that an allegation the trial court violated petitioner's due process

rights when it failed to conduct a fitness hearing based upon

petitioner's ingestion of psychotropic drugs is not a cognizable

constitutional claim in a post conviction proceeding.  Mitchell, 189 Ill. 2d at 328-29.  In Mitchell, our supreme court stated:

		"Due process does not require that everyone

taking 'psychotropic or other medication'

under medical direction should be granted a

fitness hearing.  Section 104-21(a)'s

provision is merely a statutory right granted

by the legislature -- a right that the

legislature has now taken away.  See 725 ILCS

5/104-21(a) (West 1998).  Statutes do not

confer constitutional rights, and the

allegation of a deprivation of a statutory

right is not a proper claim under the [Post-

Conviction Hearing] Act."  Mitchell, 189 Ill. 2d at 329.

	In People v. Jones, 191 Ill. 2d 194, 730 N.E.2d 26 (2000), the court reiterated Mitchell's holding that the trial court's failure to conduct a fitness hearing after an allegation of petitioner's

ingestion of psychotropic drugs at the time of trial is not a

cognizable constitutional deprivation for purposes of post

conviction review.  Jones, 191 Ill. 2d at 199.  

	In a subsequent case also entitled People v. Jones, 191 Ill. 2d 354, 732 N.E.2d 573 (2000), the supreme court once again relied

upon its reasoning in Mitchell and concluded that petitioner's claim he was denied due process because of the trial judge's

failure to conduct a fitness hearing based upon petitioner's

ingestion of psychotropic drugs at the time of his plea and

sentencing was procedurally barred because such claim was not

cognizable in post conviction proceedings.  Jones, 191 Ill. 2d at 359.

	Accordingly, we find Jones has failed to present a

constitutional-deprivation claim based upon his allegation that he

did not receive a fitness hearing at the time of his trial and

sentencing.  Although the failure to allege a constitutional

deprivation was not the reason the trial court dismissed Jones'

most recent petition, we may sustain the order on appeal for

reasons other than those given by the trial court.  People v. Lieberman, 186 Ill. App. 3d at 282.

	Jones next claims that he raised the gist of a constitutional

claim because post conviction counsel failed to amend one of Jones'

previous post conviction petitions to include the allegations of

unfitness due to the ingestion of psychotropic medication at or

near the time of trial and sentencing.  Although Jones concedes he

is only entitled to a reasonable level of assistance of counsel at

post conviction proceedings, he contends that his post conviction

counsel's failure to amend the petition to allege unfitness was

less than a reasonable level of representation and therefore created a constitutional claim.  We disagree and find that Jones

has failed to allege a constitutional deprivation on this question

as well.  Allegations by a petitioner of the failure of post

conviction counsel to provide reasonable assistance at a prior post

conviction proceeding do not present a constitutional basis upon

which relief can be granted under the Post-Conviction Hearing Act. 

See Flores, 153 Ill. 2d at 276 (holding that the right to reasonable level of assistance at post conviction level is

statutory and not derived from either federal or state

constitution; thus, claims of ineffective assistance of post

conviction counsel at a prior post conviction proceeding do not

amount to a constitutional claim upon which relief may be granted

under the Act).  Flores also pointed out that the Act provides a forum to address claims of a constitutional magnitude about conduct which

occurred in the proceeding which resulted in the petitioner's

conviction.

	"The Act, does not, however, provide a forum to test the

propriety of conduct at an earlier post conviction

proceeding.  Thus, where a petitioner files a second or

subsequent post conviction petition wherein he claims

ineffective assistance in his first post conviction

proceeding, consideration of those claims is beyond the

scope of the Act."  Flores, 153 Ill. 2d. at 277.

	Therefore, we hold that Jones has failed to allege the gist of

a constitutional claim by the allegation that his post conviction counsel was ineffective or, more precisely, did not provide the

requisite reasonable level of assistance by failing to amend a

previous petition to include the allegation of unfitness due to the

ingestion of psychotropic drugs at or near the time of the trial

and sentencing.  Morever, because such allegations did not occur in

the proceedings which resulted in Jones' conviction, they are

beyond the scope of the Act.  Flores, 153 Ill. 2d at 276-77.

	Jones also asks the court to allow the appointment of counsel

on his "untimely" and "successor" petition, on grounds of

fundamental fairness.  Before considering the fundamental fairness

question, we point out that this is by Jones' own admission his

sixth post conviction petition and that the Post-Conviction Hearing Act contemplates the filing of only one petition.  Flores, 153 Ill. 2d at 273; People v. Free, 122 Ill. 2d 367, 375, 522 N.E.2d 1184 (1988).

	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

1998).  "Furthermore, a ruling on an initial post conviction

petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. 

[Citations.] As a consequence, a defendant faces a daunting

procedural hurdle when bringing a successive post conviction

petition."  Jones, 191 Ill. 2d at 198, 738 N.E.2d at 28.  

	As the Flores court noted: 

	"The filing of successive post conviction petitions sets

up two competing interests.  On the one hand, there is

the State's interest in providing a forum for the

vindication of petitioner's constitutional rights.  On

the other hand, the State has a legitimate interest in

the finality of criminal litigation and judgments. 

'Without finality, the criminal law is deprived of much

of its deterrent effect.' (Teague v. Lane (1989), 489 U.S. 288, 309, 103 L. Ed. 2d 334, 355, 109 S. Ct. 1060,

1074.)"  Flores, 153 Ill. 2d at 274, 606 N.E.2d at 1083. 

 	Although the procedural bars of waiver and res judicata generally contribute to the finality of criminal litigation, where

fundamental fairness so requires, strict application of these

procedural laws has been relaxed.  Flores, 153 Ill. 2d at 274.  Thus, the court has permitted defendants to file a successive petition when the proceedings on the initial petition are deficient in some fundamental way.  People v. Holman, 191 Ill. 2d 204, 730 N.E.2d 39 (2000).  Nonetheless, we do not have to consider whether

fundamental fairness would allow relaxation of procedural bars

where those claims are not cognizable constitutional deprivations. 

See Jones, 191 Ill. 2d at 359.

	Moreover, because post conviction relief extends only to

deprivations of constitutional rights that occurred at the

proceedings which resulted in Jones' conviction and because Jones

has not raised any constitutional claim in his latest post conviction petition, he cannot show that any of the previous post

conviction proceedings were deficient in some fundamental way. 

Accordingly, we hold that Jones is procedurally barred from

bringing this petition on the fitness issue and the question of

post conviction counsel's failure to amend a previous petition. 

	While this appeal was pending the United States Supreme Court

decided Apprendi v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  Jones then asked and was granted leave to

cite Apprendi as supplemental authority, arguing that the decision should apply retroactively to his sixth post conviction petition. 

	The United States Supreme Court in Apprendi held that "'under the Due Process Clause of the Fifth Amendment and the notice and

jury trial guarantees of the Sixth Amendment, any fact (other than

prior conviction) that increases the maximum penalty for a crime

must be charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt.'" Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355, quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L.Ed. 2d 311, 326 n.6, 119 S. Ct. 1215, 1224

n.6 (1999).

	Jones contends that Apprendi renders his 80-year extended-term sentence unconstitutional.  In response the State argues that

Jones' sentence is not unconstitutional under Apprendi and that Apprendi does not apply retroactively to cases on review from the dismissal of a post conviction petition.  

	Since the Apprendi decision was handed down several divisions of the First District have considered whether Apprendi applies retroactively to cases on collateral review.  The third division of the First District in People v. Beachem, 317 Ill. App. 3d 693 (2000), concluded that Apprendi applies retroactively to a timely filed post conviction petition.  Beachem, 317 Ill. App. 3d at 703- 04.  In People v. Kizer, 318 Ill. App. 3d 238 (2000) the first division of the First District held that Apprendi does not apply retroactively to cases on collateral review.  Both Kizer and Beachem reviewed the same question but came away with different conclusions.  Both opinions analyzed People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 (1990).

	In Flowers, our supreme court determined the circumstances in which new constitutional rules could be retroactively applied to

cases on collateral review.  Pointing out that petitions filed

under our Post-Conviction Hearing Act are similar to habeas corpus proceedings, the court looked at Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).  Teague pronounced the rule that decisions establishing new constitutional rules of criminal

procedure are generally not applied retroactively to cases pending

on collateral rule unless the new rule either places " 'certain

kinds of primary, private individual conduct beyond the power of

the criminal law-making authority to proscribe' [citation]" or

"requires the observance of 'those procedures that ... are

"implicit in the concept of ordered liberty" ' [citations]." 

Teague, 489 U.S. at 311, 103 L. Ed.2d at 356, 109 S. Ct. at 1075- 76. 

	The question at issue in Flowers was whether the court's decision in People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141 (1988), should be applied retroactively to cases on collateral

review.  The Reddick decision essentially changed the law with regard to the burden of proof and the elements of voluntary

manslaughter.  After applying Teague to the court's previous decision in People v. Reddick, the Flowers court declined to retroactively apply Reddick to cases on collateral review.  In reviewing Reddick under the constraints of Teague, our supreme court concluded that the first exception to the general rule did

not apply and the second exception would not permit the Reddick decision to be applied retroactively to cases on collateral review

because Reddick did not establish such a basic component of due process so as to fall within the second Teague exception.  Flowers, 138 Ill. 2d at 242. 

	Kizer reviewed the holding in Flowers while pointing out how narrowly our supreme court has interpreted the exceptions to the

Teague decision.  The Kizer court then concluded that Apprendi does not retroactively apply to the review of post conviction petitions. 

Kizer, 318 Ill.App.3d at 252.    

	The Beachem court, in reaching a conclusion opposite to Kizer, distinguished Flowers in the following way:

	"In Flowers, the Illinois Supreme Court held People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141 (1988), did not apply to cases on collateral review.  The Reddick court had found unconstitutional jury instructions which

erroneously stated the burden of proof for voluntary

manslaughter mitigating mental states.  The Flowers court recognized Reddick involved a 'grave' jury instruction error 'of constitutional dimension' (Flowers, 138 Ill. 2d at 236-37), but declined to place a Reddick error within Teague's second exception: 'This exception must be narrowly construed and we do not believe that the Reddick rule established such a component of basic due process so

as to fall within it.' Flowers, 138 Ill. 2d at 242.

		Reddick discussed the constitutional obligation of the jury to follow the trial judge's instructions (see

People v. Jenkins, 69 Ill. 2d 61, 66-67, 370 N.E.2d 532  (1977)), but, unlike *** Apprendi, it did not implicate the right to a jury verdict beyond a reasonable doubt

and, consequently, the fundamental fairness and accuracy

concerns inherent in the second Teague exception.

		Apprendi tells us we deal with 'constitutional protections of surpassing importance.'  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355. 

The reasonable doubt standard "`'reflect[s] a profound

judgment about the way in which law should be enforced

and justice administered."'  Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 447-48, 120 S. Ct. at 2356, quoting [In re Winship, 397 U.S. 358, 361-62, 25 L. Ed. 2d 368, 374, 90 S. Ct. 1068, 1071 (1970).]  Our jury tradition is 'an

indispensable part of our criminal justice system.' 

Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366.  How, then, could we say we do not deal with

procedures that are implicit in the concept of ordered

liberty?  Have we not reached 'bedrock'?"  Beachem, 317 Ill. App. 3d at 704-06.

	Relying on Kizer, we recently held in People v. Scullark, No. 1-99-1722, slip op. at 29 (March 13, 2001), that Apprendi claims are not cognizable on post conviction review.  Neither Beachem, Kizer, nor Scullark addressed whether Apprendi applies to an untimely successive post conviction petition since each of those

decisions involved timely filed post conviction petitions.  We

adopt the reasoning of Kizer and Scullark and conclude that Apprendi does not apply to an untimely, successive post conviction petition.  In the instant case we have found that Jones' sixth

petition is procedurally barred for the reasons that we have

outlined above.  We further hold that Apprendi cannot be used to resurrect an otherwise procedurally barred successive post

conviction petition.

	Accordingly, the judgment of the trial court dismissing Jones'

post conviction is affirmed.

	Affirmed.

	McNULTY, P.J., and COUSINS, J., concur.