Post-conviction petitions are controlled by the Post-Conviction Hearing Act. A post-conviction petition is used to challenge a conviction or sentence based on violations of federal or state constitutional rights that were not and could not have been raised on direct appeal of the conviction or sentence. That means that if the appellate court decided the issue, or the issue could have been raised in the appellate court and was not, you typically cannot raise the issue in a post-conviction petition.
There are three exceptions to the rule that issues that were or could have been raised on direct appeal cannot be raised in a post-conviction petition:
1. Submit the petition on time
- If you did not file a direct appeal of your conviction or sentence you must file your post-conviction petition within 3 years of the date of your conviction.
- If you did file a direct appeal, but you did not file a petition for leave to appeal (PLA) to the Illinois Supreme Court, you must file your post-conviction petition within about 7 months of the date of the final judgment in the appellate court. The exact time frame is 35 days from the date of the final judgment plus an additional 6 months.
- If you filed a direct appeal and a petition for leave to appeal (PLA) to the Illinois Supreme Court, you must file your post-conviction petition within about 9 months of the final disposition from the Illinois Supreme Court. The exact time frame is 90 days from the Supreme Court’s disposition including a denial of a PLA plus an additional 6 months.
You must file your post-conviction petition within 6 months of the conclusion of any proceedings in the United States Supreme Court.
You may be able to file a post-conviction petition beyond the deadlines stated in the Post-Conviction Hearing Act. A late filing will be excused if you can establish that the reason you did not file on time was something other than your own “culpable negligence.” Culpable negligence means something like recklessness. The court may find that your late filing will not be excused if it finds that you disregarded the likely consequences of your actions.
If your petition makes it to the second stage of post-conviction proceedings which is discussed below, you must allege facts showing that the reason for filing the post-conviction petition beyond the deadline was something other than your culpable negligence. For example, a court might find you were not culpably negligent if you received the wrong advice on when to file the petition from your attorney, or if you were in prison and were denied access to the prison law library.
Actual Innocence Claims
The time limitations in the Post-Conviction Hearing Act do not apply if you are filing your petition based on newly discovered evidence that you are actually innocent of the crime for which you were convicted.
- The evidence of actual innocence must be “newly discovered” which means the evidence was not available at the original trial and you could not have discovered the evidence sooner.
- The newly discovered evidence of actual innocence must be “material and noncumulative.”
- Evidence is “material” when it relates to an important issue in the case and makes it more likely you are innocent.
- Evidence is “noncumulative” when it adds something to what the judge or jury already heard.
- Finally, the evidence must be something that when considered with all of the other evidence would probably lead to a different outcome.
2. File the petition
- You must file your petition with the clerk of the court in which you were convicted.
- You must identify the proceeding in which you were convicted, the date of the conviction, and any previous proceedings in which you tried to obtain relief from your conviction.
- The petition must clearly state all of the ways in which you feel your constitutional rights were violated.
- You are generally only allowed to file one post-conviction petition.
You can only file additional post-conviction petitions with the court’s permission in two circumstances:
Satisfy the “cause and prejudice test”
- To satisfy the “cause and prejudice” test you must demonstrate for each claim you wish to make in an additional petition, “cause” for the failure to raise the claim in your first post-conviction petition. You must also show that you suffered prejudice from the claimed constitutional violation.
- “Cause” means some objective factor outside of the defense that impeded you from raising the claim in your first post-conviction petition.
- “Prejudice” means the claim you seek to raise in an additional post-conviction petition affected your trial so much it caused a violation of your right to due process.
The “fundamental miscarriage of justice exception”
The second way you can file a successive post-conviction petition is under the “fundamental miscarriage of justice exception.”
- This exception requires you to demonstrate actual innocence.
- Leave to file a successive petition should be granted where the evidence attached to your petition shows it is more likely than not that a reasonable fact-finder would not have convicted you if the new evidence had been available.
When you first file your post-conviction petition, it only needs a limited amount of detail and legal argument is not required. However, you must provide some factual details supporting the alleged constitutional violation.
- You must provide affidavits or other evidence to support your factual allegations. You may include your own affidavit.
- You must state the source and type of evidence supporting your allegations and that the evidence would be available at a hearing.
- If you cannot provide evidence to support your factual allegations you must explain why not.
Your failure to attach supporting evidence may be excused if you are alleging ineffective assistance of counsel and it is clear from the allegations in the petition that the only affidavit you could have provided other than your own statement was an affidavit from your attorney. For example, if you are alleging ineffective assistance of counsel based on advice your attorney gave you in private consultation.
You should also file an affidavit verifying that you are bringing the allegations truthfully and in good faith and that you are making the verification subject to penalties for perjury, but your petition cannot be dismissed at the first stage because it did not have a verification affidavit.
3. Procedures for hearing the petition
Summary dismissal stage
The first stage is the summary dismissal stage. At this stage, a trial court will review the petition on its own to determine if the petition is makes a good argument. If the petition does not have a good argument, it will be summarily dismissed and the petitioner can appeal that decision.
A petition with a good argument cannot be “frivolous and patently without merit.” That means the petition is based on bad legal theory or unbelievable claims.
At this stage, the petition only needs to allege enough facts to assert a claim that is arguably constitutional. Formal legal arguments and citations to legal authority are not required.
However, the petition must set forth some objective facts that can be supported or explain why those facts are missing.
Motion to Dismiss stage
If the trial court does not dismiss the petition at the first stage, the petition moves to the second stage. In the second stage, if the petitioner cannot afford an attorney the court may appoint an attorney to represent the petitioner. If the court does appoint an attorney, the attorney must consult with the petitioner to determine what the petitioner contends were the violations of his or her constitutional rights. That meeting can take place by phone, by mail, or by electronic means.
Once the attorney has met the petitioner, the attorney must review the Record of Proceedings from the trial and make any amendments to the petition filed at the first stage that are necessary to adequately present the petitioner’s contentions of violations of his or her constitutional rights. The attorney does not have to amend the petition if the petition already adequately states the petitioner’s claims and the attorney does not have to search the record for new claims that are not included in the petitioner’s original petition.
The state can file a motion to dismiss the petition at the second stage. The state can move to dismiss the petition because of a procedural defect, or because the petition does not make a substantial showing of a constitutional violation.
- An example of a procedural defect is that the petition was filed too late, or that the affidavit to verify the petition was not notarized.
- To determine if the petition makes a substantial showing of a constitutional violation, the court determines whether the allegations in the petition, if proven to be true at an evidentiary hearing, would entitle the petitioner to relief.
Evidentiary hearing stage
If the petition survives the first and second stages, the trial court will hold an evidentiary hearing. At the evidentiary hearing, the court can receive evidence by affidavit, depositions, or live testimony. The petitioner has a right to an attorney if he or she cannot afford one.
At the hearing the petitioner has the burden to prove a substantial showing of a constitutional violation. At the conclusion of the evidentiary hearing, the court enters a final order on the petition. If the petition is denied, the petitioner can appeal that decision.