The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

Practice Under the Illinois Post-Conviction Hearing Act
By Michael B. Levy


In addition to review on direct appeal, certain collateral remedies are available under state and federal law through which criminal convictions may be further challenged. Habeas corpus actions pursued in federal court are one potential avenue of relief. Under Illinois law, the Postconviction Hearing Act ("Act")(725 ILCS 5/122—1 et seq. (West 1996)) provides a collateral remedy to those convicted of a crime. This article will examine the nature and scope of postconviction proceedings and will provide a brief overview of procedure under the Act. This article will conclude with a discussion of People v. Washington, 171 Ill. 2d 475 (1996), an extremely significant decision concerning the type of claims cognizable in postconviction proceedings.

Overview of Postconviction Procedure

The Postconviction Hearing Act is set forth in Article 122 of the Code of Criminal Procedure of 1963 (Code)(725 ILCS 5/122—1 et seq.). Section 122—1 of the Code provides that "[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this article." 725 ILCS 5/122—1 (West 1996). A proceeding under the Act is commenced by filing a petition alleging in what manner the petitioner’s constitutional rights have been violated. The petition must be verified by affidavit and must be filed with the clerk of the court in which defendant was convicted and served upon the State’s Attorney. 725 ILCS 5/122—1(b).

At present, a postconviction proceeding must be commenced by the earliest of the following three dates: (1) six months after the denial of a petition for leave to appeal to the Illinois Supreme Court (or six months after the date for filing such a petition if none is filed); (2) 45 days after the filing of a brief before the Illinois Supreme Court (or 45 days after the date for filing such brief if none is filed); or (3) three years from the date of conviction. A postconviction petition may be filed outside this time period if facts are alleged showing that the delay was not due to culpable negligence. See People v. Heirens, 271 Ill. App. 3d 392 (1995). A longer limitations period had been allowed under prior law (see Ill. Rev. Stat. 1985, Ch. 38, par. 122—1 (post-conviction proceedings must be commenced no more than 10 years after conviction), and in the past postconviction petitions ordinarily were not filed until the conclusion of a defendant’s direct appeal. However, under the current limitations scheme, the defendant may need to file a postconviction petition while his or her direct appeal is still pending.

Adjudication of postconviction petitions follows a three-step process. People v. Hernandez, 283 Ill. App. 3d 312 (1996). At the first stage, the circuit court examines the petition and may summarily dismiss it if it "is frivolous or is patently without merit." 725 ILCS 5/122—2.1. The pleading requirements are extremely liberal at this stage. The petition need only present the "gist" of a meritorious constitutional claim and a limited amount of detail; it need not make legal arguments or cite legal authority. People v. Gaultney, 174 Ill. 2d 410 (1996). The State is not permitted to have any input into the decision whether to summarily dismiss the petition. See Gaultney.

If not summarily dismissed by the trial court, the petition advances to the second stage for formal adversarial proceedings. If the petitioner is indigent and without counsel, an attorney will be appointed to represent him and make appropriate amendments to the petition. See 725 ILCS 5/122—4, 122—5. At this stage, the State may move to dismiss the petition. To survive a motion to dismiss, the petition’s allegations must establish a constitutional violation and must be supported by either the trial record or by affidavits. See generally People v. Gaines, 105 Ill. 2d 79 (1984). Finally, if the petition is not dismissed at the first or second stage, an evidentiary hearing will be conducted. At the hearing, the petitioner bears the burden of proof as to the existence of a constitutional violation. People v. Odle, 151 Ill. 2d 168 (1992).

Postconviction Proceeding Versus Direct Appeal

In order to appreciate the nature and scope of a postconviction proceeding, it is useful to compare such proceedings to the more familiar appellate process. While a direct appeal is considered an extension of the original trial proceedings, a postconviction proceeding under the Act is a new and independent action designed to permit inquiry into whether a person convicted of a crime and imprisoned has suffered a substantial denial of his constitutional rights. See People v. Morris, 47 Ill. App. 3d 732 (1977); People v. Wakat, 415 Ill. 610 (1953). The collateral remedy afforded under the Act has been characterized as civil in nature, even though it is directed at judgment entered in a criminal case. People v. Bernatowicz, 413 Ill. 181 (1952). On the other hand, it has also been stated that post-conviction relief does not fall strictly into the category of either a criminal or a civil proceeding. People v. Wilson, 37 Ill. 2d 617 (1967).

In a direct appeal, any properly preserved trial error may be raised as a basis for reversal. In contrast, only substantial errors of constitutional magnitude are cognizable in a post-conviction proceeding. Another key difference between the direct appeal and the post-conviction proceeding is the manner in which claims of error are substantiated. In a direct appeal, error must be apparent from the trial record. However, postconviction proceedings are designed to afford an opportunity to develop claims based on matters outside the trial record that could not have been raised on direct appeal. In this respect, the doctrine of res judicata precludes relitigation of issues raised and decided on direct appeal, and issues which could have been raised on direct appeal, but were not, are deemed waived. See People v. Tenner, 175 Ill. 2d 372 (1997).

The principles of res judicata and waiver are not unyielding; these procedural bars will be relaxed when fundamental fairness requires. Moreover, it is now well established that failure to raise an issue on appeal does not constitute a waiver if such failure stems from the incompetency of counsel of direct appeal. People v. Coleman, 168 Ill. 2d 509, 522-23 (1995). A defendant is guaranteed the effective assistance of counsel on direct appeal, and a claim of ineffective assistance of appellate counsel based on the failure to raise a meritorious issue is cognizable in a postconviction proceeding. Coleman, 168 Ill. 2d at 522.

To succeed on such a claim, the defendant must show not only that the omitted issue would have been successful on direct appeal, but must also show that counsel’s decision not to raise the issue was "patently erroneous". People v. Collins, 153 Ill. 2d 130, 140 (1992). Naturally, the question of whether appellate counsel performed competently is intertwined with the merits of the underlying substantive issue. However, the mere allegation of ineffective assistance of appellate counsel based on the omission of an issue does not guarantee postconviction review of that issue on the merits. In People v. Johnson, 154 Ill. 2d 227 (1993), the defendant claimed that appellate was ineffective for failing to challenge an adverse evidentiary ruling. Ostensibly, the Johnson court disposed of the claim without definitively addressing the merits of the evidentiary question:

"We do not consider whether the trial court’s evaluation of the evidence was correct. Rather the question for our review is whether, under the circumstances of this case, appellate counsel’s decision not to challenge the trial court’s ruling on direct appeal was patently erroneous. We conclude that it was not." Johnson, 154 Ill. 2d at 235.

In contrast, a claim of ineffective assistance of appellate counsel succeeded in People v. Mack, 167 Ill. 2d 525 (1995), In Mack, the defendant received a new sentencing hearing as post-conviction relief where the jury’s verdict form at the eligibility stage of a death penalty hearing was fatally defective. The court held that appellate counsel’s failure to raise the verdict defect on direct appeal was patently erroneous.

If a prisoner is denied relief under his initial post-conviction petition, can he or she ever file additional petitions? In limited circumstances, the answer is yes. Ordinarily, one convicted of a crime is only entitled to institute a single post-conviction proceeding. However, a limited exception exists permitting the filing of a second postconviction petition to raise claims of ineffective assistance of counsel on direct appeal where the defendant was represented by the same attorney on direct appeal and in his or her first postconviction proceeding. See People v. Flores, 153 Ill. 2d 264, 277-82 (1992).

People v. Washington: "Actual Innocence" Claims

Postconviction litigation is mainly concerned with the constitutional safeguards designed to ensure that one accused of a crime receives a fair trial. Of course a fair trial does not inevitably result in a correct verdict. Should a postconviction petitioner be permitted to challenge the outcome of his or her trial without alleging that the trial itself was constitutionally unfair? In other words may a postconviction petitioner simply claim that he or she is innocent? The Illinois Supreme Court confronted this issue in People v. Washington, 171 Ill. 2d 475 (1996). Prior to Washington, the United States Supreme Court had faced the same issue in the context of federal habeas corpus relief in Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). In Herrera, the habeas petitioner alleged that he was innocent of murders for which he had been sentenced to death, and that his execution would thus violate the Eighth and Fourteenth Amendments to the United States Constitution. The petitioner essayed to establish his innocence with newly discovered evidence. The Court acknowledged the "elemental appeal" of the petitioner’s argument observing that "[a]fter all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent." Herrera, 506 U.S. at 398. But the Herrera Court also emphasized that, "[i]n any system of criminal justice, ‘innocence’ or ‘guilt’ must be determined in some sort of a judicial proceeding." Id. The Court concluded, in essence, that where the appropriate constitutional safeguards are in place at trial, it does not offend the constitution to make the determination of guilt or innocence at trial conclusive even though new evidence might later surface casting doubt on that determination. Thus federal habeas review was properly limited to ensuring the fairness of the petitioner’s trial, rather than correcting errors of fact. See Herrera, 506 U.S. at 400.

In Washington, the Illinois Supreme Court exercised its prerogative to interpret the Illinois Constitution to provide greater protection than the United States Constitution. See Washington, 171 Ill. 2d at 485-486. Examining "the time relativeness of due process as a matter of this State’s constitutional jurisprudence" (171 Ill. 2d at 486), the Washington court concluded that as a matter of both procedural and substantive due process, a person convicted of a crime should be afforded a procedural avenue for presenting newly discovered indicating that he or she is actually innocent. From the standpoint of procedural due process, it would be fundamentally unfair to ignore such a claim, and "imprisonment of the innocent would also be so conscience shocking as to trigger operation of substantive due process." Washington, 171 Ill. 2d at 487-88.

The Washington court identified the flaw in Herrera’s logic as follows:

"The [Herrera] Court rejected substantive due process as means to recognize freestanding innocence claims because of the idea that a person convicted in a constitutionally fair trial must be viewed as guilty. That made it impossible for such a person to claim that he, an innocent person, was unfairly convicted.

We think that the Court overlooked that ‘a truly persuasive demonstration of innocence’ would, in hindsight, undermine the legal construct precluding a substantive due process analysis. The stronger the claim—the more likely it is that a convicted person is actually innocent—the weaker is the legal construct dictating that the person be viewed as guilty. A ‘truly persuasive demonstration of innocence’ would effectively reduce the idea to a legal fiction. At the point where the construct falls apart, application of substantive due process principles . . . is invited." Washington, 171 Ill. 2d at 488.


For criminal defense lawyers familiar with its procedural requirements and theoretical underpinnings, the Postconviction Hearing Act provides an extremely valuable opportunity to re-examine the fairness of a criminal trial and, in appropriate circumstances, to revisit the question of guilt or innocence.

Michael B. Levy was a Law Clerk and Administrative Assistant for Illinois Supreme Court Justice John L. Nickels. He received his Undergraduate Degree in 1985 from the University of Chicago and his Law Degree in 1988 from the University of Illinois.

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