The Journal of The DuPage County Bar Association

Back Issues > Vol. 26 (2013-14)

Post-Conviction Petition Practice: How to Write a Successful Petition and Get Your Client a Hearing
By Wayne E Brucar

A Post-Conviction Petition is by its very nature a disfavored action. The accused is asking to reopen what is closed, to undo what has already been done. The criminal has been vanquished, society has been satisfied and now an unhappy defendant wants another run at the system. However, as repugnant as this may seem to some, the Legislature of the State of Illinois has found it appropriate to develop a procedure to insure that the constitutional rights of one convicted of a crime have been maintained where the record of proceedings may be silent of their violation.

Going forward with the Post-Conviction protocol is a three stage process. Upon filing, the trial court must determine if the Petition as filed is frivolous or patently without merit. If so, it is subject to dismissal. If not dismissed, it advances to the second stage where the trial court must determine if there is a substantial showing of a constitutional violation. If again the Petition is not dismissed, the State must answer it and the matter proceeds to a hearing.

A Post-Conviction Petition should be nothing more than a roadmap setting out what would be presented at a hearing. If the substance of what the Petitioner expects to prove is presented within a framework of the deprivation of constitutional rights, the preferred manner of disposition should be hearing, not dismissal. However, a Post-Conviction Petition is typically dismissed at stage one or two despite valid issues raised. This is often because of inherent flaws in its form or presentation.

Allowing a Petitioner to assert constitutional claims should not first require the jumping through multiple appellate hoops. It is an extreme waste of judicial resources and does a grave constitutional injustice to the Petitioner. As a legislatively created remedy, strict compliance with the Act is imperative to avoid dismissal and proceed to hearing. This article will explain how to create a Post-Conviction Petition which will survive dismissal and require an evidentiary hearing.

Protocol of the Post Conviction Petition: Who Can File a Post-Conviction Petition. The Post-Conviction process begins by the filing of a Petition with the clerk of the court in which the conviction took place. Unless the Petitioner can show substantial prejudice, it must proceed before the judge who presided over the trial. Under the Post-Conviction Hearing Act, a person who is “imprisoned in the penitentiary” is authorized to commence a Post-Conviction proceeding.1

Interpretation of this provision by the Illinois Supreme Court and courts of appeal define who is a person “imprisoned in the penitentiary” and thus authorized to commence a Post-Conviction proceeding.2 A person is “imprisoned in the penitentiary,” within meaning of Post–Conviction Hearing Act, when his liberty is actually constrained by the State.3 A Post-Conviction remedy is available only to those that are actually being deprived of their liberty, and not to those who have served their sentences and might wish to purge their records of past convictions.4

However, actual incarceration is not a strict prerequisite to instituting a proceeding under the Act.5 A defendant’s liberty interests are paramount when construing the Act.6 As a result, “imprisoned in the penitentiary” has been held to include defendants who have been released from incarceration after timely filing their Petition7 as well as defendants who were on mandatory supervised release at the time their Petitions were filed.8 A prisoner serving consecutive sentences has been held to be imprisoned under any one of those sentences.9 Those sentenced to probation or released on parole may file petitions under the Act.10

Case law has established the right of misdemeanants to file a Post-Conviction Petition with certain restrictions. A defendant convicted of a misdemeanor may file a Petition within four months after rendition of final judgment on plea of guilty or within six months after judgment following trial on plea of not guilty. Counsel need not be appointed to represent an indigent defendant if trial judge enters order finding the record and responsive pleading conclusively shows the defendant is entitled to no relief.11 There is no Post Conviction recourse for a sentence of misdemeanor supervision.

Time Limits for Filing the Petition. There are three benchmarks for calculating the statute of limitations for a Post-Conviction Petition: (1) six months after the conclusion of proceedings in the United States Supreme Court, (2) six months from the date for filing a certiorari petition if review was not sought in the United States Supreme Court, and (3) three years from the date of conviction if no direct appeal was taken. 725 ILCS 5/122-1(c) All three methods are subject to exceptions for delay not caused by the Petitioner’s culpable negligence and for claims of actual innocence.12

The Right to Adequate Representation of Counsel. There is no constitutional right to counsel in Post-Conviction proceedings. Petitioners are only entitled to the level of representation required by the Post-Conviction Hearing Act - a reasonable level of assistance.13

Illinois Supreme Court Rule requires that the record in Post-Conviction proceedings demonstrate that counsel has consulted with the Petitioner either by mail or in person to ascertain her contentions of deprivation of constitutional rights, has examined the record of the proceedings at trial, and has made any amendments to the Petitions filed pro se that are necessary for an adequate presentation of Petitioner’s contentions. Counsel must file a certificate verifying counsel’s compliance with these requirements pursuant to Rule 651(c).14

Where the record includes defense counsel’s Rule 651(c) certificate, it is presumed that the Petitioner received adequate representation. Unless this presumption is rebutted, the Petitioner may not challenge the reasonableness of her counsel’s assistance. Where the Petitioner alleges that her counsel provided unreasonable assistance, but does not claim that counsel failed to perform at least one of the three duties mandated by Rule 651(c), a challenge of the sufficiency of counsel’s assistance will fail.15

Counsel appointed to represent a Petitioner may move to withdraw if she documents why all of Petitioner’s claims are frivolous or patently without merit.16 Even if the motion to withdraw is deficient, a reviewing court can uphold the grant of such a motion if the record shows that counsel complied with all of the requirements of Rule 651(c) and that all of the Petition’s claims are frivolous.17 Practically speaking, if counsel has been appointed to a Post-Conviction Petition it has already survived stage one and there is likely some basis to go forward. The effort necessary to withdraw in a situation analogous to an Anders brief is better spent researching and writing an Amended Petition. There are always issues.

Philosophy of the Post-Conviction Petition: Underlying Basis. A Petitioner may proceed under the Post-

Conviction Petition Act by alleging there was a substantial denial of her rights under the Constitution of the United States, the Constitution of the State of Illinois or both in the trial court proceedings which resulted in her conviction.18 A Petition filed under the Act must specifically set forth the respects in which the Petitioner claims her constitutional rights were violated.19. Affidavits, records, transcripts or other evidence supporting Petition’s allegations must be attached or the Petition must state why there are no attachments.20

It is of the utmost importance that the Petition alleges what the constitutional violations are with specificity and documentation. The Petition should explain in detail how the outcome of the trial would have been different if the constitutional violations had not occurred. Significantly, all well-pleaded facts in the Petition and in the supporting materials are to be taken as true.21 The Petition ideally serves as a threshold device for presenting a cogent and well documented scenario as to how your client was denied her Constitutional rights, the effect it had on her trial and why she deserves a hearing under the Act.

What May Not Be Included in the Post-Conviction Petition. All issues decided on direct appeal are res judicata, and all issues that could have been raised in the original proceeding but were not are waived.22 However, res judicata and waiver are relaxed for the purposes of the Act under principles of fundamental fairness.23 The waiver rule is also relaxed where the alleged waiver stems from the incompetence of appellate counsel.24 If a claim of ineffective assistance of counsel is based on matters outside the record, then it could not have been raised on appeal and consequently is not waived in a post-conviction petition.25

Practically speaking, if a constitutional issue has not been adjudicated in any type of post-trial proceeding, it can be used as a basis for a Post-Conviction Petition. As a rule of thumb, if the constitutional violation isdocumented by the record the threshold jurisdictional position is incompetence of appellate counsel. If it is outside the record, it is brought in through an allegation of incompetence of trial counsel. A Post-Conviction Petition is not an appellate brief.

It should document factual deprivations of Constitutional rights and explain how there is a substantial likelihood the trial would have ended differently if those deprivations had not occurred. Legal arguments and citation and discussion of legal authorities should be omitted from the Petition.26

While there may be circumstances where a citation may clarify a factual situation, generally use of law should be avoided.

Successive Post-Conviction Petitions. While the Post-Conviction Hearing Act contemplates only a single Post-Conviction Petition will be filed, successive Petitions can be filed under certain circumstances. Any constitutional claim not raised in the original or amended petition is waived, unless a successive petition is permitted for reasons of fundamental fairness.27 The bar against successive proceedings is relaxed in two situations: (1) where the Petitioner can establish both cause and prejudice for failing to raise the claim in the original post-conviction proceeding, or (2) where the Petitioner raises a colorable claim of actual innocence.28 A Petitioner has the burden to obtain leave of the court before a successive Post-Conviction Petition maybe filed. However, the trial court has inherent authority to consider whether a Petition satisfies the cause and prejudice standard, and to sua sponte grant leave to file upon finding the standard has been met.29

Contents of the Petition: Common Grounds. The most typical constitutional violations that serve as the basis for a Post-Conviction Petition are ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct, errors committed by the trial judge and new evidence. These errors are generated either by matters outside of the record or matters within the record. Ineffective assistance of counsel, trial or appellate, is far and away the most common basis for a Post-Conviction Petition. The most common bases of the incompetence of representation include trial counsel’s -- failure to communicate with the defendant; failure to investigate; failure to file trial motions; failure to engage appropriate experts; failure to present exculpatory witnesses; failure to have trial strategy/abandonment of defense; deprivation of defendant’s right to testify; deprivation of defendant’s right to have a trial by jury; failure to file post-trial motion; and/or failure to present mitigation evidence.

Errors of this nature that are not a part of the record should be fashioned as incompetence of trial counsel. If the errors are part of the record they must be fashioned as incompetence of appellate counsel for failing to address them on appeal.

The Right to Effective Representation of Counsel. An allegation of ineffective assistance of counsel is a gateway device for giving the Post-Conviction court jurisdiction to consider matters that may not in and of themselves be of a constitutional nature. A Petitioner does not have a constitutional right to a motion to suppress evidence but she does have a constitutional right to have counsel competent enough to know when to file one. In Strickland v. Washington,30 the United States Supreme Court held that the Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

The framework for analysis of ineffective assistance of counsel as set forth by Strickland was articulated in People v. Steels:31 “First, the defendant must prove that his lawyer made errors so serious that the lawyer was not functioning as the “counsel” guaranteed the defendant by the sixth amendment. That is, the lawyer’s deficient performance fell below an objective standard of reasonableness... Second, the defendant must demonstrate that he was prejudiced by the trial lawyer’s deficient performance. To satisfy the prejudice prong of the Strickland test, the defendant must prove there is a ‘reasonable probability’ that the outcome of the trial would have been different had his lawyer not been ineffective.”32

When examining the record and doing your investigation, keep in mind that the mere act of going through the motions of making opening and closing statements, cross-examining witnesses and presenting evidence does not in and of itself constitute a reasonable defense. Mere inertia in plodding through a trial does not rise to zealous advocacy. While the previously listed grounds can be evidence of ineffective assistance of counsel, trial counsel’s performance as a whole can fall below an objective standard of reasonableness.

In United States v. Cronic,33 the United States Supreme Court emphasized that the sixth amendment requires, at a bare minimum, that defense counsel act as a true advocate for the accused. “Where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.”34

In People v Hattery,35 the Illinois Supreme Court looked to Cronic in setting a standard for determining the effectiveness of counsel’s overall performance:

“[T]he adversarial process protected by the Sixth Amendment requires that the accused have ‘counsel acting in the role of an advocate’. The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted - even if defense counsel may have made demonstrable errors - the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.”36

New Evidence. The Illinois Supreme Court in People v. Washington,37 held that as a matter of Illinois Constitutional jurisprudence a claim of newly discovered evidence showing a defendant to be actually innocent of the crime for which he was convicted is cognizable as a matter of Due Process. As such, newly discovered evidence can be raised in a Petition under the Post-Conviction Hearing Act. “We believe that no person convicted of a crime should be deprived of life or liberty given compelling evidence of actual innocence.”38

For new evidence to warrant a new trial, the evidence must: (1) be of such conclusive character that it will probably change the result on retrial; (2) be material to the issue, not merely cumulative; and (3) have been discovered since trial and be of such character that the defendant in the exercise of due diligence could not have discovered it earlier.39

Where does this leave Post-Conviction counsel? An extensive and detailed interview of the Petitioner and a careful review of the record are a start but the inquiry must go much further. Discovery that was not tendered, forensic tests that were not done or done improperly and investigations that were not conducted are fertile sources of evidence not previously brought to light. To get the hearing for a new trial, these grounds must be specifically proffered and documented, not inferred. The best place to start gathering this evidence is in the trial court.

A trial court has inherent discretionary authority to order discovery in Post-Conviction proceedings.40 The trial court should allow discovery if the Petitioner has shown good cause, considering the issues presented in the Initial Petition, the scope of the requested discovery, the length of time between the conviction and the Post-Conviction proceeding, the burden of discovery on the State and on any witnesses, and the availability of the evidence through other sources.41 At a minimum, Post-Conviction counsel should be allowed access to the State’s original disclosure to trial counsel.

In fashioning a request of the trial court for discovery, it is important to understand the nature of the Post-Conviction Petition Act. The Act is a collateral remedy that has been variously characterized as civil in nature42 neither strictly a criminal or a civil proceeding43 or sui generis.44 If Post-Conviction proceedings are arguably civil, quasi-civil or sui generis, disclosure requests, interrogatories, requests to admit and depositions are arguably not beyond the scope of a valid discovery request.

Original trial counsel, State Attorneys and occurrence witnesses are typically not the most cooperative of witnesses under the circumstances of their relationship to a Post-Conviction Petition. Generating evidence from them may be difficult and court intervention may be necessary.

However, do not expect the trial court in which the Petition is being heard to entertain such requests casually or without extensive documentation explaining their necessity.

The Post-Conviction Petition Act specifically allows for certain forms of discovery. A Petitioner may make a motion for the performance of fingerprint, Integrated Ballistic Identification System, or forensic DNA testing on evidence that was secured in relation to the trial which resulted in her conviction and was not subject to the testing which is now requested at the time of trial or, although previously subjected to testing, can be subjected to additional testing utilizing a method that was not scientifically available at the time of trial that provides a reasonable likelihood of more probative results. Reasonable notice of the motion shall be served upon the State.45

The Road to Hearing: the Initial Post-Conviction Petition. Counsel may become involved in a Post-

Conviction Petition by request of the convicted defendant or by appointment of the court after the filing of a pro se Petition. Whenever counsel becomes involved with a Post-Conviction Petition, she must read the transcripts and examine the record of the trial, talk in depth with her client, engage in discovery and investigate whatever claims her client makes or she develops from an analysis of the situation. The only way a Petition will be successful is to develop substantive constitutional issues with factual backing as early as possible.

The first Post-Conviction Petition filed in the trial court will not likely be the final one. If it’s being filed pro se, it is the court’s obligation to make a determination whether it is frivolous or patently without merit and if not to docket it for a second stage determination of merit. In cases of pro se Petitioners, only the “gist” of a constitutional claim need be asserted in order to survive dismissal and to require the appointment of counsel under the Act.46 If private counsel is bringing the Petition, it is likely that the initial filing will be mainly for the tolling of the statute of limitations while appropriate discovery and investigation is done for the purposes of filing an Amended Petition covering all issues.

If a pro se Petition is being amended by appointed or private counsel, it is good practice to incorporate the initial pro se Petition by reference into the Amended Petition.

Stage One. Upon filing a Petition at the first stage, the Post-Conviction Petition Act does not permit any further pleadings from the Petitioner or any motions or responsive pleadings from the State. The trial court is required to determine whether the petition alleges a constitutional infirmity which would necessitate relief under the Act. The first stage is merely a pleading question. Unless positively rebutted by the record, all well-pled facts are taken as true at this stage.47 Substantive questions relating to the issues raised in the Petition are not to be addressed at the first stage of the Post-Conviction proceeding.48 If the trial judge does not rule on the Petition within 90 days of filing, it will be automatically docketed for a stage two hearing.49

Section 5/122–2.1 of the Act directs the trial court to conduct a threshold evaluation of the allegations pled in Post-Conviction Petitions and to dismiss those which are “frivolous” or “patently without merit.” The Act provides: “If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision.”50 “In considering a petition pursuant to this Section the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.”51

Whether the Petition and any accompanying documents make a substantial showing of a constitutional violation is the second stage inquiry.52

Stage Two. At the stage two “dismissal” stage of a Post-Conviction proceeding the trial court’s mandated determination is merely whether the Petition’s allegations sufficiently demonstrate a constitutional infirmity which would necessitate relief under the Act.53 The trial court is precluded from engaging in any fact-finding because all well-pleaded facts are to be taken as true.54 Although a Post-Conviction Petitioner is not entitled to an evidentiary hearing as a matter of right, a hearing is required whenever the Petitioner makes a substantial showing of a violation of constitutional rights.55

If the allegations contained in the Petition are based upon matters of record, no extrinsic evidence may be required.56 The trial court is justified in the dismissal of a post-conviction petition when the allegations are contradicted by the record from the original trial proceedings.57 On the other hand, when a Petitioner’s claims are based upon matters outside the record the Petition must not be adjudicated on the pleadings.58 The dismissal of a Post-Conviction Petition is warranted only when the Petition’s allegations of fact, liberally construed in favor of the Petitioner and in light of the original trial record, fail to make a substantial showing of imprisonment in violation of the state or federal constitution.59

The State may respond to the Petition at the second stage by answer or by motion to dismiss. The State’s defense to a Post-Conviction Petition should be raised by answer rather than by motion to dismiss should the Petition raise substantial constitutional questions.60 Expect the typical response by the State to be a motion to dismiss. In that case, a written response is called for and the use of case law in contravention of the State and in support of your position is appropriate. At this juncture, the reply document should take the form of an appellate reply brief. If the motion to dismiss is denied, the State must file an answer within 20 days. No further pleadings shall be filed except by leave of court.61

Stage Three. A stage three hearing on a Post-Conviction Petition is for the purpose of fact finding. A hearing is mandatory if the Petition alleges constitutional issues and specific facts in support thereof or if the Petition alleges new evidence has been discovered since the conclusion of the trial.62 There is no right to a hearing before a jury.63

At hearing, the court may receive proof by affidavits, depositions, oral testimony, or other evidence. The court has wide discretion in regards to the type of proofs it can consider.64 At such a hearing, the circuit court serves as the fact finder, and, therefore, it is the court’s function to determine witness credibility, decide the weight to be given testimony and evidence, and resolve any evidentiary conflicts.65

The Petitioner has the burden of showing the substantial denial of constitutional rights by a preponderance of the evidence.66 If the court finds in favor of the Petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.67 If the Petition is denied, it is subject to appeal as in any other final and appealable court order or judgment.

Conclusion. It is too easy to dismiss the allegations of a Post-Conviction Petitioner as the whining of a disingenuous criminal. Careful analysis and investigation in the aftermath of a trial can often expose a plethora of mistakes, omissions, incompetent acts and new evidence, many rising to the level of substantive constitutional violation. Just because a trial had been engaged in or a plea had been given does not mean justice necessarily had been served. Perseverance and dedication, along with much hard work, are the requirements for generating a successful Post-Conviction Petition. 

1 725 ILCS 5/122-1(a).
2 People v. Carrera, 239 Ill.2d 241 (2010).
3 People v. Vinokur, 2011 IL App (1st) 090798.
4 People v. Carrera, 239 Ill. 2d 241 (2010).
5 People v. West, 145 Ill.2d 517 (1991).
People v. Pack, 224 Ill.2d 144 (2007).
7 People v. Davis, 39 Ill.2d 325 (1968).
8 People v. Correa, 108 Ill.2d 541 (1985).
9 People v. Pack, 224 Ill.2d 144 (2007).
10 People v. Martin-Trigona, 111 Ill.2d 295 (1986).
11 People v. Warr, 54 Ill. 2d 487 (1973).
12 People v. Wallace, 406 Ill.App.3d 172 (2nd Dist. 2010).
13 People v. Kelly, 2012 IL App (1st) 101521.
14 Illinois Supreme Court Rule 651(c).
15 People v. Mendoza, 402 Ill.App.3d 808 (1st Dist. 2010).
16 People v. Komes, 2011 IL App (2nd) 100014.
17 People v. Greer, 212 Ill.2d 192 (2004).
18 725 ILCS 5/122–1.
19 725 ILCS 5/122–2.
20 725 ILCS 5/122–2.
21 People v. Mitchell, 189 Ill.2d 312 (2000).
22 People v. Whitehead, 169 Ill.2d 355 (1996).
23 People v. Holman, 191 Ill.2d 204 (2000).
24 People v. Whitehead, 169 Ill.2d 355 (1996).
25 People v. Owens, 129 Ill.2d 303 (1989).
26 725 ILCS 122-2.
27 People v. Edwards, 2012 IL 111711.
28 725 ILCS 5/122-1(f).
29 People v. Tidwell, 236 Ill. 2d 150 (2010).
30 Strickland v. Washington, 466 U.S. 668 (1984).
31 People v. Steels, 277 Ill.App.3d 123 (1st Dist. 1996).
32 Steels, 277 Ill.App.3d at 127.
33 United States v. Cronic, 466 U.S. 648 (1984).
34 Cronic, 466 U.S. at 659.
35 People v. Hattery, 109 Ill.2d 449 (1986).
36 Hattery, 109 Ill.2d at 462.
37 People v. Washington, 171 Ill.2d 475 (1996).
38 Washington, 171 Ill.2d at 490.
39 People v. Carter, 2013 IL App (2d) 110703-U
40 People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175 (1988).
41 People v. Fair, 193 Ill.2d 256 (2000).
42 People v. Bernatowicz, 413 Ill. 181 (1952).
43 People v. Wilson, 37 Ill. 2d 617 (1967).
44 People v. Clements, 38 Ill. 2d 213 (1967).
45 735 ILCS 5/116-3.
46 People v. Porter, 122 Ill.2d 64 (1988).
47 People v. Coleman, 183 Ill.2d 366 (1998)
48 People v. Topps, 309 Ill.App.3d 813 (1999).
49 People v. Perez, 2013 IL App (2d) 110306.
50 725 ILCS 5/122–2.1(a)(2).
51 725 ILCS 5/122–2.1(c).
52 People v. Edwards, 197 Ill.2d 239 (2001).
53 People v. Coleman, 183 Ill.2d 366 (1998).
54 People v. Caballero, 126 Ill.2d 248 (1989).
55 People v. Hobley, 182 Ill.2d 404 (1998).
56 People v. Jones, 66 Ill.2d 152 (1977).
57 People v. Gaines, 105 Ill.2d 79 (1984).
58 People v. Airmers, 34 Ill.2d 222 (1966).
59 People v Coleman, 183 Ill.2d 366 (1998).
60 People v. Reeves, 412 Ill. 555 (1952).
61 725 ILCS 5/122-5.
62 People v. Coleman, 183 Ill.2d 366 (1998).
63 People v. Scott, 194 Ill.2d. 366 (1998).
64 People v. Ruiz, 177 Ill.2d. 368 (1997).
65 People v. Domagala, 2013 IL 113688.
66 People v. Lego, 168 Ill.2d 561 (1995).
67 725 ILCS 5/122-6.

Wayne Brucar is currently a Supervising Assistant at the DuPage County Public Defender’s Office. He previously engaged in the private practice of criminal defense, administrative law and insurance defense. He has taught legal writing at John Marshall Law School and has given continuing education legal seminars throughout his career in both civil and criminal law practice.

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