Post-Conviction Hearing Act 2017-07-30T16:06:07+00:00

Post-Conviction Hearing Act

A post-conviction petition filed under the Post-Conviction Hearing Act, 725 ILCS 5.122-1, allows a person convicted of a crime to challenge a criminal conviction based upon denial of a constitutional right. Unlike a direct appeal, a post-conviction petition raises issues that do not appear in the appellate record. A post-conviction petition is liberally construed so it provides a broader remedy than the other collateral attacks to a conviction that are available in Illinois such as relief from judgments under 735 ILCS 5/2-1401; Illinois’s habeas corpus under 735 ILCS 5/10-101; or a motion for forensic testing based on technology not available at time of trial under 725 ILCS 5/116-3. Simply put, the Post-Conviction Hearing Act allows for an independent remedy that is separate and apart from a direct appeal to investigate whether the convicted defendant was denied a substantial constitutional rights in the proceedings that resulted in the defendant’s conviction.

What the Requirements of filing a Post-Conviction Petition?

The substantial constitutional violation raised in the post-conviction petition must have occurred in the proceeding that resulted in the conviction. This provision is rarely in dispute because the constitutional violation typically occurs at the trial that led to the conviction.

The person raising an argument under the Post-Conviction Hearing Act must be imprisoned in an Illinois penitentiary. The Post-Conviction Hearing Act defines “imprisoned” as the curtailment of a person’s liberty  by the state. Thus to be imprisoned under the Post-Conviction Hearing Act, the defendant must be serving some type of sentence. Therefore, if the person’s liberty is no longer constrained in any way because the sentence is complete, that person lacks standing to file a post-conviction petition.

What is the Statute of Limitations on Filing a Post-Conviction Petition?

Generally, a post-conviction petition must be filed within six months after the end of the direct appeal process. If no direct appeal is filed then the post-conviction petition must be filed within three years of the date of conviction. Claims of actual innocence raised in a post-conviction petition are excluded from the general statute of limitations. However, to raise an actual innocence claim requires showing that the evidence that establishes actual innocence was newly discovered and could not have been previously discovered through due diligence. This limitation requires that the actual innocence claim be raised as soon as possible.

What is the Effect of an Untimely Post-Conviction Petition?

Barring a couple of situations, courts will not consider untimely post-conviction petitions on their merits. However, because a timely filing is not a jurisdictional prerequisite, the State can waive the statute of limitations. Additionally, a post-conviction petition will survive an untimeliness claim if the petitioner can establish that the delay was not due to his or her culpable negligence.


Post-conviction petitions based upon the Post-Conviction Hearing Act are a powerful means of rectifying constitutional violations. However, they are governed by strict procedural rules that must be followed to be successful. Navigating the various steps contained within the Post-Conviction Hearing Act requires skill and experience. If you or your family member have been denied your constitutionals rights at trial, contact Jaleel Law P.C. today to discuss how we can help.