What are Post-Convictions Petitions?
Post-conviction petitions are collateral attacks on wrongful convictions that are separate and apart from a direct criminal appeal. Post-conviction petitions are the state equivalent of federal habeas corpus petitions. While not required by law, post-convictions usually follow a direct appeal. Post-conviction petitions, unlike a direct criminal appeal, allows the defendant to raise substantial constitutional deprivations that do not appear in the record. Often times, post-conviction petitions deal with recanted evidence, DNA evidence that was not previously testified, ineffective assistance for failure to present known evidence, and claims of actual innocence.
Illinois law has created three stages of post-conviction review and the defendant must survive the first two-stages before a court conducts an evidentiary hearing on the petition. It is imperative that the petition for post-conviction relief follows all the procedural rules and frames the issues and arguments in the most persuasive manner possible because Illinois law only allows one post-conviction petition as a matter of right. Successive petitions must establish cause and prejudice before a court will allow successive post-conviction petitions.
What are the stages of Post-Conviction Petition?
Illinois law has created 3 different stages a petitioner must overcome before obtaining post-conviction relief.
In the first-stage, the petitioner files a post-conviction petition alleging that he was denied a substantial right guaranteed to him by the U.S. Constitution or the Illinois Constitution. The substantial denial of the constitutional right must have occurred in the proceeding that resulted in his incarceration. The trial court has 90 days from the filing and docketing of the post-conviction petition to make a ruling. If the court finds that the post-conviction petition is frivolous or patently without merit then the post-conviction proceeding is over. However, if the court does not dismiss the post-conviction petition at the first-stage then the petition advances to the next stages.
The 2nd stage of the post-conviction proceeding applies only when a petitioner files a pro se post-conviction petition at the first-stage.
The third-stage of the post-conviction petition consists of a hearing on the post-conviction petition. At the hearing, the trial court may consider affidavits, depositions, oral testimony, or any other relevant evidence.
What is the Difference between Post-Convictions Petitions and Direct Appeal?
Post-conviction petitions are separate and apart from a direct appeal. Post-conviction relief can be sought without filing a direct appeal or concurrently with a direct appeal. Typically though, a post-conviction petition is filed after a direct appeal. Ultimately, post-conviction petitions are vastly different than a direct appeal. An important distinction is that a direct appeal is limited to the record on appeal, whereas, post-conviction petitions can raise arguments that were not contained within the appellate record. For example, newly discovered evidence or claims of actual innocence are issues commonly raised in a post-conviction petition. Another huge difference is that a post-conviction petition is filed in the trial court that entered judgment as opposed to the Illinois Appellate Court.
Even if you have filed a pro se post-conviction petition we still can help.
Why Is A Successive Post-Conviction Petitions Forbidden?
Illinois law is abundantly clear that a person is allowed to only file one post-conviction petition. This includes pro se filings without the help of an appeals attorney. Because of this one petition rule, the post-conviction petition filed on your behalf must be thoroughly prepared. In fact, anything that you fail to raise in your post-conviction petition is given up forever and cannot be raised later.
Successive post-conviction petitions may not be filed unless the trial court grants prior permission allowing you to file a successive post-conviction petition. Before allowing a successive post-conviction petition, the petitioner must establish cause and prejudice, a difficult burden to overcome. To establish this burden, the petitioner must prove that a just reason exists for failing to raise the issue in a prior petition. On top of this, the petitioner must establish that he was prejudiced by the failure.
How soon can I file for a Post-Conviction Petition?
If a direct appeal has been filed, the post-conviction petition must be filed within 6 months from the day the appeal ended. This date can occur 6 months after the appellate court rules, 6 months from your writ of certiorari being denied, or 6 months after the Supreme Court rules. If no direct appeal is filed then the post-conviction petition must be filed within 3 years of the date of conviction. Untimely post-conviction petitions can be filed only if the petitioner can establish that the delay was not due to his culpable negligence.
The time limits governing the filing of a post-conviction petition do not apply to petitions that raise a claim of actual innocence. Therefore, untimely petitions can still be filed if one of the claims raised in the petition for post-conviction relief raises an issue that he was actually innocent of the crime. Strict timelines govern when a post-conviction must be filed.
One of the most common and effective way to obtain post-conviction relief, is a post-conviction petition brought under the Illinois Post-Conviction Hearing Act. We know what it takes to overturn your wrongful conviction and finally give you the justice that you deserve.
Areas We Serve
Centrally located in Du Page County we represent clients in trial and appellate courts throughout Illinois including the counties of Cook County, Du Page County; Will County, and Kane County. We have won on behalf of clients at the Daley Center; 26th and California; Bridgeview; Skokie; Rolling Meadows; Maywood; Markham; and all the branch courts in Chicago; and the Northern District of Illinois along with all five Illinois Appellate Courts and the federal circuit court of appeals.