by Attorney Eric D. PuryearPostconviction relief proceedings in Illinois are governed by 725 ILCS 5/122. Postconviction relief proceedings are civil actions attacking a criminal conviction and/or sentencing. Typically, postconviction relief actions are initiated after the criminal defendant’s direct appeals have been exhausted.
Any person imprisoned may institute a postconviction relief action Illinois if the person alleges that (1) there was a substantial denial of his or her rights under the United States Constitution and/or the Illinois Constitution or (2) the death penalty was imposed and there is newly discovered evidence not available at the earlier proceeding that establishes a substantial basis to believe the defendant/petitioner is actually innocent by clear and convincing evidence. Typically, a defendant/petitioner in a postconviction relief action alleges that he or she received ineffective assistance of counsel.
The petitioner must file a petition verified by affidavit with the clerk of court in the county in which the conviction took place. The petition must include the proceeding in which the petitioner was convicted, the date of the final judgment, and clearly set for the constitutional rights that were violated. The petitioner must also attach to the petition affidavits, records, or other evidence supporting the allegations or state why these are not attached. Only one petition may be filed. Thereafter, subsequent petitions can only be filed upon leave of the court and for good cause.
Postconviction relief proceedings must be brought in a timely manner or they may be barred. The petition must be filed within six (6) months after the conclusion of the proceedings in the United States Supreme Court. If a petition for certiorari is not filed, then the deadline is within six (6) months from the date for filing a certiorari petition. If the petitioner does not file a direct appeal, then the deadline is three (3) years from the date of the conviction. The petitioner may be excused from these time limitations by alleging facts showing that the delay was not due to his or her culpable negligence.
Once the petition is on file, the court must examine the petition within ninety (90) days and enter an order. If the court determines that the petition is frivolous or patently without merit, the court must dismiss the petition. If the court does not dismiss the petition, the court must docket it for further consideration. If the petitioner is indigent, then the court can order that the petitioner proceed as a poor person, order that the transcripts be provided to the petitioner, and appoint counsel to represent the petitioner. Within thirty (30) days of the further consideration order, the State must either file an answer or a motion to dismiss. If the State files a motion to dismiss and it is denied, then the State must file the answer within twenty (20) days of the denial. At the evidentiary hearing on the petition, the parties may present evidence via affidavits, depositions, oral testimony, or other evidence. The court has discretion to order that the petitioner be brought to court for the hearing. If the court finds in the petitioner’s favor, it may enter an any appropriate orders as are necessary and proper.