Wrongful convictions are unfortunately a fact of the criminal justice. This ugly fact is so prevalent that we all know someone who was falsely arrested and is now wrongfully incarcerated. However, all hope is not lost and justice may still be available to you. The law provides several options to obtain post-conviction relief from wrongful convictions. One of the most common and effective is a post-conviction petition brought under the Illinois Post-Conviction Hearing Act.
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.
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.
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.
Strict timelines govern when a post-conviction must be filed. The timeline that governs depends upon whether a direct appeal was pursued. 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.
Post-conviction petitions are a means to ensure your release following a wrongful conviction. However, winning on a post-conviction petition is not an easy hurdle to overcome. As a former appellate prosecutor, Omer Jaleel has the experience required to properly handle a post-conviction petition. We know what it takes to overturn your wrongful conviction and finally give you the justice that you deserve.
Even if you have filed a pro se post-conviction petition we still can help.
Contact us today to discuss what we can do to change the result of your case! 630-360-2LAW (2529)