Why the timing of post-conviction petitions is important (People v. Simon, 2014 IL App (1st) 130567)

People v. Simon, 2014 IL App (1st) 130567 (December 5, 2014). Cook County. Affirmed. Defendant Damon Simon was convicted of first-degree murder in connection with a shooting death, and was sentenced to 50 years DOC. Simon filed a pro se post-conviction petition while his direct appeal was pending. That petition was dismissed at first stage, and the appellate court subsequently affirmed defendant’s conviction and sentence on direct appeal, as well as the denial of his post-conviction petition. Defendant then filed a successive post-conviction petition, asserting, among other claims, actual innocence. The trial court denied leave to file the petition because it found that Simon failed to meet the “cause-and-prejudice” test needed to file a successive petition under the Act. Simon appealed, and this decision followed, affirming the trial court’s dismissal of defendant’s petition.

Simon unsuccessfully argued on direct appeal that “(1) the trial court erred in barring evidence that supported defendant’s theory of self-defense, (2) the trial court relied on an erroneous recollection of the evidence in weighing witness credibility, and (3) the State failed to disclose a witness’ felony conviction and allowed the witness to provide perjured testimony when it failed to correct the witness’ misstatement of his criminal history.” ¶ 41. Thirty-nine days after sentencing, defendant filed a pro se post-conviction petition arguing “that his trial counsel was ineffective for (1) filing a posttrial motion without reviewing trial transcripts after requesting that defendant pay additional funds to obtain the transcripts and (2) failing to argue for second degree murder despite defendant’s specific request for him to do so.” ¶ 42. The petition was denied by the trial court as being frivolous and patently without merit. The appellate court affirmed.

The defendant then filed a petition for leave to file a successive post-conviction petition.

PRACTICE TIP: Note that defendants cannot just file successive petition ad infinitum. The Act requires the defendant to ask permission from the court to file the successive petition through a petition for leave. If the trial court grants the petition for leave, then the defendant can then file the successive petition. Crucial to the trial court’s decision in granting leave to file the successive petition is the defendant showing the court why the failure to bring these new claims in prior proceedings was essentially not his fault.

Simon’s petition for leave “claimed that there was cause for his failure to raise all claims in his initial postconviction petition in that the initial petition “was intended as a post- trial motion, and only labeled as a post-conviction petition after Petitioner was misguided to do so by a jail-house lawyer.” Defendant further claimed that without leave to file the successive petition, he would be “effectively denied the right to present constitutional claims of a serious magnitude, including allegations of ineffective assistance of counsel.” ¶44. Simon’s successive petition stated various claims of ineffective assistance of counsel. He also claimed that he had new evidence in the form of a witness affidavit that supported his self-defense theory asserted at trial. Leave was denied, and the defendant argued on appeal that “he should have been granted leave to file a successive postconviction petition because (1) he presented a claim of actual innocence based on the affidavit of Green, a “key State witness”; and (2) he demonstrated cause and prejudice for his failure to previously raise several meritorious claims concerning trial counsel’s ineffectiveness.” ¶48.

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) generally contemplates that a defendant will file only one postconviction petition. Ortiz, 235 Ill. 2d at 328. However, there are two ways to overcome the procedural bar to filing a successive petition: (1) the Pistonbarger cause-and-prejudice test; and (2) the Ortiz actual innocence test. People v. Ortiz, 235 Ill. 2d 319, 330 (2009) (describing two ways to overcome the procedural bar); People v. Pistonbarger, 205 Ill. 2d 444, 459 (2002). Simon sought leave under both exceptions.

As to the actual innocence claim, “leave of court should be denied only where it is clear, from a review of the successive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.” Edwards, 2012 IL 111711, ¶ 24. “Stated differently, leave of court should be granted when the petitioner’s supporting documentation raises the probability that ‘it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence’ [citation].” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup, 513 U.S. at 327). The defendant must show that the evidence in support of his actual innocence claim is: (1) newly discovered; (2) material and not merely cumulative; and (3) of such a conclusive character that it would probably change the result on retrial. Ortiz, 235 Ill. 2d at 333. Evidence is considered “newly discovered” if (1) it has been discovered since the trial; and (2) the defendant could not have discovered it sooner through due diligence. Ortiz, 235 Ill. 2d at 334. “Evidence is considered cumulative when it adds nothing to what was already before the jury.” Ortiz, 235 Ill. 2d at 335. To determine whether the evidence “would probably change the result of retrial,” the court must conduct a case-specific analysis of the facts and evidence. (Internal quotation marks omitted.) Ortiz, 235 Ill. 2d at 336-37. ¶¶ 57-58.

The appellate court held that the affidavit that Simon characterized as “new” evidence supporting his claim of actual innocence was in fact not new because several of the witness’ statements were made at trial and the statements that the witness made in the affidavit were affirmatively rebutted by the trial record.

As to Simon’s argument that he passed the cause-and-prejudice test, the appellate court disagreed. Under section 122-1(f), leave to file a successive petition “may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2012). Section 122-1(f) further provides that: “(1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2012). Both elements of the cause-and-prejudice test must be satisfied in order for the defendant to prevail. Guerrero, 2012 IL 112020, ¶ 15. The appellate court held that Simon’s claims of ineffective assistance did not satisfy the second prong of the cause-and-prejudice test, in that they would not have “so infected the trial that the resulting conviction or sentence violated due process.” The appellate court therefore affirmed dismissal on this ground, too. Having determined that Simon failed to meet the actual innocence and the cause-and-prejudice requirements necessary to file a successive petition, the appellate court affirmed the trial court’s dismissal of the petition for leave.

What stands out to me about this case is not the rather vanilla claims that the defendant asserted throughout post-trial proceedings, but the defendant’s tragic misunderstanding of the law in presenting these claims to the court. The claims themselves might have actually gotten the defendant somewhere if he would have presented them in the right way. The problem started when he filed a post-conviction petition 39 days after sentencing while the case was on direct appeal. A defendant has 6 months after the denial of the PLA following the direct appeal to file a post-conviction petition. There was no reason for the defendant to rush it here as he did. He tried to backpedal out of the mistake by claiming that a jailhouse lawyer told him to characterize the filing as a post-conviction petition rather than a motion for new trial (which would have been untimely filed anyway at 39 days after judgment), but he burned his one chance at post-conviction petition when he didn’t have time to develop his claims (evidenced by the fact that his later petition contained an affidavit from a State’s witness, which defendant probably would not have been able to obtain just a few short months after trial). If the defendant had just waited until his conviction and sentence were affirmed on direct appeal before filing his post-conviction petition, then he would have had time to formulate and gather evidence for all of the claims that he made in his first and second petition; he wouldn’t have had to jump through the successive petition hoops; and he could also raise ineffective assistance of appellate counsel claims that he otherwise would not have been able to raise in his initial petition. But simply filing that first pro se petition too soon significantly restrained his ability to raise his otherwise decent substantive claims.

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