Defendant on sex offender registry does not have standing to file a post-conviction petition

The First District grappled with two related issues in People v. Begay, 2018 IL App (1st) 150466 that were ultimately resolved against the defendant-petitioner. The petitioner, with the assistance of an attorney, filed a post-conviction petition. There are three stages to a post-conviction proceeding. The first stage involves the court reviewing the petition to determine whether it contains a “gist” of a constitutional claim. If the court makes this determination, then the court advances the petition to the second stage, where the State has an opportunity to file an answer or a motion to dismiss. If the petition survives this stage, then the petition proceeds to the third and final stage, which is an evidentiary hearing on the claims alleged in the petition.

Under the Act, the court has 90 days to determine whether the petition contains a gist of a constitutional claim. If the court does not make a determination on that issue within 90 days, then the petition automatically advances to the second stage, regardless of the substantive merits of the petition. In this case, the court determined that the petition should be dismissed at the first stage because the petitioner did not have standing to file a petition under the Act. However, the court made this determination after the 90-day review period had expired. Begay argued on appeal that the case should have automatically advanced  to the second stage because the court dismissed the petition after the 90-day review period had expired. However, the appellate court disagreed.

As stated in Begay, 2018 IL App (1st) 150466, ¶ 43:

The Act provides that “[a] proceeding shall be commenced by filing with the clerk of the court” a petition. 725 ILCS 5/122-1(b) (West 2016). “Petitioner shall also serve another copy upon the State’s Attorney ***.” 725 ILCS 5/122-1(b) (West 2016). “The clerk shall docket the petition for consideration by the court *** upon his or her receipt thereof and bring the same promptly to the attention of the court.” 725 ILCS 5/122-1(b) (West 2016). “Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.” (Emphases added.) 725 ILCS 5/122-2.1(a) (West 2016). “If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration ***.” 725 ILCS 5/122-2.1(b) (West 2016). 

The question then became “whether the 90-day period is counted from the filing or the docketing of the petition.” ¶ 44. If it was counted from the filing of the petition, then Begay would win because the trial court dismissed the petition well beyond 90 days from when the petition was filed. However, the Begay court held that the 90 days begins to run when the petition is docketed, not merely when it is filed. A petition is considered “docketed” “when the clerk of the court entered the petition into the case file and set it for a hearing.” Id. at ¶ 46. In this case, the court dismissed the case within 90 days of the clerk entering the petition into the case file and setting it for hearing. Therefore, the petition should not have automatically advanced to the second stage.

The Begay court also reviewed the trial court’s ruling that a petitioner whose sentence has expired but who is still on the sex offender registry lacks standing under the Act. This is the more interesting legal issue here, but the First District did not analyze it in great detail because it recently held in People v. Jones, 2018 IL App (1st) 151307 that being a sex offender does not confer standing on a post-conviction petitioner. However, the court acknowledged the recently decided case of People v. Tetter, 2018 IL App (3d) 150243, where the Third District held that registering as a sex offender constituted punishment, which could very soon lead to a district-split on the issue of whether a sex offender has standing to file a petition under the Act. I expect this issue to reach the Illinois Supreme Court in the next couple years as this split deepens.

The 30-day waiting period for sua sponte dismissal of 2-1401 petitions does not apply for successive 2-1401 petitions (People v. Donley, 2015 IL App (4th) 130223)

People v. Donley, 2015 IL App (4th) 130223 (March 26, 2015) Livingston Co. Affirmed. Robert Donley was convicted of first degree murder following a 1997 bench trial. He was sentenced to 45 years DOC. His conviction and sentence were affirmed on appeal. Donley thereafter launched numerous unsuccessful attempts to collaterally attack his conviction and sentence pursuant to the PCHA. This appeal concerns two petitions for relief from judgment filed pursuant 735 ILCS 5/2-1401, the first of which was filed in January of 2013 and the second of which was filed in June of 2013. The first 2-1401 petition challenged defendant’s 3-year term of MSR. This petition was dismissed sua sponte with prejudice in March of 2013. The second 2-1401 petition claimed that defendant’s “conviction and sentence was obtained by fraud, ignorance, and deprivation of a defense.” This petition was also dismissed sua sponte with prejudice in June of 2013. The defendant appealed the dismissal of both, contending “that (1) because he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989), his petitions were not ripe for adjudication; and (2) the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn, 233 Ill. 2d 318 (Ill. 2009). Donley requested that the appellate court vacate the trial court’s dismissal of his 2-1401 petitions and remand for further proceedings.

Section 2-1401(b) provides that “[a]ll parties to the petition shall be notified as provided by rule.” 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985) states that notice of the filing of a petition under section 2-1401 of the Code “shall be given by the same methods provided in Rule 105.” Rule 105(b) provides that notice shall be directed to the party and must be served either by summons, by prepaid certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The notice must state that a judgment by default may be taken against the party unless he files an answer or otherwise files an appearance within 30 days after service.” People v. Nitz, 2012 IL App (2d) 091165, ¶ 9 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)). ¶ 29.

The defendant argued that “when he sent his petitions through the regular mail instead of providing the State notice by either (1) summons, (2) certified or registered mail, or (3) publication, he failed to comply with Rule 105. Given his failure, defendant posits that the 30-day period for the State to answer or otherwise plead did not begin. From that premise, defendant claims that the court’s sua sponte dismissal was premature because his January and June 2013 petitions were not yet ripe for adjudication.” ¶ 32. However, the Court, in relying on People v. Alexander, 2014 IL App (4th) 130132, a case I discussed earlier in February, rejected this argument, adhering to “its conclusion in Alexander that a ‘[d]efendant should not be able to serve a party incorrectly and then rely on the incorrect service to seek reversal” of the trial court’s decision. ¶ 34.

As to defendant’s second argument that “the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn,” the Court distinguished defendant’s case from Laugharn because the petition at issue was a successive 2-1401 petition, whereas Laugharn concerned the dismissal of an initial 2-1401 petition. Under the circumstances presented in this case, the Donnelly court held, “we reject defendant’s argument that the supreme court’s decision in Laugharn prohibits a trial court from immediately considering a successive section 2-1401 petition that (1) does not comport with the requirements outlined in section 2-1401 of the Code or (2) raises claims the court has previously considered and rejected or could have been raised in the initial section 2-1401 pleading. As we have previously noted, the 30-day rule announced in Laugharn was intended to allow a party sufficient time to respond to a section 2-1401 petition instead of empowering a prisoner to persist in filing frivolous claims. The supreme court in Laugharn was not dealing with a successive section 2-1401 petition, and we do not believe that the supreme court would limit a trial court’s authority on handling such petitions, especially, as here, when they are clearly frivolous.”¶ 34.

Clearly frustrated by the defendant’s repeatedly frivolous filings, the Court, in addition to affirming the trial court’s dismissal of defendant’s 2-1401 petition, issued a rule to show cause why defendant shouldn’t be sanctioned, and ordered the clerk to reject anymore filings from the defendant.

Post-conviction petitions must be supported by evidence; if that is in the form of an affidavit, then the affidavit must be notarized (People v. Brown, 2015 IL App (1st) 122940)

People v. Brown, 2015 IL App (1st) 122940 (March 11, 2015) Cook Co. Affirmed. The defendant in Brown was convicted of unlawful use of a weapon by a felon after a jury trial. He was sentenced to 13 year DOC, and his conviction and sentence were affirmed on appeal. Brown filed a post-conviction petition alleging that his trial counsel provided ineffective assistance for “failing (a) to investigate and present four witnesses whose testimony would have supported the one defense witness at trial who testified Brown did not have a weapon and (b) to inform Brown of the State’s guilty plea offer and the extended sentence he faced if convicted at trial” and laboring under a conflict of interest because trial counsel also represented a man who could have been a potential defense witness. ¶ 1. Brown’s Petition was dismissed at second stage because “allegations in Brown’s petition, with his supporting documentation, fail to make a substantial showing of any constitutional deprivation to warrant a third-stage proceeding when viewed against the full and complete record…” ¶ 2.

Brown attached his own affidavit in support of his petition, as well as an affidavit from trial counsel, an affidavit from a potential witness named Arnold Misher, and a handwritten statement entitled “affidavit” from another individual. Brown’s affidavit attested that he told trial counsel that another person had possessed the weapon that Brown was convicted of possessing, and that this person would testify to this, but that his lawyer indicated to Brown that she would not call this witness because he was a “trouble maker.” The affidavit also averred that trial counsel never communicated the State’s 3-year DOC offer to the defendant. Trial counsel’s affidavit indicated that she was concerned about the effect that any plea agreement would have on Brown’s federal parole and that Brown was not interested in accepting the State’s 3-year DOC offer. Misher’s affidavit recalled the arrest of defendant and did not mention defendant having a gun. The handwritten statement that was entitled “affidavit” but was unsigned, undated, and not notarized, was from a witness who made vague reference to seeing a man wearing a white shirt with a machine gun prior to the police arriving. The statement did not mention Brown. Brown later amended the petition and attached two additional documents entitled “Affidavit” that were not notarized. These were purportedly from additional witnesses with similar stories. Both “Affidavits” stated that the witnesses had not seen Brown with a gun.

Brown’s petition had advanced first stage proceedings, but was dismissed at the second stage. The relevant question raised during a second-stage postconviction proceeding is whether the petition’s allegations, supported by the trial record and accompanying affidavits, demonstrate a substantial showing of a constitutional deprivation, which requires an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 381 (1998). All well-pled facts in the petition and affidavits are taken as true, but assertions that are really conclusions add nothing to the required showing to trigger an evidentiary hearing under the Act. Id.

The appellate court held that Brown’s petition was properly denied at the second stage. As to the ineffective assistance of counsel claim that Brown’s trial counsel failed to call these various witnesses who have testified that they did not see him with a gun, “the defendant’s allegation must be supported by an affidavit from that witness that contains the witness’s proposed testimony.” 725 ILCS 5/122-2 (West 2010); People v. Enis, 194 Ill. 2d 361, 380 (2000); see also People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (when defendant attacks competency of trial counsel in postconviction petition for failure to call or contact certain witnesses, defendant must attach affidavits from those witnesses). “In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary.” Enis, 194 Ill. 2d at 380. Affidavits must be notarized in order to satisfy the pleading requirements of section 5/122-2 of the Act. The “affidavits” purportedly made by these various witnesses that Brown sought to have trial counsel call at trial were legally insufficient because they were not notarized, and Brown did not offer any explanation for why they were not notarized.

However, even “Construing the notarization requirement as a technicality, we find the affidavits Brown offered in support of his allegations are still insufficient to support his allegation that trial counsel was ineffective for failing to call each of his proposed witnesses to testify. Brown cannot overcome the strong presumption that counsel strategically decided which witnesses to call to testify at his trial and he has not made a substantial showing of prejudice based on counsel’s decision not to call any of his proposed witnesses.” ¶ 55. The appellate court also dismissed Brown’s claim that trial counsel did not communicate the State’s offer to him because 1) the trial court independently recalled defense counsel communicating the offer to Brown, and 2) Brown failed to show prejudice, even if he could prove that trial counsel failed to communicate the offer to him. The court found that the remainder of Brown’s claim lacked evidentiary support from his affidavits.

Brown demonstrates 1) the importance of supplying evidence to accompany the legal claims made in the post-conviction petition, and 2) if that evidence is in the form of an affidavit, that document needs to be notarized in order to meeting the pleading requirements of the Act.

State had actual notice of 2-1401 petition when ASA appeared in court, despite service being improper (People v. Lake, 2014 IL App (1st) 131542)

People v. Lake, 2014 IL App (1st) 131542 (December 29, 2014) Cook Co., 5th Div. Affirmed. Defendant Lamonte Lake was convicted at trial of first degree murder in 1996 and sentenced to 45 years DOC. His conviction and sentence were later affirmed on appeal, but defendant continued to challenge his conviction and sentence, without success, through post-conviction petitions, a petition for writ of mandamus, and through section 2-1401 petitions.

Lake’s latest appeal concerns the dismissal of a pro se 2-1401 petition in which he argued that the trial court erred by failing to admonish defendant that an MSR term would follow his prison sentence and by in fact adding that MSR term to his sentence. Defendant’s notice of filing of the petition indicated that he served the petition on the trial court and the State via U.S. mail. The defendant’s petition was received by the Clerk and docketed on January 29, 2013. The trial court acknowledged in open court on February 22, 2013, that the defendant had filed his 2-1401 petition. The court, in the presence of the Assistant State’s Attorney who had appeared for the State on February 22, 2013, continued the case until March 21, 2013, and then continued the case again until April 4, 2013. The trial court denied the defendant’s petition in a written order filed at the court date on April 4, 2013. Defendant appealed.

The Lake court rejected the defendant’s substantive MSR claim, relying on the Ill. Supreme Court’s recently decided decision in People v. McChriston, 2014 IL 115310, which held that the defendant’s MSR term was automatically added to his sentence, such that the trial court had no discretionary power in imposing it.

Notable in this decision is not defendant’s weak substantive claim, but the defendant’s argument that “that the trial court’s dismissal of his section 2-1401 petition was premature because he failed to properly serve the State with the petition” “because, according to Supreme Court Rule 105(b), service cannot be made through regular mail.” ¶ 11, citing Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). This is the exact same argument that the defendant made in People v. Alexander, 2014 IL App (4th) 130132 (December 18, 2014), discussed in detail earlier today in this post. The Lake court, like the Alexander court, acknowledged People v. Vincent, 226 Ill. 2d 1 (2007) and People v. Laugharn, 233 Ill. 2d 318 (2009), but declined to decide on the issue by the holding of these two cases because “neither Vincent nor Laugharn addressed the question of proper service on the State or considered whether the State may waive improper service by failing to object and whether the defendant may challenge his own error as a basis for remand.” ¶ 22.

Instead, the Lake court held that the sua sponte dismissal of defendant’s petition was proper under the First District’s decision in People v. Ocon, 2014 IL App (1st) 120912. “In Ocon, we looked to whether the object and intent of notice had been achieved. We held that the State had actual notice of the petition because an assistant State’s Attorney appearing on behalf of the Cook County State’s Attorney and the respondent for purposes of section 2-1401 was present in open court when the petition was docketed. ¶ 25, citing Ocon at ¶ 35. Accordingly, “Under Ocon, the State in the instant case had actual notice of defendant’s section 2-1401 petition when an assistant State’s Attorney was present in court on February 22, 2013. It opted not to respond to the motion and the petition was ‘ripe for adjudication’ after the 30-day period passed. The trial court, therefore, properly dismissed the petition on the merits on April 4, 2013.” ¶ 26.

Defendant tries to use his failure to properly serve State as basis for appeal. Does not end well for him. (People v. Alexander, 2014 IL App (4th) 130132)

People v. Alexander, 2014 IL App (4th) 130132 (December 18, 2014) McLean Co. Affirmed and remanded. Alvin Alexander was convicted of three counts of first-degree murder in 1992 and sentenced to life in prison. He spent the next 20-plus years filing post-conviction petitions and 2-1401 petitions in the trial court, and then appealing the (often sua sponte) denial of those petitions to the appellate court. “The issue in this appeal—defendant’s sixth appeal to this court—concerns defendant’s pro se document entitled “leave to file petition for relief from judgment” pursuant to section 2-1401(f) of the Civil Code, which defendant mailed to the McLean County circuit clerk on December 17, 2012.” ¶ 26.

Alexander’s 2-1401 petition argued that the trial court lacked personal jurisdiction over his case because the police lacked probable cause to arrest him. The defendant filed various handwritten notices and affidavits of service with his petition. The defendant’s petition was denied sua sponte as being frivolous as defined by 22-105 of the Civil Code. Defendant appealed, urging the appellate court to vacate the “trial court’s sua sponte denial of his December 2012 petition for relief from judgment, arguing that because he did not properly serve the State as required by Rule 105, his petition was not ripe for adjudication.” ¶32.

Based on Vincent and Laugharn, the law in Illinois is settled that (1) a trial court may dismiss a section 2-1401 petition on its own motion without benefit of responsive pleadings (Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23) and (2) a court may not adjudicate a section 2-1401 petition prior to the 30-day period in which the respondent can answer or otherwise plead (Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805). ¶ 41. Alexander argued on appeal that “because he sent his petition by regular mail, he failed to comply with the provisions of Rule 105 regarding proper service of his notice by either (1) summons, (2) certified or registered mail, or (3) publication. Defendant then asserts that because service was improper, the 30-day period for the State to answer or otherwise plead did not even begin. Primarily relying on Vincent and Laugharn, defendant claims that the court’s denial was premature because his petition was not yet ripe for adjudication.” ¶ 44.

The appellate court disagreed. “The flaw in defendant’s argument is that under Laugharn, the primary purpose of the 30-day period is to afford the State sufficient time to respond to a petitioner’s claims seeking relief from judgment before a trial court may sua sponte consider the petition. Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805. In other words, the court must allow the State time to make its position known. However, the 30-day period does not provide a sword for a petitioner to wield once a court—as in this case—does not find in his favor, especially given that, under defendant’s interpretation, the basis of his claim on appeal is his failure to comply with Rule 105. If we were to accept defendant’s rationale, a prisoner who uses regular mail to effect service upon the State will—upon appeal—be rewarded with a second bite of the apple if the court denies his petition on the merits. Indeed, no practical reason would exist to comply with the provisions of Rule 105 because to do so would foreclose that avenue of review, which effectively empowers a prisoner to persist in filing frivolous claims.” ¶ 46. “…We refuse to reward defendant for his knowing failure to comply with Rule 105. Defendant should not be able to serve a party incorrectly and then rely on the incorrect service to seek reversal.” ¶ 47.

The Court, in a separate section entitled “Defendant’s Abuse of the Court System,” went on to rebuke the defendant for his “numerous claims under the Postconviction Act, Habeas Corpus Act, and Civil Code in the hope of raising any issue—however obscure, repeated, or futile—that would end or curtail his current incarceration” that have been filed over the past 22 years.” ¶ 57. As the Court “previously concluded, defendant’s claim is without question frivolous, and he had no legitimate basis for appealing the court’s sua sponte denial of his jurisdictional claim. The fact that OSAD—in demonstrating its usual competence and professionalism—raised a colorable argument on appeal regarding service of process was merely fortuitous. It is readily apparent that without some consequences for his repeated frivolous filings, defendant will continue to burden the trial and appellate courts.” ¶ 58. The Court thereafter ordered defendant to show cause why he should not be sanctioned pursuant to Ill. SCR 375(b).

The Court concluded with this amusing gem in its “Epilogue”: “Surely, the judiciary cannot permit this situation to continue. Doing so simply empowers defendants like the one now before us, who is unhappy with his lot in life—sitting in prison merely because of his complicity in the execution of three innocent people—to continue to “attack the system” with groundless claims, thereby requiring the courts to squander their scarce resources. Indeed, we surmise that forcing the courts to do so is likely defendant’s key motivation.” ¶ 63.

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.

Cause-and-prejudice test requirement met if defendant adequately pleads it (People v. Smith, 2014 IL 115946)

People v. Smith, 2014 IL 115946 (December 4, 2014) is an Illinois Supreme Court case concerning the trial court’s denial of the defendant’s petition for leave to file a successive post-conviction petition under 725 ILCS 5/122-1(f). Smith was found guilty of murder and aggravated battery of a firearm following a jury trial and was sentenced to 28 years DOC. Smith’s conviction and sentence were affirmed on direct appeal. Smith then filed a pro se post-conviction petition, arguing that he received ineffective assistance of counsel where his defense lawyer failed to investigate the defendant’s claim that he suffered from a mental disability, which he argued rendered his sentence unconstitutional. The petition advanced to the second stage and counsel was appointed to represent him. The State filed a motion to dismiss Smith’s petition, which was granted. The appellate court affirmed the dismissal of the petition on direct appeal.

Smith then filed a motion for leave to file a successive post-conviction petition, along with a successive petition, claiming that 1) appellate counsel was ineffective for failing to raise on direct appeal an issue regarding the prosecutor’s comments during opening statements 2) and post-conviction counsel was ineffective for failing to amend his post-conviction petition to include a claim of ineffective appellate counsel. Smith contended that he was impeded from raising those claims in his initial petition due to his low IQ. He attached supporting documentation from the Social Security Administration stating that Smith was disabled due to mental retardation. The trial court denied the petition for leave to file successive post-conviction petition under 725 ILCS 5/122-1(f) because the defendant failed to meet the “cause-and-prejudice” test under that section. The defendant appealed, and the appellate court affirmed. The defendant petitioned for leave to appeal to the Illinois Supreme Court, which was granted. The issue before the court was the interpretation of 122-1(f).

Section 725 ILCS 5/122-1(f) sets forth the requirements for filing a successive post-conviction petition: “(f) Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court 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. For purposes of this subsection (f): (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.”

Smith argued on appeal that “section 122-1(f) should be interpreted “such that the determination of whether to grant leave to file a successive petition occurs in conjunction with the first-stage proceedings, and that leave should be granted where the pleadings make an arguable showing of cause and prejudice.” (Emphasis added). ¶25. The issue that Smith raised here is the same issue that the Illinois Supreme Court grappled with, but did not decide, in People v. Evans, 2013 IL 113471: “is cause and prejudice evaluated prior to the first stage of postconviction proceedings, or in conjunction with the first stage of postconviction proceedings? Does a successive postconviction petitioner ‘demonstrate’ cause and prejudice by adequately pleading it, or by actually proving it? And if by actually proving it, what provision is there for the presentation of evidence? Is cause and prejudice a one-sided question, or may the State contest a cause and prejudice claim?” Id. The Evans Court called on the legislature to clarify this question, but, to date, the legislature has failed to do so, which has resulted in confusion and conflict among the appellate courts.

In construing 122-1(f), the Court noted that “Section 122-1(f) does not provide for an evidentiary hearing on the cause-and-prejudice issues and, therefore, it is clear that the legislature intended that the cause-and-prejudice determination be made on the pleadings prior to the first stage of postconviction proceedings.” ¶33. The Court held that “a defendant’s pro se motion for leave to file a successive postconviction petition will meet the section 122-1(f) cause and prejudice requirement if the motion adequately alleges facts demonstrating cause and prejudice.” (Emphasis added). ¶34. “Consistent with our holdings in Pitsonbarger, Tidwell, and Edwards, we conclude that leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings.” ¶35.

Applying this holding to the facts here, the Court held that Smith failed to meet the cause-and-prejudice test because he failed to show prejudice under the second prong of the test where the underlying legal claim that he wished to assert in the successive petition—the prosecutor’s improper opening remarks—was legally meritless, even if the facts he offered in support of his reason for bringing this claim in a successive petition were considered to be enough to satisfy the cause-and-prejudice requirement.

It’s a little puzzling that the Supreme Court used this case—with such a weak underlying claim—to resolve this issue, but it appears that Smith nonetheless does a nice job of resolving this confusing procedural issue that the legislature failed to fix.