Tag Archives: Successive Petitions

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

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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)

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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.

Seventh Circuit declines to decide retroactivity of Miller v. Alabama where juvenile did not receive mandatory life sentence (Croft v. Williams, No. 14-3419 (7th Cir.))

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Croft v. Williams, No. 14-3419 (7th Cir.). Decided November 25, 2014. The appellant-defendant, Curtis Croft, petitioned the Court to authorize him to pursue a successive petition for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that his life sentence for murder was unconstitutional under Miller v. Alabama, 132 S. Ct. 2445 (2012) because he was 17 years old when he committed the crime.

The filing requirements for successive habeas petitions are located at 28 U.S.C. § 2244. Section (a) provides that “No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.” Furthermore, section (b)(1) provides that “A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” However, section (b)(2) provides that “A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable…” Accordingly, Croft argued that he should be granted leave to file a successive habeas petition under § 2254 because he was arguing that Miller was retroactive, in satisfaction of the 28 U.S.C. § 2244(b)(2)(A) exception.

The Court noted that the question of whether Miller was retroactive was currently up in the air and the subject of a deepening circuit split. The Court noted that Miller had been deemed to be retroactive by the Illinois Supreme Court, but ultimately the Court never determined whether Miller was retroactive in the 7th Circuit: “The reason is simple: Miller is inapplicable to Croft’s case. As the Appellate Court of Illinois noted in affirming the second-stage dismissal of Croft’s petition for post-conviction relief, life sentences for murder are discretionary under Illinois law. This is a critical difference from the situation presented in Miller, which considered only “mandatory life-without-parole sentences for juveniles.” Croft, at 3, citing Miller, 132 S. Ct. at 2464.” For this reason, “…even if this court were to hold that Miller applies retroactively on collateral review, Croft would be unable to take advantage of it.” Croft at 4.

The Court therefore denied Croft permission to file a successive collateral petition under § 2254.

Successive post-conviction petitions must meet cause-and-prejudice test (People v. Wilson, 2014 IL App (1st) 113570)

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People v. Wilson, 2014 IL App (1st) 113570 (September 12, 2014) Cook Co., 5th Div. Affirmed. The defendant in Wilson was convicted of first degree murder following a shooting. Wilson was subsequently sentenced to 60 years in prison. On May 28, 2009, defendant filed an initial pro se post-conviction petition claiming that trial counsel was ineffective for failing to file a notice of appeal. The Petition was supported by an affidavit from trial counsel admitting error. The trial court granted defendant’s post-conviction petition based on this single issue and allowed defendant to file a late notice of appeal. The conviction and sentence were affirmed on appeal.

Defendant filed a second pro se post-conviction petition on June 24, 2011. Wilson’s second post-conviction petition raised numerous claims of ineffective assistance of appellate counsel based on appellate counsel’s failure to raise various claims in defendant’s direct appeal. The trial court dismissed the second petition, finding that defendant’s second petition was a successive petition under the Act and failed to meet the “cause-and-prejudice” test necessary for obtaining leave to file a successive petition under the Act. Specifically, the circuit court found defendant failed to: (1) identify any objective factor which impeded his efforts to raise the claims in the earlier petition; and (2) demonstrate any prejudice inured from his failure to assert the claims earlier because “[h]ad they been presented in the initial petition, there is scant probability that petitioner would have prevailed.” Wilson at ¶ 27. Defendant appealed the trial court’s dismissal of the petition, arguing that the second post-conviction petition was not a “successive petition” because he only sought to reinstate his right to appeal, and that his second petition presented a gist of a constitutional claim such that advancement to second stage proceedings was required.

Generally, the Act contemplates the filing of only one petition. 725 ILCS 5/122-1(f) (West 2010). Successive petitions are disfavored and, therefore, to proceed on a successive petition a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test. People v. Sutherland, 2013 IL App (1st) 113072, ¶ 16; 725 ILCS 5/122-1(f) (West 2010). To demonstrate cause, a defendant must identify “an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings.” Id. To establish prejudice, a defendant must demonstrate “that the claim not raised *** so infected the trial that the resulting conviction or sentence violated due process.” Id. Wilson at ¶ 33.

Defendant relied on People v. Little, 2012 IL App (5th) 100547, ¶ 19, to support his proposition that where a defendant files an initial postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness, a subsequent petition is not a successive petition under section 122-1(f) of the Act. Wilson at ¶ 34. The State contended that Little was not implicated in this case because the circuit court ruled on defendant’s petition within 90 days and complied with People v. Hodges, 234 Ill. 2d 1 (2009). Wilson at ¶ 35.

The appellate court agreed with the defendant that Little controlled under the facts in this case, and that because defendant’s initial petition only sought to restore his right to appeal, the second petition should have been treated as a first petition, and that, accordingly, defendant was not required to satisfy the procedural prerequisites for filing a successive petition in order for his claims to be considered on the merits.

However, the appellate court can affirm on any basis set forth in the record. People v. Quigley, 365 Ill. App. 3d 617, 619 (2006). Reviewing the claims set forth in defendant’s Petition, the appellate court agreed with the trial court that they were frivolous and patently without merit, such that first stage dismissal was still appropriate. In sum, even though the trial court erred by characterized defendant’s second petition as a successive petition, the trial court correctly dismissed the petition based on the merits, or lack thereof.

What is newly discovered evidence? (People v. English, 2014 IL App (1st) 102732-B)

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People v. English, 2014 IL App (1st) 102732-B (June 18, 2014) Cook Co., 3d Div. Affirmed.
(Modified upon denial of rehearing 7/30/14.). Syllabus: Defendant was properly denied leave to file a successive postconviction petition alleging his actual innocence based on the claim that the State’s three inculpatory witnesses recanted their trial testimony and claimed that the inculpatory testimony was the result of police abuse. Since the allegations of defendant’s petition were not sufficiently specific to meet the procedural requirements of a successive petition alleging actual innocence, the evidence defendant proposed to present did not qualify as newly discovered evidence for purposes of the Post-Conviction Hearing Act, and there was no evidence corroborating defendant’s claims of police misconduct.

This case provides a good illustration of what is necessary to meet the threshold procedural requirements for filing a successive post-conviction petition.

“To be entitled to relief under the Act, a defendant must demonstrate a substantial deprivation of his constitutional rights in the proceedings that produced his conviction. People v. Morgan, 212 Ill. 2d 148, 153 (2004). The Act contemplates the filing of only one postconviction petition. Morgan, 212 Ill. 2d at 153. “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2010). The supreme court, however, has carved out an exception to this rule, relaxing the bar to successive postconviction petitions when fundamental fairness requires. Morgan, 212 Ill. 2d at 153. Generally, for a reviewing court to consider a defendant’s successive postconviction petition on its merits, the defendant must show both “cause” for his or her failure to raise the claim in the initial postconviction petition and “prejudice” resulting from this failure. People v. Pitsonbarger, 205 Ill. 2d 444, 459-60 (2002). Even if the defendant cannot meet the cause-and-prejudice test, the court may consider the successive petition if the defendant can show that consideration is “necessary to prevent a fundamental miscarriage of justice.” Pitsonbarger, 205 Ill. 2d at 459. To demonstrate a fundamental miscarriage of justice, the defendant must show actual innocence. To obtain relief under a theory of actual innocence based on “newly discovered” evidence, the defendant must offer evidence that was not available at the original trial and that could not have been discovered sooner through diligence. Morgan, 212 Ill. 2d at 154. In order to be considered, the evidence must be material, noncumulative, and of such a conclusive nature, that it would probably change the result on retrial. People v. Washington, 171 Ill. 2d 475, 489, (1996).” English, 2014 IL App (1st) 102732-B ¶35-36

The “newly discovered evidence” that defendant presented here were five-year-old and ten-year-old affidavits from State witnesses who testified in connection with a previous murder case, where those witnesses indicated that they were subjected to police misconduct, and two dated newspaper articles indicating that a “naming Detective McWeeny as one of the former Area 2 detectives that had been granted immunity in the investigation into police misconduct at Area 2.”

The Court held that the evidence that defendant submitted with his petition did not meet the “newly discovered” evidence test. The Court reasoned that the claims concerning police misconduct supported by the affidavits, which were five and ten years old, respectively, could have been raised in defendant’s original post-conviction petition. Furthermore, the newspaper articles indicating that the detective received immunity did not directly link to the claims made in those affidavits because the affidavits did not identify that particular detective as being the perpetrator of the police misconduct. Therefore, taken together, this evidence would not “probably change the result on re-trial,” as is required to meet the threshold requirement for a successive petition based on actual innocence under the Act.