I An Introduction and Overview of Post-conviction Litigation

• Library: Post-Conviction Practice: A Manual for Illinois Attorneys (2012 Ed.)

I. An Introduction and Overview of Post-Conviction Litigation

For any lawyer who has never litigated a post-conviction petition, a thorough understanding of the somewhat complex procedure iscritical. Thereare threeprocedural phases relevant to post-conviction pleadings: (1) the initial trial and appeal stage; (2) state post-conviction proceedings; and (3) federal post-conviction proceedings. Two useful charts follows; the first is an overview of the initial trial phase, the second is an overview of state and federal post-conviction.

After direct appeal to the appellate court, the defendant may file a petition for leave to appeal (PLA) to the Illinois Supreme Court.As discussed more fully below, the defendant must file the PLA in order to have fully exhausted his state claims for purposes of federal habeas review. O'Sullivan v. Boerckel, 526 U.S. 838(1999).

Once that review has been completed or denied, the defendant is entitled to file a petition for writ of certiorari in the Suprem Court of United Sfates. Usually defendants do not file these, and it is not necessary to do so in order to fully exhaust for habeas purposes.

Once the PLA has been denied or completed, and any writ of certiorari has been denied or completed, this is considered the end of the direct appeal, and the beginning of the post-conviction phase. The post-conviction phase begins when a defendant files a petition for relief in the state trial court after the direct appeal phase is over. The defendant-petitioner must file within three years of the conviction date, or within six months of the date the case is "final" on direct appeal, as described above. 725 III. Comp. Stat. 5/122-1 (2004). It must be verified by affidavit. 725 Ill. Comp. Stat. 5/122-1, 8.²

A . INCLUDING SUFFICIENT EVIDENTIARY SUPPORT IS CRITICAL TO OBTAINING A HEARING

One of your most important priorities in litigating a post-conviction petition is gathering the requisite evidence. As discussed above, you must include affidavits and other supporting documents as part of your petition.

Because there is no automatic right to an evidentiary hearing in a post-conviction proceeding in Illinois, the petitioner must earn it. Spreitzer v. Peters, 114 F.3d 1435 (7th Cir. 1997), decision clarified, 127 F.3d 551 (7th Cir. 1997). Thus, if the petition is dismissed without an evidentiary hearing, the absence of affidavits and other records supporting its claims will amount to procedural default. It is akin to objecting without making the requisite offer of proof; the appellate court will be unable to rule on the claims if the necessary factual material is not in the record.

Every claim needs evidentiary support on every single aspect of the petition and on every conceivable factual issue, unless it is already in the record before filing. In Illinois, a post-conviction petition that is not properly supported by affidavits and other evidence will be dismissed without an evidentiary hearing unless the petitioner's allegation stands uncontradicted and clearly supported by the record. People v. Niezgoda, 337 Ill. App. 3d 593, 596 (App. Ct. 2003). Because of the importance of supporting evidence, this manual will emphasize the need for thorough investigation.

B. WHAT ISSUES ARE GENERALLY LITIGATED IN A POST-CONVICTION PETITION?

All issues presented in a post-conviction petition must be of constitutional dimension. People v. McNeal, 194 Ill. 2d 135, 140 (2000). In fact, the petition should raise both state and federal constitutional issues in order to properly preserve them for federal habeas review. See section I part E below (discussing preservation).

Although courts repeatedly admonish counsel that post-conviction proceedings are not designed for a total re-litigation of the trial, you must nevertheless be thoroughly familiar with the entire case—not just the transcript. You must also do a great deal of independent factual investigation, because in a disturbingly large number of cases, the facts presented at trial were incomplete or false. Perhaps this is because the state concealed information, because witnesses disappeared at trial, because witnesses testified falsely at trial, because the defense attorney did not conduct an adequate investigation, or because of a variety of other reasons.³

Because there is no right to a post-conviction hearing-only the right to request one-the court will likely dismiss the petition without a hearing unless it is factually complete. This means that to warrant relief in either state or federal court, the petition must contain enough evidence to support your particular claim(s). Thus, post-conviction work involves a search for matters outside the record that support a constitutional claim (most often, ineffective assistance of counsel⁴ or a Brady claim⁵). Those claims must then be supported by affidavits and other records. Together, this assembly of evidence is what you will ask the court to rely on in ruling for your client. As discussed below, a critical component of this assembly is newly discovered evidence.

C. A VARIETY OF PROCEDURAL AVENUES EXIST FOR RAISING CLAIMS OF NEWLY DISCOVERED EVIDENCE

"Pure" newly discovered evidence that is not a part of a constitutional claim is generally raised separately from post-conviction...