There are time limits for filing a post-conviction petition:

• If you did not file a direct appeal of your conviction or sentence, then you must file your petition within 3 years of the date of your conviction.
• If you filed a direct appeal, but you did not appeal that decision to the Illinois Supreme Court. You must file your post-conviction petition within 7 months of the final judgment date. The time frame is 35 days from the date of the final judgment plus an additional 6 months. 
• If you both filed a direct appeal and a petition for leave to appeal to the Illinois Supreme Court, but you lost and are still in custody, you must file your post-conviction petition within 9 months of the final disposition. The exact time frame is 90 days from the Supreme Court’s disposition. That includes a denial of a PLA plus an additional 6 months. 

You must file your post-conviction petition within 6 months of Supreme Court proceedings

You may be able to file a post-conviction petition beyond the stated deadlines. The court will excuse a late filing if you were not “culpably negligent.” Culpable negligence means something like recklessness. The court will not excuse your late filing if you disregarded the likely effects of your actions.

In the second stage, you must allege facts showing the reason for filing late. It must show something other than your culpable negligence. For example, you were not culpably negligent if you received incorrect advice on filing from your attorney. Otherwise, if youwere in prison and denied access to the prison law library. 

Actual Innocence Claims

Time limitations do not apply if you are filing based on new evidence. It must show you are innocent of the crime for which you were convicted.

• The evidence must be “newly discovered” or not available at the original trial. You also could not have discovered the evidence sooner.
• The newly discovered evidence of actual innocence must be “material and non-cumulative.”
  • The evidence is “material” when it relates to an issue in the case. It makes it more likely you are innocent.
  • The evidence is “non-cumulative” when it adds something to what the judge or jury already heard.
• Finally, the evidence must probably lead to a different outcome. 

• You must file your petition with the clerk of the court in which you were convicted.
• You must identify: 
  • The proceeding in which you were convicted,
  • The date of the conviction, and
  • Any previous proceedings in which you tried to obtain relief.
• The petition must state how you feel the court violated your .
• You are generally only allowed to file one post-conviction petition.

You can only file additional petitions in two cases:

Satisfy the “cause and prejudice test” 

• To satisfy the “cause and prejudice” test you must show “cause” for the failure to raise the claim in your first petition. You must also show you suffered prejudice from the claimed violation.
  • “Cause” is an objective factor that impeded you from raising the claim in your first petition. It is outside of the defense.
  • “Prejudice” means the claim you seek to raise affected your trial. It also caused a violation of your right to due process.

The “fundamental miscarriage of justice exception”

The second way to file is under the “fundamental miscarriage of justice exception.”

• This exception requires you to demonstrate actual innocence.
• Leave should be granted if evidence shows a fact-finder would not have convicted you with the new evidence.

Your initial filing only needs a limited amount of detail. A legal argument is not required. However, you must provide some factual details supporting the alleged constitutional violation.

• You must provide affidavits or evidence to support your factual allegations. You may include your affidavit. 
• You must state the source and type of evidence supporting your allegations. Also, ifthat the evidence would be available at a hearing. 
• If you cannot provide evidence to support your factual allegations you must explain why not.

The court may excuse your failure to attach supporting affidavits or evidence if you allege ineffective assistance of counsel. It must be clear the only affidavit you could have provided was from your attorney. For example, if you are alleging ineffective counsel based on advice in private consultation.

You should also file an affidavit verifying that:

• You are bringing the allegations truthfully,
• In good faith, and
• Everything in the petition is true and accurate, subject to penalties for perjury.

Your petition cannot be dismissed initially because it did not have a verified affidavit.

Once your post-conviction petition is filed, it may proceed through three stages.

Summary dismissal stage 

The first stage is the summary dismissal stage. A trial court will review the petition to determine if it makes a good argument. If the petition does not have a good argument, it will be summarily dismissed. The petitioner can appeal that decision. 

A petition with a good argument cannot be “frivolous and patently without merit.” That means it is based on an incorrect legal theory or claims that are not believable. 

The petition only needs to allege enough facts to assert an arguable claim. Formal legal arguments and citations are not required. 

However, the petition must set forth some objective facts that can be supported. Otherwise, it must explain why those facts are missing.

[no-lexicon]Motion[/no-lexicon] to Dismiss stage 

If the trial court does not dismiss the petition initially, it moves to the second stage. If the petitioner cannot afford an attorney, the court may appoint one. The attorney must consult with the petitioner to determine whether their claims that their rights were violated have merit. That meeting can take place by phone, by mail, or by electronic means. 

After the initial meeting, the attorney must review the Record of Proceedings. They must make any amendments to the petition filed to present the petitioner’s contentions. The attorney does not have to amend the petition if it adequately states the claims. The attorney does not have to search for new claims not included in the original petition.

The state can file a motion to dismiss the petition at the second stage. The judge can dismiss the petition because of a procedural defect or because it does not make a substantial showing of a violation. 

• Examples of procedural defects are late filing or failing to notarize a supporting affidavit. 
• The court determines whether the allegations, if true, would give rise to relief. 

Evidentiary hearing stage 

If the petition survives the two stages, the trial court will hold an evidentiary hearing. At the hearing, the court can receive evidence by:

• Affidavit,
• Depositions, or
• Live testimony.

The petitioner has a right to an attorney at the evidentiary hearing. 

At the hearing, the petitioner has the burden to prove a violation. After the hearing, the court enters a final order on the petition. If the petition is denied, the petitioner can appeal that decision.