A Post-Conviction Petition


A post-conviction petition filed under the Post-Conviction Hearing Act, 725 ILCS 5.112-1

A Post-Convcition Petition

A post-conviction petition filed under the Post-Conviction Hearing Act, 725 ILCS 5.112-1, allows a person convicted of a crime to challenge a criminal conviction based upon denial of a constitutional right that does not appear in the record of the direct appeal. A post-conviction petition is liberally construed so it provides a broader remedy than the other collateral attacks such as relief from judgments under 735 ILCS 5/2-1401; Illinois’s habeas corpus under 735 ILCS 5/10-101; or a motion for forensic testing based on technology not available at time of trial under 725 ILCS 5/116-3. Ultimately, the Post-Conviction Hearing Act established an independent remedy separate and apart from a direct appeal to investigate whether the convicted defendant was denied a substantial constitutional rights in the proceedings that resulted in the defendant’s conviction.

What the Requirements of filing a Post-Conviction Petition?

The substantial constitutional violation that is claimed in the post-conviction petition must have occurred in the proceeding that resulted in the conviction. This provision is rarely in dispute because the constitutional violation typically occurs at the trial that led to the conviction.

The person raising an argument under the Post-Conviction Hearing Act must be imprisoned in an Illinois penitentiary. The Post-Conviction Hearing Act states that a person is “imprisoned” under the Post-Conviction Hearing Act if the person’s liberty is curtailed to a degree by the state by requiring the person to serve some type of sentence. Therefore, if the person’s liberty is no longer constrained in any way, that person lacks standing to file a post-conviction petition.

What is the Statute of Limitations on Filing a Post-Conviction Petition?

Generally, a post-conviction petition must be filed within six months after the end of the direct appeal process. If no direct appeal is filed then the post-conviction petition must be filed within three years of the date of conviction. Claims of actual innocence raised in a post-conviction within are excluded from the general statute of limitations; however, because actual innocence claims require a showing that the evidence was newly discovered and could not have been previously discovered through due diligence.

What is the Effect of an Untimely Post-Conviction Petition?

Barring a couple of situations, courts will not consider untimely post-conviction petitions on their merits. However, because a timely filing is not a jurisdictional prerequisite, the State can waive the statute of limitations. Additionally, a post-conviction petition will suffer an untimeliness claim if the petition can establish that the delay “was not due to his or her culpable negligence.”      


Post-conviction petitions based upon the Post-Conviction Hearing Act are a powerful means of rectifying constitutional violations. However, they are governed by strict procedural rules that must be followed to be successful. Navigating the various steps contained within the Post-Conviction Hearing Act requires skill and experience. If you or your family member have been denied your constitutionals rights at trial, contact Jaleel Law P.C. today to discuss how we can help.


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