What are the challenges when filing successive post-conviction petitions?
Successive post-conviction petitions in Illinois are very difficult to file. The Post-Conviction Hearing Act allows challenges to a conviction when the conviction resulted in a substantial constitutional deprivation that could not have been raised earlier in a direct criminal appeal. Because of this post-conviction petitions are based upon matters that occurred outside of the appellate record. For example, a post-conviction petition could be based upon conversation that occurred between you and your attorney or the testimony of a witness that was not called. However, a post-conviction petition could not be based upon a judicial ruling because that issue was contained in the appellate record and could have been raised in a direct criminal appeal.
You only get one shot at filing a post-conviction petition.
Every post-conviction petition after your first one is known as a successive post-conviction petition. Successive post-conviction petition are frowned upon. In fact, a person cannot even file a successive post-conviction without first getting permission from the trial court.
Even pro se filings without the help of an appeals attorney are counted. Because of this one petition rule, the post-conviction petition filed on your behalf must be thoroughly prepared. In fact, anything that you fail to raise in your post-conviction petition is given up forever and cannot be raised later.
Successive post-conviction petitions may not be filed unless the trial court grants prior permission allowing you to file a successive post-conviction petition. Before allowing a successive post-conviction petition, the petitioner must establish cause and prejudice, a difficult burden to overcome.
To establish cause and prejudice, the petitioner must prove that a just reason exists for failing to raise the issue in a prior petition. On top of this, the petitioner must establish that he was prejudiced by the failure.
Pursuing a successive post-conviction requires an attorney who understands the difficulty when filing a successive post-conviction petition and how to overcome them. Only a post-conviction attorney who has handled post-conviction petitions as a prosecutor and as a criminal defense attorney has the experience needed to file a winning successive post-conviction petition in Chicago.
Mr. Jaleel is a former post-conviction prosecutor who has handled successive post-conviction petitions in both trial courts and appellate courts in Illinois. Call Us Now!