What is a State Post-Conviction Petition and how does the process work?

A post-conviction petition is a process, separate and apart from an appeal from a criminal conviction where someone who’s imprisoned can challenge his or her conviction and/ or the sentence because of a violation of that person’s constitutional rights.

A post-conviction petition is not supposed to just repeat issues raised in what lawyers call the direct appeal from a criminal conviction. At the same time, a post-conviction petition is not as confined as a direct appeal is. When someone is appealing a criminal conviction, the appeal is limited to what’s in “the record.” What that means is that the higher courts can consider what’s in the transcripts of proceedings from the trial court as well as what was filed with the trial court that can be located in the court file (sometimes known as “the common law record”).

A post-conviction petition can be based directly on what’s in the record, it can be based, based on competent evidence, on issues that have been found that are outside of the record. A well trained lawyer, typically working with a well trained investigator, can unearth new evidence that shows that the trial or sentencing process was in some way fundamentally flawed or that the defendant is actually innocent for the crime for which he/she was convicted.

The most typical post-conviction petition is based upon ineffective assistance of counsel in violation of the defendant’s rights under the Sixth Amendment. The petition alleges that the lawyer took some action which prejudiced his/her client, or failed to take some action which prejudiced his/her client.

The State post-conviction process is divided up into three separate hurdles, or stages. A judge could deny a post-conviction  petition at any of these stages, and the defendant must win at each one of these stages to secure relief such as a new trial. The statutes that govern State post-conviction relief are found at 725 ILCS 5/122-1 through 5/122-7. A link to the complete text of the statutes can be found here:


In the first stage, a judge considers the a post-conviction petition without any further input (other than the petition) or comment from either side. Unlike the trial process and the appellate process, an indigent defendant who can’t afford a lawyer does not have a constitutional right to free counsel during post-conviction proceedings. This unfortunately means that a defendant who is in prison who has no legal training or ability to hire an investigator to reach out to witnesses must draft their own post-conviction petition for a judge to review. Defendants who have the financial resources to hire counsel to draft, research, and investigate their post-conviction petition certainly have an advantage over those who don’t. The post-conviction petition that’s drafted must include a number of things, including any affidavits from witnesses that support their position, records that support their position, or witnesses that support their position. The petition must also clearly state what constitutional rights have been violated and why.

Since the first stage typically starts with a defendant who is representing himself, the judge must allow a petition to pass on to the second stage if the petition states the “gist of a constitutional claim.” The judge also must allow the petition to pass on to the second stage if over 90 days have elapsed since the filing of the defendant’s post-conviction petition. If the judge rules that the petition does not state the “gist of a constitutional claim,” then the petition is dismissed. The defendant can appeal this decision if he files a Notice of Appeal with the Clerk’s Office within 30 days of this decision.

Despite the fact that there is no constitutional right to have counsel appointed for post-conviction proceedings, Illinois law states that indigent defendants are to have counsel appointed for second and third stage proceedings if the defendant cannot afford a lawyer (and if counsel is requested).

In second stage proceedings, the State, who played no role in first stage proceedings, is now required to either answer the post-conviction petition or make a motion to dismiss the petition. At this stage, the trial court evaluates the written pleadings both sides have filed to decide whether to advance the Petition to the third stage. The bottom line is that the court must decide whether there is a substantial showing that the defendant’s constitutional rights were denied. If the answer is no, the defendant can again appeal this decision to the appellate court.  If the answer is yes, then the matter proceeds to the third stage.

In the third stage, the court hears from witnesses live. The court this time must be convinced that there is a substantial showing of a violation of the defendant’s constitutional rights based on what the witnesses have to say rather than just what’s written in the Petition or the affidavits. Again, if the trial court denies the petition at this stage, the defendant can again appeal. If the defendant is successful, the defendant could win a new trial or a new sentencing hearing, or some other relief he’s seeking.

If you’re asking yourself at this point, do you mean that the judge who hears the post-conviction petition could deny the petition three times where one must win each time on appeal to win the post-conviction? Yes, that’s possible.

There are other important aspects to post-conviction work, especially the fact that there are time limits to the fling of a petition. Typically, that means 6 months from final judgment unless the defendant alleges facts showing that the delay was not due to his or her culpable negligence.

These cases are legally tricky under the best of circumstances. You can find qualified post-conviction counsel here at the Law Office of William Wolf, LLC. 

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