Legal Memorandum: Post-conviction Relief Procedure in IL

Issue: What is the proper procedure to obtain post-conviction relief in Illinois?

Under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, “any person imprisoned in the penitentiary may institute a proceeding . . . if the person asserts that . . . in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.”  725 ILCS 5/122-1(a)(1). 

To be entitled to postconviction relief, a defendant must demonstrate that he has suffered a substantial deprivation of his federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged.  The scope of the postconviction proceeding is limited to constitutional matters that have not been, and could not have been, previously adjudicated.  Accordingly, any issues which could have been raised on direct appeal, but were not, are procedurally defaulted and any issues which have previously been decided by a reviewing court are barred by the doctrine of res judicata.

People v. Whitfield, 217 Ill. 2d 177, 183, 840 N.E.2d 658, 663 (2005).

A petition for post-conviction relief must be verified by affidavit and filed with the clerk of court where the judgment of conviction was entered, with a copy served upon the State’s Attorney.  725 ILCS 5/122-1(b).  The petition seeking post-conviction relief must specifically state in the body or heading that relief is sought under 725 ILCS 5/122-1 et seq.  Id. 5/122-1(d).  The petition “shall identify the proceeding in which the petitioner was convicted, […]