holding that allowing the circuit court to summarily dismiss for untimeliness would improperly expand the words “frivolous or *** patently without merit” (internal quotation marks omitted)
How later courts described this case
- holding that allowing the circuit court to summarily dismiss for untimeliness would improperly expand the words “frivolous or *** patently without merit” (internal quotation marks omitted)
- noting that, if a postconviction petition is untimely filed but has obvious substantive merit, i.e., if it clearly demonstrates that a prisoner suffered a deprivation of constitutional magnitude, a dutiful prosecutor should waive the procedural defect
- “[n]othing in the Act” authorizes the circuit court to depart from section 122— 2’s pleading requirements at the summary dismissal stage
- holding that time bar for filing postconviction petition is “an affirmative defense and can be raised, waived, or forfeited, by the State”
Written by the judges who cited it.
The opinion
JUSTICE THOMAS, also specially concurring:
I must briefly respond to Justice McMorrow’s exhaustive examination of the alleged conflict between today’s opinion and this court’s recent decision in People v. Collins, 202 Ill. 2d 59 (2002). The fact is that no such conflict exists, as, notwithstanding Justice McMorrow’s repeated assertions, section 122 — 2 is not a procedural statute. On the contrary, the sole purpose of section 122 — 2, which is titled “contents of petition,” is to define the essential substantive components of a post-conviction petition:
“The petition shall identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which petitioner’s constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his conviction. Argument and citations and discussion of authorities shall be omitted from the petition.” 725 ILCS 5/122 — 2 (West 2000).
That the foregoing provision is purely substantive not only is plain on its face but also underscored by its relationship to section 122 — 1, which explains how a proceeding under the Act is commenced:
“The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit.” 725 ILCS 5/122 — 1(b) (West 2000).
Surely, if a proceeding under the Act commences only upon the filing of a “petition,” then the Act must somewhere define what constitutes a “petition.” Otherwise, the filing of any scrap of paper might be deemed to commence a post-conviction proceeding. That definition is found in section 122 — 2.
And this is where Justice McMorrow’s analysis falters. If a proceeding under the Act may be commenced only upon the filing of a “petition,” and section 122 — 2 defines “petition,” then it is absurd to suggest that section 122 — 2 is a mere procedural requirement that the trial court may not consult when assessing whether a petition is frivolous or patently without merit. Indeed, absent compliance with section 122 — 2’s substantive requirements, no “petition” exists with which to trigger application of the Act.
Significantly, there is nothing new in suggesting that compliance with the Act’s substantive pleading requirements is the necessary first step in any proceeding under the Act. More than 50 years ago, this court explained:
“If the petition [alleges a substantial violation of constitutional rights], the trial court should ascertain whether it is supported by accompanying affidavits and if not, whether the absence of such affidavits is sufficiently explained and excused by the petitioner’s own sworn statements. Where there are no supporting affidavits and their absence is neither explained nor excused, the trial court should either dismiss the petition or grant a further time within which such affidavits may be obtained.
A petition meeting these requirements, both as to substantial allegations of the denial of a constitutional right and as to affidavits, is sufficient to invoke the act.” People v. Jennings, 411 Ill. 21, 26 (1952).
Of course, the converse also is true: a petition that does not meet these requirements — as to either the necessary allegations or the necessary affidavits — is not sufficient to invoke the Act.
Thus, contrary to Justice McMorrow’s thesis, there is nothing in the least bit incompatible between today’s decision and Collins. Today, the court correctly holds that, in determining whether a post-conviction petition is frivolous or patently without merit, the trial court may not consider whether the petition suffers from a procedural defect such as untimeliness. In Collins, the court correctly held that, in determining whether a post-conviction petition is frivolous or patently without merit, the trial court may consider whether the proffered petition is in fact a “petition” as defined by the Act. In effect, then, these decisions are two sides of the same coin, emphatically agreeing that, “[t]he process at the summary review stage measures a petition’s substantive virtue rather than its procedural compliance.” 202 Ill. 2d at 102 .
JUSTICE FITZGERALD joins in this special concurrence.