People v. McClain

NO. 4-96-0277

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
WILLIE L. McCLAIN, ) No. 92CF1142
Defendant-Appellant. )
) Honorable
) Harold L. Jensen,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In March 1996, defendant, Willie L. McClain, was
serving a sentence of natural life in prison upon his conviction
of two counts of first degree murder when he filed pro se a post-
conviction petition pursuant to the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 1994)). Because defendant
filed his petition late under section 122-1 of the Act (725 ILCS
5/122-1 (West Supp. 1995)), he also filed a motion to file a late
petition for postconviction relief. In that motion, defendant
alleged that his delay in timely filing his postconviction
petition should be excused because it was not due to his culpable
negligence, but was due instead to a "lockdown" at the Pontiac
Correctional Center (Pontiac), where he was incarcerated.
The trial court denied defendant's motion to file his
late postconviction petition. Defendant appeals, and we affirm.
I. BACKGROUND
In February 1993, a jury convicted defendant of two
counts of first degree murder stemming from the deaths of two
victims, and in March 1993, the trial court sentenced him to
natural life imprisonment on each conviction. He appealed, and
this court affirmed his convictions and sentence. People v.
McClain, 269 Ill. App. 3d 500, 645 N.E.2d 585 (1995). He filed a
petition for leave to appeal to the Supreme Court of Illinois,
which was denied on April 5, 1995. People v. McClain, 161 Ill. 2d 535, 649 N.E.2d 422 (1995).
On March 18, 1996, defendant filed his postconviction
petition and accompanying documents (which included his motion to
file a late petition for postconviction relief instanter, an
affidavit in support of that motion, an affidavit in support of
his postconviction petition, a document entitled "memorandum of
law/finding of facts," a motion for appointment of counsel, and a
motion to proceed as a poor person).
In defendant's motion to file a late petition for post-
conviction relief, he asserted that Pontiac, where he was incar-
cerated, was on "lockdown" for reasons unknown to defendant
during the following times: 16 days of January 1995; five days
in February 1995; 17 days of March 1995; three days of April
1995; 12 days of May 1995; 13 days of June 1995; 24 days of July
1995; no days of August 1995; 12 days of September 1995; all of
October 1995; 12 days of November 1995; 21 days of December 1995;
20 days of January 1996; all of February 1996; and March 1
through 14 of 1996. Defendant further alleged that during such
"lockdowns," the prison severely restricted the movement of
inmates, including prohibiting them from using the prison's law
library. Defendant also asserted that continuous "lockdowns"
adversely affected his ability to investigate aspects of his
postconviction petition and to prepare it. As a result, he
sought assistance from a prominent Chicago law firm which--defen-
dant alleges--"held on to petitioner's transcripts given [sic]
the petitioner the false belief that they was [sic] going to
assist him only to tell him six-months [sic] later that they
wouldn't help him."
After defendant learned the law firm was not going to
assist him, he "finally got assistance from [a] jail house
lawyer." He concluded the motion by asserting that he had put
forth his best good-faith effort to file a timely petition and
the delay was not due to his own culpable negligence.
Defendant attached to that motion a letter dated
September 26, 1995, from the pro bono coordinator of the Chicago
law firm, which informed defendant that the law firm would be
unable to handle his case due to the large number of similar
requests it receives. Although the letter indicated that the law
firm was returning defendant's "documents" to him (without speci-
fying what those documents were), the letter did not indicate how
long the law firm had possessed those documents.
II. ANALYSIS
Resolution of defendant's argument that the trial court
erred by dismissing his postconviction petition on the ground
that it was not timely filed requires a careful analysis of
section 122-1 of the Act, which reads, in pertinent part, as
follows:
"No proceedings under this Article shall be
commenced more than 6 months after the denial
of a petition for leave to appeal or the date
for filing such a petition if none is filed
or more than 45 days after the defendant
files his or her brief in the appeal of the
sentence before the Illinois Supreme Court
(or more than 45 days after the deadline for
the filing of the defendant's brief with the
Illinois Supreme Court if no brief is filed)
or 3 years from the date of conviction,
whichever is sooner, unless the petitioner
alleges facts showing that the delay was not
due to his culpable negligence." 725 ILCS
5/122-1 (West Supp. 1995).
The supreme court denied defendant's petition for leave
to appeal on April 5, 1995. Therefore, he had six months from
that date--or until October 5, 1995--in which to file his post-
conviction petition. (Note that this October 1995 deadline is
"sooner" than February 1996, which would be three years from the
date of defendant's conviction.) However, defendant filed his
postconviction petition (and its accompanying documents) on March
18, 1996, approximately 5« months late. Defendant has attempted
to excuse this 5«-month delay by showing that it was not due to
his "culpable negligence," as that term is used in section 122-1
of the Act (725 ILCS 5/122-1 (West Supp. 1995)). We are unper-
suaded.
Section 122-1 of the Act sets forth the time period in
which a defendant must file a postconviction petition and then
places the burden upon a defendant who files after that time
period has expired to allege facts showing that the delay was not
due to his culpable negligence. 725 ILCS 5/122-1 (West Supp.
1995). That language demonstrates that the late-filing defendant
has the burden of proof at any evidentiary hearing conducted on
the issue of whether the delay was not due to his culpable
negligence. However, section 122-1 of the Act does not address
how strong a showing a defendant must make when alleging facts
showing that the delay was not due to his culpable negligence in
order to warrant evidentiary hearing. Because the language at
issue in section 122-1 of the Act constitutes part of a compre-
hensive statutory scheme addressing postconviction attacks on
convictions, we conclude that a defendant's burden to allege
facts showing that the delay was not due to his culpable negli-
gence should be the same burden the Act otherwise imposes on a
defendant who seeks an evidentiary hearing on his postconviction
claims. As the Supreme Court of Illinois recently explained,
that burden is the following:
"A defendant [who has filed a postconviction
petition] is not entitled to an evidentiary
hearing as a matter of right. [Citations.]
Instead, an evidentiary hearing should be
conducted where a substantial showing of a
violation of constitutional rights has been
made, supported by the record or affidavits."
People v. Thomas, 164 Ill. 2d 410, 416, 647 N.E.2d 983, 987 (1995).
Thus, we hold that before a trial court need conduct an eviden-
tiary hearing regarding defendant's claim that his delay in
timely filing a postconviction petition was not due to his
culpable negligence, he must make a "substantial showing" by
alleging facts demonstrating that to be the case. Defendant here
has failed to make such a showing.
As previously pointed out, defendant filed his post-
conviction petition 5« months later than section 122-1 of the Act
(725 ILCS 5/122-1 (West Supp. 1995)) requires. Assuming the
accuracy of his claim that Pontiac was on "lockdown" during a
substantial portion of that 5«-month period, resulting in prohib-
itions on inmates using the prison's law library, it does not
follow that these circumstances justified defendant's tardy
filing. Implicit in defendant's argument is the assumption that
in order to prepare his postconviction petition, he needed to do
research in the prison law library. However, that assumption is
false.
As the supreme court recently explained in People v.
Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996):
"[A] post-conviction proceeding [under
the Act] that does not involve the death
penalty has three distinct stages. In the
first stage, the defendant files a petition
and the circuit court determines whether it
is frivolous or patently without merit. At
this stage, the Act does not permit any fur-
ther pleadings from the defendant or any
motions or responsive pleadings from the
State. Instead, the circuit court considers
the petition independently, without any input
from either side. To survive dismissal at
this stage, a petition need only present the
gist of a constitutional claim. [Citation.]
This is a low threshold and a defendant need
only present a limited amount of detail in
the petition. At this stage, a defendant
need not make legal arguments or cite to
legal authority. [Citation.] The Act pro-
vides that the petition must be supported by
'affidavits, records, or other evidence sup-
porting its allegations' or the petition
'shall state why the same are not attached.'
725 ILCS 5/122-2 (West 1992). If the circuit
court does not dismiss the petition pursuant
to section 122-2.1, it is then docketed for
further consideration." (Emphasis added.)
In People v. Lemons, 242 Ill. App. 3d 941, 946, 613 N.E.2d 1234, 1237 (1993), this court pointed out that all a post-
conviction petitioner need do at the first stage is set forth the
"gist of a meritorious claim," which we explained as follows:
"Although a pro se defendant seeking post-
conviction relief would not be expected to
construct legal arguments, cite legal author-
ity, or draft her petition as artfully as
would counsel, the pro se defendant must
still plead sufficient facts from which the
trial court could find a valid claim of de-
privation of a constitutional right." (Em-
phasis in original.)
We also added the following:
"[T]he pro se petitioner need not construct
legal arguments in her petition nor even
understand what legal arguments the facts she
presents therein might support. Instead, the
trial court should consider the petition at
the first stage to determine whether it con-
tains sufficient facts upon which a meritori-
ous constitutional claim could be based."
(Emphasis in original.) Lemons, 242 Ill.
App. 3d at 947, 613 N.E.2d at 1238.
Thus, Gaultney and Lemons make clear that the pro se petitioner,
who (like this petitioner) is requesting the appointment of
counsel to help with the petition, need not spend any time in the
prison law library to set forth the "gist of a meritorious
claim." The petitioner-inmate need only plead sufficient facts
from which the trial court could find a valid claim of depriva-
tion of a constitutional right. Accordingly, we conclude that a
prison "lockdown," restricting an inmate's access to the prison
law library, does not constitute a legitimate excuse for the
inmate's not filing a postconviction petition in a timely fash-
ion.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
McCULLOUGH, J., concurrs.
GREEN, J., dissents.
 JUSTICE GREEN, dissenting:
I agree with the majority that "section 122-1 of the
Act constitutes part of a comprehensive statutory scheme address-
ing postconviction attacks on convictions." Slip op. at 5. As
far as the merits of such petitions are concerned, the clear
scheme is that a party appearing pro se need only get over a
threshold of presenting a petition that is not "frivolous or
patently without merit" and presents the "gist" of a claim for
relief. If that is done, the petitioner is entitled to counsel
who can prepare a more sophisticated postconviction petition
before a determination is made as to whether the petitioner is
entitled to an evidentiary hearing.
Thomas was a capital case where the death penalty had
been imposed, the defendant had counsel, and the rule referred to
by the majority in this case concerned the caliber of draft re-
quired under those circumstances. Slip op. at 1. Here,
defendant's motion was prepared and presented pro se. Following
the scheme of postconviction attacks on convictions, the pro se
defendant should be held to a lesser standard only in presenting
his motion for late filing. The standard of Gaultney and Lemons
would seem to be more nearly appropriate than that of Thomas. In
any event, we should not hold a pro se petitioner moving to file
a late postconviction petition to the language of a lawyer or
even to that of an educated person.
No word in a statute should be deemed meaningless.
Collins v. Board of Trustees of the Firemen's Annuity & Benefit
Fund, 155 Ill. 2d 103, 111, 610 N.E.2d 1250, 1253 (1993); Harris
v. Manor Healthcare Corp., 111 Ill. 2d 350, 362-63, 489 N.E.2d 1374, 1379 (1986). In using the word "culpable" as an antecedent
to the word "negligence" in section 122-1 of the Act, the General
Assembly must have intended to refer to a type of negligence that
is quite severe. Three circumstances patent on the face of the
record or set forth in defendant's motion for late filing strong-
ly negate any negligence on the part of defendant as being
"culpable."
The first circumstance concerned a substantial shorten-
ing by the legislature of the time in which defendant had to
bring his postconviction petition. This occurred on July 1,
1995, while defendant was incarcerated. At the time the supreme
court denied defendant's petition for leave to appeal on April 5,
1995, section 122-1 of the Act provided that, in counting the
period for filing a postconviction petition, the method that set
a "later" date controlled. 725 ILCS 5/122-1 (West 1992). Under
that scheme, defendant had until April 26, 1996, to file his
petition. He beat that deadline by filing on March 13, 1996.
However, section 122-1 of the Act was subsequently
amended to change the word "later" to the word "sooner" (725 ILCS
5/122-1 (West 1992) (amended by Pub. Act 88-678, 15, eff. July
1, 1995 (1994 Ill. Laws 2712, 2732)), thus drastically changing
the time frame in which defendant had to file because the six-
month period of section 122-1 expired on October 5, 1995.
I do not know when we can charge defendant with
knowledge of the shortened time period he had to file, but we
certainly cannot charge him with notice before that enactment
took effect on July 1, 1995. As stated by the majority, defen-
dant indicated in his motion, in unlawyerlike language, that six
months before late September 1995 he sent trial transcripts to a
Chicago attorney seeking her help, but she sent the documents
back to him in late September 1995 telling him her firm had too
much pro bono work to do to help him. As the period of six
months before late September 1995 would have been late March
1995, at that time defendant had almost another year before
filing was required. We cannot properly charge defendant with
culpable negligence in doing nothing before late March 1995 to
meet the deadline then almost a year away.
Defendant also stated in his motion for late filing
that he assumed the Chicago attorney was going to help him
because she did not write back to say she could not. This may be
unrealistic thinking, but we should not deem such an assumption
to be culpable negligence. Notably, when that lawyer did write
back in late September 1995, she in no way warned defendant that
his deadline for filing was soon approaching. I conclude defen-
dant's motion fully indicated that any negligence on defendant's
part in not preparing and presenting a postconviction petition
before late September 1995 was not "culpable."
According to defendant's motion, after the letter from
the Chicago attorney was written on September 23, 1995, the
prison was free from "lockdown" for only 49 days before he filed
his motion and petition on March 13, 1996, and none of those free
days occurred in February or March 1996.
Although the standard required of a pro se defendant
seeking to advance his petition beyond the first stage is not
very high, we have no assurance defendant knew that was so.
Nothing in the letter from the Chicago attorney told defendant
that drafting a pro se petition was something he could do.
Moreover, such drafting is more difficult than writing a letter.
In Lemons, this court stated:
"The Act requires that the allegations
in the petition for post-conviction relief be
supported by affidavit, the record, or other
evidence. (Ill. Rev. Stat. 1991, ch. 38,
pars. 122-1, 122-2.) However, the sole ex-
tent of defendant's allegations regarding her
coercion claim is that her trial counsel
'coerced defendant into accepting a
fifteen[-]year sentence where the possibility
existed that she could of [sic] received a
lesser sentence if taken to trial.'" Lemons,
242 Ill. App. 3d at 945, 603 N.E.2d at 1237.
Reasonable access but not unrestricted access of a pri-
soner to a law library has been held to be a constitutional right
if the prisoner has no right to or opportunity for an attorney.
Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 83, 97 S. Ct. 1491, 1498 (1977); People v. Banks, 161 Ill. 2d 119, 139-40,
641 N.E.2d 331, 341 (1994). One of the reasons for that rule
must be that a close relationship exists between the availability
of a library and the ability of a prisoner to draft pro se
documents for initiating requests for postconviction relief.
Moreover, many prisoners are unable to draft even
simple documents seeking relief without the aid of more sophisti-
cated prisoners referred to as "jailhouse lawyers." Defendant's
documents here were apparently drafted by such a person or by
defendant at his direction. The prison library offers a place
where the prisoner and his "jailhouse" lawyer can meet and work
in a way not available during a "lockdown."
Accordingly, I conclude that with the evidence of the
"lockdowns," defendant made a sufficient showing that his failure
to prepare a postconviction petition between late September 1995
and up to just before his filing on March 13, 1996, was not due
to culpable negligence on his part. As I deem the defendant here
made sufficient allegations to negate culpable negligence on his
part, I dissent from the decision to affirm the circuit court's
summary denial of defendant's motion for late filing.
In a case that came before this court on appeal from
denial of a motion to file a late postconviction petition, the
circuit court had also tentatively ruled on the question of
whether the postconviction petition was "frivolous or patently
without merit." Under those circumstances, if we should hold
that the filing should be permitted, we could then pass on the
question of whether the petition should be permitted to pass to
the second stage of the statutory scheme. Under the holding of
the majority, such a procedure would make no difference here, but
had our decision been to reverse, multiple appeals might have
been avoided. The circuit court's ruling on both the motion for
late filing and the merits of the postconviction petition should
be encouraged.