People v. Mitchell

June 11, 1998

No. 3--96--0051
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 91--CF--2938
)
ALEX MITCHELL, ) Honorable
) Rodney Lechwar,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________

Defendant Alex Mitchell was convicted of first degree murder
on April 13, 1992, and was sentenced to a term of 60 years'
imprisonment. Defendant's conviction and sentence were affirmed
by this court on direct appeal. People v. Mitchell, No. 3-92-
0514 (1994) (unpublished order under Supreme Court Rule 23). On
November 8, 1995, the defendant filed a pro se petition for post-
conviction relief which alleged, inter alia, that his appellate
counsel was ineffective for failing to argue that the trial court
erred in denying defendant's motion in limine to exclude evidence
of gang activity. The circuit court dismissed the petition as
untimely and because it found that defendant's allegations were
patently without merit. On appeal, defendant contends that the
late filing of his petition was not due to his culpable
negligence and that he sufficiently alleged a cognizable issue of
ineffective assistance of appellate counsel. We affirm.
Facts
A detailed recitation of the facts is unnecessary to our
disposition of this case. Suffice it to say that defendant and
others repeatedly shot at a vehicle which was travelling through
a neighborhood which was controlled by a particular gang.
Testimony indicated that the owner of the vehicle was associated
with a rival gang. One of the bullets penetrated the wall of the
victim's house and killed her as she stood in her kitchen. A
firearm's expert testified that the rifling on the fatal bullet
was consistent with having been fired from the type of weapon the
defendant was seen carrying that day.
Analysis
Defendant maintains that the circuit court erred in
dismissing his post-conviction petition as untimely because the
late filing was not due to his culpable negligence. Defendant
acknowledges that his petition was more than seven months late,
but he asserts that the delay is attributable to frequent
"lockdowns" at Pontiac Correctional Center (Pontiac) where
defendant was incarcerated. Defendant argues that he was unable
to visit the law library during the lockdown periods, which
interfered with his ability to prepare the post-conviction
petition.
Section 122-1(c) of the Post-Conviction Hearing Act (Act)
provides:
"(c) 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 or her culpable
negligence." (Emphasis added.) 725 ILCS
5/122-1(c) (West 1996).
The defendant's conviction was affirmed by this court on
August 16, 1994. Defendant did not file a petition for leave to
appeal. Therefore, defendant had to file his post-conviction
petition within six months of the date for filing a petition for
leave to appeal. Supreme Court Rule 315(b) provides that a
petition for leave to appeal must be filed within 21 days or, if
defendant has filed an affidavit of intent to file such a
petition, within 35 days after entry of judgment by the appellate
court. 166 Ill. 2d R. 315(b). September 20, 1994, is 35 days
from the entry of the August 16, 1994, judgment. Therefore,
defendant had six months, or until March 20, 1995, to file a
timely post-conviction petition. Instead, defendant filed on
November 8, 1995, 232 days beyond the filing deadline.
Defendant argues that his late filing should be excused
because he has fulfilled the section 122-1(c) requirement of
alleging facts showing that the delay was not due to his culpable
negligence. According to the affidavit filed with defendant's
petition, Pontiac was on lockdown a total of 51 days between
September 20, 1994, and March 20, 1995. In addition, during the
period from March 21, 1995, until defendant filed his petition on
November 8, 1995, Pontiac was locked down 103 days.
A petitioner has the burden of establishing that a delay in
filing his post-conviction petition was not due to his culpable
negligence. People v. Lee, 292 Ill. App. 3d 941, 688 N.E.2d 673
(1997); People v. Heirens, 271 Ill. App. 3d 392, 648 N.E.2d 260
(1995). The circuit court's determination of this issue will not
be disturbed unless it is manifestly erroneous. See People v.
Caballero, 179 Ill. 2d 205, 688 N.E.2d 658 (1997) (applying
manifest error standard to review of circuit court's finding that
delay was not due to defendant's culpable negligence); see also
People v. Moleterno, 254 Ill. App. 3d 615, 627 N.E.2d 129 (1993)
(decision to grant or deny request for post-conviction relief
will not be overturned unless manifestly erroneous); but see
People v. Perry, 293 Ill. App. 3d 113, 687 N.E.2d 1095 (1997)
(applying de novo standard of review).
In People v. McClain, 292 Ill. App. 3d 185, 684 N.E.2d 1062 (1997), the petitioner was approximately 5 1/2 months late
in filing his post-conviction petition. The petitioner, who like
this defendant was an inmate at Pontiac, claimed that lockdowns
prevented him from filing on time. The McClain court found that
the petitioner had not established that the delay was not due to
his culpable negligence. The court noted that at the first stage
of a post-conviction proceeding the petitioner only needs to set
forth the "gist of a meritorious claim." McClain, 292 Ill. App.
3d at 189, 684 N.E.2d at 1065. Since this low threshold does not
require a petitioner to make legal arguments or cite to legal
authority, access to the prison library was unnecessary.
McClain, 292 Ill. App. 3d 185, 684 N.E.2d 1062. Therefore, "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
fashion." McClain, 292 Ill. App. 3d at 190, 684 N.E.2d at 1065.
Unlike the McClain court, we are not prepared to say that
denial of access to the prison law library as a result of
lockdowns could never excuse a late filing. As Justice Green
pointed out in his dissent in McClain, many prisoners are unable
to draft even simple documents without the aid of more
sophisticated prisoners, and 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. McClain, 292 Ill. App.
3d 185, 684 N.E.2d 1062 (Green, J., dissenting). Therefore,
where the record shows that lockdowns have deprived the defendant
of a meaningful opportunity to prepare his petition in a timely
fashion, we believe some delay is excusable.
In this case we find that the defendant has failed to allege
facts sufficient to show a lack of culpable negligence.
Defendant's petition was 232 days late. While Pontiac was on
lockdown 103 days during that period, 129 days were available to
prepare the petition. More importantly, during the six month
period allowed by section 122-1(c) to file the petition, Pontiac
was locked down only 51 of 171 days, or slightly less than three
days out of ten. The only other explanation offered by defendant
for his failure to file within this period is that he was under
the impression that only the trial judge could hear his post-
conviction petition, and that judge had been indicted. Of
course, it is not necessary for the post-conviction judge and the
trial judge to be the same (see People v. Robinson, 160 Ill. App.
3d 366, 513 N.E.2d 603 (1987); People v. Dixon, 160 Ill. App. 3d
65, 513 N.E.2d 134 (1987)), and defendant's mistaken belief to
the contrary is not sufficient to excuse compliance with the time
limitations imposed by section 122-1(c) (see Perry, 293 Ill. App.
3d 113, 687 N.E.2d 1095 (mistaken belief concerning filing
deadline based on outdated prisoner handbook did not establish
lack of culpable negligence); Lee, 292 Ill. App. 3d 941, 688 N.E.2d 673 (petitioner's claim that he was incorrectly advised of
filing deadline by appellate counsel was not sufficient to show
lack of culpable negligence)).
Under the circumstances presented here, defendant has failed
to allege sufficient facts to meet his burden of establishing
that the delayed filing was not due to his culpable negligence.
See Perry, 293 Ill. App. 3d 113, 687 N.E.2d 1095 (affirming
dismissal of petition despite lockdown where record showed
several month-long periods when prison was not under lockdown).
Given our ruling, we need not consider the correctness of the
trial court's alternative grounds for dismissal.
For the reasons stated above, the judgment of the circuit
court is affirmed.
Affirmed.
HOMER, P.J., and LYTTON, J., concur.