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This is the second post in my series on filing for post-conviction relief in Chicago, Illinois. My last post provided an overview of topics I will be discussing and stressed the need to contact an attorney immediately if you wish to file an appeal. It is important to contact counsel sooner, rather than later, as there are deadlines which must be met or you will lose your right to file an appeal. In this post I will discuss another important topic – the difference between an appeal and a request for post-conviction relief (which is otherwise referred to as “habeas corpus”). Understanding the differences between these options is essential when deciding how your case will proceed.
An appeal takes place after one has been convicted and sentenced in the Illinois Circuit Court. Contrary to what many people believe, an appeal is not a “do over” of the trial process. The Appellate Court will not hear new testimony or consider new evidence. The Court’s role, instead, is to review the transcripts, pleadings, and record of the original process and to determine if the Circuit Judge made legal errors. Examples of legal errors include incorrectly overruling objections, mistakenly admitting or mistakenly denying the admittance of evidence, improperly denying a pretrial Motion, etc. For the most part, the Court will accept the factual findings of a Judge and Jury to be accurate. The relief which will be granted by an appeal, may be the granting of a new trial or an outright dismissal, depending on the nature of the case.
Post-conviction requests are made after an appeal is denied. They begin with the filing of a Petition for a Writ of Habeas Corpus. Unlike an appeal, a post-conviction Petition is typically heard by the same Judge who conducted the trial. One’s Petition is allowed to raise three points – that the defendant’s prior counsel was somehow ineffective, that a subsequent change in the law should now overturn the conviction, or that the defendant was actually innocent. All arguments made in the Petition must fall under one of these categories. The most common claim made in a post-conviction request is that the prior criminal defense attorney was ineffective. Common examples of ineffective assistance of counsel include:
It is important for a defendant to understand that they can only claim ineffective assistance of counsel as part of a request for habeas corpus. Claims that an attorney was ineffective cannot be raised on the direct appeal. If one believes that their best argument is that counsel failed to do their job then they must go through the appellate process before they are able to bring the matter before a Circuit Court Judge.
Contact my Orland Park office today to speak with a Chicago post-conviction attorney. In my more than thirty years as a criminal defense lawyer I have helped many Illinois defendants with filing for a writ of habeas corpus. I also handle matters in areas of Cook County including Glenview, Palos Park, Oak Lawn, Oak forest, Blue Island, Palos Heights, Palos Hills, Alsip, Bridgeview, Lemont, Orland Hills, Country Club Hills, Hickory Hills, and Tinley Park, in DuPage County areas including Downers Grove, Naperville, Woodridge, and Darien, in Kane County areas including Aurora, Elgin and Geneva, and the Will County cities of Joliet, Bolingbrook, Mokena, Frankfort, New Lenox, Lockport, Homer Glen, Romeoville, and Manhattan.