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Table of Contents
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List of Forms by Chapter
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Chapter 1 — Trial Strategy
- I. [1.1] Bench or Jury Trial
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II. Selection of the Jury
- [1.2] In General
- Voir Dire
- [1.3] Checklist of General Areas of Inquiry
- [1.4] Questioning Prospective Jurors
- [1.5] Expert Participation at Voir Dire
- [1.6] Selection Process
- [1.7] Systematic Exclusion of Jurors
- [1.8] Exercising All Peremptory Challenges
- [1.9] Challenges for Cause
- [1.10] Statutory Grounds
- [1.11] Other Grounds
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III. Opening Statement
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IV. State’s Case-in-Chief
- [1.15] Objection and Argument Regarding Evidence
- [1.16] Stipulations
- [1.17] Motions for Mistrial
- [1.18] Cross-Examination
- [1.19] Preparation for Cross-Examination
- [1.20] General Rules of Cross-Examination
- [1.21] Cross-Examination of Particular Types of Witnesses
- [1.22] Victim or Complaining Witness
- [1.23] Occurrence or Eyewitness
- [1.24] Coconspirator, Codefendant, or Informant
- [1.25] Police Officer or Law Enforcement Personnel
- [1.26] Elderly, Youthful, or Infirm Witness
- [1.27] Expert Witness
- [1.28] Impeachment
- [1.29] Motion for Directed Verdict
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V. [1.30] Defense Case-in-Chief
- VI. [1.36] Admission of Evidence
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VII. [1.37] Jury Instructions
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VIII. [1.41] CLOSING ARGUMENT
- IX. [1.45] Posttrial Motions
- X. [1.46] Juvenile Court Cases
- XI. [1.47] Homicide and Serious Cases
- XII. [1.48] Conclusion
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Chapter 2 — Jury Issues
- I. [2.1] Introduction
- II. [2.2] Basis of the Right to a Trial by Jury
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III. Jury Waiver
- [2.3] Waiving the Right to a Jury Is the Defendant’s Right
- [2.4] Withdrawing a Jury Waiver
- [2.5] The Timing of Jury Waiver
- [2.6] Partial Jury Waivers (Jury Trials with Fewer than 12 Jurors)
- [2.7] Factors for Client To Consider for Jury Waivers
- [2.8] The Client
- [2.9] Jury Tax
- [2.10] Cost
- [2.11] Type of Defense (Technical or Emotional)
- [2.12] Twelve Judges vs. One
- [2.13] Mandatory Sentencing
- [2.14] Appellate Issues
- [2.15] How a Waiver Is Executed
- IV. [2.16] The Jury Act and Other Related Acts
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V. [2.17] Voir Dire
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VI. Jury Instructions
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VII. Juror Misconduct, Tainted Jury, and Sequestration
- [2.26] Misconduct Generally
- [2.27] Impeaching Verdict After Jury Discharged
- [2.28] Possible Ways a Jury May Be Tainted
- [2.29] Racism in the Jury Room
- [2.30] The Media
- [2.31] Observation by Juror Outside Court
- [2.32] External Communication with Jurors
- [2.33] Discussion of Case Before Parties Rest
- [2.34] Improper Communication with Judge Outside Court
- [2.35] Visiting the Crime Scene
- [2.36] Misstatements by Juror During Voir Dire
- [2.37] Sequestration
- VIII. [2.38] Deadlock (Prim Instruction)
- IX. [2.39] Evidence in Jury Room
- X. [2.40] Jury Questions and Requests for Transcripts
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XI. Verdicts
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XII. [2.43] Considerations for Representation
- [2.44] Preparing the Client for Trial
- [2.45] Jury Process
- [2.46] Dress and Conduct
- [2.47] Whether To Testify
- [2.48] Questions To Expect
- [2.49] Counsel’s Preparation
- [2.50] Jail Garb and Restraints
- [2.51] Counsel’s Demeanor
- [2.52] Motions in Limine
- [2.53] Motions To Exclude Witnesses and Non-Witnesses
- [2.54] Promises in Opening Statement
- [2.55] Object, Object, Object
- [2.56] Motion for Directed Verdict
- [2.57] Closing Argument
- [2.58] Jury Instructions
- [2.59] Poll the Jury
- [2.60] Motion for New Trial Within 30 Days
- XIII. [2.61] Conclusion
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Chapter 3 — Trial Legal Issues
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I. Conduct of the Judge
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II. The Prosecutor
- [3.4] Prosecutorial Misconduct
- [3.5] Closing Arguments
- [3.6] Opening Statements
- [3.7] Misstatements of Law
- [3.8] Misstatements of Fact
- [3.9] Comments Relating to the Defendant’s Possible Sentence
- Comments About Excluded Evidence, Evidence Not Offered, and Rulings of the Judge
- [3.10] Facts That Are Inadmissible
- [3.11] Assumptions and Facts Not Based in the Record
- [3.12] Misstating or Overstating the Evidence in Closing Argument
- [3.13] Defendant’s Failure To Present Evidence
- [3.14] Admissible Evidence
- [3.15] Continuing with Arguments or Questions After Objection Is Sustained
- Voicing Opinion
- [3.16] Personal Opinion That Defendant Is Guilty
- [3.17] Disparaging the Defendant or Witnesses
- [3.18] Witness’s Opinion Concerning Veracity of Other Witnesses
- [3.19] Argumentative Questions
- [3.20] Questions That Vilify Through Presumption
- [3.21] Prosecutor Vouching for Witnesses
- [3.22] Asking for Guilty Verdict in Order To Deter Future Lawbreaking
- [3.23] Comments on Defendant’s Failure To Testify
- [3.24] Evidence That Is “Uncontradicted” vs. “Undenied”
- [3.25] Failure To Confront or Call Witnesses
- [3.26] Defendant’s Failure To Testify When Defense Promises Testimony in Opening Statement
- [3.27] Commenting That Defendant Testified at Prior Trial
- Comments on Defendant’s Failure To Call Witnesses
- [3.28] Alibi Witness
- [3.29] Witness Equally Accessible to the State
- [3.30] Witness Who Has Been Barred from Testifying
- [3.31] Comments About Witnesses
- [3.32] Witness Credibility Based on Evidence
- [3.33] Mere Conflict in Testimony Insufficient To Establish a Witness Lied
- [3.34] Witness’s Relationship with Counsel May Be Used To Question Credibility
- [3.35] Improper To Give Own Opinion as to Witness’s Credibility
- [3.36] Prosecutor May Not Vouch for Witness
- [3.37] Prosecutor May Not Bolster a Witness’s Credibility
- [3.38] Invited Error Excuses Improper Comments
- [3.39] Waiver
- Comments About the Defendant
- [3.40] Inflaming Prejudices of Jury
- [3.41] Referring to Actions as Evil
- [3.42] Commenting on Irrelevant Character Flaws
- [3.43] Calling Defendant a Criminal
- [3.44] Prosecutor Saying Defendant Is Lying
- [3.45] Defendant’s Interest in Testifying
- [3.46] Prosecutor May Not Put Own Credibility in Issue
- [3.47] Criticizing Defendant for Exercising Constitutional Rights
- [3.48] Comments About Defense Counsel
- [3.49] Racial Comments
- [3.50] Comments About the Victim and Victim’s Family
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III. Trial Procedures
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IV. Verdicts
- [3.60] General Verdicts
- [3.61] Inconsistent Guilty and Not-Guilty Verdicts
- [3.62] Inconsistent Guilty Verdicts Must Be Rejected
- [3.63] Convictions Following Bench Trials
- [3.64] Inconsistent Verdicts for Codefendants
- [3.65] Multiple Convictions Based on the Same Conduct
- [3.66] State Must Charge Separate Acts if It Seeks Multiple Convictions
- [3.67] Lesser Included Offenses
- [3.68] One-Act, One-Crime Violations
- [3.69] Charging Instrument Approach
- [3.70] Multiple Convictions Upheld
- [3.71] Offenses That Are Not Lesser Included Offenses of One Another
- [3.72] Multiple Convictions Improper
- [3.73] Multiple Convictions Cannot Be Entered Because One Is a Lesser Included Offense of the Other
- [3.74] Impeachment of Verdicts
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V. [3.75] Obtaining and Calling Witnesses
- [3.76] Issues That Arise When the State Calls Witnesses
- [3.77] Compulsory Process
- [3.78] Special Witnesses
- [3.79] Waiver of Statutory Right To Subpoena Witness
- [3.80] Requiring Defendant To Pay for Process Fees
- [3.81] Funding for Expert Witnesses
- [3.82] Witness’s Invocation of Privilege Against Self-Incrimination
- [3.83] State’s Interference with Defendant’s Right To Present Witnesses
- [3.84] Recalling a Witness
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Chapter 4 — Evidence
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I. [4.1] Introduction
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II. General Principles and Definitions
- [4.7] Admissibility of Evidence Generally
- [4.8] Relevancy and Materiality
- [4.9] Relevancy Conditioned on Fact
- [4.10] Relevancy After the Offense
- [4.11] Examples of Relevant Evidence
- [4.12] Examples of Irrelevant Evidence
- [4.13] Excluding Relevant Evidence
- [4.14] Incompetent Evidence
- [4.15] Limited Admissibility
- [4.16] Curative Admissibility
- [4.17] The Completeness Doctrine
- [4.18] Rebuttal and Surrebuttal Evidence
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III. Types of Evidence
- [4.19] Presentation by Judicial Notice
- [4.20] Examples of Proper Judicial Notice
- [4.21] Examples of Improper Judicial Notice
- [4.22] Direct and Circumstantial Evidence
- [4.23] Negative Evidence
- [4.24] Demonstrative and Real or Physical Evidence
- [4.25] Demonstrative Evidence and Courtroom Demonstrations
- [4.26] Physical Evidence
- [4.27] Evidence Excluded Due to Lack of Sufficient Foundation
- [4.28] Chain-of-Custody Cases
- [4.29] Photographs
- [4.30] Video and Audio Recordings
- [4.31] Opinion Testimony
- [4.32] Opinion Testimony by Lay Witnesses
- [4.33] Opinion Testimony by Expert Witnesses
- [4.34] Scientific Evidence
- [4.35] Chemical Tests
- [4.36] Fingerprint Comparison
- [4.37] Handprint Evidence
- [4.38] Shoe Print Evidence
- [4.39] Handwriting Comparison
- Polygraph Tests
- [4.40] Use of Polygraph Results at Trial
- [4.41] Use of Polygraph Results in Other Types of Proceedings
- [4.42] Hypnosis
- [4.43] Ballistic Tests
- [4.44] Blood, Hair, and Teeth Comparison
- [4.45] DNA Evidence
- [4.46] Posttrial Forensic Testing
- [4.47] Character and Reputation Evidence — General Rules
- [4.48] Character and Reputation of Defendant
- [4.49] Character and Reputation of Witnesses
- Character and Reputation of Alleged Victim
- [4.50] Violent Crimes
- [4.51] Sex Offenses
- [4.52] Evidence Showing Consciousness of Guilt
- [4.53] Escape
- [4.54] Flight
- [4.55] Tampering
- [4.56] Evidence of Other Crimes
- As Substantive Evidence of Guilt
- [4.57] For Non-Propensity Purposes
- [4.58] For Propensity Purposes
- [4.59] As an Element of the Offense
- [4.60] As Impeachment
- [4.61] Evidence of Other Criminal Conduct by Witnesses
- [4.62] Evidence Suggesting Other Criminal Conduct by Defendant
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IV. Hearsay, Records, and Other Out-of-Court Statements
- [4.63] Generally
- [4.64] Examples of Admissible Testimony
- [4.65] Examples of Inadmissible Testimony
- [4.66] Confrontation Clause Issues
- Spontaneous Declarations/Excited Utterances and Corroborative Complaints
- [4.67] Spontaneous Declarations/Excited Utterances
- [4.68] Corroborative Complaints
- [4.69] Examples of Spontaneous Declarations and Corroborative Complaints
- [4.70] Prior Inconsistent Statements
- [4.71] Prior Consistent Statements
- [4.72] Prior Statements of Identification
- [4.73] Statements to Treating Physicians
- [4.74] Testimony from Prior Proceedings
- [4.75] Testimony About the Course of Police Investigation
- [4.76] Dying Declarations
- [4.77] Coconspirator Statements
- [4.78] Statements Against Penal Interest
- [4.79] Admissions
- [4.80] Statements About State of Mind
- [4.81] Defendant’s Testimony About His or Her Own State of Mind
- [4.82] Declarant’s Out-of-Court Statement Concerning His or Her Own State of Mind
- [4.83] Evidence, Including Statements of Others, Offered To Show an Effect on a Person’s State of Mind
- Writings and Other Records
- [4.84] Best Evidence Rule
- [4.85] Business and Public Records
- [4.86] Computer Records
- [4.87] Summaries of Voluminous Records
- [4.88] Refreshing Recollection
- [4.89] Past Recollection Recorded
- [4.90] Privileged Communications
- [4.91] Husband-Wife Communications
- [4.92] Attorney-Client Privilege
- [4.93] Physician-Patient Privilege
- [4.94] Other Privileged Communications
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Chapter 5 — Preserving the Record
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Chapter 6 — Criminal Sentencing in Illinois
- I. [6.1] Introduction
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II. [6.2] Determining the Sentencing Range
- [6.3] Finding the Maximum and Minimum Penitentiary Sentences for the Charged Offense
- [6.4] Basic Ranges for Penitentiary Sentences, Excluding the Firearms Add-Ons
- [6.5] Particular Felonies
- [6.6] Class X: 6 – 30 Years
- [6.7] Class X Felonies: Greater than 6 – 30 Years
- [6.8] Class 1 Felonies: 4 – 15 Years
- [6.9] Class 1 Felonies: Greater than 4 – 15 Years
- [6.10] Class 2 Felonies: 3 – 7 Years
- [6.11] Class 2 Felonies: Greater than 3 – 7 Years
- [6.12] Class 3 Felonies: 2 – 5 Years
- Firearms Add-Ons
- [6.13] Application
- [6.14] Constitutionality
- Other Natural Life Sentences
- [6.15] Application
- [6.16] Constitutionality as Applied to Juveniles
- [6.17] Determining Whether a Non-Penitentiary Sentence Is Available
- [6.18] Prohibited Probations
- [6.19] Presumption in Favor of Probation
- [6.20] Determining Whether Consecutive Sentencing Is Permitted or Required
- [6.21] Mandatory Consecutive Sentences Based on Severe Bodily Injury
- [6.22] General Interpretation of the Severe Bodily Injury Consecutiveness Provision
- [6.23] Definition of “Severe Bodily Injury”
- [6.24] Discretionary Consecutive Sentences
- [6.25] Consecutive Sentences Needed
- [6.26] Inadequate Basis for Consecutive Sentences
- [6.27] Consecutive Sentences Requiring Reversal
- [6.28] Cases Affirming Consecutive Sentencing
- Determining Whether an Extended Term Sentence Is Permitted or Required
- [6.29] Generally
- [6.30] Apprendi Primer and Update
- [6.31] Apprendi “Fix” Statute
- Extended Terms: Length and Application of Apprendi
- [6.32] Length of Extended Terms
- [6.33] Recidivist Extended Terms
- [6.34] Non-Recidivist Extended Terms
- [6.35] Judicial Interpretation of the “Exceptionally Brutal or Heinous” Factor
- [6.36] Determining What Percentage of a Penitentiary Sentence Is Available for Award of Good Time Credits
- [6.37] Treatment as a Drug Addict
- [6.38] Impact Incarceration
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III. The Sentencing Hearing
- IV. [6.45] Conclusion
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Chapter 7 — The Criminal Appeal
- I. [7.1] Scope of Chapter
- II. [7.2] Should the Client Appeal?
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III. [7.3] Initial Steps in Filing Direct Appeals to the Appellate Court
- [7.4] Constitution of Illinois and Supreme Court Rules
- [7.5] Final Judgment Generally Required and Exceptions
- [7.6] Sequence of Postjudgment and Post-Sentencing Motions
- Notice of Appeal, Docketing, and Ordering the Record on Appeal
- [7.7] Sole Jurisdictional Requirement
- [7.8] Form of Notice of Appeal and Filing Deadline
- [7.9] Late Notices, Filing in the Wrong Reviewing Court, and Complete Failure To File the Notice
- [7.10] Docketing Statement
- [7.11] Ordering the Court File and Transcripts
- [7.12] Bystanders’ Reports
- [7.13] Extensions To File the Record
- [7.14] A Note on State Appeals to the Appellate Court
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IV. Motion Practice and Review of the Record on Appeal
- Motions in the Reviewing Courts of Illinois
- [7.15] Routine Motions
- [7.16] Emergency Motions
- [7.17] Case-Dispositive Motions
- [7.18] Motions for Extensions To File Briefs
- [7.19] Briefing Deadlines
- [7.20] First Steps: Reviewing Posttrial and Post-Sentencing Motions
- [7.21] Next Steps: Reviewing and Abstracting the Record on Appeal
- [7.22] Selection of Issues
- [7.23] Legal Research
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V. Writing the Brief
- [7.24] Be Laconic, Not Loquacious
- [7.25] Basics
- [7.26] Introductory Material
- [7.27] Composing Issue Headings
- [7.28] Statement of Facts
- [7.29] Standard of Review
- [7.30] Body of the Argument
- [7.31] Appendix
- [7.32] Reply Briefs
- [7.33] Conclusion and Certificate of Compliance
- [7.34] Filing the Brief
- [7.35] Oral Argument
- [7.36] Types of Appellate Court Rulings, Mandates, and Circuit Court Reinstatement
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VI. Petitions for Rehearing and Petitions for Leave To Appeal
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VII. Nondiscretionary Appeals to the Supreme Court
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VIII. Extraordinary Appeals
- IX. [7.44] Common Mistakes
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X. Forms
- [7.45] Retainer Agreement
- [7.46] Notice of Appeal
- [7.47] Motion To File Late Notice of Appeal
- [7.48] Appearance in the Appellate Court
- [7.49] Docketing Statement
- [7.50] Request to Court Reporters To Prepare Transcripts
- [7.51] Request to the Circuit Clerk To Prepare the Entire Record
- [7.52] Motion To Supplement the Record
- [7.53] Motion for Extension of Time To File the Record
- [7.54] Motion To Seal Confidential or Sensitive Documents in the Court File
- [7.55] Motion To File a Separate Appendix
- [7.56] Motion To File a Brief in Excess of the Page Limitation
- [7.57] Motion for Extension of Time To File the Brief
- [7.58] Motion To File the Brief Instanter
- [7.59] Motion To Cite Supplemental Authority
- [7.60] Sample Cover Page and Points and Authorities of Appellant’s Brief
- [7.61] Sample Appellant’s Brief
- [7.62] Notice of Election To File a Brief in the Supreme Court in Addition to the Petition for Leave To Appeal
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Chapter 8 — Illinois Post-Conviction Hearing Act
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I. [8.1] Introduction
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II. [8.9] Initiation of Proceedings: Section 122-1
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III. Limitations Period: Section 122-1(c)
- [8.16] General Rules
- [8.17] Date of Conviction
- [8.18] Claims of Actual Innocence
- [8.19] Time Limitation in Misdemeanor Cases
- [8.20] Effects of Legislative Amendments Altering the Statute of Limitations
- [8.21] Early Filings
- [8.22] Filing Beyond the Statutory Deadline
- [8.23] State Waiver of Statute-of-Limitations Defense
- [8.24] Pleading Lack of Culpable Negligence
- [8.25] Adequacy of Showing of Lack of Culpable Negligence
- [8.26] Reliance on Legal Advice or Action from Another
- [8.27] Claims Based on New Law Issued After Expiration of the Time for Filing
- [8.28] Prison Conditions
- [8.29] Other Circumstances
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IV. [8.30] Rights of Indigents
- [8.31] Appointment of Counsel in Capital Cases: Section 122-2.1(a)(1)
- [8.32] Appointment of Counsel in Noncapital Cases: Section 122-4
- [8.33] Counsel on Postconviction Appeal
- [8.34] Expert and Other Fees
- Transcripts
- [8.35] Availability of Record on Appeal While Preparing Postconviction Petition
- [8.36] Record on (Postconviction) Appeal
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V. [8.37] Successive Petitions: Section 122-1(f)
- [8.38] Leave of Court
- [8.39] Cause and Prejudice
- [8.40] “Cause” Under Section 122-1(f)
- [8.41] Unavailability of Legal Basis
- [8.42] Unavailability of Factual Basis
- [8.43] Fundamental Miscarriage of Justice
- [8.44] Fundamental Deficiency in First Proceeding
- [8.45] “Prejudice” Under Section 122-1(f)
- [8.46] Review of Defaulted Claim When Necessary To Prevent Fundamental Miscarriage of Justice
- VI. [8.47] Fitness for Postconviction Proceedings
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VII. [8.48] Duties of Postconviction Counsel
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VIII. Circuit Court Procedures
- [8.56] Overview of the Postconviction Process
- [8.57] Stage 1: Examination of Noncapital Petitions Under Section 122-2.1
- [8.58] 90-Day Summary Dismissal Period
- [8.59] Frivolous or Patently Without Merit
- [8.60] Consideration by Circuit Court
- [8.61] Penalties for Frivolous Filings
- [8.62] Stage 2: Counseled Pleading Stage
- [8.63] Appointment of Counsel
- [8.64] Amending the Pro Se Petition
- [8.65] Responsive Pleading by the State
- [8.66] Other Pleadings
- [8.67] Hearing on Motion To Dismiss
- [8.68] Stage 3: Fact-Finding
- [8.69] Need for an Evidentiary Hearing
- [8.70] Burden of Proof
- [8.71] Scope of Hearing and Types of Proof
- [8.72] Presence of Petitioner
- [8.73] Discovery
- [8.74] Change of Judge or Venue
- [8.75] Other Hearings
- [8.76] Motions To Reconsider
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IX. [8.77] Contents of Petition — Section 122-2
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X. [8.81] Cognizable Claims
- [8.82] Retroactivity; Teague-Flowers Doctrine
- [8.83] Ineffective Assistance of Counsel
- [8.84] Elements of Claim
- [8.85] Performance Prong
- [8.86] Prejudice Prong
- [8.87] Pretrial and Trial
- [8.88] Sentencing
- [8.89] Direct Appeal
- [8.90] Guilty Plea Proceedings
- [8.91] Failure To Seek Expert or Other Assistance
- [8.92] Brady Claims
- [8.93] General Principles
- [8.94] Knowing Use of Perjured Testimony
- [8.95] Other Brady Claims
- [8.96] Innocence Claims
- [8.97] New
- [8.98] Material
- [8.99] Noncumulative
- [8.100] Conclusive
- [8.101] Invalid Waivers of Rights
- [8.102] Involuntary Confessions
- [8.103] Fitness Claims
- [8.104] Improper Influences on Jury
- [8.105] Judicial Corruption
- [8.106] Mental Retardation as Bar to Execution
- [8.107] Other Claims
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XI. [8.108] Waiver; Res Judicata
- [8.109] No Direct Appeal Taken
- [8.110] Claims Based on Matters Outside Record
- [8.111] Claims Not Barred Due to Ineffective Assistance of Direct Appeal Counsel
- [8.112] Claims Previously Raised on Direct Appeal Raised on Postconviction with Additional Evidence
- [8.113] Fundamental Fairness
- [8.114] Change in Law Following Direct Appeal
- [8.115] Ineffective Assistance of Counsel Claim Not Barred: Relationship Between Prior Attorneys
- [8.116] Successive Postconviction Petitions
- [8.117] Waiver (Forfeiture) by State
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XII. Appellate Review
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Chapter 9 — Habeas Corpus
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I. Preliminary Considerations
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II. [9.4] Introduction
- [9.5] Nature of the Remedy
- [9.6] The Place of Habeas Corpus in the Criminal Process
- [9.7] First Stage — Direct Appeal
- [9.8] Second Stage — State Collateral Review
- [9.9] Third Stage — Federal Collateral Review
- [9.10] A Bit of History — The Common-Law Writ
- [9.11] More History — The Statutory Habeas Power
- [9.12] Current Federal Habeas Corpus Statutes
- [9.13] 28 U.S.C. §2254
- [9.14] 28 U.S.C. §2241, et seq.
- [9.15] 28 U.S.C. §2255
- [9.16] Governing Rules
- [9.17] Rules Governing Section 2254 Cases in the United States District Courts
- [9.18] Rules Governing Section 2255 Proceedings for the United States District Courts
- [9.19] Federal Rules of Appellate Procedure
- [9.20] Circuit Rules
- [9.21] Applicability of the Federal Rules of Civil Procedure to 28 U.S.C. §2254 Proceedings
- Local Rules
- [9.22] Capital Habeas Rules for the Seventh Circuit
- [9.23] Northern District of Illinois
- [9.24] Central District of Illinois
- [9.25] Southern District of Illinois
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III. Initiating the Case Under 28 U.S.C. §2254
- IV. [9.34] Custody
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V. [9.35] Statute of Limitations
- Calculation
- [9.36] Computation
- Initiation
- [9.37] Convictions Final After April 24, 1996
- [9.38] Convictions Final Before April 24, 1996
- [9.39] Mailbox Rule
- [9.40] Inapplicability of 180-Day Statute of Limitations Under 28 U.S.C. §2263
- [9.41] Effect of Untimely Filing
- [9.42] Tolling
- [9.43] Statutory Tolling
- [9.44] “Properly Filed”
- [9.45] “State Post-Conviction or Other Collateral Review”
- [9.46] “With Respect to the Pertinent Judgment or Claim”
- [9.47] “Pending”
- [9.48] Equitable Tolling
- [9.49] Equitable Tolling Found
- [9.50] Equitable Tolling Not Found
- [9.51] Actual Innocence as Grounds for Equitable Tolling
- [9.52] Waiver of Statute of Limitations
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VI. Investigation of the Petition
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VII. Preparation of the Petition
- [9.57] Clerk’s Form
- [9.58] Attorney Petitions
- [9.59] Caption
- [9.60] Citation of Authority
- [9.61] Constitutional Basis and Supreme Court Authority for Claim
- [9.62] Further Discussion of Authority
- [9.63] Procedural History
- [9.64] Statement of Facts
- [9.65] Statement of the Claim
- [9.66] Conclusion
- [9.67] Verification
- [9.68] Exhibits
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VIII. Filing the Petition
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IX. Initial Proceedings on the Petition
- Assignment
- [9.79] District
- [9.80] Division
- [9.81] Judge
- [9.82] Magistrate Judge
- [9.83] Capital Habeas Rules for the Seventh Circuit
- [9.84] Local Rules — Northern District of Illinois
- [9.85] Local Rules — Southern District of Illinois
- [9.86] Local Rules — Central District of Illinois
- [9.87] Preliminary Consideration — Summary Dismissal
- [9.88] Initial Proceedings in Death-Penalty Cases
- [9.89] Capital Habeas Rules for the Seventh Circuit
- [9.90] Local Rules
- Scheduling
- [9.91] Generally
- [9.92] Inapplicability of Opt-In Schedule for Death-Penalty Cases to Illinois Petitioners
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X. Special Problem Filings
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XI. Amendment
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XII. Responsive Pleadings
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XIII. [9.109] The State Court Record
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XIV. [9.116] Legal Issues
- Procedural Issues
- [9.117] Exhaustion of State Remedies
- [9.118] Mixed Petitions
- [9.119] Dismissal Without Prejudice
- [9.120] Stay of Proceedings
- [9.121] Waiver of Exhaustion Requirement
- [9.122] State Procedural Default
- [9.123] “Independent” State Grounds
- [9.124] “Adequate” State Grounds
- [9.125] Merits Determination in State Courts
- [9.126] Burden
- [9.127] Cause and Prejudice as a Defense to State Procedural Bar
- [9.128] Cause
- [9.129] Prejudice
- [9.130] Miscarriage of Justice as a Defense to State Procedural Bar
- [9.131] Forfeiture of State Procedural Default
- Substantive Issues
- [9.132] Standard for Relief
- [9.133] Claims Adjudicated on the Merits in State Court Proceedings
- [9.134] State Court Decisions Contrary to, or Unreasonably Applying, U.S. Supreme Court Law
- [9.135] The “contrary to” and “unreasonable application of” clauses
- [9.136] The “clearly established Federal law” and “Supreme Court of the United States” clauses
- [9.137] Unreasonable Determination of the Facts
- [9.138] Retroactive Application of New Rules of Constitutional Law
- [9.139] State Findings of Fact Presumed Correct
- [9.140] Harmless Error
- Special Substantive Issues
- [9.141] Ineffective Assistance of Counsel
- [9.142] Fourth Amendment Claims
- XV. [9.143] Discovery
- XVI. [9.144] Expansion of the Record
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XVII. Evidentiary Hearing
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XVIII. Relief
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XIX. Appeal
- XX. [9.160] Clemency
- XXI. [9.161] Habeas Corpus for State Prisoners Under 28 U.S.C. §2241
- XXII. [9.162] Habeas Corpus for Federal Prisoners Under 28 U.S.C. §2255
- XXIII. [9.163] Illinois State Habeas Corpus
- XXIV. [9.164] Ministerial Habeas Corpus
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XXV. [9.165] Sources
Authors
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Anna M. Ahronheim
Anna M. Ahronheim
Anna M. Ahronheim is an attorney in private practice. Anna obtained her J.D. from the University of Illinois College of Law in 1985. For the next 22 years she was an attorney with the Illinois Office of the State Appellate Defender. From 2008 through 2017, she was the supervisor of the Capital Habeas Unit of the Federal Public Defender’s Office in the Western District of Pennsylvania and represented clients in habeas corpus proceedings. She has given presentations on postconviction practice at seminars sponsored by numerous organizations and law schools. She intends to devote her post-public-defender practice to the representation of incarcerated clients in Pennsylvania, Illinois, and soon in Michigan, where her application for admission is pending.
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Keith Grant
Keith Grant
Keith Grant is the Chief of Special Defense & Professional Development for the Lake County Public Defender’s Office in Waukegan. He is the President of the Illinois Public Defender Association and a Past President of the Lake County Bar Association and the Jefferson Inn of Court. Mr. Grant received his B.A. from Ripon College and his J.D. from Northern Illinois University College of Law.
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Alison H. Motta
Alison H. Motta
Alison H. Motta has been in private practice since 2001. She is a Partner with Motta & Motta LLC in Aurora, where she concentrates her practice in criminal defense. She is a member of the state and federal trial bar. She is a member of the National Association of Criminal Defense Lawyers and ATLA. Ms. Motta received her J.D. from Chicago-Kent College of Law.
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Robert M. Motta II
Robert M. Motta II
Robert M. Motta II is a Partner with Motta & Motta LLC in Aurora, where he concentrates his practice in criminal defense (both state and federal) and family and divorce law. He is a member of the National Association of Criminal Defense Lawyers and ATLA. Mr. Motta attended Eastern Illinois University for undergraduate studies and received his J.D. from Chicago-Kent College of Law.
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Marcos D. Reyes
Marcos D. Reyes
Marcos D. Reyes is the Chief of the Legal Resources Division of the Law Office of the Cook County Public Defender in Chicago, where he focuses on criminal defense. He is a member of the Puerto Rican Bar Association and the Catholic Lawyers Guild of Chicago. Mr. Reyes received his J.D. from Loyola University Chicago School of Law.
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Stephen L. Richards
Stephen L. Richards
Stephen L. Richards is currently in private practice. He has been a member of the Illinois Supreme Court’s Screening Committee for the Capital Litigation Trial Bar. He has also been the President of the Illinois Public Defender Association. He has lectured and written extensively on criminal law and the death penalty. Mr. Richards graduated from the University of Chicago and from Brooklyn Law School.
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Joshua Sachs
Joshua Sachs
Joshua Sachs is a sole practitioner with the Law Office of Joshua Sachs in Evanston, concentrating in the trial and appellate defense of Illinois and federal criminal prosecutions. Mr. Sachs received his B.A. from Grinnell College and his J.D. from the University of Illinois College of Law.
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Jed H. Stone
Jed H. Stone
Jed H. Stone is a criminal defense lawyer with Stone & Associates, Ltd., in Waukegan. He is a Fellow of the American Board of Criminal Lawyers. He was named a Super Lawyer in 2016, 2017, and 2018. He is a member of the NAACP — Lake County, Illinois. Mr. Stone received his B.A. from Lake Forest College and his J.D. from Chicago-Kent College of Law.
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Lawrence Wechter
Lawrence Wechter
Lawrence Wechter is retired from the practice of law. Prior to retiring, he was the Principal Attorney at the Law Office of Larry Wechter in Geneva, where he focused on civil and criminal appeals. Mr. Wechter received his B.A. from the University of Michigan and his J.D. from the University of Iowa College of Law.
Defending Criminal Cases: Trials, Sentencing, Appeals, and Posttrial Issues 2018 Edition
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