The opinion of the court was delivered by: Justice Slater
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois,
Honorable Rodney Lechwar, Judge, Presiding.
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 People v. Mitchell, No. 3-92-0514 (1994) (unpublished order under Supreme Court Rule 23).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.
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.
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 ...