Appeal from the Circuit Court of Cook County. No. 95 CR 27838 Honorable Edward M. Fiala, Jr., Judge Presiding
The opinion of the court was delivered by: Justice Greiman
Defendant was convicted of first degree murder after a jury trial and sentenced by the court to 40 years' imprisonment. This court affirmed his conviction and sentence in an unpublished order (People v. McLaughlin, No. 1-96-2250 (1997)) (unpublished order under Supreme Court Rule 23). Thereafter, defendant filed a pro se post-conviction petition. See 725 ILCS 5/122-1 (West 1998). Although it is not clear from the record or either party's briefs, the trial court apparently reviewed the petition and found it to state the gist of a constitutional claim. Pursuant to section 122-2.1(b) of the Post-Conviction Hearing Act (Act), the court then "order[ed] the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS 5/122-2.1(b) (West 1998).
Defendant then retained counsel, who filed an appearance and requested additional time to file a post-conviction petition. The State filed a motion to dismiss the original petition, and defendant's counsel then filed an amended post-conviction petition. The State then filed an amended motion to dismiss the amended petition. The trial court heard arguments on the motion and dismissed the petition on the ground that it was untimely. Defendant filed a notice of appeal and then filed a pro se petition for postjudgment relief pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)), which was also denied. Defendant also filed a notice of appeal from that petition, and this court granted defendant's motion to consolidate the two appeals. For the reasons that follow, we affirm the trial court's decision to dismiss all of defendant's postjudgment motions.
Defendant was found guilty of first degree murder for the shooting of Jimmy Holmes following a jury trial on February 15, 1996. On June 3, 1996, he was sentenced to 40 years' imprisonment in the Illinois Department of Corrections. This court affirmed his conviction and sentence on April 25, 1997, and on October 8, 1998, defendant filed a pro se post-conviction petition. Attached to the petition was the affidavit of Kahlil Rowe (Rowe), an eyewitness who identified the defendant as the shooter during trial. The substance of Rowe's affidavit was that he did not see the defendant with a gun and that police detectives who were at defendant's lineup told Rowe that someone was going to "go down" for the murder and accused Rowe of hiding the gun on the night of the crime. Accordingly, defendant's claim was one of actual innocence where the only testimony against him was perjured. Defendant also attached the affidavits of Leonard Phillips and Chimere Jackson, which alleged that defendant was across the street when the shooting occurred and that the shot sounded as if it had come from around the area where the actual shooting had occurred. Phillips' affidavit was dated September 3, 1998, and Jackson's was dated September 8, 1998. Defendant also claimed that his trial counsel was ineffective for failing to interview and call occurrence witnesses, but he only attached his own affidavit in support of that claim. As previously stated, the trial court apparently found the petition stated the gist of a constitutional claim and docketed it for further consideration. In other words, defendant made it past the first stage of post-conviction review.
On January 8, 1999, defendant's current attorney filed an appearance and requested additional time to file a post-conviction petition. Thereafter, defendant's counsel then filed an amended post-conviction petition, alleging that the statute of limitations in the Act was unconstitutional, that defendant's claim of perjured testimony could be considered under section 2-1401 as well as under Public Act 90-141 (Pub. Act 90-141, eff. January 1, 1998), that defendant's trial counsel was ineffective where he failed to interview and present the testimony of occurrence witnesses who could not identify the defendant as the shooter, for failing to move to suppress the identification testimony where defendant was arrested without probable cause, and for failing to request a limiting instruction regarding the threatening phone calls to Rowe. The amended petition further alleged that Rowe's retraction and the affidavits of Jackson and Phillips supported a claim of actual innocence. Attached to the amended petition were the affidavits of the three witnesses, a copy of the police reports, and defendant's affidavits. *fn1
On August 11, 1999, the State filed a motion to dismiss the amended petition, arguing that the statute of limitations barred defendant's claims, that the statute of limitations was constitutional, that Rowe's retraction did not qualify as newly discovered evidence, and that defendant made no showing that testimony was perjured. On September 9, 1999, the trial court heard arguments on the motion and dismissed it as being untimely. On September 29, 1999, defendant filed a notice of appeal.
On October 20, 1999, defendant filed a pro se petition for postjudgment relief pursuant to section 2-1401, alleging that Rowe came forward as of February 8, 1998. Defendant attached the same affidavits from Rowe, Jackson, and Phillips that had been used in his previous petition. In that petition, however, he alleged that he was entitled to relief because Rowe, Chicago police detectives, and the State's Attorney's office fraudulently concealed Rowe's perjured testimony both before and after trial. Further, it alleged that defendant had been diligently attempting to obtain information to show his actual innocence and that through no fault of his own has he contributed in the delay of this petition being filed. On November 2, 1999, that petition was denied, and the order entered was "off call." Defendant filed his appeal of this order on December 2, 1999, and on or about July 20, 2000, defendant's attorney moved to consolidate the two appeals. On August 9, 2000, this court allowed the motion and consolidated the two cases.
While defendant argues the merits of both his amended post-conviction petition as well as his section 2-1401 petition, we note that both petitions were dismissed, not on their merits, but based on their untimeliness. Accordingly, we must first decide whether the trial court's decision to dismiss those petitions was correct. Ultimately, we find that: (1) the portion of defendant's amended post-conviction petition brought pursuant to section 122-1 of the Act was time-barred under section 122-1(c); (2) the portion of defendant's amended post-conviction petition that invoked section 2-1401's provisions was time-barred under section 2-1401(c); and (3) defendant's subsequent pro se section 2-1401 motion was also time barred under section 2-1401(c). Consequently, we affirm on that basis alone and do not address the substance of defendant's claims. As a preliminary matter, the standard of review as to whether a post-conviction proceeding may be dismissed without an evidentiary hearing is de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
It is uncontested that the statute of limitations that was in effect at the time the defendant filed his post-conviction petition governs his claim (People v. Bates, 124 Ill. 2d 81 (1988)) and provides in pertinent part:
"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 *** 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." 725 ILCS 5/122-1(c) (West 1998).
Defendant's first argument is that the trial court erred when it dismissed his post-conviction petition based on the statute of limitations in the Act because the statute, as applied, is unconstitutional. For this, defendant notes that he was sentenced to 40 years on June 3, 1996. Had he chosen not to proceed with an appeal, under section 122-1(c) of the Act, his pro se post-conviction petition would have been due on June 3, 1999. 725 ILCS 5/122-1(c) (West 1998). However, because he chose to directly appeal, and this court affirmed on April 25, 1997, he only had until November 16, 1997- six months after the petition for leave to appeal to the Illinois Supreme Court was due. Such a disparity in time, he claims, violates his constitutional rights in that it punishes him for having appealed his case by shortening the time period within which he could file his post-conviction petition.
He bases this argument on the notion that punishing or penalizing a defendant for invoking or exercising a constitutional right violates due process. U.S. Const., amend. XIV. For this, he quotes United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968). There, the Supreme Court found that the death penalty provision of a federal kidnaping act was unconstitutional, where the death penalty could only be levied by a jury, which imposed an impermissible burden upon a defendant's right to a jury trial. He accords this with the Court's opinion in Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). There, the Court found it "intolerable that one constitutional right should have to be surrendered in order to assert another." Simmons, 390 U.S. at 394, 19 L. Ed. 2d at 1259, 88 S. Ct. at 976.
Alternatively, he claims that the limitations period of the Act denies him equal protection of the law because "it sets a timetable that irrationally treats differently[ ] people in essentially the identical situation." Such an allegedly irrational set-up, he claims, is unconstitutional. For this, he cites Haughton v. Haughton, 76 Ill. 2d 439 (1979). There, the Illinois Supreme Court found that a statute of limitations tolling provision was unconstitutional as a denial of equal protection. See also Jude v. Morrissey, 117 Ill. App. 3d 782 (1983) (limitations period of Illinois Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par.1351 et seq.) denied certain children the equal protection of the laws). Given the language of ...