The opinion of the court was delivered by: Chief Justice Kilbride
CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion, joined by Justice Burke.
¶ 1 Petitioner Jose Cruz filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)), alleging several violations of his constitutional rights. The circuit court of Cook County granted the State's motion to dismiss the petition, finding it was not timely filed and rejecting petitioner's allegations that the delay in filing was not due to his culpable negligence. In affirming the dismissal, the appellate court did not address petitioner's allegations on lack of culpable negligence for the delay in filing. The appellate court instead held that those allegations were a "nullity" because they were included in a supplemental petition filed with an unnotarized affidavit of verification. 2011 IL App (1st) 091944-U.
¶ 2 We allowed petitioner's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). We hold that the State forfeited its argument on the absence of a notarized affidavit of verification by failing to raise that claim in the circuit court. Accordingly, we reverse the appellate court's judgment and remand to the appellate court for further review of the trial court's decision on the State's motion to dismiss.
¶ 4 Following a jury trial, petitioner was convicted of first degree murder and attempted first degree murder. On January 30, 1996, the trial court sentenced him to consecutive prison terms of 60 years for murder and 30 years for attempted murder. The appellate court affirmed the trial court's judgment on direct appeal. People v. Cruz, No. 1-96-0575 (1998) (unpublished order under Supreme Court Rule 23).
¶ 5 On June 2, 1999, petitioner filed a pro se post-conviction petition alleging ineffective assistance of trial and appellate counsel. The trial court summarily dismissed the petition as untimely. The appellate court affirmed the summary dismissal of the petition. People v. Cruz, 324 Ill. App. 3d 927 (2001).
¶ 6 In the exercise of our supervisory authority, this court directed the appellate court to vacate its judgment and reconsider in light of People v. Boclair, 202 Ill. 2d 89 (2002). The appellate court then reversed the summary dismissal of the petition and remanded to the trial court for second-stage post-conviction proceedings.
¶ 7 The trial court appointed the public defender to represent petitioner. On petitioner's motion, however, the trial court subsequently discharged the public defender and allowed petitioner to proceed pro se. In January 2008, petitioner filed an amended post-conviction petition realleging claims of ineffective assistance of trial and appellate counsel. Petitioner also added a claim that the trial court erred in instructing the jury on the factors to consider when weighing identification testimony.
¶ 8 The State filed a motion to dismiss the amended petition. The State alleged that the petition was not timely filed. Alternatively, the State asserted petitioner's claims were barred by waiver or res judicata, and the petition failed to make a substantial showing of a constitutional violation.
¶ 9 In response, petitioner filed a supplemental petition containing his allegations that he was not culpably negligent in the untimely filing. Petitioner asserted the delay in filing was not due to his culpable negligence because he is "illiterate in law," has poor comprehension skills, and is not fluent in English. As a result, he was required to rely on the advice of "jailhouse lawyers" and law clerks assigned to the prison law library who incorrectly told petitioner he had six months following the denial of his petition for leave to appeal to file his post-conviction petition.
¶ 10 Petitioner further asserted the prison law clerks were not properly trained and he was not given adequate access to the law library or legal materials to prepare his petition in a timely manner. Additionally, petitioner alleged an attorney retained to review his case failed to advise him of the correct filing deadline. Finally, while acknowledging he had not alleged a claim of actual innocence, ...