Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 90 CR 21478
Honorable Thomas Joseph Hennelly, Judge Presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the
court, with opinion. Justices Hoffman and Cunningham
concurred in the judgment and opinion.
CONNORS PRESIDING JUSTICE
1 Defendant, Marcus Williams, appeals the trial court's
order that dismissed his petition for postconviction relief.
Defendant argues that because the trial court dismissed his
petition over 90 days from the date of its filing and
docketing, the court's order was void pursuant to the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1 (West
1994)), which requires that a court examine a petition
brought pursuant thereto within 90 days after its filing and
docketing. The State, on the other hand, asserts that the
court's order dismissing defendant's petition was
merely voidable as opposed to void and therefore not subject
to collateral review. For the reasons that follow, we agree
with the State and affirm the judgment of the circuit court.
2 In 1991, Defendant was convicted of two counts of first
degree murder and was sentenced to two concurrent terms of
natural life. Defendant appealed, and we affirmed his
convictions on February 17, 1994. People v.
Williams, No. 1-91-3463 (1994) (unpublished order under
Supreme Court Rule 23). The Illinois Supreme Court
subsequently denied defendant's petition for leave to
appeal. People v. Williams, 157 Ill.2d 520 (1994),
pet. for leave to appeal denied, No. 77242 (filed
October 6, 1994).
3 On January 11, 1995, defendant filed his first
postconviction petition pursuant to the Act. In his petition,
defendant asserted seven grounds for relief. On June 29,
1995, the trial court summarily dismissed the petition. Both
parties agree that the trial court's summary dismissal
was not within 90 days of defendant's postconviction
petition being filed and docketed as required by the
Defendant filed a notice of appeal on July 25, 1995, and the
Cook County public defender's office was appointed to
represent him. Subsequently, the public defender filed a
motion to withdraw pursuant to Pennsylvania v.
Finley, 481 U.S. 551 (1987).
4 On January 25, 1996, this court affirmed the summary
dismissal of the postconviction petition and granted the
public defender's motion to withdraw. People v.
Williams, No. 1-95-2753 (1996) (unpublished order under
Supreme Court Rule 23). In our order, we found no error in
the trial court's determination that defendant's
petition lacked merit. We also found that the doctrines of
res judicata and waiver were "applicable to,
and dispositive of the majority of the claims raised by
defendant here" and that defendant's sufficiency of
the evidence claim was not cognizable under the Act.
5 On April 10, 1998, defendant filed a motion to appoint an
investigator, which the trial court denied two weeks later.
The defendant filed a notice of appeal from this denial, and
the Cook County public defender's office was again
appointed to represent him. On July 28, 1999, we granted the
public defender's motion to withdraw and affirmed the
denial of defendant's motion for an investigator.
People v. Williams, No. 1-98-4853 (1999)
(unpublished order under Supreme Court Rule 23).
6 Between February 1999 and March 2003, defendant pursued a
federal habeas corpus petition. After an evidentiary
hearing on the allegation that his trial counsel was
ineffective for failing to investigate an exculpatory
witness, the district court denied relief. United States
ex rel. William-El v. Briley, No. 99 C 0933, 2002 WL
31027966 (N.D. Ill. Sept. 6, 2002); United States ex rel.
William-El v. Briley, No. 99 C 0933, 2003 WL 742192
(N.D. Ill. Mar. 4, 2003).
7 On March 15, 2010, defendant filed a "Petition for
Leave to File Successive Post-Conviction Petition, "
wherein he stated that the circuit court erroneously
dismissed his first postconviction petition as frivolous or
patently without merit more than 90 days after its filing.
Because of the error, defendant argued, the first
postconviction proceedings "were nullified." He
also alleged that his appellate counsel was ineffective for
failing to raise several meritorious issues on direct review.
8 On July 30, 2010, the trial court appointed the Cook County
public defender's office to represent defendant on his
subsequent postconviction petition. However, in September
2011, defendant was given leave to proceed pro se.
Between March 2010 and January 2012, the record reveals that
multiple versions of another postconviction petition were
filed. The final version of defendant's pro se
second petition for postconviction relief (second petition)
was filed on January 13, 2012. In this document, he stated
that "the proceedings on his original post-conviction
constituted a nullity where the circuit court erroneously
denied the P.C. without appointing counsel." Defendant
also included several substantive bases for postconviction
relief. When the State objected to this filing saying it was
a successive instead of an amended petition, the trial court
stated whether "we call it successive or amended,
I'll allow you to do it."
9 On May 25, 2012, the State filed a motion to dismiss
defendant's second petition, arguing that the claims were
barred by waiver and res judicata. In response to
the State's motion, defendant argued that this second
petition should stand because, referring to the original
postconviction petition, the proceedings on the first
petition constituted a "nullity" when the trial
court acted "three months after the expiration of the
90-day time period *** [and] erroneously dismissed the
petition at the first stage."
10 On August 10, 2012, the trial court granted the
State's motion to dismiss defendant's second
petition. The court found that the second petition was
"untimely, " that the defendant had not persuaded
the court that the delays were not due to his own negligence,
and that the doctrines of res judicata and waiver
applied. Defendant filed a motion to reconsider and vacate
the order granting the State's motion to dismiss. In that
motion to reconsider, defendant again stated that the
proceedings on the first petition were a nullity because the
"trial court erroneously denied the [first] petition
after the expiration of the 90-day time period and failed to
docket the petition for further consideration in accordance
with provisions 725 ILCS 5/122-4 thru 5/122-6 of the
11 On September 28, 2012, the trial court denied
defendant's motion to reconsider and vacate the judgment
dismissing the second postconviction petition.