Is Loss of Opportunity to Knowingly File An Initial Post-Conviction Petition Unfair ?
In People v. Shellstrom, 216 Ill. 2d 45, 833 N.E.2d 863, 295 Ill. Dec. 657 (2005), the defendant filed a "'Motion to Reduce Sentence, Alternatively, Petition for Writ of Mandamus to Order Strict Compliance with Terms of Guilty Plea,'" which the trial court recharacterized as a petition under the Act. Shellstrom, 216 Ill. 2d at 47.
The issue on appeal was whether the defendant was entitled to admonitions similar to those in Castro v. United States, 540 U.S. 375, 157 L. Ed. 2d 778, 124 S. Ct. 786 (2003).
The State suggested that Castro was inapposite, arguing that Illinois's restrictions on successive postconviction petitions are less onerous than the federal restrictions on successive section 2255 motions. Shellstrom, 216 Ill. 2d at 55.
The court rejected that argument, holding that the cause-and-prejudice test for the filing of a successive postconviction petition is similarly onerous. Shellstrom, 216 Ill. 2d at 55-56.
Further, it expressed its concern that the loss of the opportunity to knowingly file an initial petition was unfair:
"Under the summary procedure urged by the State, a circuit court in Illinois could summarily recharacterize as a first postconviction petition a pro se litigant's pleading that was labeled differently.
The litigant would not be given notice or an opportunity to respond.
As a result, the pleading that was transformed into the litigant's first postconviction petition would present only those arguments that the litigant had chosen to include before realizing that he was, in effect, filing a postconviction petition.
Any additional arguments that the litigant might have included in a first postconviction petition would be barred from successive petitions unless the litigant could demonstrate cause for failing to bring them and prejudice resulting from that failure.
We find this prospect as troubling as did the Supreme Court in Castro when faced with a similar circumstance regarding 2255 motions." Shellstrom, 216 Ill. 2d at 56-57.
The court therefore created a requirement similar to that created in Castro:
"Pursuant to our supervisory authority, we hold that, in the future, when a circuit court is recharacterizing as a first postconviction petition a pleading that a pro se litigant has labeled as a different action cognizable under Illinois law, the circuit court must:
(1) notify the pro se litigant that the court intends to recharacterize the pleading;
(2) warn the litigant that this recharacterization means that any subsequent postconviction petition will be subject to the restrictions on successive postconviction petitions;
(3) provide the litigant an opportunity to withdraw the pleading or to amend it so that it contains all the claims appropriate to a postconviction petition that the litigant believes he or she has.
If the court fails to do so, the pleading cannot be considered to have become a postconviction petition for purposes of applying to later pleadings the Act's restrictions on successive postconviction petitions." Shellstrom, 216 Ill. 2d at 57.