Postconviction Lawyer's Failure to Make a Routine Amendment to a Petition to Avoid Bar of Waiver
Does Postconviction Counsel's Failure to Make a Routine Amendment to a Petition to Avoid Bar of Waiver Have an Impact on the Outcome of the Petition ?
In People v. Turner, 187 Ill. 2d 406, 719 N.E.2d 725, 241 Ill. Dec. 596 (1999) the petitioner's pro se postconviction petition raised due process claims contending that the State withheld evidence that would have impeached its witnesses, an ineffective assistance of counsel claim for his attorney's failure to discover the withheld evidence and to use it in impeaching the State's witnesses, and a claim that the Illinois death penalty statute was unconstitutional. Turner, 187 Ill. 2d at 409, 719 N.E.2d at 727.
Appointed postconviction counsel made no amendments to the pro se petition, and the circuit court granted the State's motion to dismiss, holding all of the claims to be barred by res judicata or waiver, in so far as they could have been raised in his direct appeal. Turner, 187 Ill. 2d at 409, 719 N.E.2d at 727.
On appeal from the dismissal of his petition, the petitioner contended that postconviction counsel violated Rule 651(c) by not consulting with him a sufficient number of times (Turner, 187 Ill. 2d at 410-11, 719 N.E.2d at 728); by failing to adequately review the trial record, as there were five court dates for which there were no transcripts included in the appellate record (Turner, 187 Ill. 2d at 411, 719 N.E.2d at 728); and by failing to make necessary amendments to the pro se petition (Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729).
The Turner court rejected the petitioner's first two arguments, but accepted that postconviction counsel provided an unreasonable level of representation by failing to amend the petition.
The Turner court observed that by failing to re-frame the petitioner's due process claims as ineffective assistance of appellate counsel claims, for his failure to raise them on direct appeal, that postconviction counsel failed to avoid the bar of waiver. Turner, 187 Ill. 2d at 413, 719 N.E.2d at 729.
The court also noted that postconviction counsel failed to amend the ineffective assistance claim in the pro se petition to include allegations that the evidence withheld was material and resulted in prejudice to the defendant, "essential elements of petitioner's legal claims." Turner, 187 Ill. 2d at 413, 719 N.E.2d at 729.
Finally, the court also observed that postconviction counsel had neither included affidavits supporting the petition, or explained their absence. Turner, 187 Ill. 2d at 414, 719 N.E.2d at 730.
Thus, in Turner, the impact on the outcome of the petition from counsel's failure to comply with the rule was evident.
The Turner court found that postconviction counsel's failure to attach affidavits to the petition was "fatal" to the petitioner's claims (Turner, 187 Ill. 2d at 414, 719 N.E.2d at 730), and observed that the prejudice from failing "to make a routine amendment" to the petition to avoid waiver was "palpable" since "Counsel's failure precluded consideration of petitioner's claims on the merits and directly contributed to the dismissal of the petition without an evidentiary hearing" (Turner, 187 Ill. 2d at 414-15, 719 N.E.2d at 730).
It was in this context of egregious, independently prejudicial procedural errors, that the Turner court refused to "speculate" on the ultimate fate of the petition (Turner, 187 Ill. 2d at 416, 719 N.E.2d at 730), and expressly declined to "express an opinion on the substantive merit of the claims," (Turner, 187 Ill. 2d at 417, 719 N.E.2d at 731), most of which, we note, did not present pure questions of law.