Sometimes in Post-Convictions, It Is What It Is

Post-conviction petitions present some of the most difficult aspects of the practice of criminal law. To begin with, we have an individual who believes—correctly or incorrectly—sincerely or falsely—that at their trial or when they pled guilty, they have been deprived of substantial constitutional protections and were unconstitutionally or illegally incarcerated by the state. Almost always this person is without a lawyer and attempts to craft a post-conviction petition which will serve as their vehicle to freedom. We then have the Court reviewing petitions and determining whether the petitioner has stated the gist of a constitutional deprivation. If so, this triggers the appointment of counsel if the petitioner remains unable to hire a lawyer and then the involvement of the state’s attorney’s office.

Post-conviction petitions are often complex, time-intensive, frequently stressful and ultimately fraught with peril. The attorney for the accused wants to make sure that all claims of error are raised so that the aggrieved client will be able to properly have their day in court. Counsel is also ever mindful that if an issue is not raised in the petition, it might be waived forever. Counsel often feels the need to put in every possible contention of error after discussing the matter with their client, even if the claim is tenuous at best, in the hope that perhaps it will serve as grounds for relief.

Counsel is also required to file a Certificate under Rule 651(c). This rule guides the entirety of the process of preparing a post-conviction petition. The attorney certifies consultation with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights, examination of the record of the proceedings at the trial, and that counsel has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions. The pressure is on.

Often, after a post-conviction petition is filed, the prosecutor intervenes to seek dismissal and prevent the case from advancing to a third stage hearing.

The Court, then, is tasked with balancing the need to determine whether additional hearings should be held or that the record clearly refutes all claims for post-conviction relief. The laws on proper review, constitutional claims, and related ethical concerns can be quite complex and daunting.

In April 2025 the Illinois Supreme Court decided People v. Williams, 2025 IL 129718, which addresses the tensions present in a post-conviction proceeding.

Petitioner Michael Williams entered into a fully negotiated plea and sentence in which he pled guilty to two counts of aggravated battery with a firearm and received two consecutive ten-year sentences. He filed a pro se motion to withdraw the guilty plea. The motion was denied, and the 5th District Appellate Court ultimately affirmed the denial. Mr. Williams thereafter timely filed a pro se post-conviction petition which the Court advanced to a stage two hearing after finding that he raised the gist of at least one constitutional claim. Ultimately, the Circuit Court granted the motion to dismiss the petition

On appeal, the 5th Appellate District Court reversed the second stage dismissal. In a Rule 23 decision, 2023 IL App (5th) 220185-U, the Court found that post-conviction counsel’s assistance was unreasonable, particularly for failing to develop evidence of prejudice under the two-pronged Strickland test (trial attorney's performance fell below an "objective standard of reasonableness," and there is a "reasonable probability" that, but for the attorney's deficient performance, the result of the proceeding would have been different). The Court noted at ¶ 26 “counsel’s failure to include the required allegations and factual support in the post-conviction petition and the defendant’s accompanying affidavit, and his complete inability to muster facts and arguments—as opposed to vague and conclusory allegations—in support of prejudice at the hearing, meant that the defendant’s post-conviction petition claim of ineffective assistance of counsel had no chance of succeeding.” The Court further chided defense counsel by noting “counsel’s failure to argue—and support factually—claims of ineffective assistance of previous counsel as a means to overcome the bars of res judicata and forfeiture that the State raised in its motion to dismiss.“ The Court concluded further proceedings were warranted to further develop and properly present the allegations and reversed the Stage 2 dismissal.

The Illinois Supreme Court reversed. Recognizing that post-conviction counsel—whether appointed or retained—must provide a “reasonable level of assistance”, the Court reiterated that this determination must “necessarily depend on the unique facts of each case”. ¶ 43.

The Williams Court then analyzed the facts and noted that the Appellate Court “incorrectly assumed there were additional facts and allegations that counsel could have included in the petition.” (Emphasis added) ¶ 46, “[T]here is nothing in the record to demonstrate Williams had a viable defense, and before this court, Williams does not suggest that such facts exist or that such a defense could have been alleged. Post-conviction counsel did not perform
unreasonably in this case simply because his arguments were without merit (see Perkins, 229 Ill. 2d at 51) or because he was unable to make the petitioner’s allegations factually sufficient to require the granting of relief (see People v. Spreitzer, 143 Ill. 2d 210, 221.).”

The Williams Court held that the Appellate Court erred in assuming and concluding that the post-conviction petition failed to persuade the Circuit Court due to counsel’s performance, rather than simply the petition’s lack of merit. The Supreme Court noted that arguments can be unavailing yet still reasonable. In this case, counsel raised the strongest available issues and as such, “counsel cannot be said to have rendered an unreasonable level of assistance even if the arguments lacked legal merit, were not particularly compelling, and were ultimately unsuccessful.” ¶ 49. The failure to satisfy Strickland’s prejudice requirement did not amount to unreasonable assistance.

Takeaways & legal significance

Post-conviction counsel is not ineffective simply because their arguments fail on the merits

• This case clarifies the scope of reasonable assistance at the second stage of post-conviction proceedings: if the best plausible arguments are presented, counsel is not deficient—even if the claims lack ultimate success.
• Unreasonable assistance of counsel applies only when counsel completely fails to raise credible claims or additional factual support exists.
• The Williams Court said that the duty to shape viable legal claim only applies when there is something to shape. If the petition is factually thin, there's no error in declining to pad it with “unsubstantiated speculation.”

For post-conviction defense counsel-don’t fear filing thin but truthful petitions

If there’s no affidavit or added facts, counsel is safe so long as:

• They evaluated the record.
• Attempted to enhance the claim.
• Documented their reasoning or certified under Rule 651(c).
• Include a brief statement explaining why additional facts or affidavits are unavailable (g., “client unable to identify corroborating witnesses”). The Williams decision moves away from rigid formalism. Even where affidavits weren’t added, it considered content and context, not just procedure.

While previous decisions were reversed on the basis that counsel had a duty to shape viable legal claims, Williams now holds that duty only applies when there is something to shape. If the petition is factually thin, there's no error in declining to pad it with “unsubstantiated speculation.”

Counsel must steer clear of boilerplate claims of coercion or ineffective assistance unless supported by affidavits, record excerpts or detailed client correspondence.

Counsel might want to consider having the client acknowledge at Second Stage Dismissal Hearing that ALL contentions of error have been discussed and included in an amended petition for post-conviction relief in addition to the filing of the 651(c) certificate.

For the State, the impact of Williams is much like the saying “it is what it is.” The State may wish to cite Williams when opposing advancement beyond second stage, particularly if:

• The claim is procedurally proper but legally doomed.
• May wish to emphasize that reasonable assistance of counsel does not require enhancing weak claims if no facts support them.
• May wish to emphasize Strickland standards and if they are even alleged or inferable.

Ethical dimensions for post-conviction counsel

And while the Supreme Court didn’t frame Williams as an ethics opinion per se, its reasoning implicates key ethical duties for criminal post-conviction attorneys:

A. Duty of Reasonable Diligence (IRPC Rule 1.3)

• The threshold is not perfection or even persuasive argumentation, but in holding to the demands of post-conviction cases, it’s competent, honest effort with reasonable diligence and promptness in representing a client. Post-conviction counsel must review the record, confer with the client, and shape available claims AFTER a thorough investigation.
• Williams confirms that counsel is not ethically deficient for failing to invent claims or polish weak ones.

B. Candor Toward the Tribunal (IRPC Rule 3.3)

• Attempting to inflate vague allegations into something more concrete without factual support can violate Rule 3.3.
• Williams implicitly protects counsel from feeling compelled to misrepresent claims just to avoid Rule 651(c) critiques.

C. Communication with Client (IRPC Rule 1.4)

• Though the case doesn’t say if Williams’ counsel conferred with him, effective representation requires meaningful communication, especially where the pro se petition makes personal or factual claims.
• Rule 651(c) certificates demand communication making Rule 1.4 even more critical.

D. Scope of Representation (IRPC Rule 1.2)

• Counsel must advance client-directed claims within reason.
• Ethical breach arises only when counsel abandons plausible claims or fails to explain the strategic choice not to pursue them.

E. Competence (IRPC Rule 1.1)

Finally, defense counsel also must do some soul searching pursuant to Rule 1.1 before ever agreeing to represent a person seeking post-conviction relief. Counsel must be able to say that they have the knowledge, skills and the time to truly prepare and present what might be a person’s last hope for freedom.

---

Honorable John O'Gara is a Circuit Judge in the 20th Judicial Circuit, located in Belleville, Illinois.