People v. McCaskill , 2024 IL App (1st) 220366-U ( 2024 )

2024 IL App (1st) 220366-UNo. 1-22-0366
Order filed March 29, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 7161
)
LARRY McCASKILL, ) Honorable
) Michele M. Pitman,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Presiding Justice Rochford and Justice Ocasio concurred in the judgment.
ORDER
¶1 Held: The dismissal of McCaskill’s postconviction petition is affirmed where the
untimely filing of the petition was due to his culpable negligence.
¶2 Defendant Larry McCaskill appeals the second-stage dismissal of his petition for
postconviction relief under the Post-Conviction Hearing Act (Act) (720 ILCS 5/122-1 et seq.
(West 2012)). On appeal, he argues that the circuit court erred in dismissing his postconviction
petition where (1) he made a substantial showing that counsel on direct appeal was ineffective and
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(2) he was not culpably negligent for filing his pro se postconviction petition late. We affirm on
untimeliness grounds.
¶3 I. BACKGROUND
¶4 Following a jury trial, McCaskill was found guilty of the first degree murder of Maurice
Hill and sentenced to 25 years in prison. We affirmed on direct appeal, finding that the trial court
failed to comply with Rule 431(b) when admonishing the prospective jurors but that the error did
not amount to plain error under the second prong of the plain-error doctrine. People v. McCaskill,
No. 1-08-1994 (2010) (unpublished order under Illinois Supreme Court Rule 23).
¶5 McCaskill filed a petition for leave to appeal (PLA) with the Illinois Supreme Court, which
was denied on January 26, 2011. People v. McCaskill, 239 Ill. 2d 574 (2011) (table).
¶6 On March 6, 2013, McCaskill filed the instant pro se postconviction petition. He alleged
that his appellate counsel provided ineffective assistance by failing to “seek uniformity by the
appellate court (with its previous rulings)” regarding Rule 431(b) violations. McCaskill further
alleged that “[c]ounsel’s failure to seek appropriate review of the issue was clearly prejudicial to
the review process depriving McCaskill an opportunity to be heard.” He stated that the Rule 431(b)
violation “must be considered to have (adversely) affected the McCaskill’s right to a fair trial,”
and “[t]he right to an impartial jury is so fundamental to due process that any infringement of that
right requires reversal by a reviewing court.”
¶7 On April 5, 2013, the circuit court appointed counsel for McCaskill and docketed his
postconviction petition for second-stage proceedings.
¶8 On February 1, 2019, the State filed a motion to dismiss McCaskill’s petition, asserting
that the petition was untimely filed because McCaskill filed it more than two years after the PLA
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in his direct appeal was denied. The State further argued the petition did not meet the culpable
negligence standard to excuse the delay in filing.
¶9 On August 20, 2021, McCaskill filed, through counsel, a response to the State’s motion to
dismiss, asserting that the untimely filing of his postconviction petition was not due to his culpable
negligence, as supported by the facts in his attached affidavit.
¶ 10 In McCaskill’s affidavit, he averred that he was 15 years old when he was arrested. 1 He
was sentenced in 2008 and sent to Stateville Correctional Center. In 2010, McCaskill was
transferred to Pontiac Correctional Center. While at Pontiac in 2010, McCaskill was found to have
assaulted a staff member and was transferred to Tamms Correctional Center as punishment. For
the period following his transfer from Stateville through his transfer to Tamms, the Illinois
Department of Corrections (IDOC) “lost” McCaskill’s “transcripts and other legal documents,”
but they were returned to him after he arrived at Tamms.
¶ 11 McCaskill averred that, at Tamms, “[a]ll inmates were restricted in movement.” Inmates
could only use the room with law books once every one to two weeks for 45 minutes at a time.
The available law books were “many years old with pages torn out and marked up to the point they
weren’t legible.” McCaskill did not recall his appellate attorney telling him about any time
restrictions for filing a postconviction petition, and he did not learn of the timeline from the law
books at the library. Rather, he ultimately “relied on advice from fellow inmates at Tamms” that
he “only had a certain amount of time to file a post-conviction petition.” When Tamms was shut
down in December 2012, McCaskill was transferred back to Pontiac and was again separated from
his “legal documents” during the transfer. He filed his petition after his transfer back to Pontiac.
1
The common law record established McCaskill was arrested in 2006.
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McCaskill averred, “Had I known about the time limit on filing a post-conviction petition, I would
have filed my petition in a timely manner.”
¶ 12 McCaskill also attached an IDOC disciplinary card, which stated that on September 9,
2009, McCaskill received one month’s segregation for disobeying a direct order. On April 30,
2010, he received one year’s segregation due to “Violent Assault” of staff, where he struck a staff
member multiple times in the face. On January 10, 2011, he received separate penalties of two and
three months’ segregation for impairment of surveillance and disobeying a direct order. On
January 12, 2011, he received one month’s segregation for “Health, Smoking Or Safety
Violations.”
¶ 13 On March 11, 2022, following argument, the circuit court granted the State’s motion to
dismiss McCaskill’s petition. The court found that McCaskill’s petition was “extremely untimely,”
noting it was at least 16 months late. The court explained that McCaskill’s unawareness of a
deadline for filing a postconviction petition was “not a reason for it being filed late.” The court
further explained that “[i]t wasn’t as if [McCaskill] was on constant lockdown” during the time to
file the postconviction petition. Untimeliness notwithstanding, the circuit court also addressed the
petition on the merits, finding McCaskill’s Rule 431(b) claim was barred by res judicata because
it had already been raised on direct appeal. It also found McCaskill’s claim regarding the alleged
ineffective assistance of direct appeal counsel lacked merit because “appellate counsels are not
required to raise every issue on appeal that the defense wishes.”
¶ 14 II. ANALYSIS
¶ 15 On appeal, McCaskill asserts the circuit court erred in dismissing his postconviction
petition as (1) he made a substantial showing that he was denied the effective assistance of direct
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appeal counsel for failing to request review of his Rule 431(b) claim under the first prong of the
plain-error doctrine and (2) his untimely filing of the petition was not due to his culpable
negligence. We find the untimeliness of McCaskill’s postconviction petition dispositive of this
appeal.
¶ 16 The Act provides a three-stage method for a criminal defendant to challenge their
conviction or sentence for violation of federal or state constitutional rights. People v. Knapp, 2020
IL 124992, ¶ 43. At the second stage of postconviction proceedings, counsel is appointed to
represent the defendant if necessary, and the State is permitted to file responsive pleadings. People
v. House, 2021 IL 125124, ¶ 17. If the State files a motion to dismiss the petition, the circuit court
must decide whether to grant the State’s motion or advance the petition to the third stage for an
evidentiary hearing. People v. Dupree, 2018 IL 122307, ¶ 28.
¶ 17 When reviewing a motion to dismiss, “we accept as true all factual allegations that are not
positively rebutted by the record.” People v. Johnson, 2017 IL 120310, ¶ 14. A petitioner is only
entitled to a third-stage evidentiary hearing where “the allegations in the petition supported by
affidavits, records, or other evidence [citation] make a substantial showing” of a deprivation of
constitutional rights. (Internal quotation marks omitted.) Dupree, 2018 IL 122307, ¶ 28. We review
de novo the second-stage dismissal of a postconviction petition. Johnson, 2017 IL 120310, ¶ 14.
¶ 18 Relevant here, section 122-1(c) of the Act (725 ILCS 5/122-1(c) (West 2012) states:
“[N]o proceedings under this Article shall be commenced more than 6 months after the
conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges
facts showing that the delay was not due to his or her culpable negligence. If a petition for
certiorari is not filed, no proceedings under this Act shall be commenced more than 6
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months from the date for filing a certiorari petition, unless the petitioner alleges facts
showing that the delay was not due to his or her culpable negligence.” Id.Under United States Supreme Court Rule 13, “a petition for writ of certiorari must be filed within
90 days of [the Illinois Supreme Court’s] judgment.” People v. Lighthart, 2023 IL 128398, ¶ 62.
¶ 19 Here, the Illinois Supreme Court denied McCaskill’s PLA on January 26, 2011. McCaskill,
239 Ill. 2d 574 (2011) (table). Thus, the time for filing a petition for certiorari with the United
States Supreme Court ended 90 days after that date, on April 26, 2011. See Sup. Ct. R. 13. Because
McCaskill did not file a petition for certiorari, he had six months from April 26, 2011 to file his
postconviction petition. 725 ILCS 5/122-1(c) (West 2010). McCaskill did not file his petition until
March 6, 2013, and concedes that it was untimely filed 16 months beyond the statutory deadline
of October 26, 2011.
¶ 20 McCaskill asserts that the untimely filing is excused as he was not culpably negligent for
filing his petition late, where he spent considerable time in segregation and was incarcerated at a
“notoriously severe” prison that restricted prisoner movement and limited his access to a
functioning law library. He also contends that he had no access to his “legal documents” for a
period of time, and his appellate counsel failed to inform him there was a deadline to file a petition.
¶ 21 Under section 122-1(c) of the Act, “[a] petition that is untimely will not be dismissed if the
petitioner alleges facts showing that the delay in filing the petition was not due to his or her
culpable negligence.” Johnson, 2017 IL 120310, ¶ 26. The “culpably negligent” standard
“contemplates something greater than ordinary negligence and is akin to recklessness.” Lighthart,
2023 IL 128398, ¶ 73. A petitioner bears the burden of showing the lack of culpable negligence.
People v. Stoecker, 384 Ill. App. 3d 289, 292 (2008). Whether a petitioner has shown that the delay
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in filing his petition was not due to his culpable negligence is determined on the specific facts of
the case. People v. Lander, 215 Ill. 2d 577, 589 (2005).
¶ 22 “[I]gnorance of the law will not excuse any delay in bringing a postconviction petition.”
Lighthart, 2023 IL 128398, ¶ 73. Therefore, “the sole obligation of knowing the time requirements
for filing a postconviction petition remains with the McCaskill.” Lander, 215 Ill. 2d at 588-89.
Nevertheless, this court has recognized that, in many circumstances, “the only opportunity
available to petitioners to learn the procedural and substantive rules governing the preparation of
postconviction petitions is through access to the resources available in a law library.” (Internal
quotation marks omitted.) Id. ¶ 24. Thus, where the record contains evidence showing a lockdown
period imposed at a prison that “prevents a [petitioner] from having a meaningful opportunity to
prepare a timely postconviction petition, the delay is not the result of the [petitioner’s] culpable
negligence.” (Internal quotation marks omitted.) People v. Upshaw, 2017 IL App (1st)
151405, ¶¶ 24-25. However, we will find culpable negligence where a petitioner was placed in
segregation with restricted movement due to their own intentional misconduct. People v. Cortez,
338 Ill. App. 3d 122, 129-32 (2003).
¶ 23 Accepting McCaskill’s averments as true (Johnson, 2017 IL 120310, ¶ 14), he has failed
to show he was not culpably negligent for filing his petition 16 months late. As grounds for finding
lack of culpable negligence, McCaskill avers he had limited access to the law library due to his
time in segregation. But according to the disciplinary card McCaskill attached to his petition, he
was sentenced to segregation as a result of his own misconduct: one month segregation on
September 9, 2009, for disobeying a direct order; one year’s segregation on April 30, 2010, for
“Violent Assault” of prison staff; two and three months’ segregation on January 10, 2011, for
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impairment of surveillance and disobeying a direct order, respectively; and one month’s
segregation on January 12, 2011, for “Health, Smoking Or Safety Violations.” Given that
McCaskill’s placement in segregation was due to his own misconduct, he was culpably negligent
for any resulting delay in filing his petition. See Cortez, 338 Ill. App. 3d at 129-32.
¶ 24 We are likewise not persuaded by McCaskill’s contention that his delay in filing the
petition should be excused due to his placement in the “notoriously severe” Tamms facility, which
he averred limited prisoner movement and therefore restricted access to his legal documents and
the law library. As McCaskill’s affidavit acknowledged, he was placed in the Tamms maximum-
security facility as punishment for assaulting prison staff. However, “[e]ngaging in intentional
misconduct which would, with reasonably foreseeable certainty, result in prison action that would
prevent one from filing in a timely manner would in all likelihood fall within the definition of
culpable negligence as negligence of a gross and flagrant character.” (Internal quotations marks
omitted.) Id. at 131; Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 430 (2007)
(identifying Tamms as a maximum-security facility).
¶ 25 Moreover, prison officials are not required to grant pro se prisoners use of the law library
without limitations. See People v. Banks, 161 Ill. 2d 119, 140–41 (1994). According to McCaskill,
inmates at Tamms were permitted to use the law library once every one to two weeks for 45
minutes at a time. McCaskill has not alleged any additional facts demonstrating that he was
deprived of a meaningful opportunity to prepare his postconviction petition, where inmates were
provided with some access to the library at Tamms. See People v. Van Hee, 305 Ill. App. 3d 333,
337 (1999) (the defendant failed to specifically allege when a prison lockdown denied him access
to the law library, and the lock-down did not excuse delay in filing a petition because the defendant
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could have accessed the library outside of lockdown). McCaskill therefore has not shown a lack
of culpable negligence on this basis.
¶ 26 McCaskill further asserts that he was not culpably negligent for the untimely filing of his
petition because, at times, he did not have access to his legal documents. Specifically, McCaskill
averred that he did not have access for the period when he was transferred from Stateville through
his transfer to Tamms in 2010, and again when he was transferred back to Pontiac after Tamms
closed in December 2012. However, accepting that as true, McCaskill has not set forth any details
regarding how long he was separated from his legal documents and how this hindered his ability
to file a timely petition. Absent such specific facts, his allegation is insufficient to show a lack of
culpable negligence. See People v. Walker, 331 Ill. App. 3d 335, 341-42 (2002) (the petitioner
failed to show a lack of culpable negligence where the court was left to “speculate that defendant’s
delay was attributable solely or substantially to the prison lockdown”).
¶ 27 McCaskill contends that he does not recall his counsel advising him of a filing deadline,
and that he only learned of the deadline from other inmates at Tamms. “The absence of
professional advice would be relevant only if defendant’s ignorance of the Act’s time constraints
could excuse his failure to adhere to them,” but “it is settled that unfamiliarity with the Act’s
requirements does not show a lack of culpable negligence.” People v. Hampton, 349 Ill. App. 824,
829 (2004); see Johnson, 2017 IL 120310, ¶ 26 (noting that not knowing the applicable filing
deadline cannot be used to excuse a delay in filing a postconviction petition). Therefore, this
contention does not show a lack of culpable negligence.
¶ 28 McCaskill’s untimely postconviction petition was properly dismissed as he failed to
demonstrate that the delay in filing was not due to his culpable negligence. Accordingly, we need
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not address the merits of McCaskill’s remaining issue on appeal. See People v. Ramirez, 361 Ill.
App. 3d 450, 455 (2005) (declining to address the remaining contentions on appeal where the
postconviction petition should have been dismissed as untimely).
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 31 Affirmed.
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