The PEOPLE v. Stovall, 264 N.E.2d 174 (Ill. 1970). · Go Syfert
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The PEOPLE v. Stovall, 264 N.E.2d 174 (Ill. 1970). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, 2017–2022 · …absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney. at p. 46 ✓
94 citation events (52 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1971 → 2026 · click a year to view as-of
1971 1998 2026
Top citers, strongest first. 36 distinct citers. How cited ↗
cited Cited as authority (rule) People v. Smith
Ill. App. Ct. · 2026 · confidence medium
People v. Christopher Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 47 (1970)).
cited Cited as authority (rule) People v. McCoy
Ill. · 2026 · confidence medium
People v. Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 47 (1970)).
discussed Cited as authority (rule) People v. Krisik
Ill. App. Ct. · 2026 · confidence medium
“Where there is not a showing that sufficient facts or evidence exist, inadequate representation certainly will not be found because of an attorney’s failure to amend a petition or, when amended, failing to make the petition’s allegations factually sufficient to require the granting of relief.” -8- No. 1-24-1695 People v. Tovall, 47 Ill. 2d 42, 46 (1970).
discussed Cited as authority (rule) People v. Gonzalez (2×) also: Cited "see"
Ill. App. Ct. · 2026 · confidence medium
Our supreme court has held that where there is not a showing that sufficient facts or evidence exists, “inadequate representation certainly will not be found because of an attorney’s failure to amend a petition or, when amended, failing to make the petition’s allegations factually sufficient to require the granting of relief.” People v. Stovall, 47 Ill. 2d 42, 46 (1970). “[P]ostconviction counsel is not required to engage in a fishing expedition to find evidence outside of the record that might support the defendant’s claim.” People v. Turner, 2023 IL App (1st) 191503 , ¶ 43.
discussed Cited as authority (rule) People v. Wessling
Ill. App. Ct. · 2025 · confidence medium
See People v. Nelson, 2024 IL App (5th) 210311, ¶ 44 ; People v. Stovall, 47 Ill. 2d 42, 46 (1970). ¶ 26 Rather, the case before us involves more than insufficient factual allegations or failure to include a claim.
discussed Cited as authority (rule) People v. Hill
Ill. App. Ct. · 2025 · confidence medium
The State maintains defendant received reasonable assistance and the proportionate penalty issue has no merit.” ¶ 89 We agree with the State. ¶ 90 In support of its argument, the State cites People v. Spreitzer, 143 Ill. 2d 210, 221 (1991), in which the supreme court wrote the following: “ ‘Where there is not a showing that sufficient facts or evidence exists, inadequate representation certainly will not be found because of an attorney’s failure to amend a petition or, when amended, failing to make the petition’s allegations factually sufficient to require the granting of relief.�…
discussed Cited as authority (rule) People v. Walton
Ill. App. Ct. · 2025 · confidence medium
Generally, “a trial court ruling upon a motion to dismiss a post-conviction petition which is not supported by affidavits or other documents may reasonably presume that post-conviction counsel made a concerted effort to obtain affidavits in support of the post-conviction claims, but was unable to do so.” People v. Johnson, 154 Ill. 2d 227, 241 (1993); see People v. Coons, 2024 IL App (4th) 230552, ¶ 39 ; People v. Stovall, 47 Ill. 2d 42, 46 (1970); People v. Thompson, 2016 IL App (3d) 150644, ¶ 23 . ¶ 29 However, this presumption only applies when postconviction counsel filed a Rule 651…
cited Cited as authority (rule) People v. Williamson
Ill. App. Ct. · 2025 · confidence medium
People v. Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 47 (1970)).
cited Cited as authority (rule) People v. Bannister
Ill. App. Ct. · 2025 · confidence medium
People v. Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 47 (1970)).
cited Cited as authority (rule) People v. Green-Hosey
Ill. App. Ct. · 2025 · confidence medium
People v. Coleman, 2013 IL 113307, ¶ 92 ; People v. Stovall, 47 Ill. 2d 42, 47 (1970).
cited Cited as authority (rule) People v. McCoy
Ill. App. Ct. · 2025 · confidence medium
People v. Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 47 (1970)).
discussed Cited as authority (rule) People v. Wise
Ill. App. Ct. · 2024 · confidence medium
That does not mean that postconviction claims, filed with the assistance of counsel, must “ ‘make the petition’s allegations factually sufficient to require the granting of relief’ ” (Agee, 2023 IL 128413 , ¶ 55 (quoting People v. Stovall, 47 Ill. 2d 42, 46 (1970))) or else counsel will be deemed inadequate.
discussed Cited as authority (rule) People v. Moss
Ill. App. Ct. · 2024 · confidence medium
The court held: “ ‘Where there is not a showing that sufficient facts or evidence exists, inadequate representation certainly will not be found because of an attorney’s failure to amend a petition or, when amended, failing to make the petition’s allegations factually sufficient to require the granting of relief.’ ” Id. at 221 (quoting People v. Stovall, 47 Ill. 2d 42, 46 (1970)). ¶ 46 In Agee, the court noted that postconviction counsel added evidentiary support and “petitioner has failed to show that any other evidence exists to support his claim.” Agee, 2023 IL 128413 , ¶ 5…
discussed Cited as authority (rule) People v. Beverly
Ill. App. Ct. · 2022 · confidence medium
“Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 , 264 N.E.2d 174, 176 (1970); see also People v. Beasley, 2017 IL App (4th) 150291, ¶ 40 , 85 N.E.3d 568 (rejecting the defendant’s unreasonable assistance claim, in part, because he failed to allege what additional supporting documentation his postconviction counsel could have attached to his petition to support his claim). ¶ 98 On appeal, defendant’s contentions that Propps should have pres…
discussed Cited as authority (rule) People v. Mohamed
Ill. App. Ct. · 2022 · confidence medium
Our supreme court has long held that, “ ‘[a]bsent a showing of available materials for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.’ ” People v. Malone, 2017 IL App (3d) 140165, ¶ 10 (quoting People v. Stovall, 47 Ill. 2d 42, 46 (1970)).
discussed Cited as authority (rule) People v. Anderson
Ill. App. Ct. · 2022 · confidence medium
People v. Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 47 (1970)). ¶ 39 When, as in this case, a defendant alleges ineffective assistance of counsel, we apply the two-prong test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
cited Cited as authority (rule) People v. Stone
Ill. App. Ct. · 2022 · confidence medium
People v. Malone, 2017 IL App (3d) 140165, ¶ 10 (citing People v. Stovall, 47 Ill. 2d 42, 46 (1970)).
discussed Cited as authority (rule) People v. Ligon
Ill. App. Ct. · 2022 · confidence medium
People v. Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 27 (1970)). ¶ 45 When a defendant alleges ineffective assistance of counsel, we apply the two-prong test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
discussed Cited as authority (rule) People v. Oats
Ill. App. Ct. · 2021 · confidence medium
However, “[a]bsent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970). “[A] reviewing court cannot presume the existence of error which is not affirmatively shown of record.” People v. Boshears, 228 Ill.
discussed Cited as authority (rule) People v. Smith
Ill. App. Ct. · 2021 · confidence medium
Instead, the defendant bears the burden to “ ‘show a denial of [a] constitutional right by a preponderance of the evidence.’ ” People v. Coleman, 2013 IL 113307, ¶ 92 (quoting People v. Stovall, 47 Ill. 2d 42, 47 (1970)).
examined Cited as authority (rule) People v. Isaac (3×) also: Cited "see"
Ill. App. Ct. · 2021 · confidence medium
People v. Stovall, 47 Ill. 2d 42, 46 (1970). ¶ 24 Defendant fails to rebut the presumption that counsel made the necessary amendments to adequately present defendant’s claims.
discussed Cited as authority (rule) People v. Northington
Ill. App. Ct. · 2021 · confidence medium
Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.’ People v. Stovall, 47 Ill. 2d 42, 46 (1970).
discussed Cited as authority (rule) People v. Adams
Ill. App. Ct. · 2020 · confidence medium
“Absent a showing of available 9 material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 , 264 N.E.2d 174, 176 (1970). ¶ 23 Even the amended petition filed by appointed counsel could do no more than allege trial counsel “failed to subpoena witnesses favorable to the Petitioner prior to the trial date.” For the first time, he alleged “[t]rial counsel failed to investigate potential alibi witnesses.
discussed Cited as authority (rule) People v. Shaw (2×) also: Cited "see"
Ill. App. Ct. · 2018 · confidence medium
A postconviction proceeding, as a collateral attack on the judgment of conviction, is civil in nature (People v. Whirl, 2015 IL App (1st) 111483, ¶ 106 (citing People v. Johnson, 191 Ill. 2d 257, 270 (2000))), and the defendant’s “burden of proof is *** to show a denial of [a] constitutional right by a preponderance of the evidence’ ” (People v. Coleman, 2013 IL 113307, ¶ 92 (quoting People v. Stovall, 47 Ill. 2d 42, 47 (1970))).
discussed Cited as authority (rule) People v. Shaw (2×) also: Cited "see"
Ill. App. Ct. · 2018 · confidence medium
A postconviction proceeding, as a collateral attack on the judgment of conviction, is civil in nature (People v. Whirl, 2015 IL App (1st) 111483, ¶ 106 (citing People v. Johnson, 191 Ill. 2d 257, 270 (2000))), and the defendant’s “burden of proof is *** to show a denial of [a] constitutional right by a preponderance of the evidence’ ” (People v. Coleman, 2013 IL 113307, ¶ 92 (quoting People v. Stovall, 47 Ill. 2d 42, 47 (1970))).
discussed Cited as authority (rule) People v. Vinson
Ill. App. Ct. · 2018 · confidence medium
“Absent a showing of available material for supporting affidavits, a failure to -6- present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970).
discussed Cited as authority (rule) People v. Vinson
Ill. App. Ct. · 2017 · confidence medium
“Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970).
discussed Cited as authority (rule) People v. Malone
Ill. App. Ct. · 2017 · confidence medium
Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970).
discussed Cited as authority (rule) People v. Malone
Ill. App. Ct. · 2017 · confidence medium
Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.” People v. Stovall, 47 Ill. 2d 42, 46 (1970).
discussed Cited as authority (rule) People v. Coleman
Ill. · 2013 · confidence medium
An actual-innocence claim should be treated procedurally like any other postconviction claim (Washington, 171 Ill. 2d at 489 ), and “[i]n a post-conviction hearing the burden of proof is upon the petitioner to show a denial of [a] constitutional right by a preponderance of the evidence.” People v. Stovall, 47 Ill. 2d 42, 47 (1970). ¶ 93 The State’s argument essentially repackages an argument made by then-Chief Justice -18- Bilandic in his dissent upon denial of rehearing in Washington.
discussed Cited as authority (rule) People v. Coleman
Ill. · 2013 · confidence medium
An actual-innocence claim should be treated procedurally like any other postconviction claim (Washington, 171 Ill. 2d at 489 ), and “[i]n a post-conviction hearing the burden of proof is upon the petitioner to show a denial of [a] constitutional right by a preponderance of the evidence.” People v. Stovall, 47 Ill. 2d 42, 47 (1970). ¶ 93 The State’s argument essentially repackages an argument made by then-Chief Justice Bilandic in his dissent upon denial of rehearing in Washington.
discussed Cited as authority (rule) People v. Perkins
Ill. App. Ct. · 2006 · confidence medium
More directly on point is the later People v. Stovall, 47 Ill. 2d 42, 46 (1970): “Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney. *** Where there is not a showing that sufficient facts or evidence exist[s], inadequate representation certainly will not be found because of an attorney’s failure to amend a petition or, when amended, failing to make the petition’s allegations factually sufficient to require the granting of relief.” Stovall, 47 Ill. 2d at 46 .
discussed Cited as authority (rule) Hensel v. State
Alaska · 1979 · confidence medium
See, e. g., People v. McClellan, 183 Colo. 176 , 515 P.2d 1127, 1128 (1973) (en banc); Cooper v. State, 96 Idaho 542 , 531 P.2d 1187, 1190 (1975) (construing Uniform Post-Conviction Procedure Act); People v. Stovall, 47 Ill.2d 42 , 264 N.E.2d 174, 176 (1970); Parsons v. Brewer, 202 N.W.2d 49, 52 (Iowa 1972); Thompson v. State, 197 Kan. 630 , 419 P.2d 891, 895 (1966); Matter of Jones, 578 P.2d 1150, 1151 (Mont.1978); Young v. Cupp, 8 Or.App. 41 , 491 P.2d 1201, 1202 (1971) (post-conviction relief petitioner must prove allegations of petition by “preponderance” of the evidence); cf. Doggett …
discussed Cited "see" People v. Cotton
Ill. App. Ct. · 2025 · signal: see · confidence high
See People v. English, 2013 IL 112890, ¶ 23 . ¶ 21 The burden of proof at the third-stage evidentiary hearing stage “is upon the petitioner to show a denial of [a] constitutional right by a preponderance of the evidence.” (Internal quotation marks omitted.) People v. Coleman, 2013 IL 113307, ¶ 92 (quoting People v. Stovall, 47 Ill. 2d 42, 47 (1970)).
cited Cited "see" People v. Richardson
Ill. App. Ct. · 2023 · signal: see · confidence high
See People v. Stovall, 47 Ill. 2d 42, 46 (1970).
cited Cited "see" People v. Goodwin
Ill. App. Ct. · 1972 · signal: see · confidence high
See People v. Stovall, 477 Ill.2d 42 , 46, 264 N.E.2d 174 ; People v. Gendron, 41 Ill.2d 518, 520 , 244 N.E.2d 149 .
Retrieving the full opinion text from the archive…
The People of the State of Illinois, Appellee, vs. James W. Stovall, Appellant
42815.
Illinois Supreme Court.
Nov 17, 1970.
264 N.E.2d 174
Morton Zwick, Director of Defender Project, of Chicago, (Bruce Stratton and Theodore A. Gottfried, of counsel,) appointed by the court, for appellant., William J. Scott, Attorney General, of Springfield, and Basil G. Greanias, State’s Attorney, of Decatur, (Fred G. Leach, Assistant Attorney General, of counsel,) for the People.
William J. Scott.
Cited by 56 opinions  |  Published
Mr. Justice Ward

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Macon County, which, after an evidentiary hearing, denied the petition filed by the petitioner, James W. Stovall, under the Post-Conviction Hearing Act. Ill. Rev. Stat. 1969, ch. 38, pars. 122—1 et seq.

On July 15, 1966, a jury in the circuit court of Macon County found the petitioner guilty of murder and the petitioner was sentenced to a term of 30 to 60 years in the penitentiary. The appellate court affirmed the judgment of conviction. (People v. Hexum, 83 Ill. App. 2d 192.) Thereafter, acting pro se, the petitioner filed a petition seeking relief under the Post-Conviction Hearing Act and requesting the appointment of counsel. The pro se petition complained that the petitioner’s appointed trial counsel had been incompetent in failing to object to certain evidence, in refusing to withdraw upon the petitioner’s request, and in failing to move for a mistrial. It charged, too, that the trial court had erred in admitting prejudicial and inflammatory testimony; that the State had deliberately used perjured testimony; and that prejudicial pretrial publicity had denied the petitioner a fair trial.

Counsel for the petitioner was appointed by the trial court and an amended petition was filed in his behalf. The record shows that prior to filing the amended petition counsel had conferred with the petitioner regarding his contentions of constitutional violations. The amended petition charged, inter alia, (a) that the petitioner’s appointed trial counsel had been incompetent; and (b) that certain prejudicial pretrial publicity prevented the petitioner from receiving a fair trial. An affidavit of the petitioner was attached to the amended petition. This alleged the incompetency of the trial counsel in failing to object to certain undescribed evidence and in refusing to withdraw from the case upon the petitioner’s request.

Although the trial court expressed doubt as to the sufficiency of the amended petition, it permitted it to stand and ruled that the State’s motion to dismiss should stand as an answer. The only witness presented at the hearing on the petition was the petitioner’s mother. She testified that she was present at a pretrial conference between her son and his trial attorney. She said that when the attorney recommended that the petitioner plead guilty in the hope of receiving a light sentence, the petitioner demanded that the attorney withdraw from the case. The trial record does not show that the petitioner made such a request in court. The mother also testified that prior to trial she had read a described fictionalized magazine article, which was alleged to have prejudiced her son’s opportunity for a fair trial. The mother knew a man who was a juror at the trial, but she did not testify that the juror had read the article. She said only that she knew that a woman who lived in the community, apparently not a juror, had read the article. The magazine article was admitted into evidence over the State’s objection.

The trial court denied the post-conviction petition and in its order said that the evidence did not support the claims of a denial of constitutional rights. Specifically, the court found that the evidence did not support the charge that counsel had been incompetent or that the pretrial publicity complained of had in any way affected the verdict of the jury, which had been sequestered during the trial.

Here, the petitioner first argues that he was incompetently represented by the attorney who presented his petition for post-conviction relief. The responsibilities which attend an appointment to represent a petitioner in a post-conviction proceeding were described in People v. Slaughter, 39 Ill.2d 278. There we observed (p. 285) that “the statute contemplated that the attorney appointed * * * would consult with him [the petitioner] either by mail or in person, ascertain his alleged grievances, examine the record of the proceedings at the trial and then amend the petition that had been filed pro se, so that it would adequately present the prisoner’s constitutional contentions. The statute cannot perform its function unless the attorney * * * ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.” The petitioner contends that his representation in the post-conviction proceeding was inadequate in that counsel failed to examine the record of proceedings at the original trial, did not submit affidavits to support the petition, and amended the pro se petition improperly.

The charge that the attorney did not examine the record of the proceedings at trial is overcome by the record of proceedings on the amended petition. That record discloses several discussions concerning the contents of the trial record between the judge and counsel as well as references by counsel to certain portions of the trial record in an attempt to support the petitioner’s contention that his trial attorney had been incompetent. Too, the post-conviction record shows conferences between counsel and the petitioner concerning his charges. That counsel had examined the trial record is reasonably indicated by the attorney’s request that the record at trial be incorporated in the amended petition.

Regarding the charge that counsel failed to submit affidavits to support the allegations of constitutional deprivations in the petition, there is no showing of the existence of any facts or evidence on which such affidavits could have been founded. Absent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.

The same reply must be made to the complaint of the manner in which the pro se petition was amended by the attorney. The petitioner’s real complaint is not the form of the amendment, but that it lacked sufficient substance. Counsel is, of course, not under any obligation to fabricate claims of constitutional deprivation. We remarked in People v. Ashley, 34 Ill.2d 402, 412, “We cannot now assume the absence of evidence at the * * * hearing is due solely to lack of investigation by counsel. The basic difficulty, however, is the absence of any showing that specific, identifiable evidence exists, and certainly we cannot charge counsel with incompetency for failure to introduce evidence not shown to be existing and available.” Where there is not a showing that sufficient facts or evidence exist, inadequate representation certainly will not be found because of an attorney’s failure to' amend a petition or, when amended, failing to make the petition’s allegations factually sufficient to require the granting of relief. Cf. People v. Smith, 40 Ill.2d 562; People v. Gendron, 41 Ill.2d 518.

It is next said that the court erred in not ordering a new trial because of prejudicial pretrial publicity. In a post-conviction hearing the burden of proof is upon the petitioner to show a denial of constitutional right by a preponderance of the evidence. (People v. Moore, 42 Ill.2d 73, 80.) Here, even if one were to assume the prejudicial character of the magazine article, there was no evidence to show any juror was exposed to the materials. There was simply no proof that the petitioner’s trial was affected by the article.

The argument that the court erred in not having the petitioner in court for the post-conviction hearing does not persuade. Whether a petitioner should be present at the hearing is a question entrusted to the sound discretion of the hearing judge. (Ill. Rev. Stat. 1969, ch. 38, par. 122—6.) Unless there is a clear showing of prejudice the judge’s determination will not be upset on appeal. (People v. Ashley, 34 Ill.2d 402.) We find no prejudice because the petitioner did not attend the hearing.

For the reasons given, the judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.