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Defendant was convicted of first degree murder after a jury trial and sentenced by thecourt to 40 years' imprisonment. This court affirmed his conviction and sentence in anunpublished order (People v. McLaughlin, No. 1-96-2250 (1997)) (unpublished order underSupreme Court Rule 23). Thereafter, defendant filed a pro se post-conviction petition. See 725ILCS 5/122-1 (West 1998). Although it is not clear from the record or either party's briefs, thetrial court apparently reviewed the petition and found it to state the gist of a constitutional claim. Pursuant to section 122-2.1(b) of the Post-Conviction Hearing Act (Act), the court then"order[ed] the petition to be docketed for further consideration in accordance with Sections 122-4through 122-6." 725 ILCS 5/122-2.1(b) (West 1998).

Defendant then retained counsel, who filed an appearance and requested additional timeto file a post-conviction petition. The State filed a motion to dismiss the original petition, anddefendant's counsel then filed an amended post-conviction petition. The State then filed anamended motion to dismiss the amended petition. The trial court heard arguments on the motionand dismissed the petition on the ground that it was untimely. Defendant filed a notice of appealand then filed a pro se petition for postjudgment relief pursuant to section 2-1401 of the Code ofCivil Procedure (735 ILCS 5/2-1401 (West 1998)), which was also denied. Defendant also fileda notice of appeal from that petition, and this court granted defendant's motion to consolidate thetwo appeals. For the reasons that follow, we affirm the trial court's decision to dismiss all ofdefendant's postjudgment motions.

Defendant was found guilty of first degree murder for the shooting of Jimmy Holmesfollowing a jury trial on February 15, 1996. On June 3, 1996, he was sentenced to 40 years'imprisonment in the Illinois Department of Corrections. This court affirmed his conviction andsentence on April 25, 1997, and on October 8, 1998, defendant filed a pro se post-convictionpetition. Attached to the petition was the affidavit of Kahlil Rowe (Rowe), an eyewitness whoidentified the defendant as the shooter during trial. The substance of Rowe's affidavit was that hedid not see the defendant with a gun and that police detectives who were at defendant's lineuptold Rowe that someone was going to "go down" for the murder and accused Rowe of hiding thegun on the night of the crime. Accordingly, defendant's claim was one of actual innocence wherethe only testimony against him was perjured. Defendant also attached the affidavits of LeonardPhillips and Chimere Jackson, which alleged that defendant was across the street when theshooting occurred and that the shot sounded as if it had come from around the area where theactual shooting had occurred. Phillips' affidavit was dated September 3, 1998, and Jackson's wasdated September 8, 1998. Defendant also claimed that his trial counsel was ineffective for failingto interview and call occurrence witnesses, but he only attached his own affidavit in support ofthat claim. As previously stated, the trial court apparently found the petition stated the gist of aconstitutional claim and docketed it for further consideration. In other words, defendant made itpast the first stage of post-conviction review.

On January 8, 1999, defendant's current attorney filed an appearance and requestedadditional time to file a post-conviction petition. Thereafter, defendant's counsel then filed anamended post-conviction petition, alleging that the statute of limitations in the Act wasunconstitutional, that defendant's claim of perjured testimony could be considered under section2-1401 as well as under Public Act 90-141 (Pub. Act 90-141, eff. January 1, 1998), thatdefendant's trial counsel was ineffective where he failed to interview and present the testimony ofoccurrence witnesses who could not identify the defendant as the shooter, for failing to move tosuppress the identification testimony where defendant was arrested without probable cause, andfor failing to request a limiting instruction regarding the threatening phone calls to Rowe. Theamended petition further alleged that Rowe's retraction and the affidavits of Jackson and Phillipssupported a claim of actual innocence. Attached to the amended petition were the affidavits ofthe three witnesses, a copy of the police reports, and defendant's affidavits.⁽¹⁾

On August 11, 1999, the State filed a motion to dismiss the amended petition, arguingthat the statute of limitations barred defendant's claims, that the statute of limitations wasconstitutional, that Rowe's retraction did not qualify as newly discovered evidence, and thatdefendant made no showing that testimony was perjured. On September 9, 1999, the trial courtheard arguments on the motion and dismissed it as being untimely. On September 29, 1999,defendant filed a notice of appeal.

On October 20, 1999, defendant filed a pro se petition for postjudgment relief pursuant tosection 2-1401, alleging that Rowe came forward as of February 8, 1998. Defendant attached thesame affidavits from Rowe, Jackson, and Phillips that had been used in his previous petition. Inthat petition, however, he alleged that he was entitled to relief because Rowe, Chicago policedetectives, and the State's Attorney's office fraudulently concealed Rowe's perjured testimonyboth before and after trial. Further, it alleged that defendant had been diligently attempting toobtain information to show his actual innocence and that through no fault of his own has hecontributed in the delay of this petition being filed. On November 2, 1999, that petition wasdenied, and the order entered was "off call." Defendant filed his appeal of this order onDecember 2, 1999, and on or about July 20, 2000, defendant's attorney moved to consolidate thetwo appeals. On August 9, 2000, this court allowed the motion and consolidated the two cases.

While defendant argues the merits of both his amended post-conviction petition as well ashis section 2-1401 petition, we note that both petitions were dismissed, not on their merits, butbased on their untimeliness. Accordingly, we must first decide whether the trial court's decisionto dismiss those petitions was correct. Ultimately, we find that: (1) the portion of defendant'samended post-conviction petition brought pursuant to section 122-1 of the Act was time-barredunder section 122-1(c); (2) the portion of defendant's amended post-conviction petition thatinvoked section 2-1401's provisions was time-barred under section 2-1401(c); and (3) defendant'ssubsequent pro se section 2-1401 motion was also time barred under section 2-1401(c). Consequently, we affirm on that basis alone and do not address the substance of defendant'sclaims. As a preliminary matter, the standard of review as to whether a post-convictionproceeding may be dismissed without an evidentiary hearing is de novo. People v. Coleman, 183Ill. 2d 366, 388-89 (1998).

It is uncontested that the statute of limitations that was in effect at the time the defendantfiled his post-conviction petition governs his claim (People v. Bates, 124 Ill. 2d 81 (1988)) andprovides in pertinent part:

"No proceedings under this Article shall be commenced more than 6months after the denial of a petition for leave to appeal or the date for filing such apetition if none is filed or *** 3 years from the date of conviction, whichever issooner, unless the petitioner alleges facts showing that the delay was not due to hisor her culpable negligence." 725 ILCS 5/122-1(c) (West 1998).

Defendant's first argument is that the trial court erred when it dismissed his post-conviction petition based on the statute of limitations in the Act because the statute, as applied, isunconstitutional. For this, defendant notes that he was sentenced to 40 years on June 3, 1996. Had he chosen not to proceed with an appeal, under section 122-1(c) of the Act, his pro se post-conviction petition would have been due on June 3, 1999. 725 ILCS 5/122-1(c) (West 1998). However, because he chose to directly appeal, and this court affirmed on April 25, 1997, he onlyhad until November 16, 1997- six months after the petition for leave to appeal to the IllinoisSupreme Court was due. Such a disparity in time, he claims, violates his constitutional rights inthat it punishes him for having appealed his case by shortening the time period within which hecould file his post-conviction petition.

He bases this argument on the notion that punishing or penalizing a defendant forinvoking or exercising a constitutional right violates due process. U.S. Const., amend. XIV. Forthis, he quotes United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968). There, the Supreme Court found that the death penalty provision of a federal kidnaping act wasunconstitutional, where the death penalty could only be levied by a jury, which imposed animpermissible burden upon a defendant's right to a jury trial. He accords this with the Court'sopinion in Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). There, the Court found it "intolerable that one constitutional right should have to be surrenderedin order to assert another." Simmons, 390 U.S. at 394, 19 L. Ed. 2d at 1259, 88 S. Ct. at 976.

Alternatively, he claims that the limitations period of the Act denies him equal protectionof the law because "it sets a timetable that irrationally treats differently[ ] people in essentially theidentical situation." Such an allegedly irrational set-up, he claims, is unconstitutional. For this,he cites Haughton v. Haughton, 76 Ill. 2d 439 (1979). There, the Illinois Supreme Court foundthat a statute of limitations tolling provision was unconstitutional as a denial of equal protection. See also Jude v. Morrissey, 117 Ill. App. 3d 782 (1983) (limitations period of Illinois PaternityAct (Ill. Rev. Stat. 1981, ch. 40, par.1351 et seq.) denied certain children the equal protection ofthe laws). Given the language of these opinions, defendant claims, "the statutory provisions hereattacked rest on impermissible distinctions that do not serve any legitimate State interest or haveany rational basis."

By way of example, defendant notes that if a person convicted on January 2, 1995, opts toappeal that decision, and his appeal is denied a little more than a year later, and he has anadditional six months after his petition for leave to appeal (PLA) is denied or after the time forfiling his PLA has expired, then that person has little over a year and a half from the date ofconviction within which to file his post-conviction petition. However, if a person convicted onJanuary 2, 1995, does not proceed with an appeal, he has three years within which he may file apost-conviction petition. In addition, he claims that because one person may have his appealcompleted in a shorter time than another person, a person whose appeal took longer would havean arbitrarily longer time to file his post-conviction petition. This, he argues, leaves the timeperiod totally dependant on the length of the appellate process, "which is entirely a matter of fateand is not in the hands of the defendant."

The State correctly responds that statutes carry a very strong presumption that they areconstitutional as written, and the party challenging the constitutionality of a statute bears theburden of rebutting this presumption. Russell v. Department of Natural Resources, 183 Ill. 2d434 (1998). Moreover, the State notes that defendant has not argued that the challengedprovision involves a suspect class or a fundamental right. Therefore, in order to establish thatthis provision violates the equal protection or due process clause of the fourteenth amendment, hemust demonstrate that there is no rational relationship between the classification in the statuteand a legitimate government purpose. See Heller v. Doe, 509 U.S. 312, 319-20, 125 L. Ed. 2d257, 270, 113 S. Ct. 2637, 2642 (1993). Further, the State notes that a legislative classificationthat does not affect fundamental rights or proceed along suspect lines will be accorded a strongpresumption of validity. Heller, 509 U.S. at 320, 125 L. Ed. 2d at 270, 133 S. Ct. at 2642. Theburden is on the petitioner to negate every conceivable basis that might support the legislation,whether or not the basis has a foundation in the record. Heller, 509 U.S. at 320, 125 L. Ed. 2d at270, 133 S. Ct. at 2642.

We are mindful that the identical argument raised by defendant's current counsel wasrejected in the United States District Court for the Northern District of Illinois in United States exrel. Rice v. Haws, No. 00 C 3997 (October 6, 2000). The court in Rice found the defendant'sargument was frivolous because he was unable to show that there was no rational relationshipbetween the classification in the statute and a legitimate government purpose. Specifically, itheld:

"[Defendant] has not met [his] burden. He alleges that the statute treatsidentically-situated individuals differently. However, the individuals treateddifferently by the statute are not identical. One group has chosen to pursue adirect appeal, while the other has not. [Defendant] further argues that the differenttreatment of these two groups is irrational. Without presuming to know why theIllinois legislature chose to make the distinction it did, there are many rationalreasons upon which a distinction may be made between individuals who havechosen to pursue a direct appeal and those who have chosen not to. Choosing topursue a direct appeal consumes state time and resources, and provides adefendant with an opportunity for judicial review. Allowing those who do not filea direct appeal a longer period to seek post-conviction relief is rational. This isonly one potential basis upon which the legislation may have been founded, but itis enough. [Heller], at 319 (classification must be upheld if any reasonableconceivable state of facts could provide a rational basis for classification).[Defendant's] argument that 725 ILCS 5/122-1(c) violates due process and equalprotection must be rejected." Rice, slip op. at __.

In a footnote, the court also quoted another Supreme Court decision: "'It is entirely irrelevant forconstitutional purposes whether the conceived reason for the challenged distinction actuallymotivated the legislature.' FCC v. Beach Comm., Inc., 508 U.S. 307, 315 (1993)." Rice, slip op.at __.

While we certainly are not bound by the district court's decision in Rice, we really onlyneed to determine whether that court's conceived reason for the challenged distinction is rational. We find that it is, and affirm the trial court's dismissal of defendant's petition on the basis of thatpersuasive authority alone. However, even if we did not hold that such a reason was rationallyrelated, we believe that such a relationship also exists in two additional theories put forward bythe State. First, the State claims that defendants who directly appeal have the benefit of havingdiscussed their claims with appellate counsel and will then be able to flush out any claims thatthey feel are meritorious but perhaps not appropriate for direct appeal. As such, the State claimsthat it is rational to presume that those who have directly appealed and have had the benefit ofcounsel are more aware of the potential theories of relief under the Act than those who did notpursue an appeal. Second, the State argues that the statute of limitations provision contains a"safety valve" that is unique to the Act. Specifically, to avoid the effect of the shorter limitationsperiod to which defendant was subjected by the reason of the timely disposition of his directappeal, he need only have alleged facts justifying the delay in filing. People v. Harrison, 32 Ill.App. 3d 641 (1975). In the present case, defendant has alleged none.

Moreover, it appears that the flat three-year statute of limitations that defendant isproposing would also have the effect of creating a distinction among defendants. For even if thelegislature changed the law tomorrow and mandated that every defendant has three years from thedate of his or her conviction, this could potentially take away a defendant's right to have anappeal heard and decided before filing a post-conviction petition if the appellate process takeslonger than three years. It seems rational that this is precisely the type of situation the legislaturemeant to avoid. As such, we affirm the trial court's decision to dismiss defendant's petition astime-barred.

Next, defendant claims that his amended pleadings rely on two distinct grounds forpostjudgment relief in addition to his post-conviction petition. Namely, defendant asserts that hehas a freestanding claim of innocence under section 116-3 of the Code of Criminal Procedure of1963 (725 ILCS 5/116-3 (West 1998)) and under section 2-1401. Regarding defendant's actualinnocence, section 116-3 provides procedures to move for fingerprint or forensic testing that wasnot available at trial. In invoking this provision, defendant claims that "certainly relief may notbe limited only to those wrongfully-convicted defendants whose convictions involve fingerprintor forensic evidence." He then attempts to make a "rational relationship" argument, stating thatthis statutory protection discriminates against those who do not have fingerprint or forensicevidence available to exonerate them. Accordingly, he claims that this should operate to "de-activate" the limitations period of the Act.

As the State points out, however, defendant makes no attempt to support this assertion. Initially, he makes no suggestion that identity was the issue which resulted in his conviction orthat any new forensic or fingerprint testing could exonerate him. This, by itself, is enough for usto ignore this entreaty. 725 ILCS 5/116-3 (West 1998). However, even if we were to look pastthe form of the argument and into its substance, i.e., that newly available evidence exists thatcould exonerate him (the recantation evidence), defendant still offers no explanation that justifieshis delay in filing. As previously noted, if defendant were to have made a showing that suchevidence was delayed through no culpable negligence of his own, then such an assertion wouldoperate to deactivate the statute of limitations. Because defendant has not offered any suchsupport, we affirm the trial court's dismissal of this claim as well.

Lastly, defendant argues that according to the section 2-1401 portion of his amended post-conviction petition as well as his subsequent pro se section 2-1401 petition, his conviction shouldbe vacated. According to People v. Mahaffey, 194 Ill. 2d 154, 181-82 (2000):

"A section 2-1401 petition for relief from a final judgment is the forum ina criminal case in which to correct all errors of fact occurring in the prosecution ofa cause, unknown to petitioner and the court at the time judgment was entered,which, if then known, would have prevented its rendition. [People v.]Haynes, 192Ill. 2d [437,] 460 [(2000)]; People v. Berland, 74 Ill. 2d 286, 313-14 (1978). However, where a section 2-1401 petition is filed more than two years after thejudgment was entered, it cannot be considered. 735 ILCS 5/2-1401(c) (West1996); People v. Caballero, 179 Ill. 2d 205 (1997). It is well established that thetwo-year limitation period mandated by section 2-1401 must be adhered to in theabsence of a clear showing that the person seeking relief is under legal disabilityor duress or the grounds for relief are fraudulently concealed. Caballero, 179 Ill.2d at 210-11."

See also People v. Sanchez, 131 Ill. 2d 417 (1989) (held that remedial powers under this civilprocedure section, though usually characterized as a civil remedy, extend to criminal cases). Inthe present case, the defendant argues that he has made a clear showing that his grounds forrelief, i.e. Rowe's perjured testimony, were fraudulently concealed by Rowe, Chicago policedetectives, and the State's Attorney's office both before and after trial. Further, he alleges that hehas been diligently attempting to obtain information to show his actual innocence and thatthrough no fault of his own has he contributed in the delay of this petition being filed." Accordingly, he asserts that the claim of perjured testimony is cognizable under section 2-1401.

The State responds that this court should not consider the allegations of the defendant'spro se section 2-1401 petition because they raise the same claim of perjured testimony thatcounsel raised in his amended post-conviction petition and, as a result, are an improper attempt toamend the petition after entry of judgment. According to section 122-5:

"The court may in its discretion grant leave, at any stage of the proceeding prior toentry of judgment, to withdraw the petition. The court may in its discretion makesuch order as to amendment of the petition or any other pleading, or as to pleadingover, or filing further pleadings, or extending the time for filing any pleading otherthan the original petition, as shall be appropriate, just and reasonable and as isgenerally provided in civil cases." 725 ILCS 5/122-5 (West 1998).

Because judgment had already been entered on defendant's post-conviction petition whendefendant filed his section 2-1401 postjudgment motion to vacate, and because defendant reliedupon the same arguments in both claims, the State concludes that this is an improper attempt toamend his claim.

However, we need not reach this far in dismissing the section 2-1401 portion of hissecond amended petition or his later pro se section 2-1401 petition. As the State alternativelyargues, under the fraudulent concealment exception to section 2-1401's two-year period oflimitations, the defendant must allege facts demonstrating that his opponent affirmativelyattempted to prevent the discovery of the purported grounds for relief and must offer factualallegations demonstrating his good faith and reasonable diligence in trying to uncover suchmatters before trial or within the limitations period. People v. Boclair, 312 Ill. App. 3d 346(2000), citing Aroonsakul v. Flanagan, 155 Ill. App. 3d 223 (1987). As this court in Boclairstated:

"A defendant who asks the courts to apply exceptions to time limits or otherstringent procedural bars in his case is affirmatively obliged to show why suchexceptions apply, and the burden upon the defendant is a heavy one. He may notmerely assert he is entitled to a legislative or judicial exception or make vague,conclusory assertions as to why such exceptions apply in his case. Rather, thedefendant must also show clearly through factual allegations that he previouslymade diligent attempts to uncover matters he now purports entitle him to judicialrelief or otherwise demonstrate in significant detail how he could not haveobtained such information before the limitations period expired or at prior post-conviction proceedings.

Without such requirements, procedural bars enacted by the legislature tobe enforced by the courts to curtail excessive and unnecessary appeals would bevirtually meaningless and the State's legitimate interest in the finality of criminallitigation and judgments constantly disrupted and jeopardized. See People v.Flores, 153 Ill. 2d 264, 274, 606 N.E.2d 1078, 1083 (1992), quoting Teague v.Lane, 489 U.S. 288, 309,103 L. Ed. 2d 334, 355, 109 S. Ct. 1060, 1074 (1989)('"[w]ithout finality, the criminal law is deprived of much of its deterrenteffect"')." Boclair, 312 Ill. App. 3d at 348-49.

Moreover, "'[t]he mere recantation of prior testimony is not even sufficient proof in itself toestablish that the earlier testimony was perjured.'" People v. Hilliard, 109 Ill. App. 3d 797, 802(1982), quoting People v. DeMario, 112 Ill. App. 2d 420, 425, 251 N.E.2d 274 (1969).

In reviewing either of defendant's allegations pursuant to section 2-1401, he offers nofactual support for the allegation that Rowe, Chicago police detectives, and the State's Attorney'soffice fraudulently concealed Rowe's perjured testimony both before and after trial. Because thetwo-year statute of limitations for filing a section 2-1401 motion would have expired fordefendant on February 15, 1998 (two years after judgment was entered on February 15, 1996),and defendant's amended petition was allegedly filed on February 11, 1999, and his pro se section2-1401 petition was filed on October 20, 1999, this court cannot consider the motion withoutmore than defendant's bald allegation that such new evidence was fraudulently concealed. Accordingly, we affirm the trial court's decision to dismiss this motion as well.

Because defendant cannot establish that there is no rational relationship between section122-5's classification and a legitimate governmental interest, his constitutional equal protectionand due process claims must necessarily fail. Additionally, because defendant has not made anyfactual allegations that identity was the issue which resulted in his conviction or that any newforensic or fingerprint testing could exonerate him, he may not use section 116-3 to extend hisstatute of limitations. Lastly, because defendant's section 2-1401 allegations were filed morethan two years after the expiration of the statute of limitations, and because he has made nofactual allegations that support his claim that potentially exonerating evidence was fraudulentlyconcealed -other than Rowe's recantation- we may not consider his arguments regarding thisevidence. Based on the above, we need not examine the merits of defendant's claims.

Affirmed.

QUINN, P.J., and THEIS, J., concur.

1. Defendant's counsel includes an undated and unsigned copy of this amended petition inthe record with no date or time stamp from the clerk's office, yet he asserts in his brief that it wasfiled on February 11, 1999. Even assuming that date is correct, however, counsel's alternativeinvocation of section 2-1401's provisions still falls outside the time limitation of two years fromthe date of judgment pursuant to section 2-1401(c).