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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Code of Criminal Procedure of 1963 is | |||||||||||||||||||
5 | amended by changing Section 122-1 as follows:
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6 | (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
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7 | Sec. 122-1. Petition in the trial court.
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8 | (a) Any person imprisoned in the penitentiary may institute | |||||||||||||||||||
9 | a proceeding under this Article if the person asserts that: | |||||||||||||||||||
10 | (1) in the
proceedings which resulted in his or her | |||||||||||||||||||
11 | conviction there was a substantial
denial of his or her | |||||||||||||||||||
12 | rights under the Constitution of the United States or
of | |||||||||||||||||||
13 | the State of Illinois or both; or
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14 | (2) the death penalty was imposed and there is
newly | |||||||||||||||||||
15 | discovered evidence not available to the person at
the time | |||||||||||||||||||
16 | of the proceeding that resulted in his or her
conviction | |||||||||||||||||||
17 | that establishes a substantial basis to believe that the | |||||||||||||||||||
18 | defendant
is actually innocent by clear and convincing | |||||||||||||||||||
19 | evidence.
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20 | (a-5) A proceeding under paragraph (2) of subsection (a)
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21 | may be commenced within a reasonable period of time after the | |||||||||||||||||||
22 | person's
conviction
notwithstanding any other provisions of
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23 | this Article. In such a proceeding regarding
actual innocence, |
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1 | if the court determines the petition is
frivolous or is | ||||||
2 | patently without merit, it shall dismiss the
petition in a | ||||||
3 | written order, specifying the findings of fact
and conclusions | ||||||
4 | of law it made in reaching its decision.
Such order of | ||||||
5 | dismissal is a final judgment and shall be
served upon the | ||||||
6 | petitioner by certified mail within 10 days
of its entry.
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7 | (b) The proceeding shall be commenced by filing with the | ||||||
8 | clerk of the court
in which the conviction took place a | ||||||
9 | petition (together with a copy thereof)
verified by affidavit. | ||||||
10 | Petitioner shall also serve another copy upon the
State's | ||||||
11 | Attorney by any of the methods provided in Rule 7 of the | ||||||
12 | Supreme
Court. The clerk shall docket the petition for | ||||||
13 | consideration by the court
pursuant to Section 122-2.1 upon his | ||||||
14 | or her receipt thereof and bring the same
promptly to the | ||||||
15 | attention of the court.
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16 | (c) Except as otherwise provided in subsection (a-5), if
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17 | the petitioner is under sentence of death and a petition for | ||||||
18 | writ of certiorari is filed,
no proceedings under this Article | ||||||
19 | shall be commenced more than 10 years from the date of | ||||||
20 | sentencing or 6 months after
the conclusion of proceedings in | ||||||
21 | the United States Supreme Court, whichever expires later,
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22 | unless the petitioner alleges facts showing that the delay
was
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23 | not due to his or her culpable negligence. If a petition for | ||||||
24 | certiorari is not filed, no proceedings under this Article | ||||||
25 | shall be commenced more than 10 years from the date of | ||||||
26 | sentencing or 6 months from the date for filing a certiorari |
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1 | petition, whichever expires later, unless the petitioner | ||||||
2 | alleges facts showing that the delay was not due to his or her | ||||||
3 | culpable negligence.
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4 | When a defendant has a sentence other than death, no | ||||||
5 | proceedings under this
Article shall be commenced more than 10 | ||||||
6 | years from the date of sentencing or 6 months after the | ||||||
7 | conclusion of proceedings in the United States Supreme Court, | ||||||
8 | whichever expires later, unless the petitioner
alleges facts | ||||||
9 | showing that the delay was not due to his or her culpable
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10 | negligence.
If a petition for certiorari is not filed, no | ||||||
11 | proceedings under this Article shall be commenced more than 10 | ||||||
12 | years from the date of sentencing or 6 months from the date for | ||||||
13 | filing a certiorari petition, whichever expires later, unless | ||||||
14 | the petitioner alleges facts showing that the delay was not due | ||||||
15 | to his or her culpable negligence. If a defendant does not file | ||||||
16 | a direct appeal, the post-conviction petition shall be filed no | ||||||
17 | later than 10 years from the date of sentencing
3 years from | ||||||
18 | the date of conviction , unless the petitioner alleges facts | ||||||
19 | showing that the delay was not due to his or her culpable | ||||||
20 | negligence.
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21 | This limitation does not apply to a petition advancing a | ||||||
22 | claim of actual
innocence. | ||||||
23 | (d) A person seeking relief by filing a petition under this | ||||||
24 | Section must
specify in the petition or its heading that it is | ||||||
25 | filed under this Section.
A trial court that has received a | ||||||
26 | petition complaining of a conviction or
sentence that fails to |
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1 | specify in the petition or its heading that it is
filed under | ||||||
2 | this Section need not evaluate the petition to determine
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3 | whether it could otherwise have stated some grounds for relief | ||||||
4 | under
this Article.
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5 | (e) A proceeding under this Article may not be commenced on | ||||||
6 | behalf of a
defendant who has been sentenced to death without | ||||||
7 | the written consent of the
defendant, unless the defendant, | ||||||
8 | because of a mental or physical condition, is
incapable of | ||||||
9 | asserting his or her own claim.
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10 | (f) Only one petition may be filed by a petitioner under | ||||||
11 | this Article
without leave of the court.
Leave of court may be | ||||||
12 | granted only if a petitioner demonstrates
cause for his or her | ||||||
13 | failure to bring the claim in his or her initial
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14 | post-conviction proceedings and prejudice results from that | ||||||
15 | failure. For
purposes
of this subsection (f): (1) a prisoner | ||||||
16 | shows cause by identifying an objective
factor that impeded his | ||||||
17 | or her ability to raise a specific claim during his or
her | ||||||
18 | initial post-conviction proceedings; and (2) a prisoner shows | ||||||
19 | prejudice by
demonstrating that the claim not raised during his | ||||||
20 | or her initial
post-conviction proceedings so infected the | ||||||
21 | trial that the resulting conviction
or
sentence violated due | ||||||
22 | process.
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23 | (g) A petitioner under this Article whose petition was | ||||||
24 | dismissed as untimely before the effective date of this | ||||||
25 | amendatory Act of the 95th General Assembly but whose petition | ||||||
26 | would have been timely if filed on or after the effective date |
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1 | of this amendatory Act of the 95th General Assembly may file | ||||||
2 | his or her petition within 2 years after the effective date of | ||||||
3 | this amendatory Act of the 95th General Assembly.
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4 | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | ||||||
5 | 93-972, eff. 8-20-04.)
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