101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4070

 

Introduced 1/13/2020, by Rep. La Shawn K. Ford

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/122-1  from Ch. 38, par. 122-1
725 ILCS 5/122-2.1  from Ch. 38, par. 122-2.1

    Amends the Code of Criminal Procedure of 1963. Provides that a person who has been convicted of an offense and sentenced to a term of imprisonment for a felony or misdemeanor and who is serving or has served his or her sentence of imprisonment (rather than imprisoned in the penitentiary) may institute a proceeding under the Post-Conviction Hearing Article of the Code.


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A BILL FOR

 

HB4070LRB101 16586 RLC 65970 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Sections 122-1 and 122-2.1 as follows:
 
6    (725 ILCS 5/122-1)  (from Ch. 38, par. 122-1)
7    Sec. 122-1. Petition in the trial court.
8    (a) Any person who has been convicted of an offense and
9sentenced to a term of imprisonment for a felony or misdemeanor
10and who is serving or has served his or her sentence of
11imprisonment imprisoned in the penitentiary may institute a
12proceeding under this Article if the person asserts that:
13        (1) in the proceedings which resulted in his or her
14    conviction there was a substantial denial of his or her
15    rights under the Constitution of the United States or of
16    the State of Illinois or both;
17        (2) the death penalty was imposed and there is newly
18    discovered evidence not available to the person at the time
19    of the proceeding that resulted in his or her conviction
20    that establishes a substantial basis to believe that the
21    defendant is actually innocent by clear and convincing
22    evidence; or
23        (3) (blank).

 

 

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1    (a-5) A proceeding under paragraph (2) of subsection (a)
2may be commenced within a reasonable period of time after the
3person's conviction notwithstanding any other provisions of
4this Article. In such a proceeding regarding actual innocence,
5if the court determines the petition is frivolous or is
6patently without merit, it shall dismiss the petition in a
7written order, specifying the findings of fact and conclusions
8of law it made in reaching its decision. Such order of
9dismissal is a final judgment and shall be served upon the
10petitioner by certified mail within 10 days of its entry.
11    (b) The proceeding shall be commenced by filing with the
12clerk of the court in which the conviction took place a
13petition (together with a copy thereof) verified by affidavit.
14Petitioner shall also serve another copy upon the State's
15Attorney by any of the methods provided in Rule 7 of the
16Supreme Court. The clerk shall docket the petition for
17consideration by the court pursuant to Section 122-2.1 upon his
18or her receipt thereof and bring the same promptly to the
19attention of the court.
20    (c) Except as otherwise provided in subsection (a-5), if
21the petitioner is under sentence of death and a petition for
22writ of certiorari is filed, no proceedings under this Article
23shall be commenced more than 6 months after the conclusion of
24proceedings in the United States Supreme Court, unless the
25petitioner alleges facts showing that the delay was not due to
26his or her culpable negligence. If a petition for certiorari is

 

 

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1not filed, no proceedings under this Article shall be commenced
2more than 6 months from the date for filing a certiorari
3petition, unless the petitioner alleges facts showing that the
4delay was not due to his or her culpable negligence.
5    When a defendant has a sentence other than death, no
6proceedings under this Article shall be commenced more than 6
7months after the conclusion of proceedings in the United States
8Supreme Court, unless the petitioner alleges facts showing that
9the delay was not due to his or her culpable negligence. If a
10petition for certiorari is not filed, no proceedings under this
11Article shall be commenced more than 6 months from the date for
12filing a certiorari petition, unless the petitioner alleges
13facts showing that the delay was not due to his or her culpable
14negligence. If a defendant does not file a direct appeal, the
15post-conviction petition shall be filed no later than 3 years
16from the date of conviction, unless the petitioner alleges
17facts showing that the delay was not due to his or her culpable
18negligence.
19    This limitation does not apply to a petition advancing a
20claim of actual innocence.
21    (d) A person seeking relief by filing a petition under this
22Section must specify in the petition or its heading that it is
23filed under this Section. A trial court that has received a
24petition complaining of a conviction or sentence that fails to
25specify in the petition or its heading that it is filed under
26this Section need not evaluate the petition to determine

 

 

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1whether it could otherwise have stated some grounds for relief
2under this Article.
3    (e) A proceeding under this Article may not be commenced on
4behalf of a defendant who has been sentenced to death without
5the written consent of the defendant, unless the defendant,
6because of a mental or physical condition, is incapable of
7asserting his or her own claim.
8    (f) Only one petition may be filed by a petitioner under
9this Article without leave of the court. Leave of court may be
10granted only if a petitioner demonstrates cause for his or her
11failure to bring the claim in his or her initial
12post-conviction proceedings and prejudice results from that
13failure. For purposes of this subsection (f): (1) a prisoner
14shows cause by identifying an objective factor that impeded his
15or her ability to raise a specific claim during his or her
16initial post-conviction proceedings; and (2) a prisoner shows
17prejudice by demonstrating that the claim not raised during his
18or her initial post-conviction proceedings so infected the
19trial that the resulting conviction or sentence violated due
20process.
21(Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
 
22    (725 ILCS 5/122-2.1)  (from Ch. 38, par. 122-2.1)
23    Sec. 122-2.1. (a) Within 90 days after the filing and
24docketing of each petition, the court shall examine such
25petition and enter an order thereon pursuant to this Section.

 

 

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1        (1) If the petitioner is under sentence of death and is
2    without counsel and alleges that he is without means to
3    procure counsel, he shall state whether or not he wishes
4    counsel to be appointed to represent him. If appointment of
5    counsel is so requested, the court shall appoint counsel if
6    satisfied that the petitioner has no means to procure
7    counsel.
8        (2) If the petitioner is sentenced to imprisonment or
9    has served his or her sentence of imprisonment and the
10    court determines the petition is frivolous or is patently
11    without merit, it shall dismiss the petition in a written
12    order, specifying the findings of fact and conclusions of
13    law it made in reaching its decision. Such order of
14    dismissal is a final judgment and shall be served upon the
15    petitioner by certified mail within 10 days of its entry.
16    (b) If the petition is not dismissed pursuant to this
17Section, the court shall order the petition to be docketed for
18further consideration in accordance with Sections 122-4
19through 122-6. If the petitioner is under sentence of death,
20the court shall order the petition to be docketed for further
21consideration and hearing within one year of the filing of the
22petition. Continuances may be granted as the court deems
23appropriate.
24    (c) In considering a petition pursuant to this Section, the
25court may examine the court file of the proceeding in which the
26petitioner was convicted, any action taken by an appellate

 

 

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1court in such proceeding and any transcripts of such
2proceeding.
3(Source: P.A. 93-605, eff. 11-19-03.)