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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 6 months after
the conclusion of | ||||||
20 | proceedings in the United States Supreme Court, unless the | ||||||
21 | petitioner alleges facts showing that the delay
was
not due to | ||||||
22 | his or her culpable negligence. If a petition for certiorari is | ||||||
23 | not filed, no proceedings under this Article shall be commenced | ||||||
24 | more than 6 months from the date for filing a certiorari | ||||||
25 | petition, unless the petitioner alleges facts showing that the | ||||||
26 | delay was not due to his or her culpable negligence.
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1 | When a defendant has a sentence other than death, no | ||||||
2 | proceedings under this
Article shall be commenced more than 6 | ||||||
3 | months after the conclusion of proceedings in the United States | ||||||
4 | Supreme Court, unless the petitioner
alleges facts showing that | ||||||
5 | the delay was not due to his or her culpable
negligence.
If a | ||||||
6 | petition for certiorari is not filed, no proceedings under this | ||||||
7 | Article shall be commenced more than 6 months from the date for | ||||||
8 | filing a certiorari petition, unless the petitioner alleges | ||||||
9 | facts showing that the delay was not due to his or her culpable | ||||||
10 | negligence. If a defendant does not file a direct appeal, the | ||||||
11 | post-conviction petition shall be filed no later than 3 years | ||||||
12 | from the date of conviction, unless the petitioner alleges | ||||||
13 | facts showing that the delay was not due to his or her culpable | ||||||
14 | negligence.
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15 | This limitation does not apply to a petition advancing a | ||||||
16 | claim of actual
innocence. | ||||||
17 | (d) A person seeking relief by filing a petition under this | ||||||
18 | Section must
specify in the petition or its heading that it is | ||||||
19 | filed under this Section.
A trial court that has received a | ||||||
20 | petition complaining of a conviction or
sentence that fails to | ||||||
21 | specify in the petition or its heading that it is
filed under | ||||||
22 | this Section need not evaluate the petition to determine
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23 | whether it could otherwise have stated some grounds for relief | ||||||
24 | under
this Article.
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25 | (e) A proceeding under this Article may not be commenced on | ||||||
26 | behalf of a
defendant who has been sentenced to death without |
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1 | the written consent of the
defendant, unless the defendant, | ||||||
2 | because of a mental or physical condition, is
incapable of | ||||||
3 | asserting his or her own claim.
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4 | (f) Only one petition may be filed by a petitioner under | ||||||
5 | this Article
without leave of the court.
A petitioner must seek | ||||||
6 | leave of the court by filing a motion when he or she sends his | ||||||
7 | or her proposed subsequent petition. The circuit court must | ||||||
8 | review the motion within 30 days of its receipt by the Circuit | ||||||
9 | Court Clerk. If the court grants the motion for leave to file | ||||||
10 | the petition, the Circuit Court Clerk shall docket it, and the | ||||||
11 | petition shall proceed under Section 122-2.1 of this Article. | ||||||
12 | If the court denies the motion, the Circuit Court Clerk shall | ||||||
13 | notify the petitioner by certified mail within 10 days of the | ||||||
14 | entry of the order. Leave of court may be granted only if a | ||||||
15 | petitioner demonstrates
cause for his or her failure to bring | ||||||
16 | the claim in his or her initial
post-conviction proceedings and | ||||||
17 | prejudice results from that failure. For
purposes
of this | ||||||
18 | subsection (f): (1) a prisoner shows cause by identifying an | ||||||
19 | objective
factor that impeded his or her ability to raise a | ||||||
20 | specific claim during his or
her initial post-conviction | ||||||
21 | proceedings; and (2) a prisoner shows prejudice by
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22 | demonstrating that the claim not raised during his or her | ||||||
23 | initial
post-conviction proceedings so infected the trial that | ||||||
24 | the resulting conviction
or
sentence violated due process.
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25 | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | ||||||
26 | 93-972, eff. 8-20-04.)
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