95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB2737

 

Introduced 2/15/2008, by Sen. A. J. Wilhelmi

 

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

    Amends the Code of Criminal Procedure of 1963. Makes a technical change in a Section concerning filing a petition for post-conviction relief.


LRB095 19896 RLC 46310 b

 

 

A BILL FOR

 

SB2737 LRB095 19896 RLC 46310 b

1     AN ACT concerning criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Code of Criminal Procedure of 1963 is
5 amended by changing Section 122-1 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 imprisoned in the the penitentiary may
9 institute a proceeding under this Article if the person asserts
10 that:
11         (1) in the proceedings which resulted in his or her
12     conviction there was a substantial denial of his or her
13     rights under the Constitution of the United States or of
14     the State of Illinois or both; or
15         (2) the death penalty was imposed and there is newly
16     discovered evidence not available to the person at the time
17     of the proceeding that resulted in his or her conviction
18     that establishes a substantial basis to believe that the
19     defendant is actually innocent by clear and convincing
20     evidence.
21     (a-5) A proceeding under paragraph (2) of subsection (a)
22 may be commenced within a reasonable period of time after the
23 person's conviction notwithstanding any other provisions of

 

 

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

 

 

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

 

 

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1 behalf of a defendant who has been sentenced to death without
2 the written consent of the defendant, unless the defendant,
3 because of a mental or physical condition, is incapable of
4 asserting his or her own claim.
5     (f) Only one petition may be filed by a petitioner under
6 this Article without leave of the court. Leave of court may be
7 granted only if a petitioner demonstrates cause for his or her
8 failure to bring the claim in his or her initial
9 post-conviction proceedings and prejudice results from that
10 failure. For purposes of this subsection (f): (1) a prisoner
11 shows cause by identifying an objective factor that impeded his
12 or her ability to raise a specific claim during his or her
13 initial post-conviction proceedings; and (2) a prisoner shows
14 prejudice by demonstrating that the claim not raised during his
15 or her initial post-conviction proceedings so infected the
16 trial that the resulting conviction or sentence violated due
17 process.
18 (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03;
19 93-972, eff. 8-20-04.)