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(725 ILCS 5/122-1)
(from Ch. 38, par. 122-1)
Petition in the trial court.
(a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:
(1) in the proceedings which resulted in his or her
conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both;
(2) the death penalty was imposed and there is newly
discovered evidence not available to the person at the time of the proceeding that resulted in his or her conviction that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence; or
(3) by a preponderance of the evidence that each of
the following allegations in the petition establish:
(A) he or she was convicted of a forcible felony;
(B) his or her participation in the offense was a
direct result of the person's mental state either suffering from post-partum depression or post-partum psychosis;
(C) no evidence of post-partum depression or
post-partum psychosis was presented by a qualified medical person at trial or sentencing, or both;
(D) he or she was unaware of the mitigating
nature of the evidence or if aware was at the time unable to present this defense due to suffering from post-partum depression or post-partum psychosis or at the time of trial or sentencing neither was a recognized mental illness and as such unable to receive proper treatment; and
(E) evidence of post-partum depression or
post-partum psychosis as suffered by the person is material and noncumulative to other evidence offered at the time of trial or sentencing and it is of such a conclusive character that it would likely change the sentence imposed by the original court.
Nothing in this paragraph (3) prevents a person from
applying for any other relief under this Article or any other law otherwise available to him or her.
As used in this paragraph (3):
"Post-partum depression" means a mood disorder
which strikes many women during and after pregnancy which usually occurs during pregnancy and up to 12 months after delivery. This depression can include anxiety disorders.
"Post-partum psychosis" means an extreme form of
post-partum depression which can occur during pregnancy and up to 12 months after delivery. This can include losing touch with reality, distorted thinking, delusions, auditory and visual hallucinations, paranoia, hyperactivity and rapid speech, or mania.
(a-5) A proceeding under paragraph (2) of subsection (a)
may be commenced within a reasonable period of time after the person's
notwithstanding any other provisions of
this Article. In such a proceeding regarding
actual innocence, if the court determines the petition is
frivolous or is patently without merit, it shall dismiss the
petition in a written order, specifying the findings of fact
and conclusions of law it made in reaching its decision.
Such order of dismissal is a final judgment and shall be
served upon the petitioner by certified mail within 10 days
of its entry.
(b) The proceeding shall be commenced by filing with the clerk of the court
in which the conviction took place a petition (together with a copy thereof)
verified by affidavit. Petitioner shall also serve another copy upon the
State's Attorney by any of the methods provided in Rule 7 of the Supreme
Court. The clerk shall docket the petition for consideration by the court
pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same
promptly to the attention of the court.
(c) Except as otherwise provided in subsection (a-5), if
the petitioner is under sentence of death and a petition for writ of certiorari is filed,
no proceedings under this Article shall be commenced more than 6 months after
the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay
not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
When a defendant has a sentence other than death, no proceedings under this
Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner
alleges facts showing that the delay was not due to his or her culpable
If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3 years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
This limitation does not apply to a petition advancing a claim of actual
(d) A person seeking relief by filing a petition under this Section must
specify in the petition or its heading that it is filed under this Section.
A trial court that has received a petition complaining of a conviction or
sentence that fails to specify in the petition or its heading that it is
filed under this Section need not evaluate the petition to determine
whether it could otherwise have stated some grounds for relief under
(e) A proceeding under this Article may not be commenced on behalf of a
defendant who has been sentenced to death without the written consent of the
defendant, unless the defendant, because of a mental or physical condition, is
incapable of asserting his or her own claim.
(f) Except for petitions brought under paragraph (3) of subsection (a) of this Section, only one petition may be filed by a petitioner under this Article
without leave of the court.
Leave of court may be granted only if a petitioner demonstrates
cause for his or her failure to bring the claim in his or her initial
post-conviction proceedings and prejudice results from that failure. For
of this subsection (f): (1) a prisoner shows cause by identifying an objective
factor that impeded his or her ability to raise a specific claim during his or
her initial post-conviction proceedings; and (2) a prisoner shows prejudice by
demonstrating that the claim not raised during his or her initial
post-conviction proceedings so infected the trial that the resulting conviction
sentence violated due process.
(Source: P.A. 100-574, eff. 6-1-18