HB1291 95TH GENERAL ASSEMBLY

LRB095 10444 RLC 30659 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB1291

Introduced 2/20/2007, by Rep. Arthur L. Turner

SYNOPSIS AS INTRODUCED:

725 ILCS 5/122-1

from Ch. 38, par. 122-1

Amends the Code of Criminal Procedure of 1963. Provides that if a defendant does not file a direct appeal, a post-conviction petition shall be filed no later than 10 years from the date of sentencing (rather than 3 years from the date of conviction). Provides that if the defendant files a direct appeal, the petition may be filed no later than 10 years after sentencing or 6 months after conclusion of proceedings in the United States Supreme Court or 6 months after the period for filing a certiorari petition if a petition for certiorari is not filed, whichever expires later. Provides that these provisions shall be applied retroactively to petitions for post-conviction relief that were dismissed as untimely before the effective date of the amendatory Act but would have been timely if filed on or after that time. Provides that such a petitioner has 2 years after the effective date of the amendatory Act to file his or her post-conviction petition.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is amended by changing Section 122-1 as follows:

(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)

Sec. 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; or

(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.

(a-5) A proceeding under paragraph (2) of subsection (a) may be commenced within a reasonable period of time after the person's conviction 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 10 years from the date of sentencing or 6 months after the conclusion of proceedings in the United States Supreme Court, whichever expires later, unless the petitioner alleges facts showing that the delay was 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 10 years from the date of sentencing or 6 months from the date for filing a certiorari petition, whichever expires later, 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 10 years from the date of sentencing or 6 months after the conclusion of proceedings in the United States Supreme Court, whichever expires later, unless the petitioner alleges facts showing that the delay was 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 10 years from the date of sentencing or 6 months from the date for filing a certiorari petition, whichever expires later, 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 10 years from the date of sentencing 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 innocence.

(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 this Article.

(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) 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 purposes 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 or sentence violated due process.

(g) A petitioner under this Article whose petition was dismissed as untimely before the effective date of this amendatory Act of the 95th General Assembly but whose petition would have been timely if filed on or after the effective date of this amendatory Act of the 95th General Assembly may file his or her petition within 2 years after the effective date of this amendatory Act of the 95th General Assembly.

(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; 93-972, eff. 8-20-04.)