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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 | |||||||||||||||||||
9 | institute a proceeding under this Article if the person | |||||||||||||||||||
10 | asserts 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;
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15 | (2) the death penalty was imposed and there is
newly | |||||||||||||||||||
16 | discovered evidence not available to the person at
the | |||||||||||||||||||
17 | time of the proceeding that resulted in his or her
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18 | conviction that establishes a substantial basis to believe | |||||||||||||||||||
19 | that the defendant
is actually innocent by clear and | |||||||||||||||||||
20 | convincing evidence; or
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21 | (3) (blank). | |||||||||||||||||||
22 | (a-5) A proceeding under paragraph (2) of subsection (a)
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23 | may be commenced within a reasonable period of time after the |
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1 | person's
conviction
notwithstanding any other provisions of
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2 | this Article. In such a proceeding regarding
actual innocence, | ||||||
3 | if the court determines the petition is
frivolous or is | ||||||
4 | patently without merit, it shall dismiss the
petition in a | ||||||
5 | written order, specifying the findings of fact
and conclusions | ||||||
6 | of law it made in reaching its decision.
Such order of | ||||||
7 | dismissal is a final judgment and shall be
served upon the | ||||||
8 | petitioner by certified mail within 10 days
of its entry.
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9 | (b) The proceeding shall be commenced by filing with the | ||||||
10 | clerk of the court
in which the conviction took place a | ||||||
11 | petition (together with a copy thereof)
verified by affidavit. | ||||||
12 | Petitioner shall also serve another copy upon the
State's | ||||||
13 | Attorney by any of the methods provided in Rule 7 of the | ||||||
14 | Supreme
Court. The clerk shall docket the petition for | ||||||
15 | consideration by the court
pursuant to Section 122-2.1 upon | ||||||
16 | his or her receipt thereof and bring the same
promptly to the | ||||||
17 | attention of the court.
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18 | (c) Except as otherwise provided in subsection (a-5), if
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19 | the petitioner is under sentence of death and a petition for | ||||||
20 | writ of certiorari is filed,
no proceedings under this Article | ||||||
21 | shall be commenced more than 6 months after
the conclusion of | ||||||
22 | proceedings in the United States Supreme Court, unless the | ||||||
23 | petitioner alleges facts showing that the delay
was
not due to | ||||||
24 | his or her culpable negligence. If a petition for certiorari | ||||||
25 | is not filed, no proceedings under this Article shall be | ||||||
26 | commenced more than 6 months from the date for filing a |
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1 | certiorari petition, unless the petitioner alleges facts | ||||||
2 | showing that the delay was not due to his or her culpable | ||||||
3 | negligence.
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4 | When a defendant has a sentence other than death, no | ||||||
5 | proceedings under this
Article shall be commenced more than 6 | ||||||
6 | months after the conclusion of proceedings in the United | ||||||
7 | States Supreme Court, unless the petitioner
alleges facts | ||||||
8 | showing that the delay was not due to his or her culpable
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9 | negligence.
If a petition for certiorari is not filed, no | ||||||
10 | proceedings under this Article shall be commenced more than 6 | ||||||
11 | months from the date for filing a certiorari petition, unless | ||||||
12 | the petitioner alleges facts showing that the delay was not | ||||||
13 | due to his or her culpable negligence. If a defendant does not | ||||||
14 | file a direct appeal, the post-conviction petition shall be | ||||||
15 | filed no later than 3 years from the date of conviction, unless | ||||||
16 | the petitioner alleges facts showing that the delay was not | ||||||
17 | due to his or her culpable negligence.
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18 | This limitation does not apply to a petition advancing a | ||||||
19 | claim of actual
innocence. | ||||||
20 | (d) A person seeking relief by filing a petition under | ||||||
21 | this Section must
specify in the petition or its heading that | ||||||
22 | it is filed under this Section.
A trial court that has received | ||||||
23 | a petition complaining of a conviction or
sentence that fails | ||||||
24 | to specify in the petition or its heading that it is
filed | ||||||
25 | under this Section need not evaluate the petition to determine
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26 | whether it could otherwise have stated some grounds for relief |
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1 | under
this Article.
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2 | (e) A proceeding under this Article may not be commenced | ||||||
3 | on behalf of a
defendant who has been sentenced to death | ||||||
4 | without the written consent of the
defendant, unless the | ||||||
5 | defendant, because of a mental or physical condition, is
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6 | incapable of asserting his or her own claim.
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7 | (f) Only one petition may be filed by a petitioner under | ||||||
8 | this Article
without leave of the court.
Leave of court may be | ||||||
9 | granted only if a petitioner demonstrates
cause for his or her | ||||||
10 | failure to bring the claim in his or her initial
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11 | post-conviction proceedings and prejudice results from that | ||||||
12 | failure. For
purposes
of this subsection (f): (1) a prisoner | ||||||
13 | shows cause by identifying an objective
factor that impeded | ||||||
14 | his or her ability to raise a specific claim during his or
her | ||||||
15 | initial post-conviction proceedings; and (2) a prisoner shows | ||||||
16 | prejudice by
demonstrating that the claim not raised during | ||||||
17 | his or her initial
post-conviction proceedings so infected the | ||||||
18 | trial that the resulting conviction
or
sentence violated due | ||||||
19 | process.
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20 | (g) Clause (1) of subsection (f) shall bar a claim under | ||||||
21 | Section 11 of Article I of the Illinois Constitution brought | ||||||
22 | in a successive post-conviction petition by any person who was | ||||||
23 | convicted of a felony offense committed when that person was | ||||||
24 | under 18 years of age. | ||||||
25 | (Source: P.A. 101-411, eff. 8-16-19; 102-639, eff. 8-27-21.)
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