Rep. Scott Drury
Filed: 3/22/2013
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1 | AMENDMENT TO HOUSE BILL 2961
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2 | AMENDMENT NO. ______. Amend House Bill 2961 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Code of Criminal Procedure of 1963 is | ||||||
5 | amended by changing Sections 122-1 and 122-2.1 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 convicted or adjudicated delinquent of an | ||||||
9 | offense for which either a sentence of imprisonment was imposed | ||||||
10 | or another form of detention resulted imprisoned in the | ||||||
11 | penitentiary may institute a proceeding under this Article if | ||||||
12 | the person asserts that: | ||||||
13 | (1) in the
proceedings which resulted in his or her | ||||||
14 | conviction or delinquency adjudication there was a | ||||||
15 | substantial
denial of his or her rights under the | ||||||
16 | Constitution of the United States or
of the State of |
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1 | Illinois or both; or
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2 | (2) the death penalty was imposed and there is
newly | ||||||
3 | discovered evidence not available to the person at
the time | ||||||
4 | of the proceeding that resulted in his or her
conviction | ||||||
5 | that establishes a substantial basis to believe that the | ||||||
6 | defendant
is actually innocent by clear and convincing | ||||||
7 | evidence.
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8 | (a-5) A proceeding under paragraph (2) of subsection (a)
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9 | may be commenced within a reasonable period of time after the | ||||||
10 | person's
conviction
or delinquency adjudication | ||||||
11 | notwithstanding any other provisions of
this Article. In such a | ||||||
12 | proceeding regarding
actual innocence, if the court determines | ||||||
13 | the petition is
frivolous or is patently without merit, it | ||||||
14 | shall dismiss the
petition in a written order, specifying the | ||||||
15 | findings of fact
and conclusions of law it made in reaching its | ||||||
16 | decision.
Such order of dismissal is a final judgment and shall | ||||||
17 | be
served upon the petitioner by certified mail within 10 days
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18 | of its entry.
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19 | (b) The proceeding shall be commenced by filing with the | ||||||
20 | clerk of the court
in which the conviction or delinquency | ||||||
21 | adjudication took place a petition (together with a copy | ||||||
22 | thereof)
verified by affidavit. Petitioner shall also serve | ||||||
23 | another copy upon the
State's Attorney by any of the methods | ||||||
24 | provided in Rule 7 of the Supreme
Court. The clerk shall docket | ||||||
25 | the petition for consideration by the court
pursuant to Section | ||||||
26 | 122-2.1 upon his or her receipt thereof and bring the same
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1 | promptly to the attention of the court.
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2 | (c) Except as otherwise provided in subsection (a-5), if
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3 | the petitioner is under sentence of death and a petition for | ||||||
4 | writ of certiorari is filed,
no proceedings under this Article | ||||||
5 | shall be commenced more than 6 months after
the conclusion of | ||||||
6 | proceedings in the United States Supreme Court, unless the | ||||||
7 | petitioner alleges facts showing that the delay
was
not due to | ||||||
8 | his or her culpable negligence. If a petition for certiorari is | ||||||
9 | not filed, no proceedings under this Article shall be commenced | ||||||
10 | more than 6 months from the date for filing a certiorari | ||||||
11 | petition, unless the petitioner alleges facts showing that the | ||||||
12 | delay was not due to his or her culpable negligence.
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13 | Except as otherwise provided in subsection (a-5) When a | ||||||
14 | defendant has a sentence other than death , no proceedings under | ||||||
15 | this
Article shall be commenced more than 6 months after the | ||||||
16 | conclusion of proceedings in the United States Supreme Court, | ||||||
17 | unless the petitioner
alleges facts showing that the delay was | ||||||
18 | not due to his or her culpable
negligence.
If a petition for | ||||||
19 | certiorari is not filed, no proceedings under this Article | ||||||
20 | shall be commenced more than 6 months from the date for filing | ||||||
21 | a certiorari petition, unless the petitioner alleges facts | ||||||
22 | showing that the delay was not due to his or her culpable | ||||||
23 | negligence. If a defendant does not file a direct appeal, the | ||||||
24 | post-conviction petition shall be filed no later than 3 years | ||||||
25 | from the date of conviction or delinquency adjudication , unless | ||||||
26 | the petitioner alleges facts showing that the delay was not due |
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1 | to his or her culpable negligence.
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2 | This limitation does not apply to a petition advancing a | ||||||
3 | claim of actual
innocence. | ||||||
4 | (d) A person seeking relief by filing a petition under this | ||||||
5 | Section must
specify in the petition or its heading that it is | ||||||
6 | filed under this Section.
A trial court that has received a | ||||||
7 | petition complaining of a conviction , delinquency | ||||||
8 | adjudication, or
sentence that fails to specify in the petition | ||||||
9 | or its heading that it is
filed under this Section need not | ||||||
10 | evaluate the petition to determine
whether it could otherwise | ||||||
11 | have stated some grounds for relief under
this Article.
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12 | (e) A proceeding under this Article may not be commenced on | ||||||
13 | behalf of a
defendant who has been sentenced to death without | ||||||
14 | the written consent of the
defendant, unless the defendant, | ||||||
15 | because of a mental or physical condition, is
incapable of | ||||||
16 | asserting his or her own claim.
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17 | (f) Only one petition may be filed by a petitioner under | ||||||
18 | this Article
without leave of the court.
Leave of court may be | ||||||
19 | granted only if a petitioner demonstrates : | ||||||
20 | (1)
cause for his or her failure to bring the claim in | ||||||
21 | his or her initial
post-conviction proceedings and | ||||||
22 | prejudice results from that failure ; or | ||||||
23 | (2) that there has been a fundamental miscarriage of | ||||||
24 | justice . | ||||||
25 | For
purposes
of this subsection (f): | ||||||
26 | (A) (1) a petitioner prisoner shows cause by |
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1 | identifying an objective
factor that impeded his or her | ||||||
2 | ability to raise a specific claim during his or
her initial | ||||||
3 | post-conviction proceedings; and | ||||||
4 | (B) (2) a petitioner prisoner shows prejudice by
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5 | demonstrating that the claim not raised during his or her | ||||||
6 | initial
post-conviction proceedings so infected the trial | ||||||
7 | that the resulting conviction
or
sentence violated due | ||||||
8 | process ; and . | ||||||
9 | (C) a petitioner demonstrates a miscarriage of justice | ||||||
10 | by showing there is newly discovered evidence that | ||||||
11 | establishes that it is more likely than not that the | ||||||
12 | petitioner is actually innocent by clear and convincing | ||||||
13 | evidence. | ||||||
14 |
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15 | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | ||||||
16 | 93-972, eff. 8-20-04.)
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17 | (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
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18 | Sec. 122-2.1. (a) Within 90 days after the filing and | ||||||
19 | docketing of each
petition, the court shall examine the such | ||||||
20 | petition and enter an order thereon
under pursuant to this | ||||||
21 | Section.
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22 | (1) If the petitioner is under sentence of death and is | ||||||
23 | without
counsel and alleges that he is without means to | ||||||
24 | procure counsel, he shall
state whether or not he wishes | ||||||
25 | counsel to be appointed to represent him.
If appointment of |
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1 | counsel is so requested, the court shall appoint counsel
if | ||||||
2 | satisfied that the petitioner has no means to procure | ||||||
3 | counsel.
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4 | (2) If the petitioner is sentenced to imprisonment and | ||||||
5 | the court
determines the petition is frivolous or is | ||||||
6 | patently without merit, it shall
dismiss the petition in a | ||||||
7 | written order, specifying the findings of fact and
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8 | conclusions of law it made in reaching its decision. This | ||||||
9 | Such order of
dismissal is a final judgment and shall be | ||||||
10 | served upon the petitioner by
certified mail within 10 days | ||||||
11 | of its entry.
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12 | (b) If the petition is not dismissed under pursuant to this | ||||||
13 | Section, the court
shall order the petition to be docketed for | ||||||
14 | further consideration in accordance
with Sections 122-4 | ||||||
15 | through 122-6.
If the petitioner is under sentence of death, | ||||||
16 | the court shall order the
petition to be docketed for further | ||||||
17 | consideration and hearing within one year
of the filing of the | ||||||
18 | petition. Continuances may be granted as the court deems
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19 | appropriate.
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20 | (c) In considering a petition under pursuant to this | ||||||
21 | Section, the court may
examine the court file of the proceeding | ||||||
22 | in which the petitioner was convicted,
any action taken by an | ||||||
23 | appellate court in that such proceeding and any transcripts
of | ||||||
24 | that such proceeding.
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25 | (Source: P.A. 93-605, eff. 11-19-03.)".
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