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