Illinois General Assembly - Full Text of HB2961
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Full Text of HB2961  98th General Assembly

HB2961eng 98TH GENERAL ASSEMBLY

  
  
  

 


 
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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Sections 122-1 and 122-2.1 as follows:
 
6    (725 ILCS 5/122-1)  (from Ch. 38, par. 122-1)
7    Sec. 122-1. Petition in the trial court.
8    (a) Any person convicted or adjudicated delinquent of an
9offense for which either a sentence of imprisonment was imposed
10or another form of detention resulted imprisoned in the
11penitentiary may institute a proceeding under this Article if
12the 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
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)
2may be commenced within a reasonable period of time after the
3person's conviction or delinquency adjudication
4notwithstanding any other provisions of this Article. In such a
5proceeding regarding actual innocence, if the court determines
6the petition is frivolous or is patently without merit, it
7shall dismiss the petition in a written order, specifying the
8findings of fact and conclusions of law it made in reaching its
9decision. Such order of dismissal is a final judgment and shall
10be served upon the petitioner by certified mail within 10 days
11of its entry.
12    (b) The proceeding shall be commenced by filing with the
13clerk of the court in which the conviction or delinquency
14adjudication took place a petition (together with a copy
15thereof) verified by affidavit. Petitioner shall also serve
16another copy upon the State's Attorney by any of the methods
17provided in Rule 7 of the Supreme Court. The clerk shall docket
18the petition for consideration by the court pursuant to Section
19122-2.1 upon his or her receipt thereof and bring the same
20promptly to the attention of the court.
21    (c) Except as otherwise provided in subsection (a-5), if
22the petitioner is under sentence of death and a petition for
23writ of certiorari is filed, no proceedings under this Article
24shall be commenced more than 6 months after the conclusion of
25proceedings in the United States Supreme Court, unless the
26petitioner alleges facts showing that the delay was not due to

 

 

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1his or her culpable negligence. If a petition for certiorari is
2not filed, no proceedings under this Article shall be commenced
3more than 6 months from the date for filing a certiorari
4petition, unless the petitioner alleges facts showing that the
5delay was not due to his or her culpable negligence.
6    Except as otherwise provided in subsection (a-5) When a
7defendant has a sentence other than death, no proceedings under
8this Article shall be commenced more than 6 months after the
9conclusion of proceedings in the United States Supreme Court,
10unless the petitioner alleges facts showing that the delay was
11not due to his or her culpable negligence. If a petition for
12certiorari is not filed, no proceedings under this Article
13shall be commenced more than 6 months from the date for filing
14a certiorari petition, unless the petitioner alleges facts
15showing that the delay was not due to his or her culpable
16negligence. If a defendant does not file a direct appeal, the
17post-conviction petition shall be filed no later than 3 years
18from the date of conviction or delinquency adjudication, unless
19the petitioner alleges facts showing that the delay was not due
20to his or her culpable negligence.
21    This limitation does not apply to a petition advancing a
22claim of actual innocence.
23    (d) A person seeking relief by filing a petition under this
24Section must specify in the petition or its heading that it is
25filed under this Section. A trial court that has received a
26petition complaining of a conviction, delinquency

 

 

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1adjudication, or sentence that fails to specify in the petition
2or its heading that it is filed under this Section need not
3evaluate the petition to determine whether it could otherwise
4have stated some grounds for relief under this Article.
5    (e) A proceeding under this Article may not be commenced on
6behalf of a defendant who has been sentenced to death without
7the written consent of the defendant, unless the defendant,
8because of a mental or physical condition, is incapable of
9asserting his or her own claim.
10    (f) Only one petition may be filed by a petitioner under
11this Article without leave of the court. The determination as
12to whether to grant leave of court shall be made prior to or
13contemporaneously with any order made under paragraph (2) of
14subsection (a) or subsection (b) of Section 122-2.1 without
15pleadings from the State. Leave of court may be granted only if
16a 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
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.
13(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03;
1493-972, eff. 8-20-04.)
 
15    (725 ILCS 5/122-2.1)  (from Ch. 38, par. 122-2.1)
16    Sec. 122-2.1. (a) Within 90 days after the filing and
17docketing of each petition, the court shall examine the such
18petition and enter an order thereon under pursuant to this
19Section.
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.
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
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.
10    (b) If the petition is not dismissed under pursuant to this
11Section, the court shall order the petition to be docketed for
12further consideration in accordance with Sections 122-4
13through 122-6. If the petitioner is under sentence of death,
14the court shall order the petition to be docketed for further
15consideration and hearing within one year of the filing of the
16petition. Continuances may be granted as the court deems
17appropriate.
18    (c) In considering a petition under pursuant to this
19Section, the court may examine the court file of the proceeding
20in which the petitioner was convicted, any action taken by an
21appellate court in that such proceeding and any transcripts of
22that such proceeding.
23(Source: P.A. 93-605, eff. 11-19-03.)