Full Text of HB3452 95th General Assembly
HB3452 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB3452
Introduced 2/28/2007, by Rep. Franco Coladipietro SYNOPSIS AS INTRODUCED: |
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725 ILCS 5/122-1 |
from Ch. 38, par. 122-1 |
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Amends the Code of Criminal Procedure of 1963. Provides that a prisoner seeking to file a second or subsequent post-conviction petition must seek leave of the court by filing a motion when he or she sends his or her proposed petition. Provides that the circuit court must review the motion within 30 days of its receipt by the circuit court clerk. Provides that if the court grants the motion for leave to file the petition, the circuit court clerk shall docket it, and the petition shall proceed as provided in the Post-Conviction Hearing Article of the Code. Provides that if the court denies the motion, the circuit court clerk shall notify the petitioner by certified mail within 10 days of the entry of the order.
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A BILL FOR
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HB3452 |
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LRB095 08532 RLC 28713 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Code of Criminal Procedure of 1963 is | 5 |
| amended by changing Section 122-1 as follows:
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| (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
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| Sec. 122-1. Petition in the trial court.
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| (a) Any person imprisoned in the penitentiary may institute | 9 |
| a proceeding under this Article if the person asserts that: | 10 |
| (1) in the
proceedings which resulted in his or her | 11 |
| conviction there was a substantial
denial of his or her | 12 |
| rights under the Constitution of the United States or
of | 13 |
| the State of Illinois or both; or
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| (2) the death penalty was imposed and there is
newly | 15 |
| discovered evidence not available to the person at
the time | 16 |
| of the proceeding that resulted in his or her
conviction | 17 |
| that establishes a substantial basis to believe that the | 18 |
| defendant
is actually innocent by clear and convincing | 19 |
| evidence.
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| (a-5) A proceeding under paragraph (2) of subsection (a)
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| may be commenced within a reasonable period of time after the | 22 |
| person's
conviction
notwithstanding any other provisions of
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| this Article. In such a proceeding regarding
actual innocence, |
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HB3452 |
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LRB095 08532 RLC 28713 b |
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| if the court determines the petition is
frivolous or is | 2 |
| patently without merit, it shall dismiss the
petition in a | 3 |
| written order, specifying the findings of fact
and conclusions | 4 |
| of law it made in reaching its decision.
Such order of | 5 |
| dismissal is a final judgment and shall be
served upon the | 6 |
| petitioner by certified mail within 10 days
of its entry.
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| (b) The proceeding shall be commenced by filing with the | 8 |
| clerk of the court
in which the conviction took place a | 9 |
| petition (together with a copy thereof)
verified by affidavit. | 10 |
| Petitioner shall also serve another copy upon the
State's | 11 |
| Attorney by any of the methods provided in Rule 7 of the | 12 |
| Supreme
Court. The clerk shall docket the petition for | 13 |
| consideration by the court
pursuant to Section 122-2.1 upon his | 14 |
| or her receipt thereof and bring the same
promptly to the | 15 |
| attention of the court.
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| (c) Except as otherwise provided in subsection (a-5), if
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| the petitioner is under sentence of death and a petition for | 18 |
| writ of certiorari is filed,
no proceedings under this Article | 19 |
| shall be commenced more than 6 months after
the conclusion of | 20 |
| proceedings in the United States Supreme Court, unless the | 21 |
| petitioner alleges facts showing that the delay
was
not due to | 22 |
| his or her culpable negligence. If a petition for certiorari is | 23 |
| not filed, no proceedings under this Article shall be commenced | 24 |
| more than 6 months from the date for filing a certiorari | 25 |
| petition, unless the petitioner alleges facts showing that the | 26 |
| delay was not due to his or her culpable negligence.
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HB3452 |
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LRB095 08532 RLC 28713 b |
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| When a defendant has a sentence other than death, no | 2 |
| proceedings under this
Article shall be commenced more than 6 | 3 |
| months after the conclusion of proceedings in the United States | 4 |
| Supreme Court, unless the petitioner
alleges facts showing that | 5 |
| the delay was not due to his or her culpable
negligence.
If a | 6 |
| petition for certiorari is not filed, no proceedings under this | 7 |
| Article shall be commenced more than 6 months from the date for | 8 |
| filing a certiorari petition, unless the petitioner alleges | 9 |
| facts showing that the delay was not due to his or her culpable | 10 |
| negligence. If a defendant does not file a direct appeal, the | 11 |
| post-conviction petition shall be filed no later than 3 years | 12 |
| from the date of conviction, unless the petitioner alleges | 13 |
| facts showing that the delay was not due to his or her culpable | 14 |
| negligence.
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| This limitation does not apply to a petition advancing a | 16 |
| claim of actual
innocence. | 17 |
| (d) A person seeking relief by filing a petition under this | 18 |
| Section must
specify in the petition or its heading that it is | 19 |
| filed under this Section.
A trial court that has received a | 20 |
| petition complaining of a conviction or
sentence that fails to | 21 |
| specify in the petition or its heading that it is
filed under | 22 |
| this Section need not evaluate the petition to determine
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| whether it could otherwise have stated some grounds for relief | 24 |
| under
this Article.
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| (e) A proceeding under this Article may not be commenced on | 26 |
| behalf of a
defendant who has been sentenced to death without |
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HB3452 |
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LRB095 08532 RLC 28713 b |
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| the written consent of the
defendant, unless the defendant, | 2 |
| because of a mental or physical condition, is
incapable of | 3 |
| asserting his or her own claim.
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| (f) Only one petition may be filed by a petitioner under | 5 |
| this Article
without leave of the court.
A petitioner must seek | 6 |
| leave of the court by filing a motion when he or she sends his | 7 |
| or her proposed subsequent petition. The circuit court must | 8 |
| review the motion within 30 days of its receipt by the Circuit | 9 |
| Court Clerk. If the court grants the motion for leave to file | 10 |
| the petition, the Circuit Court Clerk shall docket it, and the | 11 |
| petition shall proceed under Section 122-2.1 of this Article. | 12 |
| If the court denies the motion, the Circuit Court Clerk shall | 13 |
| notify the petitioner by certified mail within 10 days of the | 14 |
| entry of the order. Leave of court may be granted only if a | 15 |
| petitioner demonstrates
cause for his or her failure to bring | 16 |
| the claim in his or her initial
post-conviction proceedings and | 17 |
| prejudice results from that failure. For
purposes
of this | 18 |
| subsection (f): (1) a prisoner shows cause by identifying an | 19 |
| objective
factor that impeded his or her ability to raise a | 20 |
| specific claim during his or
her initial post-conviction | 21 |
| proceedings; and (2) a prisoner shows prejudice by
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| demonstrating that the claim not raised during his or her | 23 |
| initial
post-conviction proceedings so infected the trial that | 24 |
| the resulting conviction
or
sentence violated due process.
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| (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | 26 |
| 93-972, eff. 8-20-04.)
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