2005 Illinois 725 ILCS 5/      Code of Criminal Procedure of 1963. Article 122 - Post-Conviction Hearing


      (725 ILCS 5/Art. 122 heading)
ARTICLE 122. POST‑CONVICTION HEARING

    (725 ILCS 5/122‑1) (from Ch. 38, par. 122‑1)
    Sec. 122‑1. Petition in the trial court.
    (a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:
        (1) in the proceedings which resulted in his or her
    
conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both; or
        (2) the death penalty was imposed and there is newly
    
discovered evidence not available to the person at the time of the proceeding that resulted in his or her conviction that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence.
    (a‑5) A proceeding under paragraph (2) of subsection (a) may be commenced within a reasonable period of time after the person's conviction notwithstanding any other provisions of this Article. In such a proceeding regarding actual innocence, if the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.
    (b) The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit. Petitioner shall also serve another copy upon the State's Attorney by any of the methods provided in Rule 7 of the Supreme Court. The clerk shall docket the petition for consideration by the court pursuant to Section 122‑2.1 upon his or her receipt thereof and bring the same promptly to the attention of the court.
    (c) Except as otherwise provided in subsection (a‑5), if the petitioner is under sentence of death and a petition for writ of certiorari is filed, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
    When a defendant has a sentence other than death, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a defendant does not file a direct appeal, the post‑conviction petition shall be filed no later than 3 years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
    This limitation does not apply to a petition advancing a claim of actual innocence.
    (d) A person seeking relief by filing a petition under this Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.
    (e) A proceeding under this Article may not be commenced on behalf of a defendant who has been sentenced to death without the written consent of the defendant, unless the defendant, because of a mental or physical condition, is incapable of asserting his or her own claim.
    (f) Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post‑conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post‑conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post‑conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.
(Source: P.A. 93‑493, eff. 1‑1‑04; 93‑605, eff. 11‑19‑03; 93‑972, eff. 8‑20‑04.)

    (725 ILCS 5/122‑2) (from Ch. 38, par. 122‑2)
    Sec. 122‑2. Contents of petition.
    The petition shall identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which petitioner's constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his conviction. Argument and citations and discussion of authorities shall be omitted from the petition.
(Source: Laws 1963, p. 2836.)

    (725 ILCS 5/122‑2.1) (from Ch. 38, par. 122‑2.1)
    Sec. 122‑2.1. (a) Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.
        (1) If the petitioner is under sentence of death and
    
is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.
        (2) If the petitioner is sentenced to imprisonment
    
and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.
    (b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122‑4 through 122‑6. If the petitioner is under sentence of death, the court shall order the petition to be docketed for further consideration and hearing within one year of the filing of the petition. Continuances may be granted as the court deems appropriate.
    (c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.
(Source: P.A. 93‑605, eff. 11‑19‑03.)

    (725 ILCS 5/122‑2.2)
    Sec. 122‑2.2. Mental retardation and post‑conviction relief.
    (a) In cases where no determination of mental retardation was made and a defendant has been convicted of first‑degree murder, sentenced to death, and is in custody pending execution of the sentence of death, the following procedures shall apply:
        (1) Notwithstanding any other provision of law or
    
rule of court, a defendant may seek relief from the death sentence through a petition for post‑conviction relief under this Article alleging that the defendant was mentally retarded as defined in Section 114‑15 at the time the offense was alleged to have been committed.
        (2) The petition must be filed within 180 days of the
    
effective date of this amendatory Act of the 93rd General Assembly or within 180 days of the issuance of the mandate by the Illinois Supreme Court setting the date of execution, whichever is later.
    (3) All other provisions of this Article governing petitions for post‑conviction relief shall apply to a petition for post‑conviction relief alleging mental retardation.
(Source: P.A. 93‑605, eff. 11‑19‑03.)

    (725 ILCS 5/122‑3) (from Ch. 38, par. 122‑3)
    Sec. 122‑3. Waiver of claims.
    Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.
(Source: Laws 1963, p. 2836.)

    (725 ILCS 5/122‑4) (from Ch. 38, par. 122‑4)
    Sec. 122‑4. Pauper Petitions. If the petition is not dismissed pursuant to Section 122‑2.1, and alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Rule of the Supreme Court. If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, and the petition is not dismissed pursuant to Section 122‑2.1, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel. A petitioner who is a prisoner in an Illinois Department of Corrections facility who files a pleading, motion, or other filing that purports to be a legal document seeking post‑conviction relief under this Article against the State, the Illinois Department of Corrections, the Prisoner Review Board, or any of their officers or employees in which the court makes a specific finding that the pleading, motion, or other filing that purports to be a legal document is frivolous shall not proceed as a poor person and shall be liable for the full payment of filing fees and actual court costs as provided in Article XXII of the Code of Civil Procedure.
    A Circuit Court or the Illinois Supreme Court may appoint the State Appellate Defender to provide post‑conviction representation in a case in which the defendant is sentenced to death. Any attorney assigned by the Office of the State Appellate Defender to provide post‑conviction representation for indigent defendants in cases in which a sentence of death was imposed in the trial court may, from time to time submit bills and time sheets to the Office of the State Appellate Defender for payment of services rendered and the Office of the State Appellate Defender shall pay bills from funds appropriated for this purpose in accordance with rules promulgated by the State Appellate Defender.
    The court, at the conclusion of the proceedings upon receipt of a petition by the appointed counsel, shall determine a reasonable amount to be allowed an indigent defendant's counsel other than the Public Defender or the State Appellate Defender for compensation and reimbursement of expenditures necessarily incurred in the proceedings. The compensation shall not exceed $500 in each case, except that, in extraordinary circumstances, payment in excess of the limits herein stated may be made if the trial court certifies that the payment is necessary to provide fair compensation for protracted representation, and the amount is approved by the chief judge of the circuit. The court shall enter an order directing the county treasurer of the county where the case was tried to pay the amount thereby allowed by the court. The court may order the provisional payment of sums during the pendency of the cause.
(Source: P.A. 90‑505, eff. 8‑19‑97.)

    (725 ILCS 5/122‑5) (from Ch. 38, par. 122‑5)
    Sec. 122‑5. Proceedings on petition.) Within 30 days after the making of an order pursuant to subsection (b) of Section 122‑2.1, or within such further time as the court may set, the State shall answer or move to dismiss. In the event that a motion to dismiss is filed and denied, the State must file an answer within 20 days after such denial. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party. The court may in its discretion grant leave, at any stage of the proceeding prior to entry of judgment, to withdraw the petition. The court may in its discretion make such order as to amendment of the petition or any other pleading, or as to pleading over, or filing further pleadings, or extending the time of filing any pleading other than the original petition, as shall be appropriate, just and reasonable and as is generally provided in civil cases.
(Source: P.A. 83‑942.)

    (725 ILCS 5/122‑6) (from Ch. 38, par. 122‑6)
    Sec. 122‑6. Disposition in trial court.
    The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.
(Source: Laws 1963, p. 2836.)

    (725 ILCS 5/122‑7) (from Ch. 38, par. 122‑7)
    Sec. 122‑7. Any final judgment entered upon such petition shall be reviewed in a manner pursuant to the rules of the Supreme Court.
(Source: P.A. 79‑917.)

    (725 ILCS 5/122‑8) (from Ch. 38, par. 122‑8)
    Sec. 122‑8. Different Judge to Consider. All proceedings under this Article shall be conducted and all petitions shall be considered by a judge who was not involved in the original proceeding which resulted in conviction.
(Source: P.A. 83‑942.)

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