|
(B) his or her participation in the offense was a |
direct result of the
person's mental state either |
suffering from post-partum depression or
post-partum |
psychosis; |
(C) no evidence of post-partum depression or |
post-partum psychosis
was presented by a qualified |
medical person at trial or sentencing, or both; |
(D) he or she was unaware of the mitigating nature |
of the evidence
or if aware was at the time unable to |
present this defense due to suffering
from post-partum |
depression or post-partum psychosis or at the time of
|
trial or sentencing neither was a recognized mental |
illness and as such unable to receive
proper treatment; |
and |
(E) evidence of post-partum depression or |
post-partum psychosis as
suffered by the person is |
material and noncumulative to other evidence offered
|
at the time of trial or sentencing and it is of such a |
conclusive character
that it would likely change the |
sentence imposed by the original court. |
Nothing in this paragraph (3) prevents a person from |
applying for
any other relief under this Article or any |
other law otherwise available to him or her. |
As used in this paragraph (3): |
"Post-partum depression"
means a mood disorder |
which strikes many
women during and after pregnancy |
|
which usually occurs during
pregnancy and up to 12 |
months after delivery. This depression
can include |
anxiety disorders. |
"Post-partum psychosis" means an extreme form of |
post-partum
depression which can occur during |
pregnancy and up to 12
months after delivery. This can |
include losing touch with
reality, distorted thinking, |
delusions, auditory and visual
hallucinations, |
paranoia, hyperactivity and rapid speech, or mania. |
(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 Except for petitions brought under paragraph (3) |
of subsection (a) of this Section, 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. 100-574, eff. 6-1-18.)
|
Section 10. The Code of Civil Procedure is amended by |
changing Section 2-1401 as follows:
|
(735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
|
Sec. 2-1401. Relief from judgments.
|
(a) Relief from final orders and judgments, after 30 days |
from the
entry thereof, may be had upon petition as provided in |
this Section.
Writs of error coram nobis and coram vobis, bills |
of review and bills
in the nature of bills of review are |
abolished. All relief heretofore
obtainable and the grounds for |
such relief heretofore available,
whether by any of the |
foregoing remedies or otherwise, shall be
available in every |
case, by proceedings hereunder, regardless of the
nature of the |
order or judgment from which relief is sought or of the
|
proceedings in which it was entered. Except as provided in the |
Illinois Parentage Act of 2015, there shall be no distinction
|
between actions and other proceedings, statutory or otherwise, |
as to
availability of relief, grounds for relief or the relief |
obtainable.
|
(b) The petition must be filed in the same proceeding in |
|
which the
order or judgment was entered but is not a |
continuation thereof. The
petition must be supported by |
affidavit or other appropriate showing as
to matters not of |
record. A petition to reopen a foreclosure proceeding must |
include as parties to the petition, but is not limited to, all |
parties in the original action in addition to the current |
record title holders of the property, current occupants, and |
any individual or entity that had a recorded interest in the |
property before the filing of the petition. All parties to the |
petition shall be notified
as provided by rule.
|
(b-5) A movant may present a meritorious claim under this |
Section if the allegations in the petition establish each of |
the following by a preponderance of the evidence: |
(1) the movant was convicted of a forcible felony; |
(2) the movant's participation in the offense was |
related to him or her previously having been a victim of |
domestic violence as perpetrated by an intimate partner; |
(3) no evidence of domestic violence against the movant |
was presented at the movant's sentencing hearing; |
(4) the movant was unaware of the mitigating nature of |
the evidence of the domestic violence at the time of |
sentencing and could not have learned of its significance |
sooner through diligence; and |
(5) the new evidence of domestic violence against the |
movant is material and noncumulative to other evidence |
offered at the sentencing hearing, and is of such a |
|
conclusive character that it would likely change the |
sentence imposed by the original trial court. |
Nothing in this subsection (b-5) shall prevent a movant |
from applying for any other relief under this Section or any |
other law otherwise available to him or her. |
As used in this subsection (b-5): |
"Domestic violence" means abuse as defined in Section |
103
of the Illinois Domestic Violence Act of 1986. |
"Forcible felony" has the meaning ascribed to the term |
in
Section 2-8 of the Criminal Code of 2012. |
"Intimate partner" means a spouse or former spouse, |
persons
who have or allegedly have had a child in common, |
or persons who
have or have had a dating or engagement |
relationship. |
(b-10) A movant may present a meritorious claim under this |
Section if the allegations in the petition establish each of |
the following by a preponderance of the evidence: |
(A) she was convicted of a forcible felony; |
(B) her participation in the offense was a direct |
result of her suffering from post-partum depression or |
post-partum psychosis; |
(C) no evidence of post-partum depression or |
post-partum psychosis was presented by a qualified medical |
person at trial or sentencing, or both; |
(D) she was unaware of the mitigating nature of the |
evidence or, if aware, was at the time unable to present |
|
this defense due to suffering from post-partum depression |
or post-partum psychosis, or, at the time of trial or |
sentencing, neither was a recognized mental illness and as |
such, she was unable to receive proper treatment;
and |
(E) evidence of post-partum depression or post-partum |
psychosis as suffered by the person is material and |
noncumulative to other evidence offered at the time of |
trial or sentencing, and it is of such a conclusive |
character that it would likely change the sentence imposed |
by the original court. |
Nothing in this subsection (b-10) prevents a person from |
applying for any other relief under this Article or any other |
law otherwise available to her. |
As used in this subsection (b-10): |
"Post-partum depression" means a mood disorder which |
strikes many women during and after pregnancy and usually |
occurs during pregnancy and up to 12 months after delivery. |
This depression can include anxiety disorders. |
"Post-partum psychosis" means an extreme form of |
post-partum depression which can occur during pregnancy |
and up to 12 months after delivery. This can include losing |
touch with reality, distorted thinking, delusions, |
auditory and visual hallucinations, paranoia, |
hyperactivity and rapid speech, or mania. |
(c) Except as provided in Section 20b of the Adoption Act |
and Section
2-32 of the Juvenile Court Act of 1987 or in a |
|
petition based
upon Section 116-3 of the Code of Criminal |
Procedure of 1963 or subsection (b-10) of this Section, the |
petition
must be filed not later than 2 years after the entry |
of the order or judgment.
Time during which the person seeking |
relief is under legal disability or
duress or the ground for |
relief is fraudulently concealed shall be excluded
in computing |
the period of 2 years.
|
(d) The filing of a petition under this Section does not |
affect the
order or judgment, or suspend its operation.
|
(e) Unless lack of jurisdiction affirmatively appears from |
the
record proper, the vacation or modification of an order or |
judgment
pursuant to the provisions of this Section does not |
affect the right,
title or interest in or to any real or |
personal property of any person,
not a party to the original |
action, acquired for value after the entry
of the order or |
judgment but before the filing of the petition, nor
affect any |
right of any person not a party to the original action under
|
any certificate of sale issued before the filing of the |
petition,
pursuant to a sale based on the order or judgment. |
When a petition is filed pursuant to this Section to reopen a |
foreclosure proceeding, notwithstanding the provisions of |
Section 15-1701 of this Code, the purchaser or successor |
purchaser of real property subject to a foreclosure sale who |
was not a party to the mortgage foreclosure proceedings is |
entitled to remain in possession of the property until the |
foreclosure action is defeated or the previously foreclosed |
|
defendant redeems from the foreclosure sale if the purchaser |
has been in possession of the property for more than 6 months.
|
(f) Nothing contained in this Section affects any existing |
right to
relief from a void order or judgment, or to employ any |
existing method
to procure that relief.
|
(Source: P.A. 99-85, eff. 1-1-16; 99-384, eff. 1-1-16; 99-642, |
eff. 7-28-16; 100-1048, eff. 8-23-18.)
|
