725 ILCS 5/122-1
2021 Illinois Compiled Statutes|Chapter 725 - CRIMINAL PROCEDURE|725 ILCS 5/ - Code of Criminal Procedure of 1963.|Title VI - Proceedings At Trial

 (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;(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; or(3) (blank).(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. 101-411, eff. 8-16-19; 102-639, eff. 8-27-21.)