Petition for post conviction relief

After your sentencing, you only have 90 days to file a Notice of Post Conviction Relief.

If you are convicted after a trial and have exhausted your appeals or if you pled guilty pursuant to a plea agreement, you only have a limited time to challenge your conviction by filing a Petition for Post Conviction Relief, more commonly called a PCR.  The Rules below are specific as to what you may challenge and what you may not challenge.  This area of  the law is confusing even to many lawyers. You should therefore consult a lawyer who has experience filing PCRs.  Courts only grant a very small percentage of Petitions.  Many defendants attempt to represent themselves and later regret not having consulted a knowledgeable attorney.  Contact Robert J. Campos for a consultation and protect your liberty.  Courts will deny your Petition if filed late.  Do not make the mistake of missing your filing deadline.

Rule 32.1 Petition for Post Conviction Relief and Preclusion of Remedy

  

Rule 32.1. Scope of Remedy


Petition for Relief. Subject to Rules 32.2 and 32.4(a)(2), a defendant convicted of, or sentenced for, a criminal offense may file a notice of post-conviction relief, without paying any fee, to request appropriate relief under this rule.


Of-Right Petition. A defendant who pled guilty or no contest, or who admitted a probation violation, or who had an automatic probation violation based on a plea of guilty or no contest, may file an of-right notice of post-conviction relief. After the court's final order or mandate in a Rule 32 of-right proceeding, the defendant also may file an of-right notice challenging the effectiveness of Rule 32 counsel in the first of-right proceeding.


Grounds for Relief. Grounds for relief are:


(a) the defendant's conviction was obtained or the sentence was imposed in violation of the United States or Arizona constitutions;


(b) the court did not have jurisdiction to render a judgment or to impose a sentence on the defendant;


(c) the sentence imposed exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;


(d) the defendant continues to be in custody after his or her sentence expired;


(e) newly discovered material facts probably exist and those facts probably would have changed the verdict or sentence.


Newly discovered material facts exist if:


(1) the facts were discovered after the trial or sentencing;

(2) the defendant exercised due diligence in discovering these facts; and

(3) the newly discovered facts are material and not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony that was of critical significance such that the evidence probably would have changed the verdict or sentence.


(f) the failure to file a notice of post-conviction relief of-right or a notice of appeal within the required time was not the defendant's fault;


(g) there has been a significant change in the law that, if applied to the defendant's case, would probably overturn the defendant's conviction or sentence; or


(h) the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt, or that the death penalty would not have been imposed.


Rule 32.2. Preclusion of Remedy


(a) Preclusion. A defendant is precluded from relief under Rule 32 based on any ground:


(1) still raisable on direct appeal under Rule 31 or in a post-trial motion under Rule 24;

(2) finally adjudicated on the merits in an appeal or in any previous collateral proceeding; or

(3) waived at trial, on appeal, or in any previous collateral proceeding.


(b) Exceptions. Rule 32.2(a) does not apply to claims for relief based on Rule 32.1(d) through (h). A claim under Rule 32.1(d) through (h) that defendant raises in a successive or untimely post-conviction notice must include the specific exception to preclusion and explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner. If the notice does not identify a specific exception or provide reasons why defendant did not raise the claim in a previous petition or in a timely manner, the court may summarily dismiss the notice.


(c) Standard of Proof. The State must plead and prove any ground of preclusion by a preponderance of the evidence. A court may determine that an issue is precluded even if the State does not raise preclusion.


(a) Preclusion. A defendant is precluded from relief under Rule 32 based on any ground:

(1) still raisable on direct appeal under Rule 31 or in a post-trial motion under Rule 24;

(2) finally adjudicated on the merits in an appeal or in any previous collateral proceeding; or

(3) waived at trial, on appeal, or in any previous collateral proceeding.


(b) Exceptions. Rule 32.2(a) does not apply to claims for relief based on Rule 32.1(d) through (h). A claim under Rule 32.1(d) through (h) that defendant raises in a successive or untimely post-conviction notice must include the specific exception to preclusion and explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner. If the notice does not identify a specific exception or provide reasons why defendant did not raise the claim in a previous petition or in a timely manner, the court may summarily dismiss the notice.


(c) Standard of Proof. The State must plead and prove any ground of preclusion by a preponderance of the evidence. A court may determine that an issue is precluded even if the State does not raise preclusion.

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