Rule 65C. Post-conviction relief.
(a) Scope. This rule governs
proceedings in all petitions for post-conviction relief filed under the
Post-Conviction Remedies Act, Utah Code Title 78B, Chapter 9. The Act sets
forth the manner and extent to which a person may challenge the legality of a
criminal conviction and sentence after the conviction and sentence have been
affirmed in a direct appeal under Article I, Section 12 of the Utah
Constitution, or the time to file such an appeal has expired.
(b) Procedural defenses and
merits review. Except as provided in paragraph (h), if the court comments on
the merits of a post-conviction claim, it shall first clearly and expressly
determine whether that claim is independently precluded under Section 78B-9-106.
(c) Commencement and venue. The
proceeding shall be commenced by filing a petition with the clerk of the
district court in the county in which the judgment of conviction was entered.
The petition should be filed on forms provided by the court. The court may
order a change of venue on its own motion if the petition is filed in the wrong
county. The court may order a change of venue on motion of a party for the
convenience of the parties or witnesses.
(d) Contents of the petition. The
petition shall set forth all claims that the petitioner has in relation to the
legality of the conviction or sentence. The petition shall state:
(d)(1) whether the petitioner is
incarcerated and, if so, the place of incarceration;
(d)(2) the name of the court in
which the petitioner was convicted and sentenced and the dates of proceedings
in which the conviction was entered, together with the court's case number for
those proceedings, if known by the petitioner;
(d)(3) in plain and concise
terms, all of the facts that form the basis of the petitioner's claim to
relief;
(d)(4) whether the judgment of
conviction, the sentence, or the commitment for violation of probation has been
reviewed on appeal, and, if so, the number and title of the appellate
proceeding, the issues raised on appeal, and the results of the appeal;
(d)(5) whether the legality of
the conviction or sentence has been adjudicated in any prior post-conviction or
other civil proceeding, and, if so, the case number and title of those
proceedings, the issues raised in the petition, and the results of the prior
proceeding; and
(d)(6) if the petitioner claims
entitlement to relief due to newly discovered evidence, the reasons why the
evidence could not have been discovered in time for the claim to be addressed
in the trial, the appeal, or any previous post-conviction petition.
(e) Attachments to the petition.
If available to the petitioner, the petitioner shall attach to the petition:
(e)(1) affidavits, copies of
records and other evidence in support of the allegations;
(e)(2) a copy of or a citation to
any opinion issued by an appellate court regarding the direct appeal of the
petitioner's case;
(e)(3) a copy of the pleadings
filed by the petitioner in any prior post-conviction or other civil proceeding
that adjudicated the legality of the conviction or sentence; and
(e)(4) a copy of all relevant
orders and memoranda of the court.
(f) Memorandum of authorities.
The petitioner shall not set forth argument or citations or discuss authorities
in the petition, but these may be set out in a separate memorandum, two copies
of which shall be filed with the petition.
(g) Assignment. On the filing of
the petition, the clerk shall promptly assign and deliver it to the judge who
sentenced the petitioner. If the judge who sentenced the petitioner is not
available, the clerk shall assign the case in the normal course.
(h)(1) Summary dismissal of
claims. The assigned judge shall review the petition, and, if it is apparent to
the court that any claim has been adjudicated in a prior proceeding, or if any
claim in the petition appears frivolous on its face, the court shall forthwith
issue an order dismissing the claim, stating either that the claim has been
adjudicated or that the claim is frivolous on its face. The order shall be sent
by mail to the petitioner. Proceedings on the claim shall terminate with the
entry of the order of dismissal. The order of dismissal need not recite
findings of fact or conclusions of law.
(h)(2) A claim is frivolous on
its face when, based solely on the allegations contained in the pleadings and
attachments, it appears that:
(h)(2)(A) the facts alleged do
not support a claim for relief as a matter of law;
(h)(2)(B) the claim has no
arguable basis in fact; or
(h)(2)(C) the claim challenges
the sentence only and the sentence has expired prior to the filing of the
petition.
(h)(3) If a claim is not
frivolous on its face but is deficient due to a pleading error or failure to
comply with the requirements of this rule, the court shall return a copy of the
petition with leave to amend within 20 days. The court may grant one additional
20 day period to amend for good cause shown.
(h)(4) The court shall not review
for summary dismissal the initial post-conviction petition in a case where the
petitioner is sentenced to death.
(i)
Service of petitions. If, on review of the petition, the court concludes that
all or part of the petition should not be summarily dismissed, the court shall
designate the portions of the petition that are not dismissed and direct the
clerk to serve a copy of the petition, attachments and memorandum by mail upon
the respondent. If the petition is a challenge to a felony conviction or
sentence, the respondent is the state of Utah represented by the Attorney
General. In all other cases, the respondent is the governmental entity that
prosecuted the petitioner.
(j) Answer or other response.
Within 30 days (plus time allowed under these rules for service by mail) after
service of a copy of the petition upon the respondent, or within such other
period of time as the court may allow, the respondent shall answer or otherwise
respond to the portions of the petition that have not been dismissed and shall
serve the answer or other response upon the petitioner in accordance with Rule
5(b). Within 30 days (plus time allowed for service by mail) after service of
any motion to dismiss or for summary judgment, the petitioner may respond by
memorandum to the motion. No further pleadings or amendments will be permitted
unless ordered by the court.
(k) Hearings. After pleadings are
closed, the court shall promptly set the proceeding for a hearing or otherwise
dispose of the case. The court may also order a prehearing conference, but the
conference shall not be set so as to delay unreasonably the hearing on the
merits of the petition. At the prehearing conference, the court may:
(k)(1) consider the formation and
simplification of issues;
(k)(2) require the parties to
identify witnesses and documents; and
(k)(3) require the parties to
establish the admissibility of evidence expected to be presented at the
evidentiary hearing.
(l) Presence of the petitioner at
hearings. The petitioner shall be present at the prehearing conference if the
petitioner is not represented by counsel. The prehearing conference may be
conducted by means of telephone or video conferencing. The petitioner shall be
present before the court at hearings on dispositive issues but need not
otherwise be present in court during the proceeding. The court may conduct any
hearing at the correctional facility where the petitioner is confined.
(m) Discovery; records. Discovery
under Rules 26 through 37 shall be allowed by the court upon motion of a party
and a determination that there is good cause to believe that discovery is
necessary to provide a party with evidence that is likely to be admissible at
an evidentiary hearing. The court may order either the petitioner or the
respondent to obtain any relevant transcript or court records.
(n) Orders; stay.
(n)(1) If the court vacates the
original conviction or sentence, it shall enter findings of fact and
conclusions of law and an appropriate order. If the petitioner is serving a
sentence for a felony conviction, the order shall be stayed for 5 days. Within
the stay period, the respondent shall give written notice to the court and the
petitioner that the respondent will pursue a new trial, pursue a new sentence,
appeal the order, or take no action. Thereafter the stay of the order is
governed by these rules and by the Rules of Appellate Procedure.
(n)(2) If the respondent fails to
provide notice or gives notice that no action will be taken, the stay shall
expire and the court shall deliver forthwith to the custodian of the petitioner
the order to release the petitioner.
(n)(3) If the respondent gives
notice that the petitioner will be retried or resentenced, the trial court may
enter any supplementary orders as to arraignment, trial, sentencing, custody,
bail, discharge, or other matters that may be necessary and proper.
(o) Costs. The court may assign
the costs of the proceeding, as allowed under Rule 54(d), to any party as it
deems appropriate. If the petitioner is indigent, the court may direct the
costs to be paid by the governmental entity that prosecuted the petitioner. If
the petitioner is in the custody of the Department of Corrections, Utah Code
Title 78A, Chapter 2, Part 3 governs the manner and procedure by which the
trial court shall determine the amount, if any, to charge for fees and costs.
(p) Appeal. Any final judgment or
order entered upon the petition may be appealed to and reviewed by the Court of
Appeals or the Supreme Court of Utah in accord with the statutes governing
appeals to those courts.