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) Appointment of pro bono counsel. If any portion of the petition is
not summarily dismissed, the court may, upon the request of an indigent
petitioner, appoint counsel on a pro bono basis to represent the petitioner in
the post conviction court or on
post-conviction appeal. In determining whether to appoint counsel the court
shall consider whether the petition or the appeal contains factual allegations
that will require an evidentiary hearing and whether the petition involves
complicated issues of law or fact that require the assistance of counsel for
proper adjudication.
(k) 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.
(l) 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:
(l)(1) consider
the formation and simplification of issues;
(l)(2) require
the parties to identify witnesses and documents; and
(l)(3) require
the parties to establish the admissibility of evidence expected to be presented
at the evidentiary hearing.
(m) 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.
(n) 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.
(o) Orders; stay.
(o)(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.
(o)(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.
(o)(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.
(p) 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.
(q) 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.