Reasonable Doubt

1. In Re Winship, 397 US 358, 364 (1970)
   Fiore v. White, 531 US 225, 2 28-29 (2001)
   The due process clause requires the government to prove beyond reasonable doubt every element of the crime with which the defendant is charged. Due process is violated when defendant convicted for operating with out permit despite fact that prosecution failed to show defendant did not possess hazardous waste permit. The reasonable doubt standard applies in both state and federal proceedings.
   
   
2. Patterson v. New York, 432 US 197 (1977) at 210
   The court has repeatedly stated that "the due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements including the definition of the offense of which the defendant is charged."
   
   
3. Sullivan v. Louisiana, 508 US 275, 278 (1993)
   The Winship reasonable doubt standard protects three interests. First, it protects the defendant's interest in being free from unjustified loss of liberty. See 397 US at 363. Second, it protects the defendant from the stigmatization resulting from conviction. Third, it engenders community confidence in the criminal law by giving "concrete substance" to the presumption of innocence. Id. at 3 63-64. In this regard, the court stated that it is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. Id. at 364. In his concurring opinion, Justice Harlan noted that the standard is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." Id. at 372 (Harlan J. Concurring). The Winship requirement applies to elements that distinguish a more serious crime from a less serious one, as well as to those elements that distinguish criminal from noncriminal conduct. Thus, a state may not distinguish between similar offenses that have different elements, maximum penalties without requiring the prosecution to prove beyond a reasonable doubt the facts upon which the distinction turns, because the same interests are implicated.

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Religion

1. American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995)
   Free exercise clause forbids government from adopting laws designed to suppress religious belief or practice.
   
   
2. Berger v. Rensselaer Cent. School Corp., 982 F.2d 1160 (7th Cir. 1993)
   Under the First Amendment establishment clause, government may not aid a religion, aid all religions or favor one religion over another.
   
   
3. Brown v. Borough Of Mahaffey, Pa., 35 F.3d 846 (3rd Cir. 1994)
   At minimum, First Amendment enjoins government from intentionally burdening religious worship.
   
   
4. Church Of Lukumi Babalu Aye. Inc. v. City Of Hialeah, 508 US 124 L.Ed.2d 472. 113 S.Ct. (1993)
   City ordinances regulating animal sacrifice, but effectively prohibiting only sacrifice as practiced by Santeria religion, held void under First Amendment's free exercise of religion clause.
   
   
5. Ferguson v. C.I.R., 921 F.2d 588 (5th Cir. 1991)
   Protection of free exercise clause extends to all sincere religious beliefs; courts may not evaluate religious truth.
   
   
6. Kreisner v. City Of San Diego, 1 F.3d 775 (9th Cir. 1993)
   Government practice or statute violates establishment clause if its purpose is to endorse religious custom or viewpoint.
   
   
7. Kreisner v. City Of San Diego, 988 F.2d 883 (9th Cir. 1993)
   Religious speakers have same right to access to public forums as others.
   
   
8. Lawson v. Dugger, 840 F.2d 779 (11th Cir. 1988)
   Restrictions imposed by prison officials on inmate's access to religions literature should be scrutinized under strict MARTINEZ standard of review as restrictions impinged on First Amendment right of non - prisoners.
   
   
9. Malik v. Brown, 16 F.3d 350 (9th Cir. 1994)
   Adoption of Muslim names by converts to the Islamic faith is an exercise of religious freedom.
   
   
10. State v. West, 168 Ariz. 292
    Examination questions at trial regarding religious beliefs designed to enhance witness credibility are improper under both Ariz. Const. art. 2, § 12 and Ariz. R. Evid. 610. It is equally improper to impeach a defendant's credibility by showing the presence or absence of religious beliefs. The prohibition against questioning a defendant on religious beliefs applies when the credibility of the witness is being attacked. If the use of religion constitutes fundamental error, the failure to object does not preclude the appellate court from addressing it.
    
    
11. Thomas v. Gunter, 32 F.3d 1258 (8th Cir. 1994)
    State v. West, 168 Ariz. 292
    Prison officials are not free to restrict inmates' exercises of their religion arbitrarily and unreasonably.
    
    
12. Thompson v. Comm. Of Kentucky, 712 F.2d 1078 (6th Cir. 1983)
    

    1. While in prison inmates retain their right to exercise their religious beliefs.
    2. Although prisoners do not retain same rights as the outside they may not be denied basic rights of conscience

    
    
13. US v. Boyll, 774 F. Supp. 1333 (D. New Mexico 1991)
    Prohibiting non - Indian member of Native American Church from importing peyote through mail and possessing it with intent to distribute would impose substantial burden on free exercise of religion, was not justified by compelling government interest, and would violate free exercise clause.
    
    
14. Walker v. San Francisco Unified School Dist., 46 F.3d 1449 (9th Cir. 1995)
    One way in which general governmental program can be "skewed towards religion" for establishment clause purposes is if program creates symbolic union between church and state.
    
    
15. Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995)
    Religious Freedom Restoration Act, encompasses claims of prisoners alleging interference with free exercise of religion and is to be applied retroactively.
    
    
16. Wilkinson v. State, 172 Ariz. 597
    Rules enacted by a department of corrections governing religious visitation for inmates was invalid as it was not promulgated in accordance with the Arizona Administrative Procedure Act.

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Rule 32

1. Rule 32.1. Scope of remedy
   Subject to the limitations of Rule 32.2, any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief.
   
   Any person who pled guilty or no contest, admitted a probation violation, or whose probation was automatically violated based upon a plea of guilty or no contest shall have the right to file a post-conviction relief proceeding, and this proceeding shall be known as a Rule 32 of-right proceeding.
   Grounds for relief are:
   
   a. The conviction or the sentence was in violation of the Constitution of the United States or of the State of Arizona;
   b. The court was without jurisdiction to render judgment or to impose sentence;
   c.The sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
   d.The person is being held in custody after the sentence imposed has expired;
   e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:
   

   1. The newly discovered material facts were discovered after the trial.
   2. The defendant exercised due diligence in securing the newly discovered material facts.
   3. The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.

   f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or
   g. There has been a significant change in the law that if determined to apply to 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 have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.
   
   

   HISTORY: Amended May 7, 1975, effective Aug. 1, 1975; amended June 2, 1992, effective Sept. 30, 1992; amended Oct. 31, 2000, effective Dec. 1. 2000.

   NOTES:
   [2000 AMENDMENT]
   Changes in the first and second paragraphs and in subsection (f) are to meet and accommodate the requirements of Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614 (1995) (opinion supplemented, 182 Ariz. 118, 893, P.2d 1281), and its progeny. A petition when authorized under Montgomery is referred to in the above provision as an "of-right " proceeding. Relief pursuant to subsection (f) will continue to be unavailable to all post-conviction relief proceedings not "of-right". See Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998).
   
   The addition of new subparagraph (h) is warranted by the U.S. Supreme Court's pronouncement that claims of actual innocence are not cognizable under the federal habeas corpus remedy. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1993). This claim is independent of a claim under subparagraph (e). A defendant who establishes a claim of newly discovered evidence does not need to comply with the requirements of subparagraph (h).
   
   In approving the 2000 amendments to Rule 32, the Arizona Supreme Court did not have the benefit of the comments of a statewide commission which was empaneled that year by the Attorney General of Arizona to investigate and assess the administration of the death penalty in the State of Arizona. Accordingly, further amendments to Rule 32 may be necessary following the issuance of that commission's recommendations. In particular, the topics of deadlines and time periods and victims' rights may need to be addressed at that time.
   
   [1992 AMENDMENT]
   COMMENT TO RULE 32.1 (E). Impeachment evidence will rarely be of a type which would probably have changed the verdict at trial. However, where newly-discovered impeachment evidence substantially undermines testimony which was of critical significance at trial, the court should evaluate whether relief should be granted on the grounds that the evidence probably would have changed the result. Dicta in cases such as State v. Fisher, 141 Ariz. 227, 250-51, cert. denied, 469 U.S. 1066, 105 S.Ct. 548 (1984), suggesting that a defendant will always be barred from relief if newly-discovered evidence is solely for impeachment, have never been incorporated into the Arizona Rules of Criminal Procedure and should not preclude relief deemed necessary in the court's discretion to avoid a miscarriage of justice.
   
   [1975 AMENDMENT]
   GENERAL. Under previous Arizona procedure, there were seven avenues for post-conviction relief: appeal, federal habeas corpus, Arizona habeas corpus, writ of coram nobis, motion for new trial or newly discovered evidence, motion to modify or vacate judgment (under Civil Rule 60 (c)), and delayed appeal. Each had different mechanics, requirements and time limits.
   
   THE UNIFIED PROCEDURE OF RULE 32:
   (1) Consolidates the last five avenues into a single comprehensive remedy;
   (2) Requires, subject to a limited exception, the consolidation of all claims in a single petition;
   (3) Permits summary dismissal of frivolous claims;
   (4) Provides for a full-scale evidentiary hearing on the record in order to limit federal habeas corpus review to questions of law, Townsend v. Sain, 372 U.S. 293 (1963); and
   (5) Allows filing of petitions for post-conviction relief in the court in which the judgment and sentence were rendered.
   
   RULE 32.1.
   This rule catalogs the possible grounds for relief. It is based upon Rule 35 of the Alaska Rules of Criminal Procedure and incorporates the essence of ABA, Standards Relating to Post-Conviction Remedies (Approved Draft, 1968) [hereinafter cited in comments to Rule 32 as ABA, Standards] within the drafting structure of the second Revised Uniform Post-Conviction Procedure Act (1966) [hereinafter cited in comments to Rule 32 as Uniform Act]. It is intended that this rule encompass all the grounds presently available in Arizona under a writ of habeas corpus, Ariz. Const. Art. 2, § 14; Ariz. Rev. Stat. Ann. §§ 13-2001 to -2027 (1956); a writ of coram nobis, Ariz. Const. Art. 6, § 5 (Cum. Supp. 1972), e.g., State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966), cert. denied, 385 U.S. 1043 (1967); a motion for a new trial on newly-discovered evidence, 1956 Arizona Rules of Criminal Procedure Rule 310 (3); a motion filed under Ariz. R. Civ. P. 60 (c); a motion for delayed appeal, Ariz. Sup. Ct. R. 16 (a); plus those available under federal habeas corpus procedures, 28 U.S.C. § 2241 (c) (1970). The available grounds are detailed in order to notify prisoners, and the federal courts, of the availability of relief, see Case v. Nebraska, 381 U.S. 336 (1965), to encourage the consolidation of all grounds for relief in a single petition and to justify the preclusion of claims not so raised. See Rule 32.2. These same purposes are served by the detailed checklist of grounds contained in the proposed form. See comment to Rule 32.4 (a) and Form 25.
   
   With the exception of paragraph (d), no showing of any form of custody is required as a precondition for relief, thereby eliminating, in large part, one aspect of federal and state habeas corpus law. See, e.g., Peyton v. Rowe, 391 U.S. 54 (1968).
   
   No filing fee is required in accordance with Ariz. Rev. Stat. Ann. § 13-2023 (1956) which prohibits the charging of a fee in habeas corpus proceedings.
   
   RULE 32.1 (A). Most traditional collateral attacks are encompassed within paragraph (a). Claims of denial of counsel, of incompetency of counsel, and of violation of other rights based on the federal or Arizona constitution are included.
   
   RULE 32.1 (B). Paragraph (b) retains the basic attack on jurisdiction universally recognized as a ground for collateral attack. See ABA, Standards, supra, at § 2.1 (a) (iii).
   
   RULE 32.1 (C). This provision follows ABA, Standards, supra, at § 2.1 (a) (iv). See also Uniform Act, supra, at § 1 (a) (3). It is intended to allow an attack on a sentence even though the petitioner does not contest the validity of the underlying conviction.
   
   RULE 32.1 (D). This paragraph is not intended to include attacks on the conditions of imprisonment or on correctional practices or prison rules.
   
   Paragraph (d) is intended to include claims of more traditional types -- e.g., miscalculation of sentence, questions of computation of good time -- which result in the defendant's remaining in custody when he should be free.
   
   Appeals from the conviction and imposition of probation must be filed within 20 days of the entry of judgment and sentence. See Rules 31.3, 26.1 (b) and 26.16 (a).
   
   RULE 32.1 (E). Paragraph (e) replaces the 1956 Arizona Rules of Criminal Procedure, Rule 310 (3). The rule reduces the requirements of the 1956 Arizona Rules of Criminal Procedure Rule 310 (3) from absolute preconditions for relief to factors for the court to weigh in deciding whether or not a new trial is justified. See Wexler & Silverman, Representing Prison Inmates: A Primer on an Emerging Dimension of Poverty Law Practice, 11 Ariz. L. Rev. 385, 400-04 (1969) [hereinafter cited in comments to Rule 32 as Wexler & Silverman].
   
   Subparagraph (e) (3) substitutes for the 1-year limit of the 1956 Arizona Rules of Criminal Procedure, Rule 308, a requirement that the judge take into consideration the prisoner's promptness in bringing forth new evidence. This provision will prevent abuse of process, e.g., a prisoner's lying-in-wait until an essential prosecution witness dies, but avoids setting a specific time limit.
   
   RULE 32.1 (F). This provision is based on Ariz. Sup. Ct. R. 16 (a). The scope is intended to be the same as that of the present rule. It includes the situation in which the defendant fails to appeal because the trial court, despite the requirements of Rule 26.11, did not advise him of his appeal rights, and the situation in which the defendant intended to appeal and though timely appeal had been filed by his attorney when in reality it had not. See 31.3; see generally Wexler and Silverman, supra, at 397-4000; e.g., In re Acosta, 97 Ariz. 333, 400 P.2d 328 (1965).
   
   The delayed appeal procedure is retained to provide a remedy in those cases in which the grounds to be raised on appeal are not appropriate for a collateral attack on the conviction -- e.g., nonconstitutional errors in the conduct of the trial. Moreover, the delayed appeal provision preserves the defendant's right to a general review of the record for fundamental error where his failure to file a timely appeal was not his fault. See Arizona Rev. Stat. Ann. § 13-1715 (B) (1956); Anders v. California, 386 U.S. 738 (1967).
   
   RULE 32.1 (G). Paragraph (g) encompasses all claims for retroactive application of new constitutional and nonconstitutional legal principles. The language is based upon ABA, Standards, supra, at § 2.1 (a) (vi).

   JUDICIAL DECISIONS
   ANALYSIS

   CONSTRUCTION.
   IN GENERAL.
   Where defendant pled guilty to aggravated assault, he waived any right to direct appeal in that action and the Supreme Court of Arizona was without jurisdiction to hear that appeal in defendant's death penalty case; if he wished to challenge the validity of his plea, he had to do so through the post-conviction relief procedures provided by Ariz. R. Crim. P. 32. State v. Cropper, 205 Ariz. 181, 399 Ariz. Adv. Rep. 15, 68 P.3d 407, 2003 Ariz. LEXIS 61 (2003).
   
    Ariz. R. Crim. P. 32.1(f) is atypical of the eight possible grounds for post-conviction relief listed in Rule 32.1(a) through (h); it merely provides a procedural mechanism whereby a defendant who has failed to appeal through no fault of his or her own can obtain jurisdiction in an appellate court. In contrast, the remaining seven grounds state substantive rule 32 claims on which a trial court, operating as a reviewing court, can directly vacate or modify a defendant's conviction or sentence or order that the defendant be released from prison. State v. Rosales, 205 Ariz. 86, 398 Ariz. Adv. Rep. 9, 66 P.3d 1263, 2003 Ariz. App. LEXIS 66 (Ct. App. 2003).
   
   To find that a defendant who seeks leave to file a delayed appeal under Ariz. R. Crim. P. 32.1(f) waives all other claims would compel defendants to include all known substantive rule 32 claims in their first petition, along with the motion for leave to file a delayed appeal; such defendants would therefore be forced to litigate all their known rule 32 claims, including their request for a delayed appeal, before appealing to the appellate court. This order of proceedings might make sense in some cases, and nothing in this decision should be understood to prevent it, in many other cases, however, it would not. State v. Rosales, 205 Ariz. 86, 398 Ariz. Adv. Rep. 9, 66 P.3d 1263, 2003 Ariz. App. LEXIS 66 (Ct. App. 2003).
   
   Trial court, in evaluating a delayed appeal request for post conviction relief, does not review the trial, conviction, or sentence; at most, it may be called on to make limited factual findings about post-trial communication between counsel and defendant regarding an appeal; thus, if a defendant who successfully obtains leave to file a delayed appeal under Ariz. R. Crim. P. 32.1(f) is permitted to bring a substantive post-conviction relief proceeding after the conclusion of the appeal, the trial court will be functioning as a reviewing court for the first time, albeit that technically it will be addressing the second petition. State v. Rosales, 205 Ariz. 86, 398 Ariz. Adv. Rep. 9, 66 P.3d 1263, 2003 Ariz. App. LEXIS 66 (Ct. App. 2003).
   
   By requesting leave to file a delayed appeal pursuant to Ariz. R. Crim. P. 32.1(f), a petitioner does not waive all other potential claims under the other grounds found in rule 32.1, thereby rendering them precluded; the Court of Appeals concludes that, for practical and policy reasons, no waiver occurs under those circumstances. To begin with, finding no such waiver is consistent with the purpose of the preclusion rule, which essentially requires a defendant to raise all known claims for relief in a single petition to the trial court, thereby avoiding piecemeal litigation and fostering judicial efficiency. State v. Rosales, 205 Ariz. 86, 398 Ariz. Adv. Rep. 9, 66 P.3d 1263, 2003 Ariz. App. LEXIS 66 (Ct. App. 2003).
   
   Petitions for post-conviction relief and petitions for review of a lower court's decision on a petition for post-conviction relief are not "appeals" within the meaning of subsection (f). Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998).

   WITH OTHER LAW.
   Pursuant to Ariz. R. Crim. P. 32.2, habeas petitioners may not be granted relief on any claim which could have been raised in a prior Ariz. R. Crim. P. 32 petition for post-conviction relief. Only if a claim falls within certain exceptions (subsections (d) through (h) of this rule) and the petitioner can justify why the claim has been omitted from a prior petition will the preclusive effect of Ariz. R. Crim. P. 32.2 be avoided. McKinney v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 268 (D. Ariz. Jan. 3, 2006).

   CHANGE IN THE LAW.
   Defendant's second post-conviction relief proceeding was precluded under Ariz. R. Crim. P. 32.2(a) because a prior case was not an Ariz. R. Crim. P. 32.1(g) "significant change in the law;" after the case, the law remained precisely the same, and for purposes of Rule 32.1(g), a change in the law could not be established by the subjective opinions of counsel, and therefore, the superior court erred in granting post-conviction relief. State v. Shrum, 220 Ariz. 115, -- Ariz. Adv. Rep. --, 203 P.3d 1175, 2008 Ariz. LEXIS 239 (2008).
   
   New rule requiring that a jury must decide whether aggravating circumstances exist in capital cases did not apply retroactively to petitioners' cases, which were final; thus, the trial court properly denied postconviction relief for petitioners. State v. Towery, 204 Ariz. 386, 394 Ariz. Adv. Rep. 14, 64 P.3d 828, 2003 Ariz. LEXIS 16 (2003), cert. dismissed, 539 U.S. 986, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003).
   
   Where counsel, at prior proceedings had failed to raise claim based upon a change in law because he did not believe the law was applicable to petitioner at the time, counsel had sufficient reason for failing to argue the claim, the claim would constitute a significant change in the law, and the trial court's preclusion finding was an abuse of discretion. State v. Jensen, 193 Ariz. 105, 970 P.2d 937 (Ct. App. 1998).

   CLAIM PRECLUSION.
   Lack of a controlling precedent in the Arizona Supreme Court or in the Arizona Courts of Appeals led to certifying questions of whether habeas corpus petitioner could raise his ineffective assistance of trial counsel and unintelligent plea claims by alleging, pursuant to subsection (f) of this rule, that failure to file a timely petition for review was without fault on his part and whether any mandatory rule of state law barred petitioner from raising these claims at such a late date. Binford v. Rhode, 116 F.3d 396 (9th Cir. 1997).

   DEFENDANT'S RIGHTS.
   Petitioner for post-conviction relief, who had entered a guilty plea to kidnapping and waived his right to a jury trial at the time of the entry of the plea, did not also waive his right to be sentenced by a jury because he did not know he possessed this right when he entered his guilty plea. State v. Ward, 211 Ariz. 158, 118 P.3d 1122, 2005 Ariz. App. LEXIS 114 (Ct. App. 2005).
   
   Even though Rule 32 does not give an indigent defendant the right to appointed counsel in a discretionary proceeding, that does not mean that a court is forbidden from appointing counsel when, in the interest of justice, appointment of counsel seems necessary. State v. Smith, 184 Ariz. 456, 910 P.2d 1 (1996).
    
   DISCOVERY.
   After filing only his post-conviction relief notice, inmate requested various materials used at his trial or available at that time, alleging, without elaboration, that they were needed to present an effective defense; however, his claim, unsupported by an actual post-conviction relief petition, was insufficient. Canion v. Cole, 210 Ariz. 598, 456 Ariz. Adv. Rep. 15, 115 P.3d 1261, 2005 Ariz. LEXIS 79 (2005).

   ENHANCEMENT OF SENTENCE.
   --CONVICTIONS INADMISSIBLE.
   Defendant's motion for post-conviction relief was granted where some of the six counts to be used as historical prior convictions to enhance her sentences under A.R.S.  § 13-604 on other counts covered by the plea agreement were contrary to a supreme court ruling; enhancement under the statute was impermissible if the same felonies were tried together. State v. Ofstedahl, 208 Ariz. 406, 431 Ariz. Adv. Rep. 3, 93 P.3d 1122, 2004 Ariz. App. LEXIS 109 (Ct. App. 2004).

   ERROR.
   Trial court erred in ruling that a recent United States Supreme Court opinion regarding a defendant's right to a jury during sentencing, which was decided when petitioner's request for post-conviction relief was pending, was not applicable to the petitioner. Moreover, the petition for post-conviction relief was considered the equivalent of a direct appeal. State v. Ward, 211 Ariz. 158, 118 P.3d 1122, 2005 Ariz. App. LEXIS 114 (Ct. App. 2005).
   
   Defendant challenged enhanced sentence for aggravated robbery; the petition for relief was denied, but while his petition for review was pending, he filed a notice of supplemental authority and supplemental briefing containing information which made it clear the issue should have gone to a jury, which was fundamental, not harmless, error. State v. Resendis-Felix, 209 Ariz. 292, 438 Ariz. Adv. Rep. 3, 100 P.3d 457, 2004 Ariz. App. LEXIS 181 (Ct. App. 2004).

   EVIDENCE.
   --IN GENERAL.
   Motion for new trial is properly denied if the testimony of a proffered witness does not appear reliable or credible to the trial court. State v. Dunlap, 187 Ariz. 441, 930 P.2d 518 (Ct. App. 1996), cert. denied, 520 U.S. 1275, 117 S. Ct. 2456, 138 L. Ed. 2d 214 (1997).

   --NEWLY DISCOVERED.
   When DNA evidence was discovered after defendant's first degree murder and sexual abuse trial, the superior court needed to make additional specific findings of fact and conclusions of law to facilitate the supreme court's review of defendant's request for post-conviction relief. State v. Tankersley, 211 Ariz. 323, -- Ariz. Adv. Rep. --, 121 P.3d 829, 2005 Ariz. LEXIS 132 (2005).
   Newly discovered evidence of drug use and of lying about drug use would have probably changed the verdict. State v. Orantez, 183 Ariz. 218, 902 P.2d 824 (1995).

   --NOT NEWLY DISCOVERED.
   Question whether an asserted claim was of "sufficient constitutional magnitude" to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), depended not upon the merits of the particular claim, but rather merely upon the particular right alleged to have been violated. Stewart v. Smith, 202 Ariz. 446, 378 Ariz. Adv. Rep. 86, 46 P.3d 1067, 2002 Ariz. LEXIS 89 (2002).
   
   Where it was undisputed that defendant in murder case knew another person had allegedly confessed to the murder well before trial and did nothing to bring the evidence forward but allowed the trial to proceed instead, that the trial court erred in granting defendant a new trial. State v. Saenz, 197 Ariz. 487, 4 P.3d 1030, 2000 Ariz. App. LEXIS 52 (Ct. App. 2000).
   
   Testimony was not "newly-discovered." Federal courts overwhelmingly do not consider evidence newly-discovered when a defendant who voluntarily chose not to testify comes forward later to offer testimony exculpating a co-defendant. The court of appeals agreed with the federal view. State v. Dunlap, 187 Ariz. 441, 930 P.2d 518 (Ct. App. 1996), cert. denied, 520 U.S. 1275, 117 S. Ct. 2456, 138 L. Ed. 2d 214 (1997).

   EXHAUSTION OF REMEDIES.
   Prisoner, who filed habeas petition days before his motion for reconsideration was determined in state superior court, prematurely filed the habeas petition because his conviction had not become final but was still under consideration in a state court post-conviction proceeding, meaning he had not exhausted his remedies. Lopez v. Schriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 28060 (D. Ariz. November 8, 2005).

   FILING.
   If a pro se prisoner timely gave his notice of petition for post-conviction relief to the Arizona Department of Corrections for mailing, his notice must be considered timely filed. State v. Rosario, 195 Ariz. 264, 987 P.2d 226 (Ct. App. 1999).
   
   Questions regarding whether, in light of amendments to Rule 32.2(b), federal habeas petitioner could raise his claims pursuant to subdivision (f) of this rule, by alleging that his failure to file a timely petition for review or a Rule 32 petition was without fault on his part, were certified to Supreme Court. Moreno v. Gonzales, 116 F.3d 409 (9th Cir. 1997).
   
   While Rule 32.4(a) establishes the time limits within which a petitioner must file a notice of postconviction relief, it also provides that a petitioner may pursue, at any time, claims for relief based on subsections (d), (e), (f) and (g) of this rule. State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (Ct. App. 1995).

   GUILTY PLEA.
   The trial court erred in granting defendant's petition for post-conviction relief and ordering a new sentencing hearing where, when the appellate court vacated defendant's prior convictions on appeal, the terms of his plea agreement were altered. State v. Szpyrka, 223 Ariz. 390, 573 Ariz. Adv. Rep. 14, 224 P.3d 206, 2010 Ariz. App. LEXIS 6 (Ct. App. 2010).
   
   Postconviction relief under Ariz. R. Crim. P. 32.1 was properly denied because the corpus delicti rule did not apply to admissions made by petitioner at an in-court guilty plea where the statements were made under the supervision and protection of the trial court, which ensured that the plea was knowing and voluntary. State v. Rubiano, 214 Ariz. 184, 495 Ariz. Adv. Rep. 9, 150 P.3d 271, 2007 Ariz. App. LEXIS 7 (Ct. App. 2007).

   HABEAS CORPUS.
   Prisoner's habeas petition under 28 U.S.C.S. § 2254 was denied as untimely because he did not file his state post-conviction motion under Ariz. R. Crim. P. 32 until after the limitations period expired under 28 U.S.C.S. § 2244 so that the state motion did not toll, renew, or refresh the limitation period and the prisoner failed to show entitlement to equitable tolling. Norman v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 62626 (D. Ariz. July 20, 2009).
   
   Federal habeas petitioner did not have an available state court remedy under this rule. His speculation regarding the content of original and missing images was insufficient to show that defense access to the material would probably have made a difference in his trial or sentencing and petitioner was not diligent in securing the facts regarding the photographic evidence. Henry v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 21510 (D. Ariz. Mar. 17, 2009).
   
   Habeas petitioner's claim that she was denied her right to a public trial due to her case being referred to a court commissioner appointed as a judge pro tempore did not fall within the scope of the exceptions enumerated in Ariz. R. Crim. P. 32.1(d), (e), (f), (g), or (h). Kajander v. Schroeder, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 7183 (D. Ariz. Jan. 30, 2009).
   
   State prisoner was not entitled to habeas corpus relief because his claims that: (1) His guilty plea was not knowing, intelligent, and voluntary; (2) Appellate counsel was ineffective; (3) His constitutional rights were violated by the cumulative deficiency of trial, appellate, and post-conviction relief counsel; and (4) Arizona's death penalty statute was unconstitutional, were technically exhausted but procedurally defaulted for purposes of Ariz. R. Crim. P. 32.1(d)-(h), Ariz. R. Crim. P. 32.2(a)(3) and (b), and Ariz. R. Crim. P. 32.4(a). Djerf v. Schriro, -- F. Supp. 2d --, 2008 U.S. Dist. LEXIS 89565 (D. Ariz. Sept. 29, 2008).
   
   Because there was neither absent nor inadequate state corrective process in Arizona to adjudicate petitioner's claims, he was subject to the exhaustion requirement in 28 U.S.C.S. § 2254(b); petitioner's allegations concerning the competence of appellate counsel had to be presented in a state post-conviction-relief petition, which would not be initiated until after his direct appeal proceedings were concluded. Velazquez v. Schriro, -- F. Supp. 2d --, 2007 U.S. Dist. LEXIS 55370 (D. Ariz. July 27, 2007).
   
   Rule 32 encompasses the relief available by writ of habeas corpus. Coley v. Gonzales, 55 F.3d 1385 (9th Cir. 1995).

   INEFFECTIVE ASSISTANCE OF COUNSEL.
   Court erred in denying the inmate's successive notice of postconviction relief filed pursuant to Ariz. R. Crim. P. 32, because the inmate asked for the appointment of different counsel to evaluate whether he might have a claim of ineffective assistance of his previous counsel that he could raise in the subsequent proceeding, and this was sufficient to avoid a summary dismissal of his notice. State v. Petty, -- Ariz. --, 590 Ariz. Adv. Rep. 29, 238 P.3d 637, 2010 Ariz. App. LEXIS 142 (Ct. App. 2010).
   
   In an assault case, denial of the inmate's petition for postconviction relief was proper, the inmate who was not denied effective assistance of counsel where counsel did not question the inmate's reasons for rejection of state's plea offers, and counsel was under no obligation to inquire of the inmate what, if any, plea offer she might be willing to accept. State v. Vallejo, 215 Ariz. 193, 505 Ariz. Adv. Rep. 27, 158 P.3d 9161, 2007 Ariz. App. LEXIS 90 (Ct. App. 2007).
   
   Because prejudice is an essential component of any Sixth Amendment ineffective assistance of counsel claim, claim that a defendant has been prejudiced by deficient performance before disposition of the charges at the trial level is purely speculative. A defendant may bring ineffective assistance of counsel claims only in a post-conviction proceeding -- not before trial, at trial, or on direct review. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 501 Ariz. Adv. Rep. 14, 153 P.3d 1040, 2007 Ariz. LEXIS 32 (2007).
   
   Although petitioner's claim of ineffective assistance of counsel on appeal was a cognizable "Rule 32" claim under this rule, petitioner failed to present a colorable claim of ineffective assistance of appellate counsel which would have changed the outcome. Petitioner's aggravated sentences for aggravated assault and first-degree burglary did not exceed the statutory maximum, therefore the Apprendi rule did not apply and the outcome of petitioner's appeal would not have been different if counsel had raised an Apprendi claim on direct appeal. State v. Febles, 210 Ariz. 589, 455 Ariz. Adv. Rep. 3, 115 P.3d 629, 2005 Ariz. App. LEXIS 86 (Ct. App. 2005).
   
   Defendant failed to raise a colorable claim of ineffective assistance of counsel because a concrete plea offer was not made by the state; an extension of constitutional principles did not include counsel's failure to investigate possibilities of a plea offer made by the state. State v. Jackson, 209 Ariz. 13, 435 Ariz. Adv. Rep. 14, 97 P.3d 113, 2004 Ariz. App. LEXIS 135 (Ct. App. 2004).
   
   By raising one claim of ineffective assistance of trial counsel in a direct appeal, all later ineffectiveness of trial counsel claims would be precluded. State v. Spreitz, 202 Ariz. 1, 378 Ariz. Adv. Rep. 5, 39 P.3d 525, 2002 Ariz. LEXIS 16 (2002).
   
   An allegation of ineffective assistance of counsel is encompassed within this rule as a claim that a defendant's conviction or sentence was in violation of the Constitution of the United States or the State of Arizona. State v. Herrera, 183 Ariz. 642, 905 P.2d 1377 (Ct. App. 1995).

   INMATE TRANSPORT ORDER.
   Where an inmate sentenced to death for first-degree murder requested organic and neurological testing, the superior court properly entered an order requiring the Arizona Department of Corrections to transport the prisoner rather than the county sheriff. The superior court's order was a valid exercise of its inherent authority under §§ 12-122, 12-123(B); the transport order did not significantly infringe on the department's executive authority. State Ex Rel. Ariz. Dep't of Corr. v. Kiger, 224 Ariz. 252, 229 P.3d 264, 2010 Ariz. App. LEXIS 62 (Ct. App. 2010).

   JURISDICTION.
   Appellate court determined that it did not have jurisdiction to hear a petitioner's appeal from the denial of post-conviction relief because, even though the state agreed defendant should receive a new jury trial during sentencing, the petitioner waived his right to appeal by entering a plea agreement. State v. Celaya, 213 Ariz. 282, 481 Ariz. Adv. Rep. 3, 141 P.3d 762, 2006 Ariz. App. LEXIS 78 (Ct. App. 2006).
   
   A trial court has jurisdiction under this rule to determine a claim of ineffective assistance of appellate counsel. State v. Herrera, 183 Ariz. 642, 905 P.2d 1377 (Ct. App. 1995).

   --PRECLUSION.
   Petitioner seeking habeas corpus relief under 28 U.S.C.S. § 2254 was precluded by Ariz. R. Crim. P. 32.2(a)(3) and Ariz. R. Crim. P. 32.4 from obtaining relief in state court because the post-conviction relief court decided that issue against the petitioner and the petitioner had not sought review of the determination on his petition for review to the Arizona Supreme Court, and the petitioner did not assert any exception under Rule 32.1(d)-(h); those claims were technically exhausted but procedurally defaulted absent a showing of cause and prejudice or a fundamental miscarriage of justice. Rogovich v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 37041 (D. Ariz. June 6, 2006).

   JURISDICTION -- PRECLUSION.
   Inmate's claim alleging that the United States Supreme Court's decision in Atkins prohibited execution of the mentally ill was not colorable under Ariz. R. Crim. P. 32.1(g) where the Supreme Court held that U.S. Const. amend. VIII prohibited execution of the mentally retarded, not the mentally ill; the inmate could not return to state court to exhaust the claim because it did not allege facts or law exempting it from preclusion and untimeliness under Ariz. R. Crim. P. 32.2(a)(3) and 32.4(a). Doerr v. Ryan, -- F. Supp. 2d --, 2010 U.S. Dist. LEXIS 20225 (D. Ariz. Feb. 10, 2010).

   PRESENTENCE CUSTODY CREDIT.
   Where petitioner was incarcerated pursuant to drug charges, even though also subject to a probation hold in connection with an assault case, trial court's refusal to grant him 227 days of presentence incarceration credit against his sentence for the drug conviction was improper and subject to postconviction relief. State v. Brooks, 191 Ariz. 155, 953 P.2d 547 (Ct. App. 1998).

   PROCEDURAL DEFAULT.
   Certain habeas corpus claims were barred by procedural default where the inmate could not be granted postconviction relief under Ariz. R. Crim. P. 32.2 on any claim that could have been raised in a prior postconviction petition; Arizona's preclusion rule is an adequate and independent bar to federal review. The claims did not fall within certain exceptions set forth in this rule, and the inmate did not justify why the claims were not presented in a timely manner. Jones v. Schriro, 450 F. Supp. 2d 1047, 2006 U.S. Dist. LEXIS 63137 (D. Ariz. 2006).
   
   State prisoner procedurally defaulted his Eighth Amendment challenge to execution by lethal injection where he did not raise it in compliance with this rule; prisoner failed to exercise due diligence in obtaining evidence to support his claim that lethal injection was administered so as to cause extreme suffering and torture, nor did he explain why he did not seek evidence between the time Arizona introduced execution by lethal injection and the time the supplemental petition for postconviction relief was filed. Williams v. Stewart, 441 F.3d 1030, 2006 U.S. App. LEXIS 9633 (9th Cir. 2006).
   
   Subsection (c)(2) clearly states that a continuance will only be granted under "extraordinary circumstances." A simple need for more time, after sufficient time has already been permitted, does not constitute extraordinary circumstances, particularly where the petitioner fails to articulate any issue of actual prejudice, or show that a fundamental miscarriage of justice occurred; without actual prejudice the argument for excusing the procedural default is incomplete. Crook v. State of Ariz., -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 35315 (D. Ariz. 2005).
   
   In habeas corpus proceeding, district court erred in failing to consider procedural default when it held that issue of ineffective assistance of counsel at sentencing was properly before it. Martinez-Villareal v. Lewis, 80 F.3d 1301, cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517 (1996).

   RETROACTIVE CHANGE IN LAW.
   A defendant may to receive relief from a conviction if he is entitled to benefit from a retroactive change in the law, including retroactive statutory amendments. Because legislative acts occurring after a conviction may entitle a defendant to Rule 32 relief, criminal convictions give the state no vested right immune from modification by the legislature. State v. Rios, -- Ariz. --, 588 Ariz. Adv. Rep. 5, 237 P.3d 1052, 2010 Ariz. App. LEXIS 132 (Ct. App. 2010).

   RIGHT TO APPEAL.
   Application of A.R.S.  § 13-4033(C) to preclude defendant from a direct appeal would deny him his right to appeal under Ariz. Const. art. 2, § 24 without personal notice of the potential consequence, because defendant's failure to appear for sentencing did not itself demonstrate a knowing, voluntary, and intelligent waiver of his right to appeal. Since Ariz. Const. art. 2, § 24 entitled a criminal defendant to appellate review in all cases, not merely those that involved potential claims remediable under Ariz. R. Crim. P. 32.1, A.R.S.  § 13-4033(C) was unconstitutional to the extent it was applied to deprive such defendants of their right to direct appeal. State v. Soto, 223 Ariz. 407, 575 Ariz. Adv. Rep. 4, 224 P.3d 223, 2010 Ariz. App. LEXIS 18 (Ct. App. 2010).

   RIGHT TO COUNSEL.
   If, after searching the record, appointed counsel in a post-conviction relief (PCR) proceeding can find no tenable issue to submit, counsel may so inform the court and defendant; the defendant will then be entitled to proceed pro se, and may also be entitled to an appropriate extension of time in which to file a PCR petition; until the trial court makes its required review and disposition, however, counsel is obligated to remain on the case. Lammie v. Barker, 185 Ariz. 263, 915 P.2d 662 (1996).
   
   The pleading defendant does not have a right to appointed counsel in post-conviction relief (PCR) proceedings beyond the trial court's mandatory consideration and disposition of the PCR. Lammie v. Barker, 185 Ariz. 263, 915 P.2d 662 (1996).
   
   The purpose of having counsel remain on the case in Rule 32 proceedings after the defendant has elected to proceed pro se is not to file a post-conviction relief (PCR) petition or petition for review, even though counsel believes there is not tenable basis for it, on behalf of the pro se defendant; rather, counsel's only function at that point is to assist the pro se defendant should that defendant or the trial court discover a viable issue that counsel had not previously considered or when, in the interest of justice, appointment of counsel seems necessary. Lammie v. Barker, 185 Ariz. 263, 915 P.2d 662 (1996).

   SECOND PETITION.
   A pleading defendant must be afforded an opportunity to assert a claim regarding the effectiveness of the attorney representing him on the first petition for postconviction relief; the obvious method is by means of a second petition for postconviction relief. State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (Ct. App. 1995).

   SEPARATE CONVICTIONS.
   Trial court did not abuse its discretion in denying defendant's petition for post-conviction relief, as it could properly impose consecutive terms of probation for two unrelated convictions for which defendant had been separately charged. State v. Bowsher, 223 Ariz. 177, 573 Ariz. Adv. Rep. 7, 221 P.3d 368, 2009 Ariz. App. LEXIS 793 (Ct. App. 2009).

   SENTENCE.
   --DEATH SENTENCE.
   Where defendant was convicted of first degree burglary and felony murder, the jury did not abuse its discretion in rendering a verdict of death. The Supreme Court of Arizona rejected defendant's challenge to the constitutionality of Arizona's death by lethal injection statute, A.R.S.  § 13-757(A); a challenge to the protocol to be used during a lethal injection must be made by petition filed pursuant to this rule. State v. Kuhs, 223 Ariz. 376, 576 Ariz. Adv. Rep. 13, 224 P.3d 192, 2010 Ariz. LEXIS 13 (2010).

   --NOT UPHELD.
   A.R.S.  § 13-604.01(I) does not include attempted sexual conduct with a victim under the age of twelve; the sentence imposed against defendant was illegal because the court could not supply a punishment the legislature did not enact. State v. Gonzalez, 216 Ariz. 11, 507 Ariz. Adv. Rep. 12, 162 P.3d 650, 2007 Ariz. App. LEXIS 119 (Ct. App. 2007).

   -- RESTITUTION.
   Post-conviction relief was denied defendant who contested a restitution order in favor of the prison after he was convicted of escape; the order was vacated and the case was remanded for a redetermination of the restitution order because the statutes directed an award of restitution only for damages that flowed directly from defendant's criminal conduct. State v. Guilliams, 208 Ariz. 48, 428 Ariz. Adv. Rep. 3, 90 P.3d 785, 2004 Ariz. App. LEXIS 76 (Ct. App. 2004).

   TIMELINESS.
   When defendant filed a state notice of post-conviction relief after the one-year statute of limitations set forth in 28 U.S.C.S. 2244(d) had expired, even if a state court had accepted the notice of post-conviction relief as permissible under this rule, the state petition would have had no tolling effect on the limitations period under 28 U.S.C.S. § 2244(d). Section 2244(d) does not permit the reinitiation of a one-year limitations period that ended before a state petition was filed. Burris v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 64014 (D. Ariz. Aug. 18, 2006).

2. Rule 32.2. Preclusion of remedy
   Preclusion. -- A defendant shall be precluded from relief under this rule based upon any ground:
   

   1. Still raisable on direct appeal under Rule 31 or on post-trial motion under Rule 24;
   2. Finally adjudicated on the merits on appeal or in any previous collateral proceeding;
   3. That has been waived at trial, on appeal, or in any previous collateral proceeding.

   Exceptions. -- Rule 32.2(a) shall not apply to claims for relief based on Rules 32.1(d), (e), (f), (g) and (h). When a claim under Rules 32.1(d), (e), (f), (g) and (h) is to be raised in a successive or untimely post-conviction relief proceeding, the notice of post-conviction relief must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner. If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed.

   Standard of proof. -- The state shall plead and prove any ground of preclusion by a preponderance of the evidence. Though the state has the burden to plead and prove grounds of preclusion, any court on review of the record may determine and hold that an issue is precluded regardless of whether the state raises preclusion.

   HISTORY: Amended June 2, 1992, effective Sept. 30, 1992; amended Oct. 31, 2000, effective Dec. 1, 2000.

   NOTES:
   EDITOR'S NOTE.
   Prior comments were consolidated and amended effective December 1, 2002. R-01-0015.
   COMMENT
   Rule 32.2(a)(1) precludes relief for any claims that still may be considered by a trial or appellate court under Rule 24, which governs post-trial motions, or under Rule 31, which governs appeals.
   The pre-1992 version of Rule 32.2(a)(3) indicated that a defendant must "knowingly, voluntarily and intelligently" not raise an issue at trial, on appeal, or in a previous collateral proceeding before the issue was precluded. See Fay v. Noia, 372 U.S. 392 (1963). While that is the correct standard of waiver for some constitutional rights, it is not the correct standard for other trial errors. Accordingly, some issues not raised at trial, on appeal, or in a previous collateral proceeding may be deemed waived without considering the defendant's personal knowledge, unless such knowledge is specifically required to waive the constitutional right involved. If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant "knowingly, voluntarily and intelligently" waived the claim. For most claims of trial error, the state may simply show that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding, and that would be sufficient to show that the defendant has waived the claim. See Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002).
   
   Amendments in 2000 to subsection (b) intended to conform to recent statutory changes include a requirement that a defendant set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner. The failure to identify the specific exceptions will allow for dismissal without prejudice on the notice alone. Additionally, the amendments add a claim of actual innocence as an exception to preclusion.
   
   Subsection (c) was amended in 2000 to conform to recent statutory changes.

   JUDICIAL DECISIONS 
   ANALYSIS
   IN GENERAL.
   Pursuant to this rule, state prisoners may not be granted relief on any claim which could have been raised in a prior Rule 32 proceeding. Only if a claim falls within subsection (d), (e), (f), or (g) of Rule 32.1 and the petitioner can justify why the claim was omitted from a prior petition will the preclusive effect of this rule be avoided. Gerlaugh v. Lewis, 898 F. Supp. 1388 (D. Ariz. 1995), aff'd, 129 F.3d 1027 (9th Cir. 1997), cert. denied, 525 U.S. 903, 119 S. Ct. 237, 142 L. Ed. 2d 195 (1998).

   CONSTRUCTION.
   Prisoner did not set forth a basis for an evidentiary hearing on his claims for federal habeas relief because he did not diligently pursue the facts underlying his claims in the state courts: the prisoner failed to present his sufficiency of the evidence claim, his claim of juror bias, and his claim for prosecutorial misconduct on appeal, as required by Ariz. R. Crim. P. 31 and 32.2; he also failed to raise his claim of juror bias and to request a hearing on the issue through a post-trial motion under Ariz. R. Crim. P. 24.1(d). As a result, the prisoner failed to give the state courts the necessary opportunity to make additional factual findings related to his claims and thus was denied an evidentiary hearing under 28 U.S.C.S. § 2254(e)(2). Ruderman v. Ryan, -- F. Supp. 2d --, 2010 U.S. Dist. LEXIS 70271 (D. Ariz. July 13, 2010).

   --IN GENERAL.
   Under the 1998 version of this rule, a claim found to be "precluded" under paragraph (a)(2) appears to be a classic exhausted claim and may therefore be subject to consideration in federal habeas; in contrast, a claim that has been "waived" under paragraph (a)(3) is procedurally defaulted and therefore barred from federal court consideration, absent a showing of cause and prejudice or fundamental miscarriage of justice. Poland v. Stewart, 169 F.3d 573, 1998 U.S. App. LEXIS 35750 (9th Cir. 1999), cert. denied, 528 U.S. 845, 120 S. Ct. 117, 145 L. Ed. 2d 99 (1999).

   --WITH OTHER LAW.
   There was no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constituted the first tier of review for an ineffective assistance of counsel claim; thus, Ariz. R. Crim. P. 32.2 was an adequate and independent basis to support the state court judgment for federal habeas purposes. Mariano Martinez v. Schriro, 623 F.3d 731, 2010 U.S. App. LEXIS 19928 (9th Cir. Sept. 27, 2010).
   
   Pursuant to this rule, habeas petitioners may not be granted relief on any claim which could have been raised in a prior Ariz. R. Crim. P. 32 petition for post-conviction relief. Only if a claim falls within certain exceptions (subsections (d) through (h) of Ariz. R. Crim. P. 32.1) and the petitioner can justify why the claim has been omitted from a prior petition will the preclusive effect of this rule be avoided. McKinney v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 268 (D. Ariz. Jan. 3, 2006).

   APPLICABILITY.
   Inmate's claim alleging that the United States Supreme Court's decision in Atkins prohibited execution of the mentally ill was not colorable under Ariz. R. Crim. P. 32.1(g) where the Supreme Court held that U.S. Const. amend. VIII prohibited execution of the mentally retarded, not the mentally ill; the inmate could not return to state court to exhaust the claim because it did not allege facts or law exempting it from preclusion and untimeliness under Ariz. R. Crim. P. 32.2(a)(3) and 32.4(a). Doerr v. Ryan, -- F. Supp. 2d --, 2010 U.S. Dist. LEXIS 20225 (D. Ariz. Feb. 10, 2010).
   
   Certain habeas corpus claims were barred by procedural default where the inmate could not be granted postconviction relief under this rule on any claim that could have been raised in a prior postconviction petition; Arizona's preclusion rule is an adequate and independent bar to federal review. Because the inmate alleged neither cause and prejudice nor that a fundamental miscarriage of justice would occur if those claims were not reviewed on the merits, the preclusive effect could not be avoided. Jones v. Schriro, 450 F. Supp. 2d 1047, 2006 U.S. Dist. LEXIS 63137 (D. Ariz. 2006).
   
   Where it was not clear that the Arizona state courts would find his claim procedurally barred, or that the district court erred in dismissing defendant's due process claim under 28 U.S.C. § 2254(b)(2) because it was not clear that his claim was not colorable, district court was encouraged to consider defendant's request that the court stay his habeas petition and hold his exhausted claims in abeyance while allowing him to exhaust his federal due process claim in the state courts. Cassett v. Stewart, 406 F.3d 614, 2005 U.S. App. LEXIS 7596 (9th Cir. 2005), cert. denied, 546 U.S. 1172, 126 S. Ct. 1336, 164 L. Ed. 2d 52 (2006).
   
   In reversing the United States Court of Appeals for the Ninth Circuit, the Supreme Court relied on the response to a certified question from the Arizona Supreme Court that Ariz. R. Crim. P. 32.2 did not require courts to evaluate the merits of a particular claim but only to categorize the claim; therefore, Rule 32.2 determinations were independent of federal law, and the district court had properly rejected respondent's habeas petition as procedurally barred and the circuit court had erred in ruling otherwise. Stewart v. Smith, 536 U.S. 856, 122 S. Ct. 2578, 153 L. Ed. 2d 762, 2002 U.S. LEXIS 5165 (2002).
   
   A petition for post-conviction relief is analogous to a direct appeal for a pleading defendant. Although procedurally different, a post-conviction relief proceeding is similar to a direct appeal in that both ensure that a defendant is afforded due process of law and both ultimately seek the same relief, a new trial. State v. Rosas-Hernandez, 202 Ariz. 212, 370 Ariz. Adv. Rep. 7, 42 P.3d 1177, 2002 Ariz. App. LEXIS 42 (Ct. App. 2002).

   EXCEPTIONS.
   State prisoner's claim that the prosecutor engaged in prejudicial misconduct by eliciting bad character evidence that the prisoner had a biker reputation was dismissed as procedurally barred because the prisoner did not fairly present the claim to the state courts; the claim was technically exhausted but procedurally defaulted because the prisoner no longer had an available state remedy. Wood v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 12360 (D. Ariz. Mar. 20, 2006).
   
   State prisoner's objections to a magistrate's recommendation to deny his 28 U.S.C.S. § 2254 petition were overruled because the magistrate properly concluded that the claims were procedurally defaulted and that the prisoner failed to show cause for the default or prejudice attributable to the default. Further, the prisoner did not show actual innocence and did not assert any applicable exceptions to preclusion under this rule. Tacquard v. Schriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 27393 (D. Ariz. Nov. 4, 2005).
   
   Questions regarding whether, in light of amendments to subdivision (b) of this rule, petitioner could raise his claims pursuant to Rule 32.1(f) by alleging that his failure to file a timely petition for review or a Rule 32 petition was without fault on his part were certified to Supreme Court. Moreno v. Gonzales, 116 F.3d 409 (9th Cir. 1997).
   
   Where counsel, at prior proceedings had failed to raise claim based upon a change in law because he did not believe the law was applicable to petitioner at the time, counsel had sufficient reason for failing to argue the claim, the claim would constitute a significant change in the law, and the trial court's preclusion finding was an abuse of discretion. State v. Jensen, 193 Ariz. 105, 970 P.2d 937 (Ct. App. 1998).
   
   Question whether an asserted claim was of "sufficient constitutional magnitude" to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), depended not upon the merits of the particular claim, but rather merely upon the particular right alleged to have been violated. Stewart v. Smith, 202 Ariz. 446, 378 Ariz. Adv. Rep. 86, 46 P.3d 1067, 2002 Ariz. LEXIS 89 (2002).

   INEFFECTIVE ASSISTANCE OF COUNSEL.
   Court erred in denying the inmate's successive notice of postconviction relief filed pursuant to Ariz. R. Crim. P. 32, because the inmate asked for the appointment of different counsel to evaluate whether he might have a claim of ineffective assistance of his previous counsel that he could raise in the subsequent proceeding, and this was sufficient to avoid a summary dismissal of his notice. State v. Petty, -- Ariz. --, 590 Ariz. Adv. Rep. 29, 238 P.3d 637, 2010 Ariz. App. LEXIS 142 (Ct. App. 2010).
   
   Death-sentenced Arizona prisoner was not entitled to Fed. R. Civ. P. 59(e) reconsideration of the district court's order denying his petition for a writ of habeas corpus under 28 U.S.C.S. § 2254 where none of the prisoner's exhibits called into question the authority relied on by the district court in determining the lack of available state remedies for the prisoner's unexhausted ineffective assistance of post-conviction counsel claims. Smith v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 123375 (D. Ariz. Dec. 23, 2009).
   
   Because a prisoner never presented a claim of ineffective assistance based on appellate counsel's failure to raise an allegation of cumulative error, he was now precluded under Ariz. R. Crim. P. 32.2(a)(3) and 32.4 from presenting the claim in state court and could not establish the claim as cause for procedural default for purposes of habeas relief. McKinney v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 73958 (D. Ariz. 2009).
   
   Inmate's habeas petition was dismissed as untimely because, regarding the inmate's argument that some of the claims were of "sufficient constitutional magnitude" that the state had to show that the inmate knowingly, voluntarily, and intelligently waived the claim of ineffective assistance, the claims were not immune from 28 U.S.C.S. § 2244(d). Finley v. Schriro, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 7179 (D. Ariz. Jan. 30, 2009).
   
   Even though a defendant failed to raise the claim of ineffective assistance of counsel in her first petition, the issue was still reviewable because her first postconviction relief counsel could not have alleged that postconviction counsel, himself or herself, was ineffective. State v. Bennett, 213 Ariz. 562, 490 Ariz. Adv. Rep. 12, 146 P.3d 63, 2006 Ariz. LEXIS 125 (2006).
   
   Rule 32.2 did not clearly require the defendant to raise a claim of ineffective assistance of counsel on appeal; therefore, the procedural default is inadequate to bar federal review. Lambright v. Stewart, 241 F.3d 1201, 2001 U.S. App. LEXIS 3364 (9th Cir. 2001).
   
   Absent a showing of cause and prejudice, defendant's claim of ineffective assistance of counsel was procedurally defaulted and could not be considered in federal habeas, where issue had been declared precluded by waiver under subsection (a)(3). Poland v. Stewart, 151 F.3d 1014 (1998), reh'g denied, 169 F.3d 573 (9th Cir. 1999).
   
   Defendant precluded from arguing that new evidence concerning defendant's background, which was available at his trial and previous appeals, should be heard in a petition for post-conviction relief due to his original counsel's ineffective presentation of the evidence. State v. Mata, 185 Ariz. 319, 916 P.2d 1035, cert. denied, 518 U.S. 1042, 117 S. Ct. 20, 135 L. Ed. 2d 1110 (1996).

   PROCEDURAL DEFAULT.
   RELIEF DENIED.
   Prisoner's habeas petition under 28 U.S.C.S. § 2254 was denied because some claims were procedurally barred on state grounds due to the fact that the trial court denied those issues under (a)(3) of this rule, which precludes from postconviction relief claims that could have been raised on appeal, and no cause or fundamental miscarriage of justice was shown. Gordon v. Schriro, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 121138 (D. Ariz. Dec. 30, 2009).
   
   Trial court did not err in failing to consider mitigation evidence under A.R.S.  §§ 13-701, 13-702 and in considering the prisoner's drug use as an aggravating factor; the prisoner was precluded from relief under this rule because he failed to fairly present the claims to the post-conviction review court, and a return to state court would be futile because the time for the prisoner to file a direct appeal under Ariz. R. Crim. P. 31.3 had elapsed. Deberry v. Schriro, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 99081 (D. Ariz. Oct. 22, 2009).
   
   Defendant's second post-conviction relief proceeding was precluded under Ariz. R. Crim. P. 32.2(a) because a prior case was not an Ariz. R. Crim. P. 32.1(g) "significant change in the law;" after the case, the law remained precisely the same, and for purposes of Rule 32.1(g), a change in the law could not be established by the subjective opinions of counsel. State v. Shrum, 220 Ariz. 115, -- Ariz. Adv. Rep. --, 203 P.3d 1175, 2008 Ariz. LEXIS 239 (2008).
   
   State prisoner was not entitled to habeas corpus relief because his claims that: (1) His guilty plea was not knowing, intelligent, and voluntary; (2) Appellate counsel was ineffective; (3) His constitutional rights were violated by the cumulative deficiency of trial, appellate, and post-conviction relief counsel; and (4) Arizona's death penalty statute was unconstitutional, were technically exhausted but procedurally defaulted for purposes of Ariz. R. Crim. P. 32.1(d)-(h), Ariz. R. Crim. P. 32.2(a)(3) and (b), and Ariz. R. Crim. P. 32.4(a). Djerf v. Schriro, -- F. Supp. 2d --, 2008 U.S. Dist. LEXIS 89565 (D. Ariz. Sept. 29, 2008).
   
   Habeas petitioner's claim of judicial bias on resentencing was precluded pursuant to Ariz. R. Crim. P. 32.2(a)(3) because it was not raised at trial or on appeal. Gallegos v. Schriro, 583 F. Supp. 2d 1041, 2008 U.S. Dist. LEXIS 89567 (D. Ariz. 2008).
   
   Although respondent argued that the trial judge responded improperly and inaccurately to a question from the jury during deliberations, respondent did not establish that the particular right alleged to have been violated was of sufficient constitutional magnitude to require a knowing, voluntary and intelligent waiver for purposes of this rule. Because the issue regarding the judge's answer was not raised on appeal in an earlier postconviction proceeding, it was precluded. State v. Swoopes, 216 Ariz. 390, 513 Ariz. Adv. Rep. 4, 166 P.3d 945, 2007 Ariz. App. LEXIS 185 (Ct. App. Sept. 19, 2007).
   
   In seeking habeas relief, an inmate challenged counsel's failure to investigate mitigation evidence, which had been addressed already by the PCR court on independent and adequate state grounds. This claim was procedurally barred following a determination by the PCR court that the claim could have been raised on direct appeal to the state supreme court. Van Adams v. Schriro, -- F. Supp. 2d --, 2007 U.S. Dist. LEXIS 38145 (D. Ariz. May 22, 2007).
   
   Court denied an inmate's 28 U.S.C.S. § 2254 petition, which asserted procedurally defaulted claims and meritless claims of ineffective assistance of counsel; a state court's finding that the inmate's claims were barred by this rule was an adequate and independent state ground for rejecting the inmate's claims. Ross v. Goddard, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 65903 (D. Ariz. Sept. 14, 2006).
   
   Petitioner seeking habeas corpus relief under 28 U.S.C.S. § 2254 was precluded by paragraph (a)(3) and Ariz. R. Crim. P. 32.4 from obtaining relief in state court because the post-conviction relief court decided that issue against the petitioner and the petitioner had not sought review of the determination on his petition for review to the Arizona Supreme Court, and the petitioner did not assert any exception under Rule 32.1(d)-(h); those claims were technically exhausted but procedurally defaulted absent a showing of cause and prejudice or a fundamental miscarriage of justice. Rogovich v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 37041 (D. Ariz. June 6, 2006).
   
   Prisoner failed to comply with the requirements of Ariz. R. Crim. P. 32.9, and failed to fairly present claims of prosecutorial misconduct to the Arizona Supreme Court; although the claims were technically exhausted, they were procedurally defaulted because they did not allege facts or law exempting them from preclusion and untimeliness. Wood v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 12360 (D. Ariz. Mar. 20, 2006).
   
   State inmate's motion for reconsideration of the denial of his motion for evidentiary development in support of various habeas corpus claims was denied as, inter alia, his claim that the trial court erred by failing to replace counsel due to irreconcilable differences was procedurally barred by Ariz. R. Crim. P. 32.2(a)(3); where claim was not one for ineffective assistance of counsel as it was directed at the trial court, it should have been raised on direct appeal. Murray v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 3446 (D. Ariz. Jan. 26, 2006).
   
   Although several sentencing claims by a death-sentenced Arizona inmate were procedurally defaulted under paragraph (a)(3) of this rule and under Ariz. R. Crim. P. 32.4(a); the inmate was entitled to consideration of his claim that the trial court violated U.S. Const. amends. VIII and XIV by failing to consider and weigh relevant mitigating evidence under A.R.S.  § 13-703 because the Arizona Supreme Court's actual review of the trial court's consideration and weighing of mitigating evidence sufficiently exhausted the claim for purposes of 28 U.S.C.S. § 2254(b)(1). Lopez v. Schriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 26901 (D. Ariz. 2005).
   
   Defendants were precluded from seeking postconviction relief on grounds that were adjudicated, or could have been raised and adjudicated, in a prior appeal or prior petition for postconviction relief. State v. Curtis, 185 Ariz. 112, 912 P.2d 1341 (Ct. App. 1995). (Disapproved to the extent that the question of whether an asserted ground is of sufficient constitutional magnitude to require a knowing and intelligent waiver, depends on the merits of the particular grounds, in Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (Ariz. 2002)).

   SUMMARY DISMISSAL.
   Pursuant to 28 U.S.C.S. § 2254, the court dismissed certain aspects of six of the inmate's claims, and nine of the claims, under Ariz. R. Crim. P. 32.4 and this rule, because the issues were not raised in state court and were procedurally barred. Murray v. Schriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 22296 (D. Ariz. Sept. 29, 2005).
   
   When preclusion is evident from the petition and from the court's own files, a trial court may screen and summarily dismiss a prior appeal or prior petition for postconviction relief on grounds of preclusion without putting the state to the burden of a response. State v. Curtis, 185 Ariz. 112, 912 P.2d 1341 (Ct. App. 1995). (Disapproved to the extent that the question of whether an asserted ground is of sufficient constitutional magnitude to require a knowing and intelligent waiver, depends on the merits of the particular grounds, in Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (Ariz. 2002)).

   WAIVER.
   Where petitioner state prisoner filed a petition for federal habeas relief, the district court determined petitioner's ineffective assistance of counsel claims were waived under this rule by her failure to bring them in the first petition for post-conviction relief. Celaya v. Stewart, 691 F. Supp. 2d 1046, 2010 U.S. Dist. LEXIS 17091 (D. Ariz. Feb. 25, 2010).
   
   Capital prisoner's constitutional rights were not violated by the denial of his severance motion to require habeas relief because the state court's determination that the claim had been waived under Ariz. R. Crim. P. 32.2 constituted an adequate state procedural bar and the prisoner did not attempt to demonstrate cause and prejudice or a fundamental miscarriage of justice. McKinney v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 73958 (D. Ariz. 2009).
   
   State death row inmate was denied habeas relief under 28 U.S.C.S. § 2254; the inmate's ineffective assistance of counsel claims were procedurally barred as waived under (a)(3) of this rule. Lee v. Schriro, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 324 (D. Ariz. Jan. 6, 2009).

   Rule 32.3. Nature of proceeding and relation to other remedies
   This proceeding is part of the original criminal action and not a separate action. It displaces and incorporates all trial court post-trial remedies except post-trial motions and habeas corpus. If a defendant applies for a writ of habeas corpus in a trial court having jurisdiction of his or her person raising any claim attacking the validity of his or her conviction or sentence, that court shall under this rule transfer the cause to the court where the defendant was convicted or sentenced and the latter court shall treat it as a petition for relief under this rule and the procedures of this rule shall govern.
   
   

   HISTORY: Amended June 2, 1992, effective Sept. 30, 1992; amended July 28, 1993, effective Dec. 1, 1993; amended Oct. 31, 2000, effective Dec. 1, 2000.

   NOTES:
   COMMENT
   [1992 AMENDMENT]
   COMMENT TO RULE 32.3: The court does not intend to restrict by this rule the constitutional scope of the writ of habeas corpus.
   [1973 PROMULGATION]
   This section provides that all Rule 32 proceedings, regardless of the grounds presented and their past characterizations, are to be treated as criminal actions. The characterization of the proceeding as criminal assures compensation for appointed counsel and the applicability of criminal standards for admissibility of evidence at an evidentiary hearing except as otherwise provided.
   Rule 32 is intended to provide a standard procedure for accomplishing the objectives of all constitutional, statutory, or common law post-trial writs and remedies except those specified in this section. As required by Ariz. Const. art. 2, § 14, the writ of habeas corpus is retained. See Ariz. Rev. Stat. Ann. §§ 13-2001 et seq. (1956). However, it is subordinated to the remedy provided by this rule in much the same way as the federal writ of habeas corpus, 28 U.S.C. § 2241 (1970) is subordinated for federal prisoners to the motion to vacate judgment. 28 U.S.C. § 2255 (1970). United States v. Hayman, 342 U.S. 205 (1952).
   

4. Rule 32.4. Commencement of proceedings
   a. Form, filing and service of petition. -- A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred. The court shall provide notice forms for commencement of all post-conviction relief proceedings. In a Rule 32 of-right proceeding, the notice must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the final order or mandate by the appellate court in the petitioner's first petition for post-conviction relief proceeding. In all other non-capital cases, the notice must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later. In a capital case, the clerk of the Supreme Court shall expeditiously file a notice for post-conviction relief with the trial court upon the issuance of a mandate affirming the defendant's conviction and sentence on direct appeal. Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h). The notice shall bear the caption of the original criminal action or actions to which it pertains. On receipt of the notice, the court shall file a copy of the notice in the case file of each such original action promptly send copies to the defendant, the county attorney, the defendant's attorney, if known, and the attorney general or the prosecutor, noting in the record the date and manner of sending the copies. If the conviction occurred in a court other the the Superior Court, the copy shall be sent to the office of the prosecuting attorney who represented the state at trial. The state shall notify any victim who has requested notice of post-conviction proceedings.
   

   b. Notification of appellate court. -- If an appeal of the defendant's conviction, sentence, or both is pending, the clerk, or the court, within 5 days after the filing of the notice for post-conviction relief, shall send a copy of the notice to the appropriate appellate court, noting in the record the date and manner of sending the copies.

   c.Appointment of counsel.
   

   1. Capital cases. -- After the Supreme Court has affirmed a defendant's conviction and sentence in a capital case, the Supreme Court, or if authorized by the Supreme Court, the presiding judge of the county from which the case originated, shall appoint counsel for the defendant pursuant to A.R.S.  § 13-4041 and Rule 6.8 if the defendant is determined to be indigent. If the appointment is made by the presiding judge, a copy of the court's order appointing counsel shall be filed in the Supreme Court.
      
      Upon the filing of a successive notice, the presiding judge shall appoint the previous post-conviction counsel of the capital defendant unless counsel is waived or good cause is shown to appoint another qualified attorney from the list described in A.R.S.  § 13-4041.
      
      On the first notice in capital cases, appointed counsel for the defendant shall have one hundred twenty days from the filing of the notice to file a petition raising claims under Rule 32.1. A capital defendant proceeding without counsel shall have one hundred twenty days from the filing of the notice to file a petition. On the filing of a successive notice, appointed counsel, or the defendant if proceeding without counsel, shall file the petition within thirty days from the filing of the notice. On a showing of good cause, a defendant in a capital case may be granted a sixty day extension in which to file the petition. Additional extensions of thirty days may be granted for good cause. If a petition for post-conviction relief is not filed within one hundred and eighty days from the date of appointment of counsel, or one hundred and eighty days from the date the notice is filed, or the date a request for counsel is denied if the defendant is proceeding without counsel, the defendant or counsel for the defendant shall file a notice in the Supreme Court, advising the court of the status of the proceedings. Thereafter, defendant or counsel for the defendant shall file status reports in the Supreme Court every sixty days until the petition for post-conviction relief is filed.
      
      
   2. Rule 32 of-right and non-capital cases. -- Upon the filing of a timely or first notice in a Rule 32 proceeding, the presiding judge, or his or her designee, shall appoint counsel for the defendant within 15 days if requested and the defendant is determined to be indigent. Upon the filing of all other notices in non-capital cases, the appointment of counsel is within the discretion of the presiding judge. In non -capital cases appointed counsel for the defendant shall have sixty days from the date of appointment to file a petition raising claims under Rule 32.1. On a showing of good cause, a defendant in a non-capital case may be granted a thirty day extension within which to file the petition. Additional extensions of thirty days shall be granted only upon a showing of extraordinary circumstances.
      
      In a Rule 32 of-right proceeding, counsel shall investigate the defendant's case for any and all colorable claims. If counsel determines there are no colorable claims which can be raised on the defendant's behalf, counsel shall file a notice advising the court of this determination. Counsel's role is then limited to acting as advisory counsel until the trial court's final determination. Upon receipt of the notice, the court shall extend the time for filing a petition by the defendant in propria persona. The extension shall be 45 days from the date the notice is filed. Any extensions beyond the 45 days shall be granted only upon a showing of extraordinary circumstances.
      
      A defendant proceeding without counsel shall have sixty days to file a petition from the date the notice is filed or from the date the request for counsel is denied.

   d. Transcript preparation. -- If the trial court proceedings have not been previously transcribed, the defendant may request on a form provided by the clerk of court that certified transcripts be prepared. The court shall expeditiously review the request and order only those transcripts prepared that it deems necessary to resolve the issues to be raised in the petition. The preparation of the transcripts shall be at county expense if the defendant is indigent. The time for filing the petition shall be tolled from the time a request for the transcripts is made until the transcripts are prepared or the request is denied. Certified transcripts shall be prepared and filed within sixty days of the order granting the request.

   e. Assignment of judge. -- The proceeding shall be assigned to the sentencing judge where possible. If it appears that the sentencing judge's testimony will be relevant, that judge shall transfer the case to another judge.

   f. Stay of execution of death sentence; notification by Supreme Court. -- If the defendant has received a sentence of death and the Supreme Court has fixed the time for execution of the sentence, no stay of execution shall be granted upon the filing of a successive petition except upon separate application for a stay to the Supreme Court, setting forth with particularity those issues not precluded under Rule 32.2. The Clerk of the Supreme Court shall notify the defendant, the Attorney General, and the Director of the State Department of Corrections of the granting of a stay.

   HISTORY: Amended Oct. 21, 1980, effective Dec. 1, 1980; amended Oct. 11, 1989, effective Dec. 1, 1989; amended June 2, 1992, effective Sept. 30, 1992; amended Sept. 24, 1992, effective Sept. 30, 1992; amended and effective Feb. 25, 1993; amended July 28, 1993, effective Dec. 1, 1993; amended Oct. 31, 2000, effective Dec. 1, 2000; amended May 31, 2002, effective June 1, 2002; amended by R-05-0009, effective Dec. 1, 2005; amended eff. Jan. 1, 2007 by R-05-0037.

   NOTES:
   COMMENT
   [1973 PROMULGATION]
   RULE 32.4(A).    For purposes of uniformity, completeness, and efficiency, the rules require the petition to be filed on a standard form. See Rule 32.5(a).
   Copies of the petition are to be sent to the attorney general as well as to the county attorney in order to comply with the jurisdictional requirements of Ariz. Rev. Stat. Ann. § 13-1516 (Cum. Supp. 1972).
   
   Subject to Rule 32.2, the petition may be filed at any time after entry of judgment and sentence. This is to provide an immediate remedy for issues not part of the trial record and not appropriate for post-trial motions under Rule 24.
   
   RULE 32.4(B).    If a petition is filed while an appeal is pending, the appellate court, under Rule 31.4(a), may stay the appeal until the petition is adjudicated. Any appeal from the decision on the petition will then be joined with the appeal from the judgment or sentence. See Rule 31.4(b)(2).
   
   RULE 32.4(C).   This rule favors the policy of giving a judge already familiar with the case the opportunity to correct any errors. Nothing in this section is intended to prohibit the sentencing judge from excusing himself if he believes that it may be inappropriate for him to preside over and decide the case, ABA, Standards, supra, at § 1.4(c), nor to limit a party's right to disqualify a judge under Rule 10.1 and 10.2.
   
   [1992 AMENDMENT]
   COMMENT TO RULE 32.4 (F).
   Warrants of execution will not be issued until the first petition for post-conviction relief is resolved. Therefore, Rule 32.4(f) only addresses staying warrants of execution in the case of second or subsequent petitions.
   
   COMMITTEE COMMENT TO 1993 AMENDMENT
   The 1993 amendment to Rule 32.4 was designed to adapt the rule to the circumstances in all courts. It deleted language in Rule 32.4(a) referring to the "clerk of the court," leaving only "the court." It also added "the prosecutor" to the list of persons to whom a copy of the notice of post-conviction relief is sent, for cases in which it is not appropriate to send the notice to the attorney general.
   
   COMMENT TO 2000 AMENDMENT
   Amendments to subsection (a) are to meet the requirements of Montgomery and State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1996). In Pruett, the court held that a pleading defendant is constitutionally entitled to effective assistance of counsel on the first petition for post-conviction relief, the counterpart to a direct appeal. Consequently, the rule is amended to allow the pleading defendant thirty days within which to file a second notice if the defendant seeks to challenge counsel's effectiveness in the Rule 32 of-right proceeding.
   
   Amendments to subsection (c) are to separate capital from non-capital cases. Paragraph (1) brings the rule in line with new A.R.S.  § 13-4041 and Rule 6.8 as adopted by the Supreme Court on October 22, 1996, effective November 1, 1996, which requires notification to the Supreme Court if a petition is not filed within 180 days from the filing of the notice for post-conviction relief, and requires montly status reports thereafter.
   
   Paragraph (2) requires appointment of counsel upon the timely filing of a first notice in a Rule 32 proceeding, when requested, but makes all other appointments of counsel in non-capital cases discretionary. The paragraph adds language to permit counsel to comply with Lammie v. Barker, 185 Ariz. 263, 915 P.2d 662 (1996).
   
   Subsection (d) is amended to substitute "transcripts" for "record", provides for expeditious review of a request for transcripts, allows the court to limit transcripts to those deemed necessary to resolve the issues to be raised, and prescribes a time limit for preparation of transcripts.

   JUDICIAL DECISIONS 
   ANALYSIS

   IN GENERAL.
   Petitioner seeking habeas corpus relief under 28 U.S.C.S. § 2254 was precluded by Ariz. R. Crim. P. 32.2(a)(3) and this rule from obtaining relief in state court on his claims of the violation of his Fourteenth Amendment rights arising out of the state's failure to collect biological evidence from the petitioner in the form of breath, blood or urine samples, despite knowledge of his potential intoxication at the time of the crimes or his arrest. Rogovich v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 37041 (D. Ariz. June 6, 2006).
   
   State rules do not bar federal review if they are so unclear that they do not provide a reasonable opportunity to seek relief in state court; subsection (c) incorporates express provisions for extensions based upon good cause, but no criteria for good cause are provided. the rule has not been exercised consistently to bar a capital petition as untimely and is not firmly established. Williams v. Schriro, 423 F. Supp. 2d 994, 2006 U.S. Dist. LEXIS 12424 (D. Ariz. 2006).

   CLAIM DEFAULTED.
   Because a prisoner never presented a claim of ineffective assistance based on appellate counsel's failure to raise an allegation of cumulative error, he was now precluded under Ariz. R. Crim. P. 32.2(a)(3) and 32.4 from presenting the claim in state court and could not establish the claim as cause for procedural default for purposes of habeas relief. McKinney v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 73958 (D. Ariz. 2009).
   
   State prisoner was not entitled to habeas corpus relief because his claims that: (1) His guilty plea was not knowing, intelligent, and voluntary; (2) Appellate counsel was ineffective; (3) His constitutional rights were violated by the cumulative deficiency of trial, appellate, and post-conviction relief counsel; and (4) Arizona's death penalty statute was unconstitutional, were technically exhausted but procedurally defaulted for purposes of Ariz. R. Crim. P. 32.1(d)-(h), Ariz. R. Crim. P. 32.2(a)(3) and (b), and Ariz. R. Crim. P. 32.4(a). Djerf v. Schriro, -- F. Supp. 2d --, 2008 U.S. Dist. LEXIS 89565 (D. Ariz. Sept. 29, 2008).
   
   Although several sentencing claims by a death-sentenced Arizona inmate were procedurally defaulted under Ariz. R. Crim. P. 32.2(a)(3) and this rule, the inmate was entitled to consideration of his claim that the trial court violated U.S. Const. amends. VIII and XIV by failing to consider and weigh relevant mitigating evidence under A.R.S.  § 13-703 because the Arizona Supreme Court's actual review of the trial court's consideration and weighing of mitigating evidence sufficiently exhausted the claim for purposes of 28 U.S.C.S. § 2254(b)(1). Lopez v. Schriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 26901 (D. Ariz. 2005).

   FILING.
   Pursuant to 28 U.S.C.S. § 2254, the court dismissed certain aspects of six of the inmate's claims, and nine of the claims, under Ariz. R. Crim. P. 32.2(a)(3) and this rule, because the issues were not raised in state court and were procedurally barred. Murray v. Schriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 22296 (D. Ariz. Sept. 29, 2005).
   
   The language of subsection (a) of this rule permits a defendant with an appeal pending to file notice of postconviction relief at any time before 30 days after the mandate in his appeal has been issued by the appellate court. State v. Jones, 182 Ariz. 432, 897 P.2d 734 (Ct. App. 1995).
   
   While subsection (a) establishes the time limits within which a petitioner must file a notice of postconviction relief, it also provides that a petitioner may pursue, at any time, claims for relief based on Rule 32.1(d), (e), (f) and (g). State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (Ct. App. 1995).
   
   The supreme court amended subsection (a) in 1992 to address potential abuse by defendants caused by the old rule's unlimited filing periods. State v. Jones, 182 Ariz. 432, 897 P.2d 734 (Ct. App. 1995).

   NOTICE.
   This rule requires all post-conviction petitioners to file a notice of post-conviction relief to alert the superior court that it might need to appoint counsel and that notice must contain a request for relief from the judgment of conviction; the post-conviction process cannot go forward until the notice is filed and the guarantee of counsel fulfilled. Isley v. Ariz. Dep't of Corr., 383 F.3d 1054, 2004 U.S. App. LEXIS 19321 (9th Cir. 2004).

   PRECLUSION.
   Where inmate alleged neither cause and prejudice nor that a fundamental miscarriage of justice would occur if his claims were not reviewed on the merits, the preclusive effect could not be avoided. Jones v. Schriro, 450 F. Supp. 2d 1047, 2006 U.S. Dist. LEXIS 63137 (D. Ariz. 2006).

   SECOND PETITION.
   Trial court was not required to, nor did it abuse its discretion by failing to, appoint counsel for defendant in his second post-conviction relief proceeding. State v. McDonald, 192 Ariz. 44, 960 P.2d 644 (Ct. App. 1998).
   A second notice of postconviction relief for a claim of ineffectiveness of previous Rule 32 counsel is timely if filed within 30 days of the order and mandate affirming the trial court's denial of the petitioner's first petition for postconviction relief. State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (Ct. App. 1995).

   TIME LIMITS.
   This rule applied to deny petitioner prisoner an extension of time to file a post-conviction claim after Brady material was disclosed; every first request for an extension of time in a capital case had been granted previously in Arizona courts. As a result of the state court's arbitrary application of its rules, there was no state court decision to which a federal habeas court could defer, and thus, the deference for state court determinations did not apply and review of the claim was de novo. Williams v. Ryan, 623 F.3d 1258, 2010 U.S. App. LEXIS 22073 (9th Cir. Oct. 26, 2010).
   
   Magistrate judge correctly found that a 28 U.S.C.S. § 2254 habeas petition filed by an Arizona inmate several years after he was sentenced for manslaughter was untimely. The petition was not filed within one year after the expiration of time for seeking an of-right proceeding under Ariz. R. Crim. P. 32.4, the alleged failure of post-conviction counsel to obtain transcripts was not an impediment caused by the state, and Blakely and Cunningham were not retroactively applicable. Hillman v. Schriro, -- F. Supp. 2d --, 2008 U.S. Dist. LEXIS 97697 (D. Ariz. Dec. 1, 2008).
   
   Prisoner's habeas application under 28 U.S.C.S. § 2254 was dismissed because his habeas claims were procedurally defaulted in that exhaustion of the claims was impossible based on timeliness under Ariz. R. Crim. P. 32.9 and 32.4 and there was no showing of cause and prejudice or a fundamental miscarriage of justice to excuse procedural default. Pickens v. Schriro, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 79114 (D. Ariz. Sept. 3, 2009).
   
   Habeas petitioner's claim that she was denied her right to a public trial due to her case being referred to a court commissioner appointed as a judge pro tempore did not fall within the scope of the exceptions enumerated in Ariz. R. Crim. P.32.1(d), (e), (f), (g), or (h). Consequently, she was bound by the time constraints set forth in Rule 32.4(a). Kajander v. Schroeder, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 7183 (D. Ariz. Jan. 30, 2009).
   
   Prisoner failed to comply with the requirements of Ariz. R. Crim. P. 32.9, and failed to fairly present claims of prosecutorial misconduct to the Arizona Supreme Court; although the claims were technically exhausted, they were procedurally defaulted because they did not allege facts or law exempting them from preclusion and untimeliness. Wood v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 12360 (D. Ariz. Mar. 20, 2006).
   
   State prisoner's claim that the prosecutor engaged in prejudicial misconduct by eliciting bad character evidence that the prisoner had a biker reputation was dismissed as procedurally barred because the prisoner did not fairly present the claim to the state courts; the claim was technically exhausted but procedurally defaulted because the prisoner no longer had an available state remedy. Wood v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 12360 (D. Ariz. Mar. 20, 2006).
   
   In a habeas proceeding, a death-sentenced Arizona prisoner was entitled to limited discovery under R. Governing § 2254 Cases U.S. Dist. Cts. 6(a), expansion of the record under R. Governing § 2254 Cases U.S. Dist. Cts. 7, and an evidentiary hearing under R. Governing § 2254 Cases U.S. Dist. Cts. 8 and 28 U.S.C.S. § 2254(e)(2) because he raised a colorable due process claim that the state violated his right to a fair trial under Brady by withholding exculpatory evidence that another potential suspect existed for the offense and because he was diligent in developing his claim in state court. The state court's dismissal of the prisoner's petition as untimely was not an adequate bar to federal review because it is not firmly established under this rule that a capital post-conviction relief petition was subject to dismissal for lack of good cause in seeking a first extension of time to file a petition. Williams v. Schriro, 423 F. Supp. 2d 994, 2006 U.S. Dist. LEXIS 12424 (D. Ariz. 2006).
   
   Dismissal of motion for postconviction relief was vacated and remanded because once the applicant's sentence no longer existed, no sentencing date was available to be used to calculate the time for initiating a postconviction proceeding, and the applicant's notice of postconviction relief, filed just sixteen days after the resentencing, was timely, Ariz. R. Crim. P. 32.4. State v. Viramontes, 211 Ariz. 115, 459 Ariz. Adv. Rep. 9, 118 P.3d 630, 2005 Ariz. App. LEXIS 103 (Ct. App. 2005).
   
   Subsections D and F of § 13-4234, defining time limits for filing a petition for post-conviction relief, conflict with subsection (c) of this rule, and thus violate the separation of powers doctrine. State ex rel. Napolitano v. Brown, 194 Ariz. 340, 982 P.2d 815 (1999).

   TOLLING OF LIMITATIONS PERIOD.
   Defendant failed to demonstrate that equitable tolling of the one-year limitations period of 28 U.S.C.S. § 2244(d) was warranted when he knew at the time he was sentenced on his conviction for attempted child molestation about a letter from one of his stepdaughters, which was used as a basis for his aggravated sentence, and he was made aware of the 90-day period for filing an appropriate state petition for relief under this rule. Burris v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 64014 (D. Ariz. Aug. 18, 2006).
   
   Habeas petitioner was granted equitable tolling during the pendency of his state proceedings for post-trial relief, but procedurally defaulted his ineffective assistance claim, and failed to file his federal petition in time, despite the tolling. Flowers v. Gaspar, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 25329 (D. Ariz. 2005).
   
   District court improperly dismissed as untimely an inmate's federal habeas petition brought under 28 U.S.C.S. § 2244 on the ground that the petition was not filed within the one-year limitations period set forth in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.S. § 2244(d)(1)(A); the inmate's state post-conviction petition was pending within the meaning of § 2244(d) from the date the inmate filed his notice of post-conviction proceeding, as required by this rule, where such notice contained a request for relief from judgment of conviction and began the state post-conviction proceedings. Isley v. Ariz. Dep't of Corr., 383 F.3d 1054, 2004 U.S. App. LEXIS 19321 (9th Cir. 2004)

5. Rule 32.5. Contents of petition
   The defendant shall include every ground known to him or her for vacating, reducing, correcting or otherwise changing all judgments or sentences imposed upon him or her, and certify that he or she has done so. Facts within the defendant's personal knowledge shall be noted separately from other allegations of fact and shall be under oath. Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition shall be attached to it. Legal and record citations and memoranda of points and authorities are required. In Rule 32 of-right and non-capital cases, the petition shall not exceed 25 pages. The response shall not exceed 25 pages, and any reply shall not exceed 10 pages. In capital cases, the petition shall not exceed 40 pages. The response shall not exceed 40 pages, and any reply shall not exceed 20 pages. A petition which fails to comply with this rule shall be returned by the court to the defendant for revision with an order specifying how the petition fails to comply with the rule. A petition that has been revised to comply with the rule shall be returned by the defendant for refiling within 30 days after defendant's receipt of the non-complying petition. If the petition is not so returned, the court shall dismiss the proceeding with prejudice. The period for response by the state shall begin on the date a returned petition is refiled.
   
   HISTORY: Amended April 11, 1989, effective July 1, 1989; amended June 2, 1992, effective Sept. 30, 1992; amended Sept. 24, 1992, effective Sept. 30, 1992; amended and effective Feb. 25, 1993; amended July 28, 1993, effective Dec. 1, 1993; amended Oct. 31, 2000, effective Dec. 1, 2000; amended Sept. 20, 2006, eff. Jan. 1, 2007 by R-05-0030.

   NOTES:
   COMMENT TO 2000 AMENDMENT
   The amendments prescribe page limitations for petitions for post-conviction relief in all cases. They provide that, where a defendant's non-complying petition has been returned to him and he has not refiled a petition which complies with the rules within 30 days, the court shall dismiss the proceedings with prejudice.
   
   [1973 PROMULGATION]
   The petitioner should be afforded appointment of counsel for his or her first petition for post-conviction relief. Upon a subsequent petition for post-conviction relief the court may appoint counsel or decline to appoint counsel. If the court declines to appoint counsel it must state the reason for its decision in writing.
   
   The court shall appoint counsel when petitioner first raises a claim of ineffective assistance of counsel. If the first petition for post-conviction relief includes a claim of ineffective assistance of counsel, then the court is not required to appoint counsel on a second petition claiming ineffective assistance of counsel. Any petition for post-conviction relief filed by a person under sentence of death shall result in the appointment of counsel.
   
   The time within which appointed counsel may file an amended petition is expanded from fifteen (15) days to thirty (30) days. The expansion of time is afforded for the benefit of appointed counsel residing outside of Maricopa and Pima counties. Paperwork associated with the appointment of counsel is frequently delayed and as a matter of course appointed counsel are granted an extension of thirty (30) days in addition to the fifteen (15) days provided by the Rule. It is presumed that expanding the period of time from fifteen (15) to thirty (30) days will reduce the need for additional extensions of time.
   
   RULE 32.5 (A).   Rather than prescribing an exhaustive list of contents, section (a) requires the use of a standard form. The form (Form XXV), enables the court to have all relevant information before it as early as possible, facilitates review of the petition's adequacy, and gives additional notice to the petitioner of the requirements of the rule. See ABA, Standards Relating to Post-Conviction Remedies § 3.2 (Approved Draft, 1968); Cf. Post-Conviction Form No. 1, Ariz. Sup. Ct. R. 1 (a).
   
   The rule requires the petitioner to list every ground for relief known to him and to verify under oath that he has done so. This is intended to encourage consolidation of all claims into a single proceeding and to evidence knowing and intelligent relinquishment of claims known but not made, see Rule 32.2. To aid compliance with this requirement, the form contains a check-list of grounds for relief modeled after the form provided by Pennsylvania Rules of Criminal Procedure 1501.
   
   While a memorandum of points and authorities as defined in Ariz. Sup. Ct. R. 5 (b) (9) is not required, arguments which clarify and support the grounds for relief presented are neither precluded nor discouraged.
   
   To afford the petitioner a maximum opportunity to state his claim, incompleteness is grounds for return, not dismissal of the petition.
   
   RULE 32.5 (B).   The procedures and standards for appointment of counsel are intended to conform with those in Rule 6. Counsel is appointed at this time in order to permit a full decision on the petition as quickly as possible and to equalize the position of indigent and non-indigent petitioners. No time-consuming preliminary screening is required. Appointed counsel's first duty is to insure that the petitioner has included all his grounds for relief in one petition and to file an amended petition when necessary to do so.

   JUDICIAL DECISIONS 
   ANALYSIS

   DUE DILIGENCE.
   Prisoner was not entitled to depositions to support his 28 U.S.C.S. § 2254 habeas claims of constitutional violations because the request was too vague to show good cause, and the prisoner was not diligent in pursuing the new facts in state court in his postconviction petition under this rule. Jernigan v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 110550 (D. Ariz. Nov. 23, 2009).
   
   Under Arizona law, habeas petitioner had a duty to file affidavits, records, or other evidence available to him to support the allegations raised in his postconviction relief petition. In failing to include such information, petitioner did not exercise due diligence. Henry v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 21510 (D. Ariz. Mar. 17, 2009).

   NEW CLAIMS.
   Trial court properly declined to consider petitioner's claims of ineffective assistance of trial and appellate counsel that were first raised in a postconviction reply brief because by raising two new claims in the reply brief, petitioner essentially sought to amend the postconviction petition without leave of the trial court. State v. Lopez, 223 Ariz. 238, 571 Ariz. Adv. Rep. 20, 221 P.3d 1052, 2009 Ariz. App. LEXIS 782 (Ct. App. 2009).

6. Rule 32.6. Additional pleadings; summary disposition; amendments
   a. Prosecutor's response. -- Forty-five days after the filing of the petition, the state shall file with the court and send to the defendant or counsel for the defendant, a response. Affidavits, records or other evidence available to the state contradicting the allegations of the petition shall be attached to it. On a showing of good cause, the state may be granted a thirty day extension to file a response. Additional extensions shall be granted only upon a showing of extraordinary circumstances.
   

   b. Defendant's reply. -- Within fifteen days after receipt of the response, the defendant may file a reply. Extensions shall be granted only upon a showing of extraordinary circumstances.

   c. Summary disposition. -- The court shall review the petition within twenty days after the defendant's reply was due. On reviewing the petition, response, reply, files and records, and disregarding defects of form, the court shall identify all claims that are procedurally precluded under this rule. If the court, after identifying all precluded claims, determines that no remaining claim presents a material issue of fact or law which would entitle the defendant to relief under this rule and that no purpose would be served by any further proceedings, the court shall order the petition dismissed. If the court does not dismiss the petition, the court shall set a hearing within thirty days on those claims that present a material issue of fact or law. If a hearing is ordered, the state shall notify the victims, upon the victims' request pursuant to statute or court rule relating to victims' rights, of the time and place of the hearing.

   c. Amendment of pleadings. -- After the filing of a post-conviction relief petition, no amendments shall be permitted except by leave of court upon a showing of good cause.

   HISTORY: Amended June 2, 1992, effective Sept. 30, 1992; amended Oct. 31, 2000, effective Dec. 1, 2000.

   NOTES:
   COMMITTEE COMMENT TO 2000 AMENDMENT
   The amendments to subsections (a) and (b) clarify that the appropriate party must make a showing of extraordinary circumstances to be granted an extension of time to file pleadings. This does not preclude the court from reviewing the petition on its own initiative.
   
   [1973 PROMULGATION]
   RULE 32.6 (A).   Section (a) is based upon the second Revised Uniform Post-Conviction Act § 6 (a) (1966), and ABA, Standards Relating to Post-Conviction Remedies §§ 4.2 - 4.4 (Approved Draft, 1968). It requires the prosecutor to respond within 20 days after the petition has been filed and to include those portions of the record and transcript bearing on the issues raised in the petition.  Ariz. Sup. Ct. R. 1 (e) and 4 (b) permit only 5 days for a response.
   
   RULES 32.6 (C) AND (D).
   Section (c) makes clear that plenary consideration is available for petitions raising factual issues, legal issues or both. It also instructs the court to make a final adjudication of all the petitioner's claims--those lurking in the background as well as those specified. For this reason, section (d) provides a liberal policy toward amendments to the pleadings.
   
   If the court finds from the pleadings and record that all of the petitioner's claims are frivolous and that it would not be beneficial to continue the proceedings, it may dismiss the petition. Such decision should be made without regard to defects in form. Both § 6 (b) of the Uniform Act, supra, and §§ 4.2, 4.3 (d) and (e) of the ABA, Standards, supra, provide for a summary disposition at this stage. However, if the court finds any colorable claim, it is required by Townsend v. Sain, 372 U.S. 293 (1963) to make a full factual determination before deciding it on its merits.

   JUDICIAL DECISIONS
   ANALYSIS

   APPLICABILITY.
   Where defendant filed his notice of postconviction relief on February 28, 1994, his case was governed by the current version of the rule. State v. Rodriguez, 183 Ariz. 331, 903 P.2d 639 (Ct. App. 1995).
    
   BAR TO FEDERAL HABEAS REVIEW.
   Because Ariz. R. Crim. P. 32.6(d) allowed amendments even for dismissed petitions, and the state judge did not conduct an analysis on whether good cause for the amendment was shown, it was not an adequate and consistently applied state procedural rule barring the federal court's review of petitioner state death row inmate's proposed ineffective assistance of trial counsel claims. Scott v. Schriro, 567 F.3d 573, 2009 U.S. App. LEXIS 11932 (9th Cir. 2009).
    
   CLAIM FOR RELIEF.
   Petitioner set out a colorable claim for relief in arguing that counsel's failure, at the murder trial, to offer a witness' prior testimony to demonstrate a claim of perjury fell below an objective standard of reasonableness as measured by prevailing professional norms. State v. Prince, 211 Ariz. Adv. Rep. 40, 1996 Ariz. App. LEXIS 43 (Ct. App. March 5, 1996).
   
   Defendant who claimed that he was induced to accept plea agreement on advice of trial counsel, based on counsel's allegedly incorrect statements of the possible sentence for armed robbery with a simulated weapon while on probation, presented a colorable claim of prejudice in the plea agreement, and was entitled to an evidentiary hearing on the claim. State v. Bowers, 192 Ariz. 419, 966 P.2d 1023 (Ct. App. 1998).
    
   DISCRETION TO DISMISS.
   A trial court has discretion to dismiss a petition on the grounds of preclusion without awaiting the state's response. State v. Curtis, 185 Ariz. 112, 912 P.2d 1341 (Ct. App. 1995). (Disapproved to the extent that the question of whether an asserted ground is of sufficient constitutional magnitude to require a knowing and intelligent waiver, depends on the merits of the particular grounds, in Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (Ariz. 2002)).
    
   "GOOD CAUSE."
   Good cause exists when appointed counsel does not indicate until the 60-day period has expired that he declines to file a petition. State v. Rodriguez, 183 Ariz. 331, 903 P.2d 639 (Ct. App. 1995).
    
   NEW CLAIM.
   Trial court properly declined to consider petitioner's claims of ineffective assistance of trial and appellate counsel that were first raised in a postconviction reply brief because by raising two new claims in the reply brief, petitioner essentially sought to amend the postconviction petition without the leave of the trial court, as required by this rule. State v. Lopez, 223 Ariz. 238, 571 Ariz. Adv. Rep. 20, 221 P.3d 1052, 2009 Ariz. App. LEXIS 782 (Ct. App. 2009).

7. Rule 32.7. Informal conference
   The court may at any time hold an informal conference to expedite the proceeding. In a capital case, the court shall hold an informal conference within 90 days after the appointment of counsel on the first notice of a petition for post-conviction relief. The defendant need not be present if the defendant is represented by counsel who is present.
   

   HISTORY: Amended June 2, 1992 amended Oct. 31, 2000, effective Dec. 1, 2000, effective Sept. 30, 1992; amended Oct. 31, 2000, effective Dec. 1, 2000; amended by R-08-0042, effective Jan. 1, 2010.

   NOTES:
   COMMENT
   [1973 PROMULGATION]
   This provision authorizes a prehearing conference. Such a conference may be useful in reducing the length or, perhaps, entirely disposing of some plenary hearings. The hearing may be used to hear argument on issues of law, narrow the disputed issues of fact, explore issues which may arise at an evidentiary hearing, or otherwise expedite the hearing. (As amended by R-08-0042, effective Jan. 1, 2010.)

8. Rule 32.8. Evidentiary hearing
   a. Evidentiary hearing. -- The defendant shall be entitled to a hearing to determine issues of material fact, with the right to be present and to subpoena witnesses. If facilities are available, the court may, in its discretion, order the hearing to be held at the place where the defendant is confined, giving at least 15 days notice to the officer in charge of the confinement facility. In superior court, the hearing shall be recorded.
   

   b. Evidence. -- The rules of evidence applicable in criminal proceedings shall apply, except that the defendant may be called to testify at the hearing.

   c. Burden of proof. -- The defendant shall have the burden of proving the allegations of fact by a preponderance of the evidence. If a constitutional defect is proven, the state shall have the burden of proving that the defect was harmless beyond a reasonable doubt.

   d. Decision. -- The court shall rule within 10 days after the hearing ends except in extraordinary circumstances where the volume of the evidence or the complexity of the issues require additional time. If the court finds in favor of the defendant, it shall enter an appropriate order with respect to the conviction, sentence or detention, any further proceedings, including a new trial and conditions of release, and other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law relating to each issue presented.

   e. Transcript. -- The court may, and shall upon request of a party within the time for filing a petition for review, order that a certified transcript of the evidentiary hearing be prepared. The preparation of the evidentiary hearing transcript shall be at county expense if the defendant is indigent.
   HISTORY: Amended June 2, 1992, effective Sept. 30, 1992; amended Apr. 16, 1993, effective June 1, 1993; amended July 28, 1993, effective Dec. 1, 1993; amended Oct. 31, 2000, effective Dec. 1, 2000; amended eff. Jan. 1, 2007 by R-05-0037.

   NOTES:
   [1973 PROMULGATION]
   This rule provides general guidance to the court in conducting an evidentiary hearing. It generally follows ABA, Standards Relating to Post-Conviction Remedies § 4.6 (Approved Draft, 1968).
   
   RULE 32.8 (A)    The petitioner's presence is required. The right to subpoena witnesses is included to provide the full fact-finding hearing required by Townsend v. Sain, 372 U.S. 293 (1963). Where for reasons of safety and convenience the court determines that the petitioner or perhaps some of his supporting witnesses should not be transported back to the place of trial, it may order that the hearing be held at the petitioner's place of confinement.
   
   A record of the proceedings is required for appellate review and for use as prior recorded testimony upon retrial. See ABA, Standards, supra, at § 4.6 (c); Uniform Act, supra, at § 7; State v. Raybould, 15 Ariz. App. 520, 489 P.2d 1222 (1971) vacated, 108 Ariz. 370, 498 P.2d 458 (1972). The use of prior recorded testimony is governed by Rule 19.3 (c).
   
   RULE 32.8 (B).   In keeping with the characterization of the proceedings in Rule 32.3, subsection (b) incorporates the safeguards of the criminal rules of evidence, but excepts the petitioner's right to stand mute. The situation here may be distinguished from the usual criminal proceeding in that the defendant is the moving party and the issues will not normally focus on the question of guilt.
   
   RULE 32.8 (C).   This provision contains the generally applicable standards governing burden of proof. See ABA, Standards, supra, at § 4.6 (d) and Rule 32.2 (d).
   
   RULE 32.8 (D).   The court may fashion an appropriate dispositive remedy under section (d). See Uniform Act, supra, at § 7. The time limit for rendering a decision is imposed to prevent undue delay. Specific findings of law and fact are required in every case, but may be made either orally on the record or in writing.
   
   COMMITTEE COMMENT TO 2000 AMENDMENT
   The 1993 amendment to Rule 32.8(a) substituted "complete" for "verbatim," and added language making a record mandatory only in the superior court.
   
   The heading of subsection (a) is changed from "Plenary" to "Evidentiary."
   
   Subsection (e) clarifies that a party is entitled to a transcript of any evidentiary hearing held pursuant to this rule and that preparation of the transcript shall be at county expense if the defendant is indigent.

   JUDICIAL DECISIONS 
   ANALYSIS

   EVIDENCE.

   --NEWLY DISCOVERED.
   When DNA evidence was discovered after defendant's first degree murder and sexual abuse trial, the superior court needed to make additional specific findings of fact and conclusions of law to facilitate the supreme court's review of defendant's request for post-conviction relief. State v. Tankersley, 211 Ariz. 323, -- Ariz. Adv. Rep. --, 121 P.3d 829, 2005 Ariz. LEXIS 132 (2005).
    
   IN GENERAL.
   Defendant presented a colorable claim for ineffective assistance of counsel where trial counsel failed to move to suppress evidentiary fruits of a warrantless search, and thus the case was remanded for an evidentiary hearing on that issue. State v. Fillmore, 187 Ariz. 174, 927 P.2d 1303 (Ct. App. 1996).
   
   There is no broad rule that third-party affidavits alleging that the victim recanted automatically entitle a Rule 32 petitioner to an evidentiary hearing. If a third-party affidavit appears particularly credible or reliable, or if other evidence tends to support the affidavit or the recantation, a trial court should order an evidentiary hearing. State v. Krum, 183 Ariz. 288, 903 P.2d 596 (1995).

9. Rule 32.9. Review
   a. Motion for rehearing; response; reply. -- Any party aggrieved by a final decision of the trial court in these proceedings may, within fifteen days after the ruling of the court, move the court for a rehearing setting forth in detail the grounds wherein it is believed the court erred. No response to a motion for rehearing will be filed unless requested by the court, but a motion for rehearing will not be granted in the absence of such a response. A reply, if any, shall be filed within 10 days after the service of the response. The filing of a motion for rehearing in the trial court is not a prerequisite to the filing of a petition for review pursuant to paragraph (c) of this rule.
   

   b. Disposition when motion granted. -- If the motion for rehearing is granted, the court may either (1) amend its previous ruling without a hearing, or (2) grant a new hearing and then either amend or reaffirm its previous ruling. In either case, if the court amends its previous ruling, it shall set forth its reasons for amending the previous ruling. The state shall notify the victim, upon request, of any action taken by the court.
   
   

   c. Petition for review. -- Within thirty days after the final decision of the trial court on the petition for post-conviction relief or the motion for rehearing, any party aggrieved may petition the appropriate appellate court for review of the actions of the trial court. A cross-petition for review may be filed within 15 days after service of a petition for review. The petition for review, cross-petition and all responsive pleadings filed pursuant to this rule shall be filed in the appellate court. Within 3 days after filing a petition or cross-petition for review, the petitioner and cross-petitioner, if any, shall file a notice of such filing with the trial court. The notice of filing may include a designation of record adding to the record defined in Rule 32.9(e) any additional certified transcripts of trial court proceedings that were prepared pursuant to Rule 32.4(d) or that were otherwise available to the trial court and the parties and that are material to the issues raised in the petition for review. Motions for extensions of time to file petitions or cross-petitions shall be filed in and ruled upon by the trial court. All other motions shall be filed in the court in which the petition is to be filed.

   1. Form and contents. -- The petition or cross-petition for review shall comply with the form requirements of Rule 31.12 of the rules of criminal appellate procedure and contain a caption setting forth the name of the appellate court, the title of the case, a space for the appellate court case number, the trial court case number, and a brief descriptive title. An original and seven copies of the petition and an original and one copy of the appendix, if any, shall be filed if review is being sought in the Supreme Court. An original and four copies of the petition and an original and one copy of the appendix, if any, shall be filed if review is being sought in the Court of Appeals. An original and one copy shall be filed if review is being sought in the superior court. The parties shall be designated as in the trial court proceedings. The petition or cross-petition shall not exceed 20 pages, exclusive of the appendix, shall not have a cover or be bound, but shall be fastened with a single staple in the upper left corner, and shall contain the following:
      1. Copies of the trial court's rulings entered pursuant to rules 32.6(c), 32.8(d) and 32.9(b).
      2. The issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review.
      3. The facts material to a consideration of the issues presented for review.
      4. The reasons why the petition should be granted.
         In Rule 32 of-right and non-capital cases, an appendix is not required, but the petition for review shall contain specific references to the record.
         
         The filing of a motion for rehearing pursuant to paragraph (a) of this rule does not limit the issues that may be raised in the petition or the cross-petition for review. Failure to raise any issue that could be raised in the petition or the cross-petition for review shall constitute waiver of appellate review of that issue.
         
         
   2. Service; response; reply. -- The petitioner or cross-petitioner shall serve a copy of the petition or cross-petition on the adverse party. A response may be filed within 30 days from the date upon which the petition or cross-petition is served. The response shall comply with the form requirements of Rule 32.9(c)(1) and shall not exceed 20 pages, exclusive of any appendix. Appendices shall conform to the requirements of Rule 32.9(c)(1). A reply, if any, may be filed within 10 days after the service of a response. The reply shall also comply with the form requirements of Rule 32.9(c)(1). The reply shall be limited to matters addressed in the response and shall not exceed 10 pages. No appendices shall be submitted with a reply.
      
      d. Stay pending review. -- A motion for rehearing or a petition for review filed by the state pursuant to this section shall stay an order granting a new trial until final review is completed. For any other relief granted to a defendant, a stay pending further review is within the discretion of the trial or appellate court. The state shall notify the victim upon request of any action taken.
      
      e. Filing of the record. -- In Rule 32 of-right and non-capital cases, within 45 days after the receipt of the notice of filing of a petition for review, the record, including the trial court file and the certified transcript, shall be transmitted to the appellate court.
      
      f. In capital cases, the record of the post-conviction proceedings shall not be transmitted to the appellate court unless requested by that court. If requested by the appellate court, the record shall consist of copies of the notice of post-conviction relief, the petition for post-conviction relief, response and reply, all motions and responsive pleadings filed and all minute entries and orders issued in the post-conviction proceedings, plus the certified transcript and any exhibits admitted by the trial court in the post-conviction proceedings.
      
      g. Disposition when petition granted. -- The appellate court may, in its discretion, grant review and may order oral argument upon the petition if deemed necessary and may issue such orders and grant such relief as it deems necessary and proper. The state shall notify the victim, upon request, of any action taken by the appellate court.

      h. Reconsideration and review of appellate court decision. -- The provisions governing the filing of motions for reconsideration and petitions for review in criminal appeals set forth in Rules 31.18 and 31.19 shall apply to and govern motions for reconsideration and petitions for review of an appellate court decision entered pursuant to Rule 32.

      i. Return of the record. -- In Rule 32 of-right- and non-capital cases, when the matter is determined, the clerk of the appellate court shall return the record to the appropriate trial court for retention according to law. In capital cases, the clerk of the appellate court shall return any exhibits to the appropriate trial court.
      
      HISTORY: Amended May 31, 2000 and Oct. 31, 2000, effective Dec. 1, 2000; amended Oct. 15, 2001, effective Dec. 1, 2001, as corrected Jan. 4, 2002; amended and effective Oct. 12, 2005; amended effective. Jan. 1, 2007 by R-05-0030 and R-05-0037.
      
      NOTES:
      COMMITTEE COMMENT TO 1993 AMENDMENT
      The 1993 amendments to Rule 32.9(c) and (h) adapted the rule to all courts by deleting the phrase "clerk of the," leaving only "trial court."
      COMMENT TO 2000 AMENDMENT
      Subsection (a) is amended to provide that no response to a motion for rehearing is to be filed unless requested by the court.
      
      Subsection (c) changes the place of filing a petition for review to the appropriate appellate court and requires the petitioner to file a notice of such filing with the superior court. It allows the trial court to rule on motions for extensions of time for filing, but prescribes that the appellate court will rule on motions for additional pagination. This procedure is deemed advisable to achieve uniformity -- some trial judges grant additional pagination, some do not -- without burdening the appellate court with motions for extension of time better decided by the trial courts, e.g., extension may be necessary due to lack of transcripts from that judge's court.
      
      Paragraph (1) changes the form of caption to the appellate court because the petition for review will be filed in that court. It provides that petitions for review are not to have covers or bindings.
      
      Subparagraph (i) eliminates the need for a synopsis of the trial court's rulings.
      
      Subsection (c) also removes the requirement for appendices in non-capital cases.
      
      Subsection (e) retains the requirement for filing the record in non-capital cases, but provides that the record is not to be transmitted in capital cases unless requested by the appellate court. This differs from non-capital cases because the record in capital cases remains in the Arizona Supreme Court. In non-capital cases, the record is returned to the trial court, as set forth in subparagaph (h).
      
      COMMENT (2007 AMENDMENT)
      Rule 5(j)(2) of the Arizona Rules of Civil Procedure was added in 2004 to reduce the clerks' burden of producing and distributing minute entries by requiring counsel to submit with their stipulations and motions proposed forms of orders along with a sufficient number of copies to be conformed and pre-addressed stamped envelopes for each party to the action. This subdivision of the rule, like other provisions in Rule 5, is to be followed by attorneys in criminal cases, unless otherwise provided for by the presiding judge.

      JUDICIAL DECISIONS 
      ANALYSIS

      CONSTRUCTION.
      Policy reason Arizona courts advance for disallowing argument in appendices is that an appendix may not be used to circumvent the page limitations, and this policy would be equally important in petitions for review as it is in direct appeals under this rule; there is no reason why Arizona courts would permit an appendix to be used to circumvent a page limit in a petition for review of a petition-for-post-conviction-relief when the Arizona courts do not permit such a tactic on direct review. Laliberte v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 44252 (D. Ariz. May 26, 2009).
      
      State prisoner sentenced to death procedurally defaulted his claim that the trial court violated his Eighth and Fourteenth Amendment rights when it denied his request for neuromatic brain mapping, because the claim was not exhausted on direct appeal either by fair presentation in the prisoner's appellate brief or by virtue of the supreme court's independent sentencing review, nor was it fairly presented in state postconviction proceedings. Wood v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 12360 (D. Ariz. Mar. 20, 2006).
      
      APPEAL GRANTED.
      Appellate court granted review to consider whether the warrant issued to search defendant's property violated the Fourth Amendment, and if so, whether defense counsel's failure to challenge the legality of the search warrant violated defendant's constitutional right to effective assistance of counsel. State v. Ray, 185 Ariz. 89, 912 P.2d 1318 (Ct. App. 1995).
      
      CLAIMS REJECTED.
      Although a habeas corpus inmate presented evidence concerning his pre-trial counsel's reputation in the community, he did not show that there were independent witnesses to support an alibi defense, or that he did not participate in the murders; as a result, he did not show that pre-trial counsel's ineffective assistance, if any, resulted in a fundamental miscarriage of justice. The inmate could not excuse his procedural default, and the district court properly found that his ineffective assistance claim was barred. Cook v. Schriro, 516 F.3d 802, 2008 U.S. App. LEXIS 3511 (9th Cir. 2008).
      
      State prisoner's claim that the prosecutor engaged in prejudicial misconduct by eliciting bad character evidence that the prisoner had a biker reputation was dismissed as procedurally barred because the prisoner did not fairly present the claim to the state courts and, if he returned to state court to litigate under Ariz. R. Crim. P. 32.2(a)(3) and 32.4(a) because it did not fall within an exception to preclusion. Wood v. Schriro, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 12360 (D. Ariz. Mar. 20, 2006).
      
      Where defendant raised an equal protection claim and also contended the trial court abused its discretion regarding sentencing, but defendant simply referred to memoranda filed below, the petition for review failed to comply with this Rule and the claims were rejected. State v. French, 198 Ariz. 119, 7 P.3d 128, 2000 Ariz. App. LEXIS 95 (Ct. App. 2000). (Overruled to the extent that the question of whether a claim is of sufficient constitutional magnitude to require a knowing and intelligent waiver, depends on the merits of the particular grounds rather than upon the particular right alleged to have been violated in Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (Ariz. 2002)).
      
      DEFENDANT'S RIGHTS.
      Because review from denial of post-conviction relief is discretionary, a pleading defendant does not have a right to appointed counsel in such proceedings. State v. Smith, 184 Ariz. 456, 910 P.2d 1 (1996).
      
      EXTENSION OF TIME.
      On remand, a trial court abused its discretion in denying petitioner's motion to extend the time for filing a petition for review of the denial of his motion for postconviction relief because the motion to extend the time for filing a petition for review had been filed within the time limits of this rule. State v. Miller, -- Ariz. --, -- Ariz. Adv. Rep. --, -- P.3d --, 2006 Ariz. LEXIS 28 (Mar. 15, 2006).
      
      FEDERAL HABEAS CORPUS.
      Prisoner's federal habeas petition under 28 U.S.C.S. § 2254 was dismissed as untimely. Under 28 U.S.C.S. § 2244(d), he was not entitled to statutory tolling because his petition for state postconviction relief was not properly filed under this rule, so he did not comply with the requirements of § 2244(d)(2) and he did not meet his burden for equitable tolling. Miller v. McWilliams, -- F. Supp. 2d --, 2010 U.S. Dist. LEXIS 6027 (D. Ariz. Jan. 25, 2010).
      
      Prisoner's habeas application under 28 U.S.C.S. § 2254 was dismissed because his habeas claims were procedurally defaulted in that exhaustion of the claims was impossible based on timeliness under Ariz. R. Crim. P. 32.9 and 32.4 and there was no showing of cause and prejudice or a fundamental miscarriage of justice to excuse procedural default. Pickens v. Schriro, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 79114 (D. Ariz. Sept. 3, 2009).
      
      Arizona prisoner's federal habeas petition was denied where the prisoner's claims, which were not presented to the Arizona Court of Appeals, were procedurally defaulted, being time-barred under this rule. Laws v. Harkins, -- F. Supp. 2d --, 2006 U.S. Dist. LEXIS 56018 (D. Ariz. July 24, 2006).
      
      MINUTE ENTRY.
      Defendant's petition was not untimely, although his counsel failed to file the petition within 30 days of the trial court's minute entry denying postconviction relief, because minute entry did not contain the trial court's dispositive ruling. State v. Herrera, 183 Ariz. 642, 905 P.2d 1377 (Ct. App. 1995).

10. Rule 32.10. Review of mental retardation determination [Effective January 1, 2011]
    In any capital case, within ten days after the trial court makes a finding on mental retardation, the state or the defendant may file a petition for special action with the court of appeals. The filing of the petition for special action is governed by the rules of procedure for special actions, except that the court of appeals shall exercise jurisdiction and decide the issue raised.
    
    HISTORY: Adopted by R-10-0010, effective January 1, 2011.
    
    
11. Rule 32.11. Extensions of time; notification of victims. [Effective January 1, 2011]
    In any capital case, if the victim has filed a notice of appearance as specified in A.R.S.  § 13-4234.01, a party seeking an extension of time to file a brief must provide notice of the request to the victim. Notice shall be provided through the prosecutor's office handling the post-conviction relief proceeding, unless the victim specifies a different method in the notice of appearance. The victim may specify in the notice of appearance whether notification should be served directly on the victim or on another person, including the prosecutor, and whether service may be made electronically, by telephone, or by regular mail. If the victim has requested direct notification, the party seeking an extension of time shall serve notice on the victim within 24 hours of filing the extension request. If the prosecutor has the duty to notify the victim on behalf of the defendant, the prosecutor shall serve notice within 24 hours of receipt of the extension request. Service shall be made in the manner specified in the notice of appearance, or if no method is specified, by regular mail. In ruling on any request for an extension of a time limit set in this rule, the court shall consider the rights of the defendant and any victim to prompt and final conclusion of the case.
    
    HISTORY:     Added Jan. 30, 2002, effective June 1, 2002; adopted as modified by R-06-012, effective Sept. 18, 2006; and made permanent effective Sept. 5, 2007; renumbered by R-10-0010 from Rule 32.10 of Criminal Procedure, effective January 1, 2011.
    
    NOTES:
    EDITOR'S NOTE.
    R-10-0010, dated September 2, 2010, adopted a new Criminal Rule 32.10 and renumbered the existing Rule 32.10 as Rule 32.11, effective January 1, 2011.

    COMMENT
    To implement the victim's right to a prompt and final conclusion of the case, see Ariz. Const. Art. 2, § 2.1(A)(10), the victim shall be permitted to file a statement with the court, at the inception of the proceeding, which expresses his or her views with respect to any extensions; or the victim can request, pursuant to A.R.S.  § 13-4411, that the prosecutor's office communicate the victim's views to the court concerning any extensions.

12. Bland v. California DOC, 20 F.3d 1469, 1474 (9th Cir. 1994)
    When the state's return fails to dispute the factual allegations contained in the petition and traverse, it is essentially admits those allegations.
    
    
13. Colson v. Smith, C.A. 5 (GA) 1970, 427 F.2d 143, conform to 315 F.Supp. 179, affirmed, 438 F.2d 1075
    Where District Court in granting habeas corpus, found that petitioner had made prima facie case, under rebuttal by the state with respect to one of his claims, but the state made no findings on other claims, and where case involved many issues inextricably bound together, case would be remanded for findings of fact and conclusions of law on issues presented but not decided.
    
    
14. Hohn v. US, 262 F.3d 811 (8th Cir. 2001)
    Courts interpret pro se petitions for post-conviction relief liberally.
    
    
15. Pearson v. Norris, 52 F.3d 740 (8th Cir. 1995)
    If direct appeal or another avenue of collateral attack is created by the state, it must conform to due process standards.
    
    
16. Re Currency in the amount of $26,980, 199 Ariz. 291, 297 TT 20, 18 P.3d 85, 91 (App. 2000)
    When the state does not respond to issue it is thereby a confession of error.
    
    
17. State v. Bell, (App. Div1 1975) 23 Ariz. App. 169, 531 P.2d 545, opinion after remand, 24 Ariz. App. 526, 540 P.2d 145
    Preclusion of post-conviction relief on grounds that matter is still raisable on a direct appeal applies only to those matters in which sufficient factual basis exists in record for appellate court to resolve matter.
    
    
18. State v. Bennett, 213 Ariz. 562, 146 P.3d 525, 526 (2006)
    Our Supreme Court acknowledged in State v. Spreitz, 202 Ariz. 1, 39 F.3d 525, 526 (2002), that General, claims of ineffective assistance of counsel that were raised or could have been raised in an initial post-conviction proceeding are regarded as waived and precluded if raised in a successive petition. But, that rule does not apply when appellate counsel and counsel in the first rule 32 proceeding are one in the same because appellate counsel is not expected to raise and argue his or her own ineffectiveness. Bennett, 213 Ariz. 562, 146 P.3d at 67. Bennett is not implicated here because Swoops was represented by different attorneys on appeal and in his first rule 32.
    
    
19. State v. Henderson, 210 Ariz. 516, 19, 115 P.3d 601, 607 (2005)
    Fundamental error is going to the foundation for case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.
    
    
20. State v. Robbins, 166 Ariz. 531, 533, 803P.2d 942,944 (Ariz. App. 1991)
    Ineffective assistance of counsel that prejudice is the defendant is a ground for relief under A.R.Cr.P. Rule 32.1 (a) as the conviction or sentence would be one that violates the Constitution of the United States or the state of Ariz.. The petitioner must only shows such violation by a preponderance of the evidence. See A.R.Cr.P. Rule 32.8 (c).
    
    
21. State v. Sanchez, 130 Ariz. 295, 299, 635 P.2d 12 (App. 1981)
    Bustamante v. Eyman, 456 F.2d 269, 272, 274 (9th Cir. 1972)
    State v. Armenta, 112 Ariz. 352, 541 P.2d 1154 (1975)
    State v. Perez, 115 Ariz. 3 0, 563 P.2d 285-86 (1977)
    US v. Berger, 473 F.3d 1080, 1094-95 (9th Cir. 2007)
    For the proposition that the defendant's presence is a right of constitutional magnitude that must be personally waived when trial court answers a deliberating juries question concerning a pivotal factual issue.
    
    
22. State v. Shrock, 149 Ariz. 433, 441, 719 P.2d 1041 (1986)
    State v. Jeffers, 135 Ariz. 404, 427, 661 P.2d 1105,1128, cert. denied, 464 US 865,104 S.Ct. 199, 78 L.Ed.2d 174 (1983)
    To present a colorable claim, the issue must appear to be invalid, that is the petitioner's allegations are to be true, would the outcome of the proceedings be different.
    
    
23. State v. Spreitz, 202 Ariz. 1, 2-3, TT TT 5-9, 39 F.3d 525, 526-27 (2002)
    Reviewing case law and holding that ineffective assistance claims must be brought in a petition for post-conviction relief prior to appellate consideration.
    
    
24. Stuart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002)
    In Smith our Supreme Court examined the distinction between claims that may be precluded under A.R.Cr.P. Rule 32.2 based on the defendant smear failure to raise them previously and claims that require a personal waiver before they may be deemed that waived and, therefore, precluded. As the court pointed out, the comment to rule 32.2 acknowledges that claims of sufficient constitutional magnitude must be knowingly, voluntarily, and intelligently waived before they may be precluded pursuant to rule 32.2 (a) (3).
    
    The court stated the question whether and asserted ground, is of sufficient constitutional magnitude to require a knowing, voluntary and intelligent waiver for purpose of rule 32.2 (a) (3), see comment to rule 32.2 (a) (3), does not depend upon the merits of the particular ground. It depends merely upon the particular right alleged to have been violated. 202 Ariz. 446, 10, 46 P.3d 1071.
    
    As the Supreme Court noted in Smith, when rule 32.2 was amended in 1992, the following comment was added: "for most claims of trial error, the state may simply show that the defendant did not raised in her at trial, on appeal, or in a previous collateral proceeding and that would be sufficient to show that the defendant has waived the claim. If defense counsels failure to raise an issue at trial, on appeal or in a previous collateral proceeding is so egregious as to result in prejudice as that term has been constitutionally defined, such failure may be raised by means of the claim of ineffective assistance of counsel." The court explained in Smith howl this analytical framework is applied to claims of ineffective assistance of counsel.
    
    "If a petitioner asserts ineffective assistance of counsel and sentencing, and, in a later petition, asserts ineffective assistance of counsel at trial, precluded and is required without examining facts. The grounds of ineffective assistance of counsel cannot be raised repeatedly. There is a strong policy against piecemeal litigation. See State v. Spreitz, 202 Ariz. 1, 39 F.3d 525(2002). In other situations the court must determine the particular right in default by looking at the facts of the claim, not decide its merits, but decided whether, at its core, the claim implicates a significant right that requires a knowing, voluntary and intelligent waiver for precluded in to apply under rule 32.2 (a) (3)."
    
    Thus if petitioner asserts ineffective assistance of counsel for the first time in a successive rule 32 petition, the question of precluded in is determined by the nature of the right allegedly affected by counsels ineffective performance. If that right is of sufficient constitutional magnitude to require personal waiver by the defendant and there has been no personal waiver the claim is not precluded. It is not such a magnitude, the claim is precluded.
    
    Waiver of trial error need not be personal to be valid. And although it is true by failing to raise an issue, a defendant forfeits the right to obtain appellate relief unless, the defendant can prove that fundamental error occurred.
    
    
25. US v. Prudden, 424 F.2d 1021 (1970)
    Silence can only be equated with fraud where there is a legal or moral duty to respond our where an inquiry left unanswered would be misleading.

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