Post-Conviction Relief in Arizona

Post-conviction relief is a way you can seek a judicial remedy to vacate a criminal conviction, reduce your sentence, or restore certain civil rights when you have already been convicted of a crime.

Post-conviction relief can be easily confused with an appeal of a criminal conviction, but these are distinct remedies. Here, we focus on post-conviction relief in Arizona. Specifically, we cover:

• What post-conviction relief is available in Arizona
• How post-conviction relief is different from a criminal appeal, and how it relates to a motion for federal habeas corpus
• Grounds for seeking a post-conviction relief remedy
• The process of seeking post-conviction relief
• The available remedies you can receive from post-conviction relief

AZ Defenders’ appeal lawyers have many years of combined experience representing people convicted of committing a crime (or crimes) in Arizona. We thoroughly understand the controlling Arizona laws and the Arizona Rules of Criminal Procedure that govern appeals and post-conviction relief, and we can put this knowledge and in-depth experience to work for you.

To speak with one of our skilled and experienced criminal appeals attorneys and to schedule a confidential, free initial consultation with a post-conviction relief lawyer, call our law offices at (480) 456-6400 or reach us online.

What is Post-Conviction Relief in Arizona?

When you seek post-conviction relief, you are petitioning the trial court to vacate or modify your conviction, change the terms of a plea agreement that involved a guilty plea, or reduce or modify your sentence.

Rule 32 and Rule 33 of the Arizona Rules of Criminal Procedure provide for post-conviction relief.

• Rule 33 applies only to defendants who were convicted pursuant to a guilty or no‑contest plea, including entering into a plea bargain and admissions to probation violations. 
• Rule 32 applies to defendants who were convicted after a trial.

How Post-Conviction Relief is Different From a Criminal Appeal or Habeas Corpus

Post-conviction relief and criminal appeals share some similarities. For example, in both you can seek to challenge your conviction and/or your sentence, or to obtain a new trial or a new sentencing hearing. But there are key differences between these two remedies that we need to make clear.

• For example, a direct appeal is only available if you were convicted after a trial, meaning that you did not plead guilty at the pretrial stage. Post-conviction under Rule 33 relief is available if you pleaded guilty or no contest.
• Direct appeals are limited to a review of the trial record and the evidence presented at trial, as well as a review of your sentencing hearing. Post-conviction allows for the introduction of new evidence and other information that was not part of the record of your trial.

Post-Conviction Relief and Federal Habeas Corpus Claims

An Arizona post-conviction relief proceeding can also be significant if you are considering a federal habeas corpus petition. Following Arizona’s post-conviction relief procedures carefully is crucial to preserving claims for possible federal habeas corpus review. 

This is because federal law generally requires a prisoner to exhaust all available state court remedies before a federal court will entertain a habeas corpus petition. 

This means you must complete the Arizona post-conviction relief process, including any petition for review to an Arizona appellate court, for each federal constitutional claim. Doing so gives Arizona appellate courts the chance to rule first on the issue(s).

If you fail to raise a claim in the Arizona state court properly, your claim is considered procedurally defaulted. A federal habeas court will not review a defaulted claim unless you show a valid cause for the default and actual prejudice, or show that a fundamental miscarriage of justice would occur, such as by proving your actual innocence.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state prisoner has one year from the date the conviction becomes final after direct review to file a federal habeas corpus petition. The AEDPA one‑year clock is tolled only while a properly filed post-conviction relief petition is pending. Untimely or improper PCR filings do not toll the federal deadline. 

Once your Arizona post-conviction relief effort concludes, the federal clock resumes where it left off.

In summary, Arizona’s post-conviction relief process is typically the final avenue for state relief after conviction. It also serves to meet the exhaustion requirement for federal habeas corpus relief. 

A well-handled post-conviction relief petition can preserve important federal constitutional claims, such as ineffective counsel or newly discovered evidence of innocence, for potential federal review. 

But failures in your post-conviction review, such as missing a deadline or omitting a claim, can result in forfeiture of these claims at the federal level due to procedural default.

Grounds for Seeking Post-Conviction Relief

Arizona Rules of Criminal Procedure 32.1 and 33.1 lay out eight specific reasons for which you can seek post-conviction relief. 

These grounds include:

• Your conviction was obtained, or your sentence was imposed, in violation of the United States or Arizona constitutions. This category includes issues such as ineffective assistance of counsel (a violation of your Sixth Amendment right to effective counsel), prosecutorial misconduct, and other due process violations.
• The trial court did not have subject matter jurisdiction to render a judgment or to impose a sentence on you.
• A sentencing error means that your sentence exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence that the law authorizes.
• You remain in custody after your sentence has expired. This ensures you have a remedy if you are kept in custody because of a clerical or administrative mistake after your sentence term has ended.
• Newly discovered evidence likely exists, and it would have changed the verdict or sentence. The evidence must have been undiscoverable earlier with reasonable diligence, and not merely cumulative or for minor impeachment purposes.
• If you failed to file for a direct appeal or post-conviction relief within the required time, the delay was not your fault, like if your attorney failed to file an appeal on time despite your request to do so.
• There has been a significant change in the law that, if applied to your case, would overturn your conviction or sentence. This often refers to new court rulings or legislation made retroactively applicable to past cases.
• You can show by clear and convincing evidence that the facts underlying your claim would be enough to establish that no reasonable fact finder would find you guilty beyond a reasonable doubt, like through DNA evidence, or if applicable, that a death penalty would not have been imposed.

Your post-conviction relief petition must explicitly assert at least one of these grounds. If a claim does not fit any of these specific grounds, then it cannot proceed. 

How to Seek Post-Conviction Relief

Post-conviction relief requires that you stick to a strict timeline. 

Of-Right Petitions

Your first post-conviction relief petition is also known as an “of-right” petition. 

Because this is your first opportunity to seek post-conviction relief, an of-right petition is not subject to the preclusion rules that bar claims in successive petitions — you cannot be denied relief on the ground that you should have raised a claim earlier. The court must rule on each claim you properly present.

The court can, however, summarily dismiss any claim that does not state a “colorable claim” — a claim that, even if its factual allegations are taken as true, could entitle you to relief. To survive summary dismissal and earn an evidentiary hearing, your petition must set forth at least one colorable claim with specific facts, court records, transcripts, and/or affidavits.

If you cannot afford a lawyer, you are generally entitled to court-appointed counsel for your of-right petition.

You submit your notice requesting post-conviction relief to the trial court. This is another distinction from a direct appeal, which generally goes to the Arizona Court of Appeals.

Filing Your Notice

In all non-capital cases, you must file a notice of post-conviction relief no later than 90 days after the entry of judgment and sentence, or no later than 30 days after the issuance of an order and mandate in a direct appeal, whichever is later.

For all other grounds, like newly discovered evidence or a change in law, you must file your notice within a reasonable time after discovering the basis for your claim. The Arizona Rules of Criminal Procedure do not give a fixed number of days for these claims. Instead, courts decide on a case-by-case basis if a delay is reasonable and the delay was not the fault of the defendant, so it is best to act promptly.

Your notice must include information about you as well as your sentence or conviction, the case’s procedural history, and the grounds for your claim. 

If you fail to follow the time limit that applies to your claim, absent good grounds for late post-conviction relief, this can lead to the preclusion of otherwise valid claims you may have had to have your conviction or sentence overturned. 

Filing the Petition

Once you file the notice, you will need to work on your petition for post-conviction relief. Usually, you must file the petition for post-conviction relief within 60 days. 

• If you do not have an attorney, the 60-day clock starts from the filing of the notice (or from the denial of counsel, if you requested one).
• If you have a lawyer, the deadline runs from the date your counsel is appointed. 
• The court can grant one 30-day extension for good cause, but longer extensions require extraordinary circumstances.

This petition must include more specific information about the grounds for your relief claim, including newly discovered material facts, court records, testimony transcripts, affidavits, and any other relevant information. 

Your petition must also include a memorandum establishing how the facts you present support your relief claim. It should also include supporting legal authorities, if applicable.

The State’s Response

Once you file your petition for post-conviction relief, the state will have an opportunity to file a response, usually within 45 days. The state’s attorney may argue that your claim or claims lack merit or are precluded by prior proceedings.

You will have the right to file a reply to the state’s response, which you typically must submit within 15 days.

The Court’s Review and Possible Evidentiary Hearing

Once the petition and responses are filed, the trial court judge will review them. If the filings show that you have a colorable claim, meaning that material factual disputes exist that, if resolved in your favor, could entitle you to relief, the court will schedule an evidentiary hearing.

In most cases, the court will decide your post-conviction relief claim based on the written briefings you and the state submit to it.

If the court does hold an evidentiary hearing, then you can present evidence and witnesses.

The Court Decides

After considering the written submissions and, if applicable, any additional evidence and testimony from the evidentiary hearing, the trial court judge will issue a ruling on your post-conviction relief petition. 

The court may grant you relief, like ordering a new trial, vacating your conviction, or conducting a resentencing, or it may deny your petition and affirm its original decision. 

Petition for Review

If the court denies your petition for post-conviction relief, or if it grants you relief but the state disagrees with that decision, then either you or the state, as appropriate, can file a petition for review with the Arizona Court of Appeals.

You have 30 days from the trial court’s final decision to file this petition for review.

The Court of Appeals has the discretion to accept or decline to review a petition for review.

• If it grants review, the appellate court will examine the trial court’s decision to determine whether reversible error occurred.
• If it declines review, it may be possible to seek a final review by the Arizona Supreme Court, but the court rarely accepts post-conviction relief cases for review.

Once the highest available Arizona court has issued its decision or declined to review the petition for review, then the post-conviction review process is complete.

Successive Petitions

Any later post-conviction relief petitions you may file after the first one are considered “successive” petitions. Arizona’s rules of criminal procedure strongly discourage successive petitions. Generally, you are expected to raise all known claims in your first petition. 

If you raised a claim that was decided before, or could have been raised earlier but was not, then it is generally barred from being raised in a new petition. There are exceptions, like jurisdictional issues, newly discovered evidence, significant legal changes, or actual innocence. 

Also, under Rule 33, a limited successive petition is allowed to allege ineffective assistance of your first post-conviction relief counsel, but only if you file it within 30 days after the first post-conviction relief’s final order or mandate. Outside of such narrow exceptions, successive post-conviction relief attempts are usually dismissed.

Do You Have a Possible Claim for Post-Conviction Relief?

If you have been convicted of a criminal offense in Arizona, then, depending on your specific circumstances, you may have a claim for post-conviction relief. Having a claim and how to win post-conviction relief, though, are two different things. And your attorney’s experience with post-conviction relief claims can make all the difference.

An experienced AZ Defenders Phoenix criminal defense attorney can help you understand if post-conviction relief is appropriate for you or your loved one. Our attorneys at AZ Defenders have decades of criminal defense experience, including petitions for post-conviction relief and appeals. We offer free consultations to help you make the right choice for your case. 

Call us today at (480) 456-6400, or use our online contact form to schedule your free consultation with a post-conviction relief attorney.