N.M. R. Crim. P. Dist. Ct. 5-803

As amended through November 1, 2024

Rule 5-803 - Petitions for post-sentence relief

A.Application. A petition to set aside a judgment and sentence may be filed in the district court of the jurisdiction which rendered the judgment by one who has been convicted of a criminal offense, and who is not in custody or under restraint as a result of such sentence. The petition shall be assigned to the judge that originally heard the matter, or if that judge is no longer serving on the bench, the successor criminal division.

B.Grounds. Relief under this rule is available to correct convictions obtained in violation of the constitution or laws of the United States or the State of New Mexico.

C.Time for filing. A petition for post-sentence relief shall be filed within a reasonable time after the completion of the petitioner's sentence, unless the court finds good cause, excusable neglect, or extraordinary circumstances beyond the control of the petitioner that justify filing the petition beyond that time.

D.Procedure. A petition for post-sentence relief under this rule may be granted only upon filing with the clerk of the court a petition on behalf of the party seeking relief. If the petition is filed by a petitioner who is not represented by an attorney and who is confined to an institution or other detention facility, the petition is deemed to be filed with the clerk of the court on the date the petition is deposited in the institution's internal mail system for forwarding to the court provided that the petitioner states within the petition, under penalty of perjury, the date on which the petition was deposited in the institution's internal mail system. The petition shall contain the following:

(1) The respondent in proceedings under this rule, which shall be the State of New Mexico;

(2) The petitioner's full name and address, if petitioner is not represented by counsel;

(3) A statement of the steps taken to exhaust all other available remedies, including a statement of the name of the case, the docket number of the case, the court, administrative agency or institutional grievance committee from which relief was sought, and the result of each previous judicial proceeding. If a claim has been raised in prior proceedings, a statement explaining why the ends of justice require additional consideration of the petition;

(4) if the petitioner has previously filed a petition seeking relief under this rule or Rule 5-802 NMRA, a statement explaining why the petition should not be dismissed under Paragraph G;

(5) a statement as to whether:

(a) the petition seeks to vacate, set aside or correct the sentence or order of confinement; or

(b) the petition challenges matters other than Subparagraph (a) of this subparagraph;

(6) A concise statement of the facts and law upon which the application is based; and

(7) a concise statement of the relief sought.

E.Papers attached to the petition. The following shall be attached to the petition:

(1) any opinion, order, transcript, or other written material reasonably available to petitioner indicating any court's ruling on the petitioner's prior custody or restraint or on the issued raised in the petition, or a statement explaining why the materials are not attached;

(2) a certificate of service showing service on the district attorney in the district in which the application is filed.

F.Procedure for adjudicating petition.

(1)Summary dismissal; return of petition. Upon receipt of a petition for post-sentence relief, the court shall promptly examine the petition together with all attachments. If it plainly appears from the face of the petition, any exhibits, and the prior court proceedings in the case, that the petitioner is not entitled to relief as a matter of law, the court shall summarily dismiss the petition.

If the court is unable to determine from the face of the petition whether petitioner is entitled to relief as a matter of law, the court may return a copy of the petition to the petitioner for additional factual information or a restatement of the legal claims. If the petition is returned to the petitioner, the petitioner has forty-five (45) days to resubmit a revised petition. Upon receipt of the revised petition, the court has forty-five (45) days to examine the petition together with all attachments. If no revised petition is filed, the court may dismiss the petition.

(2)Response. If the court determines that summary dismissal is not appropriate, the court shall order the state to submit a response within one-hundred twenty (120) days.

(3)Preliminary disposition hearing. After the response is filed, at the request of a party or upon its own motion, the court may conduct a preliminary disposition hearing for the purpose of clarifying the issues and petitioner's evidence in support of the claims in the petition. At the preliminary disposition hearing, the court will attempt to resolve any of the issues presented by the petition based on the filings by counsel for the parties. The court shall then determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the court may dispose of the petition without a further hearing, but may ask for briefs and/or oral arguments on legal issues;

(4)Evidentiary hearing. If an evidentiary hearing is ordered, the hearing shall be conducted as promptly as practicable.

G.Second and successive petitions. If the petitioner has previously filed a petition seeking relief under this rule or Rule 5-802, the court shall have the discretion to:

(1) dismiss any claim not raised in a prior petition unless fundamental error has occurred, or unless an adequate record to address the claim properly was not available at the time of the prior petition; and

(2) dismiss any claim raised and rejected in a prior petition unless there has been an intervening change of law or fact or the ends of justice would otherwise be served by rehearing the claim.

H.Discovery procedures.

(1)Discovery procedures for parties represented by counsel. At any time, counsel for a party may make a formal written request to opposing counsel for production of documents and other discovery materials that are available under Rules 5-501 or 5-502 NMRA. The written request shall describe the good faith efforts by counsel to obtain the discovery materials from previous counsel or any other sources and shall show that these efforts were unsuccessful. Counsel for the opposing party shall comply with the request within thirty (30) days after service or notify the court in writing of any objection to the request. Any objection based on privilege should clearly identify the material withheld and the basis of the privilege claim. The court shall then hold a hearing to rule on any objection to the discovery request. The court shall grant a challenged request for discovery when the requesting party demonstrates that the materials are relevant to advance the claims that are alleged in the petition or the materials are relevant to defend against the claims that are alleged in the petition.

(2) For purposes of this rule, "discovery materials" are:

(a) materials in the possession of a party;

(b) materials in the possession of law enforcement authorities to which the petitioner would have been entitled to at the time of trial; or

(c) materials in the possession of the New Mexico Corrections Department.

(3) Counsel for a party may make use of any other discovery procedure under the Rules of Criminal Procedure for the District Courts only after notice to opposing counsel and prior written authorization from the court. In determining whether to authorize such proceedings, the court may consider any of the factors contained in Paragraph A of Rule 5-507 NMRA.

(4)Discovery procedures for pro-se petitioners. Petitioners not represented by counsel shall petition the court before requesting discovery under this rule and the Rules of Criminal Procedure for the District Courts. In determining whether to authorize a discovery request, the court may consider any of the factors contained in Paragraph A of Rule 5-507.

(5)Motions to compel. If the state or the petitioner fails to comply with any of the provisions of this rule, the court may enter an order under Rule 5-505 or Rule 5-112 NMRA.

I.Appeal. Within thirty (30) days after the district court's decision:

(1) if the petition is granted, the state may appeal as of right to the Court of Appeals under the Rules of Appellate Procedure.

(2) if the petition is denied, the petitioner may appeal to the Court of Appeals under the Rules of Appellate Procedure.

N.M. R. Crim. P. Dist. Ct. 5-803

Adopted by Supreme Court Order No. 14-8300-014, effective for all cases filed on or after December 31, 2014.

Committee commentary. - Rule 5-803 NMRA was adopted in 2014 and is designed to be used when relief under Rule 5-802 NMRA is unavailable. This rule is deemed to have superseded former Rule 1-060(B) NMRA for post-sentence matters involving criminal convictions, including the writ of coram nobis. See State v. Lucero, 1977-NMCA-021, ¶ 2, 90 N.M. 342, 563 P.2d 605. "The writ is available to one who, though convicted, is no longer in custody, to provide relief from collateral consequences of an unconstitutional conviction due to error of fact or egregious legal errors which are of such a fundamental character that the proceeding itself is rendered invalid, permitting the court to vacate the judgment." State v. Tran, 2009-NMCA-010, ¶ 15, 145, N.M. 487, 200 P.3d 537.

The Public Defender Department cannot be appointed to represent a petitioner under this rule. See NMSA 1978, §§ 31-15-10(F) (1973) (requiring a person to be "detained" in order to provide representation); 31-16-3(A) (defining the "right to representation" as applying to indigent persons detained by law enforcement or under formal charge or conviction for having committed a serious crime). Unlike petitioners under Rule 5-802 NMRA (habeas corpus), petitioners under this rule are not "in custody or under restraint" as they have completed their sentence. See Rule 5-802(A); Tran, 2009-NMCA-010, ¶ 15. The term "in custody" includes probation and parole. See State v. Barraza, 2011-NMCA-111, ¶ 10, 267 P.3d 815. The district court, however, retains its inherent authority to appoint counsel from either the private bar or pro bono immigration service agencies who have licensed counsel on staff.

Petitions may often be filed late under this rule because of the development of serious unforeseen collateral consequences which are beyond the control of the petitioner, such as deportation.

For example, the time limitations contained in Paragraph C may be tolled in instances when a decision from a court applies retroactively. Cf. Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683 (declining to retroactively apply holding in State v. Frazier, 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1, which held that a defendant cannot be convicted of both felony murder and the predicate felony).

The provisions of this rule are similar to those of Rule 5-802. Please see the commentary to Rule 5-802 for further information.

[Adopted by Supreme Court Order No. 14-8300-014, effective for all cases filed on or after December 31, 2014.]