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Rule 70 – Review of the Petition by the Court; Summary Dismissal; Response; Amendment to the Petition; Withdrawal of Petition; Dismissal of Petition with Prejudice for Failure to Prosecute

May 13, 2021 | Criminal Procedure, Maine

(a) Review of Petition by the Court. The court shall promptly examine the petition.
(b) Summary Dismissal or Stay of the Petition. The court shall enter an order for the summary dismissal of the petition in whole or in part, stating the reasons for the dismissal, if from the face of the petition and any exhibits attached to it, the petition affirmatively discloses

(1) No restraint or impediment under 15 M.R.S. §2124;
(2) Waiver of grounds for relief under 15 M.R.S. §2128 and discloses no exception under 15 M.R.S. §2128-A;
(3) Failure to adhere to the filing deadline under 15 M.R.S. §2128-B; if subsection 1, paragraph C is triggered, further discloses a failure to exercise due diligence; or
(4) No ground upon which post-conviction relief can be granted under 15 M.R.S. §2125.

The court shall cause the petitioner to be notified of the dismissal and the reasons for it.

In the event that the face of the petition and any exhibits attached to it affirmatively disclose one or more unexhausted remedies incidental to the proceedings in the trial court, or on appeal, or administrative remedies under 15 M.R.S. §2126, the court shall, except as otherwise specifically provided in 15 M.R.S. §2126 regarding an appeal from a judgment of conviction, a juvenile adjudication, or a judgment of not criminally responsible by reason of insanity, either enter an order for the summary dismissal of the petition or enter an order staying the post-conviction review proceeding pending exhaustion, depending upon which alternative the court determines to be most appropriate under the circumstances. The court shall cause the person to be notified of the dismissal or stay and of the duty to exhaust.

(c) Response; Amendment to Petition. If the petition is not summarily dismissed pursuant to subdivision (b), the respondent shall file a response as follows:

(1) If the petitioner has been represented by counsel at the time of the filing of the petition or the petitioner does not desire to retain counsel, or, if indigent, to have counsel assigned, the court shall order the respondent to file a response pursuant to Rule 71 within 21 days of the date the order is received.
(2) If the petitioner has not been represented by counsel at the time of the filing of the petition but expresses an intent to retain counsel forthwith or has made application to have counsel assigned pursuant to Rule 69, the court shall provide the nonindigent petitioner the opportunity to retain counsel or shall assign counsel for the indigent petitioner. Within 42 days of the date counsel enters appearance or is assigned, counsel shall file either an amended petition or notice that no amended petition is to be filed. Additional time may be granted by the court for cause shown before or after the time has expired, with or without motion and notice. Following the filing of an amended petition or notice that no amended petition is to be filed, the clerk of the Unified Criminal Docket shall mail a copy thereof to the respondent. Within 21 days of receipt of such copy, the respondent shall file a response pursuant to Rule 71.
(3) Following the filing of a response by respondent pursuant to paragraphs (1) and (2) a petition may be further amended only by leave of the court for good cause shown. If the court allows a petition to be amended after the filing of a response, the respondent may, except as the court might otherwise provide pursuant to Rule 72A(b)(3), file an additional response within 14 days of receipt of the amended petition.
(d) Withdrawal of Petition. A petitioner, at any time prior to final disposition, may move to withdraw a petition without such a withdrawal operating as an adjudication upon the merits by filing a signed request. The court shall grant such motion in the absence of a showing by the respondent that it would be unfairly prejudiced thereby. A motion to withdraw without prejudice may be signed by petitioner’s counsel rather than by the petitioner personally if the motion includes a representation by counsel that the petitioner has instructed counsel to seek a withdrawal of the petition.
(e) Dismissal of Petition for Failure to Prosecute. The court, on its own initiative or on motion of the respondent, after notice to the parties, and in the absence of a showing of good cause to the contrary by the petitioner, shall dismiss a petition for want of prosecution at any time more than one year after the last docket entry showing any action taken therein by the petitioner other than a motion for a continuance. Unless the court in the order for dismissal otherwise specifies, such dismissal shall operate as an adjudication upon the merits.

Me. R. Uni. Crim. P. 70

Last amended effective November 2, 2016.