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

(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.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 70 of the Maine Rules of Criminal Procedure but differs in the following respects. First, the first segment in the heading to Rule 70 is changed from " REVIEW OF THE PETITION BY ASSIGNED JUSTICE " to " REVIEW OF THE PETITION BY THE COURT." Second, the heading in subdivision (a) is changed from " Review of Petition by Assigned Justice" to " Review of Petition by the Court. " Third, in subdivisions (a), (b), (c), (d), and (e) the word "court" replaces "assigned justice" as in the above-referenced headings because the term "court" is now expressly defined in Rule 57(d) to mean both "a Superior Court justice and a District Court judge" (or a variant thereof) unless the context clearly indicates only one or the other. See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 57(d). Fourth, in subdivision (c) "20 days" is changed to "21 days" in paragraph (1), "45 days" and "20 days" are changed to "42 days" and "21 days" respectively in paragraph (2), and "15 days" is changed to "14 days" in paragraph (3) in order to reflect the Court's preference for calculating time periods for rule purposes in increments of 7 rather than increments of 5.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note – 1981 [M.R. Crim. P. 70.] Rule 70 is added to incorporate in one comprehensive rule the procedure respecting the review of a petition by the assigned justice, summary dismissal, order to respond and amendment of the petition. Subdivision (a) Subdivision (a) incorporates the substance of the first sentence of the now repealed 15 M.R.S. section 2129, subsection 5 (repealed by P.L.1981, ch. 238, § 5). Subdivision (b) Subdivision (b) incorporates the substance of paragraph A of the nowrepealed 15 M.R.S. section 2129, subsection 5 (repealed by P.L. 1981, ch. 238, § 5) except that portion applying summary dismissal to the form-petition requirements, see note 8, supra. Subdivision (c) Subdivision (c) does not mirror the substance of the now-repealed 15 M.R.S. section 2129, subsection 5, paragraph B and subsection 6 (repealed by P.L. 1981, ch. 238, § 5). It is designed to accomplish the following: first, to reduce to a minimum the number of instances in which the respondent will be called upon to respond to a defective petition (see paragraphs (1) and (2)); second, to afford the respondent a realistic time period within which to respond to a petition (see paragraphs (1) and (2)); third, to insure that the respondent will not be called upon to file multiple responses because of inexcusable piecemeal amending of a petition (see paragraph 3); fourth, to afford each petitioner filing a petition without the benefit of counsel the opportunity to amend such petition with the assistance of counsel (see paragraphs (1) and (2)); and fifth, to impose upon petitioner's retained or appointed counsel no specific limitation as to the amount of time within which to renew and amend, if appropriate, a petition.

Advisory Committee Note – 1983 [M.R. Crim. P. 70.] The title of Rule 70 is amended to reflect the addition of new sections (d) and (e). At present Part XI is wholly silent as to whether, and under what circumstances, a petition can be withdrawn without the withdrawal operating as an adjudication upon the merits. The omission is undesirable. Page v. State , No. CR-81-70 (Me. Super. Pen. Cty., March 31, 1982). Proposed section (d), unlike M.R. Civ. P. 41(a), does not allow a dismissal "as of right" by the petitioner, because the respondent, in certain cases, could suffer discernable prejudice if forced to run the risk of future litigation of the same claims. Absent some actual prejudice to the respondent, however, section (d) contemplates that a petitioner's request to withdraw his petition will be granted and will not operate as an adjudication upon the merits. At present Part XI is wholly silent as to whether, and under what circumstances, a petition may be dismissed by an assigned justice because of the petitioner's failure to prosecute. Proposed section (e) is modeled after M.R. Civ. P. 41(b). The two-year period of Rule 41(b), however, is reduced to one year, because inaction for one year is a sufficient ground for judicial intervention. Section (e) contemplates that except in unique circumstances— e.g ., where the failure to prosecute is attributable to petitioner's counsel— dismissal shall operate as an adjudication upon the merits, thereby, inter alia , triggering the application of 15 M.R.S. § 2138(3).

Advisory Committee Note – 1986 [M.R. Crim. P. 70(c)(2).] At present, Rule 70(c)(2) intentionally imposes "upon petitioner's retained or appointed counsel no specific limitation as to the amount of time within which to review and amend, if appropriate, a petition." M.R. Crim. P 70(c)(2) advisory committee's note to 1981 amend., Me. Rptr., 434440 A.2d LXXIV. Such latitude has, however, proven unsatisfactory in practice since frequently petitioners' counsel fail to carry out their responsibility in a timely manner. Further, the situation has the potential of worsening once postconviction review proceedings begin to be assigned to the regular criminal calendar. See P.L. 1985, ch. 209, § 1. The amendment is designed to reduce significantly the existing problem but, at the same time, provide for a realistic time limitation. In those cases in which the 45-day period is insufficient, one or more enlargements of time can be obtained by petitioners' counsel pursuant to Rule 45(b).

Advisory Committee Note – 1986 [M.R. Crim. P. 70.] In addition to the important substantive modification to Rule 70(c)(2) made by amendment effective February 15, 1986, Rule 70(c) has been substantively altered to eliminate its present requirement that the assigned justice "order" a response in favor of triggering the respondent's duty to respond through action by the clerk of the Superior Court.

Advisory Committee Note – 1990 [M.R. Crim. P. 70(d).] This amendment modifies the present rule to conform to present practice. The change does not allow petitioner's counsel to sign in the petitioner's stead if the motion requests a withdrawal with prejudice—i.e., a request which if granted would operate as an adjudication upon the merits.

Advisory Committee Note – 1993 [M.R. Crim. P. 70(c)(2).] Experience has shown that enlargements of time need not be as sparingly granted for petitions for post-conviction review as for criminal trials and appeals. Accordingly, the strict standard of enlargement of Rule 45(b) should be disentangled from post-conviction petitions. The amendment substitutes a more lenient standard of enlargement.

Advisory Note – July 2010 M.R. Crim. P. 70. See Advisory Note—July 2010 to M.R. Crim. P. 44.

Advisory Note – October 2013 Former subdivision (b) has been deleted and replaced in order to rectify two major deficiencies. First, former subdivision (b) employed the phrase "a ground upon which post-conviction relief can be granted" to inferentially allude to the three unmentioned statutory prerequisites of exhaustion of remedies under 15 M.R.S. § 2126, absence of waiver of one or more grounds for relief under 15 M.R.S. § 2128, and timely filing of the petition under 15 M.R.S. § 2128B. New subdivision (b) expressly addresses each of the five statutory prerequisites. Further, in the exhaustion context, new subdivision (b) expressly recognizes the authority of an assigned justice, 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, to order a stay of the post-conviction review proceeding as an alternative to a summary dismissal if the assigned justice determines that to be most appropriate under the circumstances. Second, former subdivision (b) failed to provide sufficient guidance to an assigned justice in determining when a summary dismissal was appropriate. New subdivision (b) replaces the phrase "if it plainly appears" modifying "the face of the petition and any exhibits annexed to it" with the modifying phrase "affirmatively disclose," the latter providing a clearer standard. Libby v. State, 2007 ME 80, ¶ 1 n.2, 926 A.2d 724. Further, what is now required to be affirmatively disclosed is specifically identified as to each of the five statutory prerequisites. The special circumstance included in subdivision (3) regarding the failure to adhere to the filing deadline in the event 15 M.R.S. § 2128-B(1)(C) is triggered reflects the additional precondition for granting a summary dismissal of "a failure to exercise due diligence." Diep v. State, 2000 ME 53, ¶ 6, 748 A.2d 974. Subdivision (c)(2) is amended to provide further guidance to an assigned justice in granting for cause shown additional time within which petitioner's counsel can file either an amended petition or notice that an amended petition is to be filed. It expressly allows the granting of additional time "before or after the time has expired, with or without motion and notice." See also

Advisory Note – October 2013 to M.R. Crim. P. 70(c)(2). Subdivision (c)(3) is amended to make clear that the discretion given the respondent as to whether to file an additional response if a petition is further amended may nonetheless become mandatory if the assigned justice orders that an additional response be filed pursuant to Rule 72A(b)(3).