Rule 71A. Filing a Response Seeking Dismissal; Timely Disposition by the Court

If the response filed by the respondent seeks a dismissal of the petition in whole or in part based upon a petitioner's alleged failure to satisfy one or more of the five statutory prerequisites to an adjudication on the merits identified in Rule 66, the court

(a) In the case of an alleged failure on the part of the petitioner to demonstrate exhaustion of remedies incidental to the proceeding in the trial court, or on appeal, or through administrative remedies, shall dispose of the dismissal request based upon the pleadings, any further amendment of the pleadings, and any other material of record. In the event the court determines that one or more pending or available unexhausted remedies exist, 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 grant the respondent's dismissal request or stay the post-conviction review proceeding pending exhaustion, depending upon which alternative the court determines to be most appropriate under the circumstances.

(b) In the case of an alleged failure on the part of the petitioner to demonstrate one or more of the other statutory prerequisites, shall dispose of the dismissal request based upon the pleadings, any further amendment of the pleadings, and any other material of record unless the court determines that, as a matter of fairness to the petitioner, disposition should await an evidentiary hearing.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 71A of the Maine Rules of Criminal Procedure but differs in the following respects. First, the last segment in the heading to Rule 71A is changed from " TIMELY DISPOSITION BY ASSIGNED JUSTICE " to " TIMELY DISPOSITION BY THE COURT. " Second, the word "court" replaces "assigned justice" whenever appearing, as in the heading to the Rule. See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 70.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Note – October 2013 New Rule 71A addresses the timely disposition by an assigned justice of a response filed by a respondent seeking a dismissal of the petition in whole or in part based upon a petitioner's alleged failure to satisfy one or more of the five statutory prerequisites to an adjudication on the merits identified in Rule 66. See also Advisory Note – October 2013 to M.R. Crim. P. 66. Paragraph (a) of Rule 71A addresses a respondent's dismissal request based on an alleged failure on the part of the petitioner to demonstrate a prior exhaustion of remedies incidental to the proceeding in the trial court or on appeal, or administrative remedies under 15 M.R.S. § 2126. The assigned justice is directed to dispose of the dismissal request based on the pleadings, any further amendment of the pleadings, and any other material of record. Further, in the event the assigned justice determines that one or more pending or available unexhausted remedies exist, it 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 granting the respondent's dismissal request if the assigned justice determines that to be most appropriate under the circumstances. Paragraph (b) of Rule 71A addresses a respondent's dismissal request based on an alleged failure on the part of the petitioner to demonstrate one or more of the other statutory prerequisites of restraint or impediment under 15 M.R.S. § 2124, absence of waiver of grounds for relief under 15 M.R.S. § 2128 and not exempted under 15 M.R.S. § 2128-A, timely filing of the petition under 15 M.R.S. § 2128-B, and a ground upon which post-conviction relief can be granted under 15 M.R.S. § 2125. It requires the assigned justice to dispose of the dismissal request based on the pleadings, any further amendment to the pleadings, and any other material of record, unless "the assigned justice determines that, as a matter of fairness to the petitioner, disposition should await an evidentiary hearing."