Arizona Rule 32 and Rule 33 cases, and Federal "2254" and "2255" motions
AZ Rule 32 or Rule 33 Motion
You may have heard the terms “writ of habeas corpus,” “post-conviction relief,” or “collateral attack.” If your case was prosecuted in Arizona State court, then these terms are synonymous with Arizona's two post-conviction proceedings, filed under Rule 32 if your case went to trial, or Rule 33 if you accepted a plea bargain but later have complaints about how your case was handled. The challenge or “attack” on a wrongful conviction or excessive sentence is presented to the court that sentenced you, as a "motion" rather than a "petition" or "application for a writ." There is no substantive difference, though.
A Rule 32/ Rule 33 motion is the way to obtain post-conviction relief in Arizona, meaning it is used to seek release from a sentence imposed after a conviction. It is classified as a “collateral attack” as opposed to a “direct attack” upon the conviction, because it usually involves the trial court receiving new evidence that was previously not available, such as testimony about breakdowns in the attorney-client relationship, or tasks that the defense attorney failed to undertake (like, failure to investigate witnesses before trial, or failure to lodge proper objections to the prosecution’s case during trial).
The procedural rules governing Rule 32/ Rule 33 motions are complex. The appellate decisions which interpret the procedures and limitations that apply to these Arizona motions are often confusing and can appear to be contradictory. If you are thinking about preparing and filing a Rule 32 or Rule 33 motion, you should consult with an appellate/ post-conviction attorney. In nearly all cases, you only get one chance to bring a Rule 32 or Rule 33 motion. If you make a mistake and lose the motion on procedural grounds, the Arizona appellate courts (and later, a Federal "2254" court) will probably not allow you to file another post-conviction motion making those same arguments.
Timing is everything: If you are filing a Rule 32 motion challenging the representation you received before and during a trial, you have 30 days after losing your appeal to submit the opening "notice" which starts the process. (This is not the motion, itself; it's just the initial notice that commences the proceedings to follow.) Also, in the rare circumstance that you did not file an appeal after sentencing, then you have 90 days from the date you were sentenced to then file the "notice."
If you instead pleaded guilty to resolve your charges, you can still challenge the quality of representation you received by filing a Rule 33 motion. The deadline for filing the "notice" that starts a Rule 33 proceeding is 90 days after sentencing.
In some instances where the grounds for filing a Rule 32 or Rule 33 case are not known to the convicted defendant until well after the filing deadlines have passed, a convicted defendant can still file "out of time" if he or she can show that the late filing was made within a reasonable amount of time after discovery of the grounds for the post-conviction motion.
In terms of arguments, the most common assertion in a Rule 32 or Rule 33 proceeding is "ineffective assistance of counsel." In other words, the filer is arguing that his or her trial or plea attorney failed in one or more areas of representation. This is not to say that other arguments about errors in the filer's trial or plea procees cannot be asserted. But generally speaking, those other claims should likely be raised in the first or "direct" appeal.
Section 2254 and Section 2255 Federal Habeas Corpus Cases
In Chapter 28 of the United States Code, Sections 2254 and 2255, one finds the laws (“statutes”) which are the modern versions of the “writ of habeas corpus.” These Federal laws are available as an aid to people who have been convicted in State or Federal courts and who are in custody, but who feel they have been wrongly convicted, or excessively punished. Sections 2254 and 2255 provide the procedural vehicle for these people to challenge their convictions or sentences, beyond the limited challenges available through the “direct appeal” process.
For example, if someone in Federal custody has lost their direct appeal after a trial, or is not able to file a direct appeal because of their guilty plea, they still may be able to challenge their conviction or sentence via “habeas corpus.” This Federal post-conviction procedure is invoked by filing a “2255 motion.” When a “2255 motion” is used effectively, it can be a powerful tool to right injustices that were not, or could not have been raised, in the direct appeal process. This is because Section 2255 gives courts broad discretion in fashioning appropriate relief – including dismissal of all charges, retrial, or resentencing – if a constitutional violation of an inmate’s Sixth Amendment right to effective assistance of counsel can be proven, or a violation of an inmate’s Eighth Amendment right to be free from cruel or unusual punishment can be shown.
Similarly, someone who has been convicted in State court but has not found relief through the State's appellate and post-conviction procedures (like Rules 32 or 33 in Arizona) can seek habeas corpus review from a Federal judge, via a Section 2254 action.
Who Can File?
Only people in custody under the sentence of a Federal court may file motions pursuant to 28 U.S.C. 2255 to vacate their convictions or sentences. And, only people in custody under the sentence of a State court may file motions pursuant to 28 U.S.C. 2254. An applicant under these laws is called a “movant,” and must either be in prison or jail or else have his or her liberty under some other form of restraint as part of a State or Federal sentence. A movant need only satisfy the “custody” requirement at the time they file a 2254 or 2255 motion. Defendants who have completed their sentences may not obtain relief through Sections 2254 or 2255. However, defendants who cannot meet the “custody requirement” may still be able to obtain relief under the All Writs Act, 28 U.S.C. 1651, by petitioning for a writ in the nature of Coram Nobis, which has no custody requirement, or a Writ of Audita Querela. Further information about these procedures can be obtained through an in-office consultation.
Differences from Direct Appeals
One of the most significant differences between a direct appeal and a 2254 or 2255 motion is that direct appeals are decided based on the trial court record as it exists as of the time the Notice of Appeal is filed. By contrast, 2254 and 2255 motions offer movants the opportunity to present the court with new evidence. While issues that may be raised in a “2255 motion” are not necessarily limited by the record as it exists at the time the motion is filed, not all issues may be raised in a “2255 motion.” For example, if an issue could have been fully raised and briefed during the direct appeal process, it must have been pursued in that earlier appeal, and will thus be dismissed out from the “2254/ 2255” proceedings.
Section 2254 and Section 2255 motions may only be used to raise jurisdictional, constitutional, or other fundamental errors. For example, some Federal appellate courts have ruled that sentencing calculation errors that escaped notice on direct appeal cannot be raised under Sections 2254 or 2255 unless couched in terms of “ineffective assistance of counsel.” Others have not questioned the appropriateness of raising sentencing issues in a 2254 or 2255 motion. Legal research is needed to divine out what the result may be in your particular Federal court.
A 2254 or 2255 motion is, however, always the proper procedural vehicle to seek review from a Federal judge on the of question whether an attorney’s failure to raise legal and factual issues deprived a defendant of his or her Sixth Amendment right to effective representation, either at trial, sentencing or on direct appeal.
Encountering Obstacles in Litigating a “2255 Motion”
Identifying an appropriate “2255” issue is no guarantee of success. Even prisoners who have good issues must often overcome numerous procedural obstacles before a post-conviction court will even address them. For example, if an issue could have been raised on direct appeal, but was not, a Federal district court will not consider the issue in a “2255” proceeding unless the defendant (“movant”) can demonstrate “cause” (such as “ineffective assistance of [trial or appellate] counsel”) for not raising the issue earlier and “prejudice” (that is, that the error likely made a difference in the outcome). For this reason, it is generally not a good idea to forego a “direct appeal” and proceed directly to a “2255 motion.”
Conversely, if an issue was raised and decided in the movant’s initial “direct appeal,” a movant is “procedurally barred” from raising the issue yet again in a “2255 motion,” absent extraordinary circumstances, such as an intervening change in the law or newly discovered evidence.
Movants’ Rights
Prisoners who cannot afford to hire private counsel have no right to appointed counsel to assist them in filing a “2255 motion.” Indigent litigants may, however, ask the post-conviction court for an appointment of counsel. A court has the discretion to appoint counsel during any stage of the proceeding if it is in the interests of justice to do so. That said, the appointment of an attorney is required if the court is granting the movant an evidentiary hearing, or if the court permits “discovery” (investigation) and finds that an attorney is necessary for effective utilization of those procedures.
Denial of A "2254" or "2255" Motion
When Congress enacted the laws defining and limiting federal post-conviction relief (called “The Antiterrorism and Effective Death Penalty Act,” or “AEDPA” for short), Congress created barriers to appealing the denial of a "2254" or a “2255 motion.” In short, you can appeal if you are given “permission to appeal” via a “certificate of appealability,” which must be sought by an application.
When the district court denies a "2254" or a “2255 motion,” it is given the first chance for considering whether or not to grant a certificate of appealability. Then, the Federal appeals court (“circuit court”) for that region is next up to consider whether or not to grant a certificate of appealability (often called a “COA”). Invoking consideration by the appellate court is as simple as filing a Notice of Appeal (“NOA”). However, if you do not also file an “application” along with your NOA, in which you explain your reasons for seeking the COA, you shouldn’t expect to have a great shot at getting a COA.
To obtain a certificate of appealability, an applicant must make a “substantial showing” of the denial of a constitutional right. While the law as written encourages the granting of a certificate of appealability except in cases where a judge believes the “2254" or "2255 motion” was frivolous, in practice the opposite is true. COAs are granted in less than 2% of all cases.
If a “2254" or "2255 motion” raised more than one issue, the application for a certificate of appealability should address each issue separately. Often a litigant is allowed to appeal from the denial of a “2254" or "2255 motion” on some – but not all – of the grounds raised.
Substantial Showing of The Denial of A Constitutional Right
An applicant for a COA need not prove that he or she will actually win the appeal in order to bring an appeal challenging the denial of a "2254" or “2255 motion.” A certificate of appealability should be granted if reasonable judges could differ about the merits of the constitutional claims raised in the "2254" or “2255 motion.” This legal standard does not require a showing that some judges would have agreed with a particular claim. Instead, the claim merely needs to be strong enough to be “debatable.” If a claim has arguable merit, it should provoke the issuance of a certificate of appealability.
While the right to appeal the denial of a "2254" or “2255 motion” is not automatically granted, a movant’s chance of pursuing an appeal will be greater if he or she is represented by an attorney who has experience handling "2254 and 2255 motions” and appeals.