3:22-6. Indigents; Waiver of Fees; Assignment of Counsel, and Grant of
Transcript; Assigned Counsel May Not Withdraw
(a) Waiver of Fees; Assignment on First Petition. At the time of filing of a
petition under this Rule, a defendant who [is not] wants to be represented by the Office
of the Public Defender may annex thereto a sworn statement alleging indigency in the
form prescribed by the Administrative Director of the Courts, which form shall be
furnished to the defendant by the criminal division manager's office. The criminal
division manager's office shall determine whether the defendant is indigent and screen
the petition to determine whether the petition is cognizable under R. 3:22-2 and, if so,
whether the requirements of R. 3:22-8 have been met. The Criminal Division Manager
shall thereafter forthwith submit the same to the [Presiding Judge of the Criminal
Division] Criminal Presiding Judge who, if satisfied therefrom that the defendant is
indigent, shall order the criminal division manager's office to file the petition without
payment of filing fees. At the same time, and without separate petition therefor, if the
petition is the first one filed by the defendant attacking the conviction pursuant to this
rule, the court shall as of course, unless defendant affirmatively states an intention to
proceed pro se, [refer] by order assign the matter to the Office of the Public Defender if
the defendant's conviction was for an indictable offense, or assign counsel in
accordance with R. 3:4-2 if the defendant's conviction was for a non-indictable offense.
All orders of assignment pursuant to this section shall contain the name of the judge to
whom the case is assigned and shall set a place and date for a case management
conference.
If the petition is not cognizable under R. 3:22-2, or if the petition does not meet
the requirements of R. 3:22-8, the court shall set forth the reasons that the petition is not
cognizable under R. 3:22-2, or fails to meet the requirements of R. 3:22-8.
(b) Assignment of Counsel on Cause Shown. Upon any second or subsequent
petition filed pursuant to this Rule attacking the same conviction, the matter shall be
[referred] assigned to the Office of the Public Defender only upon application therefor
and showing of good cause. For purposes of this section, good cause exists only when
the court finds that a substantial issue of fact or law requires assignment of counsel and
when a second or subsequent petition alleges on its face a basis to preclude dismissal
under R. 3:22-4.
(c) Transcript. After assignment of counsel, or if the indigent defendant proceeds
without counsel, the court may [shall] grant an application for the transcript of testimony
of any proceeding shown to be necessary in establishing the grounds of relief asserted.
(d) Substitution; Withdrawal of Assigned Counsel. [Absent a showing of good
cause, the] The court [will] shall not substitute new assigned counsel at the request of
defendant while assigned counsel is serving[.], except upon a showing of good cause
and notice to the Office of the Public Defender. Assigned counsel may not seek to
withdraw on the ground of lack of merit of the petition. Counsel should advance [any
grounds insisted upon by defendant notwithstanding that counsel deems them without
merit] all of the legitimate arguments requested by the defendant that the record will
support. If defendant insists upon the assertion of any grounds for relief that counsel
deems to be without merit, counsel shall list such claims in the petition or amended
petition or incorporate them by reference. Pro se briefs can also be submitted.
