Rules of Court (Criminal) -- Amendments to Post-Conviction Relief Rules (Rules 3:22-4, 3:22-6A, 3:22-10, 3:22-11, and 3:22-12)
Dated: January 14, 2010
3:22-4. Bar of Grounds Not Raised in Prior Proceedings; Bar of Second or
Subsequent Petitions; Exceptions
(a) First Petition for Post-Conviction Relief. Any ground for relief not raised [in
a prior proceeding under this rule, or] in the proceedings resulting in the
conviction, or in a post-conviction proceeding brought and decided prior to the
adoption of this rule, or in any appeal taken in any such proceedings is barred
from assertion in a proceeding under this rule unless the court on motion or at
the hearing finds:
[ (a) ] (1) that the ground for relief not previously asserted could not
reasonably have been raised in any prior proceeding; or
[ (b) ] (2) that enforcement of the bar to preclude claims, including one for
ineffective assistance of counsel, would result in fundamental injustice; or
[ (c) ] (3) that denial of relief would be contrary to a new rule of
constitutional law under either the Constitution of the United States or the State
of New Jersey.
A ground could not reasonably have been raised in a prior proceeding
only if defendant shows that the factual predicate for that ground could not have
been discovered earlier through the exercise of reasonable diligence.
A denial of relief would be contrary to a new rule of constitutional law only
if the defendant shows that the claim relies on a new rule of constitutional law,
made retroactive to defendant’s petition by the United States Supreme Court or
the Supreme Court of New Jersey, that was unavailable during the pendency of
any prior proceedings.
(b) Second or Subsequent Petition for Post-Conviction Relief. A second or
subsequent petition for post-conviction relief shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made
retroactive to defendant’s petition by the United States Supreme Court or the
Supreme Court of New Jersey, that was unavailable during the pendency of any
prior proceedings; or
(B) that the factual predicate for the relief sought could not have
been discovered earlier through the exercise of reasonable diligence, and the
facts underlying the ground for relief, if proven and viewed in light of the evidence
as a whole, would raise a reasonable probability that the relief sought would be
granted; or
(C) that the petition alleges a prima facie case of ineffective
assistance of counsel that represented the defendant on the first or subsequent
application for post-conviction relief.
Note: Source – R.R. 3:10A-4; caption amended, introductory paragraph
amended and designated as paragraph (a), former paragraphs (a), (b), and (c)
redesignated as subparagraphs (a)(1), (a)(2), and (a)(3), and new paragraph (b)
adopted January 14, 2010 to be effective February 1, 2010.
3:22-6A. Notifying Court of Assignment; Filing of Appearance
(1) ... no change
(2) If a direct appeal, including a petition for certification, is pending, the
Public Defender shall notify the court, and the petition shall be dismissed without
prejudice. If the defendant refiles the petition within 90 days of the date of the
judgment on direct appeal, including consideration of a petition for certification, or
within five years after [rendition] the date of the entry pursuant to Rule 3:21-5 of
the judgment of conviction being challenged [or sentence sought to be attacked,
whichever is later], it shall be considered a first petition for post-conviction relief.
(3) ... no change
(4) ... no change
Note: Adopted July 16, 2009 to be effective September 1, 2009; paragraph (2)
amended January 14, 2010 to be effective February 1, 2010.
3:22-10. Presence of Defendant at Hearing; Evidentiary Hearing
(a) A defendant in custody may be present in court in the court’s discretion.
[and] The defendant shall be entitled to be present when oral testimony is
adduced [on a material issue of fact within the defendant’s personal knowledge].
However, the defendant’s presence may be waived by counsel upon request of
the defendant.
(b) [ (a) ] A defendant shall be entitled to an evidentiary hearing only
upon the establishment of a prima facie case in support of post-conviction relief,
a determination by the court that there are material issues of disputed fact that
cannot be resolved by reference to the existing record, and a determination that
an evidentiary hearing is necessary to resolve the claims for relief. To establish a
prima facie case, defendant must demonstrate a reasonable likelihood that his or
her claim, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits.
(c) [ (b) ] Any factual assertion that provides the predicate for a claim of
relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and
based upon personal knowledge of the declarant before the court may grant an
evidentiary hearing.
(d) [ (c) ] The scope of an evidentiary hearing shall be limited to the issue
of whether the defendant was improperly convicted.
(e) [ (d) ] A court shall not grant an evidentiary hearing:
(1) if an evidentiary hearing will not aid the court's analysis of the
defendant's entitlement to post-conviction relief;
(2) if the defendant's allegations are too vague, conclusory or speculative;
or
(3) for the purpose of permitting a defendant to investigate whether
additional claims for relief exist for which defendant has not demonstrated a
reasonable likelihood of success as required by R. 3:22-10(b) [R. 3:22-10(a)] .
Note: Source – R.R. 3:10A-11; amended July 13, 1994 to be effective
September 1, 1994; caption amended, first sentence of former rule deleted,
remaining text of former rule retained as introductory language, and new
paragraphs (a), (b), (c), and (d) adopted July 16, 2009 to be effective September
1, 2009; introductory paragraph of rule amended and designated as new
paragraph (a), former paragraphs (a), (b), and (c) redesignated as paragraphs
(b), (c), and (d), and former paragraph (d) amended and redesignated as
paragraph (e) January 14, 2010 to be effective February 1, 2010.
3:22-11. Determination; Findings and Conclusions; Judgment; Supplementary
Orders
The court shall make its final determination not later than 60 days after the
hearing or, if there is no hearing, not later than 60 days after the filing of the last
amended petition or answer, with discretion to extend the final determination an
additional 30 days, if approved by the Criminal Presiding Judge. In making final
determination upon a petition, the court shall state separately its findings of fact
and conclusions of law, and shall enter a judgment, which shall include an
appropriate order or direction with respect to the judgment or sentence in the
conviction proceedings and any appropriate provisions as to rearraignment,
retrial, custody, bail, discharge, correction of sentence, or as may otherwise be
required.
Note: Source – R.R. 3:10A-12; amended July 16, 2009 to be effective
September 1, 2009; amended January 14, 2010 to be effective February 1, 2010.
3:22-12. Limitations
(a) General Time Limitations. [A petition to correct an illegal sentence may be
filed at any time.]
(1) First Petition For Post-Conviction Relief. Except as provided in
paragraphs (a)(2), (a)(3), and (a)(4) of this rule, no [No other] petition shall be
filed pursuant to this rule more than 5 years after [rendition] the date of entry
pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged [or
sentence sought to be attacked] unless it alleges facts showing that the delay
beyond said time was due to defendant’s excusable neglect and that there is a
reasonable probability that if the defendant’s factual assertions were found to be
true enforcement of the time bar would result in a fundamental injustice.
(2) Second or Subsequent Petition for Post-Conviction Relief.
Notwithstanding any other provision in this rule, no second or subsequent petition
shall be filed more than one year after the latest of:
(A) the date on which the constitutional right asserted was initially
recognized by the United States Supreme Court or the Supreme Court of
New Jersey, if that right has been newly recognized by either of those
Courts and made retroactive by either of those Courts to cases on
collateral review; or
(B) the date on which the factual predicate for the relief sought was
discovered, if that factual predicate could not have been discovered earlier
through the exercise of reasonable diligence; or
(C) the date of the denial of the first or subsequent application for
post-conviction relief where ineffective assistance of counsel that
represented the defendant on the first or subsequent application for post-
conviction relief is being alleged.
(3) Dismissal Without Prejudice When Direct Appeal Is Pending. A
petition dismissed without prejudice pursuant to R. 3:22-6A(2) because a direct
appeal, including a petition for certification, is pending, shall be treated as a first
petition for purposes of these rules if refiled within 90 days of the date of the
judgment on direct appeal, including consideration of a petition for certification, or
within five years after [rendition] the date of the entry pursuant to Rule 3:21-5 of
the judgment of conviction that is being challenged [or sentence sought to be
attacked, whichever is later].
(4) Dismissal Without Prejudice As Not Cognizable or For Insufficient
Verification or Contents. A petition dismissed pursuant to R. 3:22-6A(3) without
prejudice as not cognizable under R. 3:22-2, or for failing to meet the
requirements of R. 3:22-8, shall be treated as a first petition for purposes of these
rules if amended and refiled within 90 days after the date of dismissal, or within
five [5] years after [rendition] the date of the entry pursuant to Rule 3:21-5 of the
judgment of conviction that is being challenged [or sentence sought to be
attacked, whichever is later].
(b) ... no change
(c) ... no change
Note: Source – R.R. 3:10A-13. Caption added and text designated as paragraph
(a), and new paragraph (b) added July 12, 2002 to be effective September 3,
2002; paragraph (a) amended and new paragraph (c) adopted July 16, 2009 to
be effective September 1, 2009; former paragraph (a) amended and allocated
into subparagraphs (a)(1), (a)(3), and (a)(4), captions adopted for subparagraphs
(a)(1), (a)(3), and (a)(4), and new subparagraph (a)(2) caption and text adopted
January 14, 2010 to be effective February 1, 2010 .
