Joy Athena
Pima county Legal Defender's Office
32 N. Stone 8th Fl.
Tucson, AZ 85701-1406
520-740-5775
[email protected] Comment to Petition to Amend Rule 32.4(c) and Rule 32.6(a) and (b).
I have been practicing appellate law for over 11 years, with Rule 32 petitions for post-conviction relief comprising most of my case load.
I agree with the Petition’s primary amendment, which is to permit time extensions for “good cause” rather than “extraordinary circumstances.”
Because I believe the primary amendment will resolve the problems outlined in the petition with respect to the specific filing time limits contained in the various rules, I do not believe any change to the present filing time limits are necessary, and indeed, may cause unintended delays.
For example, it is unnecessary to increase the state’s 45-day response time under Rule 32.6(a). The less restrictive extension policy engendered by the “good cause” amendment will accommodate the state’s need for additional extensions (just as it will for petitioners who require more than the present 60 days to file the petition.) In the hundreds of Rule 32s I have handled in Pima County, the state has rarely requested a time extension; when the state needs extra time, there is typically no opposition—even if there were opposition, the trial court may assess the state’s request under the proposed “good cause” standard. Moreover, it sometimes happens that the state files no response. In that situation, both the trial court and the petitioner would have to wait 90 days under the proposed amendment before the trial court could rule on the petition. There is no need to create this unintended delay by changing the rule’s time limits once the standard for asking for more time is amended to “good cause.”
Finally, it appears that the proposed rule change inadvertently left out the addition of “good cause” in Rule 32.6(b), even though it reflects the removal of “extraordinary circumstances.” Some standard should remain in the rule. As in initial extension requests, the trial court is in the best position to determine whether an extension should be granted. For example, many of my clients, most of whom are incarcerated and who proceed pro se, require more than 15 days to file a reply. If this Court amends the Rule to add the “good cause” language as requested in the petition, it should also add the language to 32.6(b).
My colleagues Robb Holmes, Scott Martin, Alex Heveri, and Stephan McCaffery, experienced post-conviction appellate attorneys, concur with my comments.