44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO THE COURTS; ESTABLISHING PROCEDURES FOR AN APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM A JUDGMENT IMPOSING A PENALTY OF DEATH.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. WRIT OF HABEAS CORPUS--APPLICATION TO DEATH PENALTY CASE.--Notwithstanding other provision of law, Sections 1 through 10 of this act establish procedures for an application of a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death.

Section 2. REPRESENTATION BY COUNSEL.--

A. An applicant shall be represented by competent counsel unless the applicant proceeds pro se and the convicting court finds, after a hearing on record, that the applicant's decision to proceed pro se is intelligent and voluntary.

B. If an applicant is sentenced to death on or after July 1, 1999, the convicting court, immediately after judgment is entered, shall determine if the defendant is indigent and, if so, whether the applicant desires appointment of counsel for the purpose of a writ of habeas corpus. If an applicant who is sentenced to death does not have an initial application for a writ of habeas corpus pending on July 1, 1999, and has not been denied relief by the supreme court in an initial habeas corpus proceeding, the convicting court, as soon as practicable, shall determine whether the defendant is indigent and, if so, whether the defendant desires the appointment of counsel for the purpose of a writ of habeas corpus.

C. Immediately after the convicting court makes the findings provided in Subsections A, B and I of this section, the clerk of the convicting court shall forward to the supreme court:

(1) a copy of the judgment;

(2) a list containing the name, address and telephone number of each counsel of record for the applicant at trial and on direct appeal; and

(3) for an applicant who proceeds pro se, findings made by the convicting court on the voluntariness of the applicant's decision to proceed pro se.

D. Unless an applicant proceeds pro se or retains counsel, the supreme court shall, under rules and standards adopted by the court, appoint competent counsel at the earliest practicable time after receipt of the documents pursuant to Subsection C of this section.

E. The supreme court shall not appoint counsel under this section if the counsel represented the applicant at trial or on direct appeal, unless:

(1) the applicant and the counsel request the appointment on the record; or

(2) the court finds good cause to make the appointment.

F. If counsel is the same person appointed to represent the applicant on appeal, the supreme court shall appoint a second counsel to assist in the preparation of the writ of habeas corpus.

G. If the supreme court denies an applicant relief pursuant to Sections 1 through 10 of this act, counsel appointed under this section to represent the applicant shall, not later than the fifteenth day after the date the supreme court denies relief, move to be appointed as counsel in federal habeas review pursuant to 21 U.S.C. Section 848(q) or equivalent provision or, if necessary, move for the appointment of other counsel pursuant to 21 U.S.C. Section 848(q) or equivalent provision.

H. The supreme court shall reasonably compensate counsel appointed by the court under this section from state funds. The court shall appoint and reasonably compensate counsel for representation in a subsequent or untimely application for a writ of habeas corpus if the court determines that the requirements of Section 5 of this act allowing consideration of the application have been satisfied.

I. If an attorney is representing an inmate under a sentence of death for an initial application for a writ of habeas corpus pending on July 1, 1999, the attorney may request that the convicting court determine if the applicant is indigent and, if so, whether the applicant desires appointment of counsel for the purpose of the writ of habeas corpus.

Section 3. INVESTIGATION OF GROUNDS FOR APPLICATION.--

A. On appointment, counsel shall investigate, before and after the appellate record is filed in the supreme court, the factual and legal grounds for the filing of an application for a writ of habeas corpus.

B. Not later than the thirtieth day before the date the application for a writ of habeas corpus is filed with the convicting court, counsel may file with the supreme court an ex parte, verified and confidential request for prepayment of expenses, including expert fees, to investigate and present potential habeas corpus claims. The request for expenses must state:

(1) the claims of the application to be investigated;

(2) specific facts that suggest that a claim of possible merit may exist; and

(3) an itemized list of anticipated expenses for each claim.

C. The court shall grant a request for expenses in whole or in part if the request for expenses is timely and reasonable. If the court denies in whole or in part the request for expenses, the court shall briefly state the reasons for the denial in a written order provided to the applicant.

D. Counsel may incur expenses for habeas corpus investigation, including expenses for experts, without prior approval by the supreme court. On presentation of a claim for reimbursement, which may be presented ex parte, the court shall order reimbursement of counsel for expenses if the expenses are reasonably necessary and reasonably incurred. If the court denies in whole or in part the request for expenses, the court shall briefly state the reasons for the denial in a written order provided to the applicant. The applicant may request reconsideration of the denial for reimbursement.

E. Materials submitted to the court under this section are a part of the court's record.

Section 4. FILING OF APPLICATION.--

A. An application for a writ of habeas corpus, returnable to the supreme court, must be filed in the convicting court not later than the one hundred eightieth day after the date the supreme court appoints counsel under Section 2 of this act or not later than the forty-fifth day after the date the appellee's original brief is filed on direct appeal with the supreme court. If an applicant who was convicted before July 1, 1999 does not have an initial application for a writ of habeas corpus pending on July 1, 1999 and has not previously filed an application for a writ of habeas corpus, the applicant's initial application must be filed not later than the one hundred eightieth day after the date the supreme court appoints counsel under Section 2 of this act or not later than the forty-fifth day after the date the appellee's original brief is filed on direct appeal, whichever is later.

B. An application filed after the filing date that is applicable to the applicant under Subsection A of this section is presumed untimely unless the applicant establishes good cause by showing particularized justifying circumstances.

C. If counsel has been appointed and a timely application is not filed on or before the applicable filing date under Subsection A of this section, the convicting court shall, before the eleventh day after the applicable filing date under Subsection A of this section, conduct a hearing and determine if good cause exists for either the untimely filing of an application or other necessary action.

D. If the convicting court finds the applicant failed to establish good cause for the delay, the court shall:

(1) make appropriate findings of fact;

(2) enter an order to that effect;

(3) direct the clerk of the court to enter a notation that the petition is untimely; and

(4) send a copy of the petition, findings and notation to the supreme court as provided in Section 5 of this act.

E. If the convicting court finds that the applicant has established good cause for the delay, the convicting court shall proceed as if the application was timely filed.

F. Notwithstanding Subsection B, C or E of this section, an applicant cannot establish good cause for the untimely filing of an application filed after the ninety-first day after the applicable filing date pursuant to Subsection A of this section.

G. Failure to file an application before the ninety-first day after the filing date applicable to the applicant pursuant to Subsection A of this section constitutes a waiver of all grounds for relief that were available to the applicant before the last date on which an application could be timely filed, except as provided in Section 5 of this act.

H. If an amended or supplemental application is not filed within the time specified pursuant to Subsection A of this section, the supreme court shall treat the application as a subsequent or untimely application for a writ of habeas corpus pursuant to Section 5 of this act, unless the applicant:

(1) establishes good cause by showing particularized justifying circumstances for not raising in the initial application the facts or claims contained in the amended or supplemental application; and

(2) the amended or supplemental application is filed before the ninety-first day after the filing date applicable to the applicant in Subsection A of this section.

Section 5. SUBSEQUENT OR UNTIMELY APPLICATION.--

A. If an initial application for a writ of habeas corpus is untimely or if a subsequent application is filed after filing an initial application, a convicting court may not consider the merits of or grant relief based on the subsequent or untimely initial application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application because the factual or legal basis for the claim was unavailable:

(a) on the date the applicant filed the previous application; or

(b) if the applicant did not file an initial application, on or before the last date for the timely filing of an initial application;

(2) by a preponderance of the evidence, but for a violation of the United States constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the United States constitution no rational juror would have answered in the state's favor for one or more of the special issues that were submitted to the jury in the applicant's trial pursuant to Section 31-20A-5 NMSA 1978.

B. If the convicting court receives a subsequent application or an untimely initial application, the clerk of the court shall:

(1) attach a notation that the application is a subsequent or untimely initial application;

(2) assign to the case a file number that is ancillary to that of the conviction being challenged; and

(3) immediately send to the supreme court a copy of:

(a) the application;

(b) the notation;

(c) the order scheduling the applicant's execution, if scheduled; and

(d) any order the judge of the convicting court directs to be attached to the application.

C. On receipt of the copies of the documents from the clerk, the supreme court shall determine whether the requirements of Subsection A of this section have been satisfied. The convicting court may not take further action on the application before the supreme court issues an order finding that the requirements have been satisfied. If the supreme court determines that the requirements have not been satisfied, the court shall issue an order dismissing the application as an abuse of the writ pursuant to this section.

D. For purposes of Paragraph (1) of Subsection A of this section, a legal basis of a claim is unavailable on or before a date described in that paragraph if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States supreme court, a court of appeals of the United States or a court of appellate jurisdiction of this state on or before that date.

E. For purposes of Paragraph (1) of Subsection A of this section, a factual basis of a claim is unavailable on or before a date described by that paragraph if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.

Section 6. ISSUANCE OF WRIT.--

A. If a timely application for a writ of habeas corpus is filed in the convicting court, a writ of habeas corpus, returnable to the supreme court, shall be issued by operation of law.

B. If the convicting court receives notice that the requirements for consideration of a subsequent or untimely application have been met, as provided in Section 5 of this act, a writ of habeas corpus, returnable to the supreme court, shall be issued by operation of law.

C. The clerk of the convicting court shall:

(1) make an appropriate notation that a writ of habeas corpus was issued;

(2) assign to the case a file number that is ancillary to that of the conviction being challenged; and

(3) send a copy of the application by certified mail, return receipt requested, to the attorney representing the state in the convicting court.

D. The clerk of the convicting court shall promptly deliver copies of documents submitted to the clerk pursuant to Sections 1 through 10 of this act to the applicant and the attorney representing the state.

Section 7. ANSWER TO APPLICATION.--

A. The state shall file an answer to the application for a writ of habeas corpus not later than the thirtieth day after the date the state receives notice of issuance of the writ. The state shall serve the answer on counsel for the applicant or, if the applicant is proceeding pro se, on the applicant. The state may request from the convicting court an extension of time in which to answer the application by showing particularized justifying circumstances for the extension.

B. Matters alleged in the application not admitted by the state are deemed denied.

Section 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING.--

A. Not later than the twentieth day after the last date the state answers the application, the convicting court shall determine whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist and shall issue a written order of the determination.

B. If the convicting court determines the issues do not exist, the parties shall file proposed findings of fact and conclusions of law for the courts to consider on or before a date set by the court that is not later than the thirtieth day after the date the order is issued.

C. After argument of counsel, if requested by the court, the convicting court shall make appropriate written findings of fact and conclusions of law not later than the fifteenth day after the date the parties filed proposed findings or not later than the forty-fifth day after the date the court's determination is made under Subsection A of this section, whichever occurs first.

D. The clerk of the court shall immediately send to:

(1) the supreme court a copy of the:

(a) application;

(b) answer;

(c) orders entered by the convicting court;

(d) proposed findings of fact and conclusions of law; and

(e) findings of fact and conclusions of law entered by the court; and

(2) counsel for the applicant or, if the applicant is proceeding pro se, to the applicant, a copy of:

(a) orders entered by the convicting court;

(b) proposed findings of fact and conclusions of law; and

(c) findings of fact and conclusions of law entered by the court.

Section 9. HEARING--RULES OF EVIDENCE.--

A. If the convicting court determines that controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, the court shall enter an order, not later than the twentieth day after the last date the state answers the application, designating the issues of fact to be resolved and the manner in which the issues shall be resolved. To resolve the issues, the court may require affidavits, depositions, interrogatories and evidentiary hearings and may use personal recollection.

B. The convicting court shall allow the applicant and the state not less than ten days to prepare for an evidentiary hearing. The parties may waive the preparation time. If the state or the applicant requests that an evidentiary hearing be held within thirty days after the date the court ordered the hearing, the hearing shall be held within that period unless the court states, on the record, good cause for delay.

C. The presiding judge of the convicting court shall conduct a hearing held under this section unless another judge presided over the original capital felony trial and is qualified for assignment, in which event that judge may preside over the hearing.

D. The court reporter shall prepare a transcript of the hearing not later than the thirtieth day after the date the hearing ends and file the transcript with the clerk of the convicting court.

E. The parties shall file proposed findings of fact and conclusions of law for the convicting court to consider on or before a date set by the court that is not later than the thirtieth day after the date the transcript is filed. If the court requests argument of counsel, after argument the court shall make written findings of fact that are necessary to resolve the previously unresolved facts and make conclusions of law not later than the fifteenth day after the date the parties file proposed findings or not later than the forty-fifth day after the date the court reporter files the transcript, whichever occurs first.

F. The clerk of the convicting court shall immediately transmit to:

(1) the supreme court a copy of:

(a) the application;

(b) the answers and motions filed;

(c) the court reporter's transcript;

(d) the documentary exhibits introduced into evidence;

(e) the proposed findings of fact and conclusions of law;

(f) the findings of fact and conclusions of law entered by the court;

(g) the sealed materials, such as a confidential request for investigative expenses; and

(h) other matters used by the convicting court in resolving issues of fact; and

(2) counsel for the applicant or, if the applicant is proceeding pro se, to the applicant, a copy of:

(a) orders entered by the convicting court;

(b) proposed findings of fact and conclusions of law; and

(c) findings of fact and conclusions of law entered by the court.

G. The clerk of the convicting court shall forward an exhibit that is not documentary to the supreme court on request of the court.

H. The Rules of Evidence apply to a hearing held pursuant to Sections 1 through 10 of this act.

Section 10. REVIEW BY SUPREME COURT.--The supreme court shall review all applications for a writ of habeas corpus submitted pursuant to Sections 1 through 10 of this act. The court may set the cause for oral argument and may request further briefing of the issues by the applicant or the state. After reviewing the record, the court shall enter its judgment remanding the applicant to custody or ordering the applicant's release, as the law and facts may justify.