2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 11 - Appeals and Post-Conviction Remedies › Section 31-11-6 - Post-conviction remedy.

A prisoner in custody under sentence of a court established by the laws of New Mexico claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution of the United States, or of the constitution or laws of New Mexico, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A. A motion for such relief may be made at any time.
B. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the district attorney of the judicial district in which such motion is pending, appoint local counsel if the prisoner is indigent, grant a prompt hearing therein, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law, or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him, or grant a new trial, or correct the sentence, as may appear appropriate.
C. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
D. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
E. An appeal may be taken from the order entered on the motion as from a final judgment in the manner and within the time provided in Section 21-2-1(5) New Mexico Statutes Annotated, 1953 Compilation.
F. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained if it appears that the applicant has failed to apply for relief by motion to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention, or that a habeas corpus proceeding is pending at the effective date of this section.
G. This section shall not apply to municipal or justice of the peace courts [magistrate courts].
History:
1953 Comp., § 41-15-8, enacted by Laws 1966, ch. 29, § 1.
ANNOTATIONS
Compiler's notes.
— Section 21-2-1(5), 1953 Comp., referred to in Subsection E, was Rule 5 of the "Supreme Court Rules." The "Supreme Court Rules" were superseded by rules adopted by the supreme court in 1973, 1974 and 1975. For present, similar provisions,
see
Rule 12-201 NMRA. Rule 1-093 NMRA was superseded by Rule 5-802 NMRA as to all motions for post-conviction relief filed on or after September 1, 1975.
The office of justice of the peace has been abolished, and the jurisdiction, powers and duties have been transferred to the magistrate court.
See
35-1-38 NMSA 1978.
Habeas corpus.
— An inmate may not resort to this section when the relief sought can be obtained directly by writ of habeas corpus and a habeas corpus petitioner is not required to first seek relief by a post-conviction remedy motion before seeking a writ of habeas corpus.
Cummings v. State
, 2007-NMSC-048, 142 N.M. 656, 168 P.3d 1080.
Preemption by Rule 5-802 NMRA.
— This section has been preempted by Rule 5-802 NMRA, which governs the procedure for filing a writ of habeas corpus.
State v. Peppers
, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614, cert. denied, 110 N.M. 260, 794 P.2d 734.
Conflicts controlled by Rule 5-802 NMRA.
— This section does not provide a post-conviction remedy to the extent that it conflicts with N.M.R. Crim. P. 57 (now Rule 5-802 NMRA).
State v. Garcia
, 1984-NMCA-009, 101 N.M. 232, 680 P.2d 613, cert. quashed, 101 N.M. 189, 679 P.2d 1287.
Generally.
— In a post-conviction proceeding, the issue is not the guilt or innocence of the prisoner; the issue is the validity of the conviction.
State v. Ramirez
, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262 (decided prior to adoption of Rule 5-802 NMRA).
Sixth amendment right to counsel inapplicable.
— Right to counsel provided by the U.S. Const., amend. VI does not apply to post-conviction relief proceedings.
State v. Ramirez
, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262 (decided prior to adoption of Rule 5-802 NMRA).
Absent constitutional requirement, appointment of counsel within court's discretion.
State v. Ramirez
, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262 (decided prior to adoption of Rule 5-802 NMRA).
Proceeding independent civil action before criminal procedure rules enacted.
— Prior to enactment of criminal procedural rules, a Rule 1-093 NMRA or proceeding under this section was an independent civil action, and, therefore, Rule 1-052 NMRA, requiring the making of findings of fact, applied to such proceedings.
State v. Hardy
, 1967-NMSC-203, 78 N.M. 374, 431 P.2d 752 (decided prior to adoption of Rule 5-802 NMRA).
Definition of "conclusive".
— The term "conclusive" means "beyond question," "beyond dispute," or "so irrefutable as to end all uncertainty or question."
State v. Sanchez
, 1966-NMCA-002, 78 N.M. 25, 420 P.2d 786 (decided prior to adoption of Rule 5-802 NMRA).
Claims for relief must be specific.
— Where defendant does not in any way specify or particularize claimed vital points, claimed errors or claimed discrepancies, a mere allegation of incompetence of attorney or inefficiency is not ground for relief.
State v. Crouch
, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19 (decided prior to adoption of Rule 5-802 NMRA).
Defendant must allege some factual basis for relief sought.
— Vague conclusional charges do not raise an issue which demands an inquiry.
State v. Sexton
, 1968-NMCA-003, 78 N.M. 694, 437 P.2d 155;
State v. Williams
, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396 (decided prior to adoption of Rule 5-802 NMRA).
Denial or absence of counsel is issue raisable on collateral attack.
State v. Hardy
, 1967-NMSC-203, 78 N.M. 374, 431 P.2d 752 (decided prior to adoption of Rule 5 802 NMRA).
Motion to vacate sentence.
— Motion to vacate sentence which raised no new grounds for relief not raised in previous habeas corpus proceeding was properly found to be repetitious, even though transcript of habeas corpus proceeding was never admitted into evidence.
Lott v. State
, 1967-NMSC-073, 77 N.M. 612, 426 P.2d 588 (decided prior to adoption of Rule 5-802 NMRA).
What motion to vacate includes.
— A petitioner is not entitled upon a motion to vacate a sentence to have his case retried on the facts, and only rarely may he raise questions of law which could have been raised by appeal.
State v. Selgado
, 1967-NMSC-147, 78 N.M. 165, 429 P.2d 363 (decided prior to adoption of Rule 5-802 NMRA).
No basis for relief where claim of entrapment.
— A claim of entrapment does not state a basis for post-conviction relief.
State v. Simien
, 1968-NMSC-025, 78 N.M. 709, 437 P.2d 708;
State v. Apodaca
, 1967-NMSC-218, 78 N.M. 412, 432 P.2d 256 (decided prior to adoption of Rule 5-802 NMRA).
Or where mere allegation of perjury.
— A mere allegation of perjury does not entitle defendant to post-conviction relief. A charge of perjury, which neither names or identifies the witnesses who committed the perjury nor specifies the claimed false statements, is not sufficient basis for relief.
State v. Crouch
, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19 (decided prior to adoption of Rule 5-802 NMRA).
Or conclusion that due process denied.
— A mere conclusion that due process was denied is not sufficient basis for relief.
State v. Crouch
, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19 (decided prior to adoption of Rule 5-802 NMRA).
Or credibility of witness.
— Credibility of a witness does not provide a ground for post-conviction relief.
State v. Williams
, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396 (decided prior to adoption of Rule 5-802 NMRA).
Or general claim that attorney was pro forma
rather than zealous and active does not provide a basis for post-conviction relief.
State v. Apodaca
, 1967-NMSC-218, 78 N.M. 412, 432 P.2d 256 (decided prior to adoption of Rule 5-802 NMRA).
Or where dissatisfaction with results obtained
through the efforts of attorney does not provide a basis for post-conviction relief.
State v. Apodaca
, 1967-NMSC-218, 78 N.M. 412, 432 P.2d 256 (decided prior to adoption of Rule 5-802 NMRA).
Representation at preliminary hearing affords no basis for relief.
— Claim that defendant was entitled to counsel when he appeared before the magistrate states no basis for post-conviction relief where defendant was represented by counsel at preliminary hearing.
State v. Apodaca
, 1967-NMSC-218, 78 N.M. 412, 432 P.2d 256 (decided prior to adoption of Rule 5-802 NMRA).
Or where record shows adequate representation.
— Claim that defendant is unlearned, has little education and "did not fully understand everything that made up his trial" does not set forth a basis for relief, where the record on the trial and the direct appeal shows that his attorneys protected his rights.
State v. Williams
, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396 (decided prior to adoption of Rule 5-802 NMRA).
Or that counsel fails to advise defendant of potential appeal.
— Where defendant's motion does not assert that any official in New Mexico's system of justice rejected a request for counsel or failed to take steps toward appointment of counsel after having knowledge of defendant's indigency and desire for counsel on appeal, nor does the motion assert that defendant made any request to be furnished appellate counsel, the claim that counsel did not advise defendant that he could appeal as an indigent does not set forth a basis for post-conviction relief.
State v. Raines
, 1967-NMCA-026, 78 N.M. 579, 434 P.2d 698 (decided prior to adoption of Rule 5-802 NMRA).
Or complaint with attorney's trial tactics.
— The petitioner is not entitled to post-conviction relief on the grounds that the result might have been different if different trial tactics and strategy had been employed as where the petitioner discussed a change of venue with his attorney because of certain publicity, and that after consideration, his counsel decided against seeking the change. He cannot now complain of that decision.
State v. Selgado
, 1967-NMSC-147, 78 N.M. 165, 429 P.2d 363 (decided prior to adoption of Rule 5-802 NMRA).
Claims concerning procedure afford no basis for relief.
— Where, at the time defendant's suspended sentence was revoked, the statutory procedure was not followed, but the record shows that counsel was present with defendant at the time of the revocation, that neither the defendant nor his counsel had any objections to the procedure that was in fact followed and defendant, in response to the court's question, stated that he did not desire further hearing on the motion to revoke the suspended sentence, this is a claim concerning the conduct of the proceeding and how it was managed and it does not set forth a basis for relief.
State v. Raines
, 1967-NMCA-026, 78 N.M. 579, 434 P.2d 698 (decided prior to adoption of Rule 5-802 NMRA).
No grounds for relief where factual questions already resolved.
— Whether defendant was properly tried for first-degree murder rather than voluntary manslaughter are factual questions which the jury resolved by its verdict and present no grounds for relief.
State v. Williams
, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396 (decided prior to adoption of Rule 5-802 NMRA).
Time for appointing counsel.
— Once, however, the prisoner alleges some factual basis raising a substantial issue, counsel must be appointed.
State v. Ramirez
, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262 (decided prior to adoption of Rule 5-802 NMRA).
No counsel appointed when motion groundless.
— Where a motion has been filed in a post-conviction proceeding, but is completely groundless, counsel need not be appointed to represent the defendant.
State v. Ramirez
, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262 (decided prior to adoption of Rule 5-802 NMRA).
Or when prisoner explores possibility of motion.
— Where the conviction has been affirmed on direct review, the trial court is not required to appoint counsel to assist the prisoner in exploring the possibilities for post-conviction relief.
State v. Ramirez
, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262 (decided prior to adoption of Rule 5-802 NMRA).
Not enough to show indigency hampered employment of counsel.
— For a petitioner to be entitled to post-conviction relief, it is not enough to show that indigency occasioned the petitioner's inability to employ counsel or to appeal; the petitioner must show that the state deprived him of his fourteenth amendment rights. State action is shown when a responsible official in the state's system of justice rejects a request for counsel or fails to take proper steps toward appointment of counsel for a convicted defendant when he has knowledge of the defendant's indigency and desire for appellate counsel.
State v. Raines
, 1967-NMCA-026, 78 N.M. 579, 434 P.2d 698 (decided prior to adoption of Rule 5-802 NMRA).
Where motion groundless, court under no duty to appoint counsel.
— Where the motion for post-conviction relief is completely groundless, the trial court need not appoint counsel to represent defendant in connection with the motion and may determine the motion without the presence of defendant.
State v. Sanchez
, 1966-NMCA-002, 78 N.M. 25, 420 P.2d 786 (decided prior to adoption of Rule 5-802 NMRA).
Waiver of prior defects bars post-conviction relief.
— Absent a showing of prejudice, the plea at arraignment waived prior defects in the proceedings. Here, while prejudice is claimed, it is not shown. Thus, defendant fails to set forth a basis for post-conviction relief.
State v. Robinson
, 1967-NMSC-220, 78 N.M. 420, 432 P.2d 264 (decided prior to adoption of Rule 5-802 NMRA).
Illegal arrest not ground for attacking judgment.
— Claim of illegal arrest, in itself, is not a proper ground for attacking a judgment under post-conviction remedy.
State v. Gibby
, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258 (decided prior to adoption of Rule 5-802 NMRA).
Successive motions.
— It is within the discretion of the trial court either to grant or deny successive motions.
Lott v. State
, 1967-NMSC-073, 77 N.M. 612, 426 P.2d 588 (decided prior to adoption of Rule 5 802 NMRA).
Subsequent application.
— If doubts arise in particular cases as to whether the grounds in a subsequent application are different, they should be resolved in favor of the applicant.
State v. Canales
, 1967-NMSC-221, 78 N.M. 429, 432 P.2d 394 (decided prior to adoption of Rule 5-802 NMRA).
Burden on applicant to show need for redetermination.
— The burden is on the applicant to show that, although the ground of the new application was determined against him on the merits of a prior application, the ends of justice would be served by a redetermination of the ground.
State v. Canales
, 1967-NMSC-221, 78 N.M. 429, 432 P.2d 394 (decided prior to adoption of Rule 5-802 NMRA).
No redetermination of trial issues.
— Where the extent of defendant's drinking was an issue at the trial, it is not to be redetermined in a post-conviction proceeding.
State v. Williams
, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396 (decided prior to adoption of Rule 5-802 NMRA).
Refusal of application.
— A second or successive application may be refused only if the prior denial rested on an adjudication of the merits of the ground presented in the subsequent application. This means that an evidentiary hearing must have been held in the prior application if factual issues were raised and it was not denied on the basis that the files and records conclusively resolved those issues.
State v. Canales
, 1967-NMSC-221, 78 N.M. 429, 432 P.2d 394 (decided prior to adoption of Rule 5-802 NMRA).
Remedy not intended as substitute for appeal.
— Post-conviction proceedings are not intended for, or to be utilized as a substitute for appeal as a means of correcting errors occurring during the course of a trial, or to get reconsideration of matters considered on appeal.
State v. Williams
, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396 (decided prior to adoption of Rule 5-802 NMRA).
Filing of notice of appeal jurisdictional.
— The timely filing of a notice of appeal is jurisdictional and if it has not been complied with, in the absence of excusable neglect, the court is bound to act on its own motion and dismiss the appeal for lack of jurisdiction, even though the parties do not raise the question of jurisdiction.
State v. Weddle
, 1967-NMSC-027, 77 N.M. 417, 423 P.2d 609 (decided prior to adoption of Rule 5-802 NMRA).
Issues decided on appeal not relitigated.
— Issue concerning prior convictions and the state's use of an "F.B.I. rap sheet" was raised and decided on defendant's appeal and may not be relitigated in post-conviction proceedings.
State v. Williams
, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396 (decided prior to adoption of Rule 5-802 NMRA).
Attack on district court's conclusion of law must fail.
— Where there is conflict in appellant's attack on the district court's conclusion of law, that appellant knowingly, intelligently and voluntarily, while being advised by competent counsel, entered a plea of guilty, must fail.
State v. Simien
, 1968-NMSC-025, 78 N.M. 709, 437 P.2d 708 (decided prior to adoption of Rule 5-802 NMRA).
Law reviews.
— For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).
For article, "Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico," see 36 N.M.L. Rev. 215 (2006).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
18 Am. Jur. 2d Coram Nobis and Allied Statutory Remedies §§ 4, 5, 7, 17, 21, 44 to 48, 52 to 54, 56, 57, 59, 60.
Power of successor judge taking office during term-time to vacate, etc., judgment entered by his predecessor, 11 A.L.R.2d 1117.
Motion to vacate judgment on order as constituting general appearance, 31 A.L.R.2d 262.
Incompetency of counsel chosen by accused as affecting validity of conviction, 74 A.L.R.2d 1390, 34 A.L.R.3d 470, 2 A.L.R.4th 27, 2 A.L.R.4th 807, 13 A.L.R.4th 533, 15 A.L.R.4th 582, 18 A.L.R.4th 360, 26 A.L.R. Fed. 218, 53 A.L.R. Fed. 140.
Post-conviction procedure for raising contention that enforcement of penal statute or law is unconstitutionally discriminatory, 4 A.L.R.3d 404.
When criminal case becomes moot so as to preclude review of or attack on conviction or sentence, 9 A.L.R.3d 462.
Right to a jury trial on motion to vacate judgment, 75 A.L.R.3d 894.
Coram nobis on ground of other's confession to crime, 46 A.L.R.4th 468.
Power of successor judge taking office during term time to vacate, set aside, or annul judgment entered by his or her predecessor, 51 A.L.R.5th 747.
24 C.J.S. Criminal Law §§ 1610 to 1618, 1620 to 1629, 1633 to 1637, 1742.