§ 4.29 Preclusion of Remedy - Rule 32.2.

• Jurisdiction: Arizona

§ 4.29 Preclusion of Remedy - Rule 32.2. A term of art in PCR proceedings is “preclusion.” See Rule 32.2(a). A defendant is barred from raising a particular claim when preclusion applies. This occurs when:

1. An issue may be raised on direct appeal or by post-trial motion under Rule 24;

2. An issue was finally adjudicated on the merits on appeal or in any previous collateral proceeding; or,

3. An issue has been waived at trial, on appeal, or in any previous collateral (PCR) proceeding.

The rule of preclusion actually only applies to the first three grounds for relief under Rule 32.1, because Rule 32.2(b) specifically exempts the remaining claims from preclusion. See also Rule 32.4(a) (“Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).”).

Thus, preclusion applies to claims based on an allegation that (a) the conviction or sentence was in violation of the U.S. Constitution or the Arizona Constitution; (b) the court lacked jurisdiction to enter judgment or impose sentence; and (c) the sentence imposed exceeded or was not in accordance with the law. Rule 32.1. For example, if a petitioner asserts ineffective assistance of counsel at sentencing in a first PCR petition, and, in a subsequent PCR petition, asserts ineffective assistance of counsel at...