N.M. R. Crim. P. Dist. Ct. 5-802
N.M. R. Crim. P. Dist. Ct. 5-802
Committee commentary for 2017 amendments. - Rule 5-802 NMRA was amended in 2017 to streamline the administrative processing of petitions for a writ of habeas corpus in the district courts.
The amendments eliminate the thirty (30)-day review and acceptance period under Paragraph F and instead require that all petitions for a writ of habeas corpus be filed immediately upon receipt by the district court. Paragraph F establishes two important dates, the "file-stamp" date and the "deemed filed" date. The "deemed filed" date incorporates the prison mailbox rule allowing a petition for a writ of habeas corpus to be deemed filed the date it is deposited in the institution's internal mail system. See Rule 5-103(I) NMRA (Filing and service by an inmate). The deemed filed date will mainly affect the one (1)-year time limitation to file a petition for a writ of habeas corpus in federal court following a state court conviction. See Committee commentary for 2009 amendments. However, the deemed filed date may also affect the one (1)-year time limitation for filing a petition challenging a disciplinary decision of the New Mexico Corrections Department under Paragraph C. The "file-stamp" date is the date the district court actually receives the petition. All the deadlines in Rule 5-802 run from the "file-stamp" date.
Paragraph G provides guidance to the district court as to how classify and assign petitions challenging the underlying conviction versus petitions challenging the conditions of confinement. Petitioners who wish to raise both types of claims must file two separate petitions and submit each petition in the venue required by Paragraph E. See Form 9-701 NMRA.
While the district court may deny a petition for a writ of habeas corpus on appropriate grounds during the pre-appointment review period under Subparagraph (H)(1), the committee recommends that district courts consider the information provided in the pre-appointment review before denying a petition for a writ of habeas corpus.
Under Subparagraph (H)(2), within one-hundred twenty (120) days of the "file stamp date," the district court must either return the petition to petitioner for further information, summarily dismiss the petition, or appoint counsel. If the district court fails to take one of the foregoing actions within that designated time period, the petitioner may request a hearing.
Committee commentary for 2014 amendments. - Rule 5-802 NMRA was amended in 2014 following an extensive review by the Court and its Ad-hoc Habeas Corpus Review Committee. Rule 5-802 is designed to address petitions filed after the entry of a final judgment and all direct appeals, however styled, in a criminal case. For example, motions to vacate a sentence and motions to withdraw a plea after the entry of a final judgment and all direct appeals should be treated as habeas petitions to be adjudicated under Rule 5-802 as opposed to motions to modify or reduce a sentence filed under Rule 5-801.
Paragraph B(5) is amended to clarify that it applies to successive petitions for habeas relief. District courts should ordinarily dismiss petitions that do not comply with the provisions of Paragraph B(5).
Paragraph E(1) is amended to ensure that a habeas petition is assigned to the judge that originally heard the matter. This is the current practice in most district courts and reflects a policy that the judge that originally heard the matter is in a better position to rule on a petition for habeas corpus because that judge is familiar with the petitioner's case. Therefore, even if the judge that originally heard the case has transferred to a different division within the same court, the case should still be assigned to that judge. Should that judge no longer be serving on the bench, the criminal, as opposed to civil division of the court, should handle the matter. The criminal division is more familiar with the types of claims likely to be raised in a petition for a writ of habeas corpus.
The Committee added a new Paragraph F and substantially amended former Paragraph E (now Paragraph G). Paragraphs F and G are designed to help the district court screen out frivolous petitions while making sure meritorious petitions are properly addressed. First, Paragraph F gives the district courts more flexibility in processing petitions for habeas corpus. Oftentimes, habeas petitions are difficult to recognize when received by the district court. Paragraph F gives the district court time to determine what the petition is, whether it should be accepted as a habeas petition, and how it should be filed without prejudicing the rights of the petitioner. Paragraph F also ensures that the proper parties i.e. the district attorney, attorney general and the public defender are given notice of a filing of a petition for a writ of habeas corpus. By receiving notice, these parties will be able to keep track of the petitions and will be ready to respond if called upon by the district court.
Second, Paragraph G(1) gives the Public Defender Department the opportunity to file a statement regarding the filed petition for habeas corpus before counsel is appointed and/or a final order is rendered by the district court. Under the Indigent Defense Act, a person has the limited right to appointed counsel representation in post-conviction matters "unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense." NMSA 1978, § 31-16-3(B)(3) (1968). Therefore, the Public Defender may not be able to represent a petitioner in all cases. In addition, allowing the Public Defender an opportunity to file a statement regarding the petition may also help the district court screen out potentially frivolous claims.
Third, Paragraph G(1) imposes a deadline on the district court to either summarily dismiss the petition, return the petition to petitioner for further information, or appoint counsel. By allowing the court to return a petition to petitioner for further development, the court may be able to clarify issues that are vague or ambiguous. Once the district court returns a petition to a petitioner for further development, the burden is on petitioner to file a revised petition. When a petitioner fails to file an amended petition when directed by the court under Paragraph G(1), the judge shall ordinarily dismiss the petition except in rare cases.
Paragraph G(2) makes clear that a district court may dismiss some of all of the claims in a petition much like a court in a civil matter could enter summary judgment on some claims while allowing other claims to proceed to trial. Under Paragraph F(2), a response must be filed by the state to any claims that are not dismissed.
Paragraph G(3) adds in one final opportunity for the district court to clarify issues. The court may hold a "preliminary disposition hearing" or status conference at which it will clarify the issues and attempt to resolve the issues based upon the written filings of the parties. If the court is unable to resolve the issues based upon the written filings an evidentiary hearing under Paragraph G(4) may be necessary.
Paragraph H gives the district court guidance as to the handling of successive petitions for habeas relief. The standard is higher for a petitioner raising a claim rejected in a previous habeas petition than a claim rejected on direct appeal. Standard notions of claim and issue preclusion generally do not apply in habeas cases. Campos v. Bravo, 2007-NMSC-021, ¶ 5, 141 N.M. 801, 161 P.3d 846. Courts have some discretionary capacity to dismiss habeas claims when a prior petition has been filed. According to Duncan v. Kerby, 1993-NMSC-011, 115 N.M. 344, 851 P.2d 466:
The successive-writ petitioner has already enjoyed the opportunity to fully explore his constitutional claims in the postconviction setting, whereas the petitioner who makes his initial claim on direct appeal has not, and consequently, the successive writ petitioner is in a weaker position to argue that equity confers yet another postconviction opportunity to make his claim.
Id. ¶ 5. In exercising its discretion, the court should consider whether the prior petition was pro se or the petitioner was represented by counsel. Petitioners proceeding pro se will often not have developed their claims as fully as petitioners represented by counsel.
In Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806, the New Mexico Supreme Court ruled that the state could not depose a habeas petitioner due to Rule 5-503 's prohibition on the compelled statements of defendants. Although the opinion did not address the totality of discovery in the habeas context, it marked the starting point for the Committee's addition of Paragraph I on discovery. As habeas cases become more complex it is important to have rules in place for when discovery is needed or requested.
Paragraph I operates from the perspective that discovery in the habeas context should only occur when necessary and with supervisory control from the district court. Consistent with Allen, petitioners represented by counsel and the state may request discovery pursuant to Rules 5-501 and 5-502 NMRA. See id. ¶ 15 ("The placement of habeas corpus regulation within our Rules of Criminal Procedure demonstrated this Court's recognition that postconviction motions challenging a conviction or sentence in a criminal case are in reality part of a criminal proceeding."). However, other discovery devices under the Rules of Criminal Procedure must be approved by the court. Discovery is limited to the items listed in Paragraph I(2). Among the reasons for requiring pro-se petitioners to get court approval before requesting discovery are to discourage abuse and protect victims of crime. Therefore, the court should proceed cautiously on any discovery request of a victim.
Committee commentary for 2009 amendments. - The 2009 amendments to this rule make five changes to the procedures governing petitions for writs of habeas corpus. First, Paragraph B is amended to provide that a petition filed by an unrepresented inmate is deemed to be filed on the date that the petition is deposited in the institution's internal mail system. The amendment further provides that the inmate must state in the petition, under penalty of perjury, the date on which the petition was deposited for mailing. A corresponding amendment to Form 9-701 NMRA includes this statement.
The purpose of the amendment to Paragraph B is to eliminate uncertainty regarding the date when the petition is filed in the district court. Although there is no time limit for filing a state petition for a writ of habeas corpus, the date of filing can have an impact on the deadline for filing a petition for a writ of habeas corpus in federal court. Currently, defendants convicted in state court have one (1) year to file a petition for a writ of habeas corpus in federal court, and the one (1) year period begins to run from the date of the final judgment on a guilty plea, or one (1) year from a final decision of the highest state court ruling on a direct appeal after trial. However, under federal law, the filing of a state habeas petition tolls the one (1) year limitations period for filing a habeas petition in federal court.
While a state petition can toll the federal limitations period, disputes often arise concerning when the state petition was actually filed in state court. In some instances, unforeseen mailing delays beyond the control of the inmate prevent the receipt of a state habeas petition to toll the one (1) year federal limitations period before it expires. Moreover, the practices among the various state judicial districts for processing state habeas petitions can vary greatly and, as a result, impact the application of the federal tolling provision. For example, some districts apparently refer habeas petitions to a district court judge for fairly swift review before actually filing, with filing by the clerk soon thereafter. In other districts, however, clerks sometimes hold petitions for sixty (60) days or more before they are reviewed by a judge and officially filed with the court. But in virtually none of these districts are the petitions actually file-stamped on the date of receipt by the clerk.
The uncertainties inherent in mailing documents from prison, and the existing inconsistent filing procedures in the district courts, have the potential to drastically affect an inmate's right to toll the federal limitations period while state post-conviction remedies are exhausted. See Adams v. LeMaster, 223 F.3d 1177 (10th Cir. 2000) (holding that New Mexico inmate's federal habeas petition was not timely filed because the one (1) year limitation period expired before state petition was file-stamped by state district court clerk). The amendments to Paragraph B are intended to eliminate confusion and avoid the unfair application of federal tolling provisions that may result from inconsistent filing practices in state district courts or unforeseen mailing delays beyond the control of an incarcerated petitioner.
Because there are no filing deadlines for filing state habeas petitions by unrepresented inmates in New Mexico, the changes to Paragraph B will not affect the substantive or procedural rights of the parties to a state post-conviction proceeding. State district courts, however, may want to revise their procedures so that the date file-stamped on a petition filed under this rule reflects the date of mailing set forth in the petition. If the State has reason to believe that the mailing date set forth in the petition is not accurate, the State may file a motion with the district court asking for a correction to the filing date.
The amendments to Paragraph C are intended to eliminate the inordinate amount of paperwork necessary to prepare and process requests for free process in post-conviction proceedings, which seems particularly unnecessary given the undeniable right of access to the courts by persons, indigent or not, who seek to correct an unlawful confinement. Moreover, the processing of this paperwork appears to lead to many of the delays in the actual filing of habeas petitions discussed above. The amendment to Paragraph C therefore seeks to eliminate these problems by allowing an incarcerated petitioner to file a petition without payment of a filing fee.
The amendments to Paragraph D are intended to clarify the place of filing for habeas petitions. The first change to Subparagraph (1) of Paragraph D provides that petitions challenging the Department of Correction's interpretation of a sentence should be filed with the court that imposed the sentence. As Rule 5-802.D(1) is currently written, the Department's interpretation and application of a sentence fall within "matters other than [those set forth in] Subparagraph (1)," thereby requiring the petition to be filed in the judicial district where the petitioner is confined or restrained. The rationale for the proposed amendment is that, much like petitions that seek to correct a sentence, the court that sentenced the inmate is better qualified to interpret its own sentence than a court of the judicial district in which the institution is located. The second change to Subparagraph (1) of Paragraph D also clarifies that the petition should be filed with the court that adjudicated the petitioner's confinement rather than focusing on the county where the offense was committed.
The amendments to Subparagraph (2) of Paragraph E expands the filing deadlines for amended petitions and responses ordered by the district court. Currently, if counsel is appointed to represent a petitioner, the attorney has thirty (30) days to file an amended petition. In situations where counsel is appointed, the issues involved and the need for further investigation by counsel often make the 30-day filing deadline for an amended petition unrealistic. As a result, motions to extend the filing deadline are routinely made and granted. The amendment to the filing deadline seeks to recognize this reality and eliminate unnecessary motion practice by expanding the filing deadline to ninety (90) days. As a matter of fairness and consistency, the amendments also increase the filing deadline to ninety (90) days in those instances when the State is ordered to file a response to the amended petition.
Finally, the amendment to Paragraph H eliminates the deemed denied provision that previously governed the Supreme Court's review of the denial of habeas corpus petitions under Rule 12-501 NMRA. With this amendment, an express order by the Supreme Court is required to deny a petition for review filed under Rule 12-501 regardless of the length of time the petition for review is pending in the Supreme Court. The amendment is intended to conform to similar amendments to Rules 5-614, 5-801, and 5-121 NMRA eliminating the application of other deemed denied provisions during other stages of a criminal proceeding.
[Adopted, effective December 1, 1998; as amended by Supreme Court Order No. 09-8300-006, effective May 6, 2009; as amended by Supreme Court Order No. 14-8300-014, effective for all cases filed on or after December 31, 2014; as amended by Supreme Court Order No. 17-8300-025, effective for all cases pending or filed on or after December 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-025, effective December 31, 2017, eliminated the thirty (30)-day review and acceptance period and instead required that all petitions for a writ of habeas corpus be filed immediately upon receipt by the clerk of the district court, required the clerk of the district court to make a notation on the petition with a "deemed filed" date if the petition is filed by a petitioner who is not represented by an attorney and who is confined to an institution, provided guidance to the district court as to how to classify and assign petitions based on whether the petition challenges the underlying conviction or challenges the conditions of confinement, required the clerk of the district court to serve a file-stamped copy to the appropriate counsel, required the district court, within one-hundred twenty (120) days of the date of receipt of the petition, to examine the petition and to either return the petition to petitioner for further information, summarily dismiss the petition, or appoint counsel for the petitioner, set a procedure to ensure that incarcerated petitioners are transported for hearings, and revised the Committee commentary; in Paragraph A, after the semicolon, added "or"; in Paragraph B, in the introductory clause, after "The petition", added "may be submitted using Form 9-701 NMRA and", and after "following", added "required information", added new Subparagraph B(1) and redesignated former Subparagraphs B(1) through B(5) as Subparagraphs B(2) through B(6), respectively, in Subparagraphs B(3), B(4), B(5), and B(6), added "brief" prior to "statement", in Subparagraph B(6), after "Paragraph H", added "of this rule", and deleted former Subparagraph B(6), which required a statement regarding the purpose of the petition; in Paragraph C, in Subparagraph C(1)(a), replaced "corrections department" with "NMCD" throughout the subparagraph, and after the semicolon, deleted "and", in Subparagraph C(1)(c), added "of this rule in writing" prior to each occurrence of "at the time of its decision", and after "time limitations of", deleted "Paragraph C(1)(b)" and added "Subparagraph C(1)(b) of this rule", in Subparagraph C(2), replaced "his" with "the inmate's", deleted the subparagraph designation "a", and replaced "corrections department" with "NMCD" throughout the subparagraph; in Paragraph D, in Subparagraph D(1), after the semicolon, added "and", in Subparagraph D(2), after "filing the petition", deleted "need not file a motion for permission to proceed in forma pauperis and", after "applicable filing fee", deleted "; and" and added "or a motion for permission to proceed in forma pauperis", and deleted former Subparagraph D(3), which required that a certificate of service be attached to the petition; in Paragraph E, in Subparagraph E(1), replaced "Department of Corrections'" with "NMCD's", and after "contested confinement", deleted ". The petition shall be assigned to the judge that originally heard the matter, or if that judge is no longer serving on the bench, the successor criminal division", and in Subparagraph E(2), after "Subparagraph", added "(E)", and after "of this", deleted "paragraph" and added "rule"; in Paragraph F, after the first sentence, deleted "The clerk of the court shall immediately stamp 'received for review' on the prospective petition upon receipt and shall also forward a copy of the petition and any attachments to the district attorney, attorney general, and the public defender department post-conviction unit. The court shall have thirty (30) days to review for filing the prospective petition and any attachments. Upon acceptance by the court, a petition shall be deemed properly filed and effective as of the previous date of receipt, and a copy of the petition shall be served on the respondent by the clerk of the court in accordance with Rule 5-103, 5-103.1 or 5-103.2 NMRA." and added "Upon the filing of the petition, the clerk of the district court shall file-stamp the petition with the date of receipt ('file-stamp' date).", and added the last sentence of the paragraph; added new Paragraph G and redesignated former Paragraphs G through I as Paragraphs H through J, respectively; in Paragraph H, in Subparagraph H(1), in the subparagraph heading, deleted "Initial review; appointment of counsel" and added "Pre-appointment review", after the subparagraph heading, deleted "Within thirty (30) days after receipt" and added "For petitions not filed by an attorney, within forty-five (45) days", after "of the", added "file-stamp date on the", after the next occurrence of "petition", deleted "and attachments from the district court", after "file a statement", added "recommending that the court order a revised petition under Paragraph (I)(2)(a) of this rule or", after "indicating", deleted "that" and added "whether", after "the petition is", deleted "not", after "reasonable person", added "of adequate means", after "further judicial review", added "of the public defender's assessment", and added the last sentence of Subparagraph H(1), added new subparagraph designation "(2)" and redesignated former Subparagraphs H(2) through H(4) as Subparagraphs H(3) through H(5), respectively, in Subparagraph H(2), added the subparagraph heading "Initial court review.", after "Within", deleted "forty-five (45) " and added "one-hundred twenty (120)", after "days", deleted "after the petition is accepted and filed" and added "of the file stamp date on the petition", and after "with all attachments", added "and statement of the public defender department, if any. Within this initial one-hundred twenty (120) day court review:", added new Subparagraph H(2)(a), added new subparagraph designation "(b)", in Subparagraph H(2)(b), added the subparagraph heading "Summary dismissal.", after "district attorney", added "if the petition challenges matters contained in Subparagraph E(1) of this rule", after "attorney general", added "if the petition challenges matters contained in Subparagraph E(2) of this rule", after "post-conviction unit", added "or, if the petition is filed on behalf of the petitioner by private legal counsel, to that legal counsel", and deleted the last paragraph of Subparagraph H(2)(b), which provided for a revised petition when the court was unable to determine whether the petitioner was entitled to relief as a matter of law, added subparagraph designation "(c)", in Subparagraph H(2)(c), added the subparagraph heading "Appointment of counsel.", after "reviewing", added "the petition", after "public defender department,", added "and revised petition, if any,", after "the order", added "of appointment", after "shall be", deleted "served on" and added "provided to the", and after "public defender department", added "post-conviction unit", in Subparagraph H(3), after "(90) days after", added "the date of", after "amend the petition", added "and provide a copy of the amended petition or notice directly to the assigned judge", after "Subparagraph", deleted "(1)" and added "(H)(2) of this rule", and after "any claims not dismissed", added "and provide a copy of the response directly to the assigned judge, without further order of the court", in Subparagraph H(4), after "may ask for briefs", deleted "and/or" and added "and", in Subparagraph H(5), added the subparagraph heading "Evidentiary hearing."; in Paragraph J, in Subparagraph J(1), after "Rules 5-501", deleted "or" and added "and", in Subparagraph J(2)(c), replaced "New Mexico Corrections Department" with "NMCD", in Subparagraph J(3), after "contained in", deleted "Paragraph A of", and after "Rule 5-507", added "(A)", in Subparagraph J(4), after "factors contained in", deleted "Paragraph A of", and after "Rule 5-507", added "(A) NMRA"; and added new Paragraph K and redesignated former Paragraphs J through L as Paragraphs L through N, respectively. The 2014 amendment, approved by Supreme Court Order No. 14-8300-014, effective December 31, 2014, clarified that the rule is addressed to petitions filed after entry of a final judgment and that it applies to successive petitions; provided for Corrections Department inmates to file a petition challenging misconduct or disciplinary reports; ensured that a petition is assigned to the judge who originally heard the matter; provided the means for the district court to screen out frivolous petitions; gave the Public Defender the opportunity to file a statement regarding the petition before counsel is appointed for the petitioner; imposed a deadline on the district court to dismiss the petition, return the petition for additional information, or appoint counsel; authorized the district court to dismiss some of the claims in a petition; in Paragraph B, deleted the former first and second sentences which provided that a writ would only be issued upon the filing of a petition and that the petition filed by an inmate of an institution was deemed filed when it was deposited in the institution's internal mailing system; in Paragraph B (5), after "is the", deleted "claim has been raised in prior proceedings", and added "Petitioner has previously filed a petition seeking relief under this rule", after "explaining why the", deleted "ends of justice require consideration of the", and after "why the petition", added "should not be dismissed under Paragraph H"; in Paragraph B (6)(b), after "challenges", added "conditions of"; added Paragraph C; in Paragraph E (1), added the last sentence; in Paragraph E (2), after "challenges", added "conditions of"; added Paragraph F; in Paragraph G, in the introductory sentence, after "the court shall", deleted "promptly" and added "proceed in the following manner", in Paragraph G (1), added the title of the subparagraph and in the first unnumbered paragraph, added the first sentence, in the third sentence, added "Within forty-five (45) days after the petition is accepted and filed, the court shall", and in the third sentence, after "fact of the" deleted "motion" and added "petition", after "face of the petition, any", deleted "annexed exhibits" and added "attachments", after "in the case that the", deleted "movant" and added "petitioner", and after "dismissal of the petition", added the remainder of the sentence; in Paragraph G (1), added the second unnumbered paragraph, in the third unnumbered paragraph, in the first sentence, after "If", added "after reviewing any statement field by the public defender department", after "summary dismissal", deleted "unless the petitioner has filed a waiver of counsel or has retained counsel", and after "to represent the petitioner", added the remainder of the sentence, and added the second sentence; in Paragraph G (2), added the title of the subparagraph, in the first sentence, after "for the petitioner", deleted "may" and added "shall", after "petitioner shall file", added "either", after "an amended petition or", deleted "if no amended petition is filed", and added "a notice that counsel does not intend to amend", after "intend to amend the petition", deleted "originally filed by the petitioner is deemed accepted", deleted the former second sentence which required the court to order the respondent to file a response within thirty days after the petition was filed; added the second sentence; deleted the former third sentence which provided that if a response was ordered, the clerk of the court was required to serve a copy of the petition and order be served on the respondent, deleted the former fourth sentence which required the respondent to file a response within ninety days after service of the petition, and added the third sentence; in Paragraph G (3), added the title, in the first sentence, deleted "if the court directs the respondent to file a response", after "After the petition is filed", added "at the request of a party or upon its own motion", after "upon its own motion, the court" deleted "shall" and added the remainder of the sentence, added the second sentence, and in the third sentence, added "The court shall then", after "the petition without a", added "evidentiary", after "ask for briefs and", added "/or", and after "oral arguments", added "on legal issues"; and added Paragraphs H and I. The 2009 amendment, approved by Supreme Court Order 09-8300-006, effective May 6, 2009, in Paragraph B, added the second sentence; in Subparagraph (2) of Paragraph C, after "forma pauperis" added the proviso; in Subparagraph (1) of Paragraph D, after "sentenced or order of confinement", added "correct the Department of Corrections' interpretation or application of the sentence or order of confinement, or challenge the conviction" and after "county of the court in which the", deleted "offence was committed" and added the remainder of the sentence; in Subparagraph (2) of Paragraph D, after "matters other than", added "those set forth in" and after "it shall be filed in the", deleted "judicial district" and added "county"; in Subparagraph (2) of Paragraph E, in the second and fifth sentences, changed thirty days to ninety days; and in Paragraph H, deleted former Subparagraph (3) which provided that if the petition for certiorari is not granted by the Supreme Court within thirty days after filing, it shall be deemed denied. The 2002 amendment, effective June 1, 2002, in Paragraph D(1), substituted "county in which the offense was committed" for "judicial district in which petitioner was convicted"; in Paragraph G, inserted "in non-death penalty cases" in the bold heading and "If a sentence of death has not been imposed" at the beginning; redesignated Paragraphs F and G as present Paragraphs G and H and added Paragraph F. The 1998 amendment, effective March 16, 1998, inserted "If the petition:" after the paragraph heading in Paragraph D, and deleted "If the petition" at the beginning of Subparagraphs D(1) and (2), deleted "do the following" at the end of Paragraph E, inserted "promptly examine" and deleted "shall be examined promptly by the court" in Subparagraph E(1), rewrote Subparagraph E(2), deleted "may appoint cousel for an indigent petitioner and" following "court" and substituted "a" for "the" in Subparagraph E(4), inserted "Within thirty (30) days" following the paragraph heading in Paragraph G, deleted "within thirty (30) days" following "if the writ is denied", and inserted "after filing" following "days" in Subparagraph G(3).
For post-conviction remedy statute, see Section 31-11-6 NMSA 1978. For form on a petition for writ of habeas corpus, see Rule 9-701 NMRA. Compiler's notes. - Pursuant to the court order of February 10, 1986, the 1986 amendment of this rule applies to all post-conviction motions filed after March 1, 1986. I. GENERAL CONSIDERATION. Standard for imposing the sanction of granting a petition for writ of habeas corpus. - The standard for granting a petition for writ of habeas corpus without a response from the state requires a determination of whether the state's conduct reached the point of stubborn resistance to the court's orders that would justify such an extreme sanction. Quintana v. Bravo, 2013-NMSC-011, 299 P.3d 414. The court's sanction for the State's delay in responding to a petition for writ of habeas corpus was not justified. - Where petitioner filed a petition for writ of habeas corpus to vacate jury verdicts convicting petitioner of several felonies, including first-degree murder, on the ground that petitioner was denied effective assistance of counsel; one of petitioner's trial counsel, who admitted by affidavit that the representation of petitioner was ineffective, was then working for the district attorney's office; because of the conflict of interest, the district attorney did not file a response to the petition and did not appear at motion hearings; the district attorney attempted to secure other counsel for the respondents; the district court was aware of the conflict and the confusion regarding whether an attorney from the attorney general's office or an attorney from a district attorney's office in another jurisdiction would represent the respondents; and the district court granted the petition based on the allegations in the petition and trial counsel's affidavit because the respondents had failed to timely file a response to the petition and to appear at scheduled motion hearings, refused to delay the hearing on the motion to rule on the pleadings, and subsequently denied a motion to reconsider, the conduct of the district attorney and the attorney general did not rise to the level of stubborn resistance to the district court's orders that would justify the extreme sanction of vacating petitioner's jury convictions without both considering a response from respondents and after having a full evidentiary hearing. Quintana v. Bravo, 2013-NMSC-011, 299 P.3d 414. Depositions of defendant are prohibited in habeas corpus proceedings. - Rule 5-503 NMRA precludes a compelled statement or deposition of a criminal defendant, including one who is in the post-conviction habeas corpus phase of a criminal proceeding. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Where defendant filed a petition for habeas corpus alleging ineffective assistance of counsel; the district court ruled that defendant was subject to deposition on all issues related to the habeas corpus proceedings; when defendant refused to answer any questions, the district court ordered defendant to answer specified questions; and when defendant refused to answer the court-ordered questions, the district court dismissed defendant's petition as a sanction, it was improper for the district court to order defendant to answer questions at a deposition and to dismiss the habeas corpus petition or otherwise sanction defendant for defendant's refusal to answer the questions. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Claims of ineffective assistance of counsel. - A habeas corpus petitioner's claim of ineffective assistance of counsel removes from the protection of the attorney-client privilege those communications specifically relevant to the claim. A petitioner asserting the attorney-client privilege bears the burden of demonstrating that the privilege applies. It is then the judges' function to make evidentiary rulings determining whether attorney-client communications are relevant to the specific ineffective assistance of counsel claims raised by the petitioner and thereby subject to the exception in Subparagraph 3 of Paragraph D of Rule 11-503 NMRA. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Where defendant filed a petition for habeas corpus alleging ineffective assistance of counsel, any communications between defendant and trial counsel that were relevant to defendant's specific ineffectiveness claims were excepted from the attorney-client privilege, and those that were not relevant were neither excepted nor waived, because defendant filed a petition for writ of habeas corpus. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Criteria to determine if a new rule has been established. - A case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. Thus, a court establishes a new rule when its decision is flatly inconsistent with the prior governing precedent and is an explicit overruling of an earlier holding. Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. Standard to determine whether new rule applies retroactively to finalized criminal convictions. - New rules should not be afforded retroactive effect unless (1) the rule is substantive in nature, in that it alters the range of conduct or class of persons that the law punishes; or (2) although procedural in nature, the rule announces a watershed rule of criminal procedure. Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. New rule in felony murder cases cannot be applied retroactively. - The court's opinion in State v. Frazier, 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1, which held for the first time that multiple separate convictions of felony murder and the predicate felony violate the double jeopardy clause, announced a new rule that is procedural in nature and is not subject to retroactive application in habeas corpus proceedings. Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. New rule in felony murder cases not applied retroactively. - Where petitioner's multiple separate convictions of felony murder and the predicate felony of kidnapping had been finalized more than ten years before the court's opinion in State v. Frazier, 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1 was filed, the rule announced in Frazier did not apply to defendant's convictions. Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. New rule in double jeopardy cases cannot be retroactively applied. - The supreme court's opinion in State v. Montoya, 2013-NMSC-020, which held that the double jeopardy clause of the United State Constitution, U.S. Const. amend. V, precludes a defendant from being cumulatively punished for both voluntary manslaughter and shooting at or from a motor vehicle resulting in great bodily harm in a situation where both convictions are based on the same shooting of the same victim, announced a new rule concerning a new methodology for reviewing double jeopardy claims; the new rule announced in State v. Montoya, which is neither a substantive change in the law nor a watershed rule, is not subject to retroactive application in habeas corpus proceedings. Dominguez v. State, 2015-NMSC-014. Where petitioner's convictions for voluntary manslaughter and shooting at or from a motor vehicle resulting in the death of one person, and aggravated battery and shooting at or from a motor vehicle resulting in great bodily injury to a second person had been finalized eight years before the supreme court's opinion in State v. Montoya, 2013-NMSC-020 was filed, the new rule announced in State v. Montoya did not apply retroactively to petitioner's convictions. Dominguez v. State, 2015-NMSC-014. Preemption. - This rule does not preempt Rules 5-614 or 5-801 NMRA, nor does it preempt Section 39-1-1 NMSA 1978, which allows post-conviction motion practice. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614. This rule preempts Section 36-11-6 NMSA 1978, governing post-conviction remedy. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614. The 1986 amendment of this rule has only prospective effect. Enright v. State, 1986-NMSC-070, 104 N.M. 672, 726 P.2d 349. The main purpose of this rule is to provide a uniform procedure for determining if a prisoner is entitled to relief. Blatchford v. Gonzales, 1983-NMSC-060, 100 N.M. 333, 670 P.2d 944, appeal dismissed and cert. denied, 464 U.S. 1033, 104 S. Ct. 691, 79 L. Ed. 2d 158 (1984). "In custody" construed where petitioner incarcerated in another jurisdiction. - A defendant is in "custody" for purposes of post-conviction relief under Rule 5-802 NMRA when the defendant is not physically restrained within the state of New Mexico, but is incarcerated in another state serving a sentence imposed by that state to be served concurrently or consecutively with the sentence imposed by the New Mexico court and is entitled to pursue post-conviction relief in New Mexico. Howard v. Martin, 1991-NMSC-001, 111 N.M. 203, 803 P.2d 1108. Challenge of conviction while in immigration custody. - The proper mechanism for a defendant to challenge an underlying criminal conviction when in the custody of the United States Immigration and Customs Enforcement Services is to file a Rule 1-060(B)(4) NMRA motion. State v. Favela, 2013-NMCA-102, cert. granted, 2013-NMCERT-010. Where defendant, who was a Mexican national, pleaded guilty to aggravated battery and driving under the influence; after serving defendant's prison service, defendant was taken into custody by the United States Immigration and Customs Enforcement Services; and while defendant was in immigration custody, defendant filed a Rule 1-060 NMRA motion to set aside the guilty plea on the grounds that defendant's counsel failed to advise defendant of the immigration consequences of a guilty plea, defendant properly challenged the underlying criminal conviction by filing a motion for relief from judgment under Rule 1-060 NMRA rather than a motion for writ of habeas corpus under Rule 5-802 NMRA because defendant's immigration custody did not satisfy the "in custody" requirement of habeas corpus. State v. Favela, 2013-NMCA-102, cert. granted, 2013-NMCERT-010. Not exclusive post-conviction relief. - This rule was not intended to be the exclusive means for seeking post-conviction relief. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614. Defendant must utilize rule before seeking habeas corpus. Like its federal counterpart, Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) provides that an application for writ of habeas corpus by a prisoner authorized to apply for post-conviction relief shall not be entertained if the applicant has failed to apply for relief by motion to the sentencing court, unless it also appears that the remedy by motion to test the legality of his detention is inadequate or ineffective. Lewis v. New Mexico, 423 F.2d 1048 (10th Cir. 1970). Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) is comparable to the federal statute which sets forth the procedure for collateral attack on federal sentences. 28 U.S.C.A. § 2255. Like its federal counterpart, the rule requires that petitions seeking post-conviction relief be addressed to the sentencing court, and that habeas corpus petitions will not be entertained when the petitioner has failed to utilize the rule, unless it appears that the procedure under the rule is inadequate or ineffective to test the legality of the petitioner's detention. Herring v. Rodriguez, 372 F.2d 470 (10th Cir. 1967). State motion must be acted upon before state remedies exhausted. - Where a motion filed under this rule has not been acted upon, the motion must be acted upon before a prisoner has exhausted his state remedies and is permitted to petition for a federal writ of habeas corpus. Martinez v. Romero, 640 F.2d 1151 (10th Cir. 1981). When state remedies not exhausted. - A petitioner has not exhausted state remedies, for purposes of federal habeas corpus, while his appeal of a first Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion is still pending. Barefield v. New Mexico, 434 F.2d 307 (10th Cir. 1970), cert. denied, 401 U.S. 959, 91 S. Ct. 969, 28 L. Ed. 2d 244 (1971). Although counsel advised that the state trial court had entered an order denying the appellant's petition under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) because the state trial court's order denying relief under that rule was not part of the record on appeal, because the extent and nature of the proceedings in the state trial court was not known and because the record did not disclose whether the appellant had appealed or could appeal from denial of his Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) petition to the New Mexico supreme court, there was nothing in the record upon which the court might conclude that the remedy provided by that rule was inadequate or ineffective to test the legality of the appellant's detention under the constitutional grounds asserted in the appellant's petition to the United States district court. Appellant had not exhausted his available state remedies when the court below dismissed his habeas corpus petition, and dismissal, without prejudice, was not erroneous. Herring v. Rodriguez, 372 F.2d 470 (10th Cir. 1967). When state remedies deemed exhausted. - Where a state prisoner's habeas corpus petition raises no factual issues, and the legal issues have all been considered and rejected by the highest court of the state in a direct appeal, a prisoner would not be denied a federal habeas corpus hearing simply because he had not re-presented the same issues in the state court in a post-conviction proceeding. Sandoval v. Rodriguez, 461 F.2d 1097 (10th Cir. 1972). Federal court may proceed on merits. - Where defendant appealed his state court conviction to the state supreme court and lost, then filed for state post-conviction relief and was denied, and the Supreme Court of New Mexico decided the same questions in his post-conviction motion and in his subsequent habeas corpus motion, the defendant does not have to appeal the denial of his post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) and the federal district court may proceed on the merits. Cochran v. Rodriguez, 438 F.2d 926 (10th Cir. 1971). Motions under this rule are not appealable. State v. McGuinty, 1982-NMCA-011, 97 N.M. 360, 639 P.2d 1214. Attempt to circumvent rule by remand followed by appeal. - The court of appeals would not remand the issue of effectiveness of counsel to the trial court for an evidentiary hearing, and then have the case returned for review, where such a procedure would circumvent the express wording of this rule, providing for review of postconviction evidentiary proceedings through certiorari to the supreme court. State v. Powers, 1990-NMCA-108, 111 N.M. 10, 800 P.2d 1067. Remanding a case for an evidentiary hearing to develop facts supporting a defendant's claim on appeal would circumvent this rule, which provides review of post-conviction evidentiary proceedings by way of certiorari to the supreme court. State v. Gomez, 1991-NMCA-061, 112 N.M. 313, 815 P.2d 166. Res judicata in habeas corpus proceedings. - If an application for a writ of habeas corpus is grounded in facts beyond the record previously presented on appeal, and if the additional facts are those which could not, or customarily would not, be developed in a trial on criminal charges, there should be no issue preclusion. When a post-conviction application makes a substantial showing that due process or another fundamental right has been abridged - and the application is supported by facts ill-suited for development in the original trial - it should be addressed on its merits. Res judicata does not apply. Duncan v. Kerby, 1993-NMSC-011, 115 N.M. 344, 851 P.2d 466. Law reviews. - For note, "Post-Conviction Relief After Release From Custody: A Federal Message and a New Mexico Remedy," see 9 Nat. Resources J. 85 (1969). For note, "Waiver; Right to Counsel; Certification of Juvenile to Criminal Proceedings," see 9 Nat. Resources J. 310 (1969). For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981). For survey of Indian law in New Mexico, see 18 N.M.L. Rev. 403 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 18 Am. Jur. 2d Coram Nobis and Allied Statutory Remedies §§ 44 to 60. Insanity of accused at time of commission of offense not raised at trial, as ground for habeas corpus or coram nobis after conviction, 29 A.L.R.2d 703. Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432. Voluntary absence when sentence is pronounced, 59 A.L.R.5th 135. 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. When criminal case becomes moot so as to preclude review of or attack on conviction or sentence, 9 A.L.R.3d 462. Judicial expunction of criminal record of convicted adult, 11 A.L.R.4th 956. Coram nobis on ground of other's confession to crime, 46 A.L.R.4th 468. Application of civil or criminal procedural rules in federal court proceeding on motion in nature of writ of error coram nobis, 53 A.L.R. Fed. 762. 24 C.J.S. Criminal Law § 1610 et seq.; 39 C.J.S. Habeas Corpus § 1 et seq. II. SCOPE OF RULE; GROUNDS FOR RELIEF. A. IN GENERAL. The writ of habeas corpus cannot be used to restore a defendant's right to vote. Cummings v. State, 2007-NMSC-048, 142 N.M. 656, 168 P.3d 1080. New evidence. - A habeas corpus petitioner may obtain relief, based on a freestanding claim of actual innocence, independent of any constitutional violation at trial, if he can establish by clear and convincing evidence that no reasonable juror would have convicted him in light of new evidence. Montoya v. Ulibarri, 2007-NMSC-035, 142 N.M. 89, 163 P.3d 476. Purpose of rule. - The purpose of Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) is to allow a collateral review as to the validity of a conviction. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486. 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. The purpose of Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) is to provide a ready remedy whereby a prisoner in custody under sentence of the court may be freed from custody upon a proper showing that the sentence was imposed in violation of the Constitution of the United States, or the Constitution or the law 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. It is not intended as a means whereby prisoners can with complete abandon and contempt demean and burden the courts and legal profession, falsely accuse the law enforcement officials and impose upon the public great and unnecessary expense. State v. Hansen, 1968-NMCA-031, 79 N.M. 203, 441 P.2d 500. Constitutionality. - This rule does not violate the 1965 amendment to N.M. Const., art. VI, § 2. State v. Garcia, 1984-NMCA-009, 101 N.M. 232, 680 P.2d 613. No substitute for habeas corpus. - Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) does not provide a substitute for appeal. It is a post-conviction remedy, civil in nature, substantially equivalent to habeas corpus, and an issue not properly cognizable in a habeas corpus proceeding cannot furnish basis for relief under that rule. Smith v. State, 1968-NMSC-144, 79 N.M. 450, 444 P.2d 961. Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) is a post-conviction remedy not previously available to prisoners in custody. It has not replaced or supplanted habeas corpus which is not suspended, as indeed it could not be under the constitution. State v. Weddle, 1967-NMSC-028, 77 N.M. 420, 423 P.2d 611. Showing of immediate release not necessary. - To obtain a writ of habeas corpus, a petitioner need not demonstrate a right to immediate release. He need prove only that he was denied mandatory credits against his sentence and that such credits affect the timing of his release or of a parole hearing. Martinez v. State, 1990-NMCA-033, 110 N.M. 357, 796 P.2d 250. Prior appeal not required. - Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) does not require there to have been an appeal before a post-conviction motion may be considered. State v. Martinez, 1973-NMCA-088, 85 N.M. 293, 511 P.2d 779. Rule not limited to post-conviction habeas actions. - This rule is not limited by its terms to post-conviction habeas actions and on its face appears to apply to all habeas corpus proceedings, whether challenging confinement before or after conviction or, for that matter, civil custody. Caristo v. Sullivan, 1991-NMSC-088, 112 N.M. 623, 818 P.2d 401. Available where legal custody under sentence of state court. - An attack on a judgment cannot be made under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) when petitioner is not in custody under a sentence from a New Mexico court. Roessler v. State, 1969-NMCA-003, 79 N.M. 787, 450 P.2d 196, cert. denied, 395 U.S. 967, 89 S. Ct. 2115, 23 L. Ed. 2d 754 (1969); see also State v. Apodaca, 1969-NMCA-020, 80 N.M. 155, 452 P.2d 489. Where defendant is in legal custody under sentence of a New Mexico court, he may seek post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), notwithstanding the lack of physical custody by New Mexico. State v. Brill, 1970-NMCA-093, 81 N.M. 785, 474 P.2d 77, cert. denied, 81 N.M. 784, 474 P.2d 76. Petitioner must show deprivation of rights. - 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 rights under the fourteenth amendment. 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. Unjust and illegal discrimination. - A motion for post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) presents an issue which courts with uniformity have held is not one which will be the basis for relief unless there is shown to be present in it an element of intentional or purposeful discrimination, or intentional or arbitrary action amounting to an unjust and illegal discrimination between persons in similar circumstances. State v. Baldonado, 1968-NMCA-025, 79 N.M. 175, 441 P.2d 215. Deprivation of fair trial. - It is only under circumstances where it appears that the defendant was fundamentally deprived of a fair trial that post-conviction relief is available. Jones v. State, 1970-NMSC-082, 81 N.M. 568, 469 P.2d 717. The acts complained of must be of such quality as necessarily prevent a fair trial for review and reversal. State v. Olguin, 1968-NMSC-012, 78 N.M. 661, 437 P.2d 122. No redetermination of issues previously reviewed. - In a motion for post-conviction relief, one is not entitled to successive determination on the merits of issues previously reviewed. State v. Ortega, 1970-NMCA-028, 81 N.M. 337, 466 P.2d 903, cert. denied, 81 N.M. 305, 466 P.2d 871. No review unless cognizable claim. - Motion for post-conviction relief was not the proper procedure for obtaining relief on claim by defendant that parole authorities and penitentiary officials had improperly figured the time he had served on his sentence, since a distinction was drawn between an attack on the court's sentence, which was cognizable by post-conviction motion, and a claim against parole and penitentiary officials for the way sentence was executed, which was not cognizable. State v. Bambrough, 1970-NMCA-060, 81 N.M. 548, 469 P.2d 527. No review of some constitutional issues. - Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) does not require collateral review of constitutional issues where the facts submitted were known or available to the petitioner at the time of his trial. Jones v. State, 1970-NMSC-082, 81 N.M. 568, 469 P.2d 717. And no review if clemency proper remedy. - Where defendant's conviction was based upon perjury his remedy is by application for executive clemency not by a motion pursuant to Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Minns, 1970-NMCA-042, 81 N.M. 428, 467 P.2d 1000. Habeas corpus relief inappropriate to modify probation condition. - When the district court failed to make a determination showing grounds for habeas corpus relief existed, the court abused its discretion by modifying defendant's probation condition which had been agreed upon pursuant to a plea bargain. State v. Trujillo, 1994-NMSC-066, 117 N.M. 769, 877 P.2d 575. Remedy when prison discipline is vindicated by subsequent events. - Where the corrections department forfeited petitioner's earned good time and placed petitioner in a maximum security facility after a hearing officer determined that petitioner had raped another inmate; the corrections department violated petitioner's due process rights by denying petitioner an opportunity to call witnesses or elicit their written testimony at the prison disciplinary hearing; petitioner was subsequently tried and convicted of the rape in district court; and in petitioner's habeas corpus proceeding, the district court ordered the corrections department to restore petitioner's good-time credits, remove the disciplinary hearing findings from petitioner's record, never to use findings of the disciplinary hearing against defendant, and never to pursue the same factual allegations that were the subject of the disciplinary hearing in later proceedings against petitioner, the district court's remedies for the violation of petitioner's due process rights was an abuse of discretion because the discipline of the corrections department was vindicated by petitioner's intervening criminal conviction. Perry v. Moya, 2012-NMSC-040, 289 P.3d 1247. Petitioner may file motion at any time. - The authorization contained in Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), is not limited to the term of court during which the incorrect sentence was imposed, as a motion for such relief may be made at any time. McCroskey v. State, 1970-NMCA-109, 82 N.M. 49, 475 P.2d 49. Defendant whose suspended sentence had been revoked was not required to wait until the claimed time, if credited, would entitle defendant to his release to bring post-conviction relief proceeding to obtain credit for probation time. State v. Sublett, 1968-NMCA-001, 78 N.M. 655, 436 P.2d 515. Prison mailbox rule. - Because New Mexico's rules require receipt by the clerk before a habeas petition is filed, the prison mailbox rule, as articulated in Houston v. Lack, 487 U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988), does not apply to prisoners requesting state post-conviction relief in New Mexico. Adams v. LeMaster, 223 F.3d 1177 (10th Cir. 2000), cert. denied, 531 U.S. 1195, 121 S. Ct. 1198, 149 L. Ed. 2d 113 (2001). Commences civil proceeding. - A motion pursuant to Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) is a civil proceeding, not criminal, and is governed by the rules of civil procedure. State v. Brinkley, 1967-NMSC-124, 78 N.M. 39, 428 P.2d 13; see also State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36; State v. Robbins, 1967-NMSC-091, 77 N.M. 644, 427 P.2d 10, cert. denied, 389 U.S. 865, 88 S. Ct. 130, 19 L. Ed. 2d 137 (1967); State v. Gilbert, 1967-NMSC-226, 78 N.M. 437, 432 P.2d 402; State v. Knight, 1967-NMSC-241, 78 N.M. 482, 432 P.2d 838. Where findings under similar federal rule deemed persuasive. - Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) was adopted from 28 U.S.C. § 2255. The interpretation placed on that section by the federal courts is persuasive as to the meaning of the state rule. Lewis v. New Mexico, 423 F.2d 1048 (10th Cir. 1970); State v. Weddle, 1967-NMSC-028, 77 N.M. 420, 423 P.2d 611; State v. Fines, 1968-NMSC-022, 78 N.M. 737, 437 P.2d 1006; State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803; State v. Hodnett, 1968-NMCA-104, 79 N.M. 761, 449 P.2d 669; see also State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36. B. PRETRIAL MATTERS. Absence of some facts from complaint not grounds for relief. - Defendant convicted of rape could not vacate his conviction on the ground the complaint failed to allege knowledge of the facts from which the complainant concluded that there was probable cause to believe that defendant had committed rape. State v. Sedillo, 1968-NMSC-049, 79 N.M. 9, 439 P.2d 226. Where allegations sufficient to charge offense. - Where allegations, notwithstanding the misreference to offense, are sufficient to charge the offense they provide no grounds for error or for post-conviction relief. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393. Amendment of information permitted. - Unless prejudice to the defendant results, a reviewing court on motion for post-conviction relief will not disturb the trial court's discretion in permitting an amended information. State v. Sanchez, 1969-NMCA-098, 80 N.M. 688, 459 P.2d 850; see also State v. Crouch, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19. That the court granted the prosecutor's motion to endorse the information thereby adding the witness' name who had testified, in the absence of abuse of discretion, was not error entitling defendant to post-conviction relief. State v. Lujan, 1968-NMSC-088, 79 N.M. 200, 441 P.2d 497. Claim of illegal arrest, in itself, is not basis for post-conviction relief. Herring v. State, 1969-NMCA-117, 81 N.M. 21, 462 P.2d 468; State v. Hudman, 1967-NMSC-201, 78 N.M. 370, 431 P.2d 748; State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258; State v. Ramirez, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262; State v. Ramirez, 1967-NMCA-028, 78 N.M. 584, 434 P.2d 703; State v. Simien, 1968-NMSC-025, 78 N.M. 709, 437 P.2d 708; State v. Hansen, 1968-NMCA-031, 79 N.M. 203, 441 P.2d 500. And illegality waived by guilty plea. - That defendant's arrest on the worthless check charge was without a warrant provides no basis for relief. Illegality, if any, in defendant's arrest was waived by his guilty plea. State v. Gorton, 1969-NMCA-002, 79 N.M. 775, 449 P.2d 791; see also State v. Baumgardner, 1968-NMCA-047, 79 N.M. 341, 443 P.2d 511; State v. Williams, 1967-NMSC-162, 78 N.M. 211, 430 P.2d 105; State v. Losolla, 1968-NMSC-107, 79 N.M. 296, 442 P.2d 786. That the arresting officer failed to have a warrant for defendant's arrest at the time he was taken into custody; that defendant was placed in a lineup for identification purposes before he had obtained an attorney to represent him; that a gun claimed to be material evidence was obtained through an unlawful search and seizure; and that defendant was not served with the information constitute claimed defects in the proceedings that are waived by a subsequent plea of guilty entered with the advice of counsel. State v. Tipton, 1967-NMSC-270, 78 N.M. 600, 435 P.2d 430. Or by proceeding to trial. - Where defendant pleaded not guilty and proceeded to trial, claim of illegal arrest was waived. State v. Ramirez, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262. But relief available for delay in apprehension. - Where it is contended that the right of New Mexico to revoke defendant's probation was waived by reason of the long delay in apprehending defendant, based on the claim that defendant's whereabouts were known to the state or should have been known to the state had it exercised ordinary care to ascertain the location of defendant, such a claim provides a legal basis for relief. State v. Murray, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416. Denial of use of telephone after arrest not grounds for relief. - Absent prejudice, no basis for release is established by denial of use of a telephone after arrest. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258. Without showing of prejudice. - He does not claim, and the record does not suggest, any prejudice by reason of the claimed refusals of his requests to use the telephone. Absent some basis of prejudice, a claim that he was refused the use of a telephone is not ground for vacating a judgment and sentence. State v. Knerr, 1968-NMCA-022, 79 N.M. 133, 440 P.2d 808. Defendant may waive statutory right to copy of information. - Statutory right to be furnished a copy of the information at least 24 hours prior to being required to plead was waived by plea of not guilty and so no grounds for relief were stated by defendant. State v. Knight, 1967-NMSC-241, 78 N.M. 482, 432 P.2d 838. When illegal search not grounds for relief. - Illegal search of car, if it did occur, would not afford defendant a basis for post-conviction relief for the reason that no evidence so obtained was used against him. State v. Baumgardner, 1968-NMCA-047, 79 N.M. 341, 443 P.2d 511. Where defendant asserts that an illegal search was made of his automobile, and that he was identified without being placed in a lineup, even if his claim of an illegal search be true, as no evidence secured thereby was used against him and he pleaded guilty, he cannot be heard to complain and he is not entitled to post-conviction relief. State v. Hansen, 1968-NMCA-031, 79 N.M. 203, 441 P.2d 500. Where the circumstances of a claimed illegal search and seizure are known to defendant at the time of trial, the question of use of illegally seized evidence cannot properly be raised by motion under Rule 93, N.M.R. Civ. P. State v. Barton, 1968-NMSC-065, 79 N.M. 70, 439 P.2d 719. When absence of preliminary hearing not grounds for relief. - The bare claim that defendant was never taken before a magistrate and advised of his rights without claim that this prejudiced him in any way, provides no basis for post-conviction relief. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692. Where, upon motion for post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), defendant charged with aggravated battery claimed that he was charged in the criminal information with an offense concerning which there had been no preliminary examination, but where the record did not show any objection to the lack of preliminary examination on the aggravated battery charge, showing instead that defendant pleaded not guilty when arraigned and proceeded to trial without raising a question as to the propriety of the magistrate's bind over, defendant's claim for relief was waived. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Defendant's voluntary plea of guilty in the district court constituted a waiver of a preliminary hearing and precluded relief on grounds that waiver was obtained through undue influence. State v. Baumgardner, 1968-NMCA-047, 79 N.M. 341, 443 P.2d 511. Nor delay in preliminary hearing. - That defendant was not taken before a magistrate for two and one-half days after his arrest provided no legal basis for relief as there is no showing, in fact no claim, that the delay deprived defendant of a fair trial or that he was prejudiced in any way. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005. Where confession was made by appellant promptly upon being interrogated, without any claim of threats, force or psychological pressure, and within 30 hours of arrest, the fact that appellant was not taken forthwith before a magistrate cannot be held to make the statement inadmissible. State v. Minor, 1968-NMSC-016, 78 N.M. 680, 437 P.2d 141. Irregularities which may have occurred prior to arraignment are not subject to inquiry by way of post-conviction relief. State v. Martinez, 1968-NMSC-097, 79 N.M. 232, 441 P.2d 761. Unless fair trial prevented. - The acts complained of, such as unreasonable delay in arraignment, must be of such quality as necessarily prevent a fair trial, to obtain review and reversal. State v. Olguin, 1968-NMSC-012, 78 N.M. 661, 437 P.2d 122. Constitutional validity of plea deemed proper subject of motion for relief. - Where the claims made, if true, would raise serious questions as to the constitutional validity of the guilty pleas, then these claims are to be asserted in a motion for post-conviction relief. State v. Martinez, 1973-NMCA-040, 84 N.M. 766, 508 P.2d 36. Since plea deemed void if not voluntary. - A guilty plea must be voluntarily made, and if it is not so made but is in fact induced by promises or threats, then it is void and subject to collateral attack. State v. Baumgardner, 1968-NMCA-047, 79 N.M. 341, 443 P.2d 511. It is a fundamental rule of criminal procedure that a judgment and sentence cannot stand if based upon an involuntary plea of guilty induced by an unkept promise of leniency. A guilty plea induced by either promises or threats which deprive it of the character of a voluntary act is void and subject to collateral attack. State v. Ortiz, 1967-NMSC-104, 77 N.M. 751, 427 P.2d 264. But where plea not grounds for relief. - The fact that alternatives were considered in reaching a decision to plead guilty does not necessarily render the decision involuntary, and where there is substantial evidence that the plea was made voluntarily after proper advice of counsel and with full understanding of the consequences, there is no basis for post-conviction relief. Mondragon v. State, 1972-NMCA-117, 84 N.M. 175, 500 P.2d 999. The alleged facts of a need for a prostate operation, time in a mental hospital and prior conviction of a "finding" charge raise no issue as to an involuntary plea of guilty and provide no grounds for post-conviction relief. Stafford v. State, 1971-NMCA-014, 82 N.M. 365, 482 P.2d 68. Defendant who was told by his attorney that if he didn't plead guilty to second-degree murder he would die in gas chamber could not claim on motion for post-conviction relief that his guilty plea was induced by coercion, threats or promise of leniency, because such plea represented a choice between two alternatives and a voluntary selection of a plea to a lesser charge. State v. French, 1970-NMSC-159, 82 N.M. 209, 478 P.2d 537. If in fact defendant chose to rely on counsel's advice and plead guilty rather than trust his fate to a jury on a charge involving the death penalty, defendant does not gain thereby on a motion for post-conviction relief. Such a factual claim provides no legal basis for holding his plea involuntary. State v. Kenney, 1970-NMCA-038, 81 N.M. 368, 467 P.2d 34. Absent any claim that anyone representing the state said or did anything to induce the guilty plea, the statement made to defendant by his own counsel did not provide a basis for post-conviction relief. State v. Montoya, 1970-NMCA-016, 81 N.M. 233, 465 P.2d 290; Goodwin v. State, 1968-NMCA-062, 79 N.M. 438, 444 P.2d 765. That defendant pleaded guilty in exchange for dismissal of criminal charges against a young woman petitioner passed off as his wife, provides no basis for relief. Roessler v. State, 1969-NMCA-003, 79 N.M. 787, 450 P.2d 196, cert. denied, 395 U.S. 967, 89 S. Ct. 2115, 23 L. Ed. 2d 754 (1969). If this is a claim that petitioner entered his plea on advice of counsel, it provides no basis for relief. If this is a claim that petitioner did not fully understand the consequences of his plea, it provides no basis for relief. If he did not understand, he could have asked his attorney. If this is a claim that the trial court failed to explain the effect of the plea, it still provides no basis for relief. The trial court is not obligated to explain the effect of a guilty plea entered by a defendant represented by counsel. Roessler v. State, 1969-NMCA-003, 79 N.M. 787, 450 P.2d 196, cert. denied, 395 U.S. 967, 89 S. Ct. 2115, 23 L. Ed. 2d 754 (1969). Where two attorneys represented defendant at different times, both being capable and competent attorneys, who appear to have done all defendant would permit them to do, and the defendant stands convicted upon his voluntary plea of guilty, which he made, after consulting, at his specific request, with a competent attorney at the arraignment proceedings, the plea is binding and the defendant is not entitled to post-conviction relief. State v. Hansen, 1968-NMCA-031, 79 N.M. 203, 441 P.2d 500. It is, of course, unquestioned that a plea of guilty induced by an unkept promise of leniency is void. Where in this case, however, the allegation upon which the contention is based demonstrates that no "promises" were made either by the deputy sheriff or appellant's counsel and the statements attributed to the deputy sheriff and counsel on their face do not bear out the assertion that a promise or promises of leniency were made but amount to no more than speculation as to what the district attorney or the trial judge might do if appellant entered a plea of guilty, the plea of guilty is not void and the defendant is not entitled to post-conviction relief. State v. McCain, 1968-NMCA-029, 79 N.M. 197, 441 P.2d 237. While the accused may have to take the consequences of a poor defense, he may at least say the fault was not his own. But this is not so when he pleads guilty. Here the deed is his own; here there are not the baffling complexities which require a lawyer for illumination; if voluntarily and understandingly made, even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses known and unknown. And such is the law. A plea of guilty may not be withdrawn after sentence on a motion for post-conviction relief except to correct a "manifest injustice", and it is difficult to imagine how "manifest injustice" could be shown except by proof that the plea was not voluntarily or understandingly made, or a showing that defendant was ignorant of his right to counsel. Certainly ineffective assistance of counsel, as opposed to ignorance of the right to counsel, is immaterial in an attempt to impeach a plea of guilty, except perhaps to the extent that it bears on the issues of voluntariness and understanding. State v. Knerr, 1968-NMCA-022, 79 N.M. 133, 440 P.2d 808. Where defendant stated to trial court that (1) he was familiar with and understood the charges, (2) he had received advice of counsel, (3) no one had indicated what the court might do, (4) no threats had been made, (5) he realized he had a right to be tried by a jury and (6) he was changing his plea freely and voluntarily and defendant denied that any promises had been made to induce him to change his plea, waived a presentencing report and asked the court to sentence him "at this time," motion for post-conviction relief was properly denied. State v. Decker, 1968-NMCA-016, 79 N.M. 41, 439 P.2d 559. Increase in bail would not be basis for post-conviction relief unless petitioner was prejudiced by the increase. Hernandez v. State, 1970-NMCA-073, 81 N.M. 634, 471 P.2d 204. Nor failure to set bond where plea of guilty. - The failure to set bond, like delay in bringing appellant before a magistrate, was waived by the entry of a plea of guilty. This contention presents no basis for relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Helm, 1968-NMSC-112, 79 N.M. 305, 442 P.2d 795. Nondisclosure of information sufficient for relief. - Where nondisclosed information would have provided the defense with two independent witnesses not connected with defendant or his family who tended to corroborate the defense and to contradict police witnesses concerning the method of entry, which was relevant to defendant's intent upon entry, this deprivation is prejudicial; the order denying post-conviction relief is reversed and the cause remanded with instructions to set aside the judgment and sentence and grant defendant a new trial. Chacon v. State, 1975-NMCA-094, 88 N.M. 198, 539 P.2d 218. Where defendant prejudiced by material nondisclosure. - Where a violation of Rule 27(a)(5) (see now Rule 5-501 NMRA) is not discovered until after trial, the standards to be applied in determining whether defendant is entitled to a new trial because of nondisclosure are that the nondisclosed items must be material to the guilt or innocence of the accused, or to the penalty to be imposed, and furthermore, that nondisclosure of items material to the preparation of the defense is not reversible error in the absence of prejudice. Chacon v. State, 1975-NMCA-094, 88 N.M. 198, 539 P.2d 218 (decided prior to 1980 amendment). Separate interrogations not grounds for relief. - Appellant's claim that his conviction was illegal because he was interrogated apart from other witnesses during the investigation presents no grounds for post-conviction relief. State v. Franklin, 1968-NMSC-176, 79 N.M. 608, 446 P.2d 883, cert. denied, 394 U.S. 965, 89 S. Ct. 1318, 22 L. Ed. 2d 566 (1969). Relitigation of issues previously decided. - When a habeas petitioner can show that there has been an intervening change of law or fact, or that the ends of justice would otherwise be served, principles of finality do not bar relitigation of an issue adversely decided on certiorari review; an intervening change in the law occurs when a court announces a new rule, and a court establishes a new rule when its decision is flatly inconsistent with the prior governing precedent and is an explicit overruling of an earlier holding. Dominguez v. State, 2015-NMSC-014. Where State v. Montoya, 2013-NMSC-020, announced a new rule when it explicitly overruled both State v. Dominguez, 2005-NMSC-001 and State v. Gonzales, 1992-NMSC-003, holding that current New Mexico double jeopardy jurisprudence precludes a defendant from being cumulatively punished for both voluntary manslaughter and shooting at or from a motor vehicle resulting in great bodily harm in a situation where both convictions are based on the same shooting of the same victim, habeas petitioner had a right to relitigate his double jeopardy claims that were similar to the double jeopardy claims raised in State v. Montoya. Dominguez v. State, 2015-NMSC-014. No relitigation of admissibility of confession. - Where the issue as to the admissibility of the confession had been earlier decided, it could not be relitigated in post-conviction proceedings. State v. Padilla, 1973-NMSC-049, 85 N.M. 140, 509 P.2d 1335. Defendant must litigate admissibility if presented opportunity. - The defendant has the right to a determination of the voluntariness of confession but a defendant cannot sit idly by and fail to accept an offer by the court for such a hearing and subsequently predicate error in a motion for post-conviction relief on the fact that he did not receive such a hearing. State v. Soliz, 1968-NMSC-101, 79 N.M. 263, 442 P.2d 575. Limited education not grounds for relief. - The claim that defendant was improperly convicted because of his "limited education background" does not state a basis for post-conviction relief. Maes v. State, 1972-NMCA-124, 84 N.M. 251, 501 P.2d 695. The fact that defendant was 20 years of age, had either an eighth or an eleventh grade education, was a mechanic and was not trained in court procedures, presented no issue upon his ability to understand and appreciate what he had done, or upon his capacity to knowingly, intelligently and understandingly waive his rights, which had been so fully explained to him and which he had so consistently stated he understood and therefore afforded no grounds for a post-conviction hearing on relief. State v. Maples, 1970-NMCA-106, 82 N.M. 36, 474 P.2d 718. Claim that defendant was incompetent to stand trial because he was only 22 years old, lacked education and "in a general manner" did not understand the proceedings in the trial court did not provide a basis for post-conviction relief since he could have asked his appointed counsel. State v. Montoya, 1970-NMCA-016, 81 N.M. 233, 465 P.2d 290. Nor limited ability to understand English where counsel present. - Petitioner's claim that he did not understand English well enough to understand the arraignment proceedings at which he entered a guilty plea or the advice of rights given him in English did not provide a basis for post-conviction relief where there was substantial evidence to support a finding of sufficient understanding of English, and where, even if he did not have such sufficient understanding, the record showed that he was represented by counsel at the arraignment proceedings and could have asked his attorney about what he did not comprehend. Mondragon v. State, 1972-NMCA-117, 84 N.M. 175, 500 P.2d 999. Nor insanity where trial court found competency. - Where the trial court found as a fact that they were not suffering from withdrawal symptoms and that they were mentally competent at the time of their plea, there was no factual basis for the claim of insanity at the time of their plea, and no basis for post-conviction relief. State v. Botello, 1969-NMCA-067, 80 N.M. 482, 457 P.2d 1001. When competency properly considered. - Where defendant's motion raised the issue of his competency to plead guilty, and the question had not been previously raised, the question was properly before the court in post-conviction proceeding. State v. Barefield, 1969-NMCA-040, 80 N.M. 265, 454 P.2d 279. Allegations of post-conviction confinement in a mental institution and diagnosis as a psychotic are sufficiently close to the date of his plea to raise a factual issue concerning his competency to plead. State v. Cliett, 1968-NMCA-099, 79 N.M. 719, 449 P.2d 89. Right of confrontation deemed proper issue. - The question of a denial of a transcript of grand jury testimony, and thus of the constitutional right of confrontation, was cognizable under a proceeding pursuant to Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486. But when may not raise issue. - Since proceedings under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) are civil in nature, question whether defendant was denied right of confrontation in pretrial hearing may not be raised for the first time on appeal. State v. Trimble, 1967-NMSC-192, 78 N.M. 346, 431 P.2d 488. Absence of lineup is not basis for post-conviction relief. State v. Jones, 1972-NMCA-170, 84 N.M. 500, 505 P.2d 445. That no police lineup was held and petitioner first faced his accuser at the time of trial in district court provides no basis for post-conviction relief as petitioner had no right to be identified in a lineup. Hernandez v. State, 1970-NMCA-073, 81 N.M. 634, 471 P.2d 204. Nor showing of defendant's photograph in absence of counsel. - The showing of photographs of defendant to witnesses after defendant had been charged and counsel appointed but in absence of counsel was not prejudicial to defendant where witnesses produced clear and convincing evidence that their in-court identifications were not based on having seen the photographs and thus provided no basis for post-conviction relief. State v. Carrothers, 1968-NMCA-049, 79 N.M. 347, 443 P.2d 517. Where illegal extradition not grounds for relief. - An illegal extradition provides no basis for relief as the claim was waived by the guilty plea. State v. Gorton, 1969-NMCA-002, 79 N.M. 775, 449 P.2d 791. It is well established that where a person accused of crime is found within the territorial jurisdiction where he is charged, the jurisdiction of the court where the charge is so pending is not impaired by the fact he was brought from another jurisdiction by illegal means and so defendant has not stated a basis for post-conviction relief. State v. Martinez, 1968-NMSC-097, 79 N.M. 232, 441 P.2d 761. Nor transfer of action from juvenile court. - Petitioner just as effectively waives the shortcomings in the transfer proceedings out of the juvenile court, if they were shortcomings, as he waived his right to counsel, when he did not assert the rights in the district court upon arraignment after counsel had been appointed and they had had an opportunity to consult. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949. Where pretrial publicity not grounds for relief. - Where defendant moved to vacate judgment and sentences pursuant to Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), contending that pretrial publicity in county caused him to enter pleas of guilty, the trial court's finding in denying motion for change of venue, that the publicity given the case had not prejudiced the minds of inhabitants of the county, was conclusive where no abuse of discretion was shown. State v. Barela, 1967-NMSC-185, 78 N.M. 323, 431 P.2d 56. Where insufficient time to prepare case not grounds for relief. - Defendant, who, through his attorney, waived both his statutory right to be furnished a copy of amended information and a preliminary hearing thereon, was not denied equal justice under the law because his trial counsel did not have time to prepare his case and trial court properly denied, without hearing, defendant's motion for post-conviction relief. State v. Sanchez, 1969-NMCA-098, 80 N.M. 688, 459 P.2d 850. C. TRIAL MATTERS. Recantation of testimony. - A petitioner seeking a new trial through a writ of habeas corpus because of recanted testimony must prove, based upon the entire record, including the original trial proceedings at issue, that the recantation is credible and was significant to the original verdict. In assessing the recantation's credibility, the trial court, in addition to weighing the credibility to the witnesses, must consider the following factors, none of which is dispositive by itself: (1) the original verdict was based upon uncorroborated testimony; (2) the recantation is corroborated by additional new evidence; (3) the recantation occurred under circumstances free from suspicion of undue influence or pressure from any source; (4) the record fails to disclose any possibility of collusion between the defendant and the witness between the time of the trial and the retraction; and (5) the witness admitted the perjury on the witness stand and thereby subjected himself or herself to prosecution. To show that a credible recantation was significant, the petitioner must prove that the evidence meets each of the following requirements: (1) it must have been discovered since the trial; (2) it could not have been discovered before the trial by the exercise of due diligence; (3) it must be material; (4) it must not be merely cumulative; (5) it must not be merely impeaching or contradictory; and (6) the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted. Case v. Hatch, 2008-NMSC-024, 144 N.M. 20, 183 P.3d 905. Recantation was not newly discovered evidence. - Where the recantation of a witness was an effort to revert to the original statement the witness gave to the police that the witness did not know anything about the event leading to the victim's death and where the inconsistency of the original statement and the witness's subsequent statement to the police implicating the defendant were the subject of the original trial, the recantation was not newly discovered evidence. Case v. Hatch, 2008-NMSC-024, 144 N.M. 20, 183 P.3d 905. Where instructions by court not grounds for relief. - Where self-defense was not at issue, fundamental error did not occur when the court failed to include the element of unlawfulness in the deliberate-intent murder instruction and when the court failed to explicitly tell the jury that the state had to disprove self-defense beyond a reasonable doubt. State v. Sutphin, 2007-NMSC-045, 142 N.M. 191, 164 P.3d 72. State court's decision not to hold evidentiary hearing is not cognizable as a federal habeas claim. LaVoy v. Snedeker, ____F.Supp.____(D.N.M. 2004 ). Claim based on absence of essential facts in record. - Spanish-speaking defendant's claim regarding the inadequacy of his interpreter was rejected by the court of appeals, based on the absence of essential facts in the record, not because the court examined the evidence and found the issues to be without merit, and defendant was not precluded from pursuing post-conviction relief involving the alleged inadequacy. State v. Gomez, 1991-NMCA-061, 112 N.M. 313, 815 P.2d 166. Issue of speedy trial does not provide basis for post-conviction relief. Salazar v. State, 1973-NMCA-097, 85 N.M. 372, 512 P.2d 700; see also State v. Padilla, 1973-NMSC-049, 85 N.M. 140, 509 P.2d 1335. Where appellant pleaded guilty to one count of robbery, but was not at that time sentenced because an information was immediately filed charging him with being an habitual offender; and where, following a jury verdict with respect to the habitual offender proceeding, appellant was sentenced to life imprisonment; and where supreme court reversed the habitual conviction, but whereas no issue was raised in that case as to appellant's plea of guilty, the reversal did not grant a new trial as to the plea of guilty, so that thereafter the habitual criminal information was dismissed and the court sentenced appellant to a prison term upon the charge to which he had originally pleaded guilty, appellant's motion for post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) asserting a claimed denial of a speedy trial and sentence because of the delay between the guilty plea and the sentence was completely without merit, where he was promptly sentenced after supreme court's decision in the first case and received full credit for the time he had served under the prior illegal sentence. Dalrymple v. State, 1967-NMSC-200, 78 N.M. 368, 431 P.2d 746. Defendant may waive right to speedy trial. - Regardless of the fact that a delay in a particular case might have been construed to be a deprivation of the right to a speedy trial, the defendant cannot be heard to complain in a motion for post-conviction relief if he consented to or acquiesced in the delay. State v. McCroskey, 1968-NMCA-074, 79 N.M. 502, 445 P.2d 105. The entry of a voluntary plea of guilty constitutes a waiver of whatever right a defendant may have had to a speedy trial. State v. McCroskey, 1968-NMCA-074, 79 N.M. 502, 445 P.2d 105. Where joinder of unrelated offenses not sufficient grounds for relief. - As his two offenses were unrelated, defendant asserts that he should have had two separate trials. However, the pleas on the unrelated charges were accepted at the same proceeding and there was no trial as pleas waived trial; therefore, this claim provides no basis for relief. State v. Gorton, 1969-NMCA-002, 79 N.M. 775, 449 P.2d 791. Claims as to jurors. - Appellant's claim that his conviction was illegal because the jurors should have been called and picked, one at a time, and to do otherwise constituted improper impaneling, is frivolous and constitutes no grounds for post-conviction relief. State v. Franklin, 1968-NMSC-176, 79 N.M. 608, 446 P.2d 883, cert. denied, 394 U.S. 965, 89 S. Ct. 1318, 22 L. Ed. 2d 566 (1969). Where defendant contends he was denied trial by an impartial jury because one juror was a personal friend of the prosecutor, but there was no claim that this friendship, if a fact, prejudiced the defendant, the claim does not provide a basis for post-conviction relief. State v. Sharp, 1968-NMCA-073, 79 N.M. 498, 445 P.2d 101. The mere allegation that persons of a certain nationality were not included among jurors trying the case forms no basis upon which to consider it was the result of such scheme or design as necessary to establish prejudice needed to allow post-conviction relief. State v. Martinez, 1968-NMSC-097, 79 N.M. 232, 441 P.2d 761. Failure of state to call witnesses. - Defendant's contention on Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion that in not calling certain witnesses who would have supported defendant's testimony and then in arguing to the jury that the evidence introduced failed to support defendant's testimony, the prosecutor's arguments were misconduct, was without merit where the witnesses, not called at the trial, testified at the post-conviction hearing, but their testimony failed to support defendant's testimony. State v. Hodnett, 1971-NMCA-099, 82 N.M. 710, 487 P.2d 138; see also State v. Hibbs, 1968-NMCA-093, 79 N.M. 709, 448 P.2d 815; State v. Lujan, 1968-NMSC-088, 79 N.M. 200, 441 P.2d 497. Use by state of new witnesses at trial. - The trial court found the state used certain witnesses at the trial who had not testified at the preliminary hearing. This fact provides no legal basis for relief. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005; see also Pena v. State, 1970-NMCA-026, 81 N.M. 331, 466 P.2d 897. Claim concerning credibility of evidence introduced at trial provides no basis for post-conviction relief. State v. Reid, 1968-NMSC-094, 79 N.M. 213, 441 P.2d 742. Claim that the main witness changed his testimony two or three times on the witness stand is an attack on the credibility of the witness and provided no basis for post-conviction relief. Pena v. State, 1970-NMCA-026, 81 N.M. 331, 466 P.2d 897. Claims concerning the credibility of witnesses and the weight to be given their testimony are matters decided by the jury when they convict defendant, and they provide no basis for post-conviction relief. State v. Tapia, 1969-NMCA-066, 80 N.M. 477, 457 P.2d 996. Defendant's motion containing a statement to the effect that material testimony at the trial was false, even if the affidavit be true, does not establish a basis for post-conviction relief, as the defendant has not shown, nor does he assert, that the particular testimony was known to be false by the agents of or counsel for the state. State v. Minns, 1970-NMCA-042, 81 N.M. 428, 467 P.2d 1000. Claim that defendant was convicted on prejudiced testimony states no basis for relief. Andrada v. State, 1971-NMCA-184, 83 N.M. 393, 492 P.2d 1010. Stipulation by counsel. - Where the trial court found that a stipulation, wherein it was agreed that the jury should not be permitted to return a verdict calling for the death penalty, was entered into by counsel for defendant in murder trial as a part of the trial strategy, it should not be made the basis for relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) since there was no prejudice in appellant having been given a trial free from the risks incident to having the jury consider the possibility of imposing death as the penalty, in the event of a verdict of guilty of murder in the first degree. Smith v. State, 1968-NMSC-144, 79 N.M. 450, 444 P.2d 961. Errors committed in overruling objections at trial. - Any error committed in overruling objections made at trial cannot properly be raised in a post-conviction proceeding, under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), where they do not constitute violations of the United States or New Mexico Constitutions, and they are not matters which form a basis for a collateral attack upon the judgment of conviction or the sentence as they are evidentiary matters which may be raised only on a direct appeal. State v. Sisneros, 1968-NMSC-175, 79 N.M. 600, 446 P.2d 875. Whether defendant tried for proper degree of murder. - Whether defendant was properly tried for first-degree murder rather than voluntary manslaughter is a factual question which the jury resolved by its verdict and presents no grounds for relief. State v. Williams, 1967-NMSC-224, 78 N.M. 431, 432 P.2d 396. Where instructions by court not grounds for relief. - The claimed error as to the failure to properly instruct on right of self-defense cannot be raised on a motion for post-conviction relief. State v. Williams, 1969-NMSC-026, 80 N.M. 63, 451 P.2d 556. "Shotgun" or supplementary instruction given by the court some time after the jury had received the case for its deliberations and had failed to reach a verdict does not establish grounds for relief on fundamental error. State v. Travis, 1968-NMCA-036, 79 N.M. 307, 442 P.2d 797. Giving of instruction on self-defense that it is for jury to determine from all of the evidence whether the claim of the defendant that he acted in self-defense is made in good faith or is a mere pretense was not fundamental error which could be raised on motion to vacate judgment. State v. Travis, 1968-NMCA-036, 79 N.M. 307, 442 P.2d 797. Entrapment does not state basis for post-conviction relief after a trial. State v. Dominguez, 1969-NMCA-045, 80 N.M. 328, 455 P.2d 194; State v. Apodaca, 1967-NMSC-218, 78 N.M. 412, 432 P.2d 256; State v. Simien, 1968-NMSC-025, 78 N.M. 709, 437 P.2d 708. Although the supreme court has recognized entrapment as a defense, it clearly pertains to the merits of the cause, it is to be determined at trial and it is subject to review on appeal. A claim of entrapment does not state a basis for post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Losolla, 1968-NMSC-107, 79 N.M. 296, 442 P.2d 786. Where defendant's allegations of conspiracy and entrapment were found by trial court to be unsupported by the record and in conflict with it and that there were no facts on which entrapment could be based, conspiracy and entrapment claims did not state a basis for post-conviction relief. State v. Dominguez, 1969-NMCA-045, 80 N.M. 328, 455 P.2d 194. Sufficiency of evidence does not provide basis for post-conviction relief. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692; State v. Gray, 1969-NMCA-102, 80 N.M. 751, 461 P.2d 233; Herring v. State, 1969-NMCA-117, 81 N.M. 21, 462 P.2d 468; State v. Jacoby, 1971-NMCA-025, 82 N.M. 447, 483 P.2d 502; Andrada v. State, 1971-NMCA-184, 83 N.M. 393, 492 P.2d 1010. Where defendant raises the question of substantial evidence to support the jury's determination of sane at the time of the alleged crime and at the time of trial, defendant's claim is without merit because insufficiency of the evidence is not a basis for granting post-conviction relief. Faulkner v. State, 1972-NMCA-061, 83 N.M. 742, 497 P.2d 744. The claim that defendant did not commit aggravated battery because his victim was not permanently disfigured goes to the sufficiency of the evidence for conviction and is not cognizable in a proceeding under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Question of whether there was substantial evidence to support the verdict of guilty of armed robbery which was affirmed on appeal, could not be raised on a motion under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). Nance v. State, 1969-NMCA-018, 80 N.M. 123, 452 P.2d 192. Allegations as to the insufficiency of the evidence, or claimed errors which may have occurred during trial pertaining to the introduction or failure of introduction of certain evidence, are not matters upon which relief can be granted in a proceeding under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Sedillo, 1968-NMCA-032, 79 N.M. 254, 442 P.2d 212. Fundamental error deemed sufficient for relief. - Where there is a total absence of evidence to support a conviction as well as evidence of an exculpatory nature, there is a duty to apply the doctrine of fundamental error and to reverse the trial court conviction on a post-conviction motion. State v. Salazar, 1967-NMSC-187, 78 N.M. 329, 431 P.2d 62. Scope of fundamental error. - Error that is fundamental must be such error as goes to the foundation or basis of a defendant's rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and no court could or ought to permit the defendant to waive this right, and in determining whether fundamental error exists, each case must stand on its own. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33; State v. Garcia, 1942-NMSC-030, 46 N.M. 302, 128 P.2d 459. Doctrine of fundamental error seldom used. - Insufficiency of the evidence of a degree amounting to fundamental error is resorted to only under exceptional circumstances and is applied as a means of preventing a miscarriage of justice. State v. Jacoby, 1971-NMCA-025, 82 N.M. 447, 483 P.2d 502. Where the innocence of defendant does not appear indisputable, or that the question of his guilt is so doubtful that it would shock the conscience to permit his conviction to stand, the doctrine of fundamental error cannot properly be invoked and applied. State v. Sisneros, 1968-NMSC-175, 79 N.M. 600, 446 P.2d 875. Relief provided where defendant denied constitutional right. - Comment by the prosecution which calls attention to defendant's failure to testify violates the accused's privilege against self-incrimination and when certain constitutional guaranties are denied, overlooked or omitted, the conviction or sentence is not by a "competent" court. This lack of or loss of jurisdiction by the court imposing sentence renders such judgment and sentence subject to collateral attack and sentences subject to collateral attack may be questioned by post-conviction proceedings. State v. Buchanan, 1967-NMSC-267, 78 N.M. 588, 435 P.2d 207. D. POST-TRIAL MATTERS. This rule supersedes any conflicting provisions found in 31-11-6 NMSA 1978, thus no appeal may be taken from a trial court's denial of a post-conviction motion. State v. Garcia, 1984-NMCA-009, 101 N.M. 232, 680 P.2d 613. Nonuniform enforcement of laws not basis for relief. - The statute under which appellant was sentenced applies equally to members of a given class. The fact that the statute may not be enforced diligently, does not give rise to a right which would amount to denial of equal protection and does not provide a basis for post-conviction relief. In other words, equal protection does not entail uniform enforcement. State v. Baldonado, 1968-NMCA-025, 79 N.M. 175, 441 P.2d 215. Citizens are entitled to equal protection of the law but citizens are not entitled to equal protection from the law. The fact that not all criminals are prosecuted is no valid defense to the one prosecuted and cannot provide a basis for post-conviction relief. State v. Baldonado, 1968-NMCA-025, 79 N.M. 175, 441 P.2d 215. Where interference with stay of execution of sentence not grounds for relief. - Where defendant's authorized stay of execution of sentence did not exceed 90 days, any district attorney's "interference" subsequent to the 90-day period would not be a basis for post-conviction relief because defendant was not legally authorized to be out of the penitentiary after the 90 days expired. State v. Deats, 1971-NMCA-136, 83 N.M. 154, 489 P.2d 662. Imposition of sentence authorized by law provides no basis for relief. State v. Hall, 1972-NMCA-065, 83 N.M. 764, 497 P.2d 975; State v. McCain, 1968-NMCA-029, 79 N.M. 197, 441 P.2d 237; Hernandez v. State, 1970-NMCA-073, 81 N.M. 634, 471 P.2d 204; State v. Follis, 1970-NMCA-083, 81 N.M. 690, 472 P.2d 655. Alleged inequality in sentences. - Alleged inequality in sentences for the same offense, if true, does not provide a basis for post-conviction relief. The "equal protection of the law" provisions of the United States and New Mexico Constitutions do not require uniform enforcement of the law and do not protect defendant from the consequences of his crime. State v. Sharp, 1968-NMCA-073, 79 N.M. 498, 445 P.2d 101. Where defendant's absence not grounds for relief. - Appellant argues that the fact that he was not present at the time the district court vacated a portion of its sentence pursuant to our mandate justifies his motion for post-conviction relief; however, as the district court merely eliminated the erroneous portion of the sentence, and the mandate under which appellant is now serving was issued by this court, there was no need for a hearing at all as the trial court merely corrected the record and did not resentence appellant. State v. Lujan, 1968-NMSC-088, 79 N.M. 200, 441 P.2d 497. As to awareness of possible sentences. - Ordinarily an accused should be advised of the maximum possible sentence and the minimum mandatory sentence which can be imposed. This the court did. Although it is true that the court did not expressly state what were the maximum and mandatory minimum sentences which could be imposed, and that the court's statement as to what the sentence would be was not made until after defendant had announced his plea of guilty, but it was made as a part of the arraignment proceedings and before the entry of the judgment of conviction. It is therefore apparent from the record that defendant understood the consequences of a guilty plea, and understood what sentence could and would be imposed and his motion for post-conviction relief must be denied. State v. Knerr, 1968-NMCA-022, 79 N.M. 133, 440 P.2d 808. Where defendant argues that he is entitled to have the judgment of conviction and sentence vacated because the trial judge failed to advise him of the sentence which might be imposed, he must fail in this contention for at least two reasons: first, this question was not presented to the trial court, and, therefore, cannot be raised on appeal; second, the record shows that in a trial court colloquy, defendant's attorney referred to the sentence of three to 25 years, and shortly thereafter the court announced this is what the sentence would be. It was not until 10 years later that defendant first claimed a lack of understanding as to the length of time he could be confined under the sentence which could be and was imposed. State v. Knerr, 1968-NMCA-022, 79 N.M. 133, 440 P.2d 808. When sentence deemed void. - Where a court informs a defendant prior to accepting his plea that a certain number of years is the maximum sentence, this must in fact be the maximum, and resentencing imposing an increased sentence is void upon a post-conviction. Williams v. State, 1970-NMSC-092, 81 N.M. 605, 471 P.2d 175. Forfeiture of good-time credits. - State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294, should not be read as holding or implying that district courts should never analyze whether a forfeiture or termination of good-time credits has been carried out so as to violate an inmate's right to due process. If a petition demonstrates on its face that a forfeiture or termination has been imposed in a manner that departs from or circumvents the statutory and administrative procedures prescribing how such a forfeiture or termination should be effected, the petition may be alleging a deprivation of the petitioner's right to due process that should be addressed by the court; when presented with such a petition the trial court must hold an evidentiary hearing to verify or discredit the petitioner's factual allegations, unless it plainly appears that the petitioner is not entitled to relief as a matter of law, based on: (1) the facts alleged in the petition, including any attachments thereto, or (2) the uncontroverted facts shown by either the court record or the respondent's response to the petition. Brooks v. Shanks, 1994-NMSC-113, 118 N.M. 716, 885 P.2d 637. Where deviation from statutory procedures not grounds 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. Error in remanding cause to trial court. - A claim that the supreme court committed error in remanding this cause to the trial court for a determination of indigency does not state a basis for relief under Rule 93, R. Civ. P. (Dist. Cts.) (now Rule 1-093 NMRA), as these post-conviction proceedings are not intended as a substitute for a motion for rehearing or reconsideration of a decision or order of an appellate court, nor are they intended as a substitute for an appeal from a judgment or decision of a court exercising appellate jurisdiction. Anaya v. State, 1968-NMCA-101, 79 N.M. 755, 449 P.2d 663. Denial of medical treatment. - The cruelty against which the constitution protects a convicted man is cruelty inherent in the method of punishment. Defendant's claim of denial of medical treatment does not provide a basis for relief. State v. Blankenship, 1968-NMCA-026, 79 N.M. 178, 441 P.2d 218. Misconduct of district attorney after conviction. - Contention that the district attorney may have been partially responsible for the divorce obtained by defendant's husband since her conviction and imprisonment has no merit as a basis for relief. State v. Knight, 1967-NMSC-241, 78 N.M. 482, 432 P.2d 838. Questionable arrangement between informer and police. - The question of the legal effect of the arrangement between the informer and the police could not be raised as an issue in the post-conviction proceeding. Nieto v. State, 1968-NMCA-045, 79 N.M. 330, 443 P.2d 500. Motion cannot be employed to question action of warden of the state penitentiary or his interpretation of the judgment, commitment or applicable statute under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Walburt, 1967-NMSC-271, 78 N.M. 605, 435 P.2d 435. E. RIGHT TO COUNSEL; OTHER RIGHTS. Motion under rule preferred procedure. - A defendant may raise the issue of ineffective assistance of counsel by motion under this rule; in fact, motions under this rule appear to be the preferred procedure for addressing such issues. State v. Jordan, 1993-NMCA-091, 116 N.M. 76, 860 P.2d 206. Aggrieved defendant may petition supreme court. - This rule allows a defendant to raise issues that are not of record on direct appeal, such as ineffective assistance of counsel; while the trial court's decisions on such matters are not appealable, an aggrieved defendant may petition the supreme court for certiorari from the denial of the motion under this rule. State v. Jordan, 1993-NMCA-091, 116 N.M. 76, 860 P.2d 206. Where denial of effective counsel entitles petitioner to relief. - An appellant is denied effective assistance of counsel and entitled to post-conviction relief only where the trial is considered a mockery of justice, a sham or a farce. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33. Court appointed counsel has a duty to represent his client until relieved and if a defendant requests counsel to appeal and counsel refuses to do so, this is state action entitling a defendant to post-conviction relief. Maimona v. State, 1971-NMCA-002, 82 N.M. 281, 480 P.2d 171; Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005. Former criminal judgment may be collaterally attacked on denial of counsel grounds by a motion under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Hardy, 1967-NMSC-203, 78 N.M. 374, 431 P.2d 752. Retroactive application of State v. Paredaz. - The holding of State v. Paredaz, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799, that a criminal defense attorney who represents a noncitizen client must advise that client of the specific immigration consequences of pleading guilty to pending charges and that an attorney's failure to do so will be ineffective assistance of counsel if the client was prejudiced applies retroactively to 1990 when New Mexico rules and forms were amended to require attorneys to advise their client about the possible immigration consequences of a guilty plea. Ramirez v. State, 2014-NMSC-023, aff'g 2012-NMCA-057, 278 P.3d 569. Where in 1997, petitioner pleaded guilty to misdemeanors; in 2009, petitioner learned that the guilty pleas rendered petitioner inadmissible to the United States; petitioner's attorney never advised petitioner about any immigration consequences of petitioner's guilty pleas; had petitioner known about the immigration consequences of petitioner's guilty pleas, petitioner would not have pleaded guilty; and petitioner sought to vacate the guilty pleas on the basis of ineffective assistance of counsel, petitioner had a viable claim for withdrawal of petitioner's 1997 guilty pleas based on ineffective assistance of counsel. Ramirez v. State, 2014-NMSC-023, aff'g 2012-NMCA-057, 278 P.3d 569. Lack of advice concerning immigration consequences of plea. - The ineffective assistance of counsel rules stated in State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799 and Padilla v. Kentucky, 130 S.Ct. 1473 (2010), which require criminal defense attorneys to determine the immigration status of their clients and advise non-citizen clients of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain, applies retroactively to cases on collateral review. State v. Ramirez, 2012-NMCA-057, 278 P.3d 569, aff'd, Ramirez v. State, 2014-NMSC-023. Where petitioner filed a writ of coram nobis requesting the court to vacate petitioner's 1997 misdemeanor convictions for possession of marijuana and drug paraphernalia, and concealing identity; petitioner was facing definite deportation at the time petitioner plead guilty to the charges; and petitioner's counsel failed to advise petitioner about any immigration consequences of pleading guilty and petitioner was prejudiced by that, petitioner should have been advised, as required by State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799 and Padilla v. Kentucky, 130 S.Ct. 1473 (2010), that deportation would almost certainly result from petitioner's convictions and because petitioner established ineffective assistance of counsel and prejudice, petitioner should have an opportunity to withdraw the guilty plea. State v. Ramirez, 2012-NMCA-057, 278 P.3d 569, aff'd, Ramirez v. State, 2014-NMSC-023. Counsel's trial tactics not grounds for relief. - Counsel's decision not to allow defendant to testify, to call witnesses or to seek a change of venue are trial tactics and not the basis for relief. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33. Claim that counsel did not adequately cross-examine witnesses for the state provides no basis for relief. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005. 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. An attorney of record has the exclusive power and control with respect to procedural and remedial matters over the litigation with which he is charged. State v. Ramirez, 1970-NMCA-010, 81 N.M. 150, 464 P.2d 569. Where defendant's counsel refused to contest the juror who allegedly was the prosecutor's friend, and when objecting, failed to inform the court as to the basis of his objection, these are claims as to counsel's conduct of the trial, and they are not claims that defendant's trial was a sham or mockery of justice. These claims do not provide a basis for post-conviction relief. State v. Sharp, 1968-NMCA-073, 79 N.M. 498, 445 P.2d 101. Failure to advise of all possible defenses. - The failure of an attorney to advise a defendant of all possible defenses is no basis for post-conviction claim of incompetency of counsel. Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407. Joint representation of defendants. - Joint representation of defendants is not inherent error; it is error only if there was a conflict of interest or if prejudice resulted. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93. Where defendant and codefendant were tried jointly and convicted for murder, defendant's assertion on motion for post-conviction relief that he was denied effective counsel on basis of conflict between interests of the two defendants due to fact that codefendant did the actual killing while defendant was convicted of aiding and abetting, and due to variations in their confessions concerning details of the crime, was without merit where trial court's unattacked finding was that confessions were consistent with one another, and that information concerning defendant in the confession of codefendant was cumulative only, and did not prejudice defendant. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93. Advice to plead guilty. - The fact that his counsel advised defendant to plead guilty did not establish incompetence and did not provide a basis for post-conviction relief. State v. Montoya, 1970-NMCA-016, 81 N.M. 233, 465 P.2d 290. The bare fact that counsel advised appellant to plead guilty to one count rather than to risk the consequences of conviction of other charges does not indicate ineffectual representation by counsel nor provide a basis for post-conviction relief. The plea by the appellant may well have been most beneficial to him. State v. Pavlich, 1969-NMSC-155, 80 N.M. 747, 461 P.2d 229. Advice to defendant to testify. - Advice to testify does not raise an issue as to whether the proceedings were a sham or mockery and provides no basis for post-conviction relief. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005. Shortness of time spent with defendant. - The amount of time counsel spent with defendant prior to the hearing provides no basis for post-conviction relief as the competence and effectiveness of counsel cannot be determined by the amount of time counsel spent or failed to spend with defendant. Maimona v. State, 1971-NMCA-002, 82 N.M. 281, 480 P.2d 171. If it is being suggested that, by reason of the limited time within which to confer with counsel, the defendant was thereby denied the effective assistance of counsel, entitling him to post-conviction relief, he must fail in this suggestion; first, because of his voluntary plea of guilty to the charge, and second, because the competence and effectiveness of counsel cannot be determined by the amount of time counsel spent or failed to spend with defendant. State v. Knerr, 1968-NMCA-022, 79 N.M. 133, 440 P.2d 808. The competence of court-appointed counsel at probation revocation hearings could not be determined by the amount of time he spent or failed to spend with the accused. Such an allegation, therefore, did not constitute grounds upon which relief could be granted under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). The failure of an attorney to confer with his client, without more, could not establish the incompetence of that attorney. State v. Brusenhan, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174. Failure to give certain advice. - Defendant's post-conviction claim that he was denied adequate counsel because his attorney had failed to advise him that the judge who resentenced him could be precluded from sitting, since that judge had been district attorney at original criminal proceedings, was without merit where defendant was aware that the judge had been prosecuting attorney, had been so informed by both the judge and his attorneys, and had specifically consented to the judge. State v. French, 1970-NMSC-159, 82 N.M. 209, 478 P.2d 537. That counsel did not advise defendant he could appeal as an indigent provides no basis for relief. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005. Defendant's bare claim that counsel did not advise him that he could appeal, in the absence of any other showing, does not set forth a basis for post-conviction relief. Chavez v. State, 1969-NMCA-085, 80 N.M. 560, 458 P.2d 812. Inexperience of counsel. - Where defendant's counsel admitted that he was inexperienced in criminal practice to the extent that he could not competently represent this petitioner; this general claim, not being supported by specific factual allegation, does not provide a basis for post-conviction relief. State v. Sharp, 1968-NMCA-073, 79 N.M. 498, 445 P.2d 101. Assertion of pro forma representation. - The mere assertion that attorney was "pro forma rather than zealous and active" provides no basis for relief. State v. Gonzales, 1969-NMCA-028, 80 N.M. 168, 452 P.2d 696. Denial of request for change of attorney. - The claim that defendant's request for a change of attorney was denied, in itself, was insufficient to support motion for post-conviction relief. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Dissatisfaction with results of counsel. - Dissatisfaction with the 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. Complaint concerning inadequacy of representation by counsel furnishes no basis for relief. State v. Lobb, 1968-NMSC-021, 78 N.M. 735, 437 P.2d 1004. Defendants must cooperate with counsel. - Where defendants refused to cooperate with appointed counsel they cannot now complain about the consequences of their actions and, therefore, their motion for post-conviction relief was appropriately denied. Bobrick v. State, 1972-NMCA-048, 83 N.M. 657, 495 P.2d 1104. Burden of showing incompetency of counsel is on appellant. Smith v. Ninth Judicial Dist., 1967-NMSC-229, 78 N.M. 449, 432 P.2d 414. Defendant's burden. - Absent infidelity on the part of his attorney, a defendant should not be permitted to urge the ignorance or incompetence of, or mismanagement by, his attorney as a ground for a new trial, unless there be a strong showing of both incompetence and prejudice. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258. Where alleged mixed allegiance of counsel not grounds for relief. - Defendant's claim that he was entitled to a new trial as a matter of law because, when he was tried, his former defense attorney was an employee of the district attorney's office which prosecuted the case did not provide a basis for relief, where an appearance of unfairness was dissipated by an evidentiary hearing which showed that the attorney in question had nothing to do with the trial of defendant's case, never entered the courtroom when the case was tried, never talked or consulted with the prosecutor and lent no assistance in the prosecution. State v. Mata, 1975-NMCA-135, 88 N.M. 560, 543 P.2d 1188 (Ct. App. 1975). When lack of counsel not grounds for relief. - Motion for post-conviction relief was properly denied because it stated no basis for post-conviction relief as defendant's claim that he was not furnished counsel at the juvenile transfer proceeding, nor advised of any right to counsel in that proceeding, was invalid as such a right can be, and here was, waived. State v. Gallegos, 1971-NMCA-067, 82 N.M. 618, 485 P.2d 374, cert. denied, 82 N.M. 601, 485 P.2d 357. Where defendant was given a hearing to ascertain if his confession was in fact involuntary on his Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion and the trial court found the statement or confession was voluntary, the fact that he was not furnished counsel prior to giving the statement is not a basis for setting aside his conviction. Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407 (1971). Where both the justice of the peace (magistrate) and the district court advised defendant that, if indigent, counsel would be appointed to represent him and defendant affirmatively waived counsel in both courts and the district court questioned defendant extensively as to his understanding of the charges, the penalties if convicted, his various rights including the right to counsel, to a jury trial and to an appeal if found guilty, defendant's motion for post-conviction relief on the grounds of lack of counsel was denied as defendant effectively waived his right to counsel. State v. Martin, 1969-NMCA-079, 80 N.M. 531, 458 P.2d 606. As defendant was financially able to procure counsel and he was informed at the time of arraignment of his right to counsel in his defense, and, further, that counsel would not be appointed for him, his appearance pro se does not present grounds to overturn his conviction on a post-conviction motion. Anaya v. State, 1968-NMCA-101, 79 N.M. 755, 449 P.2d 663. Where petitioners were neither advised of their right to counsel nor given counsel during the juvenile proceedings, but counsel was appointed to represent them in the district court, and did represent them at a preliminary hearing and at their arraignment in the district court where, with the advice of counsel, they each entered pleas of guilty to murder in the second degree and no objection was then made concerning the failure to provide counsel at the juvenile waiver hearing, the entry of a plea at the arraignment in the district court, with the advice of counsel and without objection to the failure to provide counsel at the juvenile hearing, constitutes an effective waiver of the right to counsel at such juvenile proceeding and provides no basis for post-conviction relief. State v. Salazar, 1968-NMSC-171, 79 N.M. 592, 446 P.2d 644. The supreme court has repeatedly held that the right to have a preliminary hearing may be and is waived upon entry of a plea in the district court. And, as the preliminary hearing can be thus waived, the right to counsel at the preliminary hearing can likewise be waived, when competently and intelligently done, and so the defendant has stated no basis for post-conviction relief. State v. Sanders, 1968-NMSC-169, 79 N.M. 587, 446 P.2d 639. Where defendant upon being brought before the magistrate, was advised of his right to counsel and he then expressly waived such right and likewise waived preliminary hearing, defendant cannot later assert a right to post-conviction relief in this proceeding on the ground that counsel was not provided for him. State v. Baumgardner, 1968-NMCA-047, 79 N.M. 341, 443 P.2d 511. Absent a showing of prejudice, plea of guilty constituted a waiver of the claim that defendant was denied counsel in proceedings prior to arraignment and the defendant is not entitled to post-conviction relief. State v. McCormick, 1968-NMSC-053, 79 N.M. 22, 439 P.2d 239. 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. In case where sentencing court repeatedly cautioned appellant concerning gravity of habitual criminal charge, and where appellant's answers to questions by the court were by his own admission voluntarily given and where each of the prior convictions was freely acknowledged, the waiver of counsel was intelligently made, the appellant was not deprived of due process and, therefore, the district court's denial of the motion to vacate sentence made under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) was correct. State v. Coates, 1967-NMSC-199, 78 N.M. 366, 431 P.2d 744. Rules applicable for overcoming waiver where a plea of guilty is entered were announced in Moore v. Michigan, 355 U.S. 155, 78 S. Ct. 191, 2 L. Ed. 2d 167 (1957), where it was held that petitioner had the burden of showing by a preponderance of the evidence that he did not intelligently and understandably waive his right to counsel and a finding of waiver is not lightly to be made. State v. Lopez, 1968-NMSC-098, 79 N.M. 235, 441 P.2d 764. No hard and fast rule can be laid down as to what must be stated in each case in order to adequately explain a prisoner's rights before permitting him to waive counsel. Each case must be decided on its own peculiar facts which shall include consideration of the background, education, training, experience and conduct of the defendant and should proceed as long and as thoroughly as the circumstances demand. State v. Lopez, 1968-NMSC-098, 79 N.M. 235, 441 P.2d 764. When lack of advice as to rights not grounds for relief. - The lack of advice as to petitioner's rights, without a showing of prejudice, provides no basis for post-conviction relief. Hernandez v. State, 1970-NMCA-073, 81 N.M. 634, 471 P.2d 204. Where defendant's assertions that he was not advised of his right to remain silent; that he was at no time afforded counsel; that he signed a statement without assistance of counsel; and that the district attorney's office advised him as to what to do when he entered his plea were not sustained by the record, the claims stated no basis for relief. State v. King, 1970-NMCA-124, 82 N.M. 200, 477 P.2d 1015. Claims that accused was not advised of his rights when arrested, that he was interrogated without having the assistance of counsel, that he did not have counsel at his preliminary hearing and that no attorney was appointed to represent him until weeks after the preliminary hearing provided no basis for post-conviction relief because there was no contention that accused was in any way prejudiced by the lack of advice as to his constitutional rights, by the absence of counsel or the delay in appointment of counsel. Pena v. State, 1970-NMCA-026, 81 N.M. 331, 466 P.2d 897. Whether defendant had been advised prior to making the statement or confession of his right to remain silent and of his right to counsel were issues of fact submitted to the trial court upon defendant's motion to suppress the statement. The same issues were again submitted to the jury at the trial upon the indictment. Defendant is not entitled to a retrial of these issues of fact in a post-conviction proceeding. State v. Gray, 1969-NMCA-102, 80 N.M. 751, 461 P.2d 233. Mere failure of police to advise accused of his rights to counsel and to remain silent, without any showing of prejudice, constitutes no basis for relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Bryant, 1968-NMCA-081, 79 N.M. 620, 447 P.2d 281, cert. denied, 79 N.M. 688, 448 P.2d 489. Claim must show prejudice to defendant. - As defendant does not claim that he was prejudiced by the alleged failure to advise him of his right to counsel, his claim is only that such advice was not given; this, therefore, provides no basis for relief. State v. Gorton, 1969-NMCA-002, 79 N.M. 775, 449 P.2d 791. Guilty plea may bar hearing on denial of rights. - Defendant, who voluntarily pleaded guilty, was not entitled to a post-conviction hearing under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), for the purpose of determining whether or not the state obtained evidence, which warranted the filing of the complaint, as a result of a claimed questioning of him contrary to his constitutional rights to remain silent and to the aid of counsel. State v. Brewster, 1968-NMSC-035, 78 N.M. 760, 438 P.2d 170. III. DELAYED OR SUCCESSIVE MOTIONS AND DIRECT APPEAL ISSUES. A. IN GENERAL. The doctrine of laches does not apply in habeas corpus. State v. Sutphin, 2007-NMSC-045, 142 N.M. 191, 164 P.3d 72. Per se fundamental error. - It is per se fundamental error for aggravated battery to be used as an alternative predicate for felony murder and a habeas corpus petitioner may assert the error even if the issue could have been raised on appeal. Campos v. Bravo, 2007-NMSC-021, 141 N.M. 801, 161 P.3d 846. Denial of motion not ban to subsequent motions. - Objection to the request for amendment of a Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion was based on untimeliness and because the state was not prepared to meet the matters sought to be raised. The trial court's denial of the motion was without prejudice to the filing of a subsequent motion asserting the same grounds. Appellant is not foreclosed from filing a new motion based on matters he sought to include by way of amendment. State v. Hodnett, 1968-NMCA-104, 79 N.M. 761, 449 P.2d 669. B. GROUNDS COULD HAVE BEEN RAISED ON APPEAL. A habeas corpus petitioner may assert fundamental error even if the claim could have been raised on appeal. State v. Sutphin, 2007-NMSC-045, 142 N.M. 191, 164 P.3d 72. No review of issues not raised on appeal. - Defendant may not obtain review in a post-conviction proceeding of issues that could have been raised on appeal. State v. Martinez, 1973-NMCA-088, 85 N.M. 293, 511 P.2d 779. Post-conviction proceedings are not a method of obtaining consideration of questions which might have been raised on appeal, and as defendant did not raise these issues on his direct appeal, he may not properly raise them in post-conviction proceedings. State v. Lee, 1972-NMCA-047, 83 N.M. 655, 495 P.2d 1102; see also, State v. Sedillo, 1972-NMCA-134, 84 N.M. 293, 502 P.2d 318. Defendant may not raise claims for first time in motion for post-conviction relief. State v. Sharp, 1968-NMCA-073, 79 N.M. 498, 445 P.2d 101. No relief given. - Relief predicated upon Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) cannot be obtained upon grounds which could have been, but were not, raised on direct appeal. State v. Gillihan, 1974-NMSC-060, 86 N.M. 439, 524 P.2d 1335. Case is affirmed where the matters urged for reversal are ones which have already been decided or should have been submitted to the court of appeals on the original appeal. State v. Manlove, 1973-NMCA-109, 85 N.M. 438, 512 P.2d 1274. Even where constitutional rights involved. - Where defendant did not appeal from his original conviction, and is later seeking release from prison under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), his contention that he was denied his constitutional right to a fair and impartial trial due to the remarks and actions of the trial judge in connection with prospective and excused jurors on the issue of impartiality is without merit because this issue should have been raised on appeal following the original trial and is not a proper subject for an appeal under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Hall, 1972-NMCA-065, 83 N.M. 764, 497 P.2d 975. Error in preliminary hearing. - The question of error in a preliminary hearing is foreclosed by failure to take an appeal from original conviction. State v. Anderson, 1973-NMCA-078, 84 N.M. 786, 508 P.2d 1019. Errors at trial. - Proceedings under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) are not intended as a substitute for an appeal as a means for correcting errors which may have occurred during the course of the trial, and neither is a post-conviction proceeding a method by which one can obtain consideration of questions which might have been raised on appeal. State v. Beachum, 1972-NMCA-023, 83 N.M. 526, 494 P.2d 188. Sufficiency of evidence questioned. - Even if defendant had been found guilty after a trial, post-conviction proceedings are not a method for obtaining a retrial of his case, and thus, insufficiency of the evidence is not a basis for granting post-conviction relief. State v. Bonney, 1971-NMCA-041, 82 N.M. 508, 484 P.2d 350. Where defendant's contention that there was no substantial evidence upon which the verdict of the jury could be based was not raised in the original appeal, it could not be considered on motion for post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), since ordinarily such proceedings could not be used as a substitute for an appeal. State v. Clark, 1972-NMCA-112, 84 N.M. 150, 500 P.2d 435. Defendant's claim that the district attorney's action in changing charges indicated that he had no case against defendant could only be construed as an allegation of lack of substantial evidence to sustain his conviction. Such allegation, even if proven, would suggest error that could be remedied on direct review and not in a post-conviction proceeding. A post-conviction proceeding was neither a substitute for an appeal nor a method by which to obtain consideration of questions which might have been raised on appeal. State v. Sanchez, 1969-NMCA-098, 80 N.M. 688, 459 P.2d 850. Court's inquiry as to numerical division within the jury was not error. - Where defendant was charged with several counts of criminal sexual contact of a minor and aggravated indecent exposure; the jury informed the court that the jury could not reach a unanimous decision on any of the charges; the court asked the foreman to give a numerical breakdown of the division within the jury, without disclosing which way the vote was going; the court asked whether further deliberations would result in a verdict on any of the counts; the foreman stated that the jury might be able to reach a verdict on one count; the court sent the jury back for further deliberations; and the jury returned a guilty verdict on one count of criminal sexual contact of a minor, the court did not err in asking the jury for a numerical breakdown and in directing the jury to continue its deliberations. State v. Romero, 2013-NMCA-101, cert. denied, 2013-NMCERT-009. Voluntariness of defendant's statement. - At the trial it was determined that defendant's statement was freely and voluntarily made. If this determination was in error, it could have been corrected on direct review. Defendant's direct appeal was dismissed at his own request. A post-conviction proceeding is not a method of obtaining a retrial of the case or a consideration of questions which might have been raised on appeal. State v. Reid, 1968-NMSC-094, 79 N.M. 213, 441 P.2d 742. Knowledge of right to appeal. - Where defendant's motion for post-conviction relief claimed that the record was silent as to whether he was advised of his right to appeal, that he did not waive the right to be represented by counsel on appeal and that he did not waive the right to appeal, none of the claims made in the motion amounted to an assertion that defendant ever asked for or even desired an appeal. Therefore post-conviction relief was not afforded because an appeal was not taken, and there was no denial of such right by the state. State v. Montoya, 1970-NMCA-016, 81 N.M. 233, 465 P.2d 290. Legality of detention and escape. - Neither the assertion that he was illegally detained nor the claim that at the time of the alleged escape he was not guarded and assumed he could go home, presents a proper issue for post-conviction relief. These are matters for consideration on appeal. Proceedings under Rule 93, N.M.R. Civ. P. (former Rule 1-093 NMRA) are not a substitute for appeal. State v. Martinez, 1968-NMSC-097, 79 N.M. 232, 441 P.2d 761. While new evidence not to be asserted. - Petitioner's claim in a fifth post-conviction motion that his daughters were physically absent and had never been in the state prior to and including the dates of the incest offenses of which he was convicted, along with a claim of ineffective assistance of counsel based on the alleged facts regarding the daughters' absence, were matters which could have been raised on direct appeal, and not being claims of fundamental error, did not state a basis for post-conviction relief. Cisneros v. State, 1975-NMCA-109, 88 N.M. 368, 540 P.2d 848. 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. Settled issues not to be relitigated. - Where the record shows that the issue of seizure of the item was raised and ruled on against defendant at his 1958 trial, defendant cannot relitigate that issue in a post-conviction proceeding. Salazar v. State, 1971-NMCA-076, 82 N.M. 630, 485 P.2d 741. Relief available if fundamental deprivation of fairness. - Post-conviction relief is available, regardless of whether the issue could have been raised on direct appeal, if the defendant has been fundamentally deprived of a fair trial. State v. Hall, 1972-NMCA-065, 83 N.M. 764, 497 P.2d 975; State v. Williams, 1969-NMSC-026, 80 N.M. 63, 451 P.2d 556. Ordinarily post-conviction proceedings are not intended to be utilized as a substitute for appeal as a means of correcting error occurring during the course of trial even though the errors relate to constitutional rights. It is only where there has been a denial of the substance of fair trial that the validity of the proceeding may be attacked collaterally. State v. Garcia, 1969-NMSC-017, 80 N.M. 21, 450 P.2d 621. 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. Right to appeal not affected by motion. - The fact that defendant filed a Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion does not affect his right to a direct appeal. State v. Reyes, 1968-NMSC-182, 79 N.M. 632, 447 P.2d 512. C. PREVIOUS CONSIDERATION ON APPEAL OR HABEAS CORPUS. No reconsideration of matters already appealed. - A Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion may not be used to reconsider matters previously considered on appeal. State v. Clark, 1972-NMCA-112, 84 N.M. 150, 500 P.2d 435. Defendant may not properly convert a proceeding under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) into another review of matters previously considered on appeal. Miller v. State, 1970-NMCA-112, 82 N.M. 68, 475 P.2d 462. Issues considered and found without merit on appeal may not be relitigated in post-conviction proceeding. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93; Herring v. State, 1969-NMCA-117, 81 N.M. 21, 462 P.2d 468. Where no new facts or law. - Where defendant does not claim, allege or argue the discovery of new facts or the pronouncement of new law, issues raised and decided on a prior appeal may not be relitigated in post-conviction proceedings. Nance v. State, 1969-NMCA-018, 80 N.M. 123, 452 P.2d 192. Not method to obtain retrial of case. - A Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion may not be used to reconsider matters considered on appeal, nor a method of obtaining a retrial of a case or considerations of questions which would have been raised on appeal. State v. Blackwell, 1968-NMSC-089, 79 N.M. 230, 441 P.2d 759. Even if cognizable issue. - Even if the sufficiency of the evidence is a cognizable issue in post-conviction proceedings, it cannot be relitigated after having been previously decided on appeal. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692. Review proper if change in law governing error. - The trial court's denial of defendant's post-conviction motion on the ground that the issue of the denial of the grand jury minutes had been considered on the prior appeal is in error since although Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) is not intended to allow collateral review of claimed error which has already been raised and decided on direct appeal, in cases where there has been a change in the law governing the error, such a review is proper. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486. No hearing on matters decided adversely in habeas corpus proceeding. - The defendant is not entitled to a successive determination on the merits of contentions previously held against him in the habeas corpus proceeding. State v. Sisneros, 1968-NMSC-175, 79 N.M. 600, 446 P.2d 875. Where petitioner unsuccessfully sought relief through habeas corpus in this court on the same grounds advanced in the court below, although not res judicata, he is not entitled to again seek relief on the identical grounds as a matter of right. State v. Sisk, 1968-NMSC-087, 79 N.M. 167, 441 P.2d 207. When grounds substantially similar. - Where defendant filed a motion to vacate judgment and sentence, pursuant to Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), alleging substantially the same grounds as contained in denied habeas corpus petition, the trial court order denying the motion was correct. State v. Thompson, 1969-NMSC-037, 80 N.M. 134, 452 P.2d 468. No new grounds raised. - 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. D. GROUNDS NOT RAISED BEFORE APPEAL OR MOTION. Hearing on claims denied unless raised at trial. - Claim that the trial record is not truthful, based on defendant's view of his trial and his view as to what witnesses knew and testified about, was not raised before the trial court, and would not be considered for the first time in post-conviction proceeding. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. The claim of an illegal search and the claim that pictures of the room where the crime occurred were illegally obtained were insufficient where the circumstance of the alleged illegal search and seizure was known to defendant at trial and should have been raised there rather than on motion for post-conviction relief. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. The admissibility of illegally obtained evidence is not an issue reviewable under this rule, if the circumstances of the search and seizure were fully known to defendant at the time of trial. State v. Rodriguez, 1971-NMSC-098, 83 N.M. 180, 489 P.2d 1178. Prior to trial. - A claimed lack of a speedy trial does not provide a basis for post-conviction relief where the claim was not raised prior to trial. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93. A claim of denial of the right to a speedy trial is not sufficient basis for a collateral attack by post-conviction proceedings upon a judgment and sentence, and especially so if the claim was not raised at or prior to the time of trial or entry of a plea of guilty. State v. McCroskey, 1968-NMCA-074, 79 N.M. 502, 445 P.2d 105. Defendant's contentions that he was denied due process because he was held in custody for 20 days prior to the preliminary hearing; that he was not advised of his rights nor granted counsel during this period; that no attorney was appointed until after the preliminary hearing; and that the bail set was excessive and unreasonable are invalid. By proceeding to trial, he effectively waived his right to object to prior defects in the proceedings. State v. Blackwell, 1968-NMSC-089, 79 N.M. 230, 441 P.2d 759. At any time prior to filing of motion. - Failure to object to the statements of the prosecutor at the time they were made, before the jury retired or, in fact, at any time prior to the filing of this motion will foreclose defendant from seeking relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Gillihan, 1974-NMSC-060, 86 N.M. 439, 524 P.2d 1335. No prejudice for failure to raise competency before trial court. - If one is mentally incompetent, then, by definition, he cannot be expected to raise that contention before the trial court and thus cannot be prejudiced by his failure to do so, as it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803. E. SUCCESSIVE MOTIONS. It is within court's discretion to grant or deny successive motions to vacate conviction. State v. Lobb, 1968-NMSC-021, 78 N.M. 735, 437 P.2d 1004; Lott v. State, 1967-NMSC-073, 77 N.M. 612, 426 P.2d 588. No bar where no hearing on first motion. - Defendant was not barred from having a second motion for post-conviction relief heard where no hearing had been held in which the issues of the first Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion could have been litigated and determined. State v. Patton, 1970-NMCA-105, 82 N.M. 29, 474 P.2d 711. A second or successive motion may be refused only if the prior denial rested on an adjudication of the merits of the ground presented in the subsequent application. State v. Blankenship, 1968-NMCA-026, 79 N.M. 178, 441 P.2d 218. Only when an evidentiary hearing has been held or the matters asserted are otherwise determined on their merits can a second motion be denied under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) wherein the court is relieved of the duty to entertain successive motions for similar relief. State v. Lobb, 1968-NMSC-021, 78 N.M. 735, 437 P.2d 1004. 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. Nor if new grounds asserted. - Where defendant's motion was based on grounds different from the ground asserted in his first motion, the basis for denying his second motion was improper. State v. Blankenship, 1968-NMCA-026, 79 N.M. 178, 441 P.2d 218. Where the 1969 motion attacked the legality of the 1959 conviction and the 1967 motion related to defendant's admission that he was the person convicted in 1959 and to his subsequent waiver of a right to trial on that issue, the trial court's denial of the 1969 motion without a hearing upon the ground that the allegation of that motion is the same as in the 1967 motion is error. State v. Chavez, 1970-NMCA-041, 81 N.M. 427, 467 P.2d 999. Benefit of doubt to defendant. - 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. While within court's discretion to redetermine issues. - Even if the prior application was rejected on the merits on the same ground, it is within the sound discretion of the court to permit a redetermination of those issues if the ends of justice would thereby be served. State v. Canales, 1967-NMSC-221, 78 N.M. 429, 432 P.2d 394 . But burden on defendant to show justice of redetermination. - The burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on 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. And coram nobis proceeding deemed prior motion. - Claim for post-conviction relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), upon the same grounds as a claim for such relief in a coram nobis proceeding, constitutes a second or successive motion for similar relief within the meaning of that rule. State v. Canales, 1967-NMSC-221, 78 N.M. 429, 432 P.2d 394. F. GROUNDS COULD HAVE BEEN RAISED ON PRIOR MOTIONS. Grounds omitted from previous motions deemed waived. - Where the denial of petitioner's first motion for post-conviction relief was affirmed, and the contention made in the second motion could have been raised in the first motion, such grounds omitted in the prior proceedings are deemed waived. Faulkner v. State, 1974-NMCA-108, 86 N.M. 715, 526 P.2d 1308. Unless fundamental error present. - Grounds for relief asserted in second or successive post-conviction proceedings will not be considered if those grounds could have been asserted in prior proceedings unless these grounds constitute fundamental error, which is error which goes to the foundation or basis of a defendant's rights, or error which goes to the foundation of the case, or error which takes from defendant a right which was essential to his defense. Cisneros v. State, 1975-NMCA-109, 88 N.M. 368, 540 P.2d 848. IV. FORM OF MOTION; TRANSCRIPT. No error to deny request for transcript. - Assertion that the trial court erred in denying defendant's request for a transcript of the trial did not state a basis for post-conviction relief. Ewing v. State, 1969-NMCA-080, 80 N.M. 558, 458 P.2d 810. Where no evidence transcript would aid appellant. - Where appellant failed to particularize or to set forth any factual basis and made no attempt to show how the transcript of the trial would have aided in the presentation of his claims of error, which is essential before any of these issues may be considered in a motion under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), the trial court did not err in refusing to provide a transcript. State v. Hodnett, 1968-NMCA-104, 79 N.M. 761, 449 P.2d 669. Where there was nothing on which to base relief and no attempt to show how the transcript of the trial would have aided in the presentation of the claims of error, the trial court did not err in refusing to provide a transcript. State v. Reid, 1968-NMSC-094, 79 N.M. 213, 441 P.2d 742. Or where errors raised on matters outside record. - The trial court correctly denied a complete transcript where the errors raised by the motions dealt with matters outside the record or with issues which were not the proper subject for consideration under motion for post-conviction relief. State v. Martinez, 1968-NMSC-097, 79 N.M. 232, 441 P.2d 761. And not denial of equal protection. - The refusal of the trial court to provide defendant with a free transcript does not deny him equal protection of the laws as guaranteed by the United States Constitution. State v. Brewton, 1973-NMCA-037, 84 N.M. 763, 508 P.2d 33. Because no constitutional right to copy of transcript. - Absent a showing of special circumstances, defendant had no federal constitutional right to a copy of the transcript for use in preparation of a motion for post-conviction relief or a petition for habeas corpus. State v. Toussaint, 1973-NMCA-027, 84 N.M. 677, 506 P.2d 1224. V. MOTION TO BE SPECIFIC. General conclusions without supporting facts deemed insufficient. - A defendant who seeks post-conviction relief must allege some specific factual basis for the relief sought and not vague conclusional charges. State v. Anderson, 1973-NMCA-078, 84 N.M. 786, 508 P.2d 1019. Claim that attorney failed to object to testimony of the state's witnesses, as alleged by the defendant, constitutes a general claim and is not substantiated by specific facts which would serve as a basis for post-conviction relief. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33. Defendant's conclusionary charges that his constitutional rights were violated in the revocation of suspended sentence proceedings are insufficient to provide a basis for post-conviction relief. State v. Carr, 1973-NMCA-118, 85 N.M. 463, 513 P.2d 397. A motion for post-conviction relief based solely upon conclusions with no supporting factual base does not state a basis for relief as there must be adequate allegations to support any conclusory statement; it is insufficient to allege that threats and coercion occurred and nothing more. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33. As defendant has failed to allege a specific factual basis sufficient to raise the issue of fundamental error, such relief as prayed for pursuant to Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), may not be granted. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33. An allegation of denial of effective assistance of counsel or that trial counsel was incompetent must be supported by allegations in the petition stating why counsel's representation was such that defendant's trial was a sham, farce or mockery, lest the court not know whether defendant's claims fall within the cases where post-conviction relief has been denied where the claim was incompetent counsel. State v. Anderson, 1973-NMCA-078, 84 N.M. 786, 508 P.2d 1019. Assertion that defendant was coerced into taking the stand where there were no allegations as to the facts of the alleged coercion was too vague to provide a basis for post-conviction relief. State v. Lee, 1972-NMCA-047, 83 N.M. 655, 495 P.2d 1102. Assertion that aggravation of the offense was prompted by discrimination against defendant because of his Mexican heritage did not present a claim since it was not set forth with adequate specificity or factual basis to afford relief. Andrada v. State, 1971-NMCA-184, 83 N.M. 393, 492 P.2d 1010. Claim that the trial judge was prejudiced in that he condoned and allowed perjury was a conclusion and too vague, and therefore insufficient to support a motion for post-conviction relief. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Defendant's post-conviction claim that his counsel was incompetent because he failed to bring "perjury" to the attention of the trial judge, apart from the vagueness of the claim, was insufficient in that it is not contended that counsel knew of the alleged "perjury". State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Claim that the jury was incompetent and predetermined on a guilty verdict was insufficient to support claim for post-conviction relief because it was a conclusion and too vague. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Defendant's claims that he was inadequately represented by his court-appointed counsel which alleged no factual basis in support of his conclusions did not state a basis for post-conviction relief. State v. Dominguez, 1969-NMCA-045, 80 N.M. 328, 455 P.2d 194. Since there were no specific factual allegations on which to base a claim that defendant's constitutional rights were violated and that defendant was subjected to double jeopardy and as only conclusory allegations were stated, there is no basis for relief. State v. Jacoby, 1971-NMCA-025, 82 N.M. 447, 483 P.2d 502. Conclusory claims that defendant was held under excessive bail are too vague to provide a basis for post-conviction relief. State v. Jacoby, 1971-NMCA-025, 82 N.M. 447, 483 P.2d 502. Where defendant did not factually support his claims that by harassment and trickery his guilty plea was induced, his claims were factually insufficient and, therefore, too vague to state a basis for post-conviction relief. State v. Martinez, 1970-NMCA-110, 82 N.M. 51, 475 P.2d 51. Where defendant has not shown how he was prejudiced, his contention cannot form a basis for post-conviction relief. State v. Ortega, 1970-NMCA-028, 81 N.M. 337, 466 P.2d 903, cert. denied, 81 N.M. 305, 466 P.2d 871. Claims that defendant's trial counsel did not advise him of the right to appeal provided no basis for post-conviction relief, since it was not a claim that he was denied the right to an appeal. State v. Montoya, 1970-NMCA-016, 81 N.M. 233, 465 P.2d 290. Defendant must show the manner in which his constitutional rights were violated for this court to consider his claim on a motion for post-conviction relief. Chavez v. State, 1969-NMCA-085, 80 N.M. 560, 458 P.2d 812. An allegation of narcotics addiction in a Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) motion, without more, is insufficient to raise a question as to defendant's sanity at the time of the offense. State v. Botello, 1969-NMCA-067, 80 N.M. 482, 457 P.2d 1001. A general claim that language trouble between defendant and his counsel hindered the preparation of his defense, unsupported by specific factual allegations either as to the nature of the trouble or its effect upon the defense, provided no basis for post-conviction relief. State v. Tapia, 1969-NMCA-066, 80 N.M. 477, 457 P.2d 996. Defendant's claims that an assistant district attorney, a state police officer and two other persons violated New Mexico conspiracy statute, 30-28-2 NMSA 1978, that this conspiracy was directed against him and that as a result his conviction, judgment and sentence were illegal, but which did not allege in what manner the alleged conspiracy affected him did not state a basis for post-conviction relief. State v. Dominguez, 1969-NMCA-045, 80 N.M. 328, 455 P.2d 194. Defendant raising issue of incompetency to plead must allege a specific factual basis for the relief sought. The motion is insufficient if it fails to allege facts indicating mental incompetence at the time of the plea. State v. Barefield, 1969-NMCA-040, 80 N.M. 265, 454 P.2d 279. Defendant does not allege a factual basis for this claim and absent a factual allegation, a claim of absence of due process fails to state a basis for relief. State v. Gorton, 1969-NMCA-002, 79 N.M. 775, 449 P.2d 791. Claim that the trial court showed prejudice to defendant by overruling all objections made by defendant's counsel was too general and did not provide a basis for post-conviction relief. State v. Hibbs, 1968-NMCA-093, 79 N.M. 709, 448 P.2d 815. Allegations of perjury without specification of the details thereof would not suffice to raise an issue on a motion under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Lobb, 1968-NMSC-021, 78 N.M. 735, 437 P.2d 1004. When defendant asserts that his counsel failed to subpoena witnesses in his behalf, but does not name or otherwise identify the witnesses he claims were not called, and does not indicate what their testimony might have been had they been called, a mere assertion of failure to subpoena witnesses on his behalf is not ground for relief under Rule 93, N.M.R. Civ. P. (former Rule 1-093 NMRA). State v. Crouch, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19. In petition or affidavit. - Where defendant failed to set forth sufficient facts in his petition, or by affidavit, to warrant consideration by the trial court, as the contended newly discovered evidence was not disclosed, nor is it revealed by the record in this court, his post-conviction petition must fail. State v. Till, 1971-NMSC-056, 82 N.M. 555, 484 P.2d 1265. When defendant entitled to evidentiary hearing. - To be entitled to an evidentiary hearing, defendant must have alleged a factual basis for relief; vague conclusional charges are insufficient. Further, defendant's claims must raise issues which cannot be conclusively determined from the files and records and those claims must be such that, if true, provide a legal basis for the relief sought. State v. Kenney, 1970-NMCA-038, 81 N.M. 368, 467 P.2d 34. Where a petition for post-conviction relief alleges facts, set out in particularity, of a claim of inadequate criminal representation, defendant is entitled to a hearing on the question under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). State v. Moser, 1967-NMSC-163, 78 N.M. 212, 430 P.2d 106. VI. INITIAL CONSIDERATION; SUMMARY DISMISSAL. A. IN GENERAL. Hearing properly denied if no basis for relief stated. - Contention that the trial court erred in not conducting an evidentiary hearing on the motion for post-conviction relief was invalid; as no basis for relief was asserted, an evidentiary hearing was not required. State v. Lee, 1972-NMCA-047, 83 N.M. 655, 495 P.2d 1102. It is incumbent on defendant to merit a hearing on the motion for post-conviction relief, to set forth matters therein which, if proved, would require the setting aside of the conviction. Where an examination of the motion discloses a total absence of ground which could accomplish the end sought by petitioner, the trial court is not required to grant a hearing. State v. Bruce, 1971-NMSC-022, 82 N.M. 315, 481 P.2d 103. Where motion stated no basis for post-conviction relief, the trial court properly denied the motion without a hearing. State v. Tafoya, 1970-NMCA-088, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472 P.2d 984. Where defendant's claims did not provide a basis for post-conviction relief, the trial court did not err in deciding defendant's motion without an evidentiary hearing and without appointing counsel to represent him at that hearing. State v. Ramirez, 1970-NMCA-010, 81 N.M. 150, 464 P.2d 569. The trial court did not err in denying the motion after a discussion between the court and the defendant's appointed counsel. No hearing is required on a motion under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) if the motion alleges no basis for relief. Ewing v. State, 1969-NMCA-080, 80 N.M. 558, 458 P.2d 810. Where the post-conviction motion did not present an issue on which post-conviction relief could be granted, the trial court did not err in denying the motion without a hearing. Nieto v. State, 1968-NMCA-045, 79 N.M. 330, 443 P.2d 500. A motion, to merit a hearing and consideration, must set forth matters therein which, if proved, would require the setting aside of the conviction. Where an examination of the motion discloses a total absence of grounds which could accomplish the end sought by the petitioner, the trial court is not required to appoint counsel or grant a hearing. State v. Lobb, 1968-NMSC-021, 78 N.M. 735, 437 P.2d 1004. In motion, files and records of trial. - Where the motions, files and records of the case show conclusively that defendant is not entitled to relief, a hearing is not required. State v. Sanders, 1970-NMSC-123, 82 N.M. 61, 475 P.2d 327 (1970). Where the trial record shows conclusively that an appellant is not entitled to relief under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), the court may deny the motion without a hearing or appointment of counsel. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33. Where the file and records conclusively establish that this claim of lack of competency to stand trial was false, defendant was not entitled to a hearing on this claim. State v. Kenney, 1970-NMCA-038, 81 N.M. 368, 467 P.2d 34. Since the files and records conclusively establish that this claim of inadequate representation of counsel was false, defendant was not entitled to a hearing on this claim. State v. Kenney, 1970-NMCA-038, 81 N.M. 368, 467 P.2d 34. Even though the motion for relief alleges a factual basis concerning an alleged mental incompetency to plead, a hearing on the motion is not required if the motion, files and records conclusively show that the petitioner is not entitled to relief. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803. As judged on their face. - Where defendant's allegations do not state sufficient grounds for relief, on their face, defendant is not entitled to have counsel appointed and a hearing on his motion. State v. Sedillo, 1968-NMCA-032, 79 N.M. 254, 442 P.2d 212. Defendant's contention that he was entitled to a hearing on "issue raised by motion of no consideration of leniency given him", was upon its face without merit. Leniency in the imposition of sentence involves a matter of judicial discretion. State v. Baumgardner, 1968-NMCA-047, 79 N.M. 341, 443 P.2d 511. Must appear defendant in no way entitled to relief. - Dismissal of defendant's motion for post-conviction relief for failure to state a claim upon which relief can be granted was improper unless it appeared that defendant was not entitled to relief under any state of facts provable under the claim. Maes v. State, 1972-NMCA-124, 84 N.M. 251, 501 P.2d 695. There being nothing in the record indicating that being with a minor after curfew hours was a violation of the conditions of probation, the trial court could not properly rule that defendant was not entitled to post-conviction relief under any state of facts provable under his claim that his probation was revoked because he was with a minor after curfew hours. Maes v. State, 1972-NMCA-124, 84 N.M. 251, 501 P.2d 695. So court must consider what defendant might offer. - Where defendant claimed that his guilty plea was coerced, court's overruling claim without a hearing and without considering what the defendant might offer to support it was improper. State v. Byrd, 1968-NMSC-051, 79 N.M. 13, 439 P.2d 230. Not matters outside of record. - The physician's report was not a part of the files and records of the original proceeding. It could not serve as a basis for denying defendant a hearing upon his post-conviction motion. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803. Hearing necessary if record not conclusive. - Unless record conclusively shows that defendant is not entitled to relief, he is entitled to an evidentiary hearing on his claim that he was not competent to stand trial. Roman v. State, 1970-NMCA-048, 81 N.M. 477, 468 P.2d 878. Since petitioner's claim of double jeopardy went outside the record and thus the files and records of the case did not conclusively show petitioner was not entitled to relief under that claim, he was entitled to an evidentiary hearing on that claim where the burden would be on him to prove a factual basis showing double jeopardy. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692. Where the only record before court of appeals was the petitioner's motion and the proceedings in connection therewith, and court was unable to determine what the files and records of the case showed, but the motion itself did not conclusively show that the prisoner was entitled to no relief, a hearing should have been held in accordance with Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), for a determination of the issues and for the filing of findings of fact and conclusions of law with respect thereto. Salazar v. State, 1971-NMCA-169, 83 N.M. 352, 491 P.2d 1163. Although no hearing if records conclusive. - If the files and records conclusively show that defendant's probation was properly revoked, a ruling may be based on those files and records. Maes v. State, 1972-NMCA-124, 84 N.M. 251, 501 P.2d 695. Hearing barred because of similar hearing by different court. - A district court was without jurisdiction to grant an evidentiary hearing, pursuant to a petition for writ of habeas corpus, when a different district court had previously conducted a full evidentiary hearing on the same alleged facts and issues pursuant to a post-conviction motion for relief under this rule. State ex rel. Sullivan v. Kaufman, 1985-NMSC-094, 103 N.M. 410, 708 P.2d 322. B. GRANT OF EVIDENTIARY HEARING. Hearing not automatic. - A claim in a Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), motion that a coerced plea resulted from some act, verbal or otherwise, which occurred outside the courtroom and under such circumstances that the occurrence would not ordinarily come to the attention of the trial court, and reference thereto would not ordinarily be made a part of the record, does not always entitle a defendant to a hearing. State v. Hansen, 1968-NMCA-031, 79 N.M. 203, 441 P.2d 500. When facts raise sufficient issue. - Allegations of post-conviction confinement in a mental institution in 1962 and early 1963 when sufficiently close to the date of his plea raise a factual issue concerning his mental competency to plead. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803. Where the trial court recommended that defendant be given psychiatric and medical care, that is sufficient grounds to require an evidentiary hearing. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803. Where a prisoner's motion asserts that his counsel in a former felony conviction was unknown to him, related to the complaining witness and the motion further charged specific instances of misconduct at the trial of his case, including failure of the attorney to challenge the jurors who were uncles of the complaining witness, then under such circumstances the prisoner was just as much without counsel as if he was represented by ineffectual appointed counsel and due process requires the right to a hearing and presentation of evidence thereon. State v. Moser, 1967-NMSC-163, 78 N.M. 212, 430 P.2d 106. There were sufficient facts to at least warrant an evidentiary hearing on the issue of actual notice where the petitioner was not notified before his disciplinary hearing that a conviction of a minor level offense would possibly result in major level punishment due to the presence of elevating factors. Miller v. Tafoya, 2003-NMSC-025, 134 N.M. 335, 76 P.3d 1092. When asserted claims conflict with record. - Where defendants' claims asserted in their petitions and affidavits are in conflict with the record made at the time the pleas were accepted and defendants' claims involve matters which allegedly occurred outside the courtroom and, if established would warrant vacating the sentences, such a conflict cannot be resolved in the absence of an evidentiary hearing at which the facts can be fully developed even though the circumstances surrounding the acceptance of the plea of guilty would constitute sufficient support for a finding and determination that the pleas were voluntarily made. State v. Swim, 1971-NMCA-035, 82 N.M. 478, 483 P.2d 1318. Right to hearing to prove matters outside record. - Where factual allegations relating primarily to purported occurrences outside of the courtroom put in issue matters upon which the record could cast no real light, the court must hold a hearing at which the prisoner is permitted to offer evidence. State v. Swim, 1971-NMCA-035, 82 N.M. 478, 483 P.2d 1318. Where defendants' allegations of pleas coerced or induced by threats to use statements, allegedly improperly obtained, would be sufficient, if true, to collaterally attack the judgments against defendants, and which could not be conclusively determined from the files or records, the court held that a hearing on motion for post-conviction relief was required. State v. Patton, 1970-NMCA-105, 82 N.M. 29, 474 P.2d 711. Defendant is entitled to an evidentiary hearing on the question of whether there was an unreasonable delay in executing the arrest warrants where the record indicates the probation authorities promptly had a warrant issued on the basis of the probation violations, but nothing is indicated in the record of their attempts to execute the warrants for defendant's arrest. State v. Murray, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416. Defendant's claims of the refusal of court-appointed counsel to process his appeal as requested concern matters outside the record and are such that defendant is entitled to a hearing where he has the burden of proving them and if defendant fails to establish that he made either of the alleged requests then he is not entitled to post-conviction relief. State v. Gorton, 1969-NMCA-002, 79 N.M. 775, 449 P.2d 791. Where among claims made by petitioner there are several concerning occurrences outside the record which, if true, would be grounds for vacating his sentence, these assertions cannot be resolved without a hearing. Admittedly, these allegations conflict with the record made at the time of the arraignment. However, absent a hearing at which testimony is adduced, no method is available for determining the truth. Therefore, the court erred in denying the motion without counsel and an evidentiary hearing. State v. Reece, 1968-NMSC-080, 79 N.M. 142, 441 P.2d 40. Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962), held that there must be a hearing where issues raised by the motion related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light and where the allegations did not concern circumstances of a kind that the district judge could completely resolve by drawing upon his own personal knowledge or recollection. State v. Buchanan, 1967-NMSC-267, 78 N.M. 588, 435 P.2d 207. In trial resulting in conviction of armed robbery, refusal of the trial court to allow defendant to be present and submit testimony with respect to his allegation of comment by the state in closing argument in the original case on appellant's failure to testify was error requiring reversal; and because this related to a question not raised in prior appeal, nor could it have been because there was no record made of the closing arguments, the defendant had a right in an evidentiary hearing to submit evidence outside of the original record. State v. Henry, 1967-NMSC-265, 78 N.M. 573, 434 P.2d 692. Ineffective-assistance claim. - The remand of a case to the district court for an evidentiary hearing on an ineffective assistance claim is limited to those cases in which the record on appeal establishes a prima facie case of ineffective assistance. State v. Swavola, 1992-NMCA-089, 114 N.M. 472, 840 P.2d 1238; State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595, aff'd, 1997-NMSC-063, 124 N.M. 402, 951 P.2d 619. VII. EVIDENTIARY HEARING. A. COUNSEL. Right to counsel provided by the U.S. Constitution does not apply to post-conviction relief proceedings. State v. Ramirez, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262. Absent constitutional requirement, appointment of counsel is within discretion of court. State v. Ramirez, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262. No appointment of counsel to explore post-conviction relief. - 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. Appointment of counsel is not required for assistance in formulating claim or exploratory evolutions in cases under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). Birdo v. Rodriguez, 1972-NMSC-062, 84 N.M. 207, 501 P.2d 195. No violation of equal justice. - Denial of the appointment of counsel to assist defendant in exploring the possibilities for post-conviction relief did not constitute a violation of equal justice. State v. Tapia, 1969-NMCA-066, 80 N.M. 477, 457 P.2d 996. No appointment if motion for relief groundless. - 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. 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. If motion states no basis for relief. - Appointment of counsel to represent defendant in connection with the motion for post-conviction relief is not necessary in denying the motion without a hearing, where the motion stated no basis for relief. State v. Tafoya, 1970-NMCA-088, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472 P.2d 984. Where defendant's motion was a successive motion and stated no basis for relief, appointment of counsel was not required and court did not err in denying his motion without a hearing. State v. Ramirez, 1971-NMSC-050, 82 N.M. 486, 484 P.2d 328. Where defendant's motion presented no basis for post-conviction relief, the trial court was not required to appoint counsel to represent defendant in connection with the motion. State v. Tapia, 1969-NMCA-066, 80 N.M. 477, 457 P.2d 996. Where files and records conclusively show that defendant was not entitled to post-conviction relief, trial court did not err in failing to appoint counsel or hold a hearing on the motion. State v. Decker, 1968-NMCA-016, 79 N.M. 41, 439 P.2d 559. Once prisoner alleges some factual basis raising substantial issue, counsel must be appointed. State v. Ramirez, 1967-NMSC-210, 78 N.M. 418, 432 P.2d 262. Counsel was not required to be appointed to represent defendant in connection with his post-conviction motion until a factual basis was alleged which raises a substantial issue. State v. Barefield, 1969-NMCA-040, 80 N.M. 265, 454 P.2d 279. Appointed counsel to act as advocate. - The requirement by the United States supreme court is that court appointed counsel be an advocate rather than amicus curiae. State v. Selgado, 1967-NMSC-147, 78 N.M. 165, 429 P.2d 363. Setting forth contentions urged by petitioner and necessary for review. - Appointed counsel should set forth contentions urged by a petitioner whether or not counsel feels they have merit and whether such contentions are in fact argued by counsel, and it is incumbent upon counsel for the petitioner to have included in record such parts as may be necessary to assure a review by this court, whether or not counsel considers such contentions to have any merit and whether or not he intends to advance any argument thereon. State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982. When denial of motion to dismiss counsel not abuse of discretion. - The denial of defendants' motions to dismiss counsel and grant a continuance so they could retain counsel immediately prior to post-conviction hearing was not an abuse of discretion nor was it a denial of due process. Bobrick v. State, 1972-NMCA-048, 83 N.M. 657, 495 P.2d 1104. B. PROCEDURE OF HEARING. Rules to apply to proceedings. - R. Civ. P. (Dist. Cts.), including the rule concerning findings of fact, apply to proceedings under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA). McCroskey v. State, 1970-NMCA-109, 82 N.M. 49, 475 P.2d 49. A Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) or 31-11-6 NMSA 1978 proceeding is an independent civil action, and, therefore, Rule 52, R. Civ. P. (Dist. Cts.) (see now Rule 1-052 NMRA), requiring the making of findings of fact, applies to such proceedings. State v. Hardy, 1967-NMSC-203, 78 N.M. 374, 431 P.2d 752. Burden of proof at proceedings on defendant. - Proceedings under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) are civil and the burden of establishing the charges set forth in a motion under the rule rests upon the defendant. State v. Botello, 1969-NMCA-067, 80 N.M. 482, 457 P.2d 1001. Proceedings under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) are civil and the burden is on defendant to prove his claims. State v. Marquez, 1968-NMSC-046, 79 N.M. 6, 438 P.2d 890. Defendant has the burden of establishing his claims. State v. Chavez, 1967-NMSC-228, 78 N.M. 446, 432 P.2d 411. By a preponderance of the evidence. - It is the settled rule that appellant has the burden of proving his allegations at the hearing under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) by a preponderance of the evidence. State v. Baughman, 1968-NMCA-067, 79 N.M. 442, 444 P.2d 769. The burden of proof at the hearing under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) rests upon appellant to convince the court of his allegations by a preponderance of the evidence. State v. Simien, 1968-NMSC-025, 78 N.M. 709, 437 P.2d 708. Fairness of trial. - Claim that the newspaper articles or evidence as to their contents deprived defendant of a fair trial is without merit as defendant had the burden of proof and he did not meet this burden. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005. Burden of sustaining charge of attorney's incompetence rests upon appellant. State v. Walburt, 1967-NMSC-271, 78 N.M. 605, 435 P.2d 435. Waiver of right to counsel. - Burden of proof at the Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) hearing rests on defendant to establish that he did not competently and intelligently waive his right to counsel by a preponderance of the evidence. State v. Gilbert, 1967-NMSC-226, 78 N.M. 437, 432 P.2d 402. Want of jurisdiction. - It is a fundamental rule that the burden of demonstrating want of jurisdiction rests upon the party asserting such want, particularly where the challenge is applied to a court exercising general jurisdiction. State v. Reyes, 1967-NMCA-023, 78 N.M. 527, 433 P.2d 506. Credibility of witnesses. - Trial court is the judge of the credibility of the witnesses and of the weight to be given evidence at a hearing for post-conviction relief and the petitioner has the burden of establishing his claims. State v. Sandoval, 1969-NMSC-075, 80 N.M. 333, 455 P.2d 837. Perjured testimony. - The rule is that before relief may be granted on a claim that conviction was obtained on perjured testimony the moving party must show by a preponderance of the evidence that: (1) the testimony was perjured; and (2) the prosecuting officials knowingly and intentionally used such testimony to secure a conviction, and the mere allegation that conviction was based on perjured testimony was insufficient to raise the issue. State v. Hodnett, 1968-NMCA-104, 79 N.M. 761, 449 P.2d 669. Voluntariness of plea. - The burden of proof is on defendant to show that the plea is involuntary. State v. Ortiz, 1967-NMSC-104, 77 N.M. 751, 427 P.2d 264. C. SCOPE OF HEARING. Decisions of trial court entitled to all reasonable support. - The proceedings, decision and judgment of the trial court are entitled to the support of every reasonable intendment and presumption in their favor. State v. Travis, 1968-NMCA-036, 79 N.M. 307, 442 P.2d 797. Unattacked findings of trial court deemed facts for hearing. - Findings by the trial court that defendant was confronted by and had opportunity to cross-examine all state's witnesses, that testimony of state's witnesses was adequate to sustain conviction, and that counsel for the defendant was both able and experienced, being unattacked were facts which could not be questioned on motion for post-conviction relief. State v. Hibbs, 1968-NMCA-093, 79 N.M. 709, 448 P.2d 815. Credibility of witness is issue for determination by trier of facts. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393. Issues at trial not to be redetermined. - 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. Where the jury decided defendant violated statute, and the judgment of conviction entered pursuant to the jury verdict was affirmed by supreme court, defendant may not be heard to contend he did not violate the statute in his motion for post-conviction relief. State v. Crouch, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19. Where there is a conflict in testimony, 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. While substantially supported trial court decisions upheld. - Where hearing under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) has been held, nothing more is required than that the evidence and reasonable inferences arising therefrom furnish substantial support for trial court decision. Smith v. State, 1968-NMSC-144, 79 N.M. 450, 444 P.2d 961. Refusal to make inconsistent findings not error. - When findings are supported by substantial evidence, refusal to make other findings opposed to or inconsistent with those findings is not error. State v. Johnson, 1970-NMCA-033, 81 N.M. 318, 466 P.2d 884. Refusal to accept inconsistent testimony. - Where defendant's testimony at the hearing on his motion for post-conviction relief differed greatly in many respects from what is contained in his earlier signed statement as to the events leading to the homicide and his actions thereafter, the trial court was not obliged to accept his testimony as to the claimed coercion and threats by the state police in securing the statement from him. Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407. Refusal to believe testimony under suspicious circumstances. - Delay in asserting claim of denial of right to appeal and failure to assert this claim in habeas corpus and post-conviction proceedings were suspicious circumstances which cast doubt on the truth of petitioner's testimony and so the trial court was not required to accept petitioner's testimony as true and did not err in denying post-conviction relief. Robinson v. State, 1971-NMCA-080, 82 N.M. 660, 486 P.2d 69. Voluntariness of plea open to review. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), does not hold that where there has been no direct review, voluntariness of a plea of guilty may not be determined as a question of fact in a post-conviction proceeding. State v. Elledge, 1969-NMCA-114, 81 N.M. 18, 462 P.2d 152; State v. Cruz, 1971-NMCA-047, 82 N.M. 522, 484 P.2d 364. D. PRESENCE OF DEFENDANT. Presence of prisoner not constitutionally required. - Under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA), a court may hear and determine a post-conviction motion without the presence of the prisoner. To do so is not a denial of the constitutional right "to appear and defend" in criminal proceedings because post-conviction proceedings are civil, not criminal. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Presence not required at inconclusive hearing. - Where nothing asserted required a hearing to conclusively establish the absence of merit in the claims advanced and counsel was appointed and heard, it was not error to determine the issue without the presence of applicant. His presence would have added nothing. State v. Sisk, 1968-NMSC-087, 79 N.M. 167, 441 P.2d 207. No right to be heard in particular place. - The due process clause of the fourteenth amendment does not require a judge to have a convicted person present for the hearing on a motion under Rule 93, R. Civ. P. (Dist. Cts.) (now Rule 1-093 NMRA). If appellant did not have a right to be present at the hearing, a fortiori he had no right to be heard in a particular place, absent a showing of prejudice. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36. Presence necessary for sentencing. - Where appellant entered pleas of guilty to charges of burglary and conspiracy to sell a narcotic drug and was thereupon sentenced on these charges, was later charged as an habitual offender and, upon his plea of guilty, was sentenced as an habitual offender, and then filed a motion under Rule 93, R. Civ. P. (Dist. Cts.) (former Rule 1-093 NMRA) to vacate the latter sentence, and the court granted his motion, vacated the sentence imposed and then resentenced the appellant in his absence on the original charges, the sentence must be vacated and the cause remanded to the district court so that sentence may be passed on the appellant in his presence. State v. Verdugo, 1967-NMSC-202, 78 N.M. 372, 431 P.2d 750.