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2013 Utah L. Rev. OnLaw 1 (2013)

handle is hein.journals/utlronla2 and id is 1 raw text is: UNREPRESENTED AND UNTIMELY: THE PCRA's DISSERVICE TO INDIGENT PRISONERS Nathan Marigoni* I. INTRODUCTION Utah's Post-Conviction Remedies Act (PCRA) imposes a nearly impossible burden on indigent prisoners who have not received their constitutional guarantee of effective counsel in a non-capital criminal proceeding. The PCRA establishes the sole remedy available to prisoners to challenge a conviction after exhausting available appeals, replacing the common law writ of habeas corpus with a more restrictive procedure Various elements of the statute conspire to require the indigent prisoner-without the benefit of appointed counsel-to discover, investigate, prepare, and file a petition claiming ineffective performance of their trial or appellate counsel within one year of exhaustion of their appellate rights. Once the limitations period expires, the prisoner is barred from challenging his or her conviction in state court on the basis of this violation of a constitutional right.2 This Note analyzes the particular burden that the PCRA places on indigent defendants, in non-capital cases, without the benefit of appointed counsel in post- conviction proceedings through constitutional or statutory provisions. Because these defendants must often move forward pro se in challenging their convictions, they may not recognize the ineffective performance of their counsel as a potential ground for relief. Even where the shortcomings of counsel are recognized, the defendant may not have sufficient resources and legal knowledge to bring a petition within the one-year period allowed by statute. The limited tolling provisions provided for in the statute do not adequately address the challenges facing these defendants, as they relate only to exceptional circumstances of government misconduct. Compounding the problem is the removal of the interests of justice exception from the PCRA, precluding judicial review of meritorious petitions that are not timely filed. Because a post-conviction petition is often the only avenue for an indigent prisoner to vindicate his or her right to effective counsel, these restrictions on this remedy likely run afoul of the Utah Constitution's open courts provision. Part II of this Note examines the legal background against which these issues arise, briefly reviewing the development of habeas corpus as post-conviction relief in the United States and Utah, and the right to counsel guaranteed by the Sixth Amendment of the United States Constitution, as incorporated against the states through the Fourteenth Amendment. Part H discusses the legal issues raised by the replacement of a broad habeas corpus remedy with the more narrowly fashioned * 0 2013 Nathan Marigoni; J.D. Candidate, 2013, University of Utah, S.J. Quinney College of Law. 1 UTAH CODE ANN. § 78B-9-102 (West 2009); see infra Part I1.B. 2 UTAH CODE ANN. § 78B-9-106.