13-4232
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13-4232. Preclusion of post-conviction relief; exceptions; proof A. A defendant is precluded from relief under this article based on any ground: 1. Still raisable on direct appeal or on a post-trial motion. 2. Finally adjudicated on the merits on appeal or in any previous collateral proceeding. 3. That was waived at trial, on appeal or in any previous collateral proceeding. B. This section does not apply to claims for relief pursuant to section 13-4231, paragraph 4, 5, 6 or 7. If a claim under section 13-4231, paragraph 4, 5, 6 or 7 is to be raised in a successive or untimely petition, the notice shall set forth the substance of the claim and the reasons for not raising the claim in the previous petition or in a timely manner. If the notice does not state meritorious reasons substantiating the claim and why the claim was not stated in the previous petition or in a timely manner, the proceeding shall be summarily dismissed. C. Except for summary dismissals pursuant to subsection B of this section, the state shall plead and prove any ground of preclusion by a preponderance of the evidence. Though the state has the burden to plead and prove grounds of preclusion, any court on review of the record may determine and hold that an issue is precluded regardless of the state's failure to raise the preclusion issue. |