Rule 51.1. Exhaustion of State Remedies Requirement in Criminal Cases

(a) Exhaustion of Remedies. In all appeals from criminal convictions or post conviction relief matters from or after July 1, 1974, a litigant is not required to petition for rehearing and certiorari following an adverse decision of the intermediate appellate court in order to be deemed to have exhausted all available state remedies respecting a claim of Rule 51 Colorado Appellate Rules error. Rather, the litigant will have exhausted all available state remedies when a claim has been presented to the intermediate appellate court or the supreme court and relief has been denied, or when relief has been denied in the intermediate appellate court and the time for petitioning for certiorari review has expired.

(b) Savings Clause. If a litigant's petition for federal habeas corpus is dismissed or denied for failure to exhaust state remedies based on a decision that this rule is ineffective, the litigant may file a motion to recall the mandate together with a writ of certiorari presenting any claim of error not previously presented in reliance on this rule. Any motion to recall the mandate must be filed within 49 days after entry of the federal court's dismissal or denial order.

Committee Notes

Source: Entire rule added and effective May 18, 2006; (b) amended and adopted