In the state's view, the rule requires defendant to specify the portions of the record necessary to resolve the issues raised (or to be raised) in the petition. The state contends that, like the defendants in United States v. MacCollom, 426 U.S. 317, 324-25, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976) and State v. Drozd, 116 Ariz. 330, 569 P.2d 272 (1977), defendant is not entitled to a transcript to pursue his PCR. According to the state, defendant waived that right, along with the right to a direct appeal, when he admitted a probation violation. The state contends that defendant could have insisted on a probation revocation hearing and then exercised his right to appeal, but he chose not to do so. Citing MacCollom, 426 U.S. 317, 96 S.Ct. 2086, and Drozd, 116 Ariz. 330, 569 P.2d 272, the state posits that "the right to receive transcripts at public expense in connection with ancillary post conviction proceedings is not a right guaranteed either by the due process or equal protection clauses of the United States Constitution."
An inmate therefore cannot make a showing of particularized need absent a properly filed application for post conviction relief which sets out specific claims of constitutional errors requiring the requested documentation for support. See Payton, supra; State v. Drozd, 116 Ariz. 330, 569 P.2d 272, 274 (Ct. App. 1977) ("[d]ue process and equal protection surely do not require the providing of transcripts to make petitioner aware in the first instance of events or occurrences which constitute grounds for collateral attack"). Cf. Cutbirth v. State, 695 P.2d 156, 159 (Wyo. 1985) ("a petition for post-conviction relief must be on file and the district court must determine that the petition has merit" before an inmate will receive free copies of transcripts); Reed v. State, 310 Ark. 651, 840 S.W.2d 165, 166 (1992) (free copies of "material on file" available to inmate only when he "demonstrates some compelling need for specific documentary evidence to support an allegation contained in a petition for post conviction relief").
See Ariz. R. Crim. P. 32.2(a)(3). Therefore, the trial court properly denied Vitasek's request to provide transcripts. See Ariz. R. Crim. P. 32.8(b) (defendant entitled to only those transcripts trial court "deems necessary for resolving issues the defendant has specified in the notice" of post-conviction relief); State v. Drozd, 116 Ariz. 330, 332 (App. 1977); cf. Canion v. Cole, 210 Ariz. 598, ¶¶ 10-12, 18 (2005) (defendant has burden to show grounds within provision of post-conviction rules to obtain discovery). ¶7 We grant the petition for review, but deny relief.
Indeed, the holdings of Ross and Wolff actually militate against the invocation of procedures such as the one created by Montgomery. Access to post-conviction relief and review procedures is not a constitutional right. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Scrivner, 132 Ariz. at 54, 643 P.2d at 1024; State v. Drozd, 116 Ariz. 330, 569 P.2d 272 (App. 1977). Thus, logic dictates that if no constitutional obligation exists to provide any access, access that comports with the rules governing such proceedings is per force adequate.
Further, we are not persuaded that a substantial right of McRoberts has been affected or lost. The United States Constitution does not require the furnishing of a transcript at public expense to an indigent person in mere anticipation of a collateral attack upon a judgment of conviction. See United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976); State v. Drozd, 116 Ariz. 330, 569 P.2d 272 (Ariz.App. 1977); State v. McKinney, 10 Kan. App. 2d 459, 701 P.2d 701 (Kan.App. 1985); Cutbirth v. State, 695 P.2d 156 (Wyo. 1985). Nor does Idaho's statutory scheme for post-conviction relief mandate production of transcripts prior to an application being filed.
Stenrud, 113 Ariz. at 327, 329, 553 P.2d at 1202, 1204. See also, State v. Drozd, 116 Ariz. 330, 569 P.2d 272 (App. 1977). This court in State v. Ray, 114 Ariz. 380, 560 P.2d 1287 (App. 1977) reviewed the three-part formula for retroactive application summarized in State v. Stenrud.
It is apparent that at that time petitioner was on a "fishing expedition" for possible appellate issues, State v. Scrivner, 125 Ariz. at 510, 611 P.2d at 97, and that a possible issue of ineffective assistance of counsel was then clearly contemplated. See also State v. Drozd, 116 Ariz. 330, 569 P.2d 272 (App. 1977). One of the purposes of Rule 32 is to furnish an evidentiary forum for the establishment of facts underlying a claim for relief, when such facts have not previously been established of record.