Rule 71A - Filing a Response Seeking Dismissal; Timely Disposition by the CourtIf the response filed by the respondent seeks a dismissal of the petition in whole or in part based upon a petitioner's alleged failure to satisfy one or more of the five statutory prerequisites to an adjudication on the merits identified in Rule 66, the court
(a) In the case of an alleged failure on the part of the petitioner to demonstrate exhaustion of remedies incidental to the proceeding in the trial court, or on appeal, or through administrative remedies, shall dispose of the dismissal request based upon the pleadings, any further amendment of the pleadings, and any other material of record. In the event the court determines that one or more pending or available unexhausted remedies exist, the court shall, except as otherwise specifically provided in 15 M.R.S. §2126 regarding an appeal from a judgment of conviction, a juvenile adjudication, or a judgment of not criminally responsible by reason of insanity, either grant the respondent's dismissal request or stay the post-conviction review proceeding pending exhaustion, depending upon which alternative the court determines to be most appropriate under the circumstances.(b) In the case of an alleged failure on the part of the petitioner to demonstrate one or more of the other statutory prerequisites, shall dispose of the dismissal request based upon the pleadings, any further amendment of the pleadings, and any other material of record unless the court determines that, as a matter of fairness to the petitioner, disposition should await an evidentiary hearing.Last amended effective 11/2/2016.