Every defendant wants to win post-conviction relief. Having a conviction means a defendant has been found guilty of committing a crime. This can happen after a trial where a judge or jury decides guilt. Or, it may be after a defendant has plead guilty to a crime. Any defendant who requests post-conviction relief is asking for a court to vacate or modify a judgment of conviction or modify a sentence.

When the process of seeking post-conviction relief begins, everyone has a goal to be successful. Realistically, not every defendant pursuing relief will win. However, there are mistakes to avoid and arguments to pursue which help increase the likelihood of success. To begin, let’s review the most common types of post-conviction relief.

What is the most common type of post-conviction relief?

There are two common types of post-conviction relief  the direct appeal process and the post-conviction relief process. The first step in understanding how to win post-conviction relief is that a defendant must recognize the distinct differences between these two proceedings. Understanding their differences permits the defendant to know which proceeding wherein the legal claim must be presented.

Win Post-Conviction Relief

Post-conviction Relief vs Appeal

The direct appeal process is the mechanism for presenting legal issues to an appellate court which can be raised and supported using trial court records. The trial record is essentially all court documents created from the inception of a case through sentencing. Trial records may include: pretrial motions, oral argument transcripts, court determinations, juror voir dire and trial testimony transcripts, jury instructions and sentencing transcripts.

Legal errors which can be identified within, and argued from, the court records must be raised in a defendant’s direct appeal. Some claim examples which would be identifiable through trial records and could be raised on direct appeal may include: prosecutorial misconduct, improper juror disqualification, evidence admissibility or inadmissibility, sufficiency of the evidence or sentencing errors.

Conversely, post-conviction proceedings are a distinct process which permit the introduction of evidence not necessarily contained in the court record. Post-conviction proceedings challenge a sentence or conviction based on the violation of a constitutional right. These proceedings are also generally initiated at the trial court level, not in an appellate court like a direct appeal.

It is extremely important to understand when an issue can be presented during the direct appeal process, the issue must be raised therein. If the issue could be, but wasn’t, raised on direct appeal, it likely will be prohibited from being raised during any subsequent post-conviction proceeding. So, a key consideration is  can the legal claim be raised in a post-conviction proceeding? When the answer is yes, and viable post-conviction claim still remains, the next step requires the defendant file a notice of post-conviction relief.

What is a notice of post-conviction relief?

A notice of post-conviction relief is the document filed informing the court a defendant intends to pursue post-conviction relief. It is extremely important the notice is timely filed in accordance with applicable court rules. Failing to file the notice of post-conviction relief with the court in a timely manner may lead to the forfeiture or preclusion of meritorious claims.

The notice works in the same manner as the notice a defendant files informing the court he or she intends to file a direct appeal. The notice initiates the proceeding and allows the court to establish scheduling dates for when the petition for post-conviction relief will be due.

After the notice of intent to seek post-conviction relief has been filed, the court’s initial order may also appoint an attorney to represent the defendant. This will depend on whether the defendant is indigent and whether court rule permits the appointment. The court will not appoint an attorney if the notice indicates the defendant already has representation or if the defendant informs the court he or she does not want counsel appointed.

Once the court sets the due date for the petition for post-conviction relief, the defendant must file the petition on time. If the date cannot be met, the defendant should file a motion to extend the due date. The requested extension of time must set forth good cause why additional time is needed. A defendant must be keenly aware that an extension of time could be denied. Only having good cause or the existence of extraordinary circumstances will extend the due date.

What is a petition for post-conviction relief?

A petition for post-conviction relief is the document containing the grounds for relief a defendant is presenting to the court for consideration. The petition is similar in design to a direct appellate brief. The petition must include a memorandum that contains citations to relevant portions of the record and to relevant legal authorities. This means that the petition must describe the relevant facts to support the claim, identify where the information is found to support the claim and case law to support any argument there was a legal error.

A defendant can establish facts in support of the grounds for relief by using court records, transcripts of testimony, affidavits, and other documents. Unlike the direct appeal, it is the reliance on affidavits and other documents which permit a defendant to introduce evidence contained outside the court’s records. This external evidence can result in post-conviction success not available during a direct appeal.

It is important the petition’s form and content follow the court’s guidelines. This may include rules which govern word count, page count, the number of copies filed with the court and other rules.

What are grounds for post-conviction relief?

It is generally true an issue which could have been raised on direct appeal and wasn’t, will be precluded from review. However, there are exceptions. First, if fundamental fairness requires the defendant be allowed to present the issue. Second, if the reason an issue wasn’t raised previously is due to counsel’s ineffectiveness. Lastly, if facts relating to a claim weren’t contained in the trial record.

One issue frequently presented in post-conviction petitions are claims a defendant was denied effective assistance of counsel. A defendant can raise the denial of effective trial, appellate and/or post-conviction counsel. Another frequent claim is the withholding of relevant evidence by the prosecution or there is new evidence which would tend to prove a defendant’s innocence.

Consider a defendant’s argument certain evidence should have been suppressed at trial. If counsel failed to file a suppression motion and prejudicial evidence was admitted, such a claim couldn’t be raised on direct appeal. There wouldn’t be supporting records. However, the claim could be raised during the post-conviction proceeding. Therein, a defendant can introduce evidence not contained in the trial court record. The defendant would raise counsel’s ineffectiveness for failing to file the motion to suppress.

After conviction, a defendant may learn of some previously unknown witness or learn a key prosecution witness received preferential treatment for providing testimony against the defendant. Ineffective assistance and new or newly discovered evidence claims are great issues to present in the post-conviction petition. Other claims may also be raised where the failure to present the claim earlier is attributable to ineffective counsel and a defendant can establish prejudice.

After the petition is filed, it will proceed though three different stages  the summary dismissal stage, the motion to dismiss stage or an evidentiary hearing stage.

What is a post-conviction summary dismissal?

The first reviewing stage after the petition for post-conviction relief is filed, is the summary dismissal stage. The trial court will review the petition to determine if one or more of the grounds present a plausible argument. If the defendant does not present a plausible argument, the petition will be summarily dismissed. If this occurs, the defendant can appeal the dismissal.

To pass through the summary dismissal stage, the petition only needs to allege enough facts to raise plausible claims. If the petition raises claims which are untimely, without merit or are not believable, the court can simply dismiss the petition. If the claims are untimely and the defendant fails to provide enough reasoning for the untimeliness, the court may also dismiss the petition at this initial review stage. If the petition is not dismissed at this level, it moves forward. The court will then direct the prosecution to respond to the petition. The prosecution may then file a motion to dismiss the petition

What is a post-conviction motion to dismiss?

If the post-conviction petition is not dismissed at the summary dismissal stage, it moves to this second stage. The prosecution now gets an opportunity to file a motion to dismiss the petition due to some type of procedural defect.

An example of a procedural defect is that the notice or petition was untimely. The prosecution can also allege the petition was not notarized or failed to conform to a content requirement originally overlooked by the court.

The prosecution may also respond to the presented issues and argue why the petition’s arguments lack merit. The prosecution may argue the claims were already raised on direct appeal or should have been raised on direct appeal. The court then weighs the prosecution’s response. If the court determines that the allegations, even if true, would still deprive the defendant of relief, the court can dismiss the petition at this level. If this occurs, the defendant can appeal the dismissal. If the petition is not dismissed, the court can rule in the defendant’s favor, or schedule a post-conviction hearing.

What is a post-conviction hearing?

A post-conviction hearing is also called an evidentiary hearing. If the petition for post-conviction relief survives summary dismissal and the prosecution’s response, the trial court will hold an evidentiary hearing. If the court originally denied the defendant the appointment of counsel for the petition’s preparation, the court must appoint counsel for the evidentiary hearing, if the defendant wants representation.

At the evidentiary hearing, the court can hear evidence from live witnesses, including the defendant, who are offering testimony in support or opposition to the post-conviction petition. For example, the defendant may present an expert witness who specializes in offering testimony regarding attorney professional norms. Such an expert may be necessary where a defendant is alleging ineffective counsel. A defendant may present testimony from a previously undisclosed or unknown witness to offer evidence for some alibi defense.

At the hearing, the defendant has the burden to prove some violation occurred or the new evidence would have changed the trial or sentencing outcome. The prosecution will try to prove any violation, if it occurred, was harmless. After the hearing, the court will enter a final order on the petition for post-conviction relief. If the petition is denied, the defendant can appeal the denial of relief.

What are the chances of post-conviction relief?

Achieving post-conviction relief is never easy. Entering into post-conviction relief, there is a strong presumption that previous counsel has been effective. In my example where trial counsel failed to file a motion to suppress evidence, in the post-conviction process the defendant can’t simply claim counsel was ineffective by abandoning the suppression motion. The defendant must also prove that if counsel filed the motion, the defendant would have won the motion and the trial outcome would have been different.

For the presentation of the withheld or new evidence claim, a defendant is required to show more than just that evidence was withheld or is new. The defendant is again required to establish the new or withheld evidence would have altered the defendant’s trial or sentence.

How do you win post-conviction relief?

In summation, there are keys to being successful in the post-conviction process. They are:

  • Be timely in filing the post-conviction relief notice
  • Be timely in filing the post-conviction petition
  • Be sure the petition’s content follows applicable court rules
  • Be sure the issues can and should be raised during the post-conviction process
  • Be sure to explain how the trial or sentencing outcome would have been different had previous counsel been effective
  • Be sure to explain how the trial or sentencing outcome would have been different if the new or undisclosed evidence had been introduced at trial.
  • Buy a copy of my book The Colossal Book of Criminal Citations to assist in preparing the post-conviction arguments.
Cover of The Colossal Book of Criminal Citations
The Colossal Book of Criminal Citations

What book helps win post-conviction relief?

The Colossal Book of Criminal Citations contains legal references to thousands of cases to help create, articulate and present the best post-conviction petition possible. Case references and brief examples contained in my book will assist in challenging a defendant’s conviction or sentence. My book’s content will help in presenting post-conviction relief claims to the trial court and into the United States Supreme Court if necessary. This book will assist convicted defendants in state or federal jurisdictions and is designed to help the pro se defendant, the jailhouse lawyer, or the experienced litigator. Buy a copy today and begin the process of acquiring successful post-conviction relief.