A reader has asked, what is a common argument for post conviction relief? From my perspective, it would be an argument which raises trial or appellate counsel’s ineffectiveness. To learn what counsel’s ineffectiveness means, I recommend read my post, what is ineffective assistance of counsel.

Not only is this argument commonly presented during post conviction proceedings, but case law indicates this argument results in most relief acquired by defendants during a post conviction proceeding. Understanding “why” this is a common and successful argument is important to discuss.

Why ineffective assistance of counsel is a common argument

Criminal defendants are often restricted by a statute or a criminal rule of procedure regarding what may be raised in a post conviction or state habeas proceeding. For instance, any issue which could have been raised in an earlier proceeding is usually precluded from being raised during a post conviction proceeding.

Effective assistance of counsel is constitutionally guaranteed and counsel’s ineffectiveness usually cannot be raised in any proceeding prior to seeking post conviction relief. This makes such an argument ripe when pursuing post conviction relief.

Conversely, consider a defendant who attempts to argue the trial court erred by permitting prejudicial hearsay testimony from a witness. Such an argument would probably be precluded because it could have been raised on direct appeal.

However, if trial counsel failed to object to the prejudicial hearsay testimony, a defendant could argue that trial counsel was ineffective for failing to object to the testimony. This argument probably wouldn’t be precluded because there wasn’t any previous opportunity to present the ineffectiveness argument. What makes this argument difficult in most states is that the defendant must satisfy both prongs of ineffectiveness defined by Strickland v. Washington, 104 S.Ct. 2052 (1984). This means a defendant would be required to prove counsel’s representation fell below ordinary professional norms, the testimony was impermissible and how the trial outcome would have been different if the testimony wasn’t permitted.

Ineffective assistance of counsel isn’t the only argument which can be raised in post conviction proceedings, it is a “common” one. Let’s consider other possible claims.

What are other common arguments raised in post conviction proceedings?

Case law also reveals some success when defendants raise a post conviction claim involving new evidence, which is material to the case, or that the prosecution withheld potentially exculpatory evidence, or that a defendant is factually innocent.

To meet the requirements for new evidence, the defendant must be able to show:

1. that the evidence at issue has been newly discovered since trial, meaning that the evidence could not, with reasonable diligence, have been discovered and produced at trial  and,
2. the defendant must also show that the evidence at issue is so substantial that with it, a different verdict would probably have been reached at trial. See: State v. Brown, 310 Neb. 318 (Neb. 2021).

When raising that the prosecution withheld evidence, commonly referred to as a “Brady violation,” a defendant must be able to satisfy three components:

1. the evidence at issue must be favorable to the accused 
2. the evidence must have been suppressed by the prosecution and,
3. the suppression must have been prejudicial. See: Comstock v. Humphries, 786 F.3d 701 (9th Cir. 2015).

Another type of claim, although not as common, is a claim of factual innocence or that there was a fundamental miscarriage of justice. These claims exist when DNA, or some other evidence, can affirmatively establish a defendant’s innocence.

The fundamental miscarriage of justice applies only to a “narrow class of cases” in which a defendant makes the extraordinarily showing that an innocent person was probably convicted due to a constitutional violation. See: Schlup v. Delo, 115 S.Ct. 851 (1995).

It is possible for these types of claims to materialize months, or even years after a conviction. When presenting such issues after a conviction, or even after seeking initial post conviction relief, it is unlikely this form of claim would be precluded due to a defendant’s failure to raise the claim in an earlier proceeding. This is because, in all likelihood, the defendant didn’t know the claim existed sooner.

Other arguments which can be raised in post conviction proceedings

To be clear, I am not claiming that the above examples are the only arguments which can be raised in the post conviction process. Rather, those are the more “common” claims raised, and considered, by a court when reviewing published case law.

Defendants may pursue and acquire post conviction relief by presenting any claim that meets criteria such as:

• The conviction was obtained in violation of the United States Constitution or a State’s Constitution
• The trial court lacked jurisdiction to render a judgment or impose a sentence on the defendant
• The sentence imposed was not authorized by law  or,
• There has been a change in law, that if applicable to the defendant, would probably overturn the defendant’s conviction or sentence.

While it’s important to understand what type of claims can be pursued in the post conviction process, it is important to recognize what issues will be precluded when a defendant attempts to raise them during the post conviction or state habeas process.

Issues which cannot be raised in post conviction proceedings

In a post conviction proceeding, there are issues which usually cannot be raised. As stated above, any issue which could have been raised during an earlier proceeding would likely be precluded. Other types of claims which may be subjected to preclusion include:

• A claim which is still raisable in a direct appellate proceeding or some other post trial motion
• A claim which was adjudicated on the merits in the direct appellate process or in any prior post conviction proceeding  or,
• A claim that was waived at trial or on appeal or in any previous post conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily and personally by the defendant.

What happens when a successful claim is raised

If a defendant is able to present a non precluded post conviction or state habeas claim in his or her brief to the court, it is likely the defendant would next be given an evidentiary hearing. To learn more about the evidentiary hearing process, read my post, What is an evidentiary hearing.

While every case and state’s post conviction process is slightly different, I hope this response answers my reader’s question of, what is a common argument for post conviction relief?