Article

Post-Conviction Relief – Path to Collateral Relief from a Criminal Conviction

December 12, 2018

In the United States, the law provides post-conviction relief (PCR) to safeguard citizens from unjust, unconstitutional, or erroneous convictions[1]. The post-conviction procedures afford inmates a last chance to dispute their underlying convictions after losing a direct appeal[2]. Post-conviction relief is available in the form of a new trial, a reduced or new sentence, expungement, permission to file post-trial motions, reversal of conviction etc.

The law mandates a convicted person to undergo the prescribed sentence. Nonetheless, by filing a PCR, such a convicted person has the opportunity to claim justice, if there is an infringement of his or her constitutional rights during the course of trial. Through PCR, the convicted person can notify the court of any unresolved fact or law which is relevant to the conviction[3]. PCR replaces several other forms of collateral relief available to a convicted person, even though few other exceptions still remain[4]. However, only those claims involving “evidence outside the trial record may first be raised in a petition for state post-conviction relief.”[5]

“Likewise, a person cannot file an application for PCR pending appeal or during the time when an appeal may be perfected.”

Applying for PCR

Under the law, any person convicted or sentenced for committing a crime can file an application for PCR[6]. The law on applying for a PCR varies in different states. For instance, in South Carolina, it is not necessary that a person be in custody to institute a post-conviction proceeding[7]. But in Louisiana, subject to an exception of enhanced sentence, the courts bar review of an application for PCR if the person does not satisfy the custody requirement under La. Code Crim. Proc. Ann. § art.924[8]. In Louisiana, a person who has served his sentence is entitled to subsequently challenge his prior conviction, which is constitutionally invalid based on collateral results, such as a possible enhanced sentence and a vulnerability to a multiple offender proceeding.[9]

Likewise, a person cannot file an application for PCR pending appeal or during the time when an appeal may be perfected.[10] He/she must apply for a PCR within the prescribed time limit under the particular state law. However, certain states like New Jersey provide exceptions for an untimely filing of a PCR on the grounds of excusable neglect and fundamental injustice[11].

“Unlike an appeal, a PCR proceeding may address new claims or new evidence.”

PCR is Not a Substitute for Direct Appeal

Post-conviction relief is neither “a substitute for direct appeal nor an opportunity to re-litigate cases already decided on the merits.”[12] In a direct appeal, the main dispute is on the legal rulings that are the basis of the sentence or conviction[13]. Further, the entire process of appeal rests on the trial court record[14]. Unlike an appeal, a PCR proceeding may address new claims or new evidence. Also, if the convict files a PCR prior to the lapse of time for filing an appeal from the judgment of conviction and sentence, the trial court can extend the filing time of an appeal on the matter until the PCR proceeding is complete.[16]

Likewise, if one applies for a PCR while an appeal is pending, the appellate court can suspend the appeal until it reaches a conclusion on the PCR proceeding or transfer the proceeding to the appellate court immediately. These powers can be used by the trial court or appellate court to make simultaneous considerations, in case the appeal is from the judgment of conviction and sentence, and in case, an appeal is from the judgment in the PCR proceeding by joinder of appeals to contribute an orderly administration of criminal justice.[18]

“PCR mainly focuses on any allegation of errors of law or facts that arise outside the trial court records, or errors that the previous counsel has committed.”

Furthermore, a direct appeal bars an applicant from raising any claim of trial error in the PCR that could be raised in a direct appeal and reassert any issues previously raised on direct appeal[19]. Thus, PCR mainly focuses on any allegation of errors of law or facts that arise outside the trial court records, or errors that the previous counsel has committed[20]. On the other hand, a direct appeal deals with the appropriateness of court rulings in deciding a specific request for relief or its objections.[21]

A Collateral Relief from an Unlawful Criminal Conviction

Besides certain specific exceptions, PCR is a collateral relief that replaces several other common law remedies.[22] One must file a PCR in the same court that rendered the challenged judgment of conviction and sentence[22]. A successful PCR that challenges the conviction and sentence, that includes cognizable claims, can be brought under the following grounds.

Meritorious Claims that Challenge Judgments

Meritorious claims challenge judgments of conviction and sentence, and include cognizable claims:

  • that the conviction was obtained or sentence imposed in violation of the Constitution of the United States or the constitution or laws of the state in which the judgment was rendered;
  • that the applicant was convicted under a statute that is in violation of the Constitution of the United States or the constitution of the state in which judgment was rendered, or that the conduct for which the applicant was prosecuted is constitutionally protected;
  • that the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;
  • that the sentence imposed exceeded the maximum authorized by law or is otherwise not in accordance with the sentence authorized by law;
  • that there exists evidence of material facts which were not, and in the exercise of due diligence could not have been, theretofore presented and heard in the proceedings leading to conviction and sentence, and that now require vacation of the conviction or sentence;
  • that there has been a significant change in law, whether substantive or procedural, applied in the process leading to applicant’s conviction or sentence where sufficient reason exists to allow retroactive application of the changed legal standard;

Meritorious Claims that Challenge the Legality of Custody

Meritorious claims challenging the legality of custody or restraint based upon a judgment of conviction, including claims that a sentence has been fully served or that there has been unlawful revocation of parole or probation or conditional release can justify the filing of a PCR.

Ineffective Assistance of Counsel

The United States Constitution requires overturning a criminal judgment because of the actual ineffective assistance of counsel[25]. Thus, a defendant who pled guilty and filed a petition for PCR may make a claim for ineffective assistance of counsel. A defendant can demonstrate that (1) the counsel’s performance fell below prevailing professional norms, and (2) that the outcome of the case would have been different but for the deficient performance of the counsel[26]. The same standard of law applies to allegations of ineffective assistance of counsel at the sentencing stage as well.[27]

Deficient Communication on Significant Plea Proposals

The American Bar Association Standards for Criminal Justice require defense attorneys to “promptly communicate and explain to the accused all significant plea proposals made by the prosecutor.” [28]The defendant can prove deficient performance during plea negotiations by demonstrating that the lawyer either (1) gave erroneous advice or (2) failed to give information necessary to allow the petitioner to make an informed decision whether to accept the plea.[29] The defendant can obtain a hearing on such a claim by showing that the counsel failed to adequately communicate the plea offer or the consequences of conviction.[30]

Counsel’s Failure to Make Timely Objections to the Prosecutor’s Comments

The court has held that the “touchstone of an ineffective assistance of counsel claim is whether the defendant was denied a fair trial.”[31] Any such failure from the counsel would give a strong presumption that the counsel has been ineffective in providing assistance to a defendant.[32]

Mitigation Hearing

The “right to a presentence mitigation hearing is an absolute right, and the only limitation as to timeliness is that it must be requested prior to sentencing.” [33] Failure to seek timely mitigation hearing can also attribute to ineffective assistance of counsel in a claim for filing PCR, since the purpose of a pre-sentence hearing is to ensure that the sentencing judge is fully informed as to the character of the individual to be sentenced and the circumstances of the crime.[34] Thus, under the law of PCR, a convicted applicant can obtain collateral relief if his conviction is in violation of the Constitution of the United States or the constitution of the state in which the court rendered judgment, or if the conduct for prosecuting the applicant is constitutionally protected.

A defendant can bring any claim, with the exception of one that attacks the validity of a criminal judgment, under a PCR application without any condition upon the applicant’s attack of a sentence of imprisonment being served or any other present restraint.[35] Therefore, a right to request relief from an invalid conviction and sentence exists even though (a) the applicant has not yet commenced service of the challenged sentence; (b) the applicant has completely served the challenged sentence; or (c) the challenged sentence did not commit the applicant to prison, but was rather a fine, probation, or suspended sentence.[36] Furthermore, there is no specific time period as a statute of limitations to bar a PCR application against a criminal conviction.[37]

Conclusion

The post-conviction relief serves as a collateral relief from a criminal conviction, not a substitute to direct appeal because the defendant files it in the same court that rendered the judgment of conviction and sentence. The PCR mechanism mainly provides a collateral attack on the judgment of conviction and sentence providing the convicted defendant an opportunity to avoid the sentence, or dispute his or her underlying unjust, unconstitutional or erroneous conviction.

References

1John H. Blume: A Reintroduction: Survival Skills for Post-Conviction Practice in South Carolina, available at,

2John H. Blume: An Introduction to Post-Conviction Remedies, Practice and Procedure in South Carolina, available at,

3John H. Blume: A Reintroduction: Survival Skills for Post-Conviction Practice in South Carolina, available at,

4, 7, 9, 14, 15, 17, 18, 20, 22, 32, 36 Id

5 Hand v. Houk, 871 F.3d 390, 408 (6th Cir.2017)..

6, 10, 19, 21 Supra note 7.

8 Louisiana Judicial College Criminal Court Training Agenda, Post-Conviction Relief, available at,

11 State v. Brewster, 429 N.J.Super. 387, 398, 58 A.3d 1234 (Super.App.Div.2013)

12 State v. Preciose, 129 N.J. 451, 459 (1992).

13 Oregon Department of Justice, Process for Post-Conviction Relief, available at,

16 Standard 22-2.2 (a). Prematurity of applications for postconviction relief; postponed appeals, available at

23 Standard 22-1.4 (b). Jurisdiction and venue; assignment of judges, available at

24 Standard 22-2.1. Grounds for relief encompassed, available at

25 Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing 462 U.S. 1105 (1983)).

26 State v. Villegas-Rojas, 231 Ariz. 445, 446 (Ariz. Ct. App. 2012).

27 State v. Rossi, 146 Ariz. 359, 364, 706 P.2d 371, 376 (1985).

28 ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 4–6.2(b) (3d ed.1993).

29 State v. Donald, 10 P.3d 1193, 1200 ¶ 16 (Ariz. App. 2000).

30 Id. at 1200 ¶ 17.

31 State v. Valdez, 167 Ariz. 328, 329-30 (1991).

32 State v. Asbury, 145 Ariz. 381, 385 (Ct. App. 1984).

33 Standard 22-2.3. Custody requirement, available at

34 Id. at 386.

35 Standard 22-2.3. Custody requirement, available at

37Standard 22-2.4 (a). Statute of limitations; abuse of process; stale claims, available at .

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