I. Basic steps of a criminal case

While we do not generally handle trial-level criminal cases as lead counsel (though we often consult with criminal defense lawyers in them as to procedure and strategy), it is helpful to have an overview of the criminal process to understand the special place where post-conviction relief fits in.
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A. Charge

In a criminal case in the United States, a governmental body – the federal government, a state government, or a local government (e.g., a county or city) – accuses a person of having committed an offense that the governmental body’s laws deem to be a crime.  The governmental body seeks to have consequences imposed on the person for having committed the offense, who is called the “defendant.”

 

The governmental body initiates this by filing a document in a trial court that sets out (“charges”) its accusation against the defendant.  If lawyers for the government (“prosecutors”) prepare the accusation themselves, it is called a “complaint” or “information.”  If a “grand jury” composed of citizens formally make the accusation on the prosecutor’s request, the document is called an “indictment.”

 

Either way, the governmental body seeks to have the court find the person guilty of having committed the accused offense and then sentence the person to some punishment.  Depending on the offense and its severity, the sentence can be a term of incarceration in a prison or jail, an order to pay money to the government (a “fine”), an order to pay money to those wronged by the offense (“restitution”), a combination of these, or something else.

 

(For certain extremely serious offenses, such as first-degree murder, in some jurisdictions the punishment even can be death (“capital punishment”).  Capital punishment cases are specialized and are outside the scope of this overview.)

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B. Pretrial proceedings

After receiving the charge, the defendant must plead “guilty,” admitting they committed the offense, or “not guilty,” stating they did not commit the offense.  If the defendant refuses to enter a plea, the trial court will enter a plea of “not guilty” for him or her.

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If the defendant seeks to plead guilty and admits the accusation, the trial court must ensure that the plea is “knowing, voluntary, and intelligent.”  That is, the person must know what they are doing, know what rights he or she is giving up, not have been coerced into doing so, and be fully advised of the case.  If the trial court accepts the guilty plea, it will proceed to sentence the defendant.

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If the defendant pleads not guilty, then proceedings begin that will lead up to a trial.  The defendant has the right to an attorney, to a process to investigate the case (“discovery”) and obtain witnesses, to confront the witnesses against him or her, to see all the prosecution’s evidence against him or her, to choose whether or not to testify on his or her own behalf, and many other rights guaranteed by law.

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Sometimes, during that process, a defendant seeks to change his or her plea from “not guilty” to “guilty.”  That often is part of a compromise with the prosecutor in which the government agrees to certain lesser charges or punishments than it was seeking in exchange for the guilty plea (a “plea bargain” or “plea agreement”).  But either way, the trial court again must ensure that the decision to plead guilty is “knowing, voluntary, and intelligent.”  If the request to plead guilty is due to a plea agreement, the trial court also must review and approve that agreement.  If the trial court accepts the change of plea, it will proceed to sentence the defendant.

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C. Trial

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A defendant who maintains his or her “not guilty” plea ultimately will undergo a trial.  Most criminal trials in the United States are before a jury, a group of citizens from the jurisdiction who are chosen from a random selection by a process involving both the prosecution and the defense to sit in judgment of the defendant and determine whether they believe the defendant is guilty.  If there is no jury, then a single judge makes this determination instead.

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At the trial, the prosecution puts on evidence – including witnesses placed under oath to testify and documents or items (“exhibits”) – and makes arguments about that evidence seeking to prove to the jury or judge why beyond a reasonable doubt the evidence shows the defendant is guilty of having committed the accused offense.  The defendant challenges that evidence and makes his or her own arguments, seeking to show the jury why the evidence is insufficient to prove beyond a reasonable doubt that he or she committed the accused offense.

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If the jury or judge finds the defendant “not guilty” of all charges (an “acquittal”), the defendant generally is released from further process.  But if the jury or judge finds the defendant “guilty” of at least one charge (a “conviction”), the trial court will proceed to sentence the defendant.

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If the defendant believes there were errors made at the trial or in the pretrial process, he or she can argue this and request the trial court to grant a new trial.  If he or she believes that there was insufficient evidence to prove guilt beyond a reasonable doubt, he or she can argue this and request a judgment of acquittal notwithstanding the verdict.  These are called “post-trial motions.”

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D. Sentencing

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After a guilty plea or a finding of “guilty” by a jury or judge after a trial, and if the trial court denies a post-trial motion or no post-trial motion is made, a proceeding will occur at which the trial court will determine the defendant’s sentence.  In some jurisdictions, and for some offenses, sometimes this is made with assistance of a jury suggesting what they believe the sentence should be.  Otherwise, it is made by a judge who is almost always the same judge who heard the trial.  But either way, evidence can be presented for both the prosecution and the defendant, and both sides argue what they believe the sentence should be.  The trial court then determines the sentence and issues a “judgment” accepting the conviction and levying the sentence for the convicted offenses.

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E. Direct appeal

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After a judgment of conviction and sentence, the defendant can appeal to an appellate court.  Read our page “What is an appeal”? for a detailed overview of that procedure.  An appeal to an appellate court from a judgment of conviction and sentence in a criminal case is called a “direct appeal.”  Jonathan Sternberg and his team often handle direct appeals in criminal cases.

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Generally, on direct appeal the defendant is limited to making arguments challenging the trial court’s rulings.  For example, these might include challenges to the trial court’s pretrial decisions on procedural matters, its decisions to admit or exclude certain evidence, its instructions to a jury, its decision that there was sufficient evidence to convict the defendant, or the sentence that it imposed.

III. Post-conviction relief distinguished from an appeal

If the defendant is unsuccessful in the direct appeal, then typically the next step in challenging his or her conviction or sentence is post-conviction relief.  Jonathan Sternberg and his team regularly handle these proceedings.

 

Alternatively, if the defendant pleaded guilty and was sentenced, typically post-conviction relief is the only process open to him or her to challenge the conviction and sentence unless the sentence itself was legally erroneous.  Generally, if a person pleads guilty, he or she cannot contest his or her conviction itself in an appeal, only the sentence.  Though, depending on the jurisdiction, an appeal of a sentence itself may be extremely difficult, even functionally impossible.

 

While sometimes people refer to post-conviction relief as an “appeal,” that is not correct.  This is because post-conviction relief is not pursued in an appellate court, but instead is pursued back in the original trial court that heard the prosecution’s criminal case against the defendant, typically in front of the same judge.

 

So, in formal legal terminology, rather than an “appeal,” post-conviction relief is a form of “collateral attack.”  It provides a formal process to seek the trial court itself to undo the judgment of conviction and sentence it entered against the defendant either after a trial or after a guilty plea.  This is “collateral,” because it attacks the judgment on the same court level as the judgment was entered, rather than in a higher court as in an appeal.

IV. What can a defendant argue in seeking post-conviction relief?

In most jurisdictions, including in federal courts, a post-conviction relief case is a civil case, not a criminal case, and proceeds under the rules of civil procedure just like a lawsuit would.  The point is that after a direct appeal, or if no direct appeal is available, the post-conviction relief process exists as a civil process to allow the defendant to raise new claims that could not have been raised in his or her criminal case.

 

Because post-conviction relief usually is limited to claims that could not have been raised either in the original criminal case or a direct appeal, the chief claim raised most often in post-conviction relief is that the defendant’s trial or appellate lawyers rendered “ineffective assistance of counsel.”  Such a claim generally cannot be raised in the original criminal case or a direct appeal because it depends on facts outside the record of that case, including the lawyer’s communications with the client and others, the lawyer’s investigation of the case, and other outside evidence.

 

“Ineffective assistance of counsel” is a legal claim because while the Constitution guarantees a defendant the right to counsel, the U.S. Supreme Court has held this does not mean the defendant is entitled only to a warm body with a law degree and bar admission sitting next to him or her.  Rather, this guarantees the defendant an effective lawyer.  Of course, the fact that the lawyer was unsuccessful and the defendant lost does not by itself mean the lawyer was “ineffective.”  Rather, the lawyer is expected to do what a reasonable lawyer under the circumstances would do, with wide latitude.  If the lawyer failed in that duty, and the outcome of the case likely would have been different as a result, then that may be ineffective assistance of counsel that violates the defendant’s constitutional right to counsel.  This is the two-part test for ineffective assistance of counsel that the U.S. Supreme Court announced in Strickland v. Washington.
 

​Therefore, if the defendant can show the lawyer failed to do something a reasonable lawyer under the circumstances would not have done, or did something a reasonable lawyer under the circumstances would have done, and that failure prejudiced him – that is, but for that failure, there is a reasonable likelihood the outcome of the case would have been different, he or she may be able to prove ineffective assistance of counsel.  If so, this would require the conviction or sentence to be vacated and a new trial or sentencing proceeding ordered.  If the defendant pleaded guilty, it may require the guilty plea to be set aside and the defendant’s right to trial reactivated.  Ineffective assistance of counsel can apply in plea negotiations, pretrial proceedings, trial, sentencing, or even direct appeal.  At the same time, if prior counsel’s alleged failing was an objectively reasonable matter of trial strategy, it may not be ineffective assistance of counsel.

 

Beyond ineffective assistance of counsel, some other claims can be raised in post-conviction relief if the defendant could not have raised them previously.  Depending on the jurisdiction, these may include claims that the prosecution withheld evidence favorable to the defense (called a “Brady” claim after the U.S. Supreme Court’s decision in Brady v. Maryland), claims that the trial judge engaged in reflexive sentencing (i.e., considered some unconstitutional factor in sentencing, such as the defendant’s race or religion, the fact the defendant elected to proceed to trial and not accept a guilty plea, etc.), or claims of newly discovered evidence that materially impact the case.

IV. Basic steps of a post-conviction relief case

A. Investigation

A post-conviction relief case usually begins with the defendant’s post-conviction attorney obtaining the record of the original case and all prior counsel’s files including all communications and notes involving the case.  The post-conviction attorney then studies all of these materials with an eye toward finding what prior counsel may have missed.  This may include hiring investigators to interview witnesses or expert witnesses to opine on issues for which an expert would be necessary.

Effectively, the post-conviction attorney re-investigates the case that prior counsel should have, be it in plea negotiations, pretrial, trial, sentencing, or direct appeal.  The point is to determine what claims there may be that prior counsel failed to bring, which failure was not merely part of a reasonable strategy.

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Another thing the post-conviction attorney investigates is what specific post-conviction procedure is timely and appropriate.  There are often strict time limitations on seeking post-conviction relief, sometimes with complex time calculations.  In federal courts, for example, a federal criminal defendant has one year from the “finality of his conviction” in which to seek post-conviction relief.  When that “finality” was can depend on whether the defendant appealed, what happened in that appeal, and how far the appeal went.

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If a defendant is out of time to seek ordinary post-conviction relief, the next question in the investigation would be whether the defendant can seek some extraordinary form of post-conviction relief, and what form that should take.  Often, though, an untimely post-conviction relief motion only can be made where there is a new basis for a claim that could not have been known in time to bring a timely claim.  For example, if there is newly discovered evidence, a new scientific test, a missing witness who finally was located, or the like, it may be possible to bring a post-conviction relief claim even after the ordinary time to do so has passed.  But in seeking an extraordinary form of post-conviction relief, the defendant may be other procedural hurdles that may not be able to be met.  The investigation must consider this, too.

B. Request for post-conviction relief

Once the post-conviction attorney has completed the investigation, the next step is to prepare a motion for post-conviction relief and file it in the trial court.

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These motions are known by different names depending on the jurisdiction.  Sometimes they are called a “motion attacking sentence,” a “habeas corpus petition,” or a “motion for post-conviction relief,” and sometimes they are referred to by their statute or rule number.

Instead of being called the “defendant,” now the person seeking relief will be the “movant” or “petitioner,” and the government that prosecuted the person will be the “respondent” or “defendant.”  And the motions usually are filed “against” that government.  So, whereas an original criminal case in federal court is called “United States versus Smith,” the post-conviction relief case will be called “Smith versus United States.”

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In many jurisdictions, including in federal courts, these motions follow specific forms that must be followed.  Still, when written and compiled properly they are usually very detailed and lengthy.  But at a minimum, the motion sets out all the facts alleged to support the claims for relief – attaching exhibits to support those facts. and then sets out a legal brief for each issue explaining how, under those facts, the law entitles the moving party to have his or her conviction or sentence set aside.

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In most jurisdictions, the post-conviction relief motion is assigned to the judge who heard the trial and sentence of the underlying criminal case.

C. Evidentiary hearing

Once the motion is filed, the government that prosecuted the defendant then has the opportunity to respond and give its position.  In some jurisdictions, including in federal courts, this is required, but in others it is optional.  Typically, the government opposes the movant’s post-conviction relief motion and makes arguments for why the movant’s claims should not result in post-conviction relief.  If the government has responded, the movant then gets to have the last word in a reply.

Once the government has or has not responded, the next step is for the trial court to determine whether it needs to hold an evidentiary hearing.  Generally, if the movant has alleged facts that are not conclusively refuted by the record of the underlying criminal case, and which if true would entitle the movant to relief, then the trial court must hold an evidentiary hearing.  This is akin to a civil lawsuit, in which when a plaintiff alleges sufficient facts to state a claim, there must be a trial.

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If the trial court determines that an evidentiary hearing is not necessary, it will deny the movant’s motion for post-conviction relief.  In most jurisdictions, the trial court must still write a detailed judgment explaining why it believes the movant has not met the standard for an evidentiary hearing, so that the movant can appeal that decision to an appellate court.

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Otherwise, the trial court will hold an evidentiary hearing on the movant’s claims.  This takes the form of a “bench trial,” meaning a trial just in front of the judge and without a jury.  But as in any other trial, both sides may call witnesses and present evidence, including having subpoena power and other process to compel witnesses to attend.

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In some jurisdictions, before the evidentiary hearing the movant and the government may engage in some “discovery,” a process by which witnesses testify in depositions for the other party and information is exchanged between the movant and the government so that everyone knows what evidence the other side has.  Some jurisdictions make discovery in post-conviction relief cases optional, some allow it only with the judge’s approval, and some prohibit it entirely.  Still, discovery is not the norm in post-conviction relief cases.

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As with trials, some evidentiary hearings are short and some take many days.  If the movant is in prison, typically there will be a process for the trial court to direct that he or she be brought to court to participate in the hearing.

D. Judgment and appeal

After either the evidentiary hearing or denial of relief without an evidentiary hearing, the trial court will enter a “judgment” deciding the case and giving the reasons for granting or denying each of the movant’s post-conviction relief claims.  Usually this takes the form of “findings of fact” and “conclusions of law,” determining what the trial court believes the facts to be and how the law applies to those facts.

Whoever is unsuccessful in the proceeding then usually can appeal that decision to an appellate court.  Read our page on “What is an appeal?” for an explanation of how that process works.  As appellate lawyers, Jonathan Sternberg and his team most often engage in that process.

In an ordinary criminal case, if the jury or the judge finds the defendant “not guilty,” the government cannot appeal, because that typically violates the defendant’s right to be free from “double jeopardy.”  But because post-conviction relief is a civil case that collaterally attacks a criminal conviction, if the movant prevails the government usually can appeal, and frequently does.

Post-conviction relief cases often ultimately are decided on appeal from the grant or denial of post-conviction relief, not in the original case itself.  It is important to consider from the outset of a post-conviction relief proceeding that an appeal is likely where that proceeding is going.

IV. The Bottom Line

Post-conviction relief is a difficult and complex proceeding both for clients and lawyers alike, which even many very experienced criminal defense lawyers often do not understand.  Whether to undertake this process and how to approach and handle it are complicated decisions that should not be made lightly.

Jonathan Sternberg and his team handle all aspects of what you have just read about, from investigating both the procedure and substance of post-conviction relief proceedings all the way through filing them, litigating them, and appealing them or opposing appeals of them.  If you are interested in possibly pursuing post-conviction relief for yourself or someone else, we invite you to contact us anytime.