Rule 32 Post-Conviction Remedies

Post-conviction remedies give a person convicted of crime an opportunity to get relief from their conviction after their conviction has been affirmed on appeal. The most obvious source of relief is an ineffective assistance claim where the prisoner alleges that his or her trial or appellate lawyer failed a duty to the client and the client was prejudiced by it.

Following conviction, a Rule 32 Petition for Post-Conviction Relief (“PCR”) may be filed in an attempt to overturn the conviction to win early release or dismissal of the case. A PCR notice must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the final order or mandate by the appellate court.

Post-Conviction Relief proceedings are precluded when:

• the issue should have been raised on appeal.

• the issue was already decided in an appeal or collateral proceeding.

• when the issue has been waived.

A post-conviction petition cannot be filed until the direct appeal is complete. The first step is to seek relief in the state courts. There are stringent time limits on when these may be filed. Some states even require that they be filed before the appeal is perfected so the appeal will decide all issues.

Once a person convicted of a crime has exhausted his appeal rights, he may, in limited circumstances, apply for relief from his conviction or sentence through one of the following post-conviction remedies, depending upon whether it is a state or federal conviction.

Post-conviction remedies:

• Post-Trial Motions

• Motions for New Trial Based on Newly Discovered Evidence

• Motion to Withdraw Guilty Plea

• Sentence Modification

• Writs of Actual Innocence

• Writ of Actual Innocence Based on Non-Biological Evidence

If the prisoner loses the appeal, the next step is a habeas corpus petition in U.S. District Court. Under the federal law known as AEDPA, the Anti-Terrorism and Effective Death Penalty Act, the habeas corpus petition must be filed in federal court within ten months of the affirmance by the state appellate court of the post-conviction denial. This is also jurisdictional. Cases are lost all the time because the issues were not timely filed in the appropriate court. Also, procedural default review is now mandated by Congress under AEDPA.

Grounds to file a petition include the following:

• The conviction or sentence is in violation of the Constitution of the United States or the State of Texas.

• The court was without jurisdiction to render judgment or impose sentence.

• The sentence imposed exceeds the maximum allowed by law.

• The person is held in custody after the sentence expired.

• Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence.

• The defendant failed to appeal and it was not the fault of the defendant.

• There has been a significant change of law that if determined to supply to defendant’s case would probably overturn the defendant’s conviction or sentence.

A person convicted of a crime in federal court may file Motion to Vacate Conviction and/or sentence requesting a new trial or sentencing because he believes his conviction or sentence is unconstitutional or because he received ineffective assistance of counsel. This action should be brought in the federal court in which the conviction took place.

If you believe a loved one is incarcerated under an unconstitutional conviction or because he received ineffective assistance of counsel, you should act immediately because there are strict time requirements for filing a Motion to Vacate Conviction and/or Sentence. If a Motion to Vacate Conviction and/or Sentence is denied, you can appeal to the appropriate United States Court of Appeals. If you believe a loved one has a case, contact The Sheena Law Firm today.