Appeals-Post Conviction Proceedings

As mentioned elsewhere, an appeal is vehicle for moving a case from a lower court to a higher court in an attempt to correct an error that occurred in the lower court. We call this a “direct appeal.” But what happens after the appeal is over and the courts have upheld the Defendant’s case? That is when the criminal defense lawyer must know about the horribly complex system of “post conviction proceedings”. Sometimes these are referred to as “habeas corpus” cases or “collateral attacks” on a criminal conviction. Whatever name is used, these matters are complex and require an attorney who is well acquainted with the complicated procedural and factual issues that regularly arise in these types of cases.

Post conviction proceedings, with some exceptions, are not the place to re-litigate issues brought up in a direct appeal. For example, if the defense lawyer on direct appeal argued that the judge made a mistake in denying a motion to suppress certain evidence, that same issue usually cannot be litigated again in the post conviction context. Instead, post conviction matters are reserved for issues not previously raised, or which could not have been litigated at an earlier stage of the proceedings.

One issue that is regularly litigated in post conviction matters is the question of whether the Defendant’s trial attorney made a mistake that caused prejudice to the accused person. Every person accused of a crime is entitled under the United States Constitution to the “effective assistance of counsel.” Post conviction cases are generally the place where many Defendants argue they were prejudiced by ineffective assistance rendered by the trial attorney. These can be very tricky matters, for a variety of reasons. First, the lawyer handling the post conviction case must know the law and the facts very thoroughly, in order to assess whether previous counsel made any big mistakes. Then, the post conviction attorney needs to know the whole case, in order to advise his client as to whether such previous mistakes caused prejudice. Finally, in post conviction proceedings it is the Defendant who has the burden of proof. The Defendant must therefore prove that his or her previous attorney provided constitutionally deficient performance. On a human level, it often is challenging to get a person to admit that he or she made a mistake, and getting lawyers to confess they made an error often is difficult.

Post convictions matters also are governed by a series of rules that mostly are designed to weed out the majority of cases. There are stringent time limits for filing such matters, generally four years here in Georgia from the denial of the direct appeal (or from the conviction itself if there was not a direct appeal). Federal courts have even shorter time lines, one year from the denial of earlier challenges to a conviction. There are exceptions to these rules, but the four year and one year deadlines are good starting points when deciding if it is worthwhile to bring a particular post conviction proceeding.

For many years it was a regular practice for Defendants convicted in state court to get three sets of challenges after trial: a direct appeal, a state habeas corpus proceeding, followed by a federal court post conviction matter. Laws enacted in 1994 greatly restricted the ability of a Defendant to take a state case into federal court for post conviction challenges. While not impossible, the bar is now set far higher in these post conviction proceedings.

Doing a good job in a post conviction matter requires that the attorney study everything that has already happened in a case, whether in the trial court, on direct appeal or in any earlier post conviction proceeding. Additionally, the attorney or investigators often need to go back and re-interview the major witnesses in the case. Another huge task is to look over the entire file of the lawyer who handled the trial.

The post conviction process can be extremely complex in both federal and state court. Paul Kish and Carl Lietz have handled many such matters. Our experience will guide you or your family member through the process of appealing his or her criminal case. Feel free to call us today at (404) 588-3991, or contact us online to schedule an appointment for a consultation. If you have an appeal, feel free to call us today at (404) 588-3991, or contact us online to schedule an appointment for a consultation. Our experience will guide you and your family through the complex process of handling a post conviction matter in either state or federal court.