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Post Conviction Remedies

Criminal Justice Section Standards

Post Conviction Remedies


Standard 22-1.1. Single, comprehensive postconviction remedy

There should be one comprehensive remedy for postconviction review of the validity of judgments of conviction, or of the legality of custody or supervision based upon a judgment of conviction. The remedy should encompass all claims whether factual or legal in nature and should take primacy over any existing procedure or process for determination of such claims. Standard 22-1.2. Characterization of the proceedingThe procedural characteristics of the postconviction remedy should be appropriate to the purposes of the remedy. While the postconviction proceeding is separate from the original prosecution proceeding, the postconviction stage is an extension of the original proceeding and should be related to it insofar as feasible.

Standard 22-1.3. Proper parties; legal representative of the respondent

(a) The moving party in a postconviction proceeding should be the person seeking relief, proceeding in his or her name. The respondent should be the entity in which name the original prosecution was brought, for example, State, People, Commonwealth, or the United States of America.

(b) The legal officer with primary responsibility for responding to an application for postconviction relief should be an officer with responsibility for the administration of criminal justice, such as the attorney general, or the local prosecutor who represented the government in the original prosecution.

Standard 22-1.4. Jurisdiction and venue; assignment of judges

(a) Original proceedings to entertain applications for postconviction relief should be vested in a trial court of general criminal jurisdiction.

(b) An action for postconviction relief should be brought in the court in which the applicant's challenged conviction and sentence was rendered. For efficient management of a pending case, the court should be authorized in extraordinary circumstances to conduct proceedings in any place within the state. In addition, provision should be made for transfer of a case to another court if that is appropriate for the convenience of the parties or to guard against undue prejudice in the proceeding.

(c) Neither a general rule favoring nor one disfavoring submission of a postconviction application to the same trial judge who originally presided is clearly preferable. If by rule or practice ordinary assignment to the same judge is adopted, there should be a declared policy permitting the judge freely to recuse himself or herself in a particular case, whether or not formally disqualified.


Standard 22-2.1. Grounds for relief encompassed

A postconviction proceeding should be sufficiently broad to provide relief:

(a) for meritorious claims challenging judgments of conviction and sentence, including cognizable claims:(i) 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;

(ii) 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;

(iii) that the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;

(iv) that the sentence imposed exceeded the maximum authorized by law or is otherwise not in accordance with the sentence authorized by law;

(v) 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;

(vi) 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;

(b) for 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.

Standard 22-2.2. Prematurity of applications for postconviction relief; postponed appeals

(a) When an application for postconviction relief is filed before the time for appeal from the judgment of conviction and sentence has lapsed, the trial court should have the power to extend the time for taking such appeal until the conclusion of the postconviction proceeding. When an application for postconviction relief is filed while an appeal from the judgment of conviction and sentence is pending, the appellate court should have the power to suspend the appeal until the conclusion of the postconviction proceeding or to transfer the postconviction proceeding to the appellate court immediately. The trial court or appellate court should exercise these powers to enable simultaneous consideration of the appeal, if taken, from the judgment of conviction and sentence and an appeal, if taken, from the judgment in the postconviction proceeding, where joinder of appeals would contribute to orderly administration of criminal justice.

(b) When alleged grounds for postconviction relief concern a flaw in appellate procedure, the appellate court should have power to entertain a postponed appeal without regard to the ordinary time limits for initiation of appeals when that is the most expeditious course of proceeding. If an application for leave to take a postponed appeal raises issues outside the record, or if for any other reason it appears more appropriate to consider the claims in a postconviction proceeding, the appellate court should be empowered to transfer the case to the appropriate trial court for further proceedings.

Standard 22-2.3. Custody requirement

Except for a claim which does not attack the validity of a criminal judgment, the availability of postconviction relief should not be conditioned upon the applicant's attacking a sentence of imprisonment then being served or other present restraint. The right to seek relief from an invalid conviction and sentence ought to exist:

(a) even though the applicant has not yet commenced service of the challenged sentence;

(b) even though the applicant has completely served the challenged sentence; or

(c) even though the challenged sentence did not commit the applicant to prison, but was rather a fine, probation, or suspended sentence.

Standard 22-2.4. Statute of limitations; abuse of process; stale claims

(a) A specific time period as a statute of limitations to bar post-conviction review of criminal convictions is unsound.

(b) A person with a tenable or meritorious claim for postconviction relief who deliberately or inexcusably withholds presentation of that claim until occurrence of an event that he or she believes prevents successful reprosecution or correction of the vitiating error commits an abuse of process. Abuse of process ought to be an affirmative defense to be specifically pleaded and proved by the state. An applicant who commits an abuse of process may be denied relief.

(c) Where an applicant has completed service of a challenged sentence and belatedly seeks postconviction relief, he or she can be charged with the burden of showing present need for such relief. A sufficient showing of present need is made where:

(i) an applicant is facing prosecution or has been convicted and the challenged conviction or sentence may be, or has been, a factor in sentencing for the current offense;

(ii) an applicant may be disadvantaged in obtaining parole under a later sentence; or

(iii) an applicant is under a civil disability resulting from the challenged conviction and preventing the applicant from a desired and otherwise feasible action or activity.


Standard 22-3.1. Preparation of applications for relief; resources available to applicants

(a) Every state should establish a system whereby persons who may have grounds for postconviction relief, and who are unable to afford adequate legal counsel, are provided with the assistance necessary to evaluate the possible merit of contemplated claims for postconviction relief and to prepare and file applications stating claims upon which such relief may be granted. Optimally, a state should support a legal services agency that is charged with the responsibility to counsel persons about their legal rights and to represent persons who move to vindicate those rights in postconviction proceedings. Only where adequate legal counsel cannot be made available should a state provide alternate resources necessary for persons to take the initial legal steps in postconviction proceedings pro se.

(b) For persons incarcerated in prison, a state should make available counseling services to advise inmates privately and individually on the validity or invalidity of claims for postconviction relief. The following steps may be considered:

(i) a legal services office, or a branch of a legal services agency, permanently assigned to assist the inmate population of custodial institutions but administratively separate from all custodial personnel; or

(ii) a program of regular visits by attorneys or by professionally supervised law students pursuant to arrangement with an agency like a bar association or a law school.

The in-prison legal services agency or those who visit the prison to advise inmates should also provide representation of inmates in judicial proceedings.

(c) A state should make available educational services for its prisoners about their legal rights. Printed materials outlining the recognized grounds for postconviction relief and the resources available to any person to pursue legal questions, specially prepared for prison inmates and written in terms understandable to them, are most desirable. Alternatively, an adequate collection of standard legal reference materials related to criminal law and procedure, and cognate consitutional provisions, should be part of a prison library.

Standard 22-3.2. Standardized application forms

A standardized application form should be made available to help those persons who cannot or who do not obtain assistance of counsel in the preparation of applications for postconviction relief.

Standard 22-3.3. Applications with false allegations; verification requirement

(a) Applications for postconviction relief should be verified, subject to the law of perjury or false swearing for knowing falsehoods.

(b) Prisoners should have ready access to a notary public or other officer authorized to administer oaths.

Standard 22-3.4. Supporting affidavits; sources of evidence to prove factual allegations

It is unsound to require an applicant to submit affidavits of third parties in support of a claim for postconviction relief as a condition for docketing of the application. Neither should the applicant be required to declare in the application how the applicant intends to prove the material factual allegations.

Standard 22-3.5. Filing fees; potential liability for costs

(a) No filing fee or other financial requirement shall be a condition for docketing of an application for postconviction relief.

(b) Invocation of the jurisdiction of a court for postconviction relief shall not be without risk that a financial obligation may be imposed on the applicant by assessment of costs or the like.


Standard 22-4.1. Judicial responsibility for dispositions; magistrates and court staff

(a) All dispositions should be made by judges, who bear and acknowledge responsibility for the judgments. The utilization of magistrates or other judicial officers for preliminary inquiries is appropriate and should be explicitly authorized. An application should not be disposed of by administrative or nonjudicial personnel, whether by refusal to docket or otherwise, without an order from the court.

(b) Final disposition of applications should be made at the earliest stage consistent with the purpose of deciding claims on their underlying merits rather than on formal or technical grounds.

Standard 22-4.2. Preliminary judicial consideration of an application before a responsive pleading

(a) A rule or a routine practice of judicial evaluation of postconviction applications to determine the sufficiency of the allegations should be avoided.

(b) If some preliminary judicial evaluation of an application is expected before the respondent has answered or filed motions, an order of final dismissal should be entered only in an instance of unmistakably frivolous allegations.

Standard 22-4.3. Appointment of counsel

(a) Counsel should be provided for applicants unable to afford adequate representation. For such applicants confined in prison, legal assistance should be available in the first instance through services provided to inmates of the institution. Such services should extend to representation in judicial proceedings. If, for any reason, applicants are proceeding without counsel, an attorney should be appointed for those unable to afford to retain their own attorneys. When private attorneys are appointed to represent applicants, their services should be compensated from public funds.

(b) Appointed counsel should continue to serve through any appellate proceeding available to the applicant as a matter of right.

Standard 22-4.4. Responsive pleading; calendar priority; bail; stay of execution; judgment on the pleadings

(a) Prompt responsive pleadings should be required by court rule specifying the time for normal responses, with the response fully and fairly meeting the allegations of the application. Where the record of prior proceedings would aid the court in understanding the nature of the contentions, counsel for the respondent should supply the relevant portions to the extent that they were not appended to the application.

(b) In addition to making effective the requirement of prompt response by the state, if the applicants are held under sentence of death, or if there is other reason for expedition, courts should accord suitable calendar priority to the determination of applications for postconviction relief.

(c) Courts should have the power to order executions stayed, or to release applicants on recognizance or with sufficient sureties in appropriate cases, pending final disposition of applications for postconviction relief.

(d) In light of the application and response, the court may grant a motion for judgment on the pleadings if there exists no material issue of fact.

Standard 22-4.5. Discovery; summary disposition on expanded record without plenary evidentiary hearing

(a) Discovery techniques, specially adapted for psotconviction proceedings, should be utilized for assistance in advancing a case toward disposition by exploring and narrowing issues of fact. The fruits of the discovery process should be used in determining whether summary disposition is appropriate, or whether a plenary evidentiary hearing is necessary to resolve material issues of fact.(i) In-prison depositions of applicants in custody, to develop more fully the basis for their claims and the potential evidentiary support therefor, should be authorized. Such depositions may be oral or upon written interrogatories.

(ii) An effective procedure should be established for the production of documents, including the relevant parts of the transcript of the original trial, or tangible things, for taking depositions of witnesses, and for the service of requests for admissions or written interrogatories on the opposing party.

(iii) Employment of the various discovery techniques in this context should be subject to continuing court supervision. A requirement of a showing of good cause may be appropriate prior to utilization.

(iv) The costs of discovery, where the applicants are indigent, should be borne by the state.

(b) An application for postconviction relief should be decided without an evidentiary hearing when there exist no unresolved issues of material facts or where a case is submitted on an agreed statement of facts. If a case cannot be fully adjudicated without an evidentiary hearing, the court should determine which issues of material facts remain in controversy.

Standard 22-4.6. Plenary evidentiary hearing; presence of applicant; evidence and burden of proof; findings of fact

(a) A plenary hearing to receive evidence, by testimony or otherwise, is required whenever there are material questions of fact which must be resolved in order to determine the proper disposition of the application for relief.

(b) The applicant and counsel should be present at a plenary hearing, unless the right to be present has been expressly waived. The applicant's presence is not required at any preliminary conference held to frame the issues and expedite the hearing.

(c) Normal rules of admissibility of evidence should be followed in postconviction hearings. Evidence should be given in open court and recorded and preserved as part of the record.

(i) A duly authenticated record, or portion thereof, may be used as evidence of facts and occurrences during prior proceedings. Such record or transcript should be subject to impeachment by either party.

(ii) Depositions of witnesses unavailable for the hearing should be admissible if properly administered and taken subject to the right of cross-examination.

(iii) If facts within the personal knowledge of the judge who presided at an earlier proceeding are to be adduced by the judge's testimony or otherwise, he or she cannot properly preside at the hearing. The presiding judge at the hearing should not take into account facts within his or her personal knowledge unless those facts may be judicially noticed.

(iv) By pursuing an application for postconviction relief, an applicant does not waive the privilege against self-incrimination. Nevertheless, the nature of the evidence adduced on behalf of the applicant may effect a waiver of the privilege.

(d) The allocation between the applicant and respondent of the burden of proof on issues of fact is primarily a corollary of the underlying substantive law governing the claims advanced. Ordinarily, the proponent of factual contentions, whether the applicant's proof of the elements of a prima facie case or the respondent's proof of affirmative defenses, should have the burden of establishing those facts by a preponderance of evidence.

(e) At the conclusion of a plenary hearing, the court should make explicit findings on material questions of fact.

Standard 22-4.7. Dispositive orders; trial court opinions

(a) At the conclusion of a postconviction proceeding, the court should enter an appropriate order of disposition.(i) If the court finds in favor of the state, it should enter an order denying the application for relief. The order should indicate whether the denial is after plenary evidentiary hearing, on summary disposition, or on the pleadings.

(ii) If the court finds in favor of the applicant, the order should identify clearly the claim or claims found meritorious. The kind of affirmative relief ordered will vary with the nature of the meritorious contention. Where the conclusion is based upon an error in the trial or pretrial stages of the process leading to conviction, further prosecution may be foreclosed and the order of the court should provide for immediate discharge form custody; if there is no bar to further prosecution, the order of the court should provide for discharge from custody within a stated period of time unless, within that time, the state takes the necessary steps to commit the applicant to custody pending reindictment, rearraignment, retrial, or resentence, as the case may be. In some instances, only a declaration of invalidity of the prior conviction may be required. Where the court finds in favor of the applicant for error concerning applicant's right to appeal from judgment of conviction, the court should have authority to fix the time within which the applicant may now pursue such appeal.

(iii) The court should have authority, upon proper motion, to assess costs and expenses in favor of the prevailing party. The power to assess costs and expenses should be used sparingly and with discretion so as not to deter applicants with litigable claims. Assessment is appropriate when it appears that an applicant, having had access to competent legal advice, pursued a claim that wholly lacked basis in law or factual support.

(iv) The court should have authority, upon proper motion, to stay its final order or to issue supplementary orders regarding custody, bail, and the like, pending review of its judgment by an appellate court.

(b) The court should prepare a memorandum opinion indicating its conclusion of law and the legal standards relied upon.


Standard 22-5.1. Appellate court jurisdiction; right to appeal

(a) Appellate review should be available through the same courts authorized to hear appeals from judgments of conviction.

(b) Appellate review of final judgments should be available as of right at the instance of the party adversely affected, whether applicant or respondent. In a three-tiered court system, the jurisdiction of the highest court may appropriately be discretionary with that court.

(c) In general, a party should not be permitted to take an appeal until a final adverse judgment has been entered in the trial court. Interlocutory review of an order denying a stay of execution of a death sentence should be authorized when necessary to prevent carrying out the sentence before final judgment in the trial court.

Standard 22-5.2. Initiating appeals; release from custody pending appeal

(a) The procedure for initiating appeals in postconviction litigation, including time limits for filing notice of intent to appeal, should be analogous to that for processing direct appeals from judgments of conviction and sentence.

(b) The attorney who represents an applicant should continue to supply legal services, including advice on the utility of the applicant's taking an appeal and extending to representation at the appellate level when an appeal is undertaken.

(c) The appellate court should have authority to release applicants from custody or otherwise to stay execution of judgments of conviction and sentence pending decision by that court. It is appropriate to require applicants to seek such relief first from trial courts, and ordinarily the rulings of the trial courts in such matters should not be disturbed.

Standard 22-5.3. Processing appeals(a) Appellate courts should employ flexible and diversified procedures for expeditious decision of appeals in postconviction cases. Continuous monitoring of an appeal from its inception until judgment should be done by the court's staff. With assistance from its staff, the appellate court should seek to move each case promptly toward final decision with the minimal steps necessary to inform the court of the facts of the controversy and the legal contentions of the parties. In arriving at final decisions, however expedited the procedure of presentations, the court should act as a collegial body and should announce its decisions and the reasons therefor.

(b) An appellate court should exercise a broad scope of review so that all pertinent legal issues are considered on their merits insofar as possible, toward the end of a final determination of the entire case concerning the applicant.


Standard 22-6.1. Finality of the judgment of conviction and sentence

(a) Any issue that has been fully and finally litigated in the proceedings leading to the judgment of conviction should not be relitigated in postconviction proceedings.(i) An issue should be deemed fully and finally litigated when the highest court of the state to which a defendant could appeal as of right has ruled on the merits of the question.

(ii) Finality should be an affirmative defense to be pleaded and proved by the respondent.

(b) Unless barred because of abuse of process, claims advanced in postconviction applications should be decided on their merits, even though they might have been, but were not, fully and finally litigated in the proceedings leading to judgements of conviction.

(c) Where an applicant raises in a postconviction proceeding a factual or legal contention which the defendant deliberately or inexcusably

(i) failed to raise in the proceeding to judgment of conviction, or,

(ii) having raised the contention in the court, failed to pursue the matter on appeal, a court may deny relief on the ground of an abuse of process. Abuse of process should be an affirmative defense to be pleaded by the respondent. Where a rule or procedure governing conduct of criminal prosecutions requires that specified defenses or objections be presented at a certain time, and an applicant raises in a postconviction proceeding an issue that might have been but was not presented in a timely manner in the proceeding leading to judgment of conviction, the applicant should be required to show cause for the failure to comply with the rule of procedure. In other instances, the burden of proof of abuse of process should be borne by the respondent.

Standard 22-6.2. Finality of a judgment in a postconviction proceeding; repetitive applications

(a) The degree of finality appropriately accorded to a prior judgment denying relief in a postconviction proceeding should be governed by the extent of the litigation upon the earlier application and the relevant factual and legal differences between the present and earlier applications. In particular,(i) a judgment dismissing an application, on its face, for want of sufficient allegations should not bar consideration of the merits of a subsequent application that adequately indicates a cognizable claim; and

(ii) a judgment denying relief after plenary evidentiary hearing should be binding on questions of fact or of law fully and finally litigated. A question has been fully and finally litigated when the highest state court to which an applicant can appeal as of right has ruled on the merits of the question. Finality should be an affirmative defense pleaded and proved by the state.

(b) Where an applicant raises in a subsequent application a factual or legal contention which the applicant did not use due diligence in

(i) raising in an earlier application, or, (ii) having raised the contention in the trial court, failed to pursue the matter on appeal, a court may deny relief on the ground of an abuse of process. Abuse of process should be an affirmative defense to be pleaded and proved by the state.

Standard 22-6.3. Renewal of prosecution against a successful postconviction applicant

(a) A judgment granting relief in a postconviction proceeding should foreclose renewal of prosecution of an applicant only if required by the substantive ground on which relief was granted. Prosecution proceedings should be permitted to resume at the stage at which the vitiating error occurred, without necessity to repeat valid portions of the original prosecution.

(b) Credit should be given toward service of the minimum and maximum terms of any new prison sentence for time served under a sentence successfully challenged in a postconviction proceeding.

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