Gain Your Freedom
Our organization puts together winning arguments for every level of court for post conviction. The question for many is, what exactly is post conviction litigation?“Post-Conviction” defined: In the United States legal system, the term “post-conviction” refers to the legal process which takes place after a criminal trial results in a conviction of the defendant, or where a defendant accepts a plea of guilty or no-contest. After conviction, a court will proceed with sentencing the defendant. In the criminal justice system, once a defendant has received a guilty verdict, he or she can then challenge a conviction or sentence. This takes place through different legal actions, known as filing an appeal or a state and/or federal habeas corpus proceeding. The goal of these proceedings is exoneration, or modification of an excessive and/or illegal sentence. If lacking representation, the defendant may consult or hire an attorney to exercise his or her legal rights.
The United States Supreme Court has held that all defendants convicted in a U.S. court, whether it be state or federal, are entitled to the appointment of counsel on the direct appeal only. Once the direct appeal is final, further representation may be obtained at the defendants personal expense. The post-conviction process is in place to protect both innocent and guilty individuals, from inherent human error in the criminal justice system. One study cites 10,000 innocent people are convicted each year in the United States, and tens of thousands (possibly more), receive illegally imposed sentences in excess of what the law allows.
The Appellate Process: The appeals process is the request for a formal change of a decision made by a court of law. The litigant who files the appeal is known as the “appellant.” A successful appeal must demonstrate to a higher court that the trial court made a decision affected by legal error. The appellate procedure in the United States takes place in appellate court, which makes its judgment based only on the record of the original case. The appellant generally submits a document of legal arguments called a “brief,” a written attempt to persuade the judges of appellate court that the decision of the trial court should be reversed. If selected for an “oral argument,” appellants may present a short spoken argument to the court. No additional pieces of evidence or witnesses are considered. All additional evidence that was not presented to the court during the trial must be submitted in a post-conviction proceeding only.
The inherent problem with the appellate process is that it is limited to the “four-corners” of what happened at the trial; additional evidence is not allowed. Therefore, the vast majority of appeals are denied. As such, if trial counsel made a series of mistakes, the fact of the errors may be admitted on appeal, but counsels reasoning may not be as it goes to his or her state of mind. The only way to introduce evidence of why counsel failed to do something, or why counsel chose to commit an error, is by way of a post-conviction proceeding such as a petition for writ of habeas corpus. In some cases, the courts may consolidate an appeal with a habeas corpus proceeding, but this is usually reserved only for select capital cases only.
The ruling made by the appellate court is usually final. The decision of the appellate court generally affirms the original decision of the trial court. Unfortunately, 90% of civil and criminal appeals are denied in the United States. If the appeals process is unsuccessful, a convicted person may pursue other options, depending upon the severity of his or her sentence and the crime committed.
State-Level Writs / Post Conviction Procedures: Writs are directives from a higher court to a lower court or government official, and are only issued when the one seeking the writ (the moving party) has no other options. Most states in the United States allow convicted parties to file several specific writs (legal actions). These writs require that the detainee be considered by a judge or court, and are in place to prevent unconstitutional imprisonment.
Also known as the “great writ’ Habeas Corpus writs are most common. Many countries, including the United States, Australia, New Zealand, Malaysia and Canada have adopted the practice from English common law. Habeas corpus is a judicial mandate to a prison official which orders that an inmate be brought to trial to determine whether the imprisonment is lawful and if it should continue. Typically, an inmate will argue that his imprisonment is unconstitutional. While habeas corpus can be filed in state or federal court, all state avenues must be exhausted first.
Habeas Corpus is the most powerful remedy in the United States today to remedy illegal confinement based upon wrongful convictions, illegal sentences and other systematic errors. Some of the most common errors exposed by habeas corpus are prosecutorial misconduct, ineffective assistance of trial/appellate counsel, ineffective assistance of counsel during the plea proceedings, judicial misconduct, erroneous DNA evidence and new evidence previously unavailable. In a habeas proceedings, additional evidence may be presented that otherwise would be inadmissible on an appeal. Many states have strict rules for habeas corpus practice and procedure including time limits, repeat filings and other “procedural bars.”
Many other post-conviction remedies are available at the state level including motion to correct illegal sentence; motion to reduce sentence; writ of error coram nobis; motion for DNA testing; challenges to parole hearings; certorari and many others. Federal Writs in the United States federal court system the writ of habeas corpus is used most frequently to review state court convictions. Federal statutes (28 U.S.C. §§ 2241–2256) outline the procedural aspects of federal habeas corpus proceedings for both inmates convicted in state courts seeking review of their exhausted claims in a federal district court, and inmates convicted in a United States federal district court.
Should a habeas corpus petition (or similar proceeding), be denied at the district court, an appeal may be filed to the federal court of appeals which may review the petition, send it back to the district court with instructions, deny it or order other relief as necessary.
Additionally, the Supreme Court of the United States may use the certiorari writ to review United States Courts of Appeals cases or cases from state courts. Error coram nobis is another writ issued only rarely at the federal level in cases of federal criminal convictions when “no other remedy is available.” This process is similar to the state writ process, though inmates must consume all state appeals and writ options before moving forward. This is an extremely important part of the legal strategy, especially for those inmates who have legitimate claims.
Innocence Work / Sentencing Disparity / Illegal Sentences: Overturning a conviction after dozens of appeals and petitions have been denied is notoriously difficult, though prisoners have some options at their disposal. They can still attain freedom if legitimate innocence can be proven. The most common method is by using DNA evidence to disprove a crime that happened before DNA testing was a viable option. The Innocence Project, founded to exonerate those convicted wrongfully, has found more than 300 post-conviction DNA exonerations in the history of the United States. Attorneys can file a motion to introduce strong new evidence to the courts. Other common innocence efforts center on victim recantations if applicable.
Sentencing disparity is defined as “a form of unequal treatment that is often of unexplained cause and is at least incongruous, unfair and disadvantaging in consequence”. It is important to distinguish disparity from differences that arise due to legitimate use of discretion in the application of the law and those differences that arise due to discrimination or other, unexplained, causes unrelated to the issues found in the specific criminal case. These other “discretionary” sentencing procedures many times are imposed in excess of what the law allows and may be challenged with a successful challenge resulting in a reduction of time to be served by the inmate.
Sentencing disparity is a major problem because two judges could be faced with a similar case and one could give an extremely unfair and unnecessary verdict, whereas another would give a much lesser sentence. A 2006 study by Crow and Bales gives evidence of sentencing disparity: The Florida Department of Corrections gave statistics of those prisoners who received probation or community control in the period 1990–1999. Prisoners were categorized as Blacks and Hispanics or Whites/Non-Hispanics. The study found that the Blacks and Hispanics received more intense and harsher penalties than the White/Non-Hispanic group. A 2001 University of Georgia study found substantial disparity in criminal sentencing men and women received “after controlling for extensive criminological, demographic, and socioeconomic variables”. The study found that “blacks and males are… less likely to get no prison term when that option is available; less likely to receive downward departures [from the guidelines]; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females”. Whether one is a victim of sentencing disparity or an outright illegal sentence, post-conviction procedures are many times the only remedy to address and fix this problem.
Capital Cases: Cases that involve the death penalty are especially significant in the post conviction stage. These inmates will often file numerous appeals to courts at every level. In these unique cases, inmates can file an appeal which could be reviewed by the United States Supreme Court. The court has the ability to stay the execution if some legal flaw in the original trial comes to light such as prosecutorial misconduct, ineffective counsel or many other egregious violations. The Court does not often exercise this power, though several individuals from around the world sentenced with capital punishment have been exonerated in the past thirty years.
Inmates in this position can also file for clemency or pardon. Practices vary from state to state, but the clemency process usually requires the governor or board of advisors or both. Since 1976 more than 273 death row inmates have been granted clemency for humanitarian reasons. These include doubts about the petitioner’s guilt or a governor’s personal stance on capital punishment.
Value of Life
We place together a Parole Memorandum ( Packet ) that will give your loved one a better chance a parole and early release. Yet, the question is, what is in this packet on a base level?
The Parts of a Parole Packet Like any file, your parole packet is split into sections that contain specific documents. The overall file should have a logical sequence that takes the parole board through your offense, what you did while incarcerated to improve your life, and how you expect to live on the outside.
Introductory LetterYour first document is an introductory letter that asks the Parole Board for parole. Include your date of birth, age, height, weight, and hair color. Also, provide details about the reason for your incarceration with dates, felony levels, and the maximum discharge date, among other things.
Tell the board how much time you have already served and provide statistics about offenders with the same offense as yours for comparison.
Parole Plan Your parole plan outlines your expectations for living once released from prison. Include the following information: The name, address, and phone number of the person you are planning to parole to, such as a parent or someone else you will stay with while getting your life back together. Names, addresses, and phone numbers of people offering you employment, so the Parole Board knows you have a job when you leave that will reduce the chances of re-offending. A description of your expected living and work situation. Confirmation that you have transportation when you leave prison. The Parole Board will feel more confident knowing that you have people who can help you get back on track.
Criminal History It isn’t a comfortable subject. After all, the parole board already knows your history. But it would help if you touched on the details. Be sure to express remorse if someone was hurt when you committed the offense. Repeat your remorse even if it’s in your introductory letter.
You may wish to address all your convictions even though any juvenile records are sealed, and non-convictions are not part of the reason for your incarceration.
Disciplinary History If you faced any major disciplinary action, speak to the cases by admitting fault and expressing thoughtful remorse. Include the fact that you accepted the punishment as just and that you served without complaint. If you have significant periods without discipline, highlight them as well.
Educational History If you earned any degree, certificate, or other recognition for learning, include it. Refer to your educational attainment before coming to prison, and then refer to any in-prison education. Include a few lines about every degree or certificate earned. If you complete a vocational course, describe it, when you were in it, and some details even if you didn’t finish it.
If you haven’t taken any courses, talk about books you are reading or watching the news every day. Provide proof that you are trying to better yourself.
Employment History First, talk about the jobs you had before prison, especially if you held a responsible position. Emphasize these jobs first. Then describe any prison jobs you held, including the duties you fulfilled. If you spent time in the fields, find a way to put a positive spin on it.
Substance Abuse History If you were convicted of a drug crime like possession or admitted to using drugs when committing your crime, write down why you used drugs, why you sold drugs, and whether you stole to buy drugs. Then show that you joined AA or Narcotics Anonymous or other treatment you received and the concepts you learned to help you stay clean.
Spiritual Development Even if you aren’t religious, show you developed an understanding of how to be in society and have done some self-examination. If you are religious and attend church, talk about what it means to you.
Tell the board you understand there are moral foundations that everyone has, and you have discovered how to live with yours.
Goal Statements Writing down goals is an essential first step for realizing them. It makes them real.
Write a different set of goals for the time you spend after parole, from immediate goals to goals after three days, a month, three months, six months, and a year. Goals and a plan to reach them give you a vision to achieve.
Penance Statement Tell the board members you understand the damage you caused and commit to helping others in your community avoid the path you took. Talk about any classes that help you reach that goal.
Support Letters A support letter is from a person who knows you well and can provide the board with an idea of the people you have to help you.
Get letters from family, friends, and former and potential employers if possible. Quality is better than quantity. Don’t get letters from everyone in the congregation; get one great one from your pastor.
Round out the packet with awards you received, community resources you can use, and a picture of you, where you will stay once released, and people who are there to support you.
Mitigation is similar in nature but principally deals with post conviction liigation. Above is base of packet in which we would do. One of the things we would do, just to note, is to build your loved ones level of life in the community and navigate various channels.