G – Criminal Collateral Review

Post Conviction & Collateral Review Proceedings

How This Step Works and When Is an Individual Eligible for This Step

At trial, the case is primarily a “factual” event, with each side trying to persuade the fact finder, be that judge or jury.  On appeal, the defendant puts the trial judge “on trial,” trying to persuade the appellate court that the trial judge committed reversible error and, thus, the conviction – or at least the sentence – should be overturned.

If a defendant is unsuccessful at trial and unsuccessful on appeal, the next option is a criminal collateral review proceeding.  For state inmates, a criminal collateral review usually comes in the form of (1) a Petition for Post Conviction Relief, filed in state Circuit Court, (2) a Petition for a Writ of Habeas Corpus, filed in the United States District Court, or (3) a Motion to Reopen a Closed Post Conviction Proceeding, filed in state Circuit Court.  For federal inmates, a criminal collateral review comes in the form of a Petition for a Writ of Habeas Corpus, filed in the United States District Court.  For persons who are not incarcerated, not on parole, and not on probation, criminal collateral review comes in the form of a Petition for a Writ of Error Coram Nobis.

The vast majority of inmates are in state correctional facilities.  In a state criminal collateral review proceeding, the defendant puts the following individuals “on trial”:  (1) trial counsel for ineffective assistance, (2) appellate counsel for ineffective assistance, (3) post conviction counsel for ineffective assistance, (4) the prosecutor for violating the requirement to produce all exculpatory and impeachment evidence, and/or (5) the sentencing judge for imposing an illegal sentence.

As to issues (1) through (3) above, trial counsel, appellate counsel, and post conviction counsel must all be competent.  These counsel violate the defendant’s rights by  rendering ineffective assistance of counsel.  Counsel is ineffective if counsel commits a serious attorney error that causes prejudice to the defendant.  What constitutes serious attorney error is measured by the prevailing standard of what can be expected from a competent attorney.  Serious attorney error may include things that the attorney did and/or things that the attorney failed to do.  However, courts will give deference to the attorney if the attorney’s conduct reflects reasonable trial strategy.

When an attorney commits serious attorney error, the defendant is prejudiced if, but for that serious attorney error, there is a significant possibility that the outcome of the proceeding would have been different.  If an attorney renders ineffective assistance, it is as if the defendant had no attorney at all.  Thus, the defendant is entitled to a new trial or some lesser form of relief, e.g., a new sentencing proceeding, a belated appeal, a belated Motion for Modification or Reduction of Sentence, etc.

As to issue (4) above, prosecutors and police are required to provide all exculpatory evidence, whether requested by the defendant or not.  Exculpatory evidence includes (1) evidence that, if believed by a fact finder, (a) would make the defendant (i) not guilty, (ii) guilty but less culpable, or (iii) subject to a lesser penalty, or (b) would make someone else (i) guilty, or (ii) more culpable, and/or (2) impeachment evidence, which is any information that, under the rules of evidence, may have been used to impeach a State’s witness.  The best example of impeachment evidence is an undisclosed agreement between the State and a witness who cooperated with the State, and thus who could have been impeached based on biased testimony because that witness’s better deal comes from testifying favorably for the State.  As to issue (5) above, sentencing judges are prohibited from imposing a sentence that violates the law in any way, and an illegal sentence issue may be raised at any time.

Because most inmates are in a state criminal justice system, and because the first criminal collateral review proceeding for a state inmate is a Petition for Post Conviction Relief, let’s start there.  In 1958, the Maryland General Assembly enacted the Uniform Postconviction Procedure Act. Under the 1958 statute, inmates could file, in the Circuit Court where they were convicted, an unlimited number of Petitions for Post Conviction Relief, challenging their conviction and sentence. On a first petition, an inmate was guaranteed a hearing.  On subsequent petitions, it was within the Circuit Court’s discretion whether to grant a hearing.  Most “subsequent” petitions were denied because the issues raised in the subsequent petition had either been (1) previously litigated in an earlier petition, or (2) waived by having not been finally litigated in an earlier petition.

In 1986, the Maryland General Assembly amended the statute to limit inmates to two Petitions for Post Conviction Relief, with a hearing guaranteed only on the first petition.  In 1995, the Maryland General Assembly amended the statute to limit inmates to only one Petition for Post Conviction Relief.  The 1995 amendment also established a statute of limitations, requiring inmates to file a Petition for Post Conviction Relief within ten years of the sentencing.  The limit of one petition was made retroactive.  Thus, no Maryland inmate may file a second petition, regardless how long the inmate has been incarcerated.  However, the ten-year statute of limitations was not made retroactive.  That means that, if a defendant was sentenced prior to October 1, 1995, then the inmate has 10 years from the date they were sentenced to file a Petition for Post Conviction Relief. If a defendant was sentenced before October 1, 1995, then the ten-year deadline is not applicable.

Most Maryland inmates try to file a Petition for Post Conviction Relief within one year of their final appeal.  This urgency comes about because, on April 24, 1996, the United States Congress enacted the Habeas Corpus Reform and Anti-terrorist Act of 1996, which imposed a one-year lifetime statute of limitations on filing a Petition for a Writ of Habeas Corpus in the United States District Court.  In other words, if a state inmate allows 365 days of procedural “down time” to accumulate, and if that inmate is unsuccessful in a state criminal collateral review proceeding, that inmate is procedurally defaulted from filing a federal Petition for a Writ of Habeas Corpus.

When an inmate files a Petition for Post Conviction Relief in the Circuit Court where convicted, any judge may preside over the post conviction proceeding except the trial judge.  The inmate is guaranteed a hearing, during which the rules of evidence are relaxed, permitting affidavits in lieu of live testimony.  The rules of evidence are so relaxed that a post conviction proceeding is perhaps the only proceeding in Maryland in which the judge may — but is not required to — accept polygraph results.  The inmate should call as a witness any prior counsel being “post convicted” because if the inmate fails to call the prior counsel that is being “post convicted,” the post conviction court is permitted to infer that there must have been a legitimate trial strategy for whatever action or inaction that counsel took or failed to take.  The post conviction court is required to address every issue raised in the Petition for Post Conviction Relief and is required to produce a written opinion.

If the inmate loses at the post conviction level, the inmate may file, in the Court of Special Appeals of Maryland, an Application for Leave to Appeal from the Denial of Post Conviction Relief. The Application for Leave to Appeal is limited to those issues that were litigated in the post conviction proceeding.  The inmate attempts to persuade the appellate court that the post conviction court was legally incorrect.  The Application for Leave to Appeal must be filed within 30 days after the Circuit Court files its Opinion and Order.

The Court of Special Appeals of Maryland grants very few of the Applications for Leave to Appeal.  If granted, the appellate court most typically places the case on its regular appellate docket.  Occasionally, the appellate court simply remands the case to the Circuit Court with instructions.  If the inmate wishes to keep open the right to file a Petition for a Writ of Habeas Corpus, in the United States District Court, the inmate must file the Application for Leave to Appeal.  Otherwise, the inmate will be procedurally defaulted – meaning prohibited – from going to federal court because of the failure to have exhausted all state remedies first.

If the Application for Leave to Appeal is denied, the inmate is precluded from filing a Petition for a Writ of Certiorari in the Court of Appeals of Maryland.  If the Application for Leave to Appeal is granted, but the inmate loses the appeal, the inmate may file a Petition for a Writ of Certiorari in the Court of Appeals.  In either event, once the inmate has no appellate options remaining in Maryland, the inmate may file a Petition for a Writ of Certiorari in the Supreme Court of the United States.

After a state inmate has exhausted the state criminal collateral review mechanism, the inmate may file a Petition for a Writ of Habeas Corpus in the United States District Court, assuming the inmate is not procedurally defaulted.  This means that the inmate must not have accumulated 365 days that the inmate could have filed a Petition for a Writ of Habeas Corpus, but did not, and must have exhausted all state remedies first, which, in Maryland, means  a Petition for Post Conviction Relief, and an Application for Leave to Appeal.  The Petition for a Writ of Habeas Corpus is limited to those issues that the inmate presented to the state appellate courts, and the state post conviction court.  The inmate may request a hearing, which is discretionary with the United States District Court, and is not usually granted.

If the inmate is unsuccessful on a Petition for a Writ of Habeas Corpus, the inmate may file a Petition for a Certificate of Appealability from Denial of Habeas Corpus Relief, in an attempt to gain an appeal in the United States Court of Appeals.  If the inmate is unsuccessful in the federal appellate court, either because the Certificate of Appealability is denied, or the Certificate of Appealability is granted but the inmate loses the appeal, the inmate may file a Petition for a Writ of Certiorari in the Supreme Court of the United States.

For a federal inmate, the only criminal collateral review is a Petition for a Writ of Habeas Corpus.  Potential issues include the issues that can be raised in a state criminal collateral review proceeding, such as (1) denial of effective assistance of trial counsel; (2) denial of effective assistance of appellate counsel; (3) prosecutorial or police misconduct in failing to provide exculpatory and impeachment evidence; and (4) imposition of an illegal sentence.  In addition, under federal habeas corpus, the inmate may succeed by proving “actual innocence.”  If a federal inmate is unsuccessful on a Petition for a Writ of Habeas Corpus, the inmate’s appellate options are the same as those of a state inmate on a Petition for a Writ of Habeas Corpus, as explained above.

After a state inmate has been unsuccessful in a federal habeas corpus proceeding, or procedurally defaulted from reaching the merits in a federal habeas corpus proceeding, the state inmate has been through the system once.  At that point, the inmate has exhausted all trial, appellate, and criminal collateral review options.  From 1958 to 1986, the inmate could then go back to the state criminal collateral review process and start over, filing an unlimited number of “subsequent” Petitions for Post Conviction Relief.  However, because the right to a hearing only existed for the first petition, most “subsequent” petitions were denied without a hearing.  From 1986 to 1995, the right to file an unlimited number of petitions was decreased to the right to file two petitions.

Then, in 1995, the Maryland General Assembly reduced the two-petition limit to only one petition.  As somewhat of a compromise in the legislation, the 1995 statute helped inmates by creating a new procedural device to enable inmates to get back into court.  That procedural device is known as the Motion to Reopen a Closed Post Conviction Proceeding.  Based on the legislative history, it appears that there is no limit on the number of times that an inmate may file a Motion to Reopen a Closed Post Conviction Proceeding.

Unfortunately, from 1995 to 2002, the right to file a Motion to Reopen a Closed Post Conviction Proceeding did not appear to be of much value to inmates.  It seemed that very few inmates ever succeeded with a Motion to Reopen.  The reason for the lack of success was that the standard for reopening a closed post conviction proceeding is “in the interests of justice.”  Unlike a post conviction proceeding, which guarantees a hearing, a Motion to Reopen does not. Under the “in the interests of justice” standard, most Motions to Reopen were simply denied without a hearing. Most Circuit Court judges assumed that if an inmate already had a trial, already had an appeal, and already had a post conviction proceeding – and lost all three – then there must not be any issues left to litigate because, if there were, they certainly would have been raised a long time ago.

Then, in June 2002, in Stovall v. State, all that changed.  In Stovall, this Firm persuaded the Court of Special Appeals of Maryland to recognize that it may be “in the interests of justice” for an inmate to reopen a closed post conviction proceeding if the inmate received ineffective assistance of counsel during their prior post conviction proceeding.  The Court stated:

We hold that a post conviction petitioner (1) is entitled to the effective assistance of post conviction counsel, and (2) has a right to reopen a post conviction proceeding by asserting facts that – if proven to be true at a subsequent hearing – establish that post conviction relief would have been granted but for the ineffective assistance of the petitioner’s post conviction counsel.

Thus, inmates may use a Motion to Reopen a Closed Post Conviction Proceeding to claim ineffective assistance of post conviction counsel.  Through a Motion to Reopen, an inmate “post convicts” post conviction counsel (1) for failing to “post convict” trial counsel, (2) for failing to “post convict” appellate counsel, (3) for failing to “post convict” the prosecution and police for violations of the exculpatory evidence rule, and/or (4) for failing to “post convict” the sentencing judge for imposing an illegal sentence.

In most counties, a Motion to Reopen is assigned to the judge who presided over the post conviction proceeding.  If that judge is no longer on that court, in most counties, the Motion to Reopen is assigned to the judge who replaced the post conviction judge on the bench.  In some counties, the Motion to Reopen goes to the administrative judge to decide whether to reopen the closed post conviction proceeding and, if so, which judge will be assigned the case.

Except for the above options, there are not many options available to state inmates, prior to reaching the parole stage.  A Motion for a New Trial, based on scientific evidence, such as DNA, may be filed at anytime, but only if the evidence shows actual innocence. A Motion to Correct Illegal Sentence may be filed at any time and as often as desired.  A Motion to Reopen a Closed Post Conviction Proceeding is always an option because presumably there are no limits on the number of such motions.

While incarcerated, inmates have some limited rights within the correctional system, at the institution level, Division of Correction, and Department of Public Safety levels.  If those rights are violated, the inmate may file a Complaint with the Inmate Grievance Commission.  If that is unsuccessful, the inmate may appeal to Circuit Court.  In addition, it may be possible to negotiate terms of confinement with the “system,” such as (1) institutional transfers, (2) single cell status, (3) protective custody, (4) release for a funeral, etc.  There is always an opportunity to file a Petition to the Governor for clemency in the form of a commutation of sentence or a gubernatorial pardon.  Once released from incarceration and no longer on parole, if the former inmate faces severe collateral consequences, e.g., cannot get a job because of the criminal record, the inmate may file a Petition for a Writ of Coram Nobis in Circuit Court, seeking to have the conviction set aside.

The Firm’s Criminal Collateral Review Practice

Most good criminal trial attorneys know very little about successful criminal collateral review proceedings.  In October 2001, the Honorable Joseph F. Murphy, Jr., one of the seven members of the Court of Appeals of Maryland (Maryland’s highest court), who practiced criminal law – on both sides of the aisle – for 15 years before becoming a judge, told Professor Warnken that this Firm is one of only two law firms in Maryland that regularly succeeds on behalf of inmates.

In this Firm’s criminal collateral review practice, some of the clients are inmates in the state criminal justice system, some of the clients are inmates in the federal criminal justice system, and some are non-inmates who are seeking Coram Nobis relief due to a conviction that is causing severe collateral consequences.  Among the clients who are state inmates, (1) about 55% of the cases are a Motion to Reopen a Closed Post Conviction Proceeding, (2) about 40% of the cases are a Petition for Post Conviction Relief, and (3) about 5% of the cases are a Petition for a Writ of Habeas Corpus.

Over the years, this Firm has come to realize that no two criminal collateral review cases are alike.  In most of the Firm’s criminal collateral review cases, the Firm first conducts a six-step preliminary assessment, including (1) completion by our client of a 26-page questionnaire; (2) a review of that information by Professor Warnken and Mr. Lytle to begin to develop “collateral attack” themes and to pose additional questions for our client; (3)  Professor Warnken and Mr. Lytle evaluate (a) the charging document, e.g., indictment, criminal information, (b) if the case went to trial, the briefs and court opinions from the Court of Special Appeals and, if applicable, the Court of Appeals, (c) if the case resulted in a guilty plea, the plea and sentencing transcript, and (d) the opinion of the post conviction court, if the case has reached the level of a Motion to Reopen a Closed Post Conviction Proceeding, (4) a one-on-one, in-person interview with our client by Mr. Lytle; (5) an analysis by both Professor Warnken and Mr. Lytle of the information gained from the questionnaire and the interview; and (6) the preparation by Professor Warnken and Mr. Lytle of a detailed opinion letter.  The Firm’s inmate opinion letters have identified anywhere from one viable post conviction issues to 19 viable post conviction issues.

The 26-page questionnaire assists our client, in assisting us, by (1) getting the Firm “up-to-speed” on the client’s case so that we do not waste valuable time during the meeting, and (2) by providing a checklist of potential post conviction issues.  Most criminal collateral review issues are in one of five categories, as follows:  (1) serious attorney errors, committed by trial counsel, which prejudiced our client at trial; (2) serious attorney errors, committed by appellate counsel, which prejudiced our client on appeal; (3) serious attorney errors, committed by post conviction counsel, which prejudiced our client in the post conviction proceeding; (4) prosecutorial misconduct, in the form of the prosecutor and/or the police failing to disclose exculpatory and/or impeachment evidence to our client’s trial counsel; and/or (5) an illegal sentence.  Specifically, the checklist includes:

  • Ineffective assistance of counsel
  • Misconduct
  • Use of results of favorable polygraph examination (administered under attorney-client privilege and for limited use)
  • Illegal sentence
  • Other illegalities for which post conviction relief is available

Who We Represent

  • a state inmate at the post conviction level
  • a state inmate at the habeas corpus level
  • a federal inmate at the habeas corpus level
  • a state inmate attempting to reopen a closed post conviction proceeding
  • a state inmate attempting to argue actual innocence based on newly discovered evidence
  • a non-incarcerated individual seeking coram nobis relief.

In preparing a Petition for Post Conviction Relief, the Firm (1) analyzes all relevant (a) transcripts, (b) court files, (c) trial and appellate filings, (d) police and prosecutor files, and (e) trial and appellate counsel files; (2) conducts interviews of, and obtains affidavits from, when possible, (a) trial counsel, (b) appellate counsel, and (c) others, e.g., alibi witnesses; (3) conducts a polygraph examination, if applicable; and (4) identifies and researches all factual and legal issues.

Depending on the complexity of the factual and legal issues, it usually takes about four to eight months to prepare and file a Petition for Post Conviction Relief.  If our client is eligible to file a Petition for a Writ of Habeas Corpus, and is facing the one-year statute of limitations, the Firm can file a “skeleton” petition, generally setting forth the issues as identified in the preliminary assessment opinion letter.  The law provides that post conviction petitions may be “freely amended.”  Thus, once the Firm has completed its work, the Firm files an Amended Petition for Post Conviction Relief.

The most time-consuming tasks are:  (1) evaluating the trial and sentencing transcripts; (2) evaluating the appellate briefs and the opinion of the Court of Special Appeals of Maryland; (3) evaluating any proceedings in the Court of Appeals of Maryland; (4) locating, interviewing, and obtaining affidavits from witnesses; (5) locating and evaluating the police and prosecutor files, which could require litigation just to obtain; (6) developing the issues in the opinion letter, as well as those developed after exploring the case; (7) preparing and filing the Petition for Post Conviction Relief, typically ranging from 20 to 100 pages; (8) conducting the post conviction hearing, which typically lasts one or two days and has lasted five days; and (9) preparing and filing post-hearing memoranda of law, if necessary, to supplement our original filing.

Some criminal collateral review issues are legal issues, making the legal work similar to the work of an appellate counsel.  For example, if the issue is the trial counsel’s failure to object to a jury instruction, the issue is purely legal.  The steps would entail (1) locating the jury instructions given by the trial court, which are found in the trial transcript; (2) locating any proposed jury instruction that was not accepted by the trial court, which should be in the court file; (3) conducting legal research to determine whether the jury instruction given, and the proposed jury instruction not given, were legally correct or incorrect; (4) determining from the transcript what jury instructions, if any, were objected to by trial counsel – either the giving of an instruction or the failure to give an instruction; and (5) if objected to, whether appellate counsel briefed that issue for appeal.

Some criminal collateral review issues are mixed questions of fact and law, making the legal work on that issue similar to the work of trial counsel.  For example, if the issue is trial counsel’s failure to investigate an alibi witness whose name was given to trial counsel, the issue would require (1) factual research regarding the witness, and (2) legal research regarding the effect of the failure to have made use of the witness. The steps would entail (1) contacting trial counsel to determine why the alibi witness was not called to testify at trial, which could range from (a) my client never told me about an alibi witness, to (b) I could not find the alibi witness, to (c) the alibi witness would not have provided helpful testimony, to (d) I forgot to interview the alibi witness, to (5) I do not remember anything about this case; (2) hiring a private investigator to find the alibi witness; (3) if (a) the alibi witness can be located, (b) is willing to be interviewed, and (c) has something favorable to say, attempting to obtain an affidavit from the alibi witness; (4) calling the alibi witness to testify in the criminal collateral review proceeding; and (5) researching and formulating a legal argument that addresses the legal effect of the failure to have used the witness, e.g. a denial of the right to present a defense pursuant to the compulsory process clause of the Sixth Amendment.

In a post conviction proceeding, once the Petition for Post Conviction Relief is filed, the Firm awaits the State’s answer, which is required to be filed within 15 days.  Sometimes, the State does not even bother to file an Answer, and frequently, when they do file an Answer it is a “boilerplate” Answer that is very general.  When that happens, the Firm sometimes files a Motion for Default Judgment.   Although no Circuit Court has ever granted any of our clients post conviction relief just because the State failed to file an Answer, when the Firm files a Motion for Default Judgment, that motion definitely causes the State to “wake up.”  At that time, the State either files an answer, and we get to court sooner, or the State starts taking the Firm seriously – sometimes even negotiating a resolution of the case with the Firm.

It usually takes about three months from the filing of a Petition for Post Conviction Relief until our client gets back into court.  During the post conviction hearing, the Firm puts on evidence in support of each allegation in the petition.  The hearing typically lasts one or two days, although they have lasted five days on more than one occasion.  Depending on what happened during the post conviction hearing, the Firm sometimes files a supplemental post-hearing Memorandum of Law.

In every post conviction case, the court is required to file a written opinion addressing each allegation raised in the petition.  This step usually takes about two or three months, although it has taken as little as one month and as long as 18 months.  The Opinion and Order of the Circuit Court usually (1) grants a new trial; (2) grants a new sentencing; (3) grants a belated proceeding of some kind, e.g., the right to file a belated appeal, the right to file a belated Motion for Modification or Reduction of Sentence, the right to file a belated Application for Review of Sentence by a Three-Judge Panel; (4) grants some requested relief and denies other requested relief; or (5) denies all requested relief.

If our client obtains post conviction relief, such as a new trial or belated appeal, the client usually retains the Firm to handle that proceeding.  If our client is unsuccessful in obtaining post conviction relief, the client usually retains the Firm to prepare and file an Application for Leave to Appeal, which must be filed within 30 days after the post conviction court files its Opinion and Order.  When retained to file an Application for Leave to Appeal, the Firm (1) files a “skeleton” Application for Leave to Appeal, (2) orders the transcript from the post conviction proceeding, (3) files a Motion for Leave to File a Supplemental Application for Leave to Appeal from the Denial of Post Conviction Relief (which has always been granted), (3) analyzes the post conviction hearing transcript, and (4) prepares and files a Supplemental Application for Leave to Appeal from Denial of Post Conviction Relief.

For (1) state inmates who have exhausted state criminal collateral review, and (2) federal inmates who have exhausted federal appellate review, the Firm files a Petition for a Writ of Habeas Corpus in the United States District Court.  The Firm’s legal work in preparing and filing a Petition for a Writ of Habeas Corpus is much the same as with a Petition for Post Conviction Relief.  For both state and federal inmates, the Firm confirms the timeframe for procedural default for accumulating 365 days of non-active appellate or criminal collateral review time.

For state inmates who file a Petition for a Writ of Habeas Corpus, the Firm must limit its issues to those issues that were raised in the Court of Special Appeals of Maryland in either an Application for Leave to Appeal or on direct appeal.  For federal inmates who file a Petition for a Writ of Habeas Corpus, the Firm must limit its issues to those issues that were not raised on appeal in the United States Court of Appeals.  The Firm seeks and conducts a hearing, if one is granted.  If our client is denied habeas corpus relief, the client usually retains the Firm to prepare and file a Petition for a Certificate of Appealability from Denial of Habeas Corpus Relief, in an attempt to gain an appeal in the United States Court of Appeals.

For state inmates who have exhausted state and federal criminal collateral review, if retained, the Firm files a Motion to Reopen a Closed Post Conviction Proceeding.  Because of the limit of one post conviction proceeding, the Firm handles more Motions to Reopen Closed Post Conviction Proceedings than it does Petitions for Post Conviction Relief.  The Firm’s legal work, in preparing and filing a Motion to Reopen, is essentially the same as with a Petition for Post Conviction relief and a Petition for a Writ of Habeas Corpus, except for the fact that there is at least one, and possibly two, additional “layers” of post-verdict proceedings.

Even though the legislature established the procedure for a Motion to Reopen a Closed Post Conviction Proceeding in 1995, prior to this Firm’s appellate success in Stovall v. State, very few inmates were getting back into court because Motions to Reopen were typically denied without a hearing.  Even now, there is no guarantee.  In light of the hurdles facing a Motion to Reopen, just to obtain a hearing, the Firm devised a strategy to persuade Circuit Court judges to reopen closed post conviction proceedings.  The Firm (1) sends a two-page cover letter to the post conviction judge and/or administrative judge, explaining (a) why reopening this closed post conviction proceeding is “in the interests of justice,” and (b) why the issues have neither been finally litigated nor waived, and (2) files a well-pleaded, researched, and argued Motion to Reopen a Closed Post Conviction Proceeding and Memorandum of Law in Support Thereof.

In theory, the Firm’s effort to persuade a Circuit Court judge to reopen a closed post conviction proceeding, and to grant our client a hearing, is no longer necessary.  Under Stovall v. State, if the Motion to Reopen alleges facts that support ineffective assistance of post conviction counsel, then reopening the closed post conviction proceeding should be automatic.  Nonetheless, since Stovall was decided in June 2002, the Firm’s strategy has remained the same.

The Firm knows that it cannot assume that judges, who do not handle criminal collateral review matters on a daily basis, are familiar with the holding in Stovall.  Additionally, the Firm’s approach of sending the two-page cover letter to the judge, along with a courtesy copy of the Motion to Reopen a Closed Post Conviction Proceeding, has proven to be a very effective strategy.  If our client’s Motion to Reopen is denied, with or without a hearing, and if the Firm is retained, the Firm files an Application for Leave to Appeal from Denial of Post Conviction Relief, in an attempt to gain an appeal in the Court of Special Appeals of Maryland.

For those who have been convicted of a crime but are not incarcerated and not on parole or probation, the Firm can prepare and file a Petition for a Writ of Error Coram Nobis and Supporting Memorandum of Law. The Firm’s legal work, in preparing and filing a Petition for a Writ of Error Coram Nobis, is essentially the same as with a Petition for Post Conviction relief, Motion to Reopen, and a Petition for a Writ of Habeas Corpus except that the Firm must also establish that the person seeking the Writ is facing what the law calls significant “collateral consequences”.  Such collateral consequences stemming from a criminal conviction may include such things as, immigration consequences, employment problems, sexual offender registry requirements, etc.

For State inmates who seek to argue actual innocence based on newly discovered evidence that could not have been discovered with due diligence in time for trial the Firm can prepare and argue a Petition for a Writ of Actual Innocence / Motion for A New Trial Based on Newly Discovered Evidence. The Firm’s legal work, in preparing and filing a Petition for a Writ of Actual Innocence / Motion for A New Trial Based on Newly Discovered Evidence, is very similar to the work on a Petition for Post Conviction relief, Motion to Reopen, Coram Nobis and a Petition for a Writ of Habeas Corpus.  In this proceeding, the Court is required to grant a hearing if the Petition/Motion contains evidence that meets the legal definition of “newly discovered evidence” that could have impacted the outcome of the trial.