Post Conviction Petitions

You may be entitled to relief from your attorney(s) mistake(s), including, but not limited to your attorney:

  • Not moving to dismiss a specific charge(s) on the indictment.
  • Not attempting to exclude evidence before your trial begins.
  • Not requesting a necessary question for the trial court to ask the pool of potential jurors to prevent you from being tried by a biased juror(s).
  • Not objecting to an improperly selected juror(s).
  • Not objecting to juror misconduct, including inattentiveness or sleeping during trial.
  • Sleeping during a substantial part of your trial (yes, that has happened. See e.g., United States v. Ragin, 820 F. 609 (4th Cir. 2016) (as a matter of first impression, the defendant's right to counsel was violated when his counsel was asleep during a substantial portion of the trial, and, prejudice was presumed).
  • Not requesting a mistrial after evidence presented by the prosecution is so unfairly prejudicial that such prejudice cannot be cured (the bell cannot be unrung).
  • Not presenting a witness(s) to testify in your defense when there is a “substantial possibility” – see below for more on this term – would  have prevented the State from meeting its burden of “proof beyond a reasonable doubt.”
  • Not presenting evidence during your trial when there is a “substantial possibility” – see below for more on this term – that doing so would have prevented the State from meeting its burden of “proof beyond a reasonable doubt.”
  • Not objecting to inadmissible evidence during your trial.
  • Not requesting a necessary jury instruction(s) or not objecting to an improper jury instruction(s).
  • Not objecting to the miscalculation of your sentence.
  • Disregarding your request to file any of the following:
  • Motion for a new trial within 10 days of your verdict.
  • Motion for modification of sentence within 90 days of your sentencing hearing.
  • An application for a three-judge panel review of your sentence within 30 days of your sentencing hearing.
  • A notice of appeal within 30 days of your sentencing hearing.
  • Not consulting you about any of those filings.
  • Your (appellate) attorney failing to present your best argument on appeal.
  • Your (post-conviction) attorney failing to present your best argument on post-conviction (yes, you can post-convict your post-conviction attorney. For more information on this, please see the “motion to reopen post-conviction proceedings page”).

The specific relief that you may be entitled to from these mistake(s) include:

  • A new trial.
  • A new appeal.
  • Having your guilty plea vacated.
  • The right to file a belated motion for modification of sentence.
  • The right to file a belated application for a three-judge panel sentencing review.
  • The right to file a belated motion for a new trial.
  • Having your sentence for one or more charges removed.
  • Having your sentence for one or more charges modified.
  • Being re-sentenced on one or more charges. 

Obtaining this relief requires proving  both:

  1. Deficient performance, meaning that no reasonable competent attorney in the position of you attorney would have made the same mistake(s). Stated alternatively, the mistake violates prevailing professional norms. The mistake(s) must be considered in the context of all actions taken by your attorney. You cannot simply cherry-pick one or two mistakes and have a meritorious claim of deficient performance. You must also show that your attorney’s action or inaction was not part of a reasonable trial strategy. For example, you have to show that your attorney’s decision to present a particular defense, theory, or argument over another was unreasonable.
  2. Prejudice, meaning that the mistake(s) your attorney made are so severe that they prevented you from receiving a fair trial or guilty plea hearing. This generally requires considering every piece of evidence admitted against you at trial or, if you pled guilty, presented to the court in the statement of facts. The only exception is when prejudice is presumed, which occurs when there is a/n:
  3. "Actual" / "complete" denial of counsel during a "critical stage" of the criminal proceedings. Common examples are your attorney: not being in the courtroom, being prevented from communicating with you or being otherwise prevented from assisting you in your defense.
  4. Constructive denial of counsel. This occurs when your attorney IS present (at least physically) and not denied from assisting you during a "critical stage" of the criminal proceedings, but the circumstances of her or his in/action(s) still amount to the denial of the assistance of counsel. Examples are: failing to subject the State's case (or, if you're in federal court, the Government's case) to "meaningful adversarial testing", expressly telling or strongly inferring to the jury or judge that you are guilty, sleeping during your trial, and failing to challenge ANY of the evidence presented by the State or Government throughout ALL of trial and/or sentencing, not simply neglecting to challenge it at specific points during the trial or sentencing.
  5. Conflict of interest. For example, your attorney is representing both you and your co-defendant in a joint trial where you are both charged with committing the same crime and the defense that your attorney makes for your co-defendant could harm your case or vice-versa.

Additional procedural requirements for a successful post-conviction petition:

  1. The petition must be filed within 10 years from the date of your sentencing hearing unless there is “extraordinary cause” for not meeting that deadline. Md Code, Criminal Procedure § 7-103. Extraordinary cause is normally limited to the petitioner’s post-conviction counsel (public defender or private counsel) not filing a timely petition.
  2. It must be your first petition. As of October 1st, 1995, petitioners are only permitted to file ONE post-conviction petition. Thus, you must present all meritorious arguments in one petition or they will be waived.