Motions for Post Conviction Relief (Appellate Lawyers in South Carolina)
State Court
In state court, a post conviction relief motion (“PCR”), is usually an individual’s last chance to challenge a conviction. A PCR is normally filed after an individual has exhausted all of their appellate options. Not all mistakes or errors that are made at trial can be addressed through a conventional criminal appeal. For this reason, most states allow defendants to challenge the validity of their conviction through a PCR motion. An appellate lawyer in South Carolina can assist with the preparation and argument related to ineffective assistant of counsel.
The most common claim in a PCR motion is a claim for ineffective assistance of counsel. In order to prove ineffective assistance of counsel, the PCR lawyer must show (1) the trial counsel’s performance was deficient; and (2) the deficient performance was so serious that it deprived the defendant of a fair trial. Examples of such errors may include:
Ineffective Assistance of Counsel |
|
|---|---|
| Failure to Object at Trial | Failure to File Motions |
| Failure to File Notice of Appeal | Failure to Inform Client |
| Failure to Investigate the Case | Failure to Call Witnesses |
If an individual’s PCR motion is denied at the state court level, they may still have the opportunity to file a motion to vacate their sentence or conviction pursuant to 28 U.S.C. § 2254 in federal court. The time limitation for such a filing is one year after the judgment becomes final.
Federal Court
In the federal system, a motion for post conviction relief is equivalent to a federal petition for habeas corpus. It is most commonly known as a § 2255 motion or a motion to vacate. See 28 U.S.C. § 2255. As in state court, the most common issue presented in § 2255 motions is an ineffective assistance of counsel claim. However, such motions can also be used to challenge other constitutional or statutory violations that could not have been raised on direct appeal. For example, an individual may move under a § 2255 motion on the ground that the sentence imposed was in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
Once the § 2255 motion is prepared and all issues are addressed, it is filed in the district court in which the defendant was sentenced. Then, the motion is presented to the judge who presided over the defendant’s case. The court may require the government to file a response, and the defendant has the option to reply. The court will then either grant relief, deny relief, or hold a hearing. Our federal appellate lawyers are well versed in the criminal system, and are highly knowledgeable about federal motions to vacate. Our attorneys have years of experience in criminal court, and are prepared to make sure your issues are preserved for appeal. Contact one of our attorneys today for a free consultation at 1-800-94-TRIAL.
Time Limitations
In both state and federal court, a PCR motion or § 2255 motion may not be filed more than one year from the date on which the judgment of conviction becomes final. In South Carolina, an applicant must initiate a PCR proceeding within one year after one of three events, whichever is later: (1) the entry of a judgment of conviction; (2) the sending of the remittitur to the lower court from an appeal; or (3) the final decision upon an appeal. See S.C. Code Ann. § 17-27-45(A).
In federal court, the statute of limitation begins to runs from one of the following, whichever is later: (1) the date on which the judgment became final; (2) the date on which the impediment to filing an application created by the governmental action in violation of the Constitution or laws of the United States is removed if the defendant was prevented from filing by such governmental action; (3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. See 28 U.S.C. 2255(f).
While a year may seem like a substantial period of time to file an action, it takes a great deal of time to gather evidence and transcripts to determine all of the issues that are able to be presented to the PCR judge. This is why it is important to hire a PCR lawyer as soon as possible to discuss your options. We want to make sure that you are given every opportunity to address any error made at the trial court level. We have experienced attorneys that have assisted numerous clients at this stage in their appeal. Whether you are seeking to file a PCR motion in South Carolina or wish to file a motion to vacate in federal court, we can help you. Our South Carolina PCR attorneys and federal appellate lawyers are able to offer you the type of personal attention that you will not find with most other appellate attorneys. If you or a loved one is considering filing a PCR motion or motion to vacate in federal court, contact The Mace Firm for a free consultation at 1-800-94-TRIAL or contact us online.
