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Published: 2008-03-26

Post-Conviction and Clemency Representation



Post-conviction remedies give a person convicted of crime an opportunity to get relief from their conviction after their conviction has been affirmed on appeal. The most obvious source of relief is an ineffective assistance claim where the prisoner alleges that his or her trial or appellate lawyer failed a duty to the client and the client was prejudiced by it. It is like a malpractice claim, but it is in a criminal forum. Under Arkansas law and the law of most states and in federal courts, prisoners cannot file civil claims that collaterally attack their convictions; the normal post-conviction remedies are the first route. If the prisoner prevails there, then he or she can file a malpractice action.

A post-conviction petition cannot be filed until the direct appeal is complete. The first step is to seek relief in the state courts. There are stringent time limits on when these may be filed. Some states even require that they be filed before the appeal is perfected so the appeal will decide all issues. In Arkansas, it can be done either way. In Arkansas, the post-conviction petition must be filed in Circuit Court within 60 days of the mandate after the appeal. This is jurisdictional, and there are no real exceptions. After the Circuit Court rules, there can be an appeal by either side.

If the prisoner loses the appeal, the next step is a habeas corpus petition in U.S. District Court. Under the federal law known as AEDPA, the Anti-Terrorism and Effective Death Penalty Act, the habeas corpus petition must be filed in federal court within one year of the affirmance by the state appellate court of the post-conviction denial. This is also jurisdictional.

Cases are lost all the time because the issues were not timely filed in the appropriate forum. Also, procedural default review is now mandated by Congress under AEDPA. An experienced criminal defense lawyer knows his or her way through this procedural maze and will protect your rights. Keep in mind, however, that prisoners do not have a constitutional right to effective assistance of counsel in post-conviction proceedings, so a lawyer's failure to protect your rights in a post-conviction proceeding will not get your conviction overturned. It can, however, provide a compelling argument to the Governor to grant clemency if the prisoner can show actual innocence.

I also provide services in preparing clemency petitions to present to the Governor for a sentence reduction. Many people call or write asking about a "time cut." Everybody wants a "time cut," but clemency is just about the only way to get one. Preparing a clemency petition and presenting it to the Post Prison Transfer Board for its review for the Governor is time-consuming work. One is trying to show why the inmate's conviction is wrong, the sentence is excessive, or rehabilitation is complete. I have obtained a few grants of clemency in what were thought to be hopeless cases.

Keep in mind, however, that post-conviction and clemency work usually is a great uphill battle. The overwhelming majority are denied. It is expensive with only a small chance of success. One's chances of success are improved with the services of a lawyer experienced in these matters.