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Ineffective Assistance Of CounselApplication Of Ineffective Assistance Of Counsel

In the context of ineffective assistance of counsel, it’s vital to bear in mind that any motion, appeal, or post-appeal collateral attack must include a detailed factual proffer supporting the claim. The defendant and their counsel should not only request an evidentiary hearing to demonstrate ineffective assistance of counsel, but also provide the court with ample factual evidence to convince the court to grant such a hearing. This hearing, known as a Ginther hearing, is designed to determine if the defendant received constitutionally effective assistance of counsel during the trial.

To obtain this Ginther hearing, it’s advisable to proffer as much factual documentation as possible. This can include affidavits by witnesses that the defense lawyer failed to interview or present, reports by experts who weren’t consulted or could have testified at the trial, and declarations by the defendant or their family indicating that the defense lawyer didn’t properly prepare for the trial.

A review of the defense lawyer’s trial preparation can also be enlightening; for instance, if billing records reveal limited time spent on trial preparation, or if witnesses were ready to meet but were never approached. A robust, factually intensive proffer is critically important as part of the request for the evidentiary hearing, demonstrating the need and entitlement to such a hearing.

Potential Outcomes Of A Successful Post-Appeal Collateral Attack On A Conviction

It’s extremely rare for a successful post-appeal collateral attack to result in an outright reversal and dismissal of the charges. The most common outcome is typically the setting aside of the conviction, followed by an order for a new trial for the defendant. The bottom line is that post-appeal collateral attacks on convictions rarely lead to a complete overturning of a conviction.

The Significance Of Procedural Default In Post-Appeal Collateral Attacks On Convictions

Procedural default is a crucial factor in post-conviction collateral attacks. Various rules, such as the law of the case, the finality of convictions, the inability to revisit issues from the direct appeal, and the necessity of proper preservation and exhaustion of federal habeas issues, all contribute to this problem. Any procedural default can almost universally bar the raising of an issue, regardless of the issue’s substantive merit. If there’s a procedural barrier to an issue, it’s likely to prevent the substance of the issue from being heard or ruled upon by the court.

Filing Deadlines For A Post-Appeal Collateral Attack On Conviction

In federal cases, it’s critical to understand that there are very strict time limitations for filing a post-appeal collateral attack on conviction under 28 USC 2254. These limitations are particularly less stringent for a post-conviction 6500 Motion.

Federal Habeas Petitions And AEDPA

The Anti-Terrorism Effective Death Penalty Act (AEDPA) stipulates that a habeas corpus petition must be filed within a year of a case denial by the highest criminal court of appeals in the state. From a practical standpoint, this means that in Michigan, for example, due to the rule of exhaustion and the necessity of having issues properly preserved for federal habeas relief, it is imperative to prosecute the direct appeal all the way through the Michigan Supreme Court.

The Importance Of Exhaustion Doctrine

In order to satisfy the exhaustion doctrine, the appeal must be taken to the Court of Appeals, and if denied there, then further taken to the Michigan Supreme Court. The caveat is that once the Michigan Supreme Court also denies the appeal, then a one-year window is activated for filing a habeas petition in federal court.

Addressing Unpreserved Federal Issues

There are two equally important limitations on your ability to bring a federal habeas petition, known as preservation (or federalization) and exhaustion – that is the federal issues must be both properly preserved (or federalized) during the state direct appeal, and exhausted in the state court appeal (up to the state supreme court). If a valid and potentially winning federal issue exists, that has not been properly preserved (or federalized) and exhausted, then that may force a prisoner to preserve and or exhaust the issue by way of a state 6500 motion. In such a case, a state 6500 Motion must be filed within a year of the Michigan Supreme Court denial, with one of the express reasons being to federalize and/or exhaust any unpreserved federal issues for habeas review.

Here is a list of issues to consider when researching a potential post-conviction claim:

  • The good cause and prejudice requirement of 6500 must be satisfied.
  • If the 6500 Motion is denied by the trial court, an appeal must be filed with the Court of Appeals to satisfy the exhaustion doctrine.
  • If the Court of Appeals denies it, then it needs to be appealed, via an application for leave, to the Michigan Supreme Court.
  • If any link in this chain is broken, then a federal habeas corpus can never be filed, essentially making the process unending.

Post-Appeal Collateral Attack And 6500 Motion

Nevertheless, even if you do not file a post-appeal collateral attack, you can technically file a 6500 motion years later. However, there are procedural rules that make it difficult (or even impossible) to file successive 6500 motions, so except in the most unusual case, a prisoner is limited to only one 6500 petition.

If it’s been more than one year since the Michigan Supreme Court denied your direct appeal, then it is unlikely that you would ever be able to file a federal habeas corpus petition under 28 USC 2254. However, if you have never filed a 6500 motion, you still have the opportunity to file one.

For more information on the Concept Of Ineffective Assistance Of Counsel, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.

Mark Satawa

Call Today For Your Free Case Strategy Session
(248) 509-0056