Direct Appeal Vs. Post Appeal Attacks On Conviction

Distinguishing Between Direct Appeals and Post-Appeal Collateral Attacks On A Conviction

A direct appeal is distinguished by a very formal set of rules and procedure in terms of pleading requirements and timeframes. In contrast, post-appeal collateral attacks tend to be more flexibility regarding the arguments that can be made. However, this flexibility is counterbalanced by the several technical legal barriers surrounding post-appeal collateral attacks.

Any issue raised in the trial court and preserved by way of either a proper legal objection or motion could theoretically be included in a direct appeal. In contrast, there are numerous procedural rules and barriers that preclude many issues raised in the trial court and the direct appeal from being eligible for discussion in a post-appeal collateral attack.

Procedure For Initiating A Post-Appeal Collateral Attack On Conviction

It’s important to talk about state and federal collateral post-conviction procedures separately due to their distinct nature. In a State 6500 Motion, the motion is filed in the same court, with the same judge, under the same case number that resulted in the conviction. Essentially, you are submitting a motion or petition to the same court and judge responsible for the original conviction and sentence.

There are significant pleading requirements embedded in the motion, as outlined in the Michigan Court rule 6.500 et seq. Most importantly, you must demonstrate good cause and prejudice for any new issues raised in a 6500 Motion.

Contrastingly, a Habeas Corpus Petition filed under 28 USC 2254 in federal court is technically considered a civil action. It is lodged as a habeas corpus petition in federal court under a civil case code, thereby initiating a new case in front of a federal judge. After properly filing the petition, the case starts with a judge in the district where the habeas corpus petition is being filed. Essentially, the petitioner is filing what is equivalent to a civil complaint in the district where the habeas corpus will be pending, with the civil complaint being the habeas corpus petition itself.

The Role Of Newly Discovered Evidence In A Post-Appeal Collateral Attack On A Conviction

Newly discovered evidence serves as an excellent example of an issue that could be successful in a post-appeal collateral attack, particularly in a state 6500 motion. For instance, evidence that surfaces following the conviction and the direct appeal, suggesting that the defendant may be innocent – like a new witness stepping forward, or DNA testing carried out on biological evidence found at the crime scene – could make a compelling argument in a state 6500 motion. However, it’s essential to understand the stringent rules regarding what qualifies as newly discovered evidence.

In a state 6500 motion, it’s insufficient that a piece of evidence wasn’t raised at the defendant’s trial. The defendant must demonstrate not only that the evidence was not presented at the trial court, but also that it could not have been discovered prior to the trial through reasonable diligence by the defendant and his lawyer. If the evidence was available and could have been found, and the defendant and his lawyer failed to unearth it, this could lead to the rejection of a newly discovered evidence issue in most cases.

Challenging The Effectiveness Of Trial Counsel In A Post-Appeal Collateral Attack On A Conviction

Ineffective assistance of counsel is a common issue in post-appeal collateral attacks, be it in a state 6500 or a federal 2255 Petition. It’s crucial to note that the Sixth Amendment guarantees every criminal defendant in the United States not merely the right to representation, but the right to constitutionally effective representation.

Ineffective assistance of counsel can be at the heart of a post-appeal collateral attack. Frequently the true thrust of an ineffective assistance of counsel argument is an attempt to prove that an innocent person was convicted at trial, or that there was a fundamental flaw in the trial process that the conviction itself cannot be trusted be relied upon.  These issues are frequently supported or enhanced by a strong effectiveness of trial counsel argument, and sometimes can even extend to ineffective assistance of appellate counsel for failing to raise issues related to the trial counsel during the direct appeal.

Ineffective assistance of counsel can critique the defense lawyer’s handling of the prosecution’s case, such as insufficiently challenging the prosecution’s evidence, or inadequately researching their witnesses and experts. Additionally, it can also focus on the defense lawyer’s failure to mount an effective defense case. This could involve neglecting to investigate, interview, or locate key witnesses, failing to consult or present expert witnesses, or not adequately challenging the prosecution’s expert at trial. Ineffective assistance of counsel can essentially highlight what the defense lawyer didn’t do in countering the prosecution’s case, as well as failing to present an effective defense case.

For more information on Direct Appeal vs. Post Appeal Attack on Conviction, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 356-8320 today.