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A LEGAL INFORMATION PAMPHLET
POST-CONVICTION RELIEF
Authored by: Kevin D. AdamsThe information provided in this pamphlet is designed to provide the reader with basic legal information. This information is not intended to be legal advice and you are encouraged to consult an attorney regarding your specific legal needs.
My conviction was affirmed. Can I continue to appeal?
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 of counsel claims where the inmate alleges that his or her trial or appellate lawyer failed a duty to the client and the lawyer was ineffective. Generally the first step is to seek relief in state court. If a state post-conviction proceeding is not filed within a one year period this may preclude the individual from ever pursuing relief in federal court. If an individual loses the appeal, typically 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. Cases are lost all the time because the issues were not timely filed in the appropriate Court. An experienced criminal defense lawyer knows his or her way through this procedural maze and will protect your rights. What are the legal grounds to pursue post-conviction relief in Oklahoma? Title 22 O.S. § 1080 list the statutory basis for pursuing an application for post conviction relief in Oklahoma:
Post-Conviction Procedure Act - Right to Challenge Conviction or Sentence. (a) that the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this state; (b) that the court was without jurisdiction to impose sentence; (c) that the sentence exceeds the maximum authorized by law; (d) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice; (e) that his sentence has expired, his suspended sentence, probation, parole, or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; or (f) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may institute a proceeding under this act in the court in which the judgment and sentence on conviction was imposed to secure the appropriate relief. Excluding a timely appeal , this act encompasses and replaces all common law and statutory methods of challenging a conviction or sentence.
Do I have to hire an attorney to represent me on post-conviction relief?
Generally you are not entitled to a lawyer at state expense to pursue post-conviction relief. There are organizations that assist those who have been wrongly convicted that are without the funds to hire a private lawyer.
Innocence Project
Midwestern Innocence Project, Inc. Arkansas Innocence Project PO Box 322 Cherry Valley , AR 72324 If you believe that DNA may prove your innocence you can contact;
Oklahoma Indigent Defense System
Also many law schools have innocence projects. As of the publishing of this brochure none of the Oklahoma Law Schools have such projects but here are two other law school innocence projects ;
Texas Center for Actual Innocence University of Houston Innocence Network 100 Law Center Houston , TX 77204
Other than hiring an attorney what else can I do to fight my case?
Title 22 O.S. § 1080 paragraph (d) provides the following basis for post conviction relief:
(d) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
This exception is commonly referred to as “Newly Discovered Evidence”. To succeed on a claim for newly discovered evidence a defendant must establish;
1) that the evidence is material, 2) that it was not available at the time of trial, or if the evidence was available, the defendant could not, by the exercise of due diligence, have procured the same before trial, 3) that it is not cumulative, and 4) that there is a reasonable probability that the result at trial would have been different. Sheppard v. State, 731 P.2d 989 (Okl.Cr. 1987)
Hiring a good private investigator in to investigate your case could provide you with the newly discovered evidence that is necessary to overturn your conviction. Many individuals seeking to have their convictions overturned need the services of a competent private investigator even more than they need the services of an attorney. Eric Cullen is a quality private investigator that works in this area. His address is:
Eric Cullen 918 693-1633
What are the potential steps in pursuing post-conviction relief?
What factors should I considering in hiring an attorney?
If you or your family has access to the internet, the Oklahoma Bar Association has a web page that may assist you in making this most important decision. To go directly to that page go to:
www.okbar.org/publicinfo/brochures/lawyerbroc.htm
Where can I go to find a lawyer?
The Oklahoma Bar Association has a service that is free to the public and may assist a defendant in finding an attorney. This service allows for an individual to find a lawyer who practices in a specific area of law in a particular county in Oklahoma. That service is located on the internet at: www.oklahomafindalawyer.com.
How long will post conviction relief take? Post-conviction relief can be a very lengthy process. The lengthy of time that it will take will depend largely upon how successful the application for post conviction relief is. If the appeal is successful early in the process of course it will take less time than an appeal to the United States Supreme Court. It is not uncommon for the process of post conviction relief to take years.
DISCLAIMER The information provided in this pamphlet is not intended to be legal advice. The information provided in this pamphlet is intended to provider the reader of this pamphlet with basic legal information without applying that information to the specific facts of the reader’s case. You are strongly encouraged to seek legal advice from an experienced criminal defense lawyer. Copyright ©2006 Kevin D. Adams Disclaimer: Kevin D. Adams only provides legal advice after having entered into an attorney client relationship, which this website specifically does not create. Only after having entered into a representation agreement with Kevin D. Adams will an attorney-client relationship have been created. It is imperative that any action taken by you should be done on advice of legal counsel.* Because every case is different, the descriptions of outcomes and cases previously handled are not meant to be a guarantee of success. Home | Cases in the News | Legal Information| Commonly Asked Questions Tulsa Criminal Defense Lawyer: Kevin D. Adams
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