- Your constitutional rights have been violated; and
- The violation is the reason you were convicted.
You have the right to file a post-conviction petition if:
- You are currently in prison;
- You were released on appeal bond following a conviction;
- You were released under mandatory supervision; or
- You were sentenced to probation.
Common post-conviction petitions
Common issues raised in post-conviction proceedings include:
- Juror misconduct: For example, you might argue that jurors improperly did their own research on the evidence;
- Newly discovered evidence of innocence: Sometimes new evidence is found after the trial is over;
- Failure of the prosecutor to turn over evidence of innocence: This can include witness statements or physical evidence; and
- Ineffective assistance of counsel: This is a mistake by a lawyer, which can include failing to investigate, or failing to show important evidence to the jury.
Petition for actual innocence
This petition is used to show new evidence that you are innocent of the crime for which you were convicted. New evidence is shown by:
- Running new scientific testing on the evidence that was used against you,
- By finding a new witness to the crime who could not have been found before, or
- Where a witness who identified you recants (or takes back) their testimony.
- If a DNA test was not done at trial, or if the technology was not available at trial, new scientific DNA testing could be used to test the DNA evidence used against you to prove your innocence;
- Someone no one knew about who saw someone else commit the crime could come forward; or
- A witness who identified you may realize they were wrong.
Note: Actual Innocence is not the same as a not guilty or a guilty finding.
Writ of habeas corpus
A writ of habeas corpus is used to bring a convicted party into federal court. Writs of habeas corpus are used to review the legality of an arrest, imprisonment, or detention. If you feel that you were convicted or sentenced in violation of your rights, you can file a writ of habeas corpus after you have tried to appeal your conviction or sentence.
A writ of habeas corpus allows you to make arguments that you can’t make in an appeal. For example, you were convicted of manslaughter and the judge sentenced you to a prison term that is more than is allowed by law. Or, you were sentenced to 5 years in prison, and you are still being held after serving your 5 years. You can also file a writ to testify if you are a party in a lawsuit.
If the court denies your petition, you may appeal.