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What Is The Difference Between Postconviction Proceedings In State And Federal Court?


Each state has its own unique postconviction proceedings. When hiring a post-conviction lawyer, it is important that he or she is familiar with the procedures for the state in which you were convicted.

If you are convicted after a trial in Missouri, your next step is to file a direct appeal. If your direct appeal is denied, then you will have 90 days from the date of the mandate to file a postconviction motion in the trial court that convicted you. A person who files a postconviction motion is called the movant. This motion is referred to as a Form 40. Your appellate attorney should provide the form to you. If not, the prison library should have copies. This motion is filed under Missouri Supreme Court Rule 29.15 and is called a motion, to vacate, set aside or correct the judgment or sentence. In this motion, you generally allege claims of ineffective assistance of counsel regarding your representation.

If you were convicted after a guilty plea, you can also file a postconviction motion within 180 days from your sentencing date. This is also filed on the Form 40. This motion is filed under Missouri Supreme Court Rule 24.035 and is also called a motion to vacate, set aside or correct the judgement or sentence. In this motion, you can allege among other things, that your guilty plea was involuntary, unknowing or unintelligent.

Both the Rule 29.15 and Rule 24.035 motion can initially be filed without an attorney. It is very important, however, not to miss the filing deadline for these motions because there are only a few exceptions to excuse a late filing.

Once a postconviction motion is filed, you can retain counsel or have counsel appointed. You can also retain counsel prior to filing the Form 40. Once counsel enters an appearance, he or she has 60 days to file an amended motion and is allowed one 30-day extension of time. The time to file the amended motion is very short. Postconviction counsel must ensure that your amended motion is timely filed. If you have retained counsel and he or she fails to file a timely amended motion, the postconviction court can only review the issues you raised in your first motion. After the amended motion is filed, the court will decide whether an evidentiary hearing will be held. An evidentiary hearing is not automatic as you must raise claims that are not refuted by the record. The court may decide your case without holding an evidentiary hearing. If an evidentiary hearing is held, both the movant and the movant’s attorney will testify. The movant and the State may call other witnesses. After the hearing, the motion court will decide whether to grant or deny your motion.

In federal court, you can file a motion under Title 28 United States Code Section 2255, which is a motion to vacate, set aside or correct a sentence. Both defendants who were convicted after a trial and defendants who entered a guilty plea can file a Section 2255 motion. A person who files a Section 2255 motion is called the movant. In this motion, the movant can raise issues of ineffective assistance of counsel. A Section 2255 motion must be filed within one year of the conclusion of your criminal case. This time begins to run upon the exhaustion of all appellate remedies or from the expiration of your time for seeking the last appellate remedy.

For example, if you pled guilty in federal court and did not file a notice of appeal, then your one-year limitation period will start to run after fourteen days, the time in which you had to file a notice of appeal. It is very important to correctly calculate the time limitations in these cases. All too often I see these limitations periods being missed or miscalculated, so it’s important to consult with an experienced, competent postconviction lawyer.

When you file a motion to vacate, set aside or correct a sentence in federal court, it will be assigned to the judge who presided over your trial or guilty plea. Once the Section 2255 motion is filed, the court will generally issue an order to the government to show cause. An order to show cause requests that the government respond as to why the petition should not be granted. The court will give the government a specific amount of time within which to respond to the Section 2255 motion.

Once the government files a response, the movant can file a reply. Once the response and reply are filed, the court will grant or deny an evidentiary hearing. If the claims raised in the Section 2255 motion cannot be refuted by the record or if factual determinations must be made, the court will hold an evidentiary hearing.

At the evidentiary hearing, the movant may call witnesses and testify. The government may also call witnesses. Both the movant and counsel usually testify at these hearings. After the hearing is completed, the court will decide whether to grant or deny a movant’s claims. The court may also grant or deny a movant’s claims without an evidentiary hearing.

In My Case, Who Will Be My Judge?

When you challenge your conviction and sentence in a post-conviction proceeding, the case will go back to the trial judge or the judge who accepted your guilty plea. A movant’s post-conviction case cannot be reassigned to another judge unless the judge recuses themselves or leaves the bench.

For more information on Difference Between Federal And State Court Proceedings, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (314) 282-4188 today.

Kevin L. Schriener, ESQ.

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(314) 282-4188

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