Post-Conviction

IF YOU ENDED UP WITH A CONVICTION THAT IS SEVERELY AFFECTING YOU, WE CAN HELP

We have successfully handled post-conviction matters, including a client who was a convicted felon where we got the conviction reversed and the case dismissed, and another where our client was convicted of a felony and we got it changed to a misdemanor and immediately expunged. Click here to contact us or Click here to email, we will give you a free or discounted consultation to determine whether you are elibigle for post-conviction relief.

POST-CONVICTION

Relief under the Uniform Postconviction Procedure Act is only available to those who are on probation, parole, or currently serving a sentence. If your case was handled improperly by your lawyer, the Court or the prosecutor, you could be eligible for a new trial or some other relief. Give us a call to discuss whether this is an option for your situation.

CORAM NOBIS

A Petition for Writ of Error Coram Nobis is a procedure that's available to those that are not eligible for Post-Conviction relief. You are not automatically entitled to a hearing as you are under the Post-Conviction law, but often the Court will grant a hearing if your case warrants it. We handle all types of post-conviction matters, are versed on the law, and will attempt to convince a judge to re-open your case and give you the justice you should have received in the first place.

 

The Uniform Post-Conviction Procedure Act

 

scope of title

CRIMINAL PROCEDURE TITLE 7. UNIFORM POSTCONVICTION PROCEDURE ACT SUBTITLE 1. IN GENERAL Md. CRIMINAL PROCEDURE Code Ann. § 7-101 (2014) § 7-101. Scope of title This title applies to a person convicted in any court in the State who is: (1) confined under sentence of imprisonment; or (2) on parole or probation. HISTORY: An. Code 1957, art. 27, § 645A(a)(1); 2001, ch. 10, § 2; 2013, ch. 156, § 3.

right to begin proceeding

§ 7-102. Right to begin proceeding: (a) In general. -- Subject to subsection (b) of this section, §§ 7-103 and 7-104 of this subtitle and Subtitle 2 of this title, a convicted person may begin a proceeding under this title in the circuit court for the county in which the conviction took place at any time if the person claims that: (1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack on a ground of alleged error that would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy. (b) Requirements to begin proceeding. -- A person may begin a proceeding under this title if: (1) the person seeks to set aside or correct the judgment or sentence; and (2) the alleged error has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person's conviction. HISTORY: An. Code 1957, art. 27, § 645A(a)(1), (e); 2001, ch. 10, § 2.

number and time of filing petitions

§ 7-103. Number and time of filing of petitions: (a) Only one petition allowed. -- For each trial or sentence, a person may file only one petition for relief under this title. (b) 10-year filing period. -- Unless extraordinary cause is shown, a petition under this subtitle may not be filed more than 10 years after the sentence was imposed. HISTORY: An. Code 1957, art. 27, § 645A(a)(2)(i), (ii); 2001, ch. 10, § 2; 2013, ch. 156, § 3.

reopening postconviction proceeding

§ 7-104. Reopening postconviction proceeding: The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice. HISTORY: An. Code 1957, art. 27, § 645A(a)(2)(iii); 2001, ch. 10, § 2.

victim's and representative's rights of notice and attendance

§ 7-105. Victim's and representative's rights of notice and attendance: (a) Right of notice. -- Before a hearing is held on a petition filed under this title, the victim or victim's representative shall be notified of the hearing as provided under § 11-104 or § 11-503 of this article. (b) Right of attendance. -- A victim or victim's representative is entitled to attend any hearing under this title as provided under § 11-102 of this article. HISTORY: An. Code 1957, art. 27, § 645A(h); 2001, ch. 10, § 2.

allegation of error

§ 7-106. Allegation of error: (a) When finally litigated. -- For the purposes of this title, an allegation of error is finally litigated when: (1) an appellate court of the State decides on the merits of the allegation: (i) on direct appeal; or (ii) on any consideration of an application for leave to appeal filed under § 7-109 of this subtitle; or (2) a court of original jurisdiction, after a full and fair hearing, decides on the merits of the allegation in a petition for a writ of habeas corpus or a writ of error coram nobis, unless the decision on the merits of the petition is clearly erroneous. (b) Waiver of allegation of error. -- (1) (i) Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation: 1. before trial; 2. at trial; 3. on direct appeal, whether or not the petitioner took an appeal; 4. in an application for leave to appeal a conviction based on a guilty plea; 5. in a habeas corpus or coram nobis proceeding began by the petitioner; 6. in a prior petition under this subtitle; or 7. in any other proceeding that the petitioner began. (ii) 1. Failure to make an allegation of error shall be excused if special circumstances exist. 2. The petitioner has the burden of proving that special circumstances exist. (2) When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (1)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation. (c) Effect of judicial decision that Constitution imposes new standard. -- (1) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived. (2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that: (i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and (ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence. HISTORY: An. Code 1957, art. 27, § 645A(b), (c), (d); 2001, ch. 10, § 2.

effect of postconviction remedy on trial proceedings and appeals

§ 7-107. Effect of postconviction remedy on trial proceedings and appeals: (a) Trial proceedings. -- The remedy provided under this title is not a substitute for and does not affect any remedy that is incident to the proceedings in the trial court or any remedy of direct review of the sentence or conviction. (b) Appeals. -- (1) In a case in which a person challenges the validity of confinement under a sentence of imprisonment by seeking the writ of habeas corpus or the writ of coram nobis or by invoking a common law or statutory remedy other than this title, a person may not appeal to the Court of Appeals or the Court of Special Appeals. (2) This subtitle does not bar an appeal to the Court of Special Appeals: (i) in a habeas corpus proceeding begun under § 9-110 of this article; or (ii) in any other proceeding in which a writ of habeas corpus is sought for a purpose other than to challenge the legality of a conviction of a crime or sentence of imprisonment for the conviction of the crime, including confinement as a result of a proceeding under Title 4 of the Correctional Services Article. HISTORY: An. Code 1957, art. 27, § 645A(e); 2001, ch. 10, § 2; 2013, ch. 156, § 3.

right to counsel and hearing

§ 7-108. Right to counsel and hearing: (a) In general. -- Except as provided in subsection (b) of this section, a person is entitled to assistance of counsel and a hearing on a petition filed under this title. (b) Exceptions. -- (1) If a person seeks to reopen a postconviction proceeding under § 7-104 of this subtitle, the court shall determine whether assistance from counsel or a hearing should be granted. (2) If an appeal has been taken from the judgment of conviction to the Court of Special Appeals, until the judgment of conviction becomes final in the Court of Special Appeals, the court need not: (i) appoint counsel; (ii) hold a hearing; or (iii) act on the petition. HISTORY: An. Code 1957, art. 27, § 645A(e), (f)(1), (2); 2001, ch. 10, § 2.

appeal of final order

§ 7-109. Appeal of final order (a) Application. -- Within 30 days after the court passes an order in accordance with this subtitle, a person aggrieved by the order, including the Attorney General and a State's Attorney, may apply to the Court of Special Appeals for leave to appeal the order. (b) Appeal procedure. -- (1) The application for leave to appeal shall be in the form set by the Maryland Rules. (2) If the Attorney General or a State's Attorney states an intention to file an application for an appeal under this section, the court may: (i) stay the order; and (ii) set bail for the petitioner. (3) If the application for leave to appeal is granted: (i) the procedure for the appeal shall meet the requirements of the Maryland Rules; and (ii) the Court of Special Appeals may: 1. affirm, reverse, or modify the order appealed from; or 2. remand the case for further proceedings. (4) If the application for leave to appeal is denied, the order sought to be reviewed becomes final. (c) Costs. -- The Court of Special Appeals shall direct the political subdivision in which an order is passed to pay the necessary costs and expenses associated with a review under this section, including all court costs, stenographic services, and printing, if: (1) a person seeks a review under this section within 30 days after judgment; (2) the Court of Special Appeals grants leave to appeal under this section; and (3) the Court of Special Appeals finds that the person is unable to pay the costs of the review. HISTORY: An. Code 1957, art. 27, §§ 645E, 645-I; 2001, ch. 10, § 2.

 

 

Maryland Rules: Post-Conviction Procedure

 

how commenced-venue

MARYLAND RULES TITLE 4. CRIMINAL CAUSES CHAPTER 400. POST CONVICTION PROCEDURE Md. Rule 4-401 (2014) Rule 4-401. How commenced -- Venue (a) Generally. A proceeding under the Uniform Post Conviction Procedure Act is commenced by the filing of a petition in the circuit court of the county where the conviction took place. (b) Following DNA Testing. If a petition for DNA testing was filed pursuant to Code, Criminal Procedure Article, § 8-201, and the test results were favorable to the petitioner, the court shall (1) reopen a post conviction proceeding previously commenced under section (a) of this Rule or (2) if no post conviction proceeding has been initiated, treat the petition for DNA testing as a petition under section (a) of this Rule. HISTORY: (Amended April 5, 2005, effective July 1, 2005.)

petition

Rule 4-402. Petition: (a) Content. The petition shall state whether or not petitioner is able to pay costs of the proceeding or to employ counsel and shall include: (1) The petitioner's name, place of confinement, and inmate identification number. (2) The place and date of trial, the offense for which the petitioner was convicted, and the sentence imposed. (3) The allegations of error upon which the petition is based. (4) A concise statement of facts supporting the allegations of error. (5) The relief sought. (6) A statement of all previous proceedings, including appeals, motions for new trial and previous post conviction petitions, and the determinations made thereon. (7) A statement of the facts or special circumstances which show that the allegations of error have not been waived. Committee note. -- See Code, Criminal Procedure Article, Title 7 and Curtis v. State, 284 Md. 132 (1978). (b) Argument or citation. The petition may, but need not, include a concise argument or citation of authority. (c) Amendment. Amendment of the petition shall be freely allowed in order to do substantial justice. HISTORY: (Amended Oct. 31, 2002, effective Jan. 1, 2003.)

notice of petition

Rule 4-403. Notice of petition: Upon receipt of a post conviction petition, the clerk shall promptly notify the county administrative judge and the State's Attorney. When the petition relates to an action tried in that court, it shall be filed in the action. If the petition alleges that the petitioner is indigent, the clerk shall promptly notify the Collateral Review Division of the Office of the Public Defender by forwarding a copy of the petition. HISTORY: (Amended June 7, 2011, effective July 1, 2011; Sept. 8, 2011, effective Oct. 1, 2011)

Response

Rule 4-404. Response: The State's Attorney shall file a response to the petition within 15 days after notice of its filing, or within such further time as the court may order. No other paper shall be filed except as ordered by the court.

withdrawal

Rule 4-405. Withdrawal: The court may grant permission to withdraw the petition without prejudice at any time before the date of the hearing, and thereafter only for good cause.

hearing

Rule 4-406. Hearing: (a) When required. A hearing shall be held promptly on a petition under the Uniform Post Conviction Procedure Act unless the parties stipulate that the facts stated in the petition are true and that the facts and applicable law justify the granting of relief. If a defendant requests that the court reopen a post conviction proceeding that was previously concluded, the court shall determine whether a hearing will be held, but it may not reopen the proceeding or grant the relief requested without a hearing unless the parties stipulate that the facts stated in the petition are true and that the facts and applicable law justify the granting of relief. Cross references. -- For time requirements applicable to hearings in death penalty cases, see Code, Criminal Procedure Article, § 7-204. (b) Judge. The hearing shall not be held by the judge who presided at trial except with the consent of the petitioner. (c) Evidence. Evidence may be presented by affidavit, deposition, oral testimony, or in any other form as the court finds convenient and just. In the interest of justice, the court may decline to require strict application of the rules in Title 5, except those relating to the competency of witnesses. Cross references. -- For procedures concerning DNA testing and preservation of DNA evidence in post conviction cases, see Code, Criminal Procedure Article, § 8-201. (d) Presence of petitioner. The petitioner has the right to be present at any hearing on the petition. Cross references. -- For post conviction procedure, right to counsel and hearing, see Code, Criminal Procedure Article, §§ 7-101 -- 7-108 and §§ 7-201 -- 7-204; victim notification, Criminal Procedure Article, §§ 7-105, § 11-104, and 11-503. For right of a victim or victim's representative to address the court, see Code, Criminal Procedure Article, § 11-403. HISTORY: (Amended Dec. 15, 1993, effective July 1, 1994; Nov. 21, 1995, effective Dec. 1, 1995; Oct. 5, 1999; Jan. 8, 2002, effective Feb. 1, 2002; amended Nov. 8, 2005, effective Jan. 1, 2006; amended Sept. 10, 2009, effective Oct. 1, 2009.)

statement and order of court

Rule 4-407. Statement and order of court: (a) Statement. The judge shall prepare and file or dictate into the record a statement setting forth separately each ground upon which the petition is based, the federal and state rights involved, the court's ruling with respect to each ground, and the reasons for the action taken thereon. If dictated into the record, the statement shall be promptly transcribed. (b) Order of court. The statement shall include or be accompanied by an order either granting or denying relief. If the order is in favor of the petitioner, the court may provide for rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. (c) Copy to the parties. A copy of the statement and the order shall be filed promptly with the clerk and sent to the petitioner, petitioner's counsel, and the State's Attorney. (d) Finality. The statement and order constitute a final judgment when entered by the clerk. HISTORY: (Amended Nov. 1, 2001, effective Jan. 1, 2002.)

application for leave to appeal

Rule 4-408. Application for leave to appeal: An application for leave to appeal to the Court of Special Appeals shall be governed by Rule 8-204. HISTORY: (Amended June 3, 1988, effective July 1, 1988.)

 

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