Post-Conviction Petitions

Was your attorney's assistance ineffective?

If your attorney's representation before, during, or after your trial was ineffective, it may be a violation of your constitutional right to effective assistance of counsel and you may be entitled to relief, including:

  • A new trial,
  • A lower sentence,
  • Resentencing,
  • A new appeal challenging your conviction and sentence, and/or,
  • In rare cases, a belated "en banc" appeal any final order in your case before three judges of the circuit court that you were tried in, rather than a three-judge panel of the Appellate Court of Maryland (formerly the Court of Special Appeals).
Similarly, if you pled guilty and your attorney's assistance was ineffective before, during, or after your guilty plea, you may be entitled to:
  • Vacate your guilty plea and proceed to trial.
  • File a belated application for leave to appeal challenging your guilty plea before the Appellate Court of Maryland (formerly the Court of Special Appeals), or
  • Have the terms of your guilty plea that you agreed to fulfilled.
Whether you exercised your right to a trial (judge or jury trial) or pled guilty, the mistake that your attorney(s) made may entitle you to various alternative forms of relief, including: the right to file a belated: motion for a new trial, motion for modification of sentence, and/or an application for a three-judge panel sentencing review.

   Whether your attorney's mistake(s) will entitle you to relief depends on:

1. Deficient performance, and

    Your attorney's in/action(s) violated, "prevailing professional norms", meaning professional duties that an attorney owes to his client. The most commonly violated duties are: communication, competence, diligence, and investigation. This requires an evaluation of the totality of the circumstances in your case and viewing your attorney's actions (objectively) as a whole. Simply nitpicking one or two usually won't work.


   B. Any strategy for the in/action(s) was unreasonable.


2. Prejudice.

i. Proving prejudice by showing a "substantial possibility" / "substantial probability" / "reasonable probability" of a different outcome in the proceedings but for your attorney's mistake(s). All three of these terms are used interchangeably by most judges in Maryland. Most often, that means that, but for your attorney's mistake(s), you would have been found not guilty by the jury or judge. HOWEVER, establishing prejudice in this manner also requires an evaluation of ALL the evidence presented in your case. Cherry-picking the evidence that you like will not work. The burden of proof here lies between "some conceivable evidence" and a "preponderance of the evidence", which is generally accepted as meaning 51%.

ii. Proving prejudice by showing that the result of the proceeding was fundamentally unfair or unreliable. Establishing prejudice in this manner also requires an evaluation of ALL the evidence presented in your case. The burden of proof is the same as above.

iii. Having prejudice presumed due to any of the following:

a. An "actual" / "complete" denial of counsel during a "critical stage" of the criminal proceedings. Common examples are your attorney: not being in the courtroom, being prevented from communicating with you, or being otherwise prevented from assisting you in your defense, and failing to file a motion to modify your sentence timely after you request it.

b. Constructive denial of counsel occurs when your attorney IS present (at least physically) and not denied from assisting you during a "critical stage" of the criminal proceedings, but the circumstances of her or his in/action(s) still amount to the denial of the assistance of counsel. Examples are: failing to subject the State's case (or, if you're in federal court, the Government's case) to "meaningful adversarial testing", expressly telling or strongly inferring to the jury or judge that you are guilty, sleeping during your trial, and failing to challenge ANY of the evidence presented by the State or Government throughout ALL of trial and/or sentencing, not simply neglecting to challenge it at specific points during the trial or sentencing.

c. A conflict of interest. For example, your attorney is representing both you and your co-defendant in a joint trial where you are both charged with committing the same crime and the defense that your attorney makes for your co-defendant could harm your case or vice-versa.

Common mistakes leading to ineffective assistance:

  • Failing to request and/or object to voir dire questions.
  • Failing to present potentially exculpatory evidence.
  • Failure to object to unduly prejudicial evidence.
  • Failing to request and/or object to jury instructions.

How do I know if my attorney's assistance was ineffective:

  1. Determine whether your attorney's performance was deficient.
  2. Determine whether you were unduly prejudiced by your deficient performance.
  3. Admit that you have no idea, and:

Contact Andy