| Post Conviction Cases Following a state direct (first) appeal that has failed, a person may want to do a second state appeal, called a "post-conviction application." These cases are filed in the trial court, and raise issues that could not have been raised during the direct appeal. About the only winning issues are ineffective assistance of trial and appellate counsel, changes in the law that are retroactive, and newly discovered evidence that could not have been discovered at trial and that would have changed the outcome of the trial. Every other type of issue, since it could have been brought on direct appeal, is usually considered waived. When the trial court denies the post-conviction application, an appeal can be taken to the Oklahoma Court of Criminal Appeals. Neither are very successful. The courts are genuinely hostile to these kinds of appeals. The statutory authority for these appeals is found at Title 22, Section 1080 of the Oklahoma Statutes. Usually the only reason to pursue a state post-conviction case is to present issues to the state courts that have never been presented to the state. There are few exceptions. This is because the federal courts will never consider an issue that was not first considered in state court. Another reason to file a state post-conviction application is to stop the clock running on the statute of limitations period on federal habeas corpus cases. (Read the section of this website on Habeas Corpus.) This tactic gives the habeas attorney extra time to study the case and prepare a habeas corpus petition. If you are considering pursuing a state post-conviction appeal, read the section of this website called "Case Reviews." Not every case, indeed very few, is appropriate for a post-conviction effort. There is a federal conviction equivalent of post-conviction appeals. It is called a "2255 case," so-called because it is brought pursuant to 28 U.S.C. Section 2255. Generally the same rules apply for 2255 cases as for state post-conviction cases. Very few issues succeed, and the courts are hostile to these appeals. If you have been asked to hire a lawyer for a 2255 case, please read our website page on "Case Reviews." Like state cases, very few federal convictions qualify for 2255 relief. |
| Robert W. Jackson Steven M. Presson |
| Jackson & Presson Attorneys Norman Oklahoma 405-447-6637 |
Post Conviction Cases ("collateral appeals")
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