Week 8 Review

Question 1

Are post convictions civil or criminal?

Answer 1

Neither, they are special proceedings (their own entity)

Question 2

T/FD D is required to plead specific facts in a post conviction?

Answer 2

True

Question 3

Is post conviction a constitutional right?

Answer 3

no, it’s a statutory remedy

Question 4

Does D have all the rights they normally have (like right to an attorney) in a post conviction hearing?

Answer 4

No (b/c it’s a statutory remedy)

Question 5

Can D have discovery in a post conviction hearing?

Answer 5

No, they need to make pleads based on what they’ve observed and the bill of exceptions

Question 6

what type of attack is a post conviction hearing?

Answer 6

a collateral attack

Question 7

what does a D have to show in a post conviction hearing?

Answer 7

D has to show there’s been a constitutional deprivation that renders their conviction void or voidable

(must be so significant that their conviction is going away)

Question 8

How long does D have to file a post conviction?

Answer 8

1 year

Question 9

what should the prosecution do when D brings a post conviction?

Answer 9

file a motion to dismiss

Question 10

what happens if the prosecution’s motion to dismiss is lost after a post conviction is filed?

Answer 10

there is a mini trial and portions of the trial are relitigated

Question 11

what are the 3 reasons an evidentiary hearing would not be warranted?

Answer 11

(1) facts are insufficient to warrant and evidentiary hearing (burden is high; ex. D must argue that a specific W should have been called and would have given specific testimony)
(2) the record refutes the claims
(3) claims are procedurally barred (if could have brought on direct appeal, then it’s barred)

Question 12

If D is no longer in custody, can they bring a post-conviction?

Answer 12

No. However, can bring if on probation or parole

Question 13

How many chances do you get to bring a post conviction?

Answer 13

one unless can argue that the facts could not have been discovered at the time of the original motion (usually a change in law)

Question 14

do rules of evidence apply to evidentiary hearings?

Answer 14

yes

Question 15

when in the post conviction process is D allowed to have an attorney?

Answer 15

when the evidentiary hearing is granted

Question 16

where does a habeas motion need to be filed?

Answer 16

in the county where D is incarcerated

Question 17

besides post conviction, what are the other 5 types of collateral attacks on final convictions?

Answer 17

1. habeas corpus
2. DNA Testing Act
3. Motion for new trial for newly discovered evidence
4. motion withdraw plea and vacate judgment: no deportation plea advisory
5. write of error cram nobis (common law remedy)

Question 18

what is the second most popular attack to file?

Answer 18

DNA testing act

Question 19

does D have to file his own motion w/o an attorney if the motion is under the DNA testing act?

Answer 19

yes (similar to post conviction motion in this way)

Question 20

What does D have to allege to get an evidentiary hearing under the DNA testing Act?

Answer 20

has to show that specific items could have been tested that would exclupate or exonerate them (show they are 100% innocent of the crime that they were convicted of)

Question 21

is there a time bar on filing a motion under the DNA testing act?

Answer 21

no

Question 22

how long does D have to file a motion for new trial based on newly discovered evidence?

Answer 22

3 years

Question 23

will a D be successful in arguing a motion to withdraw plea and vacate judgment if there has been no immigration impact (like being deported)?

Answer 23

no

Question 24

is the motion to withdraw plea and vacate judgement a statutory or constitutional right?

Answer 24

statutory

Question 25

what is the most uncommon collateral attack?

Answer 25

write of error coram nobis

Question 26

what is D alleging when he files a writ of error coram nobis?

Answer 26

that a fact you can now prove was not proved at the time of trial

Question 27

which type of collateral attack is a CL remedy and used as a last ditch effort?

Answer 27

writ of error coram nobis

Question 28

what is the usual way a motion for writ of error coram nobis is killed?

Answer 28

If there’s any other constitutional/statutory ways to bring the argument in front of the court