Week 8 Review Flashcards
Are post convictions civil or criminal?
Neither, they are special proceedings (their own entity)
T/FD D is required to plead specific facts in a post conviction?
True
Is post conviction a constitutional right?
no, it’s a statutory remedy
Does D have all the rights they normally have (like right to an attorney) in a post conviction hearing?
No (b/c it’s a statutory remedy)
Can D have discovery in a post conviction hearing?
No, they need to make pleads based on what they’ve observed and the bill of exceptions
what type of attack is a post conviction hearing?
a collateral attack
what does a D have to show in a post conviction hearing?
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)
How long does D have to file a post conviction?
1 year
what should the prosecution do when D brings a post conviction?
file a motion to dismiss
what happens if the prosecution’s motion to dismiss is lost after a post conviction is filed?
there is a mini trial and portions of the trial are relitigated
what are the 3 reasons an evidentiary hearing would not be warranted?
(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)
If D is no longer in custody, can they bring a post-conviction?
No. However, can bring if on probation or parole
How many chances do you get to bring a post conviction?
one unless can argue that the facts could not have been discovered at the time of the original motion (usually a change in law)
do rules of evidence apply to evidentiary hearings?
yes
when in the post conviction process is D allowed to have an attorney?
when the evidentiary hearing is granted
where does a habeas motion need to be filed?
in the county where D is incarcerated
besides post conviction, what are the other 5 types of collateral attacks on final convictions?
- habeas corpus
- DNA Testing Act
- Motion for new trial for newly discovered evidence
- motion withdraw plea and vacate judgment: no deportation plea advisory
- write of error cram nobis (common law remedy)
what is the second most popular attack to file?
DNA testing act
does D have to file his own motion w/o an attorney if the motion is under the DNA testing act?
yes (similar to post conviction motion in this way)
What does D have to allege to get an evidentiary hearing under the DNA testing Act?
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)
is there a time bar on filing a motion under the DNA testing act?
no
how long does D have to file a motion for new trial based on newly discovered evidence?
3 years
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)?
no
is the motion to withdraw plea and vacate judgement a statutory or constitutional right?
statutory
what is the most uncommon collateral attack?
write of error coram nobis
what is D alleging when he files a writ of error coram nobis?
that a fact you can now prove was not proved at the time of trial
which type of collateral attack is a CL remedy and used as a last ditch effort?
writ of error coram nobis
what is the usual way a motion for writ of error coram nobis is killed?
If there’s any other constitutional/statutory ways to bring the argument in front of the court
