Pick Your Battles: Direct Appeals, Motions for Post-Conviction Relief, and Habeas Proceedings in Criminal Cases
by Gus M. Centrone, Esq.
In criminal cases, appellate counsel must carefully consider the proper procedural form in which to raise appellate arguments.
Motions for Post-Conviction Relief
In Florida criminal appeals, claims raised and rejected on direct appeal or claims that should have been, but were not raised on direct appeal are barred. They cannot later be asserted in a motion for post-conviction relief brought under Florida Rule of Criminal Procedure 3.850. However, not every colorable argument should be raised for the first time on direct appeal.
Certain arguments should be first raised in a 3.850 motion, such as a claim of ineffective assistance of trial counsel. For instance, a claim of ineffective assistance of counsel should not be brought on direct appeal unless “the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” If an appellant asserts an ineffectiveness claim on direct appeal, it will not be barred later unless the conviction is affirmed on appeal with a written opinion expressly addressing the issue of ineffectiveness.
Some otherwise prohibited claims may nevertheless be raised in a Rule 3.850 motion. For example, Rule 3.850 imposes a two year time limitation. But a motion for post-conviction relief based on a “major change of law” can be brought after that deadline “if unfairness is so fundamental” that the doctrine of finality must be set aside. That change must be constitutional in nature and must be of fundamental significance. A minor change in the law – an “evolutionary refinement” – is insufficient to overturn the doctrine of finality.
Habeas Corpus Review
Claims that could have been, should have been, or were raised on direct appeal cannot be raised in a federal habeas proceeding. Further, state courts must have an “opportunity to act” on the constitutional claims reviewed in a habeas proceeding. Thus, an appellant must exhaust any state remedies before a federal court will provide review in a habeas proceeding.
A federal habeas petitioner can still obtain federal review of a procedurally barred claim “if he can demonstrate either (1) ‘cause for the [procedural] default and actual prejudice as a result of the alleged violation of federal law,’ or (2) that the courts ‘failure to consider the [federal] claims will result in a fundamental miscarriage of justice.’” One way a prisoner can establish such an injustice is by showing he is factually innocent of the offense.
Federal habeas review is for federal constitutional arguments. To meet the exhaustion requirement, the diligent appellate attorney will raise federal constitutional arguments in state court through a motion for post-conviction relief.
Conclusion
These considerations only scratch the surface of the complexities involved in criminal appeals. Appellate counsel must take great care in selecting the proper procedural vehicle for his arguments. Failing to do so may cost the defendant a valid basis for appellate relief.
[1]
Etheridge v. State, 766 So. 2d 413, 414 (
[2]
Tyson v. Aikman, 31 So. 2d 272, 273 (
[3]
Medrano v. State, 892 So. 2d 508, 509 (
[4]
Corzo v. State, 806 So. 2d 642, 645 (
[5]
[6]
Witt v. State, 387 So. 2d 922, 927 (
[7] I.e., Coker v. Georgia, 433 U.S. 584 (1977) (where the Court found that death sentence for rape forbidden by Eighth Amendment).
[8] Witt, 387 So. 2d at 929-30.
[9]
Staas v. McDonough, 2007 WL 433462 (M.D.
[10] Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001); O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (in order to meet exhaustion requirement, prisoner was required to present his claims to state supreme court for discretionary review).
[11]
Lynd v. Terry, 470 F.3d 1308, 1314 (11th
Cir. 2006) (quoting Coleman v. Thompson, 501
