A collateral attack is any kind of post-conviction motion that happens after your conviction becomes final. There are a number of types, some much more common than others. Here are the most common.

Post-Conviction Relief Act (PCRA)

In Pennsylvania you can file a petition under the Post-Conviction Relief Act in the trial court where you were originally convicted, arguing that your conviction was improper. See 42 Pa.C.S. Section 9501. This is where you can argue that your prior trial attorney or even your prior appellate attorney was constitutionally ineffective. You can also argue that newly-discovered evidence shows you were innocent, or that a change in the law makes your original conviction improper, or a host of other things.

These petitions generally must be filed within one year of your conviction becoming final. An exception exists for newly-discovered evidence, or if courts make new rules of law, but even in those cases you only have 60 days from the day you learn of new evidence or the law change to file a petition. If you miss a deadline here, you may lose your rights forever.

Direct Appeals of PCRA Petitions

A PCRA petition is filed in the trial court, but you can appeal the denial of relief the same as you would any conviction. This means you can appeal to the Superior Court and the Supreme Court all over again. Once again though, there are strict deadlines in play. Moreover, the rules start to get really tricky at this point because you are dealing with an appeal from an appeal from an appeal from an appeal.

Habeas Corpus

In federal cases, you really only have one form of collateral attack you can file, a petition for a writ of habeas corpus under 28 U.S.C. Section 2255. This is a motion you file in the federal trial court saying something went wrong at trial in your original case.

Unlike PCRA petitions, federal habeas petitions are extremely limited and are designed specifically to keep people in prison. In the 1990s Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA). This law claimed to do a lot of things, but one of the things is succeeded in doing was making federal habeas corpus almost impossible for a defendant. That doesn’t mean you can’t win. I have won these types of petitions. This just means it is very difficult to win. The only way you can is with an attorney who understands the extremely complex rules that AEDPA established.

You can also file a habeas corpus petition for state convictions once you have run out of options under the PCRA (see above). These petitions are filed under 28 U.S.C. Section 2254, and are also ruled by AEDPA. As a result, they are also very very difficult to win. One additional complication is that you have to have already argued the same argument in state court, either on direct appeal or with a PCRA petition, and you have to show the federal court that the state court got it wrong. And not just wrong, but unreasonably wrong.

Just like with federal habeas petitions, once you get to this point in the litigation, only an attorney who has experience with habeas litigation is going to be able to competently handle this kind of case. These can be won. But they can also be lost very easily by making a mistake.

Unlike PCRA petitions, you don’t have a right to appeal to the Circuit Court for either type of habeas petition. For habeas cases you have to first get something called a Certificate of Appealability. This means before you are even allowed to appeal, you have to demonstrate to either the judge who denied your application or to the appellate court that will decide your case, that you have a good chance of winning your case. If you fail to get this certification, you can’t appeal.

Hopefully by this point, I don’t have to remind you of the obvious. This is all really complicated. Most lawyers have no idea how to handle these types of cases. Don’t lose your case because you missed a deadline or hired an inexperienced appellate lawyer. Contact me today.