Home/Filing types/Post-conviction relief

What is post-conviction relief?

In short

• Post-conviction relief is collateral, not direct. The direct appeal argues that the trial record shows an error. Post-conviction goes outside the record.
• The claims it exists for are the ones your trial lawyer could not raise, because they are about your trial lawyer, or about something the State hid, or about evidence discovered later.
• It is called a motion in some states, a petition in others, an application in others, and a writ of habeas corpus in others. In many states the rule number is what people actually say: 3.850, 440.10, 11.07, PCRA, 60-1507, 6.500, 29.15, Rule 32.
• The deadlines are short, they differ in every state, and missing one is usually fatal. We do not list them on this page for a reason — see below.
• In most states you get one real chance. A second petition faces a successive-petition bar that is far harder to get past than the first.
• There is no constitutional right to a lawyer in state post-conviction proceedings, which is why most people filing these are doing it themselves.

People call this a lot of things. A motion for post-conviction relief, a motion to vacate a conviction, a PCR, a collateral attack, a habeas petition, or just the rule number — a 3.850, a 440.10, an 11.07, a PCRA petition. Jump to what it is called in your state.

Post-conviction relief explained: what does post-conviction relief mean?

A post-conviction relief motion — also called a motion to vacate a conviction, a petition, or an application, depending on the state — asks the court that convicted you to undo the conviction or the sentence for a reason the appeal could not reach.

A trial produces a record: the transcripts, the exhibits, the rulings. A direct appeal is confined to that record. The appellate court reads what happened in the courtroom and decides whether the judge got the law wrong.

Some of the worst things that go wrong in a criminal case leave no trace in that record. If your lawyer never investigated the alibi witness, the transcript does not show it — it shows a trial where no alibi witness was called. If the prosecution sat on a police report that contradicted its main witness, the transcript does not show that either. If a lab technician’s misconduct came to light three years later, it was not in the record because nobody knew.

Post-conviction relief is where those claims go. It lets you put new facts in front of a court, usually by sworn affidavit and sometimes at an evidentiary hearing, and argue that the conviction or the sentence cannot stand.

What a court can do about it: vacate the conviction, order a new trial, vacate or correct the sentence and resentence you, allow a guilty plea to be withdrawn, or reinstate an appeal that was lost through no fault of yours. What it usually will not do is release you outright. Relief almost always means the case goes back to where the error happened, and the State decides whether to try you again.

What is the difference between an appeal and post-conviction relief?

The direct appeal comes first, is limited to the trial record, and argues legal error by the trial judge. Post-conviction relief comes after, can go outside the record, and usually argues that your own lawyer failed you or that the State concealed something.

They are not interchangeable, and the order matters. A claim that could have been raised on direct appeal and was not is usually barred from post-conviction as procedurally defaulted. A claim that depends on facts outside the record is usually rejected on direct appeal as unreviewable. Each claim has one correct door, and putting it through the wrong one can lose it permanently.

This is the practical consequence: what you do in state post-conviction determines what you can still raise in federal court years later. A claim left out of the state petition is usually gone for good — Coleman v. Thompson, 501 U.S. 722 (1991) — and the narrow excuse for post-conviction counsel’s failure recognised in Martinez v. Ryan, 566 U.S. 1 (2012) was sharply limited by Shinn v. Ramirez, 596 U.S. 366 (2022), which restricts a federal court’s ability to develop new evidence that was not developed in state court.

What is a collateral attack on a conviction?

“Collateral” simply means beside, rather than through. A direct appeal goes up through the same case. A collateral attack starts a new proceeding that attacks the judgment from the side. Every filing on this page — a state post-conviction petition, a state habeas petition, a federal § 2254 petition, a federal § 2255 motion — is a collateral attack. The word matters because most state statutes and the federal rules use it, and because the successive-petition bars are written in terms of it.

What are the grounds for post-conviction relief?

The grounds differ by state, but five recur almost everywhere.

Ineffective assistance of counsel

The standard is Strickland v. Washington, 466 U.S. 668 (1984): counsel’s performance fell below an objective standard of reasonableness, and there is a reasonable probability that but for those errors the result would have been different. Both halves are required, and the second one — prejudice — is where most of these claims fail. “My lawyer barely spoke to me” is not yet a claim. “My lawyer never interviewed the two witnesses who would have testified I was somewhere else, and here are their sworn statements” is. The standard applies to guilty pleas too, Hill v. Lockhart, 474 U.S. 52 (1985), and to advice about plea offers, Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012).

Brady violations

Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution must disclose evidence favourable to the defence that is material to guilt or punishment, whether or not anyone asked for it. Giglio v. United States, 405 U.S. 150 (1972) extends this to evidence that impeaches a State witness — a deal, a payment, a prior inconsistent statement.

Newly discovered evidence

Facts that could not have been discovered earlier through reasonable diligence, and that would probably change the outcome. The threshold is high, and a freestanding claim of innocence alone is a difficult route — see Herrera v. Collins, 506 U.S. 390 (1993). Innocence is more often used as a gateway to get past a procedural bar, Schlup v. Delo, 513 U.S. 298 (1995), McQuiggin v. Perkins, 569 U.S. 383 (2013).

An involuntary or uncounselled plea

That the plea was not knowing and voluntary, or that you were never told a consequence you had to be told about — for a non-citizen, the immigration consequence, Padilla v. Kentucky, 559 U.S. 356 (2010).

An illegal sentence

A sentence beyond what the statute allows, based on a prior conviction that does not qualify, or imposed under a scheme later held invalid. Several states treat this as its own track with its own rule and, in some, no time limit at all — which makes it the one ground worth checking even when you think your deadline has passed.

Who can file, and when?

Anyone convicted of a crime, generally while still serving the sentence or under some restraint from it — custody, probation, parole or supervised release. Once a sentence is fully discharged, most state post-conviction statutes no longer reach you, and the remaining routes are narrower: a writ of coram nobis in the states that keep it, a motion to vacate aimed at a specific consequence, or a state petition for a certificate of innocence.

What is the post-conviction relief deadline and time limit in my state?

How long do I have to file post-conviction relief is the question this page is asked most, and the honest answer is that it depends entirely on your state.

Read this part carefully, because it is the question this page gets asked most and the one where a wrong answer costs the most. Every state sets a deadline for post-conviction relief, the deadlines are short, and they run from different triggers — the date the conviction became final, the date the appeal was decided, the date the new evidence was discovered. Several states recognise exceptions for newly discovered evidence, for a new rule of constitutional law made retroactive, or for State interference. A few claim types, such as a genuinely illegal sentence, escape the deadline in some states.

We deliberately do not publish a deadline chart. The numbers move, they differ by claim type within the same state, and a chart that is right for forty-eight states and wrong for yours would cost you your case. The deadline that governs you is in your state’s own statute or rule of criminal procedure, in its current text. Pulling that text for the state you are filing in is one of the things we do.

Can I file post-conviction relief after the deadline?

Sometimes, and only by pleading the exception in the petition itself. Most states recognise some combination of newly discovered evidence that could not have been found earlier, a new rule of constitutional law made retroactive, State interference that prevented a timely filing, and in some states an illegal sentence with no time limit at all. A late petition that does not plead an exception is denied on its face without anyone reading the grounds. A late petition that pleads one is at least decided.

Is there a post-conviction relief form, or a post-conviction relief motion sample?

Many states publish a mandatory form and reject petitions filed on anything else; your state’s rule will say. Federally there are two, both free: AO 243 for a § 2255 motion and AO 241 for a § 2254 petition. A sample found online is a different thing from your state’s current official form, and filing the wrong one wastes the single petition most states allow you.

Federal proceedings do have uniform figures worth knowing.

State time limits are separate from this and are usually shorter. A state deadline that passes can also cost you the federal one, because an untimely state petition is not “properly filed” and so does not toll the federal year.

What has to be in the petition?

Most states require, in substance:

• The case caption, court, case number and the judgment being challenged. Many states require it be filed in the court that convicted you, not an appellate court.
• Each ground, stated separately. This is not optional formatting. Most states require the facts supporting each ground to be pleaded specifically, and a petition of general complaint is summarily denied without a hearing.
• The facts supporting each ground, in detail, with names, dates and what each person would say. A claim that trial counsel failed to investigate needs the witness’s name and what that witness would have testified to — a court cannot find prejudice from a witness nobody has described.
• Supporting affidavits and exhibits. Sworn statements from the witnesses, the correspondence, the report, the record excerpt. Several states require the petition itself be verified under oath.
• A statement of what has been raised before. Which claims were raised on direct appeal, which were not, and why. This is where a procedural default is either avoided or created.
• The relief requested, stated precisely.

Many states publish a mandatory form and reject petitions that do not use it. Several impose page limits. A number of them require a specific number of copies for the prosecutor and the court.

How to file for post-conviction relief, step by step

Whether you are asking how do I file a motion for post-conviction relief, or how to file a motion to vacate a conviction, or how to file for post-conviction relief in your state, it is one sequence and this is it, in the order it has to happen.

1. Identify the correct vehicle in your state. The table below is the starting point, but several states run two tracks people search separately — Missouri uses Rule 29.15 after a trial and Rule 24.035 after a guilty plea; Arizona uses Rule 32 after trial and Rule 33 after a plea; Kentucky has RCr 11.42 and CR 60.02; Wisconsin has § 974.06 and § 809.30; Massachusetts has Rule 30(a) and 30(b); Washington has the Personal Restraint Petition and a CrR 7.8 motion. Choosing the wrong track wastes the one filing you get.
2. Get the current text of the rule or statute, from the state’s own source. Not a summary, not a blog, not a form packet from another year. Rule numbers move — Arizona renumbered its post-conviction rules in 2020.
3. Find your deadline in that text, and the trigger date it runs from. Then find the exceptions, because a petition filed late without pleading an exception is denied on the face of it.
4. Get the record. The transcripts, the plea colloquy, the sentencing transcript, the docket, your trial counsel’s file. You are usually entitled to your own file from your former lawyer. Without the record you cannot plead specifics, and without specifics the petition is denied without a hearing.
5. Research the controlling case law. For each ground, you need the decisions of your state’s highest court and, for federal constitutional claims, the Supreme Court — applying the standard to facts like yours. The generic citation to Strickland is not the work. The work is the case from your own supreme court where counsel’s failure to do exactly what your counsel failed to do was held to be deficient and prejudicial.
6. Draft each ground separately, on the state’s form if it requires one, with the facts pleaded specifically and each supporting affidavit attached and referenced.
7. Verify it if your state requires a sworn petition, make the required number of copies, and file it in the correct court.
8. Serve the prosecutor as the rule requires, and calendar the State’s response date and your reply date. In many states you have a right to reply to the State’s answer, and it is often the best opportunity you get.

Step 5 is where this becomes genuinely difficult without paid research tools. A person in custody may have a law library with printed reporters that stop several years ago, or a terminal with a limited database, or nothing. Free outside services — CourtListener, Google Scholar with Case law selected, Justia for the Supreme Court — will find you published opinions. What they will not reliably tell you is whether the case you are relying on has since been overruled, narrowed or distinguished by your own state’s supreme court. Citing a case that is no longer good law does more than fail to help.

Federal post-conviction: § 2255 and § 2254

What is a 2255 motion, and what is 28 USC 2255?

A § 2255 motion is the post-conviction vehicle for a person convicted in federal court. It is a motion to vacate, set aside or correct the sentence, brought under 28 U.S.C. § 2255, and it is filed in the court that sentenced you rather than in a new court. The grounds are the familiar ones — ineffective assistance of counsel above all — and the 2255 motion deadline is one year under § 2255(f) — the 2255 one-year deadline, running from the latest of the four alternative start dates in that subsection. The form is AO 243, captioned “Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody,” and it is free.

Two things trip people up. A claim that could have been raised on direct appeal and was not is procedurally defaulted unless you can show cause and prejudice, or actual innocence. And a second or successive § 2255 motion requires permission from the court of appeals before the district court may look at it — so if you are asking can I file a second 2255, the answer is that you first file an application for authorisation in the circuit, and it is granted only on newly discovered evidence or a new retroactive rule of constitutional law.

What is a § 2254 petition?

Section 2254 is the federal habeas route for someone convicted in state court who has finished state remedies. It is available only for claims already presented to the state’s highest court, O’Sullivan v. Boerckel, 526 U.S. 838 (1999), and it is judged under a standard of deference to the state court’s decision that is deliberately hard to meet, 28 U.S.C. § 2254(d). The one-year clock is in § 2244(d). The national form is AO 241, captioned “Petition for Relief From a Conviction or Sentence By a Person in State Custody.” The two forms are told apart on their faces: AO 243 says federal custody, AO 241 says state custody.

The practical order is: state post-conviction first, completely and with every ground in it, then federal habeas. Reversing that order, or leaving a ground out of the state petition, usually ends the federal case before it starts.

What is post-conviction relief called in my state?

The remedy is the same idea everywhere. The name is not, and the name is what people search. In many states the rule number is the name.

Eight states have no local shorthand at all — Iowa, Maine, Minnesota, Montana, North Dakota, Oregon, Rhode Island and Vermont. There the remedy is simply called post-conviction relief.

This table names the remedy. It does not give you the deadline, the filing requirements or the form, and it is not a substitute for reading your state’s current rule.

What is a motion for a new trial?

A motion for a new trial is a different filing from post-conviction relief and it comes much earlier: it is made in the trial court shortly after the verdict, on a short deadline set by the rules, and it asks the judge who heard the case to set the verdict aside. Federally it is Fed. R. Crim. P. 33, which allows a longer window only for newly discovered evidence. Two states use the name for the post-conviction remedy itself — New Hampshire’s petition for a new trial under RSA 526:1 is the nearest thing that state has to a post-conviction statute. Everywhere else, if the verdict was years ago, the filing you want is on this page and not a new trial motion.

Can a conviction be overturned after appeal? What happens after a denial

A denial is appealable, on the state’s own timetable, and in most states it is a separate appeal from the direct appeal with its own notice requirements and its own short deadline. That appeal is briefed like any other — see how an appellate brief is built and what the standard of review does to it.

A second petition is much harder than the first. Every state has a successive-petition bar, and most require you to show that the new claim rests on facts or a legal rule that were not available when you filed the first one. A claim that could have been raised the first time is barred as an abuse of the remedy or as procedurally defaulted — which is the reason a first petition should contain every ground you have, not the strongest one.

After state remedies are exhausted, federal habeas under § 2254 is the next step for a state prisoner, subject to the one-year federal limitation period and to the deference standard in § 2254(d). A second federal petition requires authorisation from the court of appeals before the district court may even consider it.

What mistakes sink a post-conviction petition?

• The deadline, missed because the state rule was read in a summary rather than in its current official text, or because the trigger date was misidentified.
• The wrong vehicle — a Rule 32 where the state requires Rule 33, a trial-track motion after a guilty plea, a CrR 7.8 motion where the Personal Restraint Petition is the route.
• Grounds pleaded generally. “Ineffective assistance of counsel” with no facts, denied without a hearing, and then barred from being raised properly later.
• Grounds left out. The first petition is where everything goes. What is omitted is usually waived, in state court and in federal court after it.
• Affidavits missing. A claim about an uncalled witness with no statement from that witness gives the court nothing to find prejudice from.
• Case law that is no longer good law, cited in support of the strongest ground you have.

Common questions

Rules and cases cited on this page

28 U.S.C. §§ 2244(d), 2254, 2255 · 28 U.S.C. § 1651(a) · Fed. R. Crim. P. 33, 35 · the state rules and statutes listed in the state section above

Brady v. Maryland, 373 U.S. 83 (1963) · Giglio v. United States, 405 U.S. 150 (1972) · Strickland v. Washington, 466 U.S. 668 (1984) · Hill v. Lockhart, 474 U.S. 52 (1985) · Pennsylvania v. Finley, 481 U.S. 551 (1987) · Coleman v. Thompson, 501 U.S. 722 (1991) · Herrera v. Collins, 506 U.S. 390 (1993) · Schlup v. Delo, 513 U.S. 298 (1995) · O’Sullivan v. Boerckel, 526 U.S. 838 (1999) · Padilla v. Kentucky, 559 U.S. 356 (2010) · Martinez v. Ryan, 566 U.S. 1 (2012) · Lafler v. Cooper, 566 U.S. 156 (2012) · Missouri v. Frye, 566 U.S. 134 (2012) · McQuiggin v. Perkins, 569 U.S. 383 (2013) · Shinn v. Ramirez, 596 U.S. 366 (2022)

Related pages

What is a Section 1983 lawsuit? · How do I file a motion in court? · How do I write an appellate brief?