Biting The Apple Legal and Ethical Obligations of Post-Conviction Relief Counsel, 1117 SCBJ, SC Lawyer, November 2017, #18

AuthorElizabeth Franklin-Best, J.

Biting the Apple Legal and Ethical Obligations of Post-Conviction Relief Counsel

Vol. 29 Issue 3 Pg. 18

South Carolina Bar Journal

November, 2017

Elizabeth Franklin-Best, J.

In courts throughout South Carolina, attorneys have the duty to represent persons charged with and convicted of criminal offenses. More often than not, once convicted, these persons are inmates housed in the SC Department of Corrections (SCDC) and are awaiting an opportunity to collaterally challenge the basis of their convictions through the Uniform Post-Conviction Relief Act.1 Once convicted in General Sessions Court, many inmates challenge their convictions in the Court of Common Pleas after filing an application for post-conviction relief (PCR) and then either retain a lawyer, or have a lawyer appointed for them. Although its basis is in criminal law since it is the exclusive state remedy for challenging criminal convictions, as a civil remedy post-conviction relief proceedings are controlled by the South Carolina Rules of Civil Procedure (SCRCP). Attorneys undertaking these representations, then, are charged with knowing pertinent aspects of both criminal and civil law. The following is a primer on the ethical duties of these civil attorneys representing criminal applicants and the legal consequences for both applicants and their lawyers for failing to perform effectively.

The Uniform Post-Conviction Relief Act

The Uniform Post-Conviction Relief Act (PCRA) provides the statutory remedy for any person who has been convicted of, or sentenced for, a crime and who claims (1) that the conviction or sentence was in violation of the federal or state Constitution, (2) that the court was without jurisdiction to impose the sentence, (3) the sentence exceeds the maximum allowed by law, (4) there are material facts, not previously presented or heard, that require vacation of the conviction or sentence in the interests of justice, (5) that his or her sentence has expired, his or her probation, parole, or conditional release was unlawfully revoked, or her or she is otherwise being unlawfully held in custody or other restraint, or (6) that the conviction or sentence is otherwise subject to collateral attack upon any ground heretofore available under any common law, statute, or other writ, motion, petition, proceeding or remedy[2] In short, the Post-Conviction Relief Act serves as the "exclusive state remedy" for violations of law. The PCRA is not a substitute for a direct appeal, and an applicant may not attack his or her conviction on the ground that the evidence presented at trial was insufficient to support a conviction.3 Inmates are entitled to evidentiary hearings to present their claims.4

Generally, allegations raised in post-conviction relief allege the ineffective assistance of counsel.5 However, other claims may be raised as well, including prosecutorial misconduct and the presentation of false evidence.6

An application for post-conviction relief must be filed within one year of the entry of a judgment of conviction or within one year after the sending of the remittitur to the lower court from an appeal, or the filing of the final decision upon an appeal, whichever is later. Sometimes, this one-year statute of limitations does not apply. For i nstance, if either the United States Supreme Court or a state Supreme Court issues a new binding opinion, and that case imposes a substantive standard in a state criminal proceeding not before recognized, or recognizes a right not in existence at the time of trial, and that standard or right is intended to apply retroactively, then an applicant has one year to file after the date that decision was issued.7 Also, if evidence of new material facts comes to light, then the application must be filed within one year after the date of the actual discovery of the facts, or after the date when the facts could have been ascertained by the exercise of due diligence.8 The one-year statute of limitations in post-conviction relief applications does not apply when a defendant is denied a direct appeal due to the ineffective assistance of counsel.9

It is imperative that an applicant raise all possible grounds in his or her initial application for post-conviction relief because the SC Supreme Court has steadfastly maintained that an applicant is only entitled to one "bite of the apple."10 A "successive" application is one that raises grounds not raised in a prior application, raises grounds previously heard and determined, or raised grounds waived in prior proceedings.11 Successive applications are disfavored and the applicant will carry the burden of establishing that any new ground raised in a subsequent application could not have been raised by him in a previous application.12

In Robertson v. State, a capital case, the SC Supreme Court reaffirmed its commitment that successive PCR applications are disfavored, but found an exception because of the unique circumstances presented (trial counsel was not statutorily qualified to represent capital defendants). In light of this opinion, however, it is clear that allegations of ineffective assistance of PCR counsel will not provide, per se, a "sufficient reason" to allow a successive PCR application under S.C. Code Ann. § 17-27-90.13

It is also imperative for PCR counsel to file a motion pursuant to SCRCP Rule 59(e) upon receipt of an order of dismissal to ensure that the circuit court judge makes specific findings of fact and expressly states the conclusions of law relating to each issue presented. If this is not done within the 10-day timeframe, these issues will not be preserved for further appellate review.14

If PCR counsel does not raise any potentially meritorious claims during the post-conviction relief proceedings, appellate counsel will almost certainly file a Johnson v. State petition to the SC Supreme Court.[15] A Johnson petition is the...

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