Post-Conviction Litigation in Northern Virginia
representing state and federal defendants Post-conviction
KCPM’s significant post-conviction practice includes the representation of state and federal defendants on direct appeal in Virginia’s appellate courts, the United States Court of Appeals for the Fourth Circuit, the United States Court of Appeals Court for the District of Columbia, and United States Supreme Court. We litigate petitions for writs of habeas corpus in Virginia’s circuit and federal courts (also known as 2255 or 2254 motions in federal court) and appeals therefrom. Underscoring our post-conviction experience, KCPM lawyers have taught continuing legal education courses on post-conviction relief (state habeas and state appeals) to other attorneys and personally argued numerous cases before various appellate courts.
As part of our practice, we often handle or consult on post-conviction matters related to the immigration consequences of criminal convictions. In light of Padilla v. Kentucky, 555 US 1169 (2010), criminal defense counsel is required to accurately advise a defendant on the immigration consequences of a criminal conviction. Unfortunately, many defendants are incorrectly advised as to the immigration consequences of convictions and face potential detention and deportation due to entering into ill-advised plea agreements. The sooner such errors are identified, the more options exist for remedying the situation through post-conviction litigation.
Virginia Criminal Appellate Procedure
Virginia appellate procedure is governed by the Virginia Rules of the Supreme Court. In general, a criminal defendant in a Virginia circuit court seeking to appeal a conviction must file a notice of appeal to the Virginia Court of Appeals with the circuit court clerk within 30 days of the entry of the final sentencing order. Va. Sup. Ct. R. 5A:8. Counsel should ensure that the trial court record is complete and all transcripts are prepared and filed with the trial court within 60 days of entry of final judgment. Va. Sup. Ct. R. 5A:8). The trial court will thereafter transmit the record to the Court of Appeals.
As of January 1, 2022, criminal defendants have an appeal of right to the Virginia Court of Appeals. There are procedural deadlines that the defendant-appellant must comply with in litigating an appeal, which are not all set forth here. For example, within 10 days of the Court of Appeals receiving the record from the trial court, counsel for the appellant must file a statement of the assignments of error to be raised in the Court of Appeals and an agreed designation of the parts of the record to be included in the appendix. If there is no agreement, then counsel for the appellant must file the statement of assignments of error and designation of the contents of the appendix within 15 days of filing of the record. Va. Sup. Ct. R. 5A:25. The appellant must file the opening brief with the Court of Appeals within 40 days of the filing of the record. Va. Sup. Ct. R. 5A:19(b)(1). There are other rules setting forth deadlines for the government to file a response to the appellant’s opening brief and the appellant may file a reply to the government’s response.
If the defendant is ultimately unsuccessful in the Court of Appeals, the defendant may then note an appeal to the Virginia Supreme Court and petition the Virginia Supreme Court to award an appeal. If ultimately unsuccessful in the Virginia Supreme Court, and the case has a federal or constitutional issue, the defendant may petition the US Supreme Court for a writ of certiorari.
It is important that appellate briefs have clear questions presented, accurately state the underlying facts, accurately state the standard of review, and persuasively present the defendant’s case. The briefs must cite relevant authority and state the relief that the defendant is seeking.
Defendant’s Decision to Appeal
We recognize that it is the defendant’s decision to appeal and can aid in advising whether pursuing an appeal is appropriate. Important criteria to consider in determining to pursue an appeal include whether there are meritorious appellate issues, the consequences of the conviction, the remedy if the appeal is successful (a new trial or dismissal?), and the financial and emotional costs of appeal.
Federal Criminal Appellate Procedure
Federal appellate procedure is governed by the Federal Rules of Appellate Procedure and any local rules of the particular federal appellate court. Generally, our practice focuses on appeals to the United State Court of Appeals for the Fourth Circuit, which governs federal district courts in Virginia, West Virginia, Maryland, and North Carolina.In order to appeal a federal conviction, the defendant must file a notice of appeal within 14 days in the district court.
In the Fourth Circuit, soon after the notice of appeal is filed, the attorney for the defendant-appellant will be required to file a docketing statement that will include basic information about the case and set forth non-binding issues to be raised on appeal. The Fourth Circuit will then determine a briefing schedule.
There is no right to oral argument in the Fourth Circuit. The court has discretion to grant oral argument or decide an appeal on the papers.
If the defendant-appellant is not successful in the Fourth Circuit, the defendant may petition the US Supreme Court for a writ of certiorari.
WRITS OF HABEAS CORPUS AND OTHER POST-CONVICTION RELIEF
RECENT APPELLATE AND POST-CONVICTION HIGHLIGHTS
Mr. Ryan Campbell is The Great Lawyer! Very knowledgeable about the law and had my case dismissed!- Eduardo O.
Right from the start, I felt like I was in good hands. I could tell Joe King really cared about my situation and believed me.- Mark T.
Mr. King has the ability to really and truly listen, and then starts to strategize from a point of understanding.- Meti L.
From our initial meeting and throughout the process I had a 100% confidence I had made the right choice. Joe was easy to communicate with, very professional.- J.G.
Mr. Campbell went above and beyond to defend me and I am great-full to have representing me.- Habte Z.
My case became so complex and Evelyn managed to be one step ahead each time. She kept me updated at every step.- Rinku S.
Mr. Sherlock is definitely for the people he represents.- Evin R.
I highly recommend Evelyn Mitchell, if your marriage must be dissolved she is a lawyer you can trust to watch for your best interests and bring you to a good conclusion.- Ross B.