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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.


If a direct appeal is unsuccessful, mishandled, or is not appropriate to pursue, the firm handles habeas claims of ineffective assistance of counsel and other constitutional violations. The firm has also litigated other post-conviction relief, including motions to set aside the verdict and writs of coram vobis, to correct judgements nunc pro tunc, and to vacate for lack of subject matter jurisdiction.

If considering filing a writ of habeas corpus, it is important for the petitioner to understand that post-conviction challenges face many hurdles. In this regard, it may be appropriate for the firm to first review the case to determine whether a habeas would be worth litigating. It is also always important to keep in mind the tight time limits on filing for habeas relief, which should be the first thing counsel does when considering a potential habeas matter so as not to take a case and then let the time period for filing the habeas run.


  • On January 25, 2024, Joseph King obtained a retroactive 10-month reduction of client’s federal sentence based on the new "zero-point offender” guideline (U.S.S.G. §4C1.1) in the United States District Court for the Eastern District of Virginia (Norfolk Division). The zero-point offender guideline calls for a two-point decrease in offense level for certain “zero-point offenders,” like the client’s, in light of recidivism data that demonstrates zero-point offenders that have no criminal history have a significantly lower rate of re-offending as compared to other offenders. The client’s sentenced was reduced pursuant to 18 U.S.C. § 3582(c)(2), which permits courts to reduce a defendant’s sentence when the defendant’s sentencing guideline range “has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” The Federal Sentencing Commission promulgated the new guideline on November 1, 2023, which went into effect for incarcerated individuals on February 1, 2024. 
  • On December 8, 2023, Joseph King argued the matter of United States v. Moises Zelaya-Veliz, et al, 22-4656 in the United States Court of Appeals for the Fourth Circuit. In the case, the primary challenge of the Defendant-Appellants is whether the district court erred in denying defendants’ motions to suppress Facebook evidence where the defendants asserted that the search warrants authorizing law enforcement to seize and review the contents of their Facebook accounts for lengthy periods of time (and in one case without any temporal limitation whatsoever) were fatally overbroad, contravening the particularity requirement of the Fourth Amendment. The opening brief can be found here.
  • In December 2023, Kim Stover and Joseph King filed an opening brief in the Virginia Court of Appeals in the matter of Liam Bates v. Commonwealth. The opening brief can be found here. The brief raises four substantive assignments of error:
    • I. The trial court erred in excluding D.A.’s testimony of W.M.’s same sex attraction because such evidence demonstrated that W.M. had a motive to fabricate the allegations against Appellant, which is admissible under the Rape Shield statute, Va. Code § 18.2-67.7(B), such evidence rebutted evidence of the complainant witness’s prior sexual conduct introduced by the prosecution, which is admissible under the Rape Shield statute, Va. Code § 18.2-67.7(A)(3) and precluding such evidence deprived the Appellant of his constitutional rights to cross-examine and confront the witnesses against him in violation of the Sixth Amendment and to put forth a complete defense in violation of the Due Process Clause of the Fourteenth Amendment. 
    • II. The trial court erred in finding that the Alex Gerber Text Message Exhibit did not open the door to evidence of W.M.’s same sex attraction, depriving the Appellant of his statutory right to admit evidence regarding W.M.’s motive to fabricate the allegations against Appellant, Va. Code § 18.2-67.7(B), and his constitutional rights to cross-examine and confront the witnesses against him in violation of the Sixth Amendment and to put forth a complete defense in violation of the Due Process Clause of the Fourteenth Amendment where: 1) the exhibit satisfied every element the trial court stated needed to be met in order for the door to be opened to evidence of “homosexuality”, 2) the Commonwealth entered the exhibit through its own witness, 3) the text message stated that W.M. was heterosexual, and 4) further stated that W.M.’s heterosexuality was a reason to doubt that he consented to sexual activity. 
    • III. The trial court erred in granting the Commonwealth’s requested Attempted Sodomy instruction where Attempted Sodomy is not a lesser-included offense of Sodomy because Attempted Sodomy requires a higher mens rea element than that which is required to prove the completed crime of Sodomy and violated the Appellant’s constitutional and statutory right under Va. Code § 19.2-217 to a Grand Jury. R. 321-27.
    • IV. The trial court erred in denying the motion to set aside the verdict as to the sufficiency of the evidence for the Attempted Sodomy count because no rational trier of fact could have found beyond a reasonable doubt from the evidence that Appellant harbored the specific intent to penetrate W.M.’s anus. 
  • In October 2022, Sean Sherlock and Joseph King won a motion to set aside a jury verdict in a felony sexual assault matter in a Northern Virginia Circuit Court. The court set aside the verdict and ordered a new trial due to a fundamental irregularity that occurred during deliberations. During deliberations, a juror was disqualified and replaced with an alternate juror. The alternate juror had been released after the guilt phase. While this was not irregular in itself, the juror, prior to being released, had not received the court’s complete instructions, had not been admonished by the court to not discuss the case, the juror was not re-sworn prior to re-joining the jury, and jury deliberations were not restarted anew.
  • In August 2022, Joseph King obtained the dismissal of a 1991 grand larceny charge in a Virginia district court. The more than 30 year old matter had been  closed and the underlying warrant purged as long as two decades ago, leaving the case without any final disposition and impacting the client’s criminal record.
  •  In August 2022, Joseph King succeeded in vacating and dismissing a 2005 criminal conviction on behalf of client due to a Virginia district court’s lack of subject matter jurisdiction. The client, a juvenile at the of the allegations, had been incorrectly charged and convicted as an adult.
  • In July 2022, KCPM successfully expunged three felony counts in a Northern Virginia Circuit Court on behalf of a client. Two of the matters had been amended to misdemeanors to which the client had pled guilty. The original felony charges were subject to expungement because the misdemeanors were not lesser included offenses.
  • In August, 2021, Joseph King obtained an order in a Virginia district court larceny matter that resulted in reducing the client’s sentence to conform with the petty offense exception of the U.S. Immigration and Nationality Act found in 8 U.S. Code 1982 to mitigate immigration consequences resulting from the conviction.
  • On January 4, 2021, Joseph King and Lauren LeBourgeois filed a petition for a writ of certiorari in the United States Supreme Court to the Virginia Supreme Court seeking review of a client’s murder conviction.  The issues presented were 1) Does the Confrontation Clause allow a non-victim child witness to testify against his father via two-way closed circuit television when the witness cannot see his father and does not know that his father is on trial for murder?; and 2) Given that Crawford v. Washington, 541 U.S. 36 (2004), removed the underpinnings of Maryland v. Craig, 497 U.S. 836 (1990), should Craig be overruled? The petition can be found here. The petition received notice from the popular SCOTUS blog as a petition to watch, however, the Court ultimately denied the petition.
  • On June 24, 2020, a judge in the United States District Court for the Eastern District of Virginia granted a motion for compassionate release filed on behalf of an indigent client due to the COVID-19 pandemic.  The motion was granted over the government’s opposition.  The client, who is elderly with underlying health conditions, was serving a 30-month sentence for a non-violent drug offense after being sentenced in February 2020.   The endeavor to release the client was a team effort involving the firm’s office manager, a private investigator, a close friend of the client and family in California, U.S. Probation, and firm attorneys. Joseph King represented the client on the motion for compassionate pro bono. 
  •  On January 7, 2020, the Fourth Circuit vacated and remanded the United States District Court for the Eastern District of Virginia’s decision dismissing a 28 U.S.C. § 2255 motion (habeas motion) in the matter of United States v. Dixon (4th Cir. No. 16-7752)(Jan. 7, 2020).  In his 2255 motion, Dixon had challenged his firearm conviction under 18 U.S.C. § 924(c) (for possessing a firearm in furtherance of a crime of violence where the underlying offense was conspiracy to commit Hobbs Act robbery) as void based on Johnson v. United States, 135 S. Ct. 2551 (2015).  That is, Dixon contended that his firearm conviction was void because Johnson v. United States, 135 S. Ct. 2551 (2015), retroactively invalidated § 924(c)(3)(B), that statute’s “residual clause,” as unconstitutionally vague. The Fourth Circuit held: “In light of United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that residual clause of § 924(c) is unconstitutionally vague); United States v. Simms, 914 F.3d 229, 232-34 (4th Cir. 2019) (holding that conspiracy to commit Hobbs Act robbery is not a crime of violence under the force clause of § 924(c)), we grant a certificate of appealability and vacate the district court’s order.”  Joseph King represented Mr. Dixon in both the Fourth Circuit and Eastern District of Virginia.
  • On September 30, 2019, the matter of Adkins v. Commonwealth resolved as manslaughter in the Alexandria Circuit Court after the Virginia Supreme Court reversed his murder conviction and 43-year prison sentence.  Mr. Adkins will serve 8 years for manslaughter and an associated gun charge.  See Rachel Weiner, Alexandria Murder Conviction Changed to Manslaughter, Washington Post, October 1, 2019.  Joseph King and Lauren LeBourgeois represented Mr. Adkins in the Virginia Supreme Court. Firm lawyers also represented Mr. Adkins in his original jury trial.
  • On August 13, 2019, the Virginia Court of Appeals affirmed a client’s first degree murder conviction in the matter of Dosky v. Commonwealth, which decision was appealed to the Virginia Supreme Court.  The petition for appeal to the Virginia Supreme Court, which was ultimately denied, can be found here.
  • On March 28, 2019, the Virginia Supreme Court reversed Appellant’s murder and firearm convictions and a 43 year prison sentence in the matter of Adkins v. Commonwealth.  Joseph King and Lauren LeBourgeois represented the Appellant on appeal.
  • On March 8, 2019, the Virginia Court of Appeals awarded an appeal in Anthony Terry v. Commonwealth, a drug conspiracy and distribution matter.  Emily Beckman represented the Appellant. The Virginia Court of Appeals ultimately affirmed Terry’s conviction.
  •  On February 28, 2019, Joseph King argued the murder case of Adkins v. Commonwealth before the Virginia Supreme Court.  Joseph King and Lauren LeBourgeois represent the Appellant.
  • On January 16, 2019, the Virginia Court of Appeals awarded an appeal on seven assignments of error in the first degree murder case of Dosky v. Commonwealth.  Joseph King represents the Appellant.
  • On October 2, 2018, the Virginia Supreme Court awarded an appeal on two assignments of error in the murder case ofAdkins v. Commonwealth. Joseph King and Lauren LeBourgeois represent the Appellant.

Other notable appeals and post-conviction matters handled by or involving firm lawyers include:

  • Brent David Taylor v. Commonwealth, No. 1031-14-4 (Va. Ct. App. Sept. 13, 2016)(reversing appellant’s convictions for rape and aggravated sexual battery and remanding for new trial where trial court erred in failing to suppress appellant’s statement as gained in violation of 5th Amendment rights under Miranda v. Arizona).
  • United States v. William Andrew Clarke, 842 F.3d 288 (4th Cir. 2016)(upholding trial court’s denial of appellant’s motion to suppress, finding trial court erred in failing to provide defense counsel notice of instructions to be provided to jury but error did not prejudice appellant, finding trial court’s jury instruction on attempted enticement correct statement of the law, finding evidence sufficient)(upholding appellant’s conviction).
  • Motion to Reconsider granted by Prince William County General District Court to amend defendant’s marijuana conviction to non-drug offense due to immigration consequences flowing from marijuana conviction. Prince William General District Court, 2013. Joseph King represented the client.
  • Petition for writ of habeas corpus granted by Fairfax Circuit Court, vacating petitioner’s felony possession with intent to distribute marijuana conviction, where trial counsel failed to advise the petitioner of the immigration consequences of his guilty plea. Fairfax Circuit Court, 2013.        
  • Motion to Set Aside the Verdict granted in rape case, winning defendant a new trial after the jury recommended a 28 year sentence, based in significant part on new evidence. The prosecution soon after dismissed the charges. Brad Haywood of Sheldon, Flood & Haywood and Joseph King represented the Defendant. Alexandria Circuit Court, September 2012.
  • Little v. Commonwealth, 59 Va. App. 725 (2012)(affirming trial court’s ruling that evidence of value of stolen items exceeded statutorily required limit).
  • Briscoe v. Virginia, 559 U.S. 32 (2010)(vacating Briscoe’s convictions for possession with intent to distribute cocaine and unlawful transportation of cocaine into the Commonwealth with the intent to distribute and remanding to the Virginia Supreme Court for further consideration in light of Melendez-Diaz v. Massachuessetts).
  • Cypress/Briscoe v. Commonwealth, 280 Va. 305 (2010)(on remand from the United States Supreme Court, holding Virginia’s former statutory scheme governing the introduction of lab reports into evidence to violate Confrontation Clause of the Sixth Amendment in light of Melendez-Diaz v. Massachusetts; upholding appellant’s conviction on harmless error grounds).
  • Mervin-Frazier v. Commonwealth, No. 2114-08-4 (Va. Ct. App. Apr. 6, 2010) (reversing appellant’s convictions on grounds that defendant’s statements were admitted into evidence in violation of Miranda v. Arizona).
  • Aguilar v. Commonwealth, 280 Va. 322 (Va. 2010)(on remand from the United States Supreme Court, finding no confrontation clause error where prosecution’s failure to call two forensic scientists, who played preliminary roles in a DNA analysis, did not violate Confrontation Clause because they did not author the DNA certificates of analysis at issue or bear testimony against the appellant).
  •  Mwangi v. Commonwealth, 277 Va. 393 (2009)(reversing appellant’s felony DUI conviction where trial court erred in allowing unsigned purported prior DUI conviction into evidence).



In preparing and arguing appeals, we thoroughly review the trial court record and strive to prepare well-researched and persuasive petitions and briefs (see sample brief)–focusing on the strongest issues in order to present compelling questions to appellate courts.


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