## Post-conviction relief in Virginia After a criminal conviction, defendants in Virginia have several procedural paths to challenge their conviction or sentence — but each has strict deadlines and procedural rules. ## The four main paths **1. Direct appeal** — to state appellate court **2. State post-conviction (habeas corpus / collateral attack)** — in trial court **3. Federal habeas corpus** — in federal court **4. Actual-innocence / DNA motions** — modern remedies Plus: motion for new trial (very early), pardon / commutation (executive). ## Direct appeal **The first step:** - Filed shortly after conviction (typically 30 days) - Reviews legal errors at trial - Limited to record (no new evidence) - Court of Appeals reviews - ${s.name} Supreme Court for further review - US Supreme Court (cert petition) **Issues raised on direct appeal:** - Improper jury instructions - Evidentiary rulings - Constitutional violations - Sufficiency of evidence - Sentence legality - Prosecutorial misconduct **Critical:** Issues NOT raised on direct appeal are often FORFEITED for later challenges (procedural default). ## State post-conviction relief (habeas corpus) **Filed in trial court** after direct appeal exhausted (or skipped). ${s.name}-specific procedures. **Common claims:** - **Ineffective assistance of counsel** (Strickland v. Washington) - **Newly discovered evidence** - **Brady violations** (suppressed exculpatory evidence) - **Witness recantation** - **Prosecutorial misconduct** not raised on appeal - **Juror misconduct** - **Constitutional violations** - **Actual innocence** **Procedure:** - File petition with detailed factual claims - Hearing if facts contested - Appeal denial through state appellate process - Strict deadlines — varies by state (often 1 year from finality) ## Federal habeas corpus **For state prisoners**, after exhausting state remedies (28 U.S.C. § 2254): **Antiterrorism and Effective Death Penalty Act (AEDPA, 1996)** — strict limitations: - **1-year statute of limitations** from finality of conviction - **Exhaustion requirement** — must raise claims in state court first - **Procedural default** — claims forfeited if not raised in state court - **Deference to state courts** — must show state ruling was "unreasonable application" of clearly established federal law - **Successive petitions** — generally barred **Standards under AEDPA:** - 28 U.S.C. § 2254(d)(1) — "contrary to or unreasonable application of clearly established federal law" - 28 U.S.C. § 2254(d)(2) — "unreasonable determination of facts" - Very deferential to state court rulings **For federal prisoners**, similar process under 28 U.S.C. § 2255 in sentencing court. ## Ineffective assistance of counsel — Strickland test **Two-prong test (Strickland v. Washington, 1984):** **1. Deficient performance:** - Counsel's performance fell below objective standard of reasonableness - Strong presumption of competent representation - Strategic choices generally not deficient - Examples: failure to investigate, failure to file motion, failure to call witness, failure to communicate plea offer **2. Prejudice:** - Reasonable probability of different outcome but for deficient performance - Shadow of doubt sufficient to undermine confidence - Cumulative errors can establish prejudice **Common IAC claims:** - Failed to investigate alibi / witnesses - Failed to challenge evidence (DNA, identification) - Plea-related (failure to communicate / explain offers) - Sentencing-related (failure to challenge enhancements) - Mental health / mitigation evidence not presented ## DNA testing motions **Modern statute in most states + federal (Innocence Protection Act):** - Right to DNA testing of evidence - Different rules for trial-era vs newer technology - May overcome procedural defaults - Has freed 200+ wrongfully convicted defendants **Eligibility typically:** - Identity contested at trial - DNA testing wasn't available / wasn't done - Reasonable probability of different verdict if exonerating - Evidence still preserved ## Actual innocence claims **Schlup v. Delo (1995)** — actual innocence "gateway" past procedural defaults: - New reliable evidence (DNA, eyewitness, etc.) - More likely than not no reasonable juror would convict - Allows merit review of otherwise barred claims **Herrera v. Collins (1993)** — "freestanding" actual innocence claims: - Higher standard than Schlup gateway - Some states recognize, federal courts more skeptical - ${s.name} may have specific statute ## Brady violations **Brady v. Maryland (1963):** - Prosecution must disclose material exculpatory evidence - Failure violates due process - "Material" = reasonable probability of different outcome **Common Brady issues:** - Witness incentives (deals, payments, immunity) - Inconsistent witness statements - Alternative-suspect evidence - Unreliable forensic evidence - Police misconduct affecting witnesses ## Newly discovered evidence **Different from DNA / innocence — for any new evidence:** - Couldn't reasonably have been discovered before - Material to outcome - Not merely cumulative - Time limits vary by state **Examples:** - Witness recantation - New witness coming forward - Newly discovered scientific advancement - Records discovered later ## Strategic considerations **Don't sit on rights:** - AEDPA 1-year clock runs - ${s.name} has its own deadlines - Procedural defaults harder to overcome - Witness availability deteriorates - Memories fade **Investigate everything:** - Pull all files (police, prosecution, defense) - Interview witnesses (yours + state's) - Review forensic / scientific evidence - Examine record for unraised issues - Look for Brady violations **Choose claims carefully:** - Factual claims need development - Legal claims need preservation - Some claims must be raised together - Strategic decisions affect future options ## Resources - **Innocence Project** — DNA-eligible cases - **${s.name} Innocence Network affiliate** — local DNA + non-DNA cases - **Federal Public Defender** — federal habeas - **State Public Defender** — appeals + post-conviction (in many states) - **${s.name} bar referral** — private post-conviction counsel - **Pro bono law school clinics** ## What you should do If you (or a loved one) want to challenge a conviction in Virginia: act quickly — deadlines run from finality of conviction. Hire (or seek pro-bono) post-conviction counsel — direct trial counsel typically cannot raise IAC claims about themselves. Many Virginia criminal defense attorneys handle post-conviction work; some specialize specifically in PCR / habeas litigation. --- *This guide is general information about Virginia and federal law as of mid-2026 and is not legal advice. Post-conviction work is highly technical + time-sensitive. Talk to a licensed Virginia criminal defense or post-conviction attorney about your specific case.*