other legal Options When You’ve Exhausted Your Traditional Remedies


If you have exhausted your standard legal remedies—the direct appeal, the post-conviction relief proceeding, and the federal habeas petition (for state inmates), there may be additional ways to get back into Court. The same principles apply at this point as when you’re first beginning your legal challenge. You must think deeply about how you’re going to best convey the injustices in your case for maximum effect. You must be consistent. You must address your difficult facts. You must keep in mind that the State’s or Government’s interests in the “finality” of the conviction is very high. And then you must plan accordingly and not give up.

When our firm talks to a potential client about their options once they’re at this stage, I try to figure out what part of their story has not been told until this point. I try to figure out where the process broke down and how to overcome the problems in the case. Often at this point we see inconsistent framing of issues; bad facts that have been ignored until now. In short, we encounter many of the problems that I’m trying to address in this book. When you’re out of court, I strongly believe that the best use of time and other resources is in hiring a damn good investigator to reinvestigate the case. Look back at the chapter on Investigation for the kinds of actions that your investigator needs to undertake on your behalf. Without something new—that is, new evidence, or newly revealed evidence that you have only recently learned about because the State or Government previously withheld it from you—I don’t believe there is much of a chance of overturning a conviction. At this point in the process, it is more important than ever to change the narrative of the case so you can convey to the courts how and why the adversarial process has failed you. With that in mind, you need to think carefully about what information is out there that you need the court to see and then get that evidence. There are ways to get back into court once you’ve exhausted your traditional remedies, but it is exceedingly difficult, and you likely have one final shot.

Also, it is not unusual to see courts file orders preventing some inmates from making additional filings. If the courts sense that you’re abusing the legal process by filing repeated motions without any new evidence, you will never win your case and you may be denied access to the court system at all. Here is an overview of some of the other legal remedies that may be available to you once you’ve exhausted your traditional legal remedies. Some of these apply in state court and others apply to federal inmates. You’ll want to talk to a lawyer about which of these may apply to you.

Successor §2255 Petitions

If you have lost your first §2255 petition in federal court, you may be granted a successor §2255 petition by filing a petition pursuant to 28 U.S.C. §2244 in the circuit court of appeals. You cannot file directly in the district court as you did your initial §2255 petition. 28 U.S.C. §2244 essentially allows you to file a successor petition if you can show one of the following:

1) that the United States Supreme Court has issued a new rule of constitutional law that has been made applicable to you, 2) there’s new evidence in your case that you could not have discovered even though you were diligent in trying to find evidence in your case, and 3) that if you prove the facts underlying your claim, no reasonable factfinder would have found you guilty of the offense. This, of course, is a layman’s summary of the statute, but for our purposes that is essentially what it provides. It is a high standard to meet. Also, if you raised a claim in your first §2255 petition, you cannot raise that same claim again. The most common instance of successor §2255 petitions will be when the United States Supreme Court issues a new decision that may apply to federal inmates who have already exhausted their first §2255 petition in which they raised allegations of ineffective assistance of counsel. A recent example of this is when the Court issued its decision in United States v. Davis, 139 S. Ct. 2319 (2019) which declared the residual clause of §924(c) to be a new rule that qualifies to allow a subsequent §2255 motion. It is always helpful to keep an eye on what the Supreme Court is doing because they often weigh in on issues relating to criminal federal statutes, guidelines applications, and the First Step Act. When they do, it’s a great opportunity to reach out to a lawyer to file a successor §2255 motion on your behalf.

Compassionate Release Petitions

One of the most significant provisions of the First Step Act is 18 U.S.C. § 3582(c) which allows a district court to modify an imposed sentence. Before, to obtain compassionate release, the government had to file a compassionate release petition on your behalf. As you can imagine, not many petitions were filed by the government on behalf of those convicted in federal court. The FSA now allows defendants to file these petitions on their own behalf. These petitions will be filed in the district court where you were sentenced. The statute provides, in relevant part:

(c) Modification of an Imposed Term of Imprisonment—The court may not modify a term of imprisonment once it has been imposed except that—
A large number of these compassionate release petitions were filed during the COVID-19 pandemic based on the susceptibility of many inmates to the dangers of living in congregate settings in the Bureau of Prisons. A number of these inmates went home! What is important about this possible remedy though is that it is not just confined to medical concerns. The Court is empowered to consider any factor(s) that may constitute “extraordinary and compelling reasons” for a reduction in your sentence. Since this is still such a recent change in the law, it will be interesting to see how this develops throughout the country as more and more federal inmates challenge their sentences in ways they have not been allowed to do so before.
Table 14 provides a summary of the reasons, some of which are vague: COVID-19 Rehab Stacked 924(c) convictions “No reason provided” Terminal illness Extraordinary and compelling (not specified) Family circumstances: care for minor child Deteriorating physical or mental health due to aging Age 65 and deteriorating health and served for 10 years Enhanced drug penalties under 21 USC §٨٥١ Nearly meets requirements of USSG §١B١.١٣ Other mandatory minimum penalties/long sentence Conviction/sentencing errors Family circumstances: care for spouse or registered partner (USSG §1B1.13) Mandatory nature of guidelines at sentencing Age 70 and served 30 years of sentence (18 U.S.C. §3559) BOP failure to provide treatment ACCA issues Serious functional or cognitive impairment (USSG §1B1.13) Other As you can see, there are a number of factors that the district court may consider in deciding to whether to grant you compassionate release. There is an exhaustion requirement with compassionate release petitions about which you should be aware. Before you can file for relief in the district court where you were convicted, you must first go through the internal procedures at your facility to request the Warden grant you compassionate release and then appeal that decision when he or she says no. Check with your case manager to make sure you’re properly exhausting your claim before you file in district court. Winning Case We had a client who had spent 20 years of his 40-year sentence in the Bureau of Prisons. The First Step Act with this modified provision had just enacted into law so there was not much to go by in terms of how to develop the claim and what sorts of evidence we should be using to support our request for release. But we did the best we could. Our client, since his incarceration, had been without any disciplinary incidents which was incredibly helpful as he had been convicted of a violent offense. He was living an uneventful life in the BOP but he had these very serious health concerns. After he exhausted his adminis- trative remedies in the BOP, we filed a compassionate release petition in the district court. We presented his story, along with a release plan so the court would know he had a place to live and health care services if she granted our motion. Not long after we filed our motion, the AUSA in the case reached out to me to let me know that the government would consent to our motion! That is, they agreed that our client should be released from federal prison after 20 years! Immediately after the government filed its consent, the district court judge entered an order allowing our client to be released to home confinement. With just a signature and a compelling story, our client’s sentence was reduced by 50%.

Coram Nobis

This is an action that allows a court who originally imposed a sentence to correct the conviction and sentence upon the discovery of a fundamental error that was not previously known to the court. This writ was originally developed in 16th century England but is no longer used there. It is, however, still used in some jurisdictions in the United States. Although it was not my case, in South Carolina, a writ of coram nobis was granted in South Carolina to posthumously vacate the conviction of George Stinney, a 14- year old African American boy who was convicted of murder and executed for the murders of two young white children. He was said to have confessed to the murders, but no written confession was ever found. The circuit court vacated the conviction finding that he did not receive a fair trial, had no effective defense, and that therefore his Sixth Amendment rights were violated. This is not a commonly used potential remedy, but for grave miscarriages of justice, it’s available.

Petition in the Original Jurisdiction

Your ability to file a petition in the original jurisdiction of your highest state court is dependent on whether your state allows you to do so. We’re fortunate in South Carolina in that our state supreme court has very broad powers to consider petitions filed in its original jurisdiction.

We have filed state habeas petitions and common law petitions for writs of certiorari in our state supreme court with considerable success. In one case, our client received an evidentiary hearing in a case where our petition alleged a Brady violation. In another case, a client received the chance to pursue a post-conviction proceeding after he was denied one 11 years earlier. To take advantage of this sort of remedy, it is important to speak to a knowledgeable appellate lawyer in your jurisdiction. Each jurisdiction is going to have different requirements for filing this sort of petition so it’s absolutely necessary you do your homework before you attempt to avail yourself of this remedy.

Motion for Sentence Reduction

Many states have provisions in their criminal statutes that allow you to file directly with the sentencing court and ask the court to reduce your sentence. Typically, you will need to show that you are disciplinary-free and that you have taken advantage of various educational and vocational oppor- tunities that the prison has for you. My state, South Carolina, does not have a motion for sentence reduction but there is statute that allows for a sentence reduction if an inmate assists a correctional officer avoid serious injury during some adverse event at the prison, or if the inmate offers substantial assistance in the prosecution of another person and that assistance occurs within a year of being sentenced. Neither are often used as they require the prosecutor to file the motions on behalf of the inmates, and in my experience, it is difficult to get them to do so. Our firm did represent an inmate who cooperated extensively in the prosecution of another person related to his case. In the end he received a 2-year reduction. I have not counselled any of my clients to try and take advantage of this particular cooperation statute, in part because I fear repercussions if my client is found out to be a cooperator. But just be aware that statutes like this exist and you may be able to obtain some relief in this way.

DNA Testing

Most states now allow an inmate to seek relief by requesting DNA testing. The requirements differ in each jurisdiction but generally the DNA testing will only be ordered by a court if you can make a showing that the DNA would exonerate you. In other words, if DNA is just a minor part of your case, an inmate is not likely to prevail in having a court order the testing. And then, once the testing is completed, an inmate will have to also argue that the results of the testing entitle him to a new trial or vacation of the conviction. But, if your case is heavily reliant on DNA evidence, you should explore this potential option to see if it can help you develop compelling new evidence in your case that was not developed earlier.

While it is true that it can be more of an uphill battle getting back into court after you have exhausted your traditional legal remedies, just know that the courts are still available to correct any grave miscarriages of justice. If you are taking advantage of one of these (as I call them) “Hail Mary” remedies, it is more important than ever to make sure you’ve identified your core injustices and have thoughtfully developed your claims. Courts will not entertain a 200-page pro se petition that raises 40 claims.

The court will not conduct a searching inquiry into all your issues to find the one that will free you. Instead, the Court will issue an order that says “Denied” and you will not know why they decided not to intercede in your case. That fundamentally is not how the court system works but I have seen a number of these “scattershot” attempts by inmates trying to reverse their convictions. They are not effective at all. The better approach will be to develop your claims with a laser-like focus. Make your claims clear and concise. Also, it is better to use natural language than legalese to get your point across. But if you have a story to be told, be smart about it, and then tell it.

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