If you have been convicted of a crime and your direct appeal has been denied, what is your next step? Collateral attack on a conviction is another process by which the courts can correct any mistakes that were made during the trial or direct appeal process.

The main type of collateral attack on a conviction in SC is post-conviction relief, or “PCR.” When is it appropriate to file a PCR in SC? How is it different from a “direct appeal?” Do you have to file the direct appeal first? Why?

If direct appeals and PCR fail, is there anything left?

There is one more type of collateral attack on a conviction that is available in SC – in some cases, you may be able to file a federal habeas petition in the federal court, called “federal habeas review.”

Collateral Attack on a Conviction in SC – PCR

PCR in SC is a process by which the court can review your case to determine whether there are any mistakes that were missed by the trial court and the appellate courts. When can you file a PCR as a collateral attack on a conviction and what is the procedure?

When Can I File a PCR in SC?

Your PCR attorney (or you, if you are proceeding without counsel) will need to identify the potential grounds for PCR in your application and file it with the Court of Common Pleas for the county in which you were convicted.

Whereas errors of law made by the court are addressed on direct appeal, mistakes made by your trial attorney are the most common claims made in PCR actions. You must prove: 1) that your trial counsel was ineffective (they made mistakes either before or during the trial), and 2) that the trial attorney’s mistakes prejudiced your case.

Although ineffective assistance of counsel is the most common PCR claim, others are available including prosecutorial misconduct or newly discovered evidence.

Do I Have to File a Direct Appeal Before Filing PCR?

You do not have to file a direct appeal before filing a PCR, but it is usually a good idea. Why?

Most grounds for PCR are some form of ineffective assistance of counsel, and you can also allege ineffective assistance of counsel on the part of your appellate attorney – for example, if they did not raise and argue claims that would have been successful on appeal.

On the other hand, if there are clearly no grounds for a direct appeal, you can skip the appeal and go straight to a PCR action. But you must be careful that you are not waiving any possible federal habeas claims by not exhausting your state-law remedies – always consult with a SC appellate or PCR attorney before deciding to bypass your direct appeal.

Is There a Form to Fill out for PCRs in SC?

There is a form provided by the courts for PCR actions in SC.

You should use the form, but most attorneys will also include a “Supplemental Application for Post-Conviction Relief” (or a second supplemental or third supplemental application as the hearing date gets closer…).

You must state the specific grounds for PCR in your application – generally alleging “ineffective assistance of counsel” is not enough. Why was your counsel ineffective, and why does SC law support your claim?

Inmates will often file a PCR form that does not allege grounds for PCR apart from “ineffective assistance of counsel.” That is okay and may be necessary to file within the statute of limitations, but an Amended or Supplemental PCR Application will need to be filed as soon as possible once you have retained (or have been appointed) counsel.

What is the Statute of Limitations for PCR in SC?

The statute of limitations to file a PCR action in SC is one year from:

• The date of conviction;
• The date of entry of judgment of the Court of Appeals or SC Supreme Court; or
• The date when new evidence was discovered or reasonably could have been discovered.

Can I File an Appeal from a PCR Hearing in SC?

You can petition the SC Supreme Court for certiorari (ask for permission) to appeal the result of your PCR hearing. There is a separate rule for PCR appeals, and the procedure is different than direct appeals.

Collateral Attack on a Conviction in SC – Federal Habeas Review

Once you have exhausted all state-court remedies (direct appeals and post-conviction relief), the only possible relief that is left will be a federal habeas petition.

You can ask the federal courts to review your conviction only when the conviction:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Federal habeas review may be a long shot and not every case will qualify – the federal courts will look for reasons to deny your habeas petition, and it will usually only result in relief when the state courts essentially ignored federal US Supreme Court precedent on issues involving federal law (usually constitutional violations).

Does SC Allow Habeas Petitions in the State Courts?

You can file a habeas petition in SC state court, but, with few exceptions, habeas has been replaced by PCR in SC. Most claims that could have been raised in a habeas petition must now be raised in a PCR application instead.

Criminal Defense and PCR Lawyer in Charleston, SC

If you’ve been charged with a crime in the Charleston, SC area, call us before your trial. SC criminal defense lawyer Grant B. Smaldone focuses his law practice on criminal defense cases including criminal trials in the Charleston area.

If you have been convicted, however, and you believe you may have grounds for PCR or a criminal appeal, call now at (843) 808-2100 or send us a message to talk to a Charleston, SC criminal defense and PCR attorney today.