Unfair and Unlawful Sentence - Post Conviction Relief
The ultimate question in post-conviction relief litigation is not whether the defendant's post-conviction relief attorney was incompetent. Rather, the question is whether the trial court proceedings that resulted in the defendant's conviction and sentence were fair and lawful. See AS 12.72.010(1) - (9). "The purpose of the post-conviction relief proceeding is to permit inquiry into the constitutional issues involved in the 'original' proceeding." People v. Flores, 153 Ill. 2d 264, 606 N.E.2d 1078, 1084, 180 Ill. Dec. 1 (Ill. 1992)
The incompetence of post-conviction relief counsel is not, by itself, a ground for granting post-conviction relief. See In re People v. Szabo, 186 Ill. 2d 19, 708 N.E.2d 1096, 1100, 237 Ill. Dec. 56 (Ill. 1998); House v. State, 911 S.W.2d 705, 712 (Tenn. 1995); Clark, 5 Cal. 4th 750, 855 P.2d 729, 748-49 (Cal. 1993).
The defendant must additionally show prejudice. In this context, "prejudice" means proof that there is, in fact, a good reason to reverse or modify the defendant's conviction or sentence, or to grant the defendant a new trial. See Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 304 (Pa. 1999); Whitsel v. State, 525 N.W.2d 860, 864-65 (Iowa 1994); Clark, 855 P.2d at 749.
We addressed a similar issue in State v. Steffensen. In that post-conviction relief litigation, the defendant asserted that his trial attorney had incompetently failed to recognize and argue a search and seizure issue.
We held that, even if this was true, the defendant was not entitled to relief unless he proved that the proposed suppression motion was in fact meritorious, and that there was a reasonable possibility that suppression of the challenged evidence would have affected the outcome of the underlying criminal proceeding.
Similarly, when a defendant challenges the competence of the attorney who represented them in their first petition for post-conviction relief, the defendant must do more than prove that their post-conviction relief attorney failed to raise or competently argue a colorable legal issue.
The defendant must also prove four more things:
First, the defendant must establish their own diligence in raising the claim of ineffective representation. a defendant can not "sit on" a claim of ineffective assistance of counsel.
The defendant must show "that the facts upon which the defendant relies were not known to the defendant and could not in the exercise of due diligence have been discovered by him ... substantially earlier than the time of his second petition." In re Clark, 5 Cal. 4th 750, 855 P.2d 729, 744 (Cal. 1993). Accord, Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 916-17 (Pa. 2000); McCracken v. State, 946 P.2d 672, 675 (Okla. Crim. App. 1997); Meredith v. State, 638 N.E.2d 814, 815 (Ill. App. 1994).