Post-Conviction Representation


After being sentenced to prison, the defendant does not have to give up and just accept that they will spend the next several years in prison. Our legal system accepts that judges and juries can make mistakes and innocent people can be put in prison. This is why our judicial system provides a number of ways for a defendant to challenge their conviction and sentencing.

Post-conviction representation includes having a lawyer represent you after you have already been convicted. They may be able to challenge the judge's or jury's guilty verdict, challenge an unfair sentence, or even ask the president to release the convict early. There are a number of ways your post-conviction lawyer can work for your release, or reduce your criminal sentence.

Post-Conviction Relief

In order to seek post-conviction relief, the defendant may have to file motions or petitions to have their issues heard by the court or other federal agencies. This includes direct appeal, filing a Rule 2255 motion, a Rule 35 sentence reduction motion, or clemency petition. Through these motions the defendant can seek to have their sentence or conviction vacated, request a sentencing reduction or petition for a presidential pardon.

Rule 2255 Motion

On of the most common forms of post-conviction relief includes a Rule 2255 motion. Under federal code 28 U.S.C. § 2255, a prisoner can claim the right to be released from prison if they were sentenced in violation of the Constitution, if the court did not have the authority to impose the sentence, or if the sentence was unlawfully excessive.

Unless the records conclusively show that the prisoner is not entitled to relief, the court shall grant a prompt hearing to determine the issues and facts in the case. The court shall then vacate the judgment or correct the sentence as appropriate if the judgment was rendered without jurisdiction, the sentence imposed was not authorized by law, or if there was a denial or infringement of the constitutional rights of the prisoner.

The basis for a Rule 2255 motion may vary, depending on the case. However, one of the most common reasons for filing such a motion is based on a claim that defendant's rights were violated due to ineffective assistance of counsel. The 6th Amendment to the Constitution guarantees the rights of criminal defendants, including the right to a lawyer.

Although this is one of the most common ways defendants seek relief under a Rule 2255 motion, it is not commonly granted. One reason for this is that an ineffective assistance of counsel claim is difficult to prove. It is not enough to say that the attorney did not make the best legal decisions, or that the lawyer pressured the defendant to plead guilty even if they were innocent.

In order to win on a claim of ineffective assistance of counsel, the criminal defendant must show that their attorney's performance was so seriously deficient to deprive the defendant of a fair trial, and but for the deficiency, the defendant's case would have ended differently.

In most cases, the defendant will have one year within which to file a 2255 motion; however, if the one year limit has passed, the defendant may be able to file a Rule 2255 motion if it meets one of the exceptions. Criminal defendants should contact a post-conviction federal attorney to ensure they have time to file a claim before the time limit has run out.

Federal Direct Appeals Process

A direct appeal is a way to have your post-conviction attorney appeal your conviction based on errors that occurred in the trial court process. If these errors impacted the jury's decision or the criminal sentencing, a direct appeal may provide the basis for post-conviction relief.

In most cases, a federal criminal defendant is permitted to make a direct appeal after they have been convicted and sentenced. In some cases, the defendant may have accepted a plea agreement which included a provision that they would not appeal their case. However, there may still be ways to directly appeal the sentence even if their plea agreement waived an appeal.

After entry of judgment or entry or the relevant order, a defendant only has 14 days to file a notice of appeal. This is a requirement to notify the court that the defendant intends to appeal the sentence or conviction. Your trial court attorney should be able to file the notice of appeal, even if you want to continue your post-conviction representation with a different attorney.

There are many legal issues which may provide the basis for a direct appeal. One of the most common grounds for a direct appeal has to do with improper admission or exclusion of evidence. This is a question of law handled by the trial judge, and if the trial judge made an error in whether to admit evidence, this error could have directly impacted the jury's decision. Other areas for challenging a conviction include improper jury instructions, sentencing errors, lack of sufficient evidence to support a guilty verdict, prosecutor misconduct, or jury misconduct.

If you have any questions about the appellate process, talk to your federal criminal defense attorney about all your options, and how you can appeal your sentence or conviction.

Clemency & Pardons

After sentencing, an individual may still seek sentencing relief by submitting a petition for Clemency to  the Office of the Pardon Attorney at the Federal level, or by filing a petition for a Conditional Pardon with the Governor of Virginia for state convictions.

If you've completed your sentence and are looking for official forgiveness and to restore your rights, you may be eligible to file a Pardon petition with the Office of Pardon Attorney which the President has final say over. If you have a state conviction in Virginia, you may file a Simple Pardon, which the Governor of Virginia signs off on. 

 More clemency and pardon petitions have been granted in recent years, in part due to changed perceptions on harsh criminal sentencing. 

Our experienced pardon and clemency attorney works with you to assemble a persuasive petition that highlights your progress and tells your story.

To learn more about Virginia pardons, visit our pardons page.

To learn more about Federal clemency, visit our clemency page.

What Happens Now?

If you are incarcerated, we will contact you in the jail where you are held, and we will remain in contact throughout the pendency of your case. If you are able to come in to the office, we will ask you to come meet in person as soon as possible. Our approach to defense is zealous, organized, and fast-paced, and we look forward to helping you.


Carmichael Ellis & Brock, PLLC is committed to representing you in criminal, military, security clearance, medical malpractice, personal injury, and product liability cases.