Motion to Reopen a Closed Post Conviction

     Under the current law in Maryland you are entitled to only one post conviction petition and one hearing on that petition.  If you have lost your post conviction petition and your Application for Leave to Appeal from the denial of your post conviction, you next option may be to file a Motion to Reopen a closed post conviction.  A Motion to Reopen is filed in the circuit court.  Oftentimes, it goes back to the judge who denied the post conviction petition.  In some counties, there is a single judge who reviews all Motions to Reopen and decides whether it will be denied or be assigned to a judge to consider the merits.  The applicable standard in determining whether to reopen a closed post conviction is “in the interests of justice.”  In other words, the court must ask, is it in the interests of justice to give this person another chance to argue that something went wrong with the trial or guilty plea.  This standard is a broad, ill-defined standard, but one recognized basis is ineffective assistance of post conviction counsel.

      Under the 6th Amendment and Maryland case law, a defendant is entitled to effective representation at virtually every stage of criminal proceedings, including trial, appeal, and post conviction.  What that means is that if post conviction counsel failed to identify and raise an issue that should have been raised in the initial post conviction, that mistake may serve as the basis to reopen the post conviction.  Another basis for reopening a closed post conviction is a change in the law with retroactive application.  That was the case for hundreds of defendants who had advisory only jury instructions, typically in the 1970’s.  A 2012 decision of the Court of Appeals served as the basis to reopen those post convictions in the past couple of years.  Recently, the Court of Appeals upheld that decision in  State of Maryland v. Waine, No. 90, September Term, 2014.

     One very common mistake that I see pro se defendants (defendants trying to represent themselves without legal counsel) make when they file a Motion to Reopen, is that they try to directly post convict trial counsel in the Motion to Reopen.  So their claims look something like this: “Trial counsel was ineffective for failing to present any mitigation evidence at sentencing.”  The problem with presenting a claim in this manner is that a petitioner is deemed to have waived any post conviction arguments that he did not raise at the post conviction.  In other words, if a petitioner did not speak up and raise the issue at the post conviction hearing, the court will infer that the decision to not raise the issue was a strategic one and the issue is deemed waived, i.e. you can’t raise it later because you chose to give up that issue by not raising it initially.  The way around waiver of the issue is to argue that post conviction counsel made a mistake or oversight by not raising the issue.  So you must post convict post conviction counsel for failing to post convict trial counsel on that issue.  Another way to think about this is if we think in levels: trial is one level, appeal is another level, post conviction is another level.  The only way we get back to a problem with the trial is to reach back through the relevant levels.  You must reach through post conviction counsel to get back to the trial.

       Other important points: Unlike a first post conviction, a petitioner is not entitled to a hearing on a Motion to Reopen, and the vast majority are denied without a hearing.  There are no limits on the number of Motions to Reopen that a petitioner may file or a time limit in which to file, but with each subsequent Motion, a petitioner must explain why he did not raise the current issue in a previous Motion to Reopen.  If a Motion to Reopen is denied, with or without a hearing, the Petitioner has the right to file an Application for Leave to Appeal within 30 days.

       In one case that I recently handled, a client was convicted of felony murder in the 1980’s and sentenced to life in prison.  Based on the Motion to Reopen that we filed, which alleged, among other things, ineffective assistance of post conviction counsel for failing to post convict trial counsel for failing to object to impermissible questions asked of the defendant by the prosecution on cross examination, the client was able to get relief and was ultimately released from prison. **(Every case is different.  Successful results in one case in no way guarantees success in another case.  Motions to Reopen are very rarely granted and relief is seldom achieved.)**

Post Conviction and Appellate Criminal Defense Attorney practicing throughout Maryland and DC, business owner, mother of two. Since establishing the Law Offices of Erica J. Suter, LLC in 2011, the life sentences of ten of my clients have been modified or vacated. I have also obtained relief for clients who were not serving life. I try to treat my clients the way that I would want to be treated if I were sitting on the other side of the table, with dignity, respect, and honesty. I love teaching and will share what I’ve learned with anyone who is interested. I have been selected to the National Asian Pacific American Bar Association’s Best Lawyers Under 40, as a Super Lawyer Rising Star (Washington, DC and Maryland), for membership in the National Trial Lawyers Top 100 Lawyers, and as a Maryland Top 40 Under 40 Criminal Defense Lawyer. I earned my JD from Georgetown University, my MA from the University of Chicago, and my BA from Bates College. http://www.ericasuterlaw.com Follow me on twitter @suterlaw email me at ejsuter@ericasuterlaw.com

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5 thoughts on “Motion to Reopen a Closed Post Conviction

  1. After a motion to reopen a case is granted by the judge, is a hearing automatically something that needs to happen? What is the states place at this point in the case? Can the state throw out the case if they decide that they don’t have one, exonerating the convicted before a hearing is heard? If not, when the hearing takes place does the judge then decide based off of new evidence given by the defense supporting its argument that reopened the case? Just trying to see possible scenarios for what is next.

    • Thank you for your question. Yes. If the motion is granted a hearing is held. Even if the State were conceding relief and dropping the case, a hearing must still be held to put the resolution on the record. What evidence is put on at such a hearing, if it is a contested hearing (meaning the State opposes relief), depends on the claims. So, for example, if you have an alibi witness that you say your lawyer should have called, that witness would testify at the hearing so the court hears what COULD HAVE been testified to if that witness were called at the original trial.