The Fight is Not Over: Post-Conviction Relief Part II

Following a guilty verdict, the presumption of innocence is no longer with the petitioner. Therefore, the burden of proof shifts to the petitioner to show that he or she received ineffective assistance of counsel. If the petitioner is successful, the conviction could be set aside and a new trial granted.

Clear and Convincing Evidence is Required

To be successful in a petition for post-conviction relief, the petitioner must prove all factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2006)(emphasis added). Evidence is “clear and convincing when there is no serious or substantial doubt about the accuracy of the conclusions drawn from it.  Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)).

Reasonableness Standard

In evaluating a lawyer’s performance, the reviewing court uses an objective standard of “reasonableness.”  Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462.  The reviewing court must be highly deferential to counsel’s choices “and should indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.  The court should not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics, Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

You Need to Act

If you have been convicted of a crime and want to explore these options, it will benefit you to consult with a lawyer who has experience in this area. As the legislature succinctly put it—time is of the essence which will be discussed in further detail in Part III of this series. In all honesty, pursuing post-conviction relief may be your last chance to remedy a wrongful conviction. Based upon the demanding burden of proof requiring clear and convincing evidence and the reasonableness standard of review the Court will implore, it is extremely important to hire a lawyer that has both trial experience and experience in post-conviction matters to handle your case.


Blake Bratcher is an Associate Attorney at Freeman and Fuson.

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