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

If you have been convicted of a crime and your appeal has been denied, the fight is not over. At trial and on appeal, you have the right to effective assistance of counsel in your case. A denial of the Sixth Amendment right to the effective assistance of counsel is simultaneously a denial of the right to be heard by counsel, as provided under Article 1, section 9 of the Constitution of Tennessee. Baxter v. Rose, 523 S.W.2d. 930(Tenn. 1975). Tennessee provides an avenue for relief within Tennessee Code Annotated section 40-30-101 et. seq. If you are victorious, your conviction could be set aside and a new trial granted.

In a post-conviction relief proceeding when the effectiveness and competency of one’s counsel is challenged, the petitioner must show that his counsel’s work was not “within the range of competence demanded of attorney’s in criminal cases,” Baxter v. Rose, 523 S.W.2d. 930, at 936 (Tenn. 1975); Tidwell v. State, 922 S.W.2d. 497, at 500 (Tenn. 1996), and that his case was prejudiced as a result of counsel’s ineffectiveness. Strickland v. Washington, 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069, 80 L. Ed. 2d. 674 (1984).


Deficient Performance

Specifically, the Strickland court stated, “First the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674 (1984); Tidwell, 922 S.W.2d at 500.



To demonstrate prejudice, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland at 694. This requires showing that counsel errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674 (1984); Tidwell, 922 S.W.2d at 500.

Unless a defendant makes both showings, it cannot be said that the conviction or sentence resulted from a breakdown in the adversary process that renders the result unreliable, and relief will be denied.


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. 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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