‘Collateral review’ is a non-appeal proceeding to attack a judgment. It’s called ‘collateral’ because it’s a new case, with slightly different parties, a new case number, and often a different county. By contrast, a ‘direct’ appeal is a continuation of the old case; it has the same case number and the same plaintiff and defendant as the trial. Collateral review begins in a trial court (probably a different court than the one where the conviction originated), where the parties can call witnesses and present evidence. An appeal, by contrast, takes place in an appellate court that never hears witnesses or makes decisions about facts.
For a state-court conviction, the first level of collateral review is a petition for post-conviction relief in state court. The next step, if necessary, is petition for a writ of habeas corpus in federal court. For a federal conviction, the only level of collateral review is a petition for a writ of habeas corpus in federal court.
Injustices that cannot be appealed, such as the ineffectiveness of a criminal defendant’s attorney, the misconduct of the police or prosecutors, or the defendant’s invalid or involuntary choices, can be raised in state post-conviction relief. The denial of federally-protected rights, such as the right against unreasonable searches and seizures, the right to counsel, or the right to due process, can be raised in federal habeas corpus.
An issue that can be raised on appeal usually cannot be raised in post-conviction relief, and vice versa. The court in collateral review can order a new trial, a new sentencing, a new appeal, or can vacate a conviction altogether.
Collateral review is a flexible remedy, and many sorts of issues can be raised, but it is also complex, technical, and unforgiving. Further, it is subject to strict and confusing requirements about timing, and about whether the issues you want to raise have been raised before. A state post-conviction court generally will not hear an issue that was already raised on appeal, but a federal habeas court will not hear an issue unless that issue was already raised in state court.
If you are considering seeking collateral review, feel free to get in touch with me. The scope of the remedy is complex, time limits can be confusing. You don’t want to lose your right to attack your conviction by waiting too long, or, worse, fail to raise a strong issue because you didn’t know that you could.
