Preparing and Filing a Post-Conviction Petition: A Practical Checklist

Criminal > Post-Conviction Relief | Published 26 November 2025 - Updated 11 July 2026 | UpLaw - uplaw.us

Phase 1 before anything else. Timing defeats more petitions than every substantive doctrine combined, and the clock is usually already running.

Use with Post-Conviction Relief: A Comprehensive Guide to Collateral Attack, Ineffective Assistance, and New Evidence and The Post-Conviction Relief Toolkit.

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Phase 1 — Calculate the deadline first

☐ Write down the date the judgment became final — the conclusion of direct review, or the expiration of time to seek it.

☐ Count forward one year — 28 U.S.C. § 2244 for state prisoners, the parallel provision of 28 U.S.C. § 2255 for federal.

☐ Check the alternative triggers, which may start the clock later:

• ☐ Removal of a state-created impediment
• ☐ A newly recognized right made retroactive
• ☐ ⭐ The date a factual predicate could have been discovered with due diligence — not when it was found

☐ Log every state filing and decision date. The clock tolls while a properly filed state application is pending — and ⚠ an untimely state petition tolls nothing.

☐ ⭐ The clock resumes; it does not restart. Compute the days remaining the day state proceedings end.

☐ Check whether a reconsideration motion or discretionary review petition extends tolling in this state.

☐ Note the state deadlines separately — they are frequently shorter and independent.

☐ If time may already have run, consider equitable tolling — diligence plus an extraordinary circumstance, Holland v. Florida — and the actual innocence gateway of Schlup v. Delo.

☐ ⭐ File on time even if incomplete, and seek leave to amend. A timely imperfect petition can be fixed; an untimely perfect one cannot.

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Phase 2 — Get the raw material

☐ Request trial counsel's complete file, in writing, with the client's authorization. ⭐ It belongs to the client in most jurisdictions.

☐ ⚠ Note what is missing, because that is the claim: no investigator invoice · no witness interview memoranda · no expert consultation · no mitigation file · no records requests.

☐ Order the full transcript — pretrial and suppression hearings, voir dire, trial, verdict, sentencing. ⚠ Petitioners routinely order only the trial and miss the hearing where the case was actually lost.

☐ Order the plea colloquy for any plea-based claim.

☐ Obtain the clerk's file — every motion, order, and docket entry.

☐ Obtain police reports, supplemental reports, and dispatch logs.

☐ Obtain lab reports, bench notes, calibration records, and analyst proficiency files.

☐ Obtain the appellate briefs and opinion.

☐ Ask whether indigent petitioners qualify for free transcripts in this jurisdiction.

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Phase 3 — The searches that produce claims

☐ ⭐ Search public dockets for every state witness — charges filed, reduced, dismissed, or sentenced around the trial date. This single step produces more disclosure claims than anything else.

☐ List every witness named in reports who did not testify, and ask why.

☐ Identify every forensic discipline used, and check whether the underlying science has been revisited — bite marks, hair comparison, arson indicators, shaken-baby presentations, firearms and bullet-lead testimony.

☐ Identify what counsel did not do: no expert · no investigator · no alibi inquiry · no mitigation · no suppression motion · no objection preserved.

☐ Check whether an appeal was requested and not filed — Garza v. Idaho makes that a complete claim with presumed prejudice.

☐ Check the plea advice on immigration — Padilla v. Kentucky.

☐ Ask the client, in writing, what they told counsel and when.

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Phase 4 — Build the record

⭐ Because of Cullen v. Pinholster and Shinn v. Ramirez, the record made in state court is usually the only record that will ever exist.

☐ Obtain signed affidavits from every witness whose testimony is described. Specific, dated, first-person, stating what they would have said at trial. ⚠ A described claim with no affidavit is not a claim.

☐ Obtain expert declarations where forensic or mental health issues exist.

☐ Collect mitigation records: school, including special education and discipline · medical and mental health · child welfare and foster care · military service · employment · family interviews and affidavits.

☐ Obtain a neuropsychological evaluation where indicated.

☐ ⭐ Document diligence contemporaneously — every letter sent, every request made, with dates. It supports any later argument about when a factual predicate could have been discovered.

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Phase 5 — Screen the claims

5A — Ineffective assistance — Strickland v. Washington

☐ Deficient performance — below an objective standard of reasonableness, judged at the time. ☐ ⭐ Prejudice — a reasonable probability of a different result. This is where most claims die.

Screen each: ☐ Failure to investigate — especially mitigation: Wiggins v. Smith, Rompilla v. Beard, Williams v. Taylor ☐ Failure to convey or advise on a plea offer — Missouri v. Frye, Lafler v. Cooper ☐ Plea advice generally — Hill v. Lockhart ☐ ⭐ Immigration advice — Padilla v. Kentucky ☐ Failure to file a requested notice of appeal — Garza v. Idaho ☐ Failure to object to racially biased expert testimony — Buck v. Davis ☐ Conflicts of interest; failure to consult an expert

☐ ⚠ Not claims: strategic disagreements · an unpleasant or unavailable lawyer · a meritless motion not made · a witness you cannot describe.

5B — Suppressed favorable evidence — Brady v. Maryland

☐ Favorable · suppressed · prejudicial — Strickler v. Greene ☐ Impeachment counts — Giglio v. United States ☐ Police knowledge counts; materiality is cumulative — Kyles v. Whitley ☐ ⭐ Reliance on the prosecutor's assurance of complete disclosure defeats a diligence objection — Banks v. Dretke

5C — New evidence and innocence

☐ ⚠ Freestanding innocence is not a ground standing alone — Herrera v. Collins ☐ ⭐ As a gateway it opens defaulted and time-barred claims — Schlup v. Delo, House v. Bell ☐ DNA testing statutes — federal and every state; check preservation and cost provisions ☐ New-trial motions — Fed. R. Crim. P. 33 and state analogues; ⚠ short, jurisdictional deadlines ☐ Changed forensic science statutes, where the state has one ☐ ⚠ Recantations rarely suffice alone. Corroborate.

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Phase 6 — Exhaustion and default

☐ Present every federal claim to the state's highest court, expressly as a federal claim — cite a federal case, a constitutional provision, or federal terminology. ⚠ A state-law-only argument is unexhausted.

☐ Present the same operative facts in state court that you will present federally.

☐ If any claim is unexhausted, seek a stay rather than risking dismissal and a time bar — Rhines v. Weber.

☐ Screen for procedural default — Wainwright v. Sykes, Coleman v. Thompson.

☐ If defaulted, plead an exception:

• ☐ Cause and prejudice — an external impediment, plus actual and substantial disadvantage
• ☐ The innocence gateway — Schlup v. Delo
• ☐ ⭐ Ineffective or absent counsel in an initial-review collateral proceeding, where state law required the claim to be raised there
• ☐ ⚠ But note the record limit — Shinn v. Ramirez means a claim may be excused from default and still fail for want of a record

☐ ⭐ Raise every claim in the state petition. Omission is default, and default is usually fatal.

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Phase 7 — The record and deference

☐ Understand the standard: relief requires a decision contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable factual determination — 28 U.S.C. § 2254.

☐ ⚠ How demanding — Harrington v. Richter: an error beyond any possibility for fairminded disagreement, applied even to a summary denial with no reasoning.

☐ ⭐ Review is limited to the state court record — Cullen v. Pinholster.

☐ ⭐ Federal courts generally may not develop new facts where the petitioner failed to do so in state court — Shinn v. Ramirez.

☐ Therefore: investigate before filing in state court · attach everything to the state petition · request a hearing there · and if a hearing is denied, make a detailed proffer on the record of what the evidence would have shown.

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Phase 8 — The evidentiary hearing request

☐ State the specific disputed facts — not the claim, the facts. ☐ Name each witness and summarize what each would say. ☐ List the documents to be introduced. ☐ Explain why the record cannot resolve the dispute. ☐ Attach the affidavits. ⭐ This is the difference between a hearing and a denial. ☐ Request discovery separately, tied to a claim, and show good cause. ☐ Request appointment of counsel — 18 U.S.C. § 3006A. ⭐ Appointment becomes far more likely once a hearing is ordered.

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Phase 9 — Drafting and filing

☐ Caption and case history, with every prior proceeding by date. ☐ A one-page numbered statement of claims. ☐ For each claim, three paragraphs: the constitutional right · the facts, with transcript citations by page and line · the prejudice. ☐ A timeliness section with the calculation shown. ☐ An exhaustion section identifying where and when each claim was presented. ☐ A hearing request (Phase 8). ☐ A prayer for relief stating exactly what is sought.

Attach: ☐ ⭐ Affidavits ☐ Tabbed transcript excerpts ☐ The plea colloquy ☐ Police and lab reports and bench notes ☐ Docket printouts for state witnesses ☐ Correspondence with trial counsel and counsel's file ☐ Expert declarations ☐ Mitigation records

Do not include: ☐ ⚠ A retelling of the entire case ☐ Attacks on the judge, prosecutor, or counsel's character ☐ Legal argument unattached to facts ☐ Claims with nothing supporting them ☐ ⭐ Twenty claims where three are real — volume signals weakness

☐ Draft with the certificate of appealability in mind — 28 U.S.C. § 2253, Slack v. McDaniel, Miller-El v. Cockrell. Make the constitutional right and the debatable question visible on the face of each claim.

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Phase 10 — Sentencing-only claims

⭐ More likely to succeed than conviction claims, and attempted far less.

☐ Ineffective assistance at sentencing — mitigation: Wiggins, Rompilla, Williams v. Taylor ☐ Racially tainted expert testimony — Buck v. Davis ☐ Guideline calculation errors, where cognizable ☐ A prior conviction no longer qualifying as a predicate under a retroactive decision ☐ ⭐ Sentence modification — 18 U.S.C. § 3582: extraordinary and compelling reasons or a retroactive guideline amendment. No default doctrine, no one-year clock ☐ Credit for time served and execution of sentence — 28 U.S.C. § 2241, after administrative remedies

☐ ⭐ Where the conviction claim is weak and the sentencing claim is strong, lead with the sentencing claim.

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Phase 11 — Routes that are not habeas

☐ DNA testing motions — the fastest route where biological evidence was preserved. ☐ New-trial motions — Fed. R. Crim. P. 33. ⚠ Short deadlines. ☐ ⭐ Immigration vacatur — available in most states after custody has ended, under Padilla v. Kentucky with prejudice under Hill v. Lockhart. For many clients the immigration stakes exceed the criminal ones. ☐ Compassionate release — 18 U.S.C. § 3582. ☐ Clemency, commutation, pardon — not judicial, not bound by these rules. ⭐ Write it as a mitigation presentation, not a legal brief. ☐ Expungement, sealing, set-aside, certificates of relief — for the collateral consequences that may be the client's real problem. ☐ ⚠ Fed. R. Civ. P. 60 reaches defects in a prior habeas judgment; a motion attacking the conviction is treated as successive.

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Phase 12 — Successive petitions and appeals

☐ Authorization from the court of appeals is required for a second or successive petition — 28 U.S.C. § 2244. ☐ The gates: a new retroactive constitutional rule, or newly discovered facts establishing by clear and convincing evidence that no reasonable factfinder would have found guilt. ☐ ⚠ Whether a filing is "successive" is itself worth litigating, particularly after a new judgment. ☐ Request a certificate of appealability expressly in the district court, and again on appeal if denied. ☐ ⭐ The first petition must be complete. A claim omitted is usually gone permanently.

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The deadline table

Item	Timing	Consequence
Federal limitation period	1 year from finality, with alternative triggers	⚠ The petition
State post-conviction deadline	Varies, frequently shorter	The state claim, and tolling
Tolling	Only while properly filed	⚠ An untimely state petition tolls nothing
New-trial motion	Short, jurisdictional	The motion
Notice of appeal from a denial	Short	The appeal
Certificate of appealability	With or after the denial	⚠ No appellate review
Successive petition authorization	Before filing	Dismissal
DNA testing motion	Per statute	Testing
Administrative remedies for § 2241	Before filing	Dismissal

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Who does what

The petitioner, first. Calculate the deadline. Request the file and transcripts. Family or supporters outside. Docket searches, witness contact, records gathering, calendar tracking. Counsel or a clinic, at the state stage. ⭐ The record has to be built here. An investigator. Witness statements and mitigation records. Experts. Forensic and mental health declarations. Innocence projects and clinics. They screen on documentable new evidence, not on assertions. Immigration counsel. Whenever a noncitizen is involved.

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Failure modes, ranked

1. Not calculating the deadline before doing anything else.
2. Delaying the state petition while the federal clock runs.
3. Assuming the clock restarts after state proceedings.
4. Filing a state petition that is itself untimely — it tolls nothing.
5. ⭐ Failing to build the record in state court.
6. Describing a witness's testimony without an affidavit.
7. Omitting claims from the first petition.
8. Presenting claims as state-law claims only.
9. Not requesting an evidentiary hearing, or requesting one without specifics.
10. Not proffering on the record when a hearing is denied.
11. Never obtaining the trial file or the full transcripts.
12. Never searching the state witnesses' dockets.
13. Filing twenty claims instead of three real ones.
14. Ignoring sentence modification, DNA testing, and immigration vacatur.
15. Writing to clinics about innocence rather than about evidence.

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Appendix A — The deadline worksheet

Fill this in before writing a single word of the petition.

Line	Entry
Date of judgment / sentencing
Date of the direct appeal decision
Date discretionary review was denied, or the time to seek it expired
DATE JUDGMENT BECAME FINAL
Day 365 (federal deadline if nothing tolls)
Date the state post-conviction petition was filed
Days elapsed before that filing (A)
Was the state petition timely under state law? ⚠	☐ Yes ☐ No
Date state proceedings finally concluded
Days remaining (365 − A)
FEDERAL DEADLINE = that many days after the state conclusion
Alternative trigger, if any (new right / factual predicate / impediment)
CONTROLLING DEADLINE

☐ ⚠ If the state petition was untimely, line A runs to the present — nothing tolled. ☐ ⭐ Recompute the day any state filing is decided. The single most common fatal assumption is that the year restarts.

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Appendix B — The three letters to send this week

1. To trial counsel

"I am writing to request my complete client file in [case number]. Please include all correspondence, notes, investigator reports and invoices, witness statements and interview memoranda, expert communications, discovery received from the prosecution, mitigation materials, and the plea offers received and conveyed. Please also confirm whether an investigator was retained, whether any expert was consulted, and whether any witness was interviewed. My authorization is enclosed. Please advise of any copying cost."

2. To the court clerk / court reporter

"I request transcripts in [case number] of: all pretrial and suppression hearings; jury selection; the trial; the plea colloquy [if applicable]; and the sentencing hearing. Please advise of the cost and of any procedure for a waiver or reduction for an indigent party. Please also provide a copy of the complete docket."

3. To an innocence project or clinic — one page

"Charge and sentence: [ ]. The evidence at trial: [three sentences]. What is new: [name the evidence specifically — the preserved rape kit at __, the affidavit of __ dated __, the dismissal of __'s pending charge three weeks after trial, the discredited __ testimony]. Where it is: [ ]. My deadline: [ ]. I can provide the trial file and transcripts."

☐ ⭐ The third letter gets read because it describes evidence. Letters asserting innocence without evidence do not.

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Appendix C — The affidavit that earns a hearing

AFFIDAVIT OF [NAME]

I, [name], being duly sworn, state:

1. I am over 18 and have personal knowledge of the facts stated here. 2. [How I know the defendant, and for how long.] 3. On [date], at approximately [time], I [was with the defendant at ___ / saw ___ / heard ___]. [State the facts, first person, specific, with times and places.] 4. [If applicable:] I was available and willing to testify at the trial in [year]. No lawyer, investigator, or other person representing the defendant ever contacted me. [Or: I was contacted by ___ on ___ and told ___.] 5. [If applicable:] I would have testified to the facts in paragraph 3 if I had been called. 6. [Documents I have that support this: ___, attached.]

Signed: ____________ Date: ______ [Notarization or unsworn declaration under penalty of perjury]

☐ ⭐ Paragraph 4 is the paragraph that wins ineffective-assistance claims. ☐ ⚠ Do not draft the substance for the witness. Interview, then let them state it in their own words. ☐ Attach any corroborating document — a timecard, a photo with metadata, a text message.

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Appendix D — The first-90-days plan

Days	Action
1–3	⭐ Complete the deadline worksheet (Appendix A). Calendar the controlling date in three places
3–7	Send the three letters (Appendix B)
7–21	Order and read the full transcripts; index them by page and line
14–30	Review counsel's file; list what is absent
21–35	Search the dockets of every state witness
30–45	Identify and locate witnesses; begin interviews
35–55	Obtain signed affidavits (Appendix C)
45–65	Gather mitigation records; consult experts where needed
55–70	Draft the petition: claims, facts, prejudice, timeliness, exhaustion, hearing request
70–80	Assemble attachments and tab the exhibits
80–90	File in state court, with everything attached, and request a hearing

☐ ⭐ Nothing in this plan requires a lawyer, and every step of it makes a lawyer more likely to take the case. The petitions that get counsel appointed and clinics engaged are the ones that arrive with a record already built.

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