Toolkit · Criminal

The Post-Conviction Relief Toolkit

28 U.S.C. § 2244

Type
Toolkit
Jurisdiction
National
Date
2025-06-25
Topic
Criminal

This toolkit supplies the working documents for a post-conviction case, from the deadline calculation through a filed petition and its alternatives. It opens with a limitation worksheet and an exhaustion table, because timing and presentation defeat more petitions than any substantive doctrine. Records modules provide the trial file request, the transcript order, and the mitigation records request that produce the raw material. A docket search log captures the single step that generates most disclosure claims. Affidavit and claim templates supply the paragraph structures that earn evidentiary hearings, and an exhibit index organizes what gets attached. Petition modules cover the claim inventory, the hearing request, and the certificate of appealability request drafted from the outset. Alternative-route modules outline DNA testing, immigration vacatur, sentence modification, compassionate release, and clemency, each of which succeeds more often than habeas. A one-page letter template for innocence projects and clinics closes the working tools, followed by an authority card linking every governing provision and decision to its text.

The Post-Conviction Relief Toolkit

Criminal > Post-Conviction Relief | Published 25 June 2025 - Updated 21 June 2026 | UpLaw - uplaw.us

Tool 1 first, always. Nothing else in this toolkit matters if the deadline has run.

Pair with Post-Conviction Relief: A Comprehensive Guide to Collateral Attack, Ineffective Assistance, and New Evidence and Preparing and Filing a Post-Conviction Petition: A Practical Checklist.

Tool 1 — The limitation worksheet

Line Entry
Date of judgment / sentencing
Direct appeal decision date
Discretionary review denied, or time expired
DATE JUDGMENT BECAME FINAL
Day 365 if nothing tolls
State post-conviction petition filed
Days elapsed before filing (A)
⚠ Was the state petition timely under state law? ☐ Yes ☐ No
State proceedings finally concluded
Days remaining (365 − A)
FEDERAL DEADLINE
Alternative trigger? (new retroactive right / factual predicate / state impediment)
CONTROLLING DEADLINE

☐ Authority: 28 U.S.C. § 2244; the parallel provision of 28 U.S.C. § 2255. ☐ ⚠ An untimely state petition tolls nothing — line A then runs to today. ☐ ⭐ The clock resumes; it does not restart. ☐ If time may have run: equitable tolling under Holland v. Florida — diligence plus an extraordinary circumstance — or the innocence gateway of Schlup v. Delo.

Tool 2 — The exhaustion table

# Claim Raised in trial court? Raised on direct appeal? Raised in state post-conviction? Presented to the state's highest court? Framed as a federal claim?
1 ☐ ☐ ☐ ☐ ☐
2 ☐ ☐ ☐ ☐ ☐
3 ☐ ☐ ☐ ☐ ☐

☐ ⚠ A claim argued only under state law is unexhausted. Cite a federal case, a constitutional provision, or federal terminology. ☐ The same operative facts must be presented in both forums. ☐ If any claim is unexhausted, seek a stay rather than a dismissal — Rhines v. Weber. ☐ Screen defaulted claims for cause and prejudice, or the innocence gateway — Wainwright v. Sykes, Coleman v. Thompson, Schlup v. Delo.

Tool 3 — The trial file request

[Date] · [Trial counsel] · Re: [Client], case no. [__]

I request the complete client file in this matter. My written authorization is enclosed.

Please include: all correspondence with me and with the prosecution · counsel's notes · investigator retention documents, reports, and invoices · witness statements and interview memoranda · expert retention and communications · all discovery received from the prosecution, including any disclosure letters · mitigation materials and any records obtained · plea offers received, and records of when each was conveyed to me · the trial preparation file · billing records or vouchers.

Please also confirm, in writing:

  1. Whether an investigator was retained, and if so, when and what was done.
  2. Whether any expert was consulted or retained.
  3. Which witnesses were interviewed, and when.
  4. What plea offers were made, and when each was conveyed to me.
  5. Whether I requested an appeal, and what was done.

Please advise of any copying cost.

☐ ⭐ The file belongs to the client in most jurisdictions. ☐ ⚠ What is missing is the claim — no investigator invoice, no interview memoranda, no expert consultation, no mitigation file.

Tool 4 — The transcript and records order

[Date] · [Clerk of Court / Court Reporter] · Re: Case no. [__]

I request transcripts of the following proceedings: all pretrial and suppression hearings · jury selection · the trial, all days · the plea colloquy [if applicable] · the verdict · the sentencing hearing · any post-trial motion hearing.

I also request a complete copy of the docket and the clerk's file.

Please advise of the cost and of any procedure for waiver or reduction for an indigent party.

☐ ⚠ Order the suppression hearing. Petitioners routinely order only the trial and miss the proceeding where the case was actually lost.

Also request, from the appropriate agency: ☐ Police reports, supplemental reports, and dispatch or CAD logs ☐ Lab reports, bench notes, calibration records, and analyst proficiency and error histories ☐ Evidence custody and preservation logs — ⭐ essential for any DNA testing motion ☐ Any recorded interviews of witnesses or the defendant

Tool 5 — The docket search log

⭐ The single step that produces more disclosure claims than any other.

Witness Role at trial Charges pending at trial? Disposition Date of disposition Days after trial Disclosed?
☐
☐
☐

☐ Check every state witness, including officers, informants, and cooperators. ☐ Note the trial transcript page where each denied receiving a benefit. ☐ Authority: Brady v. Maryland; impeachment included, Giglio v. United States; police knowledge and cumulative materiality, Kyles v. Whitley; elements, Strickler v. Greene. ☐ ⭐ Reliance on the prosecutor's assurance of complete disclosure defeats a diligence objection — Banks v. Dretke.

Tool 6 — The witness affidavit template

AFFIDAVIT OF [NAME]

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

1. I am over 18 and have personal knowledge of the facts stated below. 2. [How I know the defendant, and for how long.] 3. On [date] at approximately [time], I [was with the defendant at ___ / observed ___ / heard ___]. [Facts only — first person, specific, with times and places.] 4. ⭐ 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 called, I would have testified to the facts stated in paragraph 3. 6. The following documents support this statement and are attached: [].

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

☐ ⭐ Paragraph 4 is what wins ineffective-assistance claims. ☐ ⚠ Interview first; do not draft the substance for the witness. ☐ Attach corroboration — a timecard, a photograph with metadata, a message thread.

Tool 7 — The claim inventory

One row per claim. ⭐ Three strong rows beat twenty weak ones.

# Claim Constitutional right Key facts Prejudice Evidence attached Exhausted? Defaulted?
1 ☐ ☐
2 ☐ ☐
3 ☐ ☐

Screen against these:

Theory Standard Authority
Ineffective assistance Deficient performance and prejudice Strickland v. Washington
Plea advice Reasonable probability of insisting on trial Hill v. Lockhart
Immigration advice Must advise of deportation risk Padilla v. Kentucky
Plea offers Sixth Amendment applies to bargaining Missouri v. Frye, Lafler v. Cooper
Notice of appeal not filed Prejudice presumed Garza v. Idaho
Mitigation investigation Failure to investigate at sentencing Wiggins v. Smith, Rompilla v. Beard, Williams v. Taylor
Biased expert testimony Buck v. Davis
Suppressed evidence Favorable, suppressed, prejudicial Brady v. Maryland, Strickler v. Greene
Freestanding innocence ⚠ Not a ground alone Herrera v. Collins
Innocence gateway Opens defaulted and time-barred claims Schlup v. Delo, House v. Bell

Tool 8 — The evidentiary hearing request

REQUEST FOR EVIDENTIARY HEARING

Petitioner requests a hearing on Claims [__].

1. The disputed facts. [State each disputed fact as a numbered proposition — not the claim, the fact. e.g. "Whether trial counsel was informed before trial that [witness] would place Petitioner at [location]."]

2. The evidence to be presented. | Witness | Expected testimony | Affidavit attached | |---|---|---| | | | ☐ Ex. __ | | Trial counsel | The absence of investigation, and the reasons | — |

3. Documents to be introduced. [List, with exhibit numbers.]

4. Why the existing record cannot resolve the dispute. [The record is silent as to ___; counsel's file contains no ___; the state's response asserts ___ without support.]

5. Discovery requested, with good cause. [Identify the specific item and the claim it bears on.]

6. Appointment of counsel. Petitioner requests appointment under 18 U.S.C. § 3006A given the need for testimony and cross-examination.

☐ ⭐ If the hearing is denied, make a detailed proffer on the record of exactly what each witness would have said. That proffer is what preserves the issue — because Cullen v. Pinholster and Shinn v. Ramirez mean the state record is usually the only record that will ever exist. ☐ Federal hearings are restricted by 28 U.S.C. § 2254, and the deference standard of Harrington v. Richter applies even to summary state denials.

Tool 9 — The exhibit index

Ex. Document Supports claim Source
1 Affidavit of [witness] 1 Interview [date]
2 Timecard / payroll records 1 Employer
3 Trial transcript pp. – 1, 2 Court reporter
4 Suppression hearing transcript pp. – 3 Court reporter
5 Plea colloquy transcript 4 Court reporter
6 Trial counsel's file — index and selected pages 1, 5 Counsel
7 Docket printout, [witness], case no. __ 2 Public records
8 Police report dated __ 2 Agency
9 Lab report and bench notes 3 Agency
10 Expert declaration of [name] 3 Retained
11 School / medical / military records 5 Records requests
12 Evidence preservation log 6 Agency

☐ ⭐ Tab everything and cite by exhibit and page in the petition. A judge who cannot find the support will not look for it.

Tool 10 — The certificate of appealability request

Draft it into the petition from the beginning.

REQUEST FOR CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253, Petitioner requests a certificate as to Claims [__].

Claim [__] — the constitutional right. [Name it: the Sixth Amendment right to the effective assistance of counsel; the due process right to disclosure of favorable evidence.]

Why reasonable jurists could debate the resolution. [Two or three sentences tying the record to the standard, citing the affidavits and exhibits.]

[If denied on procedural grounds:] Why the procedural ruling is debatable. [Address timeliness, exhaustion, or default specifically.]

The standard is that of Slack v. McDaniel and Miller-El v. Cockrell: a substantial showing of the denial of a constitutional right, not a showing that the appeal will succeed.

☐ ⭐ Frame every claim so the constitutional right and the debatable question are visible on the face of the pleading. ☐ Request the certificate in the district court, and again in the court of appeals if denied.

Tool 11 — The alternative-route outlines

A. DNA testing motion ☐ Identify the biological evidence and where it is held ☐ Obtain the evidence preservation log — ⭐ testing is impossible if the sample was destroyed, and the destruction itself may matter ☐ State how a favorable result would be material to identity ☐ Address the statutory conditions: timeliness, prior testing, and cost ☐ Request preservation of everything pending the motion

B. Immigration vacatur — ⭐ available in most states after custody ends ☐ The plea colloquy transcript, showing the advisement given ☐ Counsel's file and an affidavit or testimony on what was said ☐ The client's affidavit on prejudice — length of residence, family ties, absence of connection to the country of origin, and the modest sentencing difference ☐ An immigration attorney's declaration that the consequence was clear at the time ☐ Authority: Padilla v. Kentucky; prejudice under Hill v. Lockhart

C. Sentence modification / compassionate release — 18 U.S.C. § 3582 ☐ Satisfy any administrative prerequisite first, and document it ☐ State the extraordinary and compelling circumstance, with records ☐ Address the sentencing factors and post-sentencing conduct ☐ Attach institutional records, programming certificates, and a release plan ☐ ⭐ No default doctrine, no one-year clock, and measured in months rather than years

D. New-trial motion — Fed. R. Crim. P. 33 and state analogues ☐ ⚠ Check the deadline the day new evidence surfaces. It is short and jurisdictional

E. Clemency, commutation, pardon ☐ ⭐ Write it as a mitigation presentation, not a legal brief ☐ The life history, the offense in context, the record since, and the release plan ☐ Letters of support from employers, clergy, correctional staff, and family ☐ Not judicial, not bound by any rule in this toolkit

F. Execution of sentence — 28 U.S.C. § 2241 ☐ Exhaust administrative remedies first, and document each step

G. Relief from a prior habeas judgment — Fed. R. Civ. P. 60 ☐ ⚠ A motion attacking the conviction is treated as successive under 28 U.S.C. § 2244

Tool 12 — The one-page letter to a clinic

Re: Request for review — [Name], [ID number], [Facility]

Charge and sentence: [ ] Court and year: [ ] The evidence at trial, in three sentences: [ ] ⭐ What is new, specifically: [the preserved rape kit held at ___ / the signed affidavit of ___ dated ___ / the dismissal of ___'s pending charge ___ days after trial / the ___ testimony now recognized as unreliable / the complete absence of mitigation investigation] Where the new evidence is: [ ] My deadline: [ ] What I can provide: the trial file, the complete transcripts, and the exhibits listed on the attached index.

☐ ⭐ This gets read because it describes evidence. ⚠ Letters asserting innocence without evidence do not.

Tool 13 — The mitigation records request

☐ School records, including special education evaluations and disciplinary files ☐ Medical records, including birth records and any head injury history ☐ Mental health records, including any competency or forensic evaluation ☐ Child welfare and foster care files ☐ Military service records and discharge documents ☐ Employment records ☐ Institutional records since sentencing — programming, discipline, work assignments ☐ Family affidavits — ⭐ the intergenerational history is usually where the case is ☐ A neuropsychological evaluation, where indicated ☐ Authority for the claim: Wiggins v. Smith, Rompilla v. Beard, Williams v. Taylor

Tool 14 — The ninety-day plan

Days Action
1–3 ⭐ Tool 1 — the limitation worksheet. Calendar the controlling date in three places
3–7 Tools 3 and 4 — the file and transcript requests
7–21 Read the transcripts; index by page and line
14–30 Review counsel's file; list what is absent
21–35 Tool 5 — the docket searches
30–45 Locate witnesses; begin interviews
35–55 Tool 6 — obtain signed affidavits
45–65 Tool 13 — mitigation records; consult experts
55–70 Draft the petition; Tools 7, 8, 10
70–80 Tool 9 — assemble and tab the exhibits
80–90 File in state court with everything attached, and request a hearing

Tool 15 — The authority card

Question Authority
State prisoner habeas 28 U.S.C. § 2254
Federal prisoner motion 28 U.S.C. § 2255
Execution of sentence 28 U.S.C. § 2241
Limitation; successive petitions 28 U.S.C. § 2244
Certificate of appealability 28 U.S.C. § 2253
Sentence modification 18 U.S.C. § 3582
Appointment of counsel 18 U.S.C. § 3006A
New trial Fed. R. Crim. P. 33
Relief from judgment Fed. R. Civ. P. 60
Ineffective assistance Strickland v. Washington
Pleas; immigration; bargaining Hill v. Lockhart, Padilla v. Kentucky, Frye, Lafler
Notice of appeal Garza v. Idaho
Mitigation Wiggins, Rompilla, Williams v. Taylor
Biased expert testimony Buck v. Davis
Disclosure Brady, Giglio, Kyles, Strickler, Banks v. Dretke
Innocence Herrera, Schlup, House v. Bell
Tolling; stay and abeyance Holland v. Florida, Rhines v. Weber
Default Wainwright v. Sykes, Coleman v. Thompson
Deference; record; fact development Harrington v. Richter, Cullen v. Pinholster, Shinn v. Ramirez
Certificate standard Slack v. McDaniel, Miller-El v. Cockrell

Tool 16 — The fifteen rules

☐ 1. Calculate the deadline before writing a word. ☐ 2. File the state petition immediately — the federal clock is already running. ☐ 3. Build the entire record in state court. It is usually the only record that will ever exist. ☐ 4. Attach an affidavit or a document to every factual assertion. ☐ 5. Raise every claim in the first petition. Omission is default. ☐ 6. Frame each claim expressly as a federal claim. ☐ 7. Request an evidentiary hearing with specific disputed facts. ☐ 8. If a hearing is denied, proffer on the record. ☐ 9. Seek a stay rather than risking a time bar. ☐ 10. Draft with the certificate of appealability in mind. ☐ 11. Get the trial file and the full transcripts first. ☐ 12. Search every state witness's docket. ☐ 13. Consider sentence modification, DNA testing, and immigration vacatur before habeas. ☐ 14. Lead with a strong sentencing claim over a weak conviction claim. ☐ 15. Approach clinics with evidence, not assertions.

⭐ Three strong claims, fully documented, filed on time, beat twenty asserted ones every time.

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