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Post Conviction Relief

Post-Conviction Relief and Criminal Appeals in New Jersey and Pennsylvania

Post-conviction relief is the process for challenging a conviction or sentence after the trial court has entered judgment, and in New Jersey and Pennsylvania it runs on rules and deadlines that differ substantially from one another. Direct appeal and collateral relief are separate avenues with separate standards, and the window for each opens and closes on its own schedule. Which avenue is available in a given case depends almost entirely on how much time has passed and what has already been litigated.

That makes the threshold question narrow and answerable: what is still open, and how long does it stay open. This page sets out the framework in both states and in federal court.

Discuss whether an avenue is still available in your case.

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Deadlines First, Because Deadlines Decide Most Cases

In Pennsylvania the collateral relief deadline is jurisdictional. Courts have held that they lack the power to reach the merits of an untimely petition no matter how strong the underlying claim is. New Jersey applies its limit more flexibly but still strictly, and the relaxation standard requires two separate showings rather than one.

The practical consequence is that a meritorious claim raised late can be worth less than a modest claim raised on time. Establishing the operative dates is the first work in any post-conviction matter.

Direct appeal

In New Jersey, R. 2:4-1(a) requires an appeal from a final judgment to be taken within 45 days of its entry. R. 2:4-4(a) permits the Appellate Division to extend that period for good cause by no more than 30 additional days, producing an outer limit of 75 days that cannot be enlarged further. Certain post-trial motions toll the period under R. 2:4-3(c), with the remaining time resuming when the motion is decided.

In Pennsylvania, Pa.R.A.P. 903(a) requires the notice of appeal within 30 days after entry of the order appealed from. Under Pa.R.A.P. 903(c)(3), where no post-sentence motion has been filed, the 30 days run from imposition of sentence in open court. A post-sentence motion under Pa.R.Crim.P. 720(A)(1) is optional but must be filed no later than 10 days after sentencing. When one is timely filed, Pa.R.Crim.P. 720(A)(2) runs the appeal period from the order deciding the motion, the order denying it by operation of law, or the order memorializing its withdrawal.

Collateral relief

New Jersey: R. 3:22-12(a)(1) bars a first petition filed more than five years after the date of entry of the judgment of conviction being challenged, unless the petition alleges facts showing that the delay was due to excusable neglect and that there is a reasonable probability that enforcing the bar would result in a fundamental injustice. Both showings are required. R. 3:22-12(c) provides that these limitations are not relaxed except as the rule itself permits.

Pennsylvania: 42 Pa.C.S. § 9545(b)(1) requires a petition within one year of the date the judgment becomes final. Under § 9545(b)(3), a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of the United States, or at the expiration of the time for seeking that review.

A common misunderstanding: the Pennsylvania clock does not start at sentencing. It starts when direct review concludes or the time for it expires. Calculating that date correctly is often the difference between a petition the court can hear and one it cannot.

Post-Conviction Relief in New Jersey

PCR is governed by R. 3:22-1 through 3:22-12. It is the exclusive means of challenging a judgment rendered upon conviction of a crime, subject to what the New Jersey Constitution otherwise requires.

What PCR is not

Under R. 3:22-3, PCR is not a substitute for direct appeal or for a motion incident to trial court proceedings, and it may not be filed while such appellate review or motion remains available or pending. Filing prematurely is a real risk in cases where appellate rights have not been exhausted.

The procedural bar

R. 3:22-4(a) bars grounds not raised in a prior proceeding, in the proceedings resulting in the conviction, or in any appeal from those proceedings, unless the court finds that the ground could not reasonably have been raised earlier, that enforcing the bar would result in fundamental injustice, or that denying relief would be contrary to the Constitution of the United States or of New Jersey. A prior adjudication on the merits of a ground is conclusive.

This is why ineffective assistance of counsel is the most common PCR claim. It typically depends on facts outside the trial record, which means it usually could not have been raised on direct appeal and therefore survives the bar.

The ineffective assistance standard

New Jersey applies the two-part test from Strickland v. Washington, 466 U.S. 668 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987). The petitioner must show that counsel's performance was deficient and that the deficiency prejudiced the defense. Prejudice requires a reasonable probability that, but for counsel's errors, the result would have been different.

Getting an evidentiary hearing

Under State v. Preciose, 129 N.J. 451 (1992), courts ordinarily should grant an evidentiary hearing where the petitioner has presented a prima facie claim, viewing the facts in the light most favorable to the petitioner as on a summary judgment motion. R. 3:22-10(b) frames the discretion. Because a certification supported by specific facts is what distinguishes a prima facie claim from a bald assertion, the quality of the supporting record often determines whether a hearing happens at all.

Counsel and illegal sentences

R. 3:22-6(a) allows a defendant filing a first petition to seek representation by the Office of the Public Defender by annexing a sworn statement of indigency. On second or subsequent petitions, assignment requires good cause as the rule defines it. Separately, a claim that a sentence is illegal, as distinct from a challenge to the conviction, is treated differently from the ordinary time bar.

Post-Conviction Relief in Pennsylvania

The Post Conviction Relief Act, 42 Pa.C.S. § 9541 and following, is the exclusive vehicle for most collateral claims in Pennsylvania. Procedure is governed by Chapter 9 of the Rules of Criminal Procedure.

Eligibility

Eligibility requirements at 42 Pa.C.S. § 9543 must be pleaded and proved by a preponderance of the evidence. Among them is a custody requirement: the petitioner must be serving a sentence of imprisonment, probation, or parole, awaiting execution of a sentence of death, or serving a sentence that must expire before the disputed sentence begins. A petitioner who completes the sentence while a petition is pending can lose eligibility.

Section 9544 governs what has been previously litigated or waived. An issue raised and decided in a prior collateral proceeding is previously litigated and cannot be relitigated.

The three timeliness exceptions

Where a petition falls outside the one-year window, 42 Pa.C.S. § 9545(b)(1) provides three exceptions, and only three:

  • Interference by government officials with the presentation of the claim, in violation of the Constitution or laws of the Commonwealth or of the United States.
  • Facts on which the claim is predicated that were unknown to the petitioner and could not have been ascertained through the exercise of due diligence.
  • A constitutional right newly recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the limitations period, and held by that court to apply retroactively.

Invoking an exception carries its own separate deadline under 42 Pa.C.S. § 9545(b)(2). That deadline was 60 days under the 1995 version of the statute and was extended by amendment in December 2018. A substantial amount of published commentary still repeats the 60-day figure, so the current statutory text is what controls.

Counsel and second petitions

Pa.R.Crim.P. 904 entitles an indigent petitioner to appointed counsel on a first PCRA petition, and Pennsylvania courts have held that the right extends through the appellate process on that first petition. Second and subsequent petitions face a considerably higher threshold, requiring a strong prima facie showing that a miscarriage of justice may have occurred.

Discovery

Discovery is not generally available in PCRA proceedings. Under 42 Pa.C.S. § 9545(d)(2) and Chapter 9, it is permitted only on leave of court upon a showing of exceptional circumstances, with a separate provision for first counseled petitions in capital cases. That constraint shapes how a petition must be investigated and supported before it is filed.

Federal Habeas Corpus

Federal habeas review of a state conviction proceeds under 28 U.S.C. § 2254 and is narrower than most people expect. It is not a second appeal.

Three constraints define it. First, exhaustion: under § 2254(b)(1)(A) and (c), relief is generally unavailable unless the petitioner has exhausted the remedies available in state court, meaning the federal claim was fairly presented to the state courts. Second, the limitations period: the Antiterrorism and Effective Death Penalty Act added a one-year limit at 28 U.S.C. § 2244(d)(1). Third, deference: under § 2254(d), relief on a claim adjudicated on the merits in state court requires showing that the state decision was contrary to or an unreasonable application of clearly established Supreme Court law, or rested on an unreasonable determination of the facts.

Section 2244(b) also imposes strict limits on second or successive petitions. The sequencing consequence is significant: because federal habeas generally requires exhaustion first, and because the state and federal clocks run on different schedules, state collateral proceedings and any eventual federal petition have to be planned together rather than in series.

Federal habeas is largely confined to the record developed in state court. If the factual record is not built during the state proceeding, it is often too late to build it later.

Grounds That Support Post-Conviction Relief

Ineffective assistance of counsel

The most frequently raised ground in both states, governed by Strickland and requiring both deficient performance and prejudice. Common factual bases include failure to investigate, failure to interview or call available witnesses, failure to file a viable suppression motion, failure to convey or properly advise on a plea offer, and failure to preserve issues for appeal.

Immigration advice

Under Padilla v. Kentucky, 559 U.S. 356 (2010), the Sixth Amendment requires defense counsel to advise a noncitizen client of the deportation consequences of a guilty plea, and where the consequence is clear under the immigration statute, to say so clearly. A plea entered without that advice may support a claim.

Suppressed favorable evidence

Under Brady v. Maryland, 373 U.S. 83 (1963), suppression by the prosecution of evidence favorable to the accused and material to guilt or punishment violates due process. Brady material that surfaces after conviction can support both a collateral claim and, depending on timing, a timeliness exception.

Newly discovered evidence

Evidence that was unknown and could not have been obtained earlier through due diligence. In Pennsylvania this ground maps onto the second statutory timeliness exception. In New Jersey it bears on both the merits and on excusable neglect under R. 3:22-12(a)(1).

Illegal sentence

A sentence imposed beyond statutory authority, or under a provision later held invalid, is treated differently from an ordinary challenge to a conviction and is subject to different timing rules in each state.

How We Evaluate a Post-Conviction Matter

We establish the dates before anything else

Date of sentencing, date of entry of the judgment of conviction, whether a direct appeal was filed and how it concluded, whether discretionary review was sought, and whether any prior collateral petition exists. Those facts determine which avenues remain open. Everything else follows from them.

We obtain and read the underlying record

Transcripts, the plea colloquy, sentencing, discovery produced and not produced, and prior counsel's file. Claims that depend on facts outside the record still have to be documented, and the certification supporting a petition is only as strong as the record behind it.

We assess whether procedural bars apply before assessing merits

A claim that cannot clear R. 3:22-4 in New Jersey, or the previously litigated and waiver provisions of 42 Pa.C.S. § 9544 in Pennsylvania, will not be reached on the merits. Identifying that early prevents work that cannot produce a result.

We plan state and federal sequencing together

Because federal habeas generally requires exhaustion of state remedies and carries its own limitations period, decisions made in the state proceeding affect what remains available federally. Those tracks are considered together at the outset.

We give a direct assessment of viability

Not every conviction supports a viable post-conviction claim, and not every avenue remains open. Where the analysis does not support filing, we say so, and we explain why. That answer has value in itself.

Frequently Asked Questions

A direct appeal tests errors that appear on the trial record, and it is generally limited to issues preserved below. Post-conviction relief reaches claims that could not have been raised on that record, which is why ineffective assistance of counsel is the most common collateral claim: proving it usually requires facts outside the transcript, such as what counsel did or did not investigate. The two have different deadlines, different standards, and in New Jersey a rule that PCR may not be filed while direct appeal remains available. They are sequential avenues, not alternatives you choose between.

For direct appeal: 45 days from entry of the judgment in New Jersey under R. 2:4-1(a), extendable by up to 30 additional days for good cause under R. 2:4-4(a); and 30 days in Pennsylvania under Pa.R.A.P. 903(a), running from imposition of sentence where no post-sentence motion was filed. A Pennsylvania post-sentence motion under Pa.R.Crim.P. 720(A)(1) is due within 10 days of sentencing. For collateral relief: five years from entry of the judgment of conviction in New Jersey under R. 3:22-12(a)(1), and one year from the date the judgment becomes final in Pennsylvania under 42 Pa.C.S. § 9545(b)(1). Federal habeas carries its own one-year period under 28 U.S.C. § 2244(d)(1).

Possibly, but the standards are demanding. In New Jersey, R. 3:22-12(a)(1) permits a late first petition only where the petitioner alleges facts showing that the delay resulted from excusable neglect and that there is a reasonable probability that enforcing the bar would produce a fundamental injustice. Both showings are required, not either one. In Pennsylvania, 42 Pa.C.S. § 9545(b)(1) recognizes exactly three exceptions: governmental interference, facts that were unknown and could not have been discovered through due diligence, and a newly recognized constitutional right held to apply retroactively. Invoking an exception carries its own separate filing deadline under § 9545(b)(2). Whether anything remains open depends on specific dates and specific facts.

Not at sentencing, which is the most common misunderstanding. Under 42 Pa.C.S. § 9545(b)(3), a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of the United States, or at the expiration of the time for seeking that review. If no direct appeal was taken, the date generally turns on when appellate rights lapsed. Because Pennsylvania courts have treated the PCRA time limit as jurisdictional, meaning they lack power to reach the merits of an untimely petition, calculating this date correctly matters more than almost anything else in the case.

Two things, under Strickland v. Washington, 466 U.S. 668 (1984), which New Jersey adopted in State v. Fritz, 105 N.J. 42 (1987). First, that counsel's performance was deficient, measured against an objective standard of reasonableness, with courts applying a strong presumption that the challenged conduct was sound strategy. Second, prejudice: a reasonable probability that but for counsel's errors the result would have been different. Disagreeing with a strategic choice is generally not enough. Showing that a specific act or omission fell outside the range of competent assistance, and that it changed the outcome, is what the standard requires.

In New Jersey, State v. Preciose, 129 N.J. 451 (1992), holds that courts ordinarily should grant an evidentiary hearing where the petitioner has presented a prima facie claim, with the facts viewed in the light most favorable to the petitioner much as on a summary judgment motion. That means the petition has to be supported by specific facts in a certification rather than general assertions. Many petitions are denied without a hearing for exactly that reason. In Pennsylvania, the PCRA court may issue notice of intent to dismiss without a hearing where no genuine issue of material fact exists, and discovery is available only on leave of court for exceptional circumstances, so the supporting record generally has to be assembled before filing.

Generally not under the PCRA. Eligibility under 42 Pa.C.S. § 9543 includes a custody requirement: the petitioner must be serving a sentence of imprisonment, probation, or parole, awaiting execution of a sentence of death, or serving a sentence that must expire before the disputed sentence begins. Pennsylvania courts have applied this requirement strictly, and a petitioner whose sentence expires while a petition is pending can lose eligibility before the court reaches the merits. If you are approaching the end of a sentence and considering a petition, the timing question is urgent rather than theoretical.

Usually not. New Jersey's R. 3:22-4(a) bars grounds not raised in a prior proceeding or on appeal, subject to three exceptions: the ground could not reasonably have been raised earlier, enforcing the bar would result in fundamental injustice, or denying relief would be contrary to the federal or New Jersey Constitution. A prior adjudication on the merits is conclusive. Pennsylvania's 42 Pa.C.S. § 9544 similarly treats an issue raised and decided in a prior collateral proceeding as previously litigated. Repackaging a losing appellate argument as a collateral claim does not generally clear these provisions.

Federal habeas under 28 U.S.C. § 2254 allows a federal district court to review whether state custody violates federal law. It is narrower than most people expect and is not a second appeal. Relief generally requires exhaustion of state remedies under § 2254(b)(1)(A) and (c), meaning the federal claim was fairly presented to the state courts first. A one-year limitations period applies under 28 U.S.C. § 2244(d)(1). And under § 2254(d), a claim already decided on the merits in state court requires showing that the decision was contrary to or an unreasonable application of clearly established Supreme Court law, or rested on an unreasonable determination of the facts. Because the state and federal clocks run differently, the two tracks should be planned together.

Often, on a first petition. In New Jersey, R. 3:22-6(a) permits a defendant filing a first petition to seek representation by the Office of the Public Defender by annexing a sworn statement of indigency; on second or subsequent petitions, assignment requires good cause as the rule defines it. In Pennsylvania, Pa.R.Crim.P. 904 entitles an indigent petitioner to appointed counsel on a first PCRA petition, and courts have held the right extends through the appellate process on that petition. Retaining counsel independently is a separate decision, and it often turns on the amount of record review and investigation a particular claim requires.

Related Criminal Defense Pages

Primary Source Resources

Speak With a Post-Conviction Attorney

If you are considering an appeal or a post-conviction petition in New Jersey or Pennsylvania, the first question is whether an avenue remains open and how long it stays open. That analysis turns on specific dates and on what has already been litigated. We will tell you what we find, including when the answer is that no viable avenue remains.

Confidential consultation.

(856) 209-3111

intake@ratliffjackson.com

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