It can take from one to two months to gather and review the documents from the court file, the reporter’s transcripts, and original defense counsel’s file in order for criminal counsel to perform an in-depth study of the validity of a conviction.  It is difficult to expedite this much if reporter’s transcripts must be ordered and prepared.

 

            If grounds and a procedure for attacking the conviction are found, generally speaking, it requires about six months after an application for post-conviction relief has been filed to obtain an order vacating the conviction.  This estimate, of course, varies considerably depending on the nature of the case, the procedures in the jurisdiction, the extent of litigation involved, and the like.

 

            If the client does not have six to eight months within which criminal counsel can attack the conviction, it may not be worth embarking on the effort.  There may be alternative means available, such as a nonstatutory motion to vacate a conviction, that can offer the possibility of a ruling in half the time, or even less, but generally speaking, the availability of six to eight months is an important factor, strengthening the probability of success in obtaining post-conviction relief.

 

Fifth Circuit

POST-CONVICTION " REQUEST FOR CONTINUANCE
Cabral v. Holder, 632 F.3d 886 (5th Cir. Feb. 2, 2011) (the BIA did not abuse discretion in denying request for motion to continue to allow respondent to seek post-conviction relief).

Tenth Circuit

POST-CONVICTION " FINALITY OF CONVICTION
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned.); see Paredes v. Att'y Gen., 528 F.3d 196, 198"99 (3d Cir.2008) (adopting the reasoning of sister circuits and holding that the pendency of collateral proceedings does not vitiate finality).

CONVICTION " FINALITY
Waugh v. Holder, 642 F.3d 1279, 2011 WL 2464779 (10th Cir. Jun. 22, 2011)(conviction is considered final for immigration purposes as soon as formal judgment of guilt was entered by trial court; government need not show by clear and convincing evidence that the conviction was legally valid as prerequisite to using conviction as basis for deportation: In determining whether a conviction supports removal, [i]mmigration authorities must look solely to the judicial record of final conviction and may not make their own independent assessment of the validity of [the alien's] guilty plea.... As an administrative agency, the INS has no power to adjudicate the validity of state convictions underlying deportation proceedings. Accordingly, an alien cannot collaterally attack the legitimacy of a state criminal conviction in a deportation proceeding.); quoting Trench v. INS, 783 F.2d 181, 184 (10th Cir.1986) (internal quotation marks omitted).

CONVICTION " FINALITY " PENDENCY OF PETITION FOR POST CONVICTION RELIEF
Waugh v. Holder, 642 F.3d 1279, 2011 WL 2464779 (10th Cir. Jun. 22, 2011)(conviction was final for immigration purposes as soon as formal judgment of guilt was entered by trial court, and the pendency of the state court proceedings challenging validity of guilty plea on Sixth Amendment grounds did not make conviction nonfinal for immigration purposes).