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MY LAWYER MESSED UP
Any person who is in custody ro on probation, parole or a conditional discharge may file a motion saying that their lawyer messed up. This motion is called an RCr 11.42 motion. In the RCr 11.42 motion, you can argue all the ways that you think your lawyer made a mistake. This is called ineffective assistance of counsel. You must file your RCr 11.42 motion within 3 years of your conviction. This is 3 years from when you were sentenced after a guilty plea or 3 years from when the judgment became final after a jury trial. For more information, see the RCr 11.42 information packet.
If the RCr 11.42 motion is denied by the circuit court, it may be appealed to the Kentucky Court of Appeals by filing a Notice of Appeal, Designation of Record, and Motion to Proceed In Forma Pauperis in the circuit court that overruled the motion. To initiate the appeal, the Notice of Appeal and accompanying documents must be filed in the circuit court within 30 days after the circuit court entered the order denying the RCr 11.42. Once the circuit court clerk has certified the record, the defendant has 60 days in which to file the appellate brief at the Court of Appeals. For more information on appealing RCr 11.42 motions, click here for the PC Appeals Information Packet.
If the denial of the RCr 11.42 is upheld by the Kentucky appellate courts and the RCr 11.42 was filed within 1 year of the judgment becoming final (if the defendant went to trial) or within 1 year of final sentencing (if the defendant entered a guilty plea), the defendant may file a Petition for Habeas Corpus in federal district court asking the court to set aside the state-court conviction if it violated the United States Constitution or laws of the United States. In order to file the habeas petition, the defendant must be in custody as a result of the state-court conviction, and the defendant must have timely presented his claims involving the constitutional violation to the Kentucky state courts. For a sample habeas corpus petition form and other information relating to 28 U.S.C. § 2254 habeas corpus actions, click here.