Direct appeal to the Federal Circuit Court of Appeals

When you are wrongfully convicted or upset with the consequences of a conviction, you may want to get your conviction overturned or reversed. An appeal is the first line of defense after a guilty verdict. Generally, you are entitled to a direct appeal, unless you waive that right. In Federal court, you must file a notice of appeal for your conviction within 10 days of the sentence. If you don't have your lawyer file the notice of appeal within 10 days of the sentence, you waive your right to a direct appeal.

 

The appeal may focus on errors the judge or government lawyer made at trial. The appeal may say you were subject to an illegal sentence. Other issues include a motion to suppress evidence (Federal agents and/or police illegally searched you) that was improperly denied. Also, if the judge gave the wrong jury instructions or did not give a properly requested special jury instruction, you may win the appeal. In 2007, an appeals court reversed a 20 year conviction based on a special jury instruction I requested at trial. The trial judge refused to give it. The appellate court even recommended to the committee who writes the standard jury instructions in Florida criminal cases that my instruction be included in the standard instructions where applicable.

 

Judges dont hear new evidence in a direct appeal. Instead, a three judge panel will read the briefs, which are written legal arguments. In the briefs, each side states their case. Many times, there will be oral argument, where each side will get about 15-20 minutes to argue their side in person. The judges ask the lawyers questions during the oral argument. If you win the appeal, you may be entitled to a new trial. Alternatively, you may get your conviction vacated or reversed. If you lose, you can petition the Supreme Court of the United States. This is done via a writ of certiorari.

 

Collateral Attack Conviction (Your Lawyer screwed up)

Also, you may collaterally attack your sentence by saying your lawyer didnt do a good job. This is typically done via a writ of habeas corpus.

 

Writ of Habeas Corpus

Habeas corpus 28 USC 2255 (Federal custody) and 2254 (State custody) petitions

You may file a writ of habeas corpus. This is a right to challenge your detention. The detainees in Guantanamo Bay are trying to challenge their detention via a writ of habeas corpus in Federal court. I have been successful in getting an appellate court to grant a writ of habeas corpus, setting my client free. 28 USC 2255 provides that "prisoners" may move for relief "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." There is an one year statute of limitations, which starts to run from the latest of:

 

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

 

Judges can consider new evidence in a 2255 petition, unlike a direct appeal. Sometimes, there is new evidence that comes to light, like DNA, which can exonerate you.

 

Supreme Court Criminal Appeals

Appellate Lawyer

If you lose after your direct appeal to the circuit court, you may petition the Supreme Court of the United States for a writ of certiorari. Most writs are denied because it takes 4 justices to agree to hear the case. I started my career as an assistant public defender doing appeals. Also, I am licensed to practice before the United States Supreme Court.

 

If you need a criminal appeals lawyer to handle your Federal criminal appeal, call me