Appeals and Writs of Habeas Coprus
Be aware, that there are very strict deadlines in the appeals process. If you are convicted of a misdemeanor, you have just 30 days from the day of sentencing to file your notice of appeals and 60 days for a felony. In most cases, the only circumstances in which a court will allow a late notice of appeal is if the trial attorney failed to perform one or more duties relating to a possible appeal or the principle of constructive filing thereof, which occurs when an incarcerated prisoner asks the prison or jail to mail his or her notice of appeal to the Superior Court.
You must file an appeal for a federal crime with the United States Court of Appeals for the Ninth Circuit and, if necessary, with the Supreme Court. These appeals are procedurally governed by different rules.
It is important to understand that an appeal is not a retrial. Appellate courts do not listen to testimony from witnesses nor do they hear evidence. They examine the trial record and decide whether there were any legal errors that were prejudicial that prevented the defendant from getting a fair trial and that the trial might have had a different outcome had the error not happened.
If a defendant pleaded guilty in the trial, this prevents him/her from filing an appeal except pertaining to issues concerning to the legality of the plea or the trial court’s jurisdiction. Even under these circumstances, the trial court must first issue a certificate of probable cause in order to prevent frivolous appeals. Once this certificate is issued, the defendant may appeal any cognizable issues.
After the defendant has filed the notice of appeal, the court will issue a briefing schedule to give the defendant about forty-five days to file his/her opening brief, in which the appellant’s lawyer cites what happened in the trial court, what errors occurred and why the appellate court should take action. The government then responds, and the appellants finally file a reply.
It is possible to get out of prison on bail while the appeal is pending if the defendant can present clear and convincing evidence that he/she will not flea or be a danger to public safety. The defendant must also show that he/she is likely to win and issue on the merits of the appeal, and there will be no further prison time.
People often hope that a criminal appeal is an opportunity to overturn a guilty verdict but this is often very difficult because the generally the appellant cannot present any evidence that wasn’t used during the trial, although there are exceptions to that rule.
Following a conviction you may be feel hopeless. Our attorneys have extensive experience successfully handling criminal appeals. Walk Free Law will do everything to give you your best chance at winning an appeal.
There are issues that cannot be appealed when there is a guilty plea entered. The courts require a certificate of probable cause to be issued to weed out frivolous appellate issues in this context. When there is a guilty plea involved, appealing the following may not be possible: a prior conviction that is claimed to be invalid that was an element of a current offense, admissibility of extrajudicial statement, inadequate factual basis for the plea, denial of motion to suppress identification evidence, denial of motion to change venue, error in limine evidence ruling, destruction of evidence, denial of motion to dismiss and denial of disclosure of confidential informant. However, once a certificate of probable cause is issued, all other preserved issues may be raised.
Identifying which issues are subject to appeal, and whether to file a writ of coram nobis or a writ of habeas corpus requires experienced and skilled appellate and post-conviction attorneys that have filed and argued briefs and know the inner workings of trial practice.
Appeals are based on the record and a defendant has a right to transcripts on appeal. A person can even ask for bail on appeal pending appeal if it can be demonstrated that they are not likely to flee, they don’t pose a danger to the community and the appeal is not frivolous but based on substantial legal questions.
Appellate issues can concern such a host and variety of issues from ineffective assistance of counsel claims, to improper jury selection claims, to erroneous rulings as to admissibility of evidence and/or testimony. An appellate attorney may also file a motion to augment the record to include transcripts of jury voir dire and opening statements not typically part of the normal record.
A good appellate attorney will always frame the issues as ones of federal constitutional law to preserve federal appellate rights. Appeals consist of an opening brief with a statement of the case, a statement of the facts, and persuasive legal arguments that demonstrate prejudice sufficient to reverse a conviction. One of three standard tests are reviewed on appeal:
1. Watson Test or reasonable probability where errors are found prejudicial if it can be shown that there was a reasonable probability of a different result without this error.
2. Harmless Beyond Reasonable Doubt (“Chapman Test”)- prosecution must show that the error did not contribute to the jury verdict (an example is a wrong jury instruction that failed to include the element of the crime)
3. Prejudicial Per Se Test: Federal constitutional error amounts to a “structural” defect which affected the trial, and always requires reversal (biased judge is such an example).
When an appeal results in reversal based on insufficiency of the evidence, this bars retrial and the defendant is protected by the Double Jeopardy Clause. Other instances where appeal results in reversal, the general next step is a new trial because Defendant is deemed to have consented to waive the protection of double jeopardy by appealing a judgment that results in reversal.
Petition for Writ of Coram Nobis
This petition informs the trial court of discovery of new facts which are unrelated to the merits that would have affected the judgment. It can be used to vacate the judgment where a defendant wasn’t advised of immigration consequence, the prosecutor gave inaccurate information to induce the plea among other narrowly drawn circumstances. Unlike a habeas corpus, a person does not have to be in custody to file this relief.
Our attorneys have successfully argued to resentence a defendant to rehab while they were already serving a 3 year custody sentence in jail based on facts that were not communicated to the defendant prior to sentencing.
A strategy tip may be to use a writ of noram cobis where an appellate court may simply correct sentencing errors that would end in a worse result for defendant than a negotiated disposition.
Writ of Habeas Corpus
Federal Habeas Corpus petitions are only available for a person in custody in violation of the US Constitution and the petitioner must be in custody at the time the habeas petition is filed. The custody requirement is satisfied if petitions is on probation or parole. There is a one year filing deadline that runs from the conclusion of direct review or expiration of time for seeking review, the removal of any unconstitutional state impediment to filing a habeas petition, a new constitutional right that has been made retroactive, or the date on which the factual claim could have been discovered by due diligence.
Actual innocence claims can override the 1 year statute of limitations if they can show more likely than not the petitioner would not have been convicted in light of new evidence. An unexplained delay to presenting the new evidence does not completely block relief but is viewed as a factor in whether actual innocence has been reliably shown. There can also be equitable tolling claims if the petitioner can show they were acting with diligence and some extraordinary circumstance prevented their filing.
In some cases the statute doesn’t begin to run until the Brady material was discovered or the date which allowed a petitioner to assert in good faith facts indicating his trial counsel was ineffective.
State Court Petition
A petition for collateral review in state court tolls the federal habeas statute of limitations if it is filed on time. A petitioner can file a protective petition in federal district court to stay the federal habeas proceedings until state remedies are exhausted to preserve their rights.
California law does not set out specific deadlines for filing state habeas petitions. Federal courts often have to decide whether or not the timeliness of a specific state petition was reasonable or not. Persuasive lawyering can explain whether or not the delay was reasonable due to the complexity of legal issues and size of the record.