Winograd Law Office

The art of federal and state criminal appellate practice.

Federal Criminal Appeals

An appeal is a much different animal than a trial. A good way to understand the difference between what a trial lawyer and what an appellate lawyer does is to think of a trial lawyer like a surgeon who performs heart surgery to heal a sick patient while an appellate lawyer is like a pathologist who performs the autopsy to figure out why the patient died. A direct appeal of a conviction or a sentence begins with filing a notice of appeal within two weeks of the sentencing decision. After this, the defendant, now called the “appellant,” must order a copy of the record on appeal which includes the trial and/or sentencing transcript as well as all the documents filed in the case. If a lawyer is hired he or she will have to file a motion to request any and all documents that were filed,. but sealed during the litigation. 

Once acquired, the attorney will have to analyze hundreds, or perhaps, thousands of pages contained in the record in order to find any valid grounds that may be raised on appeal. Once the lawyer determines there are grounds for appeal, he or she will then perform hours of legal research to find the legal precedent applicable to that particular issue. Then he or she can begin to actually write the brief. It is normal for a brief to be written and edited several times before it is finished since there are no "do-overs" after it has been filed with the clerk of the U.S. Court of Appeals. 

What most people do not understand about a direct appeal is that any all of the arguments raised in the appellate brief are limited to what is contained within the record on appeal, i.e., the trial transcript and whatever documents were previously filed in the case. The written brief will present the procedural history of the case, the relevant facts, the legal and factual findings of the trial court, and, most importantly, the legal arguments justifying why the conviction or sentence is wrong. The government will respond by filing an opposing brief and one further brief may be filed by each party responding to the other’s arguments. At this point, the briefs will be sent to a panel of three federal judges for their review. Occasionally lawyers for each side will be called for oral argument before the panel, but most appeals are decided solely on the basis of the briefs.

If either party is unsatisfied with the panel’s ruling—either affirming or reversing the conviction or sentence—it may file for reconsideration or rehearing by the entire Court of Appeals, which may consist of over a dozen judges. These hearings, however, are rarely granted. If motions for reconsideration or rehearing fail and the conviction still stands, two major options remain: filing a petition for a writ of certiorari with the U.S. Supreme Court, or filing a motion under 28 U.S.C. § 2255 challenging the conviction or sentence.

A petition for a writ of certiorari is simply the document filed with the U.S. Supreme Court to ask it to hear a further appeal. A cert petition is a long shot, at best, because the Supreme Court accepts very few cases every year, while receiving thousands of petitions. In order for a cert petition to succeed, it must convince at least four members of the Court that the case presents interesting and important legal questions, preferably questions about which the various U.S. Courts of Appeal disagree. Effective writing and comprehensive research are essential for a cert petition to succeed; claims of innocence will not move the Court, only careful and persuasive legal arguments.

Normally a convicted defendant’s last chance for relief is by filing a 2255 motion challenging the conviction or sentence. This motion is a substitute for the more famous petition for a writ of habeas corpus, which still exists but has largely been supplanted by the 2255 motion for reasons of convenience. Unlike in a direct appeal, a 2255 motion is filed in the trial court where a defendant was convicted, not in an appellate court (though it may later be appealed there). On a 2255 motion, the convicting court considers arguments that fundamental errors occurred at trial, whether or not objections to those errors were raised at the time. These fundamental errors may include constitutional violations such as conviction under an unconstitutional law, denial of the right to effective assistance of counsel, or imposition of an illegal sentence. Notably, unlike on direct appeal, on a 2255 motion a defendant may present new evidence innocence that was not previously available. If the court is convinced that fundamental error has occurred, it can then take any number of actions including vacating a conviction or sentence and scheduling a new trial or new sentencing hearing.

Successfully challenging convictions on appeal or in post-conviction proceedings requires different skills than for effective representation at trial. It is important to hire appellate counsel with the experience necessary to both effectively argue complex legal issues and to navigate the procedural rules for appeals and post-conviction proceedings. Ideally, a defendant going to trial should contact an experienced appellate lawyer prior to trial and, at the very least, he should retain appellate counsel immediately after conviction to ensure that the strict federal filing deadlines are met.

The information provided above is a very general summary of the federal criminal appellate process at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a lawyer licensed to practice in your jurisdiction.