FEDERAL POST-CONVICTION LEGAL STRATEGIES, APPEALS,
CHALLENGES, PETITIONS & REMEDIES
Printer / PDF Version: Federal Post Conviction Legal Strategies, Appeals, Challenges, Petitions & Remedies
Both the Government, as well as, the Defendant can appeal a Federal Sentence. The Appellate Courts apply Procedural and Substantive Reasonableness Standards (note [Post-Booker] Influences):
Ø [Procedural Reasonableness Considerations]:
ü Was the Guideline Range correctly calculated?
ü Have all 18 U.S.C. 3553 (a) Factors been fully considered in Sentencing?
ü Is there an adequate explanation from the District Court how and why it imposed sentence?
Ø [Substantive Reasonableness Considerations]:
ü The Guideline Range is only one Sentencing Factor and not the sole consideration.
ü All 18 U.S.C. 3553 (a) Sentencing Factors must be considered by the District Court.
ü Consideration of all 3553 (a) Factors makes a Sentence Substantively Reasonable.
KEY CASE REFERENCE: [Gall v. United States], 552 U.S., 128 Ct. 586 (Dec 10, 2007). The Supreme Court rejects an Appellate Court Ruling that requires “extraordinary circumstances” to justify a sentence Outside the Guideline Range. As a result, Procedural and Substantive Reasonableness Standards give Defense Attorneys the opportunity to seek a successful Appeal of a District Court Sentence which is “unreasonable”. Moreover, this provides defense of below guideline sentences when challenged by the Government.
Right to Direct Appeal
[Post – Booker], the Government has a lot less power to force Appeal Waivers on Defendants when Pleading Guilty. For a clear [Booker] error, there has been some success in bringing Direct Appeal in a Plea Agreement (Reference: U.S. v. Killgo, 397F. 3d628 (8th Circuit 2005)).
2255 Petition (Reference: 28 U.S.C. 2255)
Commonly referred to as a Section 2255 Motion, this avenue provides convicted Defendants, who cannot or did not file a Direct Appeal, the opportunity to challenge the District Court’s Sentencing Decision at the Court of Appeals. You have one year from the Sentencing Judgment Date to file a 2255 Motion. SEE [Clay v. United States], 537 U.S. 522, 530 (2003), if you need some wriggle room on that year stipulation for filing. Caution: If the sentence is vacated and the Defendant is Re-Sentenced, there may be a risk of receiving a higher sentence (Consult an Appeal Attorney).
There are other types of challenges, such as a 2241 Petition, to consider as well.
Post-Sentencing Guideline Amendments
A Guideline Amendment can decrease an Offense Level. If contained in U.S.S.G. 1B1.10, you can petition the Sentencing Court to modify the sentence. This can be a long shot, as Sentence Modification is strictly at the Sentencing (District) Court’s discretion.
Types of Appeals
Appeals by Right (Appellate Court) and Discretion (Supreme Court)
Basis for Appeal
Ø [What is Challengeable?]
ü Trial Court Decision objected to by the Defense
ü Improper Jurisdiction
ü Plain Error
ü Combination of Lesser or Harmless Errors, when accumulated, constitute an Unfair Trial
Appeal Statistics
Of all Federal Appeals completed in 2001 and decided on the merits, 79% affirmed, 4% affirmed in part, 9% reversed or remanded and 7% dismissed. Reference: 2001 Federal Justice Statistics.
Appellate Procedure
The FCDC Legal Guide has a lot more detail on Appellate Procedure, but here are some helpful references:
Ø Consult the Federal Rules of Appellate Procedure (FRAP).
Ø [Release on Bail] governed by 18 U.S.C. 3143 and at Discretion of the court.
Ø [Filing an Appeal]: Rule 4 (b) of FRAP: within 10 days of the District Court’s Sentencing Judgment entry. The Government is given 30 days.
· Can petition the Court to extend the Appeal Filing by 30 days
Ø [Filing Appellate Briefs]: FRAP 28: Form, Content and Submission requirements.
Ø [Sentencing Appeals Grounds]: 18 U.S.C. 3742
Ø [Grounds for Re-Hearing Motion]:
· Misstatement of Fact
· Overlooked, Mistaken or Misunderstood Matters
Writ of Habeas Corpus (Reference: U.S. Constitution, Article 1, Section 9 (2); 28 U.S.C. 2254)
Ø [What is a Habeas Corpus Writ?] A review of an Inmate in Custody’s Conviction after all rights to Appeal have been exhausted and all time limits expired.
Ø [Access to Habeas Corpus]: 28 U.S.C. 2241
Ø [Certificate of Appeal ability]: 28 U.S.C. 2253 © (1)
Ø [Petition for Hearing]: 28 U.S.C. 2242
Ø [Grounds for Hearing]: 28 U.S.C. 2243
NOTE: It is absolutely essential to retain a Federal Appeal Attorney for an Appeal Review to determine if an Appeal or Challenge is worthwhile. Contact FCDC for a Referral.
The Second Chance Law
Second Chance Authorizes Federal Funding for Re-Entry Programs (i.e. halfway house) and asks the BOP to consider giving inmates a longer Halfway House and/or Home Confinement term than under current BOP policy. The law also authorizes funding for a Transition Test Pilot Program for prisoners over 65 years of age.
It is up to the inmate’s particular Prison to recommend Second Chance application to the BOP Regional CCM. My experience so far is most prisons are reluctant to do so. Granting Second Chance is up to the BOP’s discretion, and when the BOP participated in similar programs in the past, recidivism increased.
The law is really meant for destitute inmate of little financial means, no family ties or community ties. An extended Re-Entry Period would benefit their re-adjustment back into society. However, it doesn’t hurt to advocate to your Case Manager in Prison why an extended transition period would apply to benefit you. With Federal Funding tightening due to the economic slump and the bail out, the BOP may be forced to utilize Second Chance more.
For more information on Second Chance, visit FAMM (Families Against Mandatory Minimums).
The FCDC Legal Book, The Federal White Collar Criminal Defense Guide, goes into a lot more detail on Post-Conviction Remedies, Appeals, Challenges and Petitions.
Summary
In this article, I reviewed the following Post-Conviction Remedies & Considerations:
Ø Procedural & Substantive Reasonableness
Ø Right to Direct Appeal
Ø 2255 Petition
Ø Types of Appeals
Ø Basis for Appeal
Ø Appeal Statistics
Ø Appellate Procedure
Ø Writ of Habeas Corpus
Ø The Second Chance Law
Post-Conviction Law is a specialty; find a firm that specializes in this area for Federal Cases. A reputable Appeal Attorney will after a thorough review of your case advise you whether pursuing an Appeal or Challenge is worth the cost.
This Article is written by the FCDC Legal Consultant who has firsthand experience as a White Collar Defendant and Felon in Post-Conviction Appeals and Petitions. Please see My Story for an account of his Federal Legal Saga and the About Us Section for details on his experience and expertise.
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Disclaimer: Federal Criminal Defense Consulting, LLC (FCDC) is a Legal Consulting Firm and does not act in the capacity of an Attorney. Ask an Attorney for Legal Advice regarding your situation.
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