Category: Federal Appeals

How to Appeal to the Tenth Circuit

Posted by Chelsey Bradley - September 6, 2017 - Appeals, Civil Appeals, Criminal Appeals, Federal Appeals

The United States Court of Appeals for the Tenth Circuit is the federal appellate court with jurisdiction over the federal districts of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. In almost all cases, a would-be appellant cannot initiate a case in this court until he has received a final judgment within the district court. Through the ensuing appeal, the appellant can argue the district court erred in any order it issued prior to entry of final judgment.

Appeals before the Tenth Circuit are governed by the Federal Rules of Appellate Procedure (“Fed. R. App. P.”), which can be found here. These rules require the appellant begin by filing a notice of appeal that complies with Fed. R. App. P. 3 in terms of content, and Fed. R. App. P. 4 in terms of timeliness. As with an appeal before any court, it is vital that appellants adhere to the deadline to file a notice of appeal.

When filing the notice of appeal, the appellant must also pay the full appellate filing and docketing fee (currently $505) to the district court. Additionally, if a transcript is required for the appeal, appellant must request preparation of this transcript by filing a request with the district court.

Once the district court has determined that the record is complete, the court of appeals will set a deadline for filing all briefs. This deadline may be extended via motion, however these motions are disfavored. If you anticipate needing additional time, it is best to file a motion for extension at least five days prior to expiration of a deadline.

Appellant’s opening brief should comply with requirements in both the Federal Rules of Appellate Procedure as well as the 10th Circuit Local Rules. These requirements govern the format, content, length, and service requirements of the opening brief. The appellant’s opening brief will be followed by the appellee’s answer brief, and appellant’s optional reply brief.

If your case is scheduled for oral argument, you will be notified of this decision approximately two months ahead of your scheduled argument date. Litigants are generally permitted 15 minutes of argument, each. Following oral argument (if scheduled) or submission on briefs (if no argument is scheduled), the court will issue a written decision. There is no timetable for determining how long a decision may take.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today.

My Time For a Criminal Appeal Has Expired, Now What?

Posted by Chelsey Bradley - November 18, 2015 - Appeals, Civil Appeals, Criminal Appeals, Federal Appeals

A defendant who wishes to appeal a criminal conviction must inform the court of his intention by filing a notice of appeal. The notice of appeal sets into motion  deadlines for various other events, leading up to the deadline to file the appellate brief. While this deadline may be extended as necessary (for more information on extending the deadline to file the appellant’s brief, read our post, How Can I Get an Extension of Time to Appeal?), in some cases defendants or their attorneys allow it to lapse.

The good news is there are options through which a defendant can attempt to seek appellate relief after the time for filing an appellate brief has expired. This post discusses three of these options.

Motion to Extend Time to File Post-Conviction Motion or Appeal

Both Wisconsin and Colorado allow defendants to seek a motion to extend the deadline to file an appeal, even after this deadline has expired. In these states, defendants must submit a motion under either Wis. Stat. § 809.82(2)(a) or C.A.R. 26(b), respectively, and the motion must state good cause for the requested extension. The threshold for good cause is higher where the motion is filed after the relevant deadline has expired. The result of a successful motion for extension is the reinstatement of a defendant’s direct appellate rights.

State Collateral Attack

Through a state collateral attack, a defendant can challenge a conviction after the time for a direct appeal has expired. In Wisconsin, collateral attacks are governed under Wis. Stat. §974.06, which provides that a defendant may pursue a collateral attack where he is in “custody” as defined by the statute, and argues that: (1) the sentence violates of the state or federal constitution, (2) the court lacked jurisdiction to impose the sentence, or (3) the sentence exceeds the maximum legal sentence.

In Colorado, collateral attacks are governed under C.R.S. §16-5-402. This statute imposes important deadlines on the filing of a collateral attack, depending on the type of conviction the defendant is attacking:

  • Class 1 felonies: No limit
  • All other felonies: Three years from the date of conviction
  • Misdemeanor offenses: Eighteen months from the date of conviction
  • Petty offenses: Six months from the date of conviction

As with Wisconsin collateral attacks, a Colorado defendant must allege that his conviction is in violation of the state or federal constitution.

Motion for Federal Habeas Corpus

A third option for post-conviction relief following the expiration of a defendant’s direct appeal rights is filing a motion for federal habeas corpus pursuant to 28 U.S.C. § 2254.

28 U.S.C. § 2254(a) requires that a federal habeas corpus petition allege that the defendant is  in custody in violation of the Constitution, laws, or treaties of the United States. Additionally, a defendant may not file a petition for federal habeas relief unless he has either previously exhausted all state remedies available to him, or shows that the state corrective process is either ineffective or non-existent. 28 U.S.C. § 2254(b).

In most cases, it is best to attempt to reinstate your direct appeal rights before pursuing an alternative option. To  speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

 

 

How to File a Federal Habeas Corpus Petition

Posted by Chelsey Bradley - June 24, 2015 - Criminal Appeals, Federal Appeals

prisonerWhere a prisoner believes that his incarceration violates federal law, he  may petition for a writ of federal habeas corpus, pursuant to 28 U.S.C. § 2254. Federal habeas petitions are often filed as a lest resort after a prisoner has exhausted all other potential remedies.

In order to be considered, a federal habeas petition must allege very specific grounds. According to 28 U.S.C. § 2254(a), the petition must allege that the prisoner is in custody in violation of the Constitution, laws, or treaties of the United States. Additionally, a prisoner may not file a petition for federal habeas relief unless he has either previously exhausted all state remedies available to him, or shows either that the state corrective process is ineffective or non-existent. 28 U.S.C. § 2254(b).

Because such a petition initiates a federal proceeding, state prisoners must allege a violation of the US Constitution. Examples of common constitutional violations include:

  • Violation of a defendant’s Fifth and Sixth Amendment rights to counsel due to ineffective assistance of counsel;
  • Violation of a defendant’s Fourteenth Amendment due process rights due to an improperly obtained confession; and
  • Violation of a defendant’s Sixth Amendment right to a jury trial by a fair and impartial jury due to a biased juror, unconstitutional jury instructions, or insufficient evidence to sustain the jury’s verdict.

Alternatively, federal prisoners may petition for federal habeas relief based on violations of the Constitution, or various other federal laws. A successful federal habeas petition may result in a new trial, new sentencing hearing, or even the prisoner’s immediate release.

To speak with a knowledgeable attorney about the possibility of federal habeas relief, contact the Alderman Law Firm today for your free consultation at (855) 973-4169.