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

Posted by Chelsey Bradley - November 18, 2015 - Appeals, Civil Appeals, Criminal Appeals, Federal Appeals - No Comments

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).