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.

How a Case Gets to the Wisconsin Supreme Court

Posted by Chelsey Bradley - May 27, 2015 - Appeals, Civil Appeals, Criminal Appeals, Practice, Wisconsin Supreme Court

This article was authored by our managing attorney Kimberly Alderman-Penix and recently published in the Bi-Weekly Newsletter of the State Bar of Wisconsin. To read the full article including endnotes, click here.

The majority of requests for review to the Wisconsin Supreme Court take the form of a petition for review, filed shortly after the final disposition of a case in the Wisconsin Court of Appeals. However, there are three additional, less used vehicles through which the supreme court may exercise jurisdiction over a case: 1) petition for bypass, 2) certification by the court of appeals, and 3) original jurisdiction. This article provides a primer on the four paths cases may take to get to the supreme court, each of which is available in limited situations.

Petitions for Review

The most common way for a case to get before the supreme court is through a petition for review following a loss in the court of appeals. Petitions for review ask the supreme court to exercise its discretionary review on a particular case.

Importantly, the supreme court will not take a case simply because the matter was incorrectly decided or justice was not done in the lower courts. Rather, the supreme court will consider whether:

“(a) A real and significant question of federal or state constitutional law is presented.

(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.

(c) A decision by the supreme court will help develop, clarify or harmonize the law, and

a. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or

b. The question presented is a novel one, the resolution of which will have statewide impact; or

c. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.

(d) The court of appeals’ decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals’ decisions.

(e) The court of appeals’ decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.”

A petition for review must be filed within 30 days of the adverse decision in the court of appeals. This deadline cannot be extended. If the opposing party wishes to respond to the petition for review, it has 14 days (plus three days for mailing) from the date that the petition was filed to do so. The time it takes for the supreme court to issue a decision granting or denying review will vary depending on the supreme court’s schedule.

Petition for Bypass

In limited circumstances, a party may petition the supreme court for direct review of a matter already briefed in, but not yet decided by, the court of appeals. A matter is appropriate for bypass when it meets one or more of the criteria for review outlined in Wis. Stat. section 809.62 , as reproduced above. Additionally, the supreme court must determine that the issue is one it would have selected for review regardless of the outcome in the court of appeals. Finally, petitions for bypass may be granted when the supreme court determines that there is a need to hasten the appellate process.

A petition for bypass must contain a statement of reasons for bypassing the court of appeals. It must be filed no later than 14 days following the filing of the respondent’s brief. The opposing party may file a response to the petition to bypass within 14 days after the service of the petition.

The filing of the petition for bypass stays proceedings in the court of appeals, preventing that court from taking under submission the appeal. If the petition is denied, the original appeal to the court of appeals will continue as though the petition to bypass had never been filed.

Certification by the Court of Appeals

If the court of appeals believes that a particular case presents a question of law that belongs before the supreme court, it may certify an appeal to the supreme court. Certification means the court of appeals, instead of issuing its own ruling, asks the supreme court to take the case directly because the case presents a question of law that belongs before the highest state court.

A recent example of certification by the court of appeals occurred in Madison Teachers Inc. v. Scott Walker (appeal no. 2012-AP-2067). In this case, the court of appeals certified an appeal to the supreme court “because of its sweeping statewide effect on public employers, public employees, and taxpayers and because of the need to clarify and develop law relating to associational rights and the home-rule authority of municipalities.”

A certification by the court of appeals will be considered using the same criteria as a petition for review or bypass. Importantly, bypass will be attractive to the supreme court when there is a demonstrated need to quicken the appellate process, existing precedent on the issue is scant or conflicting, or the justices determine they will want to consider the issue, regardless of how the court of appeals ultimately rules. For the supreme court to consider an issue on certification, at least four justices must agree to hear it.

Original Jurisdiction

Finally, a party may move to commence an original action in front of the supreme court under original jurisdiction. “The concept of original jurisdiction allows cases involving matters of great public importance to be commenced in the supreme court in the first instance.”

Importantly, the supreme court is not a fact-finding body. Therefore, it will not take cases that involve disputes of fact. Rather, all parties to the action must agree on the facts that the court will consider.

A petition for the supreme court to take jurisdiction of an original action must include:

“(a) A statement of the issues presented by the controversy.

(b) A statement of the facts necessary to an understanding of the issues.

(c) A statement of the relief sought.

(d) A statement of the reasons why the court should take jurisdiction.”

A recent example of an action for original jurisdiction in the supreme court occurred in State ex rel. Ismael R. Ozanne v. Fitzgerald. In this case, the supreme court exercised original jurisdiction in order to determine whether the Wisconsin Legislature acted unconstitutionally when it enacted 2011 Wisconsin Act 10. The court granted the petition for original jurisdiction after determining that a lower court “usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.”

To exercise original jurisdiction, at least four justices must agree to hear the case. In contrast to petitions for bypass and certifications, the criteria for granting original jurisdiction are not statutory, and are less clearly defined.

If the supreme court does not deny the petition outright, it may order the respondent to file a responsive brief. The response will be due within 14 days of service of the order (rather than service of the petition). Additionally, the court may require an oral argument on the issue of taking original jurisdiction. Should the court decide to take original jurisdiction, it will establish a briefing schedule, and may or may not request oral argument on the issue to be decided.

Considerations for Appellate Attorneys

The Wisconsin Supreme Court hears very few cases regardless of which of these jurisdictional paths is pursued. The cases it does hear tend to be those that trigger its institutional responsibilities, rather than those in which justice may not have been done in a lower court. With a working knowledge of the four ways by which a case can come before this state’s highest court, an appellate attorney can quickly identify cases appropriate for high court review and more effectively advise clients on appellate options.

Can I Move to Extend Time to File a Notice of Appeal After the Deadline?

Posted by Chelsey Bradley - April 22, 2015 - Appeals, Civil Appeals, Criminal Appeals

chanakya-blog-extend-timeThere are many reasons why a person may miss a deadline. Especially when proceeding ‘pro se’ (without an attorney), there are many deadlines and rules that can be difficult to keep track of. It is therefore important to know which deadlines can be extended, and which cannot. In the context of an appeal, one very important deadline is the deadline to file the pleading that informs the courts that you will be appealing an order in the trial level court. In most jurisdictions, this document is referred to as the Notice of Appeal.

Each state has its own statute governing the motion to extend the deadline for filing a notice of appeal. In Wisconsin, for instance, it is Wis. Stat. § 809.82(2)(a). This statute provides that the court may extend this deadline “upon good cause shown.” Importantly, the good cause must be related to the delay in filing the Notice of Appeal, rather than the merits of the case itself. See State v. Evans, 2004 WI 84, 273 Wis.2d 192, 682 N.W.2d 784 (Wis., 2004). There is no deadline for filing a motion under this statue, however the earlier it is filed, the better chance it will be granted.

In Colorado, C.A.R. 4(a) governs when a Notice of Appeal may be filed after the time to do so has expired. This statute provides that such a motion will only be granted upon a showing of “excusable neglect.” Excusable neglect exists where a litigant can show that a reasonably prudent person under the same circumstances would have missed the same deadline. If a party is successful in showing excusable neglect, the time for filing a notice of appeal will be extended by no more than 35 days.

Although it is possible to ask the court to extend the deadline to file a Notice of Appeal after the deadline has passed, this is the exception, not the rule. The court has complete discretion to grant or deny such a motion, and these decisions are rarely overturned on appeal. To avoid these risks, it is best to file your Notice of Appeal on time.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

Can I Appeal a Restraining Order?

Posted by Chelsey Bradley - March 25, 2015 - Appeals, Civil Appeals, Criminal Appeals

restraining-orderRestraining (or civil protection) orders are temporary orders issued by judges in order to protect a particular person or entity. If you believe that a person has unnecessarily obtained a restraining order against you, you may be able to appeal (or otherwise fight) the order. Importantly, no matter how frivolous you believe a restraining order may be, make absolutely certain you abide by all its terms. Any violation, however slight, may result in arrest, fines, or even jail time.

Because the chances of success on appeal are always statistically low, it may be advisable to exhaust any alternative options before pursuing an appeal. One such option is a motion for reconsideration. A motion for reconsideration asks the trial court to review and amend its findings and conclusions. This is a good option where there is newly discovered evidence, or where the trial court misapplied existing law.

If a motion for reconsideration is inappropriate or unsuccessful, it may be time to file an appeal. In Wisconsin, for example, a party can file an ‘appeal by right’ asking the Wisconsin Court of Appeals to review the final decision granting the restraining order. Wis. Stat. § 808.03. Importantly, most issues must be preserved before they can be appealed. This means that, at the hearings in the trial court, a party or attorney must raise any objections to potential errors. If you plan to file an appeal of a restraining order, be sure to keep track of applicable deadlines. For example, in Colorado, the appealing party must file his notice of appeal within 49 days of the entry of the restraining order. C.A.R. 4(a).

To speak with a knowledgeable attorney about appealing a restraining order, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is Original Jurisdiction?

Posted by Chelsey Bradley - March 11, 2015 - Appeals, Civil Appeals, Criminal Appeals, Uncategorized, Wisconsin Supreme Court

Under normal circumstances, the pathway to a supreme court involves stops at a trial level court, and then an appellate level court. Because supreme court review is discretionary, many cases travel through the trial and appellate level courts, only to never achieve supreme court review.

In a very limited number of cases, however, an action may commence immediately in the supreme court. The ability of a state or federal supreme court to hear a case without the case moving through the trial or appellate level courts is through original jurisdiction.

In respect to the United States Supreme Court, original jurisdiction is governed by 28 U.S.C. § 1251. Under this statute, the United States Supreme Court has original and exclusive jurisdiction over controversies between two or more States. Additionally, this statute provides the United States Supreme Court with original, nonexclusive jurisdiction over the following types of cases:

(1) Actions in which one of the parties is an ambassador, other public minister, consuls, or vice consul of foreign states;

(2) Actions between the United States and a State;

(3) Actions by a State against the citizens of another State

Original jurisdiction also exists in state supreme courts. In state supreme courts, the procedure for utilizing original jurisdiction is determined by state statute. In Wisconsin, for example, a party who wishes to utilize original jurisdiction must file a motion to commence an original action in front of the Wisconsin Supreme Court. Then, a minimum of four justices must agree to hear the case. Similar to in the United States Supreme Court, the criteria for granting original jurisdiction in the Wisconsin Supreme Court are statutory.

It is important to remember that original jurisdiction is the exception, not the rule. To speak with a knowledgeable attorney about original jurisdiction, or the best way to get your case in front of the supreme court, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

Will There Be Oral Arguments on my Appeal?

Posted by Chelsey Bradley - January 28, 2015 - Appeals

The short answer is, it depends. While oral arguments are heard for many cases, oral argument is not mandatory on appeal. In fact, most jurisdictions will not hold oral argument unless it is specifically requested by one of the parties. Even then, the court may decide to not hear oral arguments.

Any party to an appeal can request oral argument. This request must be made in either the appellant’s brief or the response. Local court rules dictate where this request must be made. For example, some jurisdictions require it be on the cover of the requesting party’s brief, while others require that it be within the brief itself.

State statutes provide guidelines for determining whether oral argument is necessary. For example, in Wisconsin, oral argument unnecessary where:

  • The appellate arguments:
    1. Are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged;
    2. Are on their face without merit and for which no supporting authority is cited or discovered; or
    3. Involve solely questions of fact and the fact findings are clearly supported by sufficient evidence; or
  • The briefs fully present and meet the issues on appeal and fully develop the theories and legal authorities on each side so that oral argument would be of such marginal value that it does not justify the additional expenditure of court time or cost to the litigant.

Wis. Stat. § 809.22. Where neither of the above two criteria are met, the Wisconsin Court of Appeals will request oral argument.

If oral argument is requested in your case, the clerk of the court of appeals will notify you that oral argument has been requested, and advise you of how much time you will be given.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).


Alderman Argues Before the Seventh Circuit Court of Appeals

Posted by Kimberly Penix - January 14, 2015 - Appeals, Civil Appeals, Foreclosures

Dirksen-Federal-Bldg-On December 1, 2014, managing attorney Kimberly Alderman argued before the Seventh Circuit Court of Appeals in Chicago on behalf of defendant-appellants in Bank of America v. Dawn Martinson. The primary issue in the case was whether Bank of America produced the appropriate documentation to justify a foreclosure. While there is no video of the case, the audio is available here:

A decision on the case has not yet been entered.

How to Appeal Mid-litigation Decisions

Posted by Kimberly Penix - December 31, 2014 - Appeals

Screen Shot 2014-12-15 at 2.32.42 PMThis article was authored by our managing attorney Kimberly Alderman and recently published in the Wisconsin Lawyer. To read the full article including endnotes, click here.

In the course of trial-level litigation, a court issues various nonfinal orders. These are orders that do not dispose of all the claims as to all the parties. In most instances, nonfinal orders cannot be appealed until the trial court issues a final order in the case. In some instances, however, waiting to appeal a nonfinal judgment or order can cause great prejudice to a litigant. In these situations, the party may request that the appellate court consider the nonfinal judgment in an interlocutory appeal under Wis. Stat. section 808.03(2). Although the pendency of an interlocutory appeal does not automatically stay the proceedings in the trial court, the petitioner can request temporary relief pending the conclusion of the interlocutory appeal under Wis. Stat. section 809.52.

When an Interlocutory Appeal is Appropriate

Wisconsin’s interlocutory appeal statute, Wis. Stat. section 808.03(2), is the only mechanism by which a party can request appellate review of a nonfinal judgment or order (that is, a judgment or order that does not adjudicate all matters in a case as to all the parties). Interlocutory appeals are only permitted at the discretion of the appellate court. The court is not required to hear an interlocutory appeal and, in fact, this type of appeal is highly disfavored. In 2013, for example, the Wisconsin Court of Appeals allowed only 15 of 128 interlocutory appeals to move forward.

This general disfavor is due to a policy against the piecemeal disposal of litigation. Policy dictates that appeals of nonfinal judgments and orders be avoided when possible to protect trial-level litigation from interruptions and delays caused by multiple appeals and to limit each case to a single appeal.

Despite these concerns, Wis. Stat. section 808.03(2) identifies three situations in which a petition for leave to appeal can be granted. The court of appeals must find that hearing the interlocutory appeal would accomplish at least one of the following:

  • Materially advance the termination of the litigation or clarify further proceedings in the litigation;
  • Protect the petitioner from substantial or irreparable injury; or
  • Clarify an issue of general importance in the administration of justice.

In addition to these statutory requirements, and perhaps most important, the court of appeals must believe that there is a substantial likelihood of success on the merits of the underlying appeal. In practice, this might mean that a grant of an interlocutory appeal is more likely in situations in which the issues presented for appeal will be reviewed de novo.

Despite the general disfavor of interlocutory appeals, occasionally the court of appeals will grant permission to appeal mid-litigation. A request for interlocutory appeal stands a better chance when it alleges one of the following:

  • The trial court made an error of law that it is likely to continue to rely on or use.
  • The state court action is prohibited by federal statute.
  • The governing laws pursuant to which a lawsuit is brought are unconstitutional.
  • There is a defect in subject-matter jurisdiction.
  • There is a defect in personal jurisdiction.
  • The waiver of a juvenile out of juvenile court was flawed.
  • The defendant is facing a violation of his or her right against double jeopardy.
  • A qualified-immunity claim has been wrongfully denied.

As a further illustration, in State v. Webb, the Wisconsin Supreme Court indicated that interlocutory review would be appropriate under facts such as those in State v. Antes, which involved a pretrial challenge to determine whether an unloaded pellet gun is a “dangerous weapon.” The court explained that this was an appropriate issue for interlocutory appeal because it was likely to recur at trial.

Requesting an Interlocutory Appeal

The procedures for requesting an interlocutory appeal are set forth in Wis. Stat. section 809.50. Perhaps most important, a petition must be filed within 14 days after the entry of the nonfinal order. The court of appeals can, on its own motion or for good cause shown, enlarge the time. If a party misses the deadline, he or she should submit a motion to extend the filing period along with the petition for interlocutory appeal.

The petition itself must include a statement of the issues, a statement of the facts, a statement indicating the manner in which immediate review would satisfy at least one of the criteria listed in Wis. Stat. section 808.03(2) (discussed above), and a copy of the judgment or order sought to be reviewed.

If the opposing party wishes to respond to the petition, he or she must file the response within 14 days after being served. Under normal circumstances, the court of appeals will decide a petition for interlocutory appeal within one month after it is filed.

If Interlocutory Appeal is Granted

If granted, an interlocutory appeal will proceed as though it were a “normal” appeal, with the order granting the interlocutory appeal serving as the notice of appeal. Within 11 days after issuance of the order allowing the interlocutory appeal to proceed, the appellant must file a docketing statement, stating the issues to be reviewed. After reviewing these documents, the court of appeals may specify the issues it will review on appeal. As with a normal appeal, the timeline for an interlocutory appeal will vary widely depending on the issues raised on appeal, the court’s current docket load, and the number of judges presiding. For both interlocutory and normal appeals, the average time to conclusion is nine months.

While the interlocutory appeal is pending in the court of appeals, the proceedings in the trial court are not automatically stayed. However, a petitioner can request temporary relief pending the conclusion of the interlocutory appeal under Wis. Stat. section 809.52.

After an Interlocutory Appeal is Denied

The decision whether to grant an interlocutory appeal is a discretionary decision made by the court of appeals. Although Wisconsin Supreme Court review of such a decision is possible, it is highly unlikely absent unusual circumstances.

Considerations for Trial Attorneys

Although a client should ultimately direct the course of his or her case, the decision of whether to seek permission for an interlocutory appeal should be made by counsel, after considering the factors discussed above. If you think an interlocutory appeal might be appropriate in a particular case, it is important to consult as soon as possible with a qualified attorney who focuses on appellate matters. An appellate attorney should be well versed in appellate procedure, with the experience necessary to quickly gauge which arguments the court of appeals will find persuasive – and which it will not.

If the appellate attorney determines an interlocutory appeal is not appropriate, remind your client that interlocutory appeals are the exception to the rule, and that the client will have the opportunity to seek an appeal – as a matter of right – at the conclusion of the case at the trial-court level.

Alderman Argues Before the Wisconsin Supreme Court

Posted by Kimberly Penix - December 17, 2014 - Appeals, Practice

Screen Shot 2014-12-14 at 10.03.11 PMOn December 9, 2014, managing attorney Kimberly Alderman argued in front of the Wisconsin Supreme Court on behalf of defendant-petitioner in State v. Eddie Lee Anthony. The primary issue was whether Anthony’s refusal to comply with an order to not mention his unrelated 1966 conviction was sufficient disruption to justify the court’s stripping him of the right to testify in his own defense. To see these lively high court arguments and Attorney Alderman in action, click here and then on the little TV:

It may be some time before the decision is released, particularly if the Court chooses to wait until the US Supreme Court issues a decision on the petition for certiorari in a related case, State v. Nelson.

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What is E-Filing?

Posted by Chelsey Bradley - December 3, 2014 - Uncategorized

Many courts have instituted an electronic system for briefs and other documents. While these courts still require paper copies of most briefs, they require an additional, electronic copy to be filed through their Web site.

In Wisconsin, for example, attorneys are required to file an electronic copy of briefs in the court of appeals and supreme court, but not in the circuit courts. Unrepresented litigants may electronically file their briefs as well, but are not required to do so.  To determine whether your case requires electronic filing, check the local court Web site, or call the clerk of courts.

The electronic filing web page for your local court will provide instructions for how to electronically file a document in your jurisdiction. Typically, this involves uploading a PDF copy of the brief, minus any appendix. Most courts require that the brief be e-filed on the same day that the physical copies are filed.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).