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APPEAL
An appeal is limited to what is “in the record.” In other words, if an issue was
not brought up through a pre-trial motion or at trial, it generally cannot be
raised on direct appeal (of course there are some exceptions to this rule).
Generally, in order to have the possibility of winning an appeal, three things
must have happened: (1) The trial judge must have committed an “error” (i.e. did
something he should not have done or did not do something he should have done);
(2) The defense lawyer objected to the error at the time it was made; and (3) The
error was harmful (i.e. the error might have affected the conviction or sentence).
There are four possible outcomes from an appeal: (1) The conviction and sentence
can be affirmed; (2) The defendant (called the “appellant” on appeal) can be given
a new trial; (3) The defendant can be given a new sentencing hearing; or (4) The
defendant’s conviction can be overturned and he cannot be retried.
In the federal system, an appeal is taken to one of the twelve courts of appeals.
For example, a person convicted in federal court in Texas, Mississippi or
Louisiana takes an appeal to the United States Court of Appeals for the Fifth
Circuit that sits in New Orleans, Louisiana. The Appellant the case submits a
written brief, arguing the issues to be raised on appeal, to the Court of Appeals.
The government is given an opportunity to respond with its own brief and then the
Appellant can file a reply brief to the response. Often times, but not all the
times, the lawyers will be called to New Orleans to argue the issues raised on
appeal Eventually the Court of Appeals will render its decision in the form of a
written opinion. While the time can vary greatly, generally speaking, it takes
about 9-18 months from when a Notice of Appeal is filed to get a decision from the
United States Court of Appeals for the Fifth Circuit. If either side is not happy
with the result of the appeal, that party can file a Petition for Writ of
Certiorari with the United States Supreme Court asking the Supreme Court to
consider the case. Unlike, the Court of Appeals, the Supreme Court does not have
to consider the case and, indeed, it considers less than one percent of the cases
it is asked to hear.
An Application for a Writ of Habeas Corpus can be brought if a person loses his
direct appeal or if he elects not to pursue a direct appeal. Generally speaking,
this procedure is used to raise issues that were not in the record and, therefore,
issues that could not have been raised on direct appeal. In most states and in the
federal system, the issues must be related to a denial of a constitutional right.
An overwhelmingly large majority of applications for a Writ of Habeas Corpus
allege that a persons’ trial lawyer and/or appellate lawyer was ineffective.
The “motions and briefs” page of our main website contains examples of some of the
applications for a Writ of Habeas Corpus filed by Broden & Mickelsen and some of
the issues that can be raised in such applications. Motions & Briefs
There are strict time limits for filing an Application for a Writ of Habeas Corpus
(also called a 2255 motion) in federal court. The application must be filed within
a year after a person’s conviction has become “final.” “Finality” of a conviction
is complicated topic so person should consult with a lawyer to determine when his
conviction became “final.” If the application is not filed within the one year
time limit, it will be almost impossible to further contest a conviction in
federal court.
Time limits, if any, to file an Application for a Writ of Habeas Corpus in state
courts vary from state to state. In Texas, for example, there is no time limit in
non death-penalty cases for filing an application (also called an 11.07 writ).
Nevertheless, if a person does not obtain relief after filing an Application for a
Writ of Habeas Corpus in a state court, they can raise the same issues in federal
court despite the fact that they were originally convicted in a state court (this
is called a 2254 motion). A 2254 motion must be brought within a year after a
person’s conviction has become “final.” Again, “finality” of a conviction is
complicated topic so a person should consult with a lawyer to determine when his
conviction became “final.” Nevertheless, the time that a state writ is pending is
not counted against the year time limit.
CONCLUSION
Again, our firm has found that people are often confused as to the difference
between an appeal and an Application for a Writ of Habeas Corpus. It is hoped that
an example might further help people understand the difference.
If the lawyer tries to call these priests as witnesses at trial and the judge does
not allow it, this issue could be raised on direct appeal. The reason it can be
raised on direct appeal is that it will be in the trial transcript (i.e. it will
be “in the record”) that the defense lawyer tried to call the priests as witnesses
and the trial judge did not allow it. Therefore, a court of appeals can consider
whether the trial judge was right or wrong in the ruling he made.
On the other hand, suppose the lawyer never contacts the priests and never
mentions the priests during trial. Well, then, there is nothing “in the record”
about the priests for a court of appeals to consider. Remember, a direct appeal,
is limited to what is in the record and, generally, nothing outside the record can
be raised on direct appeal. Nevertheless, a person could file an Application for a
Writ of Habeas Corpus alleging that he was denied his constitutional right to
effective assistance of trial because his trial counsel did not contact the
priests and call them as witnesses and that, as a result, he was convicted because
the jury did not know he had a solid alibi.