While federal convictions are meant to be final upon pronouncement of a sentence, they are only final if a federal appeal is absent. Certain mistakes can render convictions and sentences null and void if appealed. However, such mistakes or “appealable errors” must be present, preserved, and appropriately appealed in order for a sentence to be overturned.
The process of preserving and appealing error is technical and arduous. It is a combined effort of trial counsel and appellate counsel. That is, identification and preservation of appeal is necessary in district court while drafting of writs and briefs to pursue an appeal is done at the appellate level.
To discuss this area a few terms need to be defined.
Federal District Courts
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There are approximately 94 federal districts. Most of them use multiple federal district judges who are appointed for life to preside over cases. For example, the Northern District of Texas has four divisions (Dallas, Amarillo, Fort Worth, and Lubbock) using more than 15 separate judges who each preside over a separate district court. Likewise, the Southern, Eastern, and Northern District of New York, the Southern District of Texas, the Western District of Texas, and the Northern District of Illinois (in Chicago) all have multiple federal district courts within them.
District Court Proceedings
Arraignments, Pleas, Trials, and Sentences are conducted and pronounced at the district court level. This means that jury trials, motions to suppress, motions to dismiss, pleas of guilty, and federal sentences all occur in district courts and are heard by federal district judges. This is also where guideline calculations are ultimately made.
Federal Appellate Courts
There are twelve separate federal appellate circuits each operated by a panel of lifetime appointed justices.
Federal Appellate Proceedings
Appellate courts review whether any statutory, jurisprudential, or Constitutional error took place before a district court. They do not generally make new factual findings (except in writ practice). Rather, they typically take the facts that are found within district courts and decide whether the process to reach such findings were legal and whether the law that was applied in a given case comports with federal statutes or the Constitution.
Types of Federal Criminal Appeals
There are two types of appellate review. The first type is known as a direct appeal. The second type of review is known as writ practice. These are also known as 2255 actions found within Rule 22 of the Federal Rules of Appellate Procedure. Writs are also known as writs of habeas corpus.
The first type is known as a direct appeal. These reviews determine whether the procedure used in the district courts was proper and comported with various statutory provisions. For example, if a jury trial occurred and an incorrect jury instruction was used, such an error may provide an avenue for appeal (if properly preserved).
In order for a direct appeal to occur in the first place, a notice of appeal must be filed in the district court within fourteen days after a sentence is pronounced. If this notice is not filed in that time frame, the right to appeal may be completely foreclosed.
Once a notice is filed, then a request for the Court Reporter’s Record and the Clerk’s Record needs to be made. These records constitute the entire record and are the four corners encompassing the material that can be reviewed in a direct appeal. In other words, only information within the record may be reviewed in a direct appeal.
All criminal sentences and convictions carry with them a right to direct appeal. That is, every convicted person has the right to appeal his or her sentence. It is also worth noting that defendants may waive their right to appeal. It is common for defendants to do so if they pursue a plea agreement with the Government where they provide a plea of guilty in exchange for the dismissal of collateral charges or in pursuit of a sentencing recommendation by the Government. The decision to write an appeal is a critical decision for a defense attorney at the district court level and should only be done after careful consideration.
The second type of review is known as writ practice. These are also known as 2255 actions found within Rule 22 of the Federal Rules of Appellate Procedure. These proceedings require the presentment of additional evidence. For example, if a defendant feels that his or her attorney provided ineffective assistance of counsel, they could attempt to file a 2255 Motion on Sixth Amendment grounds stating that they were denied their Constitutional right to an attorney. However, the district court will not have evidence of ineffectiveness. Instead, the appealing attorney will try to produce affidavits from defendants, trial level/district level counsel, and others, to establish new information that could establish that a defendant’s right to effective assistance of counsel was not honored. These proceedings are also used to present evidence of actual innocence based upon new evidence such as a recanting witness or newly discovered DNA evidence.
As stated before, it is important that the attorney acting at the district court level be mindful of the law and the possibility that error may occur. This is important for two reasons. First, avoiding the application of improper law by the district court may help to improve the defendant’s prospects at trial. Using the above example regarding jury instructions, trial attorneys need to ensure that legal instructions are given and that instructions that help to advance the client’s position are used.
Another example lies within motions to suppress. If searches and seizures are conducted improperly or illegally then certain evidence may be rendered inadmissible. An understanding of prevailing case law and Constitutional principles is critical in these circumstances.
Also important from an appellate viewpoint is the reality that not all errors can be reviewed by appellate courts. That is, only errors that are preserved at the district court level are generally reviewable.
Preservation of Error for Federal Appeal
What is preservation of error? Simply put, to preserve an error for appellate review trial counsel must either make a trial objection or file a pretrial motion asking for a ruling by the district court. It is important that, in general, appellate courts only evaluate district court orders or rulings. This means that if an error occurs and trial counsel fails to object then such error is not preserved for appellate review. In other words, such error is like a tree falling in the forest with no one present to hear it. It’s nothing.
[There are some reviews that may take place for unpreserved error but they tend to only apply in circumstances where fundamental rights are violated. This is legalese that, put simply, limits unpreserved error for dramatic, egregious mistakes such as disallowing cross-examination or a judge flagrantly expressing an opinion regarding the guilt or innocence of an accused in front of jury. In other words, very few, if any, errors actually qualify as fundamental. Thus preserving error is of critical importance if any appeal is to have a reasonable shot at success.]
Preservation of error is a fundamental practice that must be a priority for any defense attorney at the trial level. Whether it is making a written objection within a Pre-Sentence Report (PSR), filing a motion to suppress alleging an illegal interrogation or search, or making an objection to a failure to present a proper jury instruction or the admission of evidence in contravention of the Federal Rules of Evidence, trial counsel are on the front lines of preserving errors for appeal. If trial counsel is derelict in this duty then he or she may cost a client the ability to rectify a mistake at the trial court level.
It is also incumbent upon defense attorneys to act effectively. That is, they must devise an intelligent trial or sentencing strategy. They must diligently review discovery and pursue defenses and necessary investigation to consider potential defenses. This is also a duty for trial counsel.
In terms of writs of habeas corpus, appellate counsel must be skilled at finding ways to establish certain facts that are not obvious within an appellate record. Oftentimes, writ counsel need to interview witnesses or trial counsel to try to determine whether a client was not afforded effective assistance. In cases of actual innocence claims, they must be skilled at ensuring that any physical evidence is properly tested to establish whether there is a possibility that a crime occurred in a different manner than the prosecutor argued at trial, or whether such evidence challenges whether a crime occurred in the first place.
For all types of appeals, whether direct or via writ, appellate counsel must diligently research applicable case law and federal statutes. They must be able to effectively advocate their case in writing via an appellate brief. They must also understand the legal procedures and deadlines for the filing of a brief.
Additionally, it is important for appellate counsel to file briefs that comport with certain formatting and length requirements.
Why Varghese Summersett?
When you’re making a decision about who you can trust for your federal appeal, you’ll want to know what makes a lawyer or law firm unique. The lawyers at Varghese Summersett include two former federal prosecutors and three Board Certified Criminal Law Specialists. We have filed a variety of criminal appeals in federal court. We do not, however, handle federal writs. For a direct appeal on a federal criminal case, contact us at (817) 203-2220, or by using the form below: