Legal papers and gavel

Federal criminal appeals are difficult to understand, so this blog is going to address one of the common misconceptions. A main misconception is that a federal criminal appeal or, more specifically, a ‘direct’ appeal, is an opportunity to re-address or re-open the facts that were presented at trial. It is definitely not that at all! In fact, an appeal and a trial essentially have nothing in common other than the defendant and the prosecuting entity.

NOTE: Every defendant’s case is different; we encourage you to reach out to our office to schedule a free phone consultation to discuss the specifics of your loved ones’ case with our knowledgeable and compassionate staff.

So, what *is* a federal criminal appeal?  Essentially, it is a legal proceeding by which the judgement (or order) of the court – usually a district court – is attacked on some legal grounds. The defendant or his/her attorney files written ‘briefs’ (which are rarely brief). These briefs claim that certain errors warrant the reversal of a conviction or, at the very least, a reduction of a sentence. The government then has an opportunity to respond with their brief. In a few cases, the appellate court may hear oral arguments from both sides to clarify points raised in the briefs. This process often takes months (and in a few cases, it can take years) from start to finish. 

During the Appeals Process

During the appeal process, the appellate court will review the records of the prior court’s proceedings to determine whether there are adequate grounds to grant the appeal. These ‘proceedings’ occur almost entirely in writing. Each side files briefs raising and responding to legal errors alleged to have taken place in the district court. 

The records that are reviewed include all pre- and post-trial motions, all evidence admitted to the court and a word-for-word transcript of the trial. In many cases, the evidentiary documents and physical evidence are actually transported to the site of the appellate court. This is done so that the court can examine them first-hand as it considers the legal arguments. In addition to reviewing these materials, the appellate court will also review the written briefs submitted by each party. As mentioned above, in a very few number of cases, oral arguments from counsel will be heard to clarify any points raised by the written briefs. 

Because the entire proceeding is mostly virtual, appellate courts are not courts ‘of record’. That means there are no official court reporters, no witness stands and no juries, nor are they fact-finding courts. Generally, appellate courts do not receive evidence or testimony. Instead, they review, consider and resolve legal arguments AFTER the facts of the case have already be received, reviewed and judged in the district court. 

REMEMBER: Every defendant’s case is different; contact our office to schedule a free phone consultation to discuss the specifics of your loved ones’ case with our knowledgeable and compassionate staff.

Confused attorney

Our office gets many questions about this topic, and in this short blog, we’re going to attempt to provide a bit more clarity on this complex issue. (NOTE: There are many, many more complexities to this issue than we can outline in a blog; please reach out and contact our office for a free consultation to discuss your particular case.)

The most important thing to know is that a defendant only gets ONE SHOT at filing a U.S.C. § 2255 motion except in rare cases where new evidence is found, or the Supreme Court makes an extraordinary ruling that changes the process of similar cases. This means that you are taking a BIG risk by using consultants or paralegals or anyone other than an experienced attorney to file a motion like this. We strongly encourage you to reach out and contact our office for a free consultation with one of our knowledgeable professionals to get more information and a quote for services. 

The preparation and execution of a § 2255 motion is without a doubt the most important part of the process. Once the process is initiated, later motions can be argued, re-written and re-submitted, but to have your case receive a summary dismissal due to a bad first filing cannot be easily fixed. That is why we strongly urge you to hire experienced, competent, hands-on attorneys to help you and your loved one with this important process. It can (and often does) make the difference between success and failure.

Q: “What exactly is a Title 28 U.S.C. § 2255 Motion?

A § 2255 motion is essentially a non-direct appeal. Direct appeals are those entered immediately after a conviction. This type of appeal is a collateral attack on the sentence of incarceration itself for constitutional issues.

Q:“Can I file a § 2255 Motion?”

To answer this question, we start with 3 main criteria:

  1. Only federal inmates may file
  2. Complaints cannot be made if they could have been made on direct appeal
  3. Complaints must be an attack on the conviction or sentence themselves, not issues related to confinement (such as Residential Drug Abuse Program (RDAP) acceptance, placement in halfway house, or holdings in Solitary/SHU)

Next, there is a one-year time frame in which a § 2255 appeal can be made; however, this timeframe is based on one of four dynamics:

  1. One year from the date of the final judgement OR
  2. One year from the removal of obstacles to filing OR
  3. One year from a Supreme Court ruling that impacts a defendant’s case OR
  4. One year from the date of when facts are discovered that make it possible to file the motion

Normally, cases in the federal criminal system have a direct appeal. But when the direct appeal did not work, was never filed, does not have the ability to work, or simply does not meet the needs of the defendant, a § 2255 is often the way to go.

We strongly encourage you to reach out and contact our office for a free consultation with one of our knowledgeable professionals to get more information and a quote for services. 

Q: “What does ineffective assistance of counsel really mean?”

One of the most commonly used ‘triggers’ as a basis for filing a § 2255 motion is the claim of “ineffective assistance of counsel.”

Here’s how it works: the Sixth Amendment of our Constitution guarantees everyone the right to an effective lawyer if you are charged with a crime in Federal Court. A § 2255 motion is how a defendant claims that their lawyer was ineffective, BUT they must show two things:

  • First – you must show ‘deficient performance’ or a gross deviation of the standard of care, among other things. This means that you must show that your lawyer didn’t perform as well as he should have. By way of example, if a lawyer who is typically good at his job goes out and interviews a witness to prepare for your case, but your lawyer failed to do that – AND you can show it – then that’s how you can make this failure obvious. Another example of this would be if you asked your lawyer to file a notice of appeal and they did not.
  • Second – you have to show that your attorney’s error MATTERED – or ‘caused prejudice’. Continuing with the example above, if your lawyer didn’t talk to a witness and by failing to do so, there was a reasonable likelihood that there would have been a different result in your case, that supports the concept that your attorney’s ineffectiveness negatively impacted your case. If, however, your lawyer failed to talk to a witness who likely would not have testified anyway or had no helpful information to add to your case, then your point is not proven. 

Other examples may include:

  • Defense Attorneys who do not mention or fight for sentencing adjustments or who offer no evidence with their sentencing enhancement objections
  • Defense Attorneys who give their clients poor advice on whether to take a plea or to go to trial, which impact the defendant’s understanding of their plea or decision to go to trial
  • Defense Attorneys who fail to raise important issues during the original prosecution

In summary, § 2255 motions are an extremely complex area of the law and should not be taken lightly. If you intend to raise this argument on your own, we cannot strongly enough urge you to be careful. We have seen and heard stories of how poorly drafted and argued petitions can, and have, resulted in negative outcomes for the defendant. 

Please, reach out to our office for a free consultation with one of our compassionate and helpful professionals. We can provide you with information and a quote for services that will help you decide if this course of action is right for you and your loved one. 

(photo by Ron Levine)

Did you know that – largely due to the use of ‘mandatory minimum sentences’ over the past 30 years – elderly prisoners are the fastest-growing segment of the Federal Prison population? According to the Bureau of Justice, from 1999 to 2016, the number of inmates in state and federal prisons who were 55 years or older increased 280 percent! For comparison, during the same period, the number of younger adults grew by only 3 percent. As a result, the percentage of older inmates increased from 3 percent of the total prison population to 11 percent.

Prior to the First Step Act, the BOP released less than 100 people over a two-year period.

Luckily, the First Step Act has provisions to address this, which will help to allow older inmates the opportunity to be released to home and family and will also help to reduce the expenses of incarcerating aging inmates. Statistics have shown that elderly prisoners reoffend at lower rates, which helps to assure the community that they are not a danger to society. It just doesn’t make sense to have Americans pay more for the incarceration of elderly prisoners who post little or no public safety threat. 

Sadly, prior to the First Step Program, the Bureau of Prisons (BOP) had such narrow criteria, there were less than 100 people released over a two-year period – out of a total prison population of more than 200,000!! It is our hope that these numbers will be significantly more positive in years to come. (NOTE: There are many, many more criteria to this program than we can outline in a blog; please contact our office to discuss your particular case.)

So – what do you need to know? First, there are three general groups of inmates eligible for consideration of a reduction in sentence (RIS).

GROUP 1: “New Law” Elderly Inmate (non-medical)

  • The inmate is aged 70 or older
  • They are not serving a life sentence or a term for a crime of violence or a sex offense
  • The must not have attempted to escape or escaped from a BOP institution
  • Not – in the view of the BOP – at substantial risk of engaging in criminal conduct or endangering any person or the public if released to home detention
  • Has served 30 years or more of their term after 11/1/87

GROUP 2: Terminally ill or chronic or seriously ill (related to the aging process) inmate

  • The inmate is aged 65 or older
  • Suffers from a chronic or serious medical condition related to the aging process
  • Is experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility
  • Conventional treatment promises no substantial improvement to their mental or physical condition; and
  • Have served at least 50 percent of their sentence

GROUP 3: ‘Other’

  • The inmate is 60 or older
  • They have served either 10 years or 75 percent of their sentence, whichever is greater
  • They are not serving a life sentence or a term for a crime of violence or a sex offense
  • The must not have attempted to escape or escaped from a BOP institution
  • Not – in the view of the BOP – at substantial risk of engaging in criminal conduct or endangering any person or the public if released to home detention

As you can imagine, there is a lot of information in the First Step Act, to be sure. And, as mentioned above, there are many, many more criteria to this program than we can outline in a blog. If you have questions, or if you believe that your loved one might be eligible for relief from the court, then please reach out to us by visiting our website (www.GordonDefense.com) and scheduling a free consultation with one of our compassionate and helpful professionals.