Direct Appeal

Whether you went to trial or pleaded guilty, a federal criminal direct appeal remains the most important avenue for you to fight your conviction.

postconviction relief, compassionate release, 2255 motions, case review

What is a Direct Appeal?

Once found guilty and sentenced, you have the option to appeal to a Federal Appeals Court.  In a direct appeal, you can argue that your trial or sentence was unfair because the District Court made certain errors.

Accordingly, you can ask the Federal Appeals Court to send the case back down to the District Court. If they do, the District Court could undo your sentence, re-try your case, or fix correctable errors.  You can also ask for the court render a verdict finding you not guilty at all.

The Issues

A direct appeal gives you the opportunity to point out all of the errors made in your case at the District Court level. 

The errors that you bring to the appeals court’s attention could be errors at any stage in the process.

Issues might take place: 

  • Before Trial: An incorrect denial of a motion to suppress, or improper rulings on the admissibility of evidence.

  • Plea Negotiations: The judge improperly interfering with plea negotiations.

  • During Trial: The failure of the government to prove its criminal case against you, improper or prejudicial arguments by the government, the District Court’s failure to grant a motion for a judgment of acquittal or motion for new trial, improper rulings on trial evidence as it arises.

  • Sentencing: Improper statutory or guideline sentencing enhancements, including but not limited to career offender enhancements, 851 enhancements, armed career criminal act enhancements, etc.

Direct Appeals

Circuit Courts

The Court of Appeals in one of 13 Circuits will hear your case.

For example, the State of California is in the Ninth Circuit. Therefore, if your conviction took place in California, you would make your direct appeal to the Ninth Circuit.

The Direct Appeal Process

Getting Started

The direct appeal process starts when you file a Notice of Appeal in the District Court where you were convicted.  The Notice of Appeal is a simple form, only two pages long. It allows you to give some basic information about your case. Additionally, you will briefly summarize the errors that occurred before the District Court.   

Note:   You have a very short time within which to file your Notice of Appeal. So, if you believe that an error occurred in your case, you should file the Notice of Appeal as quickly as possible.  If you fail to file a Notice of Appeal on time, you jeopardize your chances of appealing your case at all. Federal Rule provides that, in a criminal case, a defendant must file a Notice of Appeal in the District Court within 14 days after the:

1. Court enters the judgement or order or;

2. Government files a notice of appeal.

Whichever occurs later constitutes the benchmark.

Moving Forward

Once the District Court and Court of Appeals receive your Notice, they assign your case a docket number. You should include it on any future correspondence. You may also receive some preliminary forms to complete.

Secondly, you will receive a briefing schedule from the Clerk of the Appeals Court. It will provide the dates on which you need to file your legal brief. 

Thirdly, both you and the government will file appeal briefs in the case.  Also, you will also have the opportunity to file a reply brief in response to the government’s appeal brief if you initiated the appeal. This constitutes the most complicated part of the direct appeal process. Accordingly, we highly recommend hiring an attorney to assist. You may request permission to make oral arguments. However, the Court of Appeals usually decides the case based on briefs alone.

After considering the briefs, the Court of Appeals will enter a final judgment. 

Next Steps

If you win your direct appeal, the court will outline the next steps for your case. Typically, the Appellate Court will tell the District Court precisely what to do. These might include releasing you from prison, holding a re-trial, or holding a re-sentencing.

If the court denies your appeal, then you may file a Petition for Rehearing before the same Court of Appeals. This petition will allow you to go through the briefing process again. 

Alternatively, you can ask the United States Supreme Court to hear your case by filing a Petition for Writ of Certiorari. If the Supreme Court agrees to hear your case, the appeal process before the Supreme Court largely mirrors the process discussed above. However, the Supreme Court usually hears oral arguments, unlike the Court of Appeals.

Frequently Asked Questions

What rules determine whether my direct appeal case is granted or denied?

All litigants before the Court of Appeal must abide by the Federal Rules of Appellate Procedure.  Those Rules dictate how a direct appeal is handled before the court in extreme detail. As such, an attorney would benefit you greatly in this area.

Additionally, there are different “standards of review” that an appellate court might use.  Those standards of review include:

  • De novo review,

  • Abuse of discretion,

  • Clear error, and

  • Plain error.

The appropriate standard of review depends upon the type of issue.  For example, if you are positing that the District Court was incorrect in finding a particular witness credible, the Court of Appeals will use a very deferential standard of review – the abuse of discretion standard. Simply put, the Appeals court will only overturn the District Court’s judgment in this case if the district judge abused their discretion.

However, if you are challenging a decision of law by the District Court, then the Appellate Court will use a standard that gives no deference to the District Court – de novo (meaning “anew”) review.  That standard is used because a Court of Appeals ruling on questions of law will control over any decision on a question of law by a lower court.

My lawyer filed an "Anders Brief" on my case. What does this mean?

A court-appointed defense lawyer can file an “Anders Brief,” when that counsel wants to withdraw from a case on appeal. Usually, this occurs because he or she believes that the appeal is frivolous.  (The term “Anders Brief” comes from a 1967 Supreme Court case on the subject, titled Anders v. California, 386 U.S. 738 (1967)).

In an Anders Brief, a defense attorney must identify anything in the record that might support a direct appeal issue.  Once the attorney files the Anders Brief, the Court of Appeals will determine the frivolousness of the appeal.  If you have court-appointed attorney who files an Anders Brief in your case, you might want to have a conversation with that attorney about his or her reasons for doing so. 

Can I claim ineffective assistance of counsel on my direct appeal?

No, you cannot assert ineffective assistance of counsel during your direct appeal.  Alternatively, you can make ineffective assistance claims after you have exhausted other remedies.  Typically through a 2255 motion, a claim of ineffective assistance of counsel constitutes “post-conviction relief”.

What is the difference between a direct appeal and a 2255 motion?

Unlike a direct appeal, you would use a Section 2255 motion to assert an ineffective assistance of counsel claim and to bring forth new evidence.

The primary difference between a direct appeal and a 2255 motion is the information discussed.  A direct appeal can only address the facts and legal matters raised in front of the District Court.  A 2255 motion, however, can address new evidence or information outside the record before the District Court. 

Importantly, 2255 motions are only available to people convicted in federal courts who are in custody.

Can I let the court know if new law comes out after the brief-writing finishes?

Yes.  If the law changes in a way that impacts your case after all the briefs in your case have been filed, then you can alert the court to that change while your direct appeal is pending. The way in which the appeals court will handle the motion depends upon the specifics of the situation.

My attorney says that I signed an appeal waiver in my plea agreement. What does this mean?

Typically part of a plea agreement, an “Appeal Waiver” states that you agree to forego, or “waive,” your right to make a direct appeal your case.  If you pleaded guilty and accepted a plea agreement, you likely signed an Appeal Waiver.

With Appeal Waiver, you cannot file an appeal, except in certain circumstances.  For example, if the sentencing court grants an upward departure from the sentencing guidelines, you may have the ability to appeal that decision.  However, the Appeal Waiver you signed must be specific about what post-conviction remedies you waived.  If there is no mention of possible appeal remedy in the plea agreement, then courts will likely find that that particular remedy was not waived. 

In short, having signed a Waiver will limit the kinds of relief you can request on appeal.  But, it does not necessarily foreclose all avenues of appeal.  A qualified Federal Appeals Lawyer can help you better understand what options you have available to you if you did sign such a Waiver.  

If you or a loved one has just been convicted and wants to appeal their conviction, contact our office to discuss your options.