Jeremy Gordon
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Once a person has filed a 2255 motion (also known as a motion to set aside or correct a judgment of conviction) and been denied in the district court, they must file an appeal of the denial of that motion in order to continue fighting their case.  A 2255 appeal follows a different track than a direct appeal does however.  

2255 Motions to Vacate, A reminder

As a reminder, a 2255 motion to vacate is a way to let the court know about when a conviction or sentence was imposed in violation of federal law or the Constitution.  Examples of things that qualify for 2255 motions are that the District Court was without jurisdiction to decide the case, a sentence was in excess of federal law, or the presence of newly discovered evidence that was unavailable to the parties at the time of the original judgment.  

Under certain circumstances, a federal prisoner may file a second or successive motion to vacate a sentence.  These are appropriate in cases where the Supreme Court interprets a new rule of constitutional law that was deemed retroactive to cases on collateral review.  A 2255 motion must be filed within one year of when a conviction becomes final.  A district court will review the evidence, the claims and the law and then either grant or deny the motion, sometimes after an evidentiary hearing.  

Beginning the 2255 Appeal

After a denial of a 2255 motion, the claimant can appeal.   A 2255 appeal begins by filing a notice of appeal in the district court where the case is out of.  A notice of appeal must be filed within 60 days of the judgment on the 2255 motion to vacate.  That time period starts on the date on which the judgment is filed with the court.  The notice of appeal must be filed in the district where the 2255 motion was filed and resolved.  A federal prisoner can file the motion or their lawyer can file for them by filing the notice of appeal online.  In most districts, the notice of appeal is a plain and simple one-page document. 

The 12 Appellate Districts

Direct Appeals

There are 12 appellate districts.  Each appellate district has a “circuit court” that handles direct appeals and appeals of 2255 motions to vacate.  The court that will handle the 2255 appeal in your case depends on what district your case is our of.  

Ex: If your case was resolved in the Northern District of Texas, then the Fifth Circuit is your appellate district.  This means that the Fifth Circuit will hear and decide your 2255 appeal.  

The applicable appellate district is where the incarcerated person was sentenced, not where they are serving their sentence.  

Appellate Procedure and the Certificate of Appealability

Once the Notice of Appeal is filed, the district court prepares the “record (everything that the court reporter typed down and everything that was filed with the court).” The district court sends all of that to the applicable appellate court (see above).  
 
Once the appellate court has everything that they need on the case in most cases the appellate court sets a briefing schedule for the certificate of appealability
 
A certificate of appealability is something that is unique to the 2255 appeal only.  A certificate of appealability is granted when there is a “substantial likelihood of the denial of a constitutional right.”  
 
The petitioner (in this case, the incarcerated person) would have a chance to let the court know why they believe that a certificate of appealability should be granted.  This is done in a petition that looks similar to an appellate brief.  The respondent (in this case, the government) normally does not write responses to the petition in support of a certificate of appealability but they are allowed.  

2255 Appeals After the COA is Granted

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If the Court grants the certificate of appealability (COA) then the court sets a briefing schedule for the 2255 appeal.  Once a briefing schedule is set then the petitioner (usually the incarcerated person) will have some amount of time, usually around 45 days, to let the court know about why the district court made the wrong decision in denying the 2255.  The government would be allowed to make a response and the petitioner would be allowed to file a reply to the government’s response.  

You may request permission to make oral arguments.  However, the Court of Appeals ultimately decides whether to have oral arguments.  
After considering the briefs and potentially the arguments, the Court of Appeals will enter a final judgment.  

Federal Appellate Standards of Review

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

  • De novo review: the appellate court will use the lower court’s record but will rule on the legal issues without any deference to the lower court.

  • Abuse of discretion: This may be found when a lower court makes a decision based on “a clearly erroneous finding of fact, rules in an irrational manner or makes a clear error.” Compassionate release cases are an example of a motion that uses this standard on appellate review.

  • Clear error: “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” This usually applies to situations where a judge makes a “finding of fact”, such as an evidentiary hearing in a 2255 case. (ex: the parties disagree on whether a lawyer made a promise to a client on how much time they would get. The district court decides that the incarcerated person is more credible. On appeal, the appellate court would use the “clear error” standard to determine the appeal).

  • Plain error: Used when a person brings up an issue on appeal that was not brought up in the District Court. The Supreme Court has promulgated a four-prong test for Plain Error:

    • First, there must be an error or “deviation from a legal rule” that has not been affirmatively waived by the appellant.
    • Second, the error must be “plain,” “clear,” or “obvious,” such that it cannot be reasonably contested.
    • Third, the error must have affected the appellants substantive rights, meaning that it must be shown that it was prejudicial or affected the outcome of the lower court’s proceedings. The defendant has the burden of persuasion to show such prejudice.
    • Lastly, if the first three prongs are satisfied, then the appellate court has the discretion of correcting the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Oral Arguments in 2255 Appeals

Once the parties have fully briefed their cases, the court can schedule oral arguments.  The court will most likely schedule oral arguments if the “decisional process would not be significantly aided by oral argument.”  The court will determine this on a case by case basis.  

We frequently ask for oral arguments in our cases.  The attorneys at the law office of Jeremy Gordon have presented oral arguments at several appellate courts.  

Zullo Compassionate Release

Judgments in 2255 Motion to Vacate Appeals

Once the case has been fully briefed by both sides and the court has either had oral arguments or determined that the same was not necessary, the court will enter a written judgment and an opinion.  The written judgment will explain the court’s decision on the case, that is, who wins and who loses for this part of the litigation, and the court’s reasons for deciding such.  

An appellate decision on a 2255 appeal can either affirm or reverse the  decision of the district court.  If the district court’s decision is “affirmed,” that means that the district court’s decision stands.  If the district court’s decision is “reversed” then that means that the appellate court believes that the district court made the wrong decision and is sending the case back down for them to handle correctly.  

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Reach out to The Law Office of Jeremy Gordon for prompt, courteous and skilled representation as your federal criminal defense attorney.  Use the form below or call us at 972-483-4865 today!