An individual who has been convicted of a crime may "appeal" his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.

The Appeal Process: "Briefs" and the "Record" In an appeal, the defendant (now called the "appellant") argues that, based on key legal mistakes which affected the jury's decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.

In considering an appeal, the court reviewing the case looks only at the "record" of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter's transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.

In reaching a decision on the appeal, the higher court ("appellate court") looks to this record and to the written "briefs" filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally "erroneous," or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government's position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. Learn more about Appeals, Writs, and Post-Conviction Remedies. It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.

Getting a Lawyer for your Appeal

Because trial and appellate (appeals) work are two different types of legal practice, the lawyer who represented you at the trial will not automatically file or handle your appeal. You must ask your lawyer to do so, or find another one who will. If you want to appeal your conviction, be sure to specifically and clearly inform your attorney of that fact -- the Supreme Court recently determined that an attorney's failure to file a notice of appeal does not necessarily constitute ineffective assistance of counsel so long as the defendant did not clearly convey his wishes on the subject. In many states, the state public defender (or another assigned counsel) generally will handle the appeal for those unable to pay.

Trials require the skills of a lawyer who has experience in the courtroom and working before juries. Appeals involve a large amount of writing and legal research, as well as the ability to argue legal doctrines before a judge.

May I Appeal My Conviction?

Usually a person convicted at a trial has the right to appeal the conviction at least once. (There are very few grounds for appeal if the defendant pleaded guilty.)
On appeal, the defendant can raise claims that mistakes were made in applying and interpreting the law during the trial. For example, the defendant might claim that the judge erroneously admitted hearsay testimony, gave improper jury instructions, should not have permitted the prosecution to use evidence obtained in violation of the defendant's constitutional rights, or permitted the prosecution to make improper closing arguments. If the appellate court agrees that there were significant errors in the trial, the defendant will get a new trial.

What If the Law Changes After a Court Convicts Me?

If a court convicted you for something that is no longer a crime, you might be able to have your conviction overturned. This also might be possible if a trial court denied you a right that the U.S. Supreme Court later rules is guaranteed by the U.S. Constitution. However, your rights will depend on whether the new rule or law is retroactive, that is, applied to past court decisions. As a general rule, a change in the law would be retroactive to your criminal case if the case has been appealed but not resolved at the time the law is changed. If, on the other hand, your case on appeal has been resolved, the change in the law would not be retroactive to your case, unless the change is one that directly enhances the accurate determination of your guilt or innocence.

What Is a Habeas Corpus Proceeding?

Literally, habeas corpus means "to hold a body." A habeas corpus proceeding challenges a conviction based upon the grounds that you are being held in prison in violation of your constitutional rights. Habeas corpus is not an appeal but a separate civil proceeding used after a direct appeal has been unsuccessful. A common constitutional challenge under habeas corpus is that defendants received "ineffective assistance of counsel" at trial, meaning that their lawyers did not do a competent job of defending them. Such a claim is difficult to prove and will require the defendant-appellant to find a different lawyer to argue the incompetence of the previous attorney. Legal arguments in a habeas case are generally done through written motions. An evidentiary hearing may be held as needed, however.

Appeals and the Writ of Habeas Corpus FAQ

Defendants who think they've been wrongfully convicted of a crime have a number of options.

What is an appeal?

An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court's sentencing decision without actually challenging the underlying conviction.

What are the chances that my conviction will be reversed?

Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed "perfect" trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed "harmless," and consequently few convictions are reversed. However, some types of errors are so grievous that they are presumed harmful, such as the use of a coerced confession in violation of the 14th Amendment.

Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.

What is a writ?

The word "writ" traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. Writ was the name for an action in the courts. There were different kinds of writs for different actions -- writs to recover land or personal property, to enforce judgments, to seek damages for broken contracts. Most of the common law writs have been abolished and replaced by the civil actions we know today.

In another sense, the word writ meant, and still means, an order. For example, an "original writ" in old England was a letter from the king to the local sheriff ordering someone who committed a wrong to either make repairs to the person wronged or appear in court to face formal accusations. In this context, the original writ is most like our "summons" ordering a party to appear in court.

In most modern American jurisdictions, a "writ" is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts -- an intermediate appellate court and the state Supreme Court.) This section merely outlines common writs. Writs, like appeals, are complex and involve picky details. Defendants facing situations where they may be entitled to take a writ should consult counsel.

What's the difference between a writ and an appeal?

Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general rule, this applies to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense).

Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

• The defense did not lodge a timely objection at the time of the alleged injustice (but should have).
• A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense.
• The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court.)
• The defendant has already lodged an unsuccessful appeal (defendants may file multiple writs but the right to appeal is limited to one). But filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately.

What is a writ of habeas corpus?

Defendants who want to challenge the legality of their imprisonment -- or the conditions in which they are being imprisoned -- may seek help from a court by filing an application for what is known as a "writ of habeas corpus.

A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the United States Constitution that specifically forbids the government from suspending writ proceedings except in extraordinary times -- such as war.

Known as "the Great Writ," habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months -- even years -- without charging them, and those imprisoned have no avenue, no legal channel, by which to protest or challenge the imprisonment. The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy with their writs.

Potential Post-conviction Remedies

As discussed in this article, convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals and writs. The following list illustrates these steps. A defendant who loses at one may go on to the next step, all the way down the list (up the legal chain) in a process that can take many years -- especially for serious felonies such as death penalty cases.

This list is merely an illustration of possible post-conviction proceedings -- some of which may only be used in certain cases. Also, defendants usually must first have unsuccessfully sought relief through the available state remedies before they will be allowed to seek relief in federal courts. For these reasons and because of the complexities of these proceedings and what is at stake (liberty or life), defendants should consult counsel to determine which remedies are available to them.

• Motion for Acquittal. A request that the judge decide that there is not enough evidence to convict the defendant. Depending on whether the trial is before a judge or jury and depending on court rules, this motion may be made either after the prosecution presents its evidence or after all the evidence is presented.
• Motion for a New Trial. Request that trial judge declare a mistrial and grant a new trial.
• Appeal to State Appellate Court. Contends that trial judge made some legal error.
• Petition for Rehearing to State Appeals Court. Requests that appeals court judges change their own decision.
• State Supreme Court Appeal. Requests that highest court in the state review and overturn the decision of the mid-level appeals court.
• U.S. Supreme Court Appeal. Requests that highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution.
• State Court Habeas Corpus Petitions. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that the defendant is being held in violation of some state law or constitutional right.
• Federal Habeas Corpus Petition to District Court. Requests the federal trial court to order the jail or prison holding the defendant to release the defendant because the defendant is being held in violation of the U.S. Constitution.
• Appeal of Federal Habeas Corpus Petition to Circuit Court. Requests the mid-level federal court to review the federal trial court's decision denying the writ.
• Appeal of Federal Habeas Corpus Petition to U.S. Supreme Court. Requests the highest court in the land to review the mid-level federal court's decision denying the writ.

Nice...thanks Nemesis. I'm making this a sticky for everyone.

I found another site which has A LOT of information about appeals, at both state and federal level. If you are interested it is http://law.freeadvice.com/litigation/appeals/

This is excellently helpful! Thanks...

I don't suppose you have a link as easily understandable
regarding filing a habeous/appeal/writ
up in Canada?

thank you so much for that information nememis my b/f is going through this now has been for over year

This is so helpful! thanks for sharing.:)

Thank you very much, it is refreshing to read about others going through the same thing as my husband and I. I don't mean to say that I'm happy others are wrongfully convicted but it is nice to know I'm not alone in this. My biggest issue is not knowing if the lawyer actually did his job. I feel he did nothing in the case and came into it with the attitude of just wanting to get it over. Before this happened to my husband I had no thoughts what so ever about our justice system. When someone spoke of the justice system I had my head in the sand. Now i've completely lost my faith in the justice system, the police force and anything dealing with legal anything. I truely believe that unless you have the funds to pay for a lawyer then it is guilty until proven innocent. Am I alone in this? Funny I used to love to watch law and order and all the different law shows on TV. I've seen shows where Probono lawyers actually take cases for wrongfully convicted people. What I never noticed is where those lawyers exhist. Funny I was in the Navy and feel I am a part of the fight for our freedom group, it's pretty bad when I now am having to fight for my husbands freedom in the country I joined to defend. Ok sorry if I have just made a really long letter to mainly vent here but who else is there to vent to?
Loving My Husband
Florida

Thanks for explain about the meaning of habeas corpus. Can you advise if an appeal be denied in Jan at california Supreme Court then how long time expired for filing a review in Federal Court? what are the steps : state habeas corpus , federal habeas corpus ????

I am sorry that I asked. I got an answer from an appelate attorney. I beleive that I should post the answer here to offer the families of the prisoners to know the law. It is a year plus an additional of 90 days from the denial of petition of review from Supreme Court.

When I posted my questions regarding what the further stesp which we can do after the direct appeal was denied by State Supreme Court, I got contacted by a member : a_real_renegrate (presently closed account) . This person explained to me that a habeas corpus can be filed in the State and Federal District Court . He then offered to prepare the said petitions for me as he was working as Legal Associates. I paid him $4,500 on Feb 15,2006 and I never got any work from him. Acomplaint was filed with District attorney in Orange County at Canandagua, New York . This matter is also investigating by a detective from Canandaga Police Department. If any one got cheat from this same person, as me, please let me inform. Thank You.

Question: Can a fed district crt deny review of a properly filed pro se 2255 when an appeal from the denial of a pro se new trial motion is being filed in the 9th by appointed counsel? The DC cites USA v Pirro, 104 F3d 297 (9th Cir 1997).

Thanks, Pro Se Mike

I need some help filing a Writ Habeas Corpus for my husband. Do you know any one that can help. Thank you Marie

what does it mean in an appeal when it says "screened"-event description and then "status changed"-action?

My husband been prison for 10 years. Sentence 75 years, his case was closed in 2004. Does anyone no what I need to do to have his case reopenend so he can file a motion to the nitnth circuit courts? and does anyone no of a good lawyer in southern california to help me with the process? An individual who has been convicted of a crime may "appeal" his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.

The Appeal Process: "Briefs" and the "Record" In an appeal, the defendant (now called the "appellant") argues that, based on key legal mistakes which affected the jury's decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.

In considering an appeal, the court reviewing the case looks only at the "record" of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter's transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.

In reaching a decision on the appeal, the higher court ("appellate court") looks to this record and to the written "briefs" filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally "erroneous," or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government's position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. Learn more about Appeals, Writs, and Post-Conviction Remedies. It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.

Getting a Lawyer for your Appeal

Because trial and appellate (appeals) work are two different types of legal practice, the lawyer who represented you at the trial will not automatically file or handle your appeal. You must ask your lawyer to do so, or find another one who will. If you want to appeal your conviction, be sure to specifically and clearly inform your attorney of that fact -- the Supreme Court recently determined that an attorney's failure to file a notice of appeal does not necessarily constitute ineffective assistance of counsel so long as the defendant did not clearly convey his wishes on the subject. In many states, the state public defender (or another assigned counsel) generally will handle the appeal for those unable to pay.

Trials require the skills of a lawyer who has experience in the courtroom and working before juries. Appeals involve a large amount of writing and legal research, as well as the ability to argue legal doctrines before a judge.

May I Appeal My Conviction?

Usually a person convicted at a trial has the right to appeal the conviction at least once. (There are very few grounds for appeal if the defendant pleaded guilty.)
On appeal, the defendant can raise claims that mistakes were made in applying and interpreting the law during the trial. For example, the defendant might claim that the judge erroneously admitted hearsay testimony, gave improper jury instructions, should not have permitted the prosecution to use evidence obtained in violation of the defendant's constitutional rights, or permitted the prosecution to make improper closing arguments. If the appellate court agrees that there were significant errors in the trial, the defendant will get a new trial.

What If the Law Changes After a Court Convicts Me?

If a court convicted you for something that is no longer a crime, you might be able to have your conviction overturned. This also might be possible if a trial court denied you a right that the U.S. Supreme Court later rules is guaranteed by the U.S. Constitution. However, your rights will depend on whether the new rule or law is retroactive, that is, applied to past court decisions. As a general rule, a change in the law would be retroactive to your criminal case if the case has been appealed but not resolved at the time the law is changed. If, on the other hand, your case on appeal has been resolved, the change in the law would not be retroactive to your case, unless the change is one that directly enhances the accurate determination of your guilt or innocence.

What Is a Habeas Corpus Proceeding?

Literally, habeas corpus means "to hold a body." A habeas corpus proceeding challenges a conviction based upon the grounds that you are being held in prison in violation of your constitutional rights. Habeas corpus is not an appeal but a separate civil proceeding used after a direct appeal has been unsuccessful. A common constitutional challenge under habeas corpus is that defendants received "ineffective assistance of counsel" at trial, meaning that their lawyers did not do a competent job of defending them. Such a claim is difficult to prove and will require the defendant-appellant to find a different lawyer to argue the incompetence of the previous attorney. Legal arguments in a habeas case are generally done through written motions. An evidentiary hearing may be held as needed, however.

Appeals and the Writ of Habeas Corpus FAQ

Defendants who think they've been wrongfully convicted of a crime have a number of options.

What is an appeal?

An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court's sentencing decision without actually challenging the underlying conviction.

What are the chances that my conviction will be reversed?

Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed "perfect" trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed "harmless," and consequently few convictions are reversed. However, some types of errors are so grievous that they are presumed harmful, such as the use of a coerced confession in violation of the 14th Amendment.

Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.

What is a writ?

The word "writ" traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. Writ was the name for an action in the courts. There were different kinds of writs for different actions -- writs to recover land or personal property, to enforce judgments, to seek damages for broken contracts. Most of the common law writs have been abolished and replaced by the civil actions we know today.

In another sense, the word writ meant, and still means, an order. For example, an "original writ" in old England was a letter from the king to the local sheriff ordering someone who committed a wrong to either make repairs to the person wronged or appear in court to face formal accusations. In this context, the original writ is most like our "summons" ordering a party to appear in court.

In most modern American jurisdictions, a "writ" is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts -- an intermediate appellate court and the state Supreme Court.) This section merely outlines common writs. Writs, like appeals, are complex and involve picky details. Defendants facing situations where they may be entitled to take a writ should consult counsel.

What's the difference between a writ and an appeal?

Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general rule, this applies to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense).

Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

• The defense did not lodge a timely objection at the time of the alleged injustice (but should have).
• A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense.
• The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court.)
• The defendant has already lodged an unsuccessful appeal (defendants may file multiple writs but the right to appeal is limited to one). But filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately.

What is a writ of habeas corpus?

Defendants who want to challenge the legality of their imprisonment -- or the conditions in which they are being imprisoned -- may seek help from a court by filing an application for what is known as a "writ of habeas corpus.

A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the United States Constitution that specifically forbids the government from suspending writ proceedings except in extraordinary times -- such as war.

Known as "the Great Writ," habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months -- even years -- without charging them, and those imprisoned have no avenue, no legal channel, by which to protest or challenge the imprisonment. The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy with their writs.

Potential Post-conviction Remedies

As discussed in this article, convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals and writs. The following list illustrates these steps. A defendant who loses at one may go on to the next step, all the way down the list (up the legal chain) in a process that can take many years -- especially for serious felonies such as death penalty cases.

This list is merely an illustration of possible post-conviction proceedings -- some of which may only be used in certain cases. Also, defendants usually must first have unsuccessfully sought relief through the available state remedies before they will be allowed to seek relief in federal courts. For these reasons and because of the complexities of these proceedings and what is at stake (liberty or life), defendants should consult counsel to determine which remedies are available to them.

• Motion for Acquittal. A request that the judge decide that there is not enough evidence to convict the defendant. Depending on whether the trial is before a judge or jury and depending on court rules, this motion may be made either after the prosecution presents its evidence or after all the evidence is presented.
• Motion for a New Trial. Request that trial judge declare a mistrial and grant a new trial.
• Appeal to State Appellate Court. Contends that trial judge made some legal error.
• Petition for Rehearing to State Appeals Court. Requests that appeals court judges change their own decision.
• State Supreme Court Appeal. Requests that highest court in the state review and overturn the decision of the mid-level appeals court.
• U.S. Supreme Court Appeal. Requests that highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution.
• State Court Habeas Corpus Petitions. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that the defendant is being held in violation of some state law or constitutional right.
• Federal Habeas Corpus Petition to District Court. Requests the federal trial court to order the jail or prison holding the defendant to release the defendant because the defendant is being held in violation of the U.S. Constitution.
• Appeal of Federal Habeas Corpus Petition to Circuit Court. Requests the mid-level federal court to review the federal trial court's decision denying the writ.
• Appeal of Federal Habeas Corpus Petition to U.S. Supreme Court. Requests the highest court in the land to review the mid-level federal court's decision denying the writ.

My husband is doing a bid of 21 years for a crime he did not commite, I was just wondering wut does that fall under?

I'm from Canton ohio I have 3 small babies that are going to know there dad but aint because he is doing a bid of 21 years, for a crim he had no invalment in. They wouldnt let me testafy at his trial, an I was just wondering how they could convitced someone without any evidence, yes they had 2 testamoneys that didnt make a lick of sence, they didnt even add up,an how can they convitce somebody on a gun spec when they have no gun? He had never been in trouble for anythin like this before he didnt even have any priers he has never been convitced of a feloney. although they had a phone conversation between me an him a about a gun, mind u this was back in july when this all took place hi trial was in september a week before his trial they came to my mothers house looking for a gun that was never hear there was never a gun there was never a crim, but yet they can convitce my husband for somthin he did not do.:(

An individual who has been convicted of a crime may "appeal" his or her case, asking a higher court to review certain aspects of the case for legal error, as to either the conviction itself or the sentence imposed.

The Appeal Process: "Briefs" and the "Record" In an appeal, the defendant (now called the "appellant") argues that, based on key legal mistakes which affected the jury's decision and/or the sentence imposed, the case should be dismissed or the appellant should be re-tried or re-sentenced.

In considering an appeal, the court reviewing the case looks only at the "record" of the proceedings in the lower court, and does not consider any new evidence. The record is made up of the court reporter's transcripts of everything said in court, whether by the judge, the attorneys, or witnesses. Anything else admitted into evidence, such as documents or objects, also becomes part of the record.

In reaching a decision on the appeal, the higher court ("appellate court") looks to this record and to the written "briefs" filed by both sides of the appeal. For example, an appellant challenging a conviction or sentence files an opening brief, arguing how and why the conviction or sentence was legally "erroneous," or wrong. In turn, the government files its own brief to illustrate why the conviction or sentence should be upheld. The appellant typically has an opportunity to file a second brief in response to the government's position, and the appellate court may hear oral arguments from each side before reaching a decision on the appeal.

The Appeal Process: How and When?

At both the state and federal court levels, there are many options for obtaining relief after a criminal conviction or sentence. Learn more about Appeals, Writs, and Post-Conviction Remedies. It is important to note that, although it may take a number of months for an appeal to be heard and decided, most states require an appellant to notify the courts and the government of the intent to appeal very soon after a conviction or sentence.

Getting a Lawyer for your Appeal

Because trial and appellate (appeals) work are two different types of legal practice, the lawyer who represented you at the trial will not automatically file or handle your appeal. You must ask your lawyer to do so, or find another one who will. If you want to appeal your conviction, be sure to specifically and clearly inform your attorney of that fact -- the Supreme Court recently determined that an attorney's failure to file a notice of appeal does not necessarily constitute ineffective assistance of counsel so long as the defendant did not clearly convey his wishes on the subject. In many states, the state public defender (or another assigned counsel) generally will handle the appeal for those unable to pay.

Trials require the skills of a lawyer who has experience in the courtroom and working before juries. Appeals involve a large amount of writing and legal research, as well as the ability to argue legal doctrines before a judge.

May I Appeal My Conviction?

Usually a person convicted at a trial has the right to appeal the conviction at least once. (There are very few grounds for appeal if the defendant pleaded guilty.)
On appeal, the defendant can raise claims that mistakes were made in applying and interpreting the law during the trial. For example, the defendant might claim that the judge erroneously admitted hearsay testimony, gave improper jury instructions, should not have permitted the prosecution to use evidence obtained in violation of the defendant's constitutional rights, or permitted the prosecution to make improper closing arguments. If the appellate court agrees that there were significant errors in the trial, the defendant will get a new trial.

What If the Law Changes After a Court Convicts Me?

If a court convicted you for something that is no longer a crime, you might be able to have your conviction overturned. This also might be possible if a trial court denied you a right that the U.S. Supreme Court later rules is guaranteed by the U.S. Constitution. However, your rights will depend on whether the new rule or law is retroactive, that is, applied to past court decisions. As a general rule, a change in the law would be retroactive to your criminal case if the case has been appealed but not resolved at the time the law is changed. If, on the other hand, your case on appeal has been resolved, the change in the law would not be retroactive to your case, unless the change is one that directly enhances the accurate determination of your guilt or innocence.

What Is a Habeas Corpus Proceeding?

Literally, habeas corpus means "to hold a body." A habeas corpus proceeding challenges a conviction based upon the grounds that you are being held in prison in violation of your constitutional rights. Habeas corpus is not an appeal but a separate civil proceeding used after a direct appeal has been unsuccessful. A common constitutional challenge under habeas corpus is that defendants received "ineffective assistance of counsel" at trial, meaning that their lawyers did not do a competent job of defending them. Such a claim is difficult to prove and will require the defendant-appellant to find a different lawyer to argue the incompetence of the previous attorney. Legal arguments in a habeas case are generally done through written motions. An evidentiary hearing may be held as needed, however.

Appeals and the Writ of Habeas Corpus FAQ

Defendants who think they've been wrongfully convicted of a crime have a number of options.

What is an appeal?

An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court's sentencing decision without actually challenging the underlying conviction.

What are the chances that my conviction will be reversed?

Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed "perfect" trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed "harmless," and consequently few convictions are reversed. However, some types of errors are so grievous that they are presumed harmful, such as the use of a coerced confession in violation of the 14th Amendment.

Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.

What is a writ?

The word "writ" traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. Writ was the name for an action in the courts. There were different kinds of writs for different actions -- writs to recover land or personal property, to enforce judgments, to seek damages for broken contracts. Most of the common law writs have been abolished and replaced by the civil actions we know today.

In another sense, the word writ meant, and still means, an order. For example, an "original writ" in old England was a letter from the king to the local sheriff ordering someone who committed a wrong to either make repairs to the person wronged or appear in court to face formal accusations. In this context, the original writ is most like our "summons" ordering a party to appear in court.

In most modern American jurisdictions, a "writ" is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts -- an intermediate appellate court and the state Supreme Court.) This section merely outlines common writs. Writs, like appeals, are complex and involve picky details. Defendants facing situations where they may be entitled to take a writ should consult counsel.

What's the difference between a writ and an appeal?

Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general rule, this applies to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense).

Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

• The defense did not lodge a timely objection at the time of the alleged injustice (but should have).
• A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense.
• The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court.)
• The defendant has already lodged an unsuccessful appeal (defendants may file multiple writs but the right to appeal is limited to one). But filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately.

What is a writ of habeas corpus?

Defendants who want to challenge the legality of their imprisonment -- or the conditions in which they are being imprisoned -- may seek help from a court by filing an application for what is known as a "writ of habeas corpus.

A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the United States Constitution that specifically forbids the government from suspending writ proceedings except in extraordinary times -- such as war.

Known as "the Great Writ," habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months -- even years -- without charging them, and those imprisoned have no avenue, no legal channel, by which to protest or challenge the imprisonment. The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy with their writs.

Potential Post-conviction Remedies

As discussed in this article, convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals and writs. The following list illustrates these steps. A defendant who loses at one may go on to the next step, all the way down the list (up the legal chain) in a process that can take many years -- especially for serious felonies such as death penalty cases.

This list is merely an illustration of possible post-conviction proceedings -- some of which may only be used in certain cases. Also, defendants usually must first have unsuccessfully sought relief through the available state remedies before they will be allowed to seek relief in federal courts. For these reasons and because of the complexities of these proceedings and what is at stake (liberty or life), defendants should consult counsel to determine which remedies are available to them.

• Motion for Acquittal. A request that the judge decide that there is not enough evidence to convict the defendant. Depending on whether the trial is before a judge or jury and depending on court rules, this motion may be made either after the prosecution presents its evidence or after all the evidence is presented.
• Motion for a New Trial. Request that trial judge declare a mistrial and grant a new trial.
• Appeal to State Appellate Court. Contends that trial judge made some legal error.
• Petition for Rehearing to State Appeals Court. Requests that appeals court judges change their own decision.
• State Supreme Court Appeal. Requests that highest court in the state review and overturn the decision of the mid-level appeals court.
• U.S. Supreme Court Appeal. Requests that highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution.
• State Court Habeas Corpus Petitions. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that the defendant is being held in violation of some state law or constitutional right.
• Federal Habeas Corpus Petition to District Court. Requests the federal trial court to order the jail or prison holding the defendant to release the defendant because the defendant is being held in violation of the U.S. Constitution.
• Appeal of Federal Habeas Corpus Petition to Circuit Court. Requests the mid-level federal court to review the federal trial court's decision denying the writ.
• Appeal of Federal Habeas Corpus Petition to U.S. Supreme Court. Requests the highest court in the land to review the mid-level federal court's decision denying the writ.


If a person is serving a sentence on 2 different charges that are factually related, and the sentences are run concurrently, can they file a state habaes corpus on both cases in order to expose exculpatory evidence that would grant him a new trial on one or (at least) both of the cases?

can one file an appeal or article 78 to appeal a merit hearing decision? how do we go about this? what about somone who was denied merit release with chris ortloff presiding over the hearing, during his sex charge sting? don't these people who were denied with him on the paned deserve a new review at least?

Hats off to nemesis for the clear and comprehensive review of appeals and post-conviction. Anyone with a federal conviction has one year to the day of sentencing to file a 2255. There is a 10 day window, which cuts it close. The courts ae backlogged with these type of fiings, so anyone submitting this type of pleading must be patient.

Anyone with a federal conviction has one year to the day of sentencing to file a 2255.

Incorrect. The 1-year begins to run on the day the circuit court affirms on direct or certiorari is denied by the USSC, if applied for.

Incorrect. The 1-year begins to run on the day the circuit court affirms on direct or certiorari is denied by the USSC, if applied for.


Actually, if we want to be 100% on-point about when the period starts, we would have to know what the grounds are for the collateral attack. What both of you described deals with only 1/4 possibilities, that is, the review after direct review. The AEDPA allows for three other "starting" dates, based on what the substance of the collateral attack is.

Thank you for that information it helps out a lot.....

I am trying to discover if I can file a writ because I have been denied the right to an appeal, the first one that I understand is my right if I am innocent and this is my plea. Thanks in advance.

I, like you guys, stand wrongfully convicted. I have none since 2001 that something was very wrong with our justice system, where "old grudges" were settled, a possible lawsuit "snuffed out" knowing that if I were found innocent, then the police, who behaved very badly, would look more guilty of harassment and other charges, which they were. No matter, this is old news. However, since that time, I have beem stalked and investigated by police, who burglarized and vandalized my home. I do not know why they wanted me locked up so badly; but knew that someone had been trying to run me from my home. It was a particular officer whose dod is the Captain. Even the Sheriff took part and ordered more harassment, electronic surveillance of all my communications, including lawyer/client discussions. I suffered many vehicular attacks, all my cars were destroyed, and the Sheriff was caught red-handed on my property Thanksgiving 2006 in the middle of the night. He and "his boys" would harass me so that I did not even sleep at night. They would enter my home when I was alseep. Since then, I have been allowed appeals on only one of the many charges they continue to create and convict me on as punishment and retaliation for telling the truth. The Sheriff justified his and his department's crimes against me by slandering me and spreading vicious lies about me. Even my neighbors took part in the organized stalking and other crimes. 1/5/07 the cops ran me off the road to overtake me out of jurisdiction in order to destroy the documentation and evidence I was keeping in a new car. They stole my security keys to the new car, the security key to my home, a digital camcorder, five tapes showing their removing my trees from my woods and selling these off to a new subdivision being built a block or so away., 2 notebooks of documentation, a cell phone (that included their pictures, phone calls, dates and times of their stalking me out of jurisdiction). They continue to stuff my pipes under my house so full that the drains clogg, requiring much money to repair. They have had their sights on my home for some time. It is wrong; but this is what they are doing. They are doing this to tohers as well. Yes, I need to complete a writ for every trial, if you want to call it that--where cops just make up the entire story--and are getting by with it. It does me no good to remain silent--they are still vicious...so I have decided to tell the truth whenever I can. What I do not understand, is that there are good people in the community who know this is wrong, but do not stand up and do anything about it. When I went to the state police in the summer of '06, I was interrogated, as if I were doing something wrong to justify the Hanover cops stalking. My complaints were ignored, even though I had been advised by a Sprint employee that the number from which all my calls were coming was fraudulent and should be reported. It was NO NUMBER ASSOCIATED WITH MY PHONE COMPANY. After being reassured that a supervisor would return my call, he advised me that the number was not available. These kind of things occurred with my phone, elctronics all the time. Then I started reading about EMT (I think) electronic harassment and weaponry even. Of course, while I was fighting for my life, I was prevented from any communication with anyone who may help me, my computer and internet accounts totally taken over, and my phones controlled as well. What I have suffered, no human should ever have to endure. What is most remarkable is that I was not injured in the crash; but in the ambulance and when being taken to the hospital where I was thrown onto the ground. A Hanover ambulance and EMT had been involved in a previous assault and cover-up one week prior, so you can understand my not wanting to take a ambulance to the hospital. And the only injuries I felt were from the cops assault of me 12/28/06. By the time I got to the hospital, and after several REPEATED xrays, wherein my friend was not allowed to attend, only cops, I was paralyzed, my back so terribly crushed that I would never be able to walk again without extensive and complicated surgery. My back was crushed so severely that ribs were demolished. I was drugged from the time I was placed on the ambualance. I told the MDs the truth about what the cops were doing; but Magistrate Whit created a TDO with the diagnosis psychosis. I was telling that the cops had run me off the road; and he wanted to make sure no one believed me. With the organized stalking and other crimes, the perpetrators try to make you seem crazy (and it is a wonder you aren't!). They hope to force you to kill yourself or lock you away somewhere while they acquire your assets. How or why this began I do not know. But I can tell you this; it is wrong. I don't recognize America anymore. I pray that Obama's administration will address these issues, before another's life is ruined. You see, there were two others who had back injuries in the same hospital, all wanted in Hanover for failure to appear (because we were in the hospital with broken backs--my crash was handled by Hanover, of course, and 2 called in to report that I would be undergoing a fourteen hour surgery on the day I was to appear for false charges) all who were trying to hold onto their property, which had low mortgages or more attractive mortgages (equity). The cops even bribed another to make false negative accounts of me in the hospital (which is totally ridiculous for I could not even walk). Another tried to convince another to kill me while inpatient. You would think that crippling me was enough; but no, another police dept became involved, new charges were pressed--all lies; and there seems to be no one to whom to go. I, too, am poor, and now will need physical care for a permanent spinal injury. I am treated poorly wherever I go, especially when I go for medical care. One MD just recently refused to provide a nerve block because, according to him, I was not worth it. I had to find a ride, two hours driving time, and waited 2 hours for my appt., only for the MD to speak hatefully to me concerning past care, and not even concerning the MD who works with him who referred me to him. I suppose I am a very strong person[ however, one's will to live is sufficiently challenged when one has lost dear friends and family. Even my precious daughter and grandson. She has another baby since all this, whom I will never know. This is what the cops/Sheriffs/banks/and all other participants involved in the organized stalking and other violent crimes have done to me. So I must do what I can to take up for myself starting with the writs. If there is someone who can instruct me in a more detailed fashion, I would be most grateful, for I do not know where to start because of all the cops have done, nor do I know whom to contact.

Thank you very much, it is refreshing to read about others going through the same thing as my husband and I. I don't mean to say that I'm happy others are wrongfully convicted but it is nice to know I'm not alone in this. My biggest issue is not knowing if the lawyer actually did his job. I feel he did nothing in the case and came into it with the attitude of just wanting to get it over. Before this happened to my husband I had no thoughts what so ever about our justice system. When someone spoke of the justice system I had my head in the sand. Now i've completely lost my faith in the justice system, the police force and anything dealing with legal anything. I truely believe that unless you have the funds to pay for a lawyer then it is guilty until proven innocent. Am I alone in this? Funny I used to love to watch law and order and all the different law shows on TV. I've seen shows where Probono lawyers actually take cases for wrongfully convicted people. What I never noticed is where those lawyers exhist. Funny I was in the Navy and feel I am a part of the fight for our freedom group, it's pretty bad when I now am having to fight for my husbands freedom in the country I joined to defend. Ok sorry if I have just made a really long letter to mainly vent here but who else is there to vent to?
Loving My Husband
Florida

I feel just like you do. I have no faith in the legal system and do not trust the police. They will take and charge someone without proof just so that they can get the public off their backs. That has happened to my grandson, there was no proof and his court appointed attorney said it would be better if he took a plea, which he did. Since, I have found out that these attorneys get a bonus of $750 to keep a case from going to trial. Don't believe me? Just ask a state attorney who if he is court appointed gets his regular fee, he'll tell you. With no money and no parents just us, his grandparents, he will not have a paid attorney to fight for him and that is what he would need to win. We had witnesses of where my grandson was at when the event took place but the courts would not allow them and a few days before sentencing we were told we could have family and friends write letters regarding his character. These were written but probably never read. All we can do now is pray that things will right itself and for him to keep it together. Mircles do happen.

My man was sentenced to 20-25 years for a home invasion at the age of 20. All of the witnesses were junkies (literally) and his previous lawyer just didnt defend him properly. He couldnt even look my man in the eyes!! He's been locked up for five years now...his new lawyer is filing an appeal under a chapter 30 rule or law or something to that effect does anyone know what this means. They keep trying to explain it to me...but I really dont get it :confused: we're located in massachusetts. But hopefully he'll get a new trial by next year :rolleyes:

Thank you very much, it is refreshing to read about others going through the same thing as my husband and I. I don't mean to say that I'm happy others are wrongfully convicted but it is nice to know I'm not alone in this. My biggest issue is not knowing if the lawyer actually did his job. I feel he did nothing in the case and came into it with the attitude of just wanting to get it over. Before this happened to my husband I had no thoughts what so ever about our justice system. When someone spoke of the justice system I had my head in the sand. Now i've completely lost my faith in the justice system, the police force and anything dealing with legal anything. I truely believe that unless you have the funds to pay for a lawyer then it is guilty until proven innocent. Am I alone in this? Funny I used to love to watch law and order and all the different law shows on TV. I've seen shows where Probono lawyers actually take cases for wrongfully convicted people. What I never noticed is where those lawyers exhist. Funny I was in the Navy and feel I am a part of the fight for our freedom group, it's pretty bad when I now am having to fight for my husbands freedom in the country I joined to defend. Ok sorry if I have just made a really long letter to mainly vent here but who else is there to vent to?
Loving My Husband
Florida




Hello, I totally understand and agree with you, my fiance is in the same situation..Seem like there is no help for anyone wrongly convicted.His public defender has been jerking him around for years on his motion for new trial not really doing anything...You are not alone in your situation...

I'm from Canton ohio I have 3 small babies that are going to know there dad but aint because he is doing a bid of 21 years, for a crim he had no invalment in. They wouldnt let me testafy at his trial, an I was just wondering how they could convitced someone without any evidence, yes they had 2 testamoneys that didnt make a lick of sence, they didnt even add up,an how can they convitce somebody on a gun spec when they have no gun? He had never been in trouble for anythin like this before he didnt even have any priers he has never been convitced of a feloney. although they had a phone conversation between me an him a about a gun, mind u this was back in july when this all took place hi trial was in september a week before his trial they came to my mothers house looking for a gun that was never hear there was never a gun there was never a crim, but yet they can convitce my husband for somthin he did not do.:(


This sounds so much like my fiance's trial...the system is so messed up he was charged tried and convicted of two charges that cant go together in other words he should have only been charged with one or the other...He was only guilty of being at the scene. His friend shot and killed someone...really he came on the scene after the shooting...The gun was never recovered so they couldnt even prove that particular gun was used..There was never any DNA testing done...He was never tested for gun shot residue...the states own witnesses testified in court that he was not there at the time of the shooting...1st of all the county where this happened is really small, they should have granted a change of venue for the jury selection and for the trial...they used the statement he gave to the police that should have been inadmissible because he was incompasitated when he gave his statement....There was evidence of jury tampering which should have resulted in a mistrial right there...but that small town BS...There was a leak that tghe sheriff was paid off.. all this and he still has to suffer for something he didnt do...on top of that his public defender( which we all know how much good they are especially in such a small town) has been playin games with him for years on his motion for a new trial he is screwing up almost all his remedies...and trying to find someone to help is like pullin teeth private lawyer want so much money that we cant afford none of them want to bend or try to work with anyone...But hopefully in a few months I will have things straight and have the money for a good lawyer before it's too late...there were so many mistakes in his trial its unreal...I think the laws, that would have found him not guilty or that would have had the trial dismissed altogether, those laws may have not even existed for they were totally not even taken into consideration...So i'm like you how in the world they can convict someone without physical evidence even shaky circumstantial evidence the prosacutions(spelling sux LOL) own witnnesses testifying that he didnt come up til after the shooting, is TOTALLY beyond me!!!! But that's out justice system for you...and if any one reading this has any advice or any 411 on how and where i can find some legal help would be so greatly appreciated....And i wish you good luck with his situation cuz we need all we can get when fighting against a f**ked up system for real..