View Full Version : What should be done after an appeal is denied?
07-28-2005, 05:43 PM
My husband's appeal was denied at the lowest level. I am not sure how because there was jury misconduct. We are trying to appeal it higher but I need advice. What do we need to do? Our court appointed attorney has done his duty so we are on our own! Is there anything else that we can do to get him home. He is not eligible for parole for another 14 years and this won't work. We had a four month old that needs him home. Please help me. I am looking for any loop holes or just a general direction. I feel like there is nothing we can do.
thanks for your help
07-28-2005, 06:53 PM
One thing that I can gaurentee is you need an attorney. The system is set up to where an inmate either has to be legally educated enough to pass the bar themselves or they have to hire legal help. For once, I feel lucky, in being the wife of a DR inmate, because there are orgs out there specifically to help us and a limited number of guys, in need of the over burdened attorneys that work, within them.
If your husband is actually innocent, there are some organizations scattered around the country that are meant to help correct injustice. If you are in front of the computer, start searching. Look for every article you can find concerning acts of injustice, in your area and your state and start taking names, of attorneys from them.
Run searches, for pro bono orgs and attorneys. I possibly found alot of help that we need on capital mitigation by sending a letter e-mail to the right individual attorney, within a huge firm. I had sent an e-mail to another attorney, within the same firm, with no success. So always try, try again.
As well, remember an attorney does not have to put himself out as probono to take a case that he believes in, try everyone. And letters are in my experience best, e-mail is good, if you know that your letter is going directly to the attorney. Phone calls make it too easy for you to be brushed off, without explaining your case.
Somewhere there is a thread about pro bono attorneys. Find it, because it is a good place to start. Within my post there, I speak alot more about what I have learned, in my own search for help. Many others offer good advice, as well. One thing that I explain there is that you need alot of stamps and a friend that writes good essays, if you are not a strong writer.
Get ready to be preferred customer, at the Post Office and to waste several trees. You are looking for Justice, in the midst of a system of insanity.
God bless you in your search...........
08-02-2005, 05:21 PM
Thank you so much for your help. It is nice to know that there are nice people out there. When you deal so much with the system you sometimes forget that. Thank you again.
08-16-2005, 03:42 PM
Well there are a number of things you can do. If you can't afford an attorney then you will have to do these pro se or on your own. Was his appeal denied PCA or did they give areason. If they gave a reason then you can look for other reasons and resubmit. If it was PCA there are still things you can do. You can go with post-conviction relief with a 3.850 motion and a state and federal habeas corpus. Don't assume that your court appointed appellate attorney did a good job. Check the brief for errors. My husband's did such a bad job that we are basing of state habeas corpus on ineffective assistance of appellate counsel. Check time limits, habeas has a time limit, often different with state and federal. My husbands appeal was denied PCA. We are doing things pro se because we can't afford a lawyer. We are going with the state habeas first and if that is not successful then we will go with the 3.850 motion, and then the federal habeas as a last resort. Don't give up hope. There's lots of info online. You can even download appellate procedures. Good luck and keep the faith.
08-17-2005, 01:08 AM
You are not alone. My husband is in the ROBERTSON UNIT (Abilene, Texas) and he is not eligible for parole until another almost 20 years. He has been in for almost 6 years already. Time really flies. His appeal was denied also. Now we are filing a writ seeking sentence reduction. The previous attorney made several mistakes that would have changed the whole outcome of his sentence. I hope we get what we are looking for because we also have a handsome son that is waiting for his daddy to come home one day!! My son was only 2 years old when his daddy went to prison..now he is at the age where he wants to know why and what happened. It is very hard to explain to him, and it breaks me down in tears when I hear him ask. THIS IS WHY I WILL NOT GIVE UP UNTIL I HAVE GONE ALL THE WAY TO THE TOP IF I HAVE TOO. I HAVE COPIED AND PASTED SOME HELPFULL INFO FOR YOU HERE: :o :p :o :p
A quick rundown and FAQ on appeals and Habeas Corpus
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.
08-20-2006, 05:33 AM
If you lost your Direct Appeal from his Conviction, then Appeal that decision to next level. Remember to exhaust your remidies and preserve your issues at each level.
08-20-2006, 06:39 AM
What is the wait time after an appeal has been filed and the brief has been presented?
08-20-2006, 09:20 AM
I think I have an answer to your question. after an appeal has been affirmed then I guess the next step would be to file a Motion for rehearing. what exactly does that mean beats the hell out of me. I just learned all of this information this morning because my sons appeal was affirmed and then a motion for rehearing due was filed on Friday. I am in shock right now. sorry I can't be more help!
08-20-2006, 03:57 PM
If you get the book Prisoners Self Help Litigation Manual, Your State Rules of Civil/Criminal Procedure, Appellate Rules of Procedure, and Federal Rules of Procedure you will have what you need to do just about anything. All but the 1st is available in ALL Law Libraries, Courthouse(Public Access) & Internet. EVERYONE THAT COMES TO THIS WEB SITE SHOULD READ THIS. IF YOU ARE GOING TO HELP WITH AN INMATES APPEAL, PCR, HABEAS CORPUS, ETC. MAKE SURE YOU GET THE 1ST BOOK AND AT LEAST FIND THE OTHERS, IN YOUR CLOSEST LAW LIBRARY/COURTHOUSE AND LOOK THROUGH THEM, GET USED TO USING THE LIBRARY. THERES WHERE ALL CAN ASSIST THOSE THAT ARE INCARCERATED. j.r.