Federal Criminal Appeals
You Need An Experienced Appellate Attorney To Handle Your Federal Criminal Appeal
Mr. Brownlee is admitted to all but two of the federal circuit courts of appeal, and has performed oral argument in the Fifth Circuit in New Orleans, the Eleventh Circuit in Atlanta, the First Circuit in Boston, and the Sixth Circuit in Cincinnati.
He has litigated in the:
United States Supreme Court
You are not likely to find another appellate attorney who has experience litigating in multiple federal appellate courts.
Moreover, Mr. Brownlee is on the Criminal Justice Act (CJA) panel of appellate attorneys for the Eleventh Circuit, as well as the First Circuit.
A CJA attorney is appointed by a federal court as counsel for indigent defendants. A federal court only appoints an attorney to handle an appeal under the Criminal Justice Act when the court is assured the attorney possesses the skill and experience to handle a federal criminal appeal.
Federal Criminal Appeals
In Florida, whether civil or criminal, most appeals travel the same general path:
Notice of Appeal
Preparation of the Record
Federal criminal appeals follow the same general pattern, but there are important differences unique to federal criminal appellate practice.
Notice of Appeal Deadline
For instance, in Florida appeals and federal civil appeals, the general rule is that the Notice of Appeal must be filed within 30 days.
In federal criminal appeals, however, a defendant must file his or her Notice of Appeal within 14 days of the entry of judgment, or within 14 days of the filing of the Government’s Notice of Appeal. Fed. R. App. P. 4(b)(1)(A).
Judgment is considered entered when it is entered on the district court’s docket. Fed. R. App. P. 4(b)(6). But certain motions filed at the district court level postpone entry of judgment.
For example, a Motion for Judgment of Acquittal under Rule 29 of the Federal Rules of Criminal Procedure postpones entry of judgment. Fed. R. App. P. 4(b)(3)(A)(i). A Motion for New Trial under Rule 33 also postpones entry of judgment. Fed. R. App. P. 4(b)(3)(A)(ii).
However—and this is a critical exception—if a Motion for New Trial is based on newly discovered evidence, it only postpones entry of judgment if the Motion for New Trial was filed within 14 days of the date the district court enters judgment.
If a Motion for New Trial based on newly discovered evidence is filed more than 14 days after judgment is entered, it does not postpone entry of judgment for appellate purposes, and a defendant will likely need to seek habeas relief under 28 U.S.C. § 2255.
As with federal civil appeals, the federal rules of appellate procedure allow the district court to extend the time for filing the Notice of Appeal under certain circumstances.
Rule 4(b)(4) of the Federal Rules of Appellate Procedure provides that upon a showing of excusable neglect or good cause, the district court can extend the time to file the Notice of Appeal by 30 days. The district court can do this with or without motion or notice, and before or after the time for appeal has expired. Fed. R. App. P. 4(b)(4).
THE DISTRICT COURT RETAINS JURISDICTION TO RULE ON A MOTION TO CORRECT SENTENCING, EVEN AFTER A NOTICE OF APPEAL HAS BEEN FILED
This aspect of federal criminal appellate practice is important.
Many appellate practitioners believe that once the Notice of Appeal has been filed, the district court no longer retains jurisdiction to do anything.
In federal criminal appeals, even after the Notice of Appeal has been filed, the district court retains jurisdiction to adjudicate a Motion to Correct Sentence under Rule 35(a) of the Federal Rules of Criminal Procedure. Fed. R. App. P. 4(b)(5).
The Importance of Local Rules in Federal Appellate Practice
In the Federal Civil Appeals section of this website, I discussed the importance of “local rules” to federal appellate practice.
This is equally true, and perhaps more so, when it comes to federal criminal appeals.
If you are considering an appeal in a federal criminal case, your attorney must be familiar with the “local rules” of the particular federal appellate court that will have jurisdiction over your appeal. Familiarity with the Federal Rules of Appellate Procedure is not enough.
Each federal appellate circuit has its own set of rules that build on the Federal Rules of Appellate Procedure. These local rules often contain provisions that change the Federal Rules of Appellate Procedure in important ways, and your attorney must be familiar with them to handle your federal criminal appeal effectively.
Appeals In Habeas Corpus Proceedings
State court convictions are challenged under 28 U.S.C. § 2254. Federal convictions are challenged under 28 U.S.C. § 2255.
Relief under either statute must first be sought in the district court. Appeals from district court dispositions of habeas proceedings are governed by 28 U.S.C. § 2253.
A federal habeas proceeding is arguably the most specialized and complicated area of federal practice.
Even ascertaining the deadline to file your federal habeas petition is wildly complicated.
Appeals from district court dispositions of habeas proceedings are thankfully not quite as complicated, but there are still numerous pitfalls and traps.
One basic procedural step unique to federal habeas appeals is the Certificate of Appealability.
Before an appeal from a § 2254 or a § 2255 can move forward, a defendant must obtain a Certificate of Appealability.
There are two general methods for seeking a Certificate of Appealability.
The first is to file an application for a Certificate of Appealability with the district court.
The second is to file a Notice of Appeal, which will be treated as a request for a Certificate of Appealability by the district court. Fed. R. App. P. 22(b)(1).
The district court is required to “promptly” either send a Certificate of Appealability to the court of appeals or send a statement that a Certificate of Appealability should not issue.
If the district court declines to issue a Certificate of Appealability, then the petitioner can seek a Certificate of Appealability in one of two ways.
The first is to file a renewed application for a Certificate of Appealability with the federal appellate court.
The second is to rely on the request filed in the district court, which the court of appeals will treat as a renewed application once it is docketed in the court of appeals.