Appeal & Post-Conviction

Once sentencing is complete, if you have not waived appeal as a part of the plea agreement, you may appeal to the Court of Appeals. The Court of Appeals that covers our district is the Seventh Circuit. The Seventh Circuit sits in Chicago. A three-judge panel will be assigned to your case. The first step in your appeal is briefing by the parties.

Briefing on the case by Defendant’s Counsel and the United States:  Your lawyer will prepare written arguments, called an Appellant’s Brief, which is presented to the three-judge panel.  The government gets to file written arguments after your lawyer files a brief.  The government’s brief is called the Appellee’s Brief.  Your lawyer may file a Reply Brief on your behalf if there are matters raised by the government that require further briefing.  You may only raise issues that were presented in the trial court.

Generally, it is not a good idea to raise issues on direct appeal that require additional evidence, such as ineffective assistance of trial counsel because these claims require proof that is not contained in the trial record. The trial record consists only of the words that were said in court and the papers that were filed. If your case has issues that require the presentation of additional evidence, it is best to present these arguments in §2255 proceedings where you are more likely to receive a hearing.

Oral Argument:  In almost all cases the three-judge panel will schedule a time for your lawyer to come to Chicago and present the argument in person to the court.  The court will send an order that sets the date and time for the argument and the amount of time that is allotted for it – usually from 5 to 30 minutes.  If you are not incarcerated, you may attend the argument but you will not be transported from custody to hear the argument in your case.  Your loved ones may attend if they wish to do so.  The court will not decide your case on the day of oral argument.  The court will issue a written opinion sometime after oral argument, sometimes weeks or months later.

If appeal is lost, Petition for Writ of Certiorari to the SCOTUS:  The United States Supreme Court has approximately 10,000 petitions for review (certiorari) filed every year.  The Court agrees to hear only a handful of these cases – usually around 60 cases.  If the Court denies certiorari, the opinion from the lower court is the law in your case.  If you are one of the fortunate few whose case the Court agrees to hear, your lawyer will file a brief and travel to Washington D.C. to argue your case.

After any proceedings at the Supreme Court (or after your appeal is final if you and your attorney decide not to ask the Supreme Court for review), your case is final. At that point, you have one year to file a special federal post-conviction motion under 18 U.S.C. Section 2255, known as a “2255.” The motion under Section 2255 is the last attack on your conviction and sentence and usually raises claims that your conviction or sentence is contrary to the Constitution or federal law. The 2255 motion is different from an appeal and in your 2255 claim you are not limited to the record in the district court (the words said and in court and the papers filed) and can present outside evidence. The  2255 motion is filed with the court of conviction, in your case with the Southern District of Indiana. These claims are complicated and you are not entitled to an attorney in the district court unless you are granted a hearing or the court decides counsel would be helpful. Our best recommendation is that you spend time after your case is final taking notes about what you believe the problems may have been with your case, research, and spend time drafting your motion. You and your family may be anxious to take your case back to court, but you should take your time to prepare carefully because you are only entitled to one 2255 motion. Any later attempt at a 2255 motion will need the permission of the Seventh Circuit Court of Appeals. If you can, you should talk to an attorney for help. But federal prisons have inmates who specialize in helping others with these motions, so seek help if you need it.

Here are a couple of resources to help:

The Southern District Court’s Guides and Forms for Prisoner Claims

Rules for 2255 Cases