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Appeals & Post-Conviction (Part 2)

Federal Appeals

The time periods for civil appeals are included here as habeas corpus is considered a civil, as opposed to a criminal matter. If one is convicted in Federal Court and wishes to appeal the judgement of sentence, then such is considered a criminal appeal and the time limit is 14 days. If one is denied a habeas corpus or a motion to vacate, such is considered a civil matter and the time period is 30 days.

Rule 4. Appeal as of Right
  1. Appeal in a Civil Case.
    1. Time for Filing a Notice of Appeal.
      1. In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.
      2. The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:
        1. the United States;
        2. a United States agency;
        3. a United States officer or employee sued in an official capacity; or
        4. a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf — including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.
      3. An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).
    2. Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
    3. Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.
    4. Effect of a Motion on a Notice of Appeal.
      1. If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
        1. If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
        2. A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.
    5. Motion for Extension of Time.
      1. The district court may extend the time to file a notice of appeal if:
        1. a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
        2. regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
      2. A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
      3. No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.
    6. Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
      1. the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77 (d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
      2. the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77 (d) of the entry, whichever is earlier; and
      3. the court finds that no party would be prejudiced.
    7. Entry Defined.
      1. A judgment or order is entered for purposes of this Rule 4(a):
        1. if Federal Rule of Civil Procedure 58 (a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79 (a); or
        2. if Federal Rule of Civil Procedure 58 (a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:
          • the judgment or order is set forth on a separate document, or
          • 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79 (a).
      2. A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58
        1. does not affect the validity of an appeal from that judgment or order.
        2. Appeal in a Criminal Case.
          1. Time for Filing a Notice of Appeal.
            1. In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of:
              1. the entry of either the judgment or the order being appealed; or
              2. the filing of the government’s notice of appeal.
            2. When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:
              1. the entry of the judgment or order being appealed; or
              2. the filing of a notice of appeal by any defendant.
          2. Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.
          3. Effect of a Motion on a Notice of Appeal.
            1. If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:
              1. for judgment of acquittal under Rule 29;
              2. for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or
              3. for arrest of judgment under Rule 34.
            2. A notice of appeal filed after the court announces a decision, sentence, or order — but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)—becomes effective upon the later of the following:
              1. the entry of the order disposing of the last such remaining motion; or
              2. the entry of the judgment of conviction.
            3. A valid notice of appeal is effective — without amendment — to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).
          4. Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
          5. Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.
          6. Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.
        3. Appeal by an Inmate Confined in an Institution.
          1. If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. §1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
          2. If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.
          3. When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district court’s docketing of the defendant’s notice of appeal, whichever is later.
        4. Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.

In Pennsylvania, the appeal is taken to the Third Circuit Court of Appeals. If the party is unsuccessful in the Third Circuit, they can seek re-argument and then file a Petition for Writ of Certiorari to the United States Supreme Court.

Federal Motions to Vacate

This is the habeas procedure for those convicted in Federal Court. There is one very important point to make here. Many United States Attorneys request defendants they offer some sort of plea agreement to, to waive their right to appeal most things and their right to file a Motion to Vacate under 28 U.S.C. §2255. Criminal Attorney Robert E. Mielnicki often rejected the plea agreement offered that included these waivers where nothing that his client was going to receive anyways (“acceptance of responsibility” points) were included. This practice of requesting waivers has been subject to attack by many, including Criminal Attorney Robert E. Mielnicki, and is slowly disappearing from many plea agreements. Be aware of this though.

The law pertaining to Motions to Vacate is a follows:

28 U.S. Code § 2255 – Federal custody; remedies on motion attacking sentence

  1. A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
  2. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
  3. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
  4. An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
  5. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
  6. A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
    1. the date on which the judgment of conviction becomes final;
    2. the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
    3. the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
    4. the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
  7. Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
  8. A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
    1. newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
    2. a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

This is an overview of the post-conviction process and as you can see it is not simplistic. If you are considering hiring an Attorney for a Post-Conviction matter, hire one that is rated “Lead Counsel Rated” For his outstanding appellate work over 25 years, a perfect 10 by AVVO and an A+ by The Better Business Bureau. Call Pittsburgh Criminal Appeal Attorney Robert E. Mielnicki.

To speak with an attorney committed to providing you with the best possible defense, for a reasonable fee, contact the Law Office of Robert E. Mielnicki at (412) 288-0300.

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