How to Appeal a Federal Criminal Conviction in California

Were you or a loved one convicted of a crime in federal court in the state of California? Did the court treat you unfairly or unjustly?

It may be possible to reverse the court’s conviction (and/or the judge’s sentence) by way of a federal criminal appeal.

We are a statewide law firm of criminal defense lawyers that helps clients to pursue appeals at the state and federal levels.

We have a great deal of experience in the federal courts. We know how to navigate the intricacies and bureaucracy of the federal system in order to give our clients the best chance at success.

Below, our California criminal appeals attorneys explain the federal appeals process in California by addressing the following:

• 1. A basic overview of appellate law
• 2. Comparing & contrasting federal vs. California state appeals
• 3. The appellate process in California federal courts
  • 3.1 The notice of appeal
    • 3.1a With respect to incarcerated appellants
  • 3.2 Release on bail pending appeal
  • 3.3 The record on appeal
  • 3.4 Written briefs
  • 3.5 Oral argument
• 4. The appellate process in California federal courts
  • 4.1 The court’s opinion
  • 4.2 Remedies if you win
  • 4.3 Remedies if you lose
• 5. Waiving your right to appeal by entering a guilty or nolo contendere “no contest” plea

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. A basic overview of appellate law

If you got unjustly convicted or sentenced, the law provides an avenue of recourse. This recourse — known as an appeal — is a request for a higher court to review the proceedings that took place in the lower court.

This request first goes to an appellate court and later, possibly, to a supreme court. These courts differ, depending on whether you were convicted in state court or federal court. In either event, a request for an appeal is not a request for a new trial.

The court of appeals does not

• consider any new evidence,
• listen to new witness testimony, or
• retry the case.

The federal criminal appeals court simply reviews the records from the lower court’s proceedings in an effort to determine if there were any “prejudicial legal” errors that must be corrected to ensure a more just resolution. “Legal errors” are occurrences in the trial process that do not comply with state or federal law.

An error is “prejudicial” if it probably affected the outcome of the case.¹

Example: The federal judge wrongfully allows a hearsay witness to testify for the prosecution. The testimony turns out to be very damaging to the defense. Aside from the hearsay witness, the U.S. Attorney has a relatively weak case. The jury nevertheless convicts.

The federal appeals court will likely overturn the conviction. Admission of the evidence was a legal error by the judge. The error was prejudicial because without the erroneously admitted evidence, the jury may not have convicted the defendant.

2. Comparing & contrasting federal vs. California state appeals

The federal appeals process is very similar to how to appeal a California criminal conviction. Both systems follow the same general course which begins with

• a notice of appeal, followed by
• written briefs,
• oral argument and, if necessary,
• a request for review,

all of which are explained in Section 3. The California Federal Appellate Process.

In addition, the grounds for appealing a California conviction are similar to the grounds for appealing a federal conviction. These grounds include any legal errors that — if not committed — would likely have produced a more favorable outcome. The errors could have been made:

• at the pretrial hearing,
• during trial, or
• at the time of sentencing.

Yet several differences exist between the federal and state systems.

The first major difference between the two court systems is where you go to file your appeal. You file

• a California misdemeanor appeal with the “Appellate Division of the Superior Court” and
• a felony appeal with the California Court of Appeal.”²

However, if you are appealing a conviction for a federal crime, you would file your appeal first with the United States Court of Appeal for the Ninth Circuit. If the Ninth Circuit decides against you, you could seek recourse to the Supreme Court of the United States.

A second major difference deals with terminology.

• In state court, the party filing the appeal is known as the “appellant,” and the party opposing the appeal is known as the “respondent”.
• In federal court, the party filing the appeal is also known as the “appellant,” but the opposing party is referred to as the “appellee”.

Sometimes for clarity, the court refers to the parties — and the parties refer to themselves — by their actual names or by “petitioner” for the appealing party and either “warden” or “state” for the appellee.³

A third difference goes to the means of seeking an appeal to the supreme court.

• In the California system, if the Appellate Division of the Superior Court or the Court of Appeal rules against you, you may file a petition for review with the California Supreme Court.
• In federal court, if you wish to contest the Ninth Circuit Court of Appeal’s ruling, you must file what is known as a writ of certiorari.

A petition for a “writ of certiorari” is a request for the Supreme Court to review the lower court’s decision to determine if there were, in fact, legal errors that it should remedy. If the court grants this writ — which the vast majority of times it does not — the court will establish a schedule for you to file your briefs and present your oral argument.

If the Supreme Court denies your writ of certiorari, this means it declines to hear your case and the Federal Circuit Court decision stands.

3. The federal appeals process in California

If you were convicted of a federal crime — that is, a crime that

• violates federal law (most commonly prohibited under Title 18 of the United States Code),
• crosses state lines (such as many types of fraud offenses), and/or
• is committed against federal property or federal employees.

you would file your appeal in the Ninth Circuit Court of Appeal. This appeals court serves nine western states including California.

The fact is that most criminal defendants end up in state courts. However, there are still a large number of defendants who are charged with federal crimes, which is why it is still important to understand the federal appellate process should you find yourself being prosecuted within this system.

3.1. Notice of appeal

The first step we take when handling your California federal appeal is to file your “Notice of Appeal“. Federal Rules of Appellate Procedure require that we file this notice with the court within 14 days of

1. the entry of either the judgment or order that we are appealing, or
2. the filing of the government’s notice of appeal (in cases where the government is the appellant).⁴

If you can demonstrate excusable neglect or good cause, the court may grant a 30-day extension on the above limits.⁵

As California federal appeals lawyer John Murray⁶ explains,

“This is why it is so important to make sure that if you are planning on appealing your case, you immediately consult with a skilled California federal appellate attorney. Timeframes and deadlines for filing California appeals are critical, whether in the state or federal system — waiting too long to do so could jeopardize your opportunity to pursue your case.”

3.1.a. With respect to incarcerated appellants

If you are incarcerated — and wish to file a notice of appeal from prison — as long as you deposit your notice in the institution’s internal mail system on or before the last day of filing, the federal court will accept it as timely.⁷

In order to benefit from this rule, you must offer a written declaration or a notarized statement, stating

• the date you placed the notice in the institution’s mail system and
• that you prepaid first-class postage.⁸

If you accidentally file your notice with the California Court of Appeal instead of with the federal Ninth Circuit Court of Appeal, the court will not hold that against you as long as the clerk of the California Court of Appeal receives it within the proper timeframe. They will then send it to the federal court for filing.⁹

3.2. Release on bail pending appeal

While your appeal is pending, you may wish to ask the federal court to

• set bail,
• reduce bail, or
• release you OR (that is, release you solely based on your promise to reappear).

We can help by filing a motion for

• bail pending appeal or
• revocation of bail pending appeal.

There are certain technical requirements that must accompany this motion. Failure to comply with these rules could lead the court to conclude that the motion was filed merely to delay your incarceration in violation of the law.¹⁰

This is another reason why it is critical to seek representation from a skilled California federal appeals attorney who has an in-depth knowledge of the complex rules that govern federal appeals in California.

3.3 The record of trial court proceedings

Once we have filed your notice of appeal, we must begin compiling the record on appeal. The “record on appeal” consists of

1. the original papers and exhibits filed in the federal district court,
2. the transcript of proceedings (if any), and
3. a certified copy of the docket entries prepared by the district clerk (that is, the clerk who handled the trial proceedings).¹¹

The Federal Rules of Appellate Procedure require that within 14 days of filing your notice of appeal we

1. order a reporter’s transcript pertaining to the parts of the proceedings that are not already on file and which we consider necessary to present a proper appeal,
2. file a statement of the issues that we intend to present,
3. make arrangements to pay for the transcripts.¹²

With respect to the third requirement, indigent defendants — that is, those who cannot afford to hire a private attorney — are entitled to

• a free copy of the reporter’s transcript and, for that matter,
• the appointment of counsel to represent them on appeal.¹³

The California Appellate Project is the agency that works with indigent defendants for state appeals. However, the district courts use federal public defenders and community public defenders for these services.

If transcripts are not available, we may prepare a statement of the evidence or proceedings from the best available means, which includes your recollection of the proceedings. Once we serve the opposing party with a copy, they are free to object to or amend the statement.

Once both parties agree, we submit the final proposal to the trial court for review.¹⁴

3.4. Written briefs

Because the federal court of appeals does not consider new evidence, the appellant’s brief is the most important part of the appeal. The brief is our opportunity to explain exactly how the defense attorney, prosecutor, jury, and/or judge committed legal error — and why the court should correct that error.

Federal appellate law requires that the appellant file this brief within 40 days after the final trial court record is submitted. The opposing party (usually the government) must then file its reply brief within 30 days. You then have 14 days to file your own reply brief that responds to the arguments presented by the government.¹⁵

In addition to these timelines, there are numerous other laws that regulate the form and content of the appellate briefs.¹⁶ Again, this is why having a California federal appeals lawyer is critical. Deviating from these rules will have a negative impact on your chances of overturning your California conviction and/or sentence on appeal.

3.5. Oral argument

After the federal Ninth Circuit Court of Appeal has received and reviewed each party’s briefs, it will hear oral arguments.¹⁷ Oral arguments provide an opportunity for each side to

• clarify its positions and
• answer any questions the appellate judges may have.

This is not the time for restating the facts of your brief. This is the time to make sure that you are highlighting its main issues.

If you wish, you may allow your brief to speak for itself and may waive your oral arguments. However, this is rarely a smart approach because the judges may have questions that will remain unanswered if you do not personally appear to answer them.

Once the court has received all briefs and has heard oral arguments, it must render its decision.

4. The appeal court’s decision and what happens next

After reading the briefs and hearing the oral arguments, a three-judge panel privately discusses the case. In order to reach their decision, the judges consider any relevant legal precedent (that is, prior court cases that have facts and legal issues that are similar to the facts and legal issues in your case).

Sometimes the federal appeals court is required to follow precedent and other times it is not. For example, the Court of Appeals must follow the precedent that was decided by the U.S. Supreme Court.

However, the Court of Appeals is not necessarily bound by the precedent established in other circuit courts (although other circuit courts may help influence the court’s decision). Courts typically follow their own precedent unless they conclude that legal errors existed in those cases as well.

Although there is no time limit on how long the court may take to announce its decision, it typically takes between three months and one year, depending on

1. how many other cases the court has on its calendar, and
2. the complexity of the case.

4.1. The court’s opinion

Once at least two of the three federal judges agree on a decision, one of the judges writes an opinion. An “opinion” announces and explains the court’s decision.

If one of the judges disagrees with the other two, they are entitled to write a dissent. A “dissent” is a statement explaining why the third judge disagrees with the majority opinion.

If the judges believe that the opinion will be helpful in determining the outcome of future cases, the opinion will be publicly published for others to read. Other judges and attorneys will then be able to use your case as precedent where appropriate.

However, when the judges believe that the issues in your case are most likely only important to the parties involved in your case — and are therefore unlikely to enhance legal precedent — the court will issue a shorter, unsigned opinion that will not be publicly published.

4.2. Remedies if you win

When you appeal a federal conviction and/or sentence, you are essentially asking the court to do one of two things:

1. overturn your conviction (in which case, you are cleared of any wrongdoing and go free), or
2. remand the case.

When the federal court “remands” the case, it sends it back to the trial court to

1. retry your case,
2. resentence you, or
3. otherwise correct the legal error.

4.3. Remedies if you lose

If you are unhappy with the federal court’s ruling, you have a couple of options.

1. File a petition for rehearing with the same court.¹⁸ Although these petitions are rarely granted, we know the most successful ways to convince the court that it either overlooked or misinterpreted one of the issues that is critical to the case.
2. File a petition for review (otherwise known as a petition for a writ of certiorari, described above in Section 2. Federal Appeals v. State Appeals) with the United States Supreme Court.

You may petition for review if

1. your petition for rehearing is denied, or
2. if your case was heard by the California Court of Appeal and the California Supreme Court, and you have exhausted your state court remedies.¹⁹

The U.S. Supreme Court receives thousands of petitions for review every year, and grants very few of them. A seasoned federal appeals lawyer knows the most effective ways to convince the Supreme Court that a particular case is appropriate for review.

5. Waiving your right to appeal by entering a guilty or nolo contendere “no contest” plea

If you entered a guilty or nolo contendere “no contest” plea — and therefore believe that you are prevented from appealing because you waived your right to do so — do not despair. We may be able to help.

Even if you waived your right to appeal, that does not necessarily mean that you have given up your right to appeal every issue. If

• the government breached its part of the plea agreement,
• you are making a claim based on ineffective assistance of counsel, or
• if the trial court judge sentenced you to an illegally harsh sentence,

you may still be entitled to a federal appeal.²⁰

Call us for help.

If you or a loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

For information about Nevada federal appeals law, go to our article Nevada federal appeals law.

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