Cliff Gardner

After a defendant is convicted of a felony, he has a right to an appeal. In non-capital cases, the defendant must file what is known as a Notice of Appeal. Transcripts of the trial are prepared and forwarded to the lawyer who is representing the defendant on appeal. Since the defendant is the party who is appealing, he is generally referred to on appeal as the appellant. The state, who is the responding party, is referred to as the respondent. The appellant’s lawyer will review the trial record and prepare an Appellant’ s Opening Brief. The brief will contain a statement of facts explaining the facts of the crime and an argument section containing a discussion of the legal issues which the lawyer contends require relief. The state will file a written response, known as the Respondent’s Brief, and the appellant may then file a reply to that response, known as the Appellant’s Reply Brief. At that point the case can be calendered for oral argument before a three-judge panel of the appellate court. After argument, the appellate court will issue a written decision either granting or denying relief.

In an appeal, your lawyer can only raise those issues which are apparent from the face of the trial transcripts. For example, on appeal a lawyer can argue that the trial judge improperly excluded certain evidence from the trial, or gave improper instructions to the jury. The reviewing court can decide by looking at the trial transcripts what happened at trial and whether a new trial is required. A habeas proceeding is very different. Habeas proceedings allow defendant to go beyond the face of the trial record and present additional evidence which was not presented at trial. For example, in habeas proceedings a lawyer can present evidence from witnesses who were never called at trial. The habeas court can review this evidence and decide whether a new trial is required.

There are six different appellate courts in the state, organized by location. Generally cases are assigned to appellate courts depending on where they are tried.

After the appellate court issues its written decision, either party may seek rehearing if they believe the court has overlooked either important facts or important cases. In addition, a losing party may ask the state supreme court to review the case. This is done by filing a Petition for Review with the state supreme court.

Very small. The state supreme court grants review in only a small fraction of the cases presented to it every year.

There is no deadline within which a court of appeal must resolve an appeal. Generally, the length of time an appeal takes will depends on the complexity of the case and the caseload of the appellate court to which the case is assigned. Some felony appeals can take less than a year to resolve in the court of appeal. Some can take significantly longer. And if review is granted in the state supreme court, the case will take significantly longer to resolve.

Yes. If an appellant’s conviction is affirmed on appeal by the state court, it is still possible to obtain relief through the federal courts. The document by which a state defendant asks for relief from a federal court is called a Petition for Writ of Habeas Corpus.

There are two general limits on the types of issues which can lead to relief in federal court. First, a federal court can only grant relief on federal issues. Typically this means that the issue must involve a federal constitutional right, such as the right to present a defense, the right to counsel or the right to a fair trial. A mere violation of state law -- such as a state rule of procedure -- will not be a ground for relief in federal habeas corpus. Second, a federal court can only grant relief on issues which have been presented to the state courts. Under current law, this means that before any claim is raised in federal court, it must have been presented, at the very least, to the state supreme court. This is referred to as the "exhaustion" doctrine; the claims must be "exhausted" in the state supreme court before being brought to federal court.

Yes. Under changes made to the federal habeas corpus statutes in 1996, state petitioners have a one-year period – known as a statute of limitations – within which they must file in federal court. This one-year period begins to run on the date a conviction becomes final in state court. The date of finality will vary in every case. In most cases – assuming an appellant filed a Petition for Review with the state supreme court which presented a federal issue – the date of finality is 90 days after the state supreme court denied the Petition for Review. The one-year period begins to run from this date.

As a general rule, under 1996 amendments to the federal habeas statutes a defendant will get only one chance to file a habeas petition in federal court. If claims are discovered later -- even if they are potentially successful claims -- it is very difficult to proceed to federal court a second time. Although there are some exceptions to this rule, the wisest course is to assume that you will get only one chance at federal review, so all claims should be presented in the first federal petition.