“I need an appeal!” But what kind of appeal?
- Feb 24
- 4 min read
I often hear from people saying that they need an appeal. The word has many meanings, but for most people it means something simple:
-Either I or a loved one was convicted and sentenced in court, and I want to do something about it.
-I want the sentence reduced.
-I want the conviction overturned.
-I want justice.
-I want relief.
It is worth understanding the differences between the available remedies so you can be properly informed when seeking relief for yourself or others. So let’s discuss the available remedies.
First, let’s discuss direct appeal. An appeal is defined as a challenge to a previous legal determination. [1] I often explain an appeal as requesting a higher court to review what was done in the lower court.
Here are some of the questions you can expect to be asked:
Were the rulings on objections correct?
Was evidence improperly admitted?
Was evidence improperly excluded?
Did the prosecution present sufficient evidence?
Did the sentencing judge rely on improper factors in calculating the sentence?
Also, the direct appeal takes place right after sentencing, however there are differing timelines to pay attention to. For example:
If you or someone you love was sentenced in federal court, the direct appeal is started by filing a notice of appeal within 14 days of the entry of judgment or the order being appealed. [2]
If you or someone you love was sentenced in Alabama, the direct appeal is started by filing a notice of appeal within 42 days after the sentence was pronounced. [3]
From there, the record on appeal is compiled, proceedings are transcribed, and the appeal proceeds with the filing of paper briefs which outline the issues and errors. After the conclusion of the briefing process and possibly oral arguments before the court, the appeals court will give its decision.
Second, let’s discuss postconviction remedies. Generally, postconviction remedies take place after the direct appeal is done. I normally describe seeking postconviction relief as an opportunity to go back to the trial court and make arguments about what should have been done in trial, plea proceedings, or pretrial proceedings. Seeking postconviction relief also involves an opportunity to argue that something else should have been done in the direct appeal process.
The title of the postconviction motion varies depending on where you or your loved one was convicted. If the conviction occurred in federal court, the petition is a 2255 petition to vacate, set aside, or correct sentence. [4] The federal courts have a form that may be used which is linked both here and below. [5] If the conviction occurred in Alabama, the petition is called a Rule 32 petition for relief from conviction or sentence. [6] A link to the Rule 32 petition form is included here and below. [7]
In Minnesota, where I practice through an affiliation with Subzero Expungements, Pardons, & Appeals, [8] postconviction relief is sought through filing a petition for postconviction relief. [9] I am including a link here and below where the Minnesota Judicial Branch has provided helpful links and forms on seeking postconviction relief. [10]
If you or your loved one was convicted in a jurisdiction other than the federal courts, Alabama, or Minnesota, I am including a link here and below that lists out the available remedies by state. [11]
Generally, there is only one opportunity to seek postconviction relief. Of course, there are exceptions to the rule, but it is strongly advised to make the initial petition for postconviction relief as good as it can be. I truly feel for the men and women doing it themselves on the other side of the fence because it is hard enough to learn postconviction law let alone learn it while existing in the prison environment.
TIME IS THE ENEMY! The initial postconviction petition is subject to strict timelines. For federal and Alabama prisoners, the time limit is one-year. For Minnesota prisoners, the time limit is two years. Time bars are a significant obstacle to getting postconviction relief. Put it off until later at your own extreme peril.
If denied, postconviction petitions can be appealed to the appellate court.
“Is there anything else beyond direct appeal and a petition for postconviction relief?”
Yes, there is!
For state prisoners, there is the option of seeking federal habeas corpus. [12] A federal habeas corpus petition by a state prisoner, also called a 2254, is subject to a strict timeline. For an issue to be viable in federal court, there must be a federal constitutional issue raised and denied in state court and appealed as far as it can go under the state rules. If the issue is timely and constitutional, the issue must then meet the demanding standard.
Newly discovered evidence and illegal sentences may potentially provide an exception to time and procedural bars as well.
In conclusion, if you need an appeal, direct appeal, postconviction relief, federal habeas corpus, or need help understanding what you need, Peter Armstrong, Attorney at Law, is available for a free consultation.
References:
2. Federal Rule of Appellate Procedure 4(b)(1). (https://www.law.cornell.edu/rules/frap/rule_4)
3. Alabama Rule of Appellate Procedure 4(b). (https://judicial.alabama.gov/docs/library/rules/ap4.pdf)
4. 28 U.S.C. § 2255. (https://www.law.cornell.edu/uscode/text/28/2255)
5. The form is available here: https://www.uscourts.gov/sites/default/files/AO_243_0.pdf
6. Ala. R. Crim. P. 32. (https://judicial.alabama.gov/library/criminalprocedure)
7. The Rule 32 form is available here: https://resources.fastcase.com/Alabama%20Rules%20of%20Criminal%20Procedure/Alabama%20Rules%20of%20Criminal%20Procedure%20(2023%20Edition)/cr32_appx.pdf
9. See generally, Minnesota Statute 590.01. (https://www.revisor.mn.gov/statutes/cite/590.01)
11. The Immigrant Defense Project postconviction relief state-by-state chart is available here: https://www.immigrantdefenseproject.org/wp-content/uploads/Post-Conviction-Relief-State-Summary-Chart-04.2022-FINAL.pdf
12. See 28 U.S.C. § 2254. (https://www.law.cornell.edu/uscode/text/28/2254)
