A direct appeal is the first and most direct form of post‑conviction challenge to the validity of a criminal conviction.  Federal appeals were created by statute.[37]  The court of appeals reviews the record of the trial court proceedings to see whether the trial court committed errors of law so serious they might have altered the outcome of the case.  If so, the court of appeals will reverse the conviction.  The court of appeals’ review is limited to the written record of the trial court proceedings, which includes the “clerk’s transcript” (the court file as it existed during the trial court proceedings), and the “reporter’s transcript” (the verbatim transcript of the oral proceedings that occurred in the trial court).

 

It can take from nine months to two years (even more in complicated cases) to complete a direct appeal.  The chances that a criminal defendant will prevail on a direct appeal from a federal conviction are about five per cent.[38]

 

            A notice of appeal from a felony conviction must be filed within a certain time after the judgment has been imposed.[39]  The time limit is jurisdictional, and no appeal will generally be possible unless the notice of appeal has been timely filed.  If the appeal follows a plea of guilty or no contest, some state statutes restrict the ability to appeal some or all issues, or require court permission before an appeal will be allowed.[40]

 

            Courts have sometimes permitted late filing of a notice of appeal where the appellant relied on the jailers or trial attorney to assist him or her in doing so,[41] or was not informed of the right to appeal at the time sentence was imposed, if the statutes of the jurisdiction require the court to give the defendant this advice.  See § 5.21, infra.

 

            Once a direct appeal has been initiated, the conviction is “nonfinal” for immigration purposes, and cannot be the basis for a Notice to Appear initiating removal proceedings based on the conviction.  See § 5.24, infra.

 

            Grounds.  The appellant may raise a wide variety of issues on direct appeal.  After a trial, the appellant may claim the evidence before the trial court was insufficient to justify a guilty verdict, or that some of the evidence that was admitted against him or her was legally inadmissible, or that the trial court improperly refused to admit exculpatory evidence.  The appellant may raise on appeal any error concerning any ruling the trial judge made, concerning pretrial motions, trial motions, admission or exclusion of evidence, jury selection, or jury instructions.  The appellant may also raise errors in the sentencing proceedings on direct appeal.

 

The issues on appeal are limited to those shown in the appellate record, which is composed of the clerk’s and reporter’s transcripts.  The court of appeal cannot consider evidence that was not before the trial court.  Claims of error that depend on evidence that was not presented to the trial court cannot be considered on direct appeal.[42]  Claims that defense counsel committed serious errors, or rendered ineffective assistance of counsel, almost always depend on evidence outside the appellate record (because counsel’s reasoning in taking an act or making an admission is often central to the claim), and therefore cannot be presented on direct appeal.[43]  Any issues that require consideration of evidence that was not presented in the trial court also cannot be considered on direct appeal.  For example, issues regarding newly discovered evidence, prosecutorial misconduct such as concealing exculpatory evidence, or misconduct that occurred in the jury room cannot be considered.

 

Not every error will result in a new trial.  The court of appeals will affirm a conviction, even if errors are shown, unless those errors are so serious they might have affected the outcome of the case, i.e., unless they are “prejudicial” or non-harmless.  If the errors result in a violation of the fundamental rights guaranteed by the United States Constitution, they will likely result in reversal of the conviction unless the government can prove beyond a reasonable doubt that the error was harmless.

[37] See 18 U.S.C. § § 3732, 3742.

[38] This statistic is based on figures for the year ending June 30, 2002, according to A. Ellis, J. Feldman, and K. Landau, Federal Post-Conviction Guidebook: A Primer for Attorneys and Defendants, Family and Friends 14 n.32 (Law Offices of Alan Ellis, 2003).

[39] E.g.,  California Rules of Court, Rule 31(a) (60 days).

[40] E.g., California Penal Code § 1237.5 (forbidding appeal of most issues after a guilty plea unless trial court issues a certificate of probable cause to appeal).

[41] Houston v. Lack, 487 U.S. 266 (1988); People v. Knauer, 206 Cal.App.3d 1124, 253 Cal.Rptr. 910 (1988).

[42] United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996).

[43] See United States v. Hanoum, 33 F.3d 1128, 1131 (9th Cir. 1994); Hoffman v. Arave, 236 F.3d 523, 530 n.7 (9th Cir.) (explaining rationale), cert. denied, 122 S. Ct. 323 (2001); United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000) (declining to review claim on direct appeal), cert. denied, 121 S. Ct. 821 (2001); United States v. Ross, 206 F.3d 896, 899 (9th Cir. 2000) (noting when direct review is permissible); United States v. Quintero‑Barraza, 78 F.3d 1344, 1347 (9th Cir. 1995) (same).

Fifth Circuit

POST-CONVICTION RELIEF " FEDERAL " VEHICLES " DIRECT APPEAL
United States v. Rodriguez-Estrada, 741 F.3d 648 (5th Cir. Jan. 31, 2014) (imposition of sentence enhancement was encompassed within waiver of appeal contained within plea agreement).

Eighth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEALS MAY NOT CONSIDER NON-RECORD MATERIAL SUBMITTED FOR THE FIRST TIME ON APPEAL
Gebremaria v. Ashcroft, __ F.3d __ (8th Cir. Aug. 2, 2004) (IIRAIRA 309(c)(4)(B) bars consideration of material not included in the record from the immigration court proceeding, including proof of noncitizens medical condition where noncitizen was aware of the condition during the initial proceedings).
http://caselaw.lp.findlaw.com/data2/circs/8th/032492p.pdf

Ninth Circuit

POST CON RELIEF - APPEAL - FEDERAL - MAGISTRATE MAY ISSUE CERTIFICATE OF APPEALABILITY
Hanson v. Mahoney, ___ F.3d ___ (9th Cir. Jan. 10, 2006) (federal magistrate judges who adjudicate habeas petitions by consent of the parties have authority to issue certificates of appealability).

APPEALS - FAILURE OF GOVERNMENT TO ARGUE HARMLESSNESS
United States v. Gonzalez-Flores, __ F.3d __ (9th Cir. Aug., 12, 2005) (the burden to that an error was harmless is on the government; reversal is required where harmlessness is not shown by a preponderance of the evidence). See United States v. Seschillie, 310 F.3d 1208, 1214-16 (9th Cir. 2002). Here government advanced no argument that the evidentiary error was harmless. "Usually when the government fails to argue harmlessness, we deem the issue waived and do not consider the harmlessness of any errors we find. See, e.g., United States v. Varela-Rivera, 279 F.3d 1174, 1180 (9th Cir. 2002); United States v. Vallejo, 237 F.3d 1008, 1026 (9th Cir. 2001), amended by 246 F.3d 1150. This approach makes perfect sense in light of the nature of the harmless-error inquiry: it is the government's burden to establish harmlessness, and it cannot expect us to shoulder that burden for it. However, we recognize that no interest is served -- and substantial time and resources are wasted -- by reversal in those unusual cases in which the harmlessness of any error is clear beyond serious debate and further proceedings are certain to replicate the original result."

JUDICIAL REVIEW - HABEAS - IMMIGRATION CASES
Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004), rehg en banc denied __ F.3d __, 2004 WL 151667 (9th Cir. 2004) (doctrine of issue preclusion prevents noncitizens from filing habeas corpus to challenge whether an offense is an aggravated felony, since the same issue was raised in determining whether the court had jurisdiction to hear the case on petition for review; twelve circuit judges dissented to denial of rehearing, arguing that the decision cuts off habeas to most immigrants seeking the petition).

Tenth Circuit

POST CON RELIEF - DIRECT APPEAL - FEDERAL - MOOTNESS - DIRECT APPEAL PROPERLY DISMISSED AS MOOT AFTER DEFENDANT HAD BEEN REMOVED FROM THE UNITED STATES
US v. Vera-Flores, __ F.3d __, 2007 WL 2247660 (10th Cir. Aug. 7, 2007) (appeal of a sentence for possession of a firearm by an illegal alien is dismissed where defendant's removal from the United States mooted his appeal).