Post-Conviction Relief for Immigrants

The defendant begins an appeal from a federal criminal conviction by filing a notice of appeal with the clerk of the United States District Court in which the plea was entered or the case was tried within ten days after the district court enters the judgment of conviction, or within ten days after the government files a notice of appeal.[44]  The defendant may file a notice of appeal filed immediately after sentencing, even if the court has not yet issued the judgment.[45]

If the defendant files the notice of appeal after this ten-day time limit has expired, s/he loses the right to appeal.[46]  The trial court does have the power, within the first thirty days after the ten-day appeal period has expired, to grant a motion for leave to file a late notice of appeal based on excusable neglect.[47]  If the court denies the motion, the defendant can appeal from that ruling. 

            The pertinent portions of the court file are compiled into a clerk’s transcript on appeal, and a reporter’s transcript or settled statement (in some cases) is prepared of the oral proceedings in the trial court.  Counsel reviews the transcripts, researches all arguable issues, and files an appellant’s opening brief arguing to the appellate court why the conviction should be reversed or other relief should be granted.  The prosecution files a respondent’s or appellee’s brief, and appellant files appellant’s reply brief.  The court may or may not set the case for oral argument, after which it issues its decision.  The decision may affirm the conviction, in whole or in part, or reverse the conviction and remand the case to the trial court for further proceedings.[48]

[44] Fed. R. App. P. 4(b)(1)(A).

[45] Fed. R. App. P. 4(b)(2), 4(b)(3)(B).

[46] Browder v. Director, 434 U.S. 257 (1978).

[47] Fed. R. App. P. 4(b)(4).

[48] See generally California Continuing Education Of The Bar, Appeals and Writs in Criminal Cases (2d ed. 2000); California Continuing Education Of The Bar, California Criminal Law: Procedure and Practice  (5th ed. 2000), Chap. 41 (misdemeanor appeals), Chap. 42 (felony appeals); J. Smith, M. Snedeker, S. Fama, The California State Prisoner’s Handbook 422 ff. (2d ed. 1990).