Federal Appellate and Post-Conviction Procedures

Flashcards covering federal procedures for motions, sentencing (FRCP 35, 36), appeals (FRAP 9, 37, 38, 3, 4, 5, 18 USC 3731), error preservation (FRCP 51, FRE 103), and post-conviction relief (28 U.S.C. § 2254, 2255).

Motion for New Trial (Defendant's Motion)

A defendant's motion requesting the court to vacate any judgment or grant a new trial if the interest of justice so requires. If tried to the bench, the court may take additional testimony and enter a new judgment.

Motion for New Trial (Newly Discovered Evidence)

Must be filed within 3 years after the verdict or finding of guilt; if an appeal is pending, the court may not grant an MJT until the appellate court remands.

Motion for New Trial (Other Grounds)

Any MNT grounded on reasons other than newly discovered evidence must be filed within 14 days after the verdict or guilty finding.

Arrest of Judgment

Upon a defendant's motion or its own, the court may arrest judgment within 14 days after accepting a verdict/finding of guilt or after a plea, if the court lacks jurisdiction of the charged offense.

Correcting or Reducing Sentence - FRCP 35 (Clear Clerical Error)

Within 14 days after sentencing, the court may correct a sentence that resulted from math, technical, or other clear error.

Reducing Sentence for Substantial Assistance (General)

Upon the government's motion made within 1 year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating/prosecuting another person.

Reducing Sentence for Substantial Assistance (Later Motion)

If more than one year, on government's motion, a sentence may be reduced if substantial assistance involved information not known to the defendant until 1 year after sentence, or information provided within 1 year but not useful until more than 1 year, or information whose usefulness could not be anticipated until more than a year and was promptly provided after its apparent usefulness.

Below Statutory Minimum Sentence

If a court reduces a sentence based on substantial assistance, it may reduce the sentence below the minimum established by statute.

Clerical Error - FRCP 36

After giving appropriate notice, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or an error arising from oversight or omission.

Indicative Ruling - FRCP 37

If a motion for relief is made while an appeal is pending, the court may defer, deny, or state it would grant the motion if the COA remands, or that the motion raises a substantial issue. Movant must notify the circuit clerk if the district court makes such a statement.

Staying a Death Sentence - FRCP 38

The court may stay a death sentence if the defendant appeals the conviction or sentence.

Staying Imprisonment - FRCP 38

If the defendant is released pending appeal, the court must stay a sentence of imprisonment. If not released, the court may recommend confinement near the trial/appeal location for appeal preparation.

Staying a Fine - FRCP 38

If a defendant appeals, the district court or COA may stay a fine, potentially requiring the defendant to deposit funds, post a bond, or submit to asset examination.

Staying Probation - FRCP 38

If the defendant appeals, the court may stay a sentence of probation, setting the terms of any stay.

Staying Restitution/Notice - FRCP 38

If a defendant appeals, the district court or COA may stay any sentence providing for restitution or notice, setting appropriate terms, and may issue orders (e.g., restraining order, injunction, deposit, bond) to ensure compliance after appeal.

Staying Forfeiture - FRCP 38

If a defendant appeals from a conviction or an order of forfeiture, the court may stay the order on terms to ensure the property remains available, though a stay does not delay ancillary proceedings or third-party rights.

Staying a Disability - FRCP 38

If a conviction or sentence creates a civil or employment disability under federal law, the district court or COA may stay the disability pending appeal on appropriate terms, issuing necessary protective orders.

Release Before Judgment - FRAP 9

The district court must state in writing or orally on the record the reason for an order regarding release of a defendant. A party appealing such an order must file it with the COA; if the factual basis is questioned, a transcript must be filed.

Release After Judgment - FRAP 9

The COA may order a defendant's release pending disposition of the appeal. A party entitled to appeal may file a Notice of Appeal from the release order or a motion in the COA if a NOA from the conviction judgment is already filed.

Criteria for Release Pending Appeal (Defendant Appeal)

A defendant sentenced to imprisonment shall be detained unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger, and the appeal is not for delay and raises a substantial question of law or fact likely to result in reversal, a new trial, a non-imprisonment sentence, or a reduced sentence (less than time served plus expected appeal duration).

Exceptions for Release Pending Appeal (Defendant Appeal)

A defendant may not be released if convicted of a crime of violence, an offense with a maximum sentence of life or death, or an offense with a maximum sentence of 10 years or more under the Controlled Substance Act.

Preservation of Error - FRCP 51

A party may preserve a claim of error by informing the court, when the ruling or order is made, of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection.

Preserving Evidentiary Claims - FRE 103 (Admitting Evidence)

A party may claim error in a ruling to admit evidence only if the error affects a substantial right, and the party timely objects or moves to strike, stating the specific ground (unless apparent from context).

Preserving Evidentiary Claims - FRE 103 (Excluding Evidence)

A party may claim error in a ruling to exclude evidence only if the error affects a substantial right, and the party informs the court of its substance by an offer of proof (unless apparent from context).

Plain Error (Appellate Court, FRE 103)

An appellate court may take notice of plain error affecting a substantial right, even if the claim was not properly preserved below.

Harmless Error

Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded during appellate review.

Plain Error (Substantial Rights)

A plain error that affects substantial rights may be considered even if not brought to the court's attention, provided it is clear and obvious, affected the defendant's substantial rights (outcome would have been different), and seriously affected the fairness and integrity of judicial proceedings.

Notice of Appeal (Defendant's Timing) - FRAP 3 & 4

Must be filed within 14 days after the later of the entry of judgment or order being appealed, OR the filing of the government's notice.

Notice of Appeal (Government's Timing) - FRAP 3 & 4

Must be filed within 30 days after the later of the entry of judgment or order being appealed, OR the filing of the defendant's notice of appeal.

Notice of Appeal (Inmate Timing) - FRAP 3 & 4

An inmate's NOA is timely if deposited in the institution's internal mail system on or before the last day for filing, accompanied by a declaration/notarized statement of date/postage, or evidence of deposit/prepaid postage.

Premature Notice of Appeal - FRAP 3 & 4

A NOA filed after a court announces a decision/sentence/order but before its official entry is treated as filed on the date of and after the entry.

Extension of Time to File NOA - FRAP 3 & 4

Upon a finding of excusable neglect or good cause, the district court may extend the time to file a NOA for a period not to exceed 30 days.

Contents of Notice of Appeal - FRAP 3 & 4

Must include names of parties taking the appeal, designate the judgment or appealable order being appealed (which encompasses all orders merging into it), and name the court to which the appeal is taken.

Service of Notice of Appeal - FRAP 3 & 4

The district clerk must serve notice of the filing of a NOA by sending a copy to each party's counsel of record (and to the defendant in a criminal case). Failure to serve notice does not affect the appeal's validity.

Appeal by Permission - FRAP 5

A party must file a petition with the circuit clerk and serve it on all parties when permission to appeal is within the COA's discretion. The petition must be filed within the time authorized by statute or, if none specified, within the time for a NOA.

Appeal by US - 18 USC 3731 (Dismissing Indictment/New Trial)

The United States may appeal to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or granting a new trial after a verdict or judgment, unless double jeopardy prohibits further prosecution.

Appeal by US - 18 USC 3731 (Suppressing Evidence)

The United States may appeal from a district court decision or order suppressing or excluding evidence or requiring the return of seized property (not made after jeopardy and before verdict), if the US attorney certifies the appeal is not for delay and the evidence is substantial proof of a material fact.

Appeal by US - 18 USC 3731 (Granting Release)

The United States may appeal from a district court decision or order granting the release of a person charged with or convicted of an offense, or denying a motion for revocation or modification of release conditions.

Timing for Appeal by US - 18 USC 3731

The appeal in all such cases shall be taken within thirty days after the decision, judgment, or order has been rendered and shall be diligently prosecuted.

Motion for Rehearing

Must be filed within 14 days of the judgment or order.

Federal Writs Under 28 U.S.C. § 2254

These federal writs address challenges to state court convictions, requiring exhaustion of state remedies, adherence to AEDPA standards, specific timelines, and application forms, while considering procedural bars and equity issues.

Federal Writs Under 28 U.S.C. § 2255

These federal writs address challenges to federal court convictions or sentences, typically used to assert constitutional errors or jurisdiction defects.