The notice of appeal problem in criminal cases

I have a problem. My problem relates to motions to vacate under 28 U.S.C. § 2255. I hope readers who practice criminal law in the federal courts can help me.

If a defendant does not take a direct appeal, and later files a section 2255 motion alleging ineffective assistance of counsel on the basis that defense counsel was told to take an appeal but failed to do so, as the law stands now I must appoint counsel and hold an evidentiary hearing even if the first lawyer submits an affidavit denying that he or she was told to appeal. Here is a recent such case from Nebraska, although it is not mine, where the Court of Appeals reversed the denial of a section 2255 motion precisely on this basis. Franco v. United States, No. 13-2607 (8th Cir., August 8, 2014).

After I sentence a person I scrupulously comply with the Federal Rule of Criminal Procedure 32(j).  Specifically, I give a detailed description of how and when a defendant may appeal. I make clear that the defendant has 14 days to file the notice of appeal. I use simple words and then ask the offender whether he or she has any questions.  I specifically invite a discussion on the subject. Moreover, before I leave the bench, I tell the defendant that my court clerk will hand the defendant a written summary of what I just told the defendant as soon as I am gone. I add that the defendant can speak with the clerk at that time and she will file a notice of appeal for the defendant if the offender merely asks her to do so. See Federal Rule of Criminal Procedure 32(j)(2).

Here is the notice the defendant and his or her counsel receives from my clerk immediately after I leave the bench:

TO: Each defendant and his/her counsel:

(1) Unless a defendant has given up his or her right to appeal (for example, by signing a waiver in a plea agreement approved by the court), you are notified that every defendant has a right to appeal. Appeal means to have a defendant’s conviction or sentence reviewed by a higher court. A conviction may be appealed because it was obtained in violation of the law. A sentence may be appealed because it was imposed in violation of the law. If a defendant was convicted after a trial, the defendant may appeal the conviction and the sentence. If a defendant was sentenced after a plea of guilty or “no contest,” the right to appeal is generally limited to appealing the sentence.

(2) To start an appeal, a notice of appeal must be filed with the Clerk of the United States District Court for the District of Nebraska. A defendant may file the notice of appeal. Also, if the defendant tells his or her lawyer to file the notice of appeal, the lawyer is obligated to do so. In addition, if a defendant tells a court clerk to file the notice of appeal, the court clerk is required to do so.

(3) A notice of appeal must be timely filed in the district court, generally within fourteen days after the entry of the judgment or order from which an appeal is taken. This normally means that a notice of appeal must be filed in the district court within fourteen days of today’s date. If the notice of appeal is not timely filed, a defendant may lose his or her right to appeal.

(4) Every defendant who is unable to pay the expenses of an appeal has the right to apply for permission to appeal without payment of a filing fee or costs. In addition, every defendant who is unable to pay for a lawyer may apply for the appointment of lawyer to represent the defendant during the appeal at no cost to the defendant. In other words, even though a defendant is poor, the defendant’s poverty need not prevent an appeal.

Receipt of the foregoing notice is acknowledged this day of
, 20 , immediately after sentencing, by:

 _______________________                             ___________________________

Signature of defendant                                      Signature of defense counsel

(The deputy clerk of the court is directed to give a copy of this notice to each defendant and his/her counsel immediately after sentencing. The deputy clerk of the court shall then set forth in a copy of the notice the date the notice was given. The deputy clerk shall then procure the signature of the defendant and his/her counsel on a copy of the notice. The signed copy of the notice shall then be filed in the court file by the deputy clerk.)*

The notice is signed by the defendant and his or her counsel. It is filed in the court file.

At the same time as the foregoing notice is is delivered and signed, defense counsel is additionally handed a copy of Eight Circuit Rule 27C. The lawyer acknowledges receipt of the rule, and that acknowledgment is filed in the court file. Here is the form:



(a) Notices of Appeal. Retained counsel in criminal cases, and counsel appointed to represent a party pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A, Federal Rule of Criminal Procedure 44, or the inherent power of a federal court, shall file a notice of appeal upon their client’s request. Defendant’s trial counsel, whether retained or appointed, shall represent the defendant on appeal, unless the Court of Appeals grants permission to withdraw.

(b) Motions to Withdraw. A motion to withdraw on the ground that in counsel’s opinion there are no non-frivolous issues to be urged on appeal must be accompanied by a brief prepared in accordance with the procedures enunciated in Anders v. California, 386 U.S. 738 (1967), and Robinson v. Black, 812 F.2d 1084 (8th Cir. 1987). A motion to withdraw on any other ground will only be granted for good cause shown, and will rarely be granted unless another attorney has entered an appearance for the defendant on appeal or another attorney has agreed to represent the defendant on appeal and the defendant has consented to the appearance of that new attorney.

As defense counsel, I acknowledge receipt of 8th Circuit’s Rule 27C.


Now, here is my problem. If the defendant later claims that he or she told defense counsel to file a notice of appeal, but that claim is not true, is there anyway to avoid the time and trouble of appointing a lawyer to represent the defendant and then conducting an evidentiary hearing?  I ask this question because: (1) I trust most criminal defense lawyers to file a notice of appeal if directed to do so; (2) there is little incentive for offenders not to lie about whether they instructed their counsel to appeal and in fact I have a strong suspicion that the prison “writ” writers frequently make this type of allegation without specifically consulting the prisoner for whom they are writing the 2255 motion; (3) allowing an offender to attack defense counsel based upon nothing more than the say so of the offender seems wrong to me since the consequence to the lawyer is significant–getting dragged into court to testify when the claim alone has the real potential to sully the accused lawyer’s reputation; (4) the consequences to the court are not small either, as the requirement of an evidentiary hearing requires under the rules the appointment of yet another lawyer (Rule 8(c) of the Rules Governing Section 2255 Proceedings) and the evidentiary hearing and subsequent proceedings suck up large amounts of time; (5) almost never is the defendant’s claim upheld after an evidentiary hearing (which in our court would be held by a magistrate judge with a follow-up a report and recommendation to me) since history proves that most lawyers in fact comply with their legal and ethical obligations to file notices of appeal when directed to do so.

Is there any solution to avoiding these frequently fruitless hearings that do little but harm the reputations of conscientious defense counsel and waste time and money? I would appreciate the advice of defense counsel who confront this problem on a regular basis.


*If the defendant cannot speak English, the interpreter reads the document to the defendant in his or her native tongue.

PS Thanks to Elaine Mittleman for stimulating my thoughts on this subject.

13 responses

  1. The only thing I would ask you to understand, Judge, is that at the time of the verdict being given, the roaring in the defendant’s ears is probably too loud to hear ANYTHING other than “Guilty”. I think that everyone who is involved is too used to the process to understand just how devastating the whole process is to those who aren’t used to it, especially if there is a language barrier. (And the language barrier may be one of “you don’t speak the way I do”, not “you don’t speak my native language.”)

    It takes time to process. And 14 days, when the defense counsel may not be able to see the defendant for 10 of those, is a very, very, very short time. Making major decisions under time pressure is rarely a skill that people have much practice or skill in, especially when they have noone trusted to talk to.

    As always, thanks for your willingness to ask questions. I am not a lawyer, but have been (at different times), a victim, defense witness, prosecution witness and cop. Your openness is rare and I am grateful for it.

  2. When I was a federal PD, it was the practice of every lawyer in my office to get a signed statement from each defendant declaring either “I do want my attorney to file a notice of appeal,” or “I do not want my attorney to file a notice of appeal.” This statement is made a permanent part of each file and saves a lot of heartache.

    That said, it is not a foolproof approach. First, as Mr. Beaty notes above, it is very difficult in the moments immediately following a sentencing to have a meaningful conversation with a defendant–particularly one who is on USM custody and being ushered swiftly from the courtroom–about the exercise of this important right. I do try to address a client’s appellate rights with him or her BEFORE sentencing so that they can envision ahead of time the circumstances under which we likely would appeal versus those in which we likely would not. But in cases where this does not happen or in which a sentencing hearing takes unexpected turns, it is often necessary to give clients a few days to sleep on things before going forward with a decision about an appeal. The problem there is that many defendants in my district are whisked away within a day or two to a holding facility 250 miles away, so getting any kind of agreement about the appeal in writing from the client becomes difficult, if not impossible, if the attorney waits.

    This brings me to what I believe is the bottom line: the rule stinks. Criminal defendants should have more than 14 days to file a notice of appeal. The Government’s law-and-order interests are surely no more important than those of someone whose individual liberty is at stake. And yet, the government has 30 days to appeal. I’ve often wondered if automatically filing notices of appeal in every case would be a suitable work-around, with defendants entitled to withdraw those appeals without prejudice within 30 days, but I think that would probably create as many administrative problems as it would solve.

  3. I mean no disrespect, but the notice is written in language that can only be described as verbose and stilted legalese. It would be difficult for an educated native English speaker in a stressful situation to comprehend what is being said or presented on the form in the short time that is typically allowed after being sentenced for attorney/client conversation, often which is not privileged as others are milling around. Some of those appearing before you have limited, if any, education. Do judges really think an uneducated non-English speaking noncitizen even has any idea what an “appeal” is? As a starting point, I suggest that the notice be rewritten in plain English/Spanish. Please remember that anything given to an incarcerated defendant in writing is taken from them after court. Anything read in court, particularly in this writing style, is likely not understood. Any condensed version stated by a judge after sentencing gets lost in all the other “stuff” that the judge is required to say. As Mr. Beaty noted, a criminal defense lawyer has limited contact, and sometimes none, after sentencing, with a client. In summary, advising a defendant/client of the right to appeal is not as simple as it might seem. Sorry that this is not what you wanted to hear!

  4. It’s become fairly commonplace in my practice that even when it’s been discussed, in advance of sentence on a plea, that there is no appeal, the defendant will be told by a jailhouse lawyer that this is means to get another bite and possibly even a win, and so the 2255 motion is made. Then again, we hear lots of peculiar requests and demands post hoc from sentenced defendants. They have a lot of time on their hands.

    Given Franco, there seems to be no way to avoid appointment of counsel and an evidentiary hearing when faced with conflicting affidavits. This may well be a waste of scarce resources, but you never know when the application has merit and the lawyer is the one being less than credible. It can happen. Despite the odds, sometimes the defendant is telling the truth.

  5. RGK,
    This is not a uniquely federal problem. I’ve dealt with similar state-level issues, and have some thoughts on them. To discourage abuse (either by attorneys who are too busy to file the notice and consequently fail their clients, or by inmates who are bored), someone needs to be held liable. Honestly, we have the tools available now to deal with it. I’ll take each group in turn.

    First, inmates. We have perjury laws. Take, for example, what we have in South Carolina:

    SECTION 16-9-10. Perjury and subornation of perjury.

    (A)(1) It is unlawful for a person to wilfully give false, misleading, or incomplete testimony under oath in any court of record, judicial, administrative, or regulatory proceeding in this State.

    (2) It is unlawful for a person to wilfully give false, misleading, or incomplete information on a document, record, report, or form required by the laws of this State.

    (B)(1) A person who violates the provisions of subsection (A)(1) is guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both.

    (2) A person who violates the provisions of subsection (A)(2) is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than six months or fined not less than one hundred dollars, or both.


    I have been frustrated to discover that either courts do not enforce this law, or, consequently, prosecutors do not believe they are worth the time. Apparently the prosecuting office will prosecute the offense, wasting using valuable time and resources, only to have the judge sentence the defendant to the perjury concurrent with the rest of their sentence. This leads to the conclusion that it is not worth their time. Note, however, that perjury probably would not apply to every situation, but it could be used selectively to ensure that defendants had better be serious about the fact that their lawyer failed to appeal. It will work well in combination with keeping the lawyer honest.

    Second, the lawyer. Most criminal lawyers want to make sure that their clients are well-represented, and do everything they can to ensure their client’s rights are protected. But criminal law is a fast-paced business with lots of wheeling and dealing. Things get lost in the cracks and sometimes things are not followed up on.

    I love your notice system. If I ever became a judge (unlikely), I will find this post, copy that form, and use it. I would make it a part of the case file. It’s a wonderful idea that we need to help protect against that sort of thing. But if I were the Supreme High Chief Justice Of Criminal Law Land, I would create a court rule that requires the defendant’s lawyer to file either a notice of appeal or an affidavit stating that the client did not wish to appeal within 30 days of conviction. That would remove any ambiguities about whether something is lost or whether there was an honest intent not to appeal. And, if the lawyer is lying, then that’s what bar discipline is for.

  6. The law in the Sixth Circuit is similar, holding that a lawyer is ineffective if the client says to appeal and the lawyer does not file timely the notice. I would like to suggest a good way to avoid the pointless evidentiary hearing, as I wound up testifying at one in this type scenario last December. The 2255 petition went nowhere, of course, but traveling to and from and testifying at the hearing took up a half-day of my time, not to mention the time of the magistrate and district judges, etc. I’d like to think that we all might better have devoted our time.

    Ultimately, though, and while my experience was annoying, I think Scott Greenfield is right that holding the hearings can serve, if only on very, very rare occasions, a proper purpose. Experience has shown that cross-examination often establishes a factual scenario more nuanced if not materially distinguishable from that gleaned from the witness’s affidavit. And sometimes the defendant is telling the truth.

  7. As a practicioner, especially in court appointed federal cases, I do two things. First, I tell the client in writing about his right to appeal and how to file a notice of appeal. I have him sign a copy and I file it. I also tell the in writing that they have wiaved their right to appeal if they have and get them to sign that. That document, I don’t file.
    Second, immediately after sentencing unless I want to stay on the appeal, I file a motion to withdraw. I’ve never had a judge fail to grant it.
    That way, I have told the defendant about his right to appeal, how to do it pro se and I am off the case. If a defendant files a pro se notice of appeal, our southern district of texas district judges have them in front of a magistate quickly for appointment of appellate counsel.

  8. Cameron,

    Did you file the the paper the client signed directing appeal/no appeal in the court file or merely keep the paper in your office file?

    All the best.


  9. We do not. I can see why that would be beneficial, but there may also be some unintended consequences.

  10. John,

    I am sensitive to pushing the defendant too fast. But, with the fourteen day time limit for filing a notice of appeal times is of the essence. See my updated post that follows this one for a set of forms that could be used several days after a sentencing so the defendant has time to time to think. That approach is not perfect, but, perhaps, it is better than my present practice that leaves no record.

    All the best.


  11. SHG,

    Scott see my last (updated) post with some forms used by the federal court in Georgia. I am interested in what you think about them.

    All the best.


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