Update on notice of appeal problem

A helpful reader has provided two forms that address the notice of appeal problem discussed in my last post. I am tentatively inclined to think that the solution addressed in the two certificates is a good one.

The first certificate is from counsel and must be filed in the court file within 10 days.  It reads like this
counsel.certThe second certificate is issued by the defendant and must be filed at the same time, and as part of defense counsel’s certification.  It reads like this:

cert.defendantThese forms are worth careful thought.  As I indicated above, I am tentatively inclined to think these forms, with appropriate modifications, are worth using as a part of my standard practice.  I am interested in knowing what others think.


PS Many thanks to Tom Withers.


21 responses

  1. “My lawyer told me to sign the paper, that it was just some official form that didn’t mean nothing. My head was all twisted from the sentence, so I just did what he said. I don’t really like reading anyways. And he’s my lawyer. I got to do what my lawyer tells me, so I did it.”

    Not to suggest that everyone will do such a thing, but bear in mind that most of these ideas come from jail house lawyers, and percolate through the system. The point of the 2255 motion is to get another chance. It’s not like a bit of perjury is going to trouble a fellow doing 168 months.

  2. I don’t mind going over those and having them signed. I would think most of us will do it immediately after sentencing as we don’t have time to run down to Wilber or more likely Leavenworth to have then signed. Thus if the defendant asserts he changed his mind the next day not sure they help. Just my two cents, i type this as i put gas in my truck to go see a federal client in Lexington tonight.
    I don’t know if putting the onus on the defendant to contact the Clerk by letter immediately if he changes his mind would be allowed, but “i wrote the clerk i wanted to appeal” is a different case than “i told that shill of lawyer to appeal and he didn’t” i would think.

  3. No doubt some number of folks will do that. But will a high enough per centage do that to warrant saying “No” to the method?

    It’s never going to reach perfection, and its implementation doesn’t at all prevent improvement or outright scrapping if empirical data indicate failure.

    Eric Hines

  4. Korey,

    First, have a good trip to Lex. Say hi to Gary Reiber, the Sheriff, if he’s around. He’s a good guy. I used to represent
    Dawson County deputies when sued individually in civil rights cases.

    Second, the requirement that the defendant advise the court in writing if he or she changes his or her mind could be incorporated into the forms. I will give that some thought. Thanks for the suggestion.

    All the best.


  5. It can’t hurt to try. Just a few words on paper. The question is whether it would be sufficient to prevent a hearing under Franco, and that’s not clear. In any event, give it a go and see what the circuit does on appeal of a denial.

  6. I agree with the forms, but I’m not comfortable with the 10 day time period. I think it needs to be longer. We need to be cognizant that these people, in some cases, were just sentenced to spend the remainder of their natural life in prison. They will never see a place outside of prison again. They need some time to appreciate that before making an informed decision to appeal, and their attorney should not pressure them to appeal.

    I say make it 30 days to allow time for a less “heated” decision.

    Some of the litigation will simply be punted. Instead of an evidentiary hearing on whether your attorney advised you of the right to appeal, you’ll have an evidentiary hearing on whether you were competent to sign that form.

    That said, I think it’ll cut down on the amount of litigation. But I’m not comfortable without the time to appeal being extended to allow some cooling off time.

  7. And this is something I disagree with my local court system. We only have ten days to appeal here as well. I want more time to let them discuss the matter.

  8. Certainly these forms are clearer and more concise. In a perfect world, these would solve the problem. I’m not sure there is a solution. I find habeas law and the process interesting (yes, I do lead a boring life) and await your final decision.

  9. SLS,

    There is a legal problem in the federal world. The notice of appeal must be filed within 14 days of the judgment (sentencing), so it would be misleading to the defendant to extend the time in the forms when the law requires otherwise. All the best.


  10. RGK,
    It’s the same at state level. I would want to modify Rule 4(b)(1)( A) to 30 days. I have never figured out why it is reduced for criminal convictions. If anything, I would think they need more time since the sentence hits them harder most civil judgments. I think it would also cut down on the amount of frantic filing that could go on otherwise with the system you propose.

  11. Of course, this still leaves us with an interesting question: what if the attorney does not file anything within that time period? Is he per se ineffective?

  12. It seems from suggestions in the other thread that there is often a logistical problem in having a private consultation with counsel following a conviction given the short 14 day timeframe and the tendency of USMS to whisk the defendant away, sometimes to a far off lockup. Would it be wildly impractical after sentencing to allow the defendant and counsel a private room to have a 20 minute meeting? They could be given these forms beforehand so that if the conversation does result in a plan to appeal, they could be handed to the clerk right afterwards.

  13. Ex-Cop-LawStudent
    I feel your pain. I have never felt this busy before the start of a semester before.


  14. SLS,

    This is what the Eighth Circuit said in Franco: ” If Franco directed Hug to file an appeal, then Hug’s failure to appeal amounts to ineffective assistance of counsel. See Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000) (“[A]n attorney’s failure to file a notice of appeal after being instructed to do so by his client constitutes ineffective assistance entitling petitioner to section 2255 relief, no inquiry into prejudice or likely success on appeal being necessary.”).”

    All the best.


  15. RGK,
    That makes sense, but I’m left confused about the procedure. I notice that on the same page it says that the appropriate remedy is a new sentencing proceeding. Why? Couldn’t you simply revive the case and allow him to file a belated notice of appeal circuit court without requiring a district court to re-sentence the defendant?

    This seems especially odd if the habeas court is in the same jurisdiction as the conviction, but the federal judge responsible for the initial sentencing has retired. Who does the case go to?

    I wish the real world wasn’t so full of rabbit holes like this.


  16. SLS,

    I will address your questions or points as follows:

    *I believe the Court of Appeals is concerned about jurisdictional matters and whether a “belated” notice of appeal vests them with jurisdiction.

    *Typically, 2255 motions are handled by the sentencing judge so there is no “habeas judge” different from the sentencing judge.

    *And, finally, if the sentencing judge is unable to take the case (due to death or illness, for example), then the case would be randomly reassigned to another district judge in the same court.

    All the best.


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