Difference Between an Appeal and an Application for Writ of Habeas Corpus

People are often confused as to the difference between an appeal and an

Application for a Writ of Habeas Corpus.

APPEAL

An appeal (also known as a “direct appeal”) is taken immediately after a

conviction and sentence. A person generally required to file a brief statement
with the court called a “Notice of Appeal” within a short time after he is
convicted. For example, with some limited exceptions, a Notice of Appeal must be
filed within 10 days after a person is sentenced in a federal case and within 30
days after a person is sentenced in a state court case in Texas.

An appeal is limited to what is “in the record.” In other words, if an issue was
not brought up through a pre-trial motion or at trial, it generally cannot be
raised on direct appeal (of course there are some exceptions to this rule).
Generally, in order to have the possibility of winning an appeal, three things
must have happened: (1) The trial judge must have committed an “error” (i.e. did
something he should not have done or did not do something he should have done);
(2) The defense lawyer objected to the error at the time it was made; and (3) The
error was harmful (i.e. the error might have affected the conviction or sentence).

There are four possible outcomes from an appeal: (1) The conviction and sentence
can be affirmed; (2) The defendant (called the “appellant” on appeal) can be given
a new trial; (3) The defendant can be given a new sentencing hearing; or (4) The
defendant’s conviction can be overturned and he cannot be retried.

In the federal system, an appeal is taken to one of the twelve courts of appeals.
For example, a person convicted in federal court in Texas, Mississippi or
Louisiana takes an appeal to the United States Court of Appeals for the Fifth
Circuit that sits in New Orleans, Louisiana. The Appellant the case submits a
written brief, arguing the issues to be raised on appeal, to the Court of Appeals.
The government is given an opportunity to respond with its own brief and then the
Appellant can file a reply brief to the response. Often times, but not all the
times, the lawyers will be called to New Orleans to argue the issues raised on
appeal Eventually the Court of Appeals will render its decision in the form of a
written opinion. While the time can vary greatly, generally speaking, it takes
about 9-18 months from when a Notice of Appeal is filed to get a decision from the
United States Court of Appeals for the Fifth Circuit. If either side is not happy
with the result of the appeal, that party can file a Petition for Writ of
Certiorari with the United States Supreme Court asking the Supreme Court to
consider the case. Unlike, the Court of Appeals, the Supreme Court does not have
to consider the case and, indeed, it considers less than one percent of the cases
it is asked to hear.

In Texas, and in most other states, an appeal is taken to a state court of

appeals. In Texas, there are fourteen courts of appeals. Like in the federal
system, an appeal is decided by a three judge panel of the particular court of
appeals that hears the case. The party that lose a criminal appeal in a Texas
court of appeals can then ask the Texas Court of Criminal Appeals (essentially the
Supreme Court in Texas for criminal cases) to consider its case by filing a
Petition for Discretionary Review. Like the United States Supreme Court, the Texas
Court of Criminal Appeals is not required to hear all the cases it is asked to
hear. If the Court of Criminal Appeals refuses to hear the case or if it does hear
the case and a party is not satisfied with the outcome, a Petition for a Writ of
Certiorari can then be filed with the United States Supreme Court asking it to
consider the case. Again, however, the Supreme Court considers less than one
percent of the cases it is asked to hear
APPLICATION FOR WRIT OF HABEAS CORPUS

An Application for a Writ of Habeas Corpus can be brought if a person loses his
direct appeal or if he elects not to pursue a direct appeal. Generally speaking,
this procedure is used to raise issues that were not in the record and, therefore,
issues that could not have been raised on direct appeal. In most states and in the
federal system, the issues must be related to a denial of a constitutional right.
An overwhelmingly large majority of applications for a Writ of Habeas Corpus
allege that a persons’ trial lawyer and/or appellate lawyer was ineffective.

The “motions and briefs” page of our main website contains examples of some of the
applications for a Writ of Habeas Corpus filed by Broden & Mickelsen and some of
the issues that can be raised in such applications. Motions & Briefs

There are strict time limits for filing an Application for a Writ of Habeas Corpus
(also called a 2255 motion) in federal court. The application must be filed within
a year after a person’s conviction has become “final.” “Finality” of a conviction
is complicated topic so person should consult with a lawyer to determine when his
conviction became “final.” If the application is not filed within the one year
time limit, it will be almost impossible to further contest a conviction in
federal court.

Time limits, if any, to file an Application for a Writ of Habeas Corpus in state
courts vary from state to state. In Texas, for example, there is no time limit in
non death-penalty cases for filing an application (also called an 11.07 writ).
Nevertheless, if a person does not obtain relief after filing an Application for a
Writ of Habeas Corpus in a state court, they can raise the same issues in federal
court despite the fact that they were originally convicted in a state court (this
is called a 2254 motion). A 2254 motion must be brought within a year after a
person’s conviction has become “final.” Again, “finality” of a conviction is
complicated topic so a person should consult with a lawyer to determine when his
conviction became “final.” Nevertheless, the time that a state writ is pending is
not counted against the year time limit.

Generally speaking, a writ of habeas corpus is a person’s last shot at attacking

their conviction. Nevertheless, there are many procedural traps and strict time
limits involved with filing applications for such writs. Therefore, a person
considering such a writ is well advised to speak to an experienced post-conviction
lawyer to discuss the possibility of filing such an application.

CONCLUSION

Again, our firm has found that people are often confused as to the difference
between an appeal and an Application for a Writ of Habeas Corpus. It is hoped that
an example might further help people understand the difference.

Suppose a person is charged with murder in Dallas, Texas and it is uncontested

that the murder occurred in Dallas on August 20, 2008 at 1:00 pm. Further suppose
that the person charged with the murder can establish that he was with seven
priests in Boston, Massachusetts on August 20, 2008 at 1:00 pm (Dallas time) and
that he gives his trial lawyer the name and contact information of these priests.

If the lawyer tries to call these priests as witnesses at trial and the judge does
not allow it, this issue could be raised on direct appeal. The reason it can be
raised on direct appeal is that it will be in the trial transcript (i.e. it will
be “in the record”) that the defense lawyer tried to call the priests as witnesses
and the trial judge did not allow it. Therefore, a court of appeals can consider
whether the trial judge was right or wrong in the ruling he made.

On the other hand, suppose the lawyer never contacts the priests and never
mentions the priests during trial. Well, then, there is nothing “in the record”
about the priests for a court of appeals to consider. Remember, a direct appeal,
is limited to what is in the record and, generally, nothing outside the record can
be raised on direct appeal. Nevertheless, a person could file an Application for a
Writ of Habeas Corpus alleging that he was denied his constitutional right to
effective assistance of trial because his trial counsel did not contact the
priests and call them as witnesses and that, as a result, he was convicted because
the jury did not know he had a solid alibi.

At Broden & Mickelsen, a good portion of our practice is dedicated to direct

appeals and applications for writs of habeas corpus. For example, Clint Broden,
alone, has handled over sixty appeals before the United States Court of Appeals
for the Fifth Circuit, and has argued over thirty cases before that court.
Nevertheless, we also try to be completely honest with our clients and the reality
is that, after each step of the process, it becomes harder and harder for a
defendant to win relief. Sadly, there are many times when a client could easily
have won his case at a trial and comes to us after they have been convicted
because they were not happy with their trial lawyer. Simply put, it is important
to have a good lawyer at trial so that an appeal or an applications for writs of
habeas corpus never becomes necessary. At Broden & Mickelsen, we handle federal
trials throughout the country (having been involved in trial court cases in Texas,
California, Illinois, Indiana, Iowa, New Orleans, Georgia, Florida, Louisiana,
Ohio and New Jersey) and state trials throughout Texas. We firmly believe that to
be a good trial lawyer you must also be a good appellate lawyer and that to be a
good appellate lawyer you should be a good trial lawyer. In the end, we are
confident that our record at trial and the number of times we have heard a jury
say “not guilty” speaks for itself.