FAQ – Appeals Process

Below are answers to questions we frequently receive about California appeals, the role of an appellate attorney, the Writ of Habeas Corpus, the appeals process, and more. If your question does not appear below or the answer is not satisfactory, please contact us.

What is an appeal?

An appeal requests a higher court to overturn or reverse the conviction or sentence of the lower court. All defendants who have been convicted following a trial have a right to appeal. An appeal is based solely on the trial court record. The record consists of the Reporter’s Transcript on Appeal which reflects everything that was said and reported during pre-trial and trial proceedings and the Clerk’s Transcript on Appeal which includes all motions and any other documents filed with the court. These materials, along with any exhibits which were received in evidence, constitute the record on appeal.

Appellate counsel studies the record on appeal and prepares appellate briefs, setting forth the legal arguments for reversing the conviction or sentence. These legal arguments must be based on the record on appeal. On appeal, the appellate court will not consider new or different evidence than that which was presented during pretrial and trial proceedings.

Please contact us for more information.

What is a Petition of Writ of Habeas Corpus?

A Petition for Writ of Habeas Corpus challenges the legality of one’s custody and requests that a Writ of Habeas Corpus issue to remedy a constitutional violation and free that individual from his or her custodial status. A defendant is “in custody” if he or she is in jail or prison or on probation or parole. If you are not in custody, you are not eligible for habeas relief; however, there are other remedies you may seek and Ms. Klein will discuss these with you at the time of your consultation.

Unlike an appeal, which is strictly based on the trial court record, a Petition for Writ of Habeas Corpus is usually based on evidence that was not presented at trial.

For example, a habeas petition is appropriate if the prosecution withheld Brady material…that is, evidence that would have been favorable to your case. A habeas petition is also appropriate if you were denied the effective assistance of counsel. For instance, if the trial attorney failed to conduct an adequate investigation, obtain the assistance of a necessary expert or failed at trial to timely object to inadmissible or prejudicial evidence.

Another example of a situation in which a writ may be sought is if your trial attorney failed to adequately advise you of the consequences of a guilty or no contest plea.

There are certain cases where the facts warrant filing both an appeal and a habeas petition. This may be the case when errors occurred at trial…and are thus part of the trial record…and errors which do not appear on the record also exist.

What is the difference between a Petition for Writ of Habeas Corpus and an appeal?

When you file an appeal with the appellate court, you are limited to the record on appeal. The court will refuse to consider any other evidence except that which was introduced at the trial or pretrial proceedings. When petitioning for a Writ of Habeas Corpus, the petition presents additional evidence…evidence that is not part of the record on appeal. Such evidence is presented by way of declarations, reports, records, etc.

In preparing a Petition for Writ of Habeas Corpus, it is not unusual to retain the services of a private investigator to interview witnesses, locate documents and undertake whatever other steps were omitted by trial counsel. In determining a Petition for Writ of Habeas Corpus, the court will consider new and different evidence than that which was contained in the record on appeal.

Please contact us for more information.

Are there limitations when filing an appeal or habeas petition?

You have a right to appeal and the appellate court is required to consider the issues you raise as reasons to overturn your conviction. The appellate process begins with the filing of a Notice of Appeal and mandatory time deadlines apply. In a felony case in California, the Notice of Appeal must be filed within 60 days of the sentencing. In a misdemeanor case, the Notice of Appeal shall be filed within 30 days of the judgment. In federal court, the Notice of Appeal is required to be filed within 10 days of the sentencing. In all cases, the Notice of Appeal is to be filed in the trial court. The Court of Appeal will then set a briefing schedule. If the Notice of Appeal is not timely filed, in all probability the appellate court will refuse to consider your appeal.

Sometimes your trial counsel will file a Notice of Appeal for you after the sentencing. You should ask that attorney to do so. But do not rely on this. Specifically, ask your trial attorney if he or she filed the Notice. If not, do not delay in filing the Notice. This is why it is so important to consult with us immediately. Time is of the essence.

There is no requirement that a defendant give notice that he or she is filing a Petition for Writ of Habeas Corpus. However, in state court, filing the Petition for Writ of Habeas Corpus in a timely fashion is critical. As soon as the claim arises, the petition should be researched, investigated, prepared and filed. Delay may prejudice your case and, if the court finds substantial delay, it may refuse to consider your claims.

Filing a Petition for Writ of Habeas Corpus in Federal court is subject to specific complex and strict time limitations which Ms. Klein will discuss with you during your consultation.

What is involved in preparing the appeal?

Once the Notice of Appeal is filed, the record on appeal is prepared and provided to counsel. This record consists of everything that was said and reported both during pre-trial and trial proceedings along with written motions.

The very first step in the process is to carefully review the entire record. This phase of the process is essential because it reveals the evidence and the points or “issues” the defense will present to the appellate court.

Ms. Klein beings more than 25 years of experience to this important work. Her many years devoted exclusively to appellate and writ practice makes her uniquely qualified to undertake the detailed work necessary to thoroughly protect your rights.

As Ms. Klein explains: “I scrutinize every word of the record until I know the motions, all of the evidence, opening statements, the objections, the details of the rulings, the arguments…every aspect of the trial. This careful review is absolutely necessary in order to identify every single error whether made by the Judge, the police, the prosecutor or even the defense attorney.”

These errors (or “issues”) are the reason you are asking the higher court to reverse your conviction. Legal research is undertaken to support our arguments and then the brief is written and filed with the appellate court.

The prosecution files its brief and the defense is given the opportunity to file a reply brief in which we challenge the arguments made by the prosecution. Both parties are usually then given the opportunity for oral argument before the Judges of the Court of Appeal. The court then issues its decision.

Please contact us for more information.

What is involved in filing a Petition for Writ of Habeas Corpus?

Preparation and investigation are the keys to habeas work. We begin by obtaining all of the records of previous counsel in the case and the trial court record. Ms. Klein thoroughly reviews these documents and determines what investigation, if any, needs to be done, whether an expert is needed and what other records or reports should be obtained.

A Petition for Writ of Habeas Corpus requires the presentation of evidence to support your constitutional claim. This evidence can be in the form of sworn declarations, reports, records, medical or psychiatric histories, etc. The evidence required depends upon the nature of the claim you are making, i.e., ineffective assistance of counsel, prosecutorial misconduct, etc.

Once the investigation has been conducted and the evidence gathered, legal research is done and the petition is then written and filed with the court. The prosecution is not required to respond unless directed or invited to do so by the court. You may then be permitted to file a traverse. The court will then determine whether to conduct an evidentiary hearing on the petition or grant or deny the petition outright.

Remember, you must not delay in filing a habeas petition. A note of caution: successive or repeated habeas petitions are not permitted. So it is very important that the petition be done correctly and thoroughly the first time. Call for a consultation with Ms. Klein. She will discuss your case with you and give you an honest assessment as to whether habeas proceedings are appropriate for your situation.