You may appeal from any judgment issued by the district court.  In a criminal case, you may appeal the judgment of conviction and sentence.  In a habeas case, you may appeal from the judgment denying and/or dismissing the petition for writ of habeas corpus.  You may also appeal from a judgment in a civil case.  The rules governing appeals are different for each type of case.

The federal appeals system is comprised of 12 regional circuits throughout the United States.  The court of appeals hears appeals from the district courts located within its circuit.  Appeals from our district, the United States District Court, Central District of California, are heard by the Ninth Circuit Court of Appeals.

In a criminal case, the NOA must be filed within 10 days of the entry of judgment.  In a civil or habeas case, the NOA must be filed within 30 days of the entry of judgment.

The NOA is filed with the Clerk’s Office of the district court and not in the Court of Appeals.

In a direct criminal appeal, you do not have to pay a fee if you were permitted to proceed in forma pauperis in the district court.  If you did not have in forma pauperis status in the district court, you must file a motion to proceed in forma pauperis in the Ninth Circuit to avoid the filing fee. You should include a financial affidavit with your motion.  Click here for the Court's affidavit. 

An appeal from a judgment denying a petition for writ of habeas may not go forward unless and until either the district court or the Ninth Circuit issues a COA.  A COA will be issued only if the person appealing has made a substantial showing of the denial of a constitutional right.  There is no requirement for a COA in an ordinary federal criminal case.

Generally, it is advisable to file a request for a COA at the same time that the Notice of Appeal is filed.  The request should specify what issue(s) there has been a substantial showing of the denial of a constitutional right.  If the district court grants the COA, the appeal will be proceed to the Ninth Circuit, and the Ninth Circuit will set a schedule for the briefs.  If the district court denies the COA, the request will be forwarded to the Ninth Circuit, and the Circuit will independently decide whether to issue a COA.

In a criminal case, you are entitled to appointed counsel if you are indigent or have in forma pauperis status.  You must file a “motion for appointment of counsel” in the Ninth Circuit.  There is no entitlement to appointed counsel in habeas cases, but the Ninth Circuit will often appoint counsel any way.  Again, you must file a “motion for appointment of counsel” in order for the request to be considered.

Under the Ninth Circuit’s rules (Rule 4-1(d)), “the court will permit defendants in direct criminal appeals to represent themselves if: (1) the defendant’s request to proceed pro se and the waiver of the right to counsel are knowing, intelligent, and unequivocal; (2) the defendant is apprised of the dangers and disadvantages of self-representation on appeal; and (3) self-representation would not undermine a just and orderly resolution of the appeal. If, after granting leave to proceed pro se, the court finds that the appointment of counsel is essential to a just and orderly resolution of the appeal, leave to proceed pro se may be modified or withdrawn.”

Generally, the appellate court may review any legal issues that were presented in the district court. With few exceptions, the appellate court will not reweigh the evidence or judge the credibility of the witnesses. 

Any issues that depend on facts that were not presented to the district court will usually not be considered on appeal.  Similarly, pure issues of fact will generally not be considered by the appellate court.

After the notice of appeal is filed in a direct criminal appeal, the district court will issue an order setting out the schedule for the appeal.  In a habeas case, the Ninth Circuit will issue the order after a certificate of appealability is granted.  That order will state when everything is due.

Opening Brief by appellant and petitioner:      Blue
Answering Brief by appellee and respondent: Red
Reply Brief:                                                       Gray
Brief by amicus and intervenor:                        Green    
Second Briefs on Cross-appeal:                       Red
Third Briefs on Cross-appeal:                           Yellow

If you are representing yourself, you may file your brief by mailing an original and seven copies to the Court of Appeals.  The mailing address is: Office of the Clerk; U.S. Court of Appeals; P.O. Box 193939; San Francisco, CA 94119-3939.  Click here for the Circuit's detailed instructions for filing your brief.

Oral arguments are public proceedings and open to any member of the public.  The presence of the defendant or habeas petitioner, however, is not required, and persons in custody will not be transported to the court for an argument.

There is no set time.  A decision in an appeal will usually take at least six months from the time the notice of appeal is filed and could be much longer.  Among the factors that add to the time are delays in preparing the transcripts, extensions obtained to file the briefs, and extra time taken by the court to consider the case. 

You may file a petition for rehearing.  The rehearing petition is generally due within 14 days of the date that the appellate court issued it decision.  Generally a rehearing is appropriate if the decision has overlooked or misapprehended material points of fact or law.   At the same time, you may also petition for rehearing en banc.  This is a review by the entire Ninth Circuit and heard by a panel of eleven judges.  This is appropriate where the decision conflicts with another decision by the Ninth Circuit or another Circuit and affects a rule of national application. 

If you lose in the Ninth Circuit, you may ask the Supreme Court to hear your case by filing a petition for writ of certiorari.  The petition is due in the Supreme Court within 90 days of the date of the appellate court’s decision or, if you filed a petition for rehearing, 90 days from the date that rehearing was denied.

An Anders brief is a brief filed by appointed counsel stating that counsel could not find any arguable appellate issues.  Instead of filing a brief on the merits, it simply requests that the appellate court independently examine the record for issues.  If the court finds an issue, it will order the issue briefed and will often appoint new counsel to do so.  If counsel files an Anders brief, the defendant will have an opportunity to file his or her own brief.

The Ninth Circuit maintains it own website: http://www.ce9.uscourts.gov/

The Circuit has also put together a packet for pro se litigants.  The packet explains many of the rules and also contains sample briefs. Click here for the Circuit's pro se packet.
 

Any person who is in custody under a state court judgment may challenge his or her conviction in federal court on the ground that there was a violation of his or her federal constitutional rights.  It is called a 2254 petition because the statute governing federal habeas petitions challenging state court judgments is 28 U.S.C. § 2254.

A 2254 petition must be filed in the federal district court that has jurisdiction over the county where the conviction occurred. The United States District Court for the Central District of California has jurisdiction over Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura counties.

File your petition on the form provided by the district court (click here for the form).  Copies of the form and instructions for filing can be obtained from the district court’s website.

Only issues related to federal constitutional violations (with the exception of Fourth Amendment claims) may be raised in a 2254 petition.  The federal court will not consider issues based solely on state law.  Also, the federal court cannot consider any claims that were not first presented to the highest state court.  You must exhaust all of your state court remedies first.

If you were convicted in state court, you have an automatic right to an appeal in the state court of appeal.  You have a right to appointed counsel, and the state court will consider any issues raised by you and your attorney. When you file a federal habeas petition, you may only raise issues related to constitutional violations and you have no right to the assistance of counsel.

Our office cannot represent 2254 habeas petitioners unless we are appointed to the case by the district court. There is a right to counsel if your federal habeas petition involves a death penalty sentence.  The district court does not appoint counsel in most other cases.  However, if it appears that an evidentiary hearing will be held, the court will often appoint counsel.

Yes, you have very little time to prepare your federal habeas petition.  Generally, a 2254 federal habeas petition must be filed within a year after your direct appeal was final. In California, this is usually 90 days after the California Supreme Court’s denial of the petition for review.  The limitations period is mandatory and jurisdictional.  Although there are some ways to toll the statute of limitations, your petition will be dismissed if you miss the filing deadline.

If you file a 2254 petition in the Central District of California, it is assigned to both a magistrate judge and a district court judge.  The magistrate judge is responsible for all the preliminary litigation.  Because the magistrate judge does not have the legal authority to issue a final order, the magistrate judge will issue a report and recommendation to the district court judge.  The district court judge can either adopt the magistrate judge’s recommendation or issue his or her own order.

You must file a notice of appeal with the district court clerk within 30 days of the judgment denying the petition.  The district court considers your notice of appeal to be a request for a certificate of appealability (COA), but you may also file a separate request for a COA.  The appeal will not go forward unless the court grants a COA.  If the district court denies the certificate, it will forward your file to the Ninth Circuit.  The Ninth Circuit will consider for itself whether to issue a COA.  If either court issues the COA, a briefing schedule will be set.

A 2255 petition may be filed by a person in federal custody to challenge a federal sentence or conviction.  The 2254 petition is for challenges to state convictions and sentences. Also, a 2255 petition is not limited to constitutional claims.  Other 28 U.S.C. § 2255 provides that it may be used to raise claims that your sentence or conviction was unauthorized under any law of the United States.

Yes, you have very little time to prepare your federal habeas petition.  Generally, a 2254 federal habeas petition must be filed within a year after your direct appeal was final. In California, this is usually 90 days after the California Supreme Court’s denial of the petition for review.  The limitations period is mandatory and jurisdictional.  Although there are some ways to toll the statute of limitations, your petition will be dismissed if you miss the filing deadline.

The petition may be filed on the form provided by the district court.  Copies of the form and instructions for filing can be obtained from the district court’s website. CACD-Habeas Petition (State)-2255