A Greater Understanding of the Appeals Process

[Peeved]

The following was taken from this site:

In a capital murder case, the appellate process varies slightly from state to state but there are generally at least eight (8) levels of appeal available:

(1) The first appeal is filed with the state court of appeals and is based on issues developed from the original trial record. If granted, the case is sent back to the district court for acquittal, retrial or rehearing but the state can appeal the reversal.

(2) If denied, the convicted can appeal to the US Supreme Court asking for a "certiorari" review. If denied, this ends the "direct appeal".

(3) A person sentenced to death is then entitled to seek state habeas corpus review, which is basically just an additional appeal. It differs from the direct appeal in that the defendant may now raise claims based on facts outside the trial record and they must be claims that could not be raised in the direct appeal. These usually consist of claims of ineffective assistance of counsel. This appeal is filed with the trial court but reviewed by the state appeals court also.

(4) If the state habeas corpus review is denied, the inmate can appeal to the US Supreme Court.

(5) Then the Federal habeas appeals begin when the inmate files a petition for habeas review with the US District Court that oversees that area.

(6) If the writ of habeas corpus is denied by the District Court, the appeal can then move to the US Circuit Court.

(7) If the Circuit Court denies the appeal, the inmate can again ask the US Supreme Court for certiorari review. As with certiorari after the direct appeal, the US Supreme Court rarely agrees to hear and consider such cases.

(8) If denied a hearing from the US Supreme Court, an execution date is set and the final appeal left to the defendant is to ask for clemency or commutation from the governor and/or the parole board of the state.

If this is denied, the execution is carried out, unless another court intervenes for some reason.

OK, my previous studies has suggested that there was a 3-step process to appealing a DEATH SENTENCE:

(1) A Direct Appeal.

(2) A Post Conviction Relief Appeal.

(3) A Habeas Corpus Appeal.

Is it safe to assume that steps (1) and (2) are the "Direct Appeal," that stetps (3) and (4) are the "Post Conviction Relief Appeal," and that steps (5), (6), and (7) are the "Habeas Corpus Appeal"?

IF ANYONE WOULD ADD A LITTLE CLARITY TO MY UNDERSTANDING OF THE PROCESS, I'D GREATLY APPRECIATE IT!

Thanks!

[angelofdeath]

Peeved said:

(6) If the writ of habeas corpus is denied by the District Court, the appeal can then move to the US Circuit Court.

A writ of habeas corpus cannot be denied

[Charlene]

Peeved said:

OK, my previous studies has suggested that there was a 3-step process to appealing a DEATH SENTENCE:

(1) A Direct Appeal.

(2) A Post Conviction Relief Appeal.

(3) A Habeas Corpus Appeal.

Is it safe to assume that steps (1) and (2) are the "Direct Appeal," that stetps (3) and (4) are the "Post Conviction Relief Appeal," and that steps (5), (6), and (7) are the "Habeas Corpus Appeal"?

IF ANYONE WOULD ADD A LITTLE CLARITY TO MY UNDERSTANDING OF THE PROCESS, I'D GREATLY APPRECIATE IT!

Thanks!

I am by NO MEANS a lawyer, but I believe that Habeas Corpus and Post-Conviction Relief are the same thing. I could definitely be wrong and would love to hear from someone who knows the real deal. After the question is answered, I will edit that section so that the issue is clearer.

Charlene

[Deleted]

Angel said:

A writ of habeas corpus cannot be denied

Hi, AoD... Would you care to elaborate this statement, please?

[Deleted]

Peeved,

the first part of your post describes the appeals process quite accurately, as far as I know.

The respective certiorari reviews by the Supreme Court are (to my understanding) in a category of their own, as different sets of rules apply, as far as discretion on the issues goes. Since the SC only decides on constitutional matters, I would doubt that it can be "part" of the Direct Appeal, but is rather an additional form of review.

The Habeas Appeal is possible on two levels. First, all issues in question must be reviewed on the state level. After that, only the issues preserved on the state level can be reviewed in the federal courts that you mentioned. (However, the fact that constitutional issues must first be preserved on the state level applies only to habeas petitions filed after the AEDPA (anti-terrorist and effective death penalty act) in 1996). Before 96 federal courts could review all issues regardless whether they were brought up in a state court prior.

Habeas proceedings are also voluntary, whereas the Direct Appeal is automatic.

I agree with Charlene in that the Post Conviction Relief you mentioned is no "extra" appeal, but rather the description of the overall appeals proceedings.

I'll be very interested to hear more on this, too, though.

[Peeved]

Ashley said:

Peeved,

the first part of your post describes the appeals process quite accurately, as far as I know.

The respective certiorari reviews by the Supreme Court are (to my understanding) in a category of their own, as different sets of rules apply, as far as discretion on the issues goes. Since the SC only decides on constitutional matters, I would doubt that it can be "part" of the Direct Appeal, but is rather an additional form of review.

The Habeas Appeal is possible on two levels. First, all issues in question must be reviewed on the state level. After that, only the issues preserved on the state level can be reviewed in the federal courts that you mentioned. (However, the fact that constitutional issues must first be preserved on the state level applies only to habeas petitions filed after the AEDPA (anti-terrorist and effective death penalty act) in 1996). Before 96 federal courts could review all issues regardless whether they were brought up in a state court prior.

Habeas proceedings are also voluntary, whereas the Direct Appeal is automatic.

I agree with Charlene in that the Post Conviction Relief you mentioned is no "extra" appeal, but rather the description of the overall appeals proceedings.

I'll be very interested to hear more on this, too, though.

Ashley,

Thanks for replying.

From a site I use, these are the Indiana Death Row Inmates:

www.clarkprosecutor.org/html/death/rownew.htm

This is information provided on one of the inmates, Bill Benefiel, who I'd love to see go under the needle:

www.clarkprosecutor.org/html/death/row/benefi~1.htm

As you can see, they break it down into: (1) A Direct Appeal, (2) A PCR (Post Conviction Relief) Appeal, and (3) A Habeas Appeal...

So, they break down the appeals process into 3 distinct appeals processes -- not 8. I'm still guessing that I was correct in terms of how what is described by the prodeathpeanlty.com website and how it relates to the Indiana site. That's what I'm trying to verify though...

[Deleted]

Peeved said:

Ashley,

Thanks for replying.

From a site I use, these are the Indiana Death Row Inmates:

www.clarkprosecutor.org/html/death/rownew.htm

This is information provided on one of the inmates, Bill Benefiel, who I'd love to see go under the needle:

www.clarkprosecutor.org/html/death/row/benefi~1.htm

As you can see, they break it down into: (1) A Direct Appeal, (2) A PCR (Post Conviction Relief) Appeal, and (3) A Habeas Appeal...

So, they break down the appeals process into 3 distinct appeals processes -- not 8. I'm still guessing that I was correct in terms of how what is described by the prodeathpeanlty.com website and how it relates to the Indiana site. That's what I'm trying to verify though...

Hi,

looking at the website and being that for this guy's "PCR" they are naming state courts, I would conclude that they call only the State Habeas Corpus "PCR". Why they do that, I have no idea. Maybe it is because different states have different rules for their habeas proceedings OR it may be because his "PCR" was filed before 96 (the AEDPA I have mentioned), so it had a different name back then... (?) I am still quite sure that it is a state habeas appeal they are talking about, though.

I will do some reading on it myself now. :-)
Ash

oh and P.S.: yes, there are only three distinct appeals, but any one appeal goes to more than one court, thus 8 or so court steps. However, I would always think of the certiorari review in a league of its own on any appeal level, as the SC really can't be seen as a regular part of the process. Their involvement in a given case is entirely based on their discretion.

[Anony+]

Charlene said:

I am by NO MEANS a lawyer, but I believe that Habeas Corpus and Post-Conviction Relief are the same thing. I could definitely be wrong and would love to hear from someone who knows the real deal. After the question is answered, I will edit that section so that the issue is clearer.

Charlene

Oh Char, it's been a long time since I've been here... ...you can blame Doc for my return.

But to answer your question, "post conviction" is the term used to describe ANY lawsuit filed after the direct appeal has been completed. Although the more specific terms vary from state to state, the 2 levels of post conviction "appeals" that follow the direct appeal are the state habeas corpus and the federal habeas corpus.

Let me know if that doesn't clear it up.

Allison

[Anony+]

Ashley said:

Peeved,

the first part of your post describes the appeals process quite accurately, as far as I know.

The respective certiorari reviews by the Supreme Court are (to my understanding) in a category of their own, as different sets of rules apply, as far as discretion on the issues goes. Since the SC only decides on constitutional matters, I would doubt that it can be "part" of the Direct Appeal, but is rather an additional form of review.

The Habeas Appeal is possible on two levels. First, all issues in question must be reviewed on the state level. After that, only the issues preserved on the state level can be reviewed in the federal courts that you mentioned. (However, the fact that constitutional issues must first be preserved on the state level applies only to habeas petitions filed after the AEDPA (anti-terrorist and effective death penalty act) in 1996). Before 96 federal courts could review all issues regardless whether they were brought up in a state court prior.

Habeas proceedings are also voluntary, whereas the Direct Appeal is automatic.

I agree with Charlene in that the Post Conviction Relief you mentioned is no "extra" appeal, but rather the description of the overall appeals proceedings.

I'll be very interested to hear more on this, too, though.

Ashely,

If I may correct you on two things:

Certiorari review in the SC is most certainly considered "part" of each of the three "steps" in the life of a death penalty case. True, the SC rarely will accept cert to review the case, but without fail, each case (the direct appeal, state habeas, and then federal habeas) is routinely brought to the SC for certiorari. It's the final stopping point for a case prior to it being deemed completed and before jurisdiction returns to the trial court.

Also, as a former DP appellate prosecutor, having worked from '94-2002 (hence, on both sides of the AEDPA enactment), the following statement is not true:

However, the fact that constitutional issues must first be preserved on the state level applies only to habeas petitions filed after the AEDPA (anti-terrorist and effective death penalty act) in 1996). Before 96 federal courts could review all issues regardless whether they were brought up in a state court prior.

In fact, the AEDPA pretty much simply codified what rules already existed by virtue of precedent. So even before the AEDPA, if an issue wasn't raised in state habeas, it pretty much would not be considered in federal habeas, absent extenuating circumstances.

Allison

[Deleted]

Anony+ said:

Ashely,

If I may correct you on two things:

Certiorari review in the SC is most certainly considered "part" of each of the three "steps" in the life of a death penalty case. True, the SC rarely will accept cert to review the case, but without fail, each case (the direct appeal, state habeas, and then federal habeas) is routinely brought to the SC for certiorari. It's the final stopping point for a case prior to it being deemed completed and before jurisdiction returns to the trial court.

Also, as a former DP appellate prosecutor, having worked from '94-2002 (hence, on both sides of the AEDPA enactment), the following statement is not true:

However, the fact that constitutional issues must first be preserved on the state level applies only to habeas petitions filed after the AEDPA (anti-terrorist and effective death penalty act) in 1996). Before 96 federal courts could review all issues regardless whether they were brought up in a state court prior.

In fact, the AEDPA pretty much simply codified what rules already existed by virtue of precedent. So even before the AEDPA, if an issue wasn't raised in state habeas, it pretty much would not be considered in federal habeas, absent extenuating circumstances.

Allison

Hi Allison,

thanks for the info. Can you quote the precedents that were codified with the AEDPA? And also what circumstances were required to have the federal court review a otherwise barred issue?

Thanks,
Ashley

[Anony+]

Ashley said:

Hi Allison,

thanks for the info. Can you quote the precedents that were codified with the AEDPA? And also what circumstances were required to have the federal court review a otherwise barred issue?

Oh boy. You DO realize that your brain goes to moosh once you have a child. And you're asking me to remember stuff from before 1996! I'll do my best to try to find it (maybe I've got an old pleading laying around here, or maybe it's in my "case file") and will get back to you as soon as I can.

But the real significance of AEDPA were the time limits.....

Allison

[Deleted]

Anony+ said:

Oh boy. You DO realize that your brain goes to moosh once you have a child. And you're asking me to remember stuff from before 1996! I'll do my best to try to find it (maybe I've got an old pleading laying around here, or maybe it's in my "case file") and will get back to you as soon as I can.

But the real significance of AEDPA were the time limits.....

Allison

hey, but I'll be EXTRA grateful if you do :-)

And I wasn't sure about the S.Ct. being a regular part of the appeals system, because they can pick and chose which cases they take on. However, does the fact that it actually is considered a part of the appeal prevent execution dates from being set before the S.Ct. has finally refused to hear the case?

I was under the impression that execution dates were set pretty much right after denial by the Circuit courts, without bothering to wait for the Supremes' decision...

Ashley

[Anony+]

Ashley said:

hey, but I'll be EXTRA grateful if you do :-)

And I wasn't sure about the S.Ct. being a regular part of the appeals system, because they can pick and chose which cases they take on. However, does the fact that it actually is considered a part of the appeal prevent execution dates from being set before the S.Ct. has finally refused to hear the case?

I was under the impression that execution dates were set pretty much right after denial by the Circuit courts, without bothering to wait for the Supremes' decision...

Ashley

The trial court can only set an execution date if it has jurisdiction. If the petitioning party asks the SC to temporarily take jursidiction while it prepares and files for cert, then the trial court only get jurisdiction back after the remittitur has been issued, and it trickles its way back down to the trial court. (remember, this is my 2 years out of the game/mother's brain talking -- this is how I remember it happened in Ga). AND basically, most states will, as courtesy, wait until the SC is done with considering the case before it gets an execution warrant to issue, even if jurisdiction did somehow get back to the trial court before the SC considered the cert. The last thing they want to do is tick off the SC.

As far as the other question, here are some blurbs I found on-line that might help (my case file is empty on this, and I have no idea where my disk is with some of my old pleadings)(I think Coleman v. Thompson, or maybe Murray v. Carrier, might be cases on point):
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Second, the applicant must have presented his claims in state court in a procedurally correct manner. A state court's denial of a claim based on a procedural violation generally bars a federal court from considering the claim. For a claim to be barred from federal review, however, the procedural violation must provide an "adequate and independent" ground for denial of the claim. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).[2] In order to be "adequate," the rule must not have been applied by the state court in an inconsistent or manifestly unfair manner.[3] See Hansbrough v. Latta, 11 F.3d 143, 145 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 291, 130 L.Ed.2d 205 (1994); Spencer v. Kemp, 781 F.2d 1458, 1470 (11th Cir.1986).

[2]Even if a state procedural violation provides an adequate and independent ground, a petitioner can obtain federal habeas review if he can show cause for the violation and prejudice from the bar, or demonstrate that a "fundamental miscarriage" of justice will result from the bar. Coleman, 501 U.S. at 750, 111 S.Ct. at 2565, 115 L.Ed.2d 640.
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Absent a showing of cause and prejudice, federal habeas courts may not reach the merits of "procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (emphasis in original) (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).
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In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to a state...procedural rule, federal habeas review of the claims is barred unless petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115 L. Ed.2d 640 (1991).
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And actually, here's a link to the syllabus from Coleman:

supct.law.cornell.edu/supct/html/89-7662.ZS.html

Let me know if that's all enough.

And FYI, basically, both before and after 1996, the defendant has to raise most constitutional issues at the state direct appeal level if they want them considered at the federal habeas level (ineffective assistance of counsel is the big exception to that, b/c that usually can't be raised until after the direct appeal is done (unless they have new counsel on direct appeal). So that's usually raised for the first time in state habeas).

HTH!

Allison

[Deleted]

Yes, will help a lot. :-)

thanks, Allison

Ashley

[Donnie]

How does the appeals process work for the victim?

[Peeved]

Well, I'd assume that the victim simply hopes the person who killed their loved-one doesn't get off. I mean really -- the appeals process isn't about the victim. It's about preserving justice and insuring there isn't a miscarriage of justice.