Author: Attorney Catherine E. White
Email: cwhite@hurleyburish.com
Phone: 608-257-0945

When plea bargaining or trial doesn’t go the way you wanted it to, the final judgment entered by the trial court may be just the beginning of the legal battle.

The first step is usually a direct appeal. In a direct appeal, the defense attorney will usually file a brief with the appellate court that identifies errors made by the trial court. For example, the brief might argue that the judge erred in denying a motion to suppress evidence or in calculating the sentencing guidelines range, or it might argue that the evidence submitted by the prosecution at trial is legally insufficient to support the conviction. In a direct appeal, neither party can submit new evidence to the appellate court; the record is limited to the evidence received by the trial court.

After the appellate court issues its decision, the losing party may file a petition for writ of certiorari (often called a cert petition) in the highest court of the jurisdiction—either the state’s highest court (often called a supreme court) or, if the criminal defendant was convicted in federal court, the U.S. Supreme Court. Unlike the intermediate appellate court, the supreme court is not required to hear all of the appeals filed before it; it gets to choose which cases it hears. So a good cert petition must convince the supreme court that it should decide the issues presented by the appeal. If the supreme court grants the cert petition, the parties will then have a chance to file briefs similar to those filed in the appellate court. The supreme court will hold an oral argument and then issue a decision. For federal criminal defendants, this is the end of the line for the direct appeal. For state criminal defendants, once the state supreme court denies relief, it’s possible to petition the U.S. Supreme Court for a writ of certiorari. But the issues that the U.S. Supreme Court can decide are limited to those involving federal law, such as violations of the U.S. Constitution.

If the direct appeal is unsuccessful, the next step is what’s often called a postconviction motion or collateral attack: a new, separate lawsuit filed in the trial court challenging some aspect of the criminal case. Generally, criminal defendants are limited to raising arguments that they couldn’thave raised in their direct appeal. One of the most common claims made in a postconviction motion is ineffective assistance of counsel, that is, that the defendant’s lawyer during the original criminal proceedings made a mistake that was so bad that the defendant’s constitutional right to the effective assistance of counsel was violated. This type of claim is generally raised in collateral attack, rather than on direct appeal, because the defendant needs to introduce additional evidence of the trial counsel’s ineffectiveness—and that evidence can only be submitted to the trial court, not to the appellate court. After the trial court rules on the postconviction motion, the same appeals process applies: first the intermediate appellate court, then a cert petition to the supreme court.

For those convicted in federal court, the postconviction motion is usually filed under 28 U.S.C. § 2255. For those convicted in state court, the precise direct appeal and collateral attack procedure will vary. Wisconsin has streamlined the process: under Wis. Stat. § 974.02, a criminal defendant can file a motion for postconviction relief before filing a direct appeal. The trial court will consider the motion, hold an evidentiary hearing if necessary, and then rule on the motion. Then, the criminal defendant can file a single appeal that both identifies errors made by the trial court in the original criminal proceeding and challenges the trial court’s denial of the postconviction motion filed under § 974.02.

After the appeal of the initial motion for postconviction relief is exhausted, things get even more difficult. For state criminal defendants, the next step is often to file a new, separate lawsuit in federal district court under 28 U.S.C. § 2254, a federal statute that sets out required procedures, rules, and standards for the kind of lawsuit traditionally called a petition for writ of habeas corpus. A § 2254 petition can only be filed by a state criminal defendant who is or will be in custody, that is, serving the sentence imposed by the trial court; defendants who have already completed their sentences cannot use § 2254 to challenge their convictions. And a § 2254 petition can only be used to challenge the conviction or sentence on the grounds that it violates the U.S. Constitution or federal law; state law claims can’t be made in a § 2254 petition.

Before filing a § 2254 petition, the criminal defendant must exhaust the remedies available in the state court by raising the challenge on direct appeal or in a postconviction motion that is then appealed. If the § 2254 petition contains a claim that was not first raised in state court proceedings, the federal district court will either refuse to consider it, or it may stay the § 2254 proceedings to allow the criminal defendant to go back to state court and litigate the claim there before returning to the federal proceedings. For those claims that were raised in the state court, the federal district court must review the claims with great deference to the state courts: usually, it must presume that the facts found by the state court are correct, and it may grant relief on a claim only if the final state court decision on the merits of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” § 2254(d)(1). If the federal district court denies the § 2254 petition, the defendant may appeal the decision to the federal circuit court and then file a cert petition in the U.S. Supreme Court.

After the appeal of the § 2254 petition is exhausted, the options for state criminal defendants are very limited. It’s possible to file a second postconviction motion in state court. In Wisconsin, this motion is usually filed under Wis. Stat. § 974.06. But most states, including Wisconsin, have rules barring criminal defendants from raising claims in a second or successive postconviction motion that could have been raised earlier in the proceedings. In general, this means that a second or successive postconviction motion will fail unless it relies on newly discovered evidence or a newly announced, retroactive rule of law—things that the criminal defendant couldn’t have raised earlier.

The options are similarly limited for federal criminal defendants who have struck out on their initial § 2255 motion. Just as with most states, federal law bars criminal defendants from raising claims in a second or successive § 2255 motion unless the claims rely on newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” § 2255(h). There is another potential option available: a petition under 28 U.S.C. § 2241 filed in the federal district in which the defendant is currently confined. But a federal criminal defendant may only file a § 2241 petition if § 2255 “is inadequate or ineffective to test the legality of his detention.” § 2255(e). The federal courts have not reached a consensus on what circumstances render § 2255 inadequate or ineffective, but the answers seem to range from “very rarely” to “never.” The mere fact that the defendant’s § 2255 motion was denied is not enough to render § 2255 “inadequate or ineffective.”

As this brief description of the postconviction relief process indicates, there are many procedural obstacles to obtaining a new trial or resentencing after the conviction is final, and the obstacles only grow greater with each new step. Even a strong claim that some aspect of the original criminal proceedings was unconstitutional may not be enough to obtain relief if the claim wasn’t properly presented at the earliest available opportunity.