Sixth Circuit Federal Criminal Appeals for Appointed Counsel

Counsel’s Responsibilities – 6th Cir. R. 12(c) Trial counsel must file a notice of appeal if client requests it. Trial counsel must continue representation on appeal unless relieved by the court. The 6th Circuit appoints trial counsel as appellate counsel when the notice of appeal is filed. Appellant need not provide further proof of indigence. Appointed counsel must file a petition for a writ of certiorari in the Supreme Court if the client requests it and, in counsel’s considered judgment, there are grounds for seeking Supreme Court review.

Four Methods of Withdrawal – 6th Cir. R. 12(c)(4) Proof that new counsel has been retained to represent the defendant, including a signed appearance by new counsel. If the defendant is indigent and seeks the appointment of counsel pursuant to the Criminal Justice Act application must first be made to the district court for leave for the defendant to proceed in forma pauperis. Voluntary dismissal of appeal with signed affidavit from client. File an Anders brief with proof that counsel served the defendant with the brief and notice of 21 days to respond. A statement why it’d be “unethical, unfair, or unreasonable” for counsel to continue. Must notify client of 14 days to respond to statement. (rarely used)

procedural basics – notice of appeal 14 days to file notice of appeal from entry of judgment or order being appealed (or from government’s notice of appeal) Filed with district court Time extended by timely motion for judgment of acquittal or for new trial. If filed before those motions are decided, it doesn’t become effective until the outstanding motions are ruled on. District court may extend time due to excusable neglect or good cause – before or after the time has expired – but only up to 30 days from the expiration of the 14 days. FRAP 4(b)(4). Rules are different for habeas cases, 60 days to file notice (consult FRAP 4)

Procedural Basics – Ordering Transcripts Appellant’s duty to order transcripts within 14 days after filing notice, or tell court that no transcripts need to be ordered - FRAP 10(b) Order unprepared transcripts through Sixth Circuit CM/ECF system Make sure your transcripts have the “Pg ID” number

Procedural BAsics Record on Appeal (FRAP 10) – No need to forward record, designate documents in brief. Easiest way to add exhibits to the record is to file a “Notice of Exhibits Filed for Appeal” Occasionally, an appendix may be appropriate for certain sealed documents not included on the district court’s docket. Watch deadlines closely. Unless appeal is expedited, two extensions are commonly allowed. Must include a request for oral argument Trend away from oral argument: 74% of federal appellate cases resolved w/o argument

Motion practice Look at FRAP 27, and Sixth Circuit Rules A separate brief “must not be filed” A proposed order is not required Responses to motions due within 10 days 20 page limit

Motion Practice – Common Motions Motion to withdraw – Anders briefs (6th Cir. R. 12) Motion to voluntarily dismiss appeal – *affidavit needed from client (FRAP 42) Motion for release pending appeal (FRAP 9) Motion for a stay pending appeal (FRAP 8) Must first move in district court or show it’d be impracticable Petition for panel rehearing (FRAP 40), Petition for rehearing en banc (FRAP 35) 14 day deadline, must state with particularity each point of law or fact court overlooked, no oral argument or response unless the court orders otherwise

COMMon Types of Appeals Government Appeals Interlocutory appeals of district court orders to (1) suppress evidence, (2) dismiss indictment, (3) grant pretrial release. Appeals of sentencing decisions (when no appeal waiver). Defense Appeals Interlocutory appeals of orders for pretrial detention/competency. Appeals from final judgment in jury trial. Sentencing issues – Although it is common to waive right to appeal sentence in Rule 11 agreement, attorney must still file notice if client requests.

Standards of Review - FRAP 28(a)(8)(B) For each issue the argument must contain a concise statement of the applicable standard of review. It may appear in the discussion of the issue or under a separate heading placed before the discussion In the light most favorable to the government (sufficiency/suppression arguments), Clear error (factual findings), Abuse of Discretion (evidentiary rulings), De Novo (legal issues raised in the district court), Plain Error (legal issues not raised in the district court)

Parts of Briefs – FRAP 28 Table of Contents / Table of Authorities Jurisdictional Statement Statement Regarding Oral Argument Introduction (Optional) Statement of the Case / Statement of Facts Summary of the Argument Standard of Review Legal Argument Conclusion / Request for Relief Certificate of Compliance Designation of District Court Documents

General Tips Preserve your issues Emphasize quality over quantity – better to present a few strong issues Start with facts and work towards the law The best proofreader is anybody but you Henry Bemporad, Tips for Handling Federal Criminal Appeals https://www.fd.org/docs/select-topics---appeals/tips-for-handling-appeals.pdf Alan Dubois, A "Devil's Advocate" Approach to Brainstorming: Ten Unconventional Ideas That Will Help You Write a Better Brief on Appeal, https://www.fd.org/docs/select-topics---appeals/a-devil's-advocate.pdf