Federal Criminal Appeals — A Specialized Practice
A federal criminal appeal is not a second trial. It is a specialized legal proceeding governed by strict procedural rules, unforgiving deadlines, and standards of review that heavily favor the government. Effective appellate advocacy requires a different skill set than trial advocacy — identifying preserved error, framing the standard of review, and presenting the record in a way that persuades three judges to overturn the decision below.
John Kirby has argued before the Ninth Circuit Court of Appeals and understands what it takes to win on appeal. He also recognizes when an appeal is unlikely to succeed and can advise clients honestly about their prospects.
Criminal Appeals Practice
- Direct appeals to the Ninth Circuit — Challenging convictions, sentences, and pretrial rulings. The notice of appeal must be filed within 14 days of entry of judgment. Missing this deadline is jurisdictional — the right to appeal is lost forever.
- Sentencing appeals — Challenging guideline calculations, upward departures, and substantively unreasonable sentences. Post-Booker, the Guidelines are advisory, but many district courts still treat them as presumptively reasonable. Sentencing errors must be preserved at the district court level — one reason why trial counsel's performance matters so much.
- Interlocutory appeals — Limited circumstances where a ruling can be appealed before final judgment. Bail determinations, suppression rulings in limited circumstances, and double jeopardy claims.
- Petitions for rehearing and rehearing en banc — When a three-judge panel gets it wrong, the next step is seeking review by the full Ninth Circuit.
- Cert petitions to the U.S. Supreme Court — In appropriate cases, seeking review from the Supreme Court of the United States.
Post-Conviction Relief
- Habeas corpus — 28 U.S.C. § 2255 — The primary vehicle for challenging a federal conviction after the direct appeal is complete. Common grounds include ineffective assistance of counsel, prosecutorial misconduct, and newly discovered evidence. § 2255 has a one-year statute of limitations with limited exceptions.
- Ineffective assistance of counsel claims — The most common ground for post-conviction relief. Requires showing both deficient performance and prejudice under Strickland v. Washington. Trial counsel who failed to file a notice of appeal when instructed is per se ineffective.
- Sentence reduction motions — Compassionate release, § 3582(c)(2) amendments to the Sentencing Guidelines, and First Step Act retroactive applications.
- Writs of coram nobis — For challenging a conviction after the sentence has been fully served and the defendant is no longer in custody.
- Writs of audita querela — A rare common-law writ used to challenge a judgment when no other remedy is available.
Critical Deadlines
- Notice of appeal: 14 days from entry of judgment
- § 2255 motion: 1 year from the date the judgment becomes final (with limited exceptions)
- Ninth Circuit opening brief: 40 days from the notice of docketing
- Petition for rehearing: 14 days from entry of judgment (Ninth Circuit)
These deadlines are jurisdictional. Missing one means the appeal or motion is lost forever. If a conviction or sentence is less than 14 days old, call immediately.