Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: State court

Practical Tips for Federal Court

If you’ve ever been in Federal court in South Florida, you already know that there is a huge difference between State and Federal Court.  In keeping with the Federal bench Bar Conference that happened in West Palm Beach on Friday, April 27, 2012, I thought some practical tips might come in handy.

1.  If your client gets slapped with Federal criminal charges, or your civil case gets removed to Federal court, DON’T PANIC.

2.  For civil cases, the first thing you should do is familiarize yourself with the Local Rules for the Southern District.  They are available on the Southern District website.

3.  For criminal cases, you’ll need to call the Assistant United States Attorney (AUSA) assigned to the case to determine if he or she will agree to release your client on bond or whether the Government is seeking pre-trial detention.  Unfortunately for criminal defense lawyers and their clients, most criminal defendants, at least those that have their cases assigned to the West Palm Beach courthouse, have historically been detained without bond.  But, there is potentially some good news: with two new Magistrate Judges on the bench this year, maybe things will change.  After all, Magistrate Judge Brannon (already on the bench) is a former Federal P.D., and the next Magistrate Judge to be sworn in, Bill Matthewman, is also a former criminal defense lawyer.

4.  As your case progresses, some other things to keep in mind are:

(a) Try to keep phone calls to chambers to a minimum.  Scheduling of matters is, for the most part, handled through the courtroom deputy (CRD), not chambers. If you have to call chambers, be polite.  After all, the person answering the phone might be a law clerk who will be writing the order on your case!

(b) Don’t call chambers with questions like “what does the Judge want me to do,” or “how would the Judge like me to handle . . .”  As the lawyer on the case, it is your responsibility to figure things out for yourself.  Although many Judicial Assistants in State court will tell you what the Judge would like you to do, many chambers in the Southern District are required by the Judge to answer those kind of questions by simply referring you to the Local Rules.  Don’t take it personally.  Most Judges just want to avoid the possibility of ex parte communications.  Some Judges in the Southern District won’t even entertain calls to chambers or the law clerks.

(c) Don’t presume you’ll get a hearing on anything.  Most matters in Federal court are handled on the written pleadings only.  If you need a hearing, you must file a separate motion requesting the hearing.

(d) Since most matters are handled on the pleadings, put your best effort into your writing.  Say everything you need to say up front.  Acknowledge weaknesses in your case candidly, but then explain why those weaknesses should not affect the result in your case.  Be precise, be succinct, clearly cite all authorities and record references  in support of your position, and conclude.

(e) If a Magistrate Judge handles your motion/pleading, you will have the chance to file an objection within the requisite time frame (14 days).  The objection will then be handled by the District Court Judge, like an appeal.  If your pleading was disposed of by the District Court, you would appeal any rulings to the Eleventh Circuit, according to the Rules of Appellate Procedure.  For criminal cases, bond/detention orders are appealed to the District Court.

More tips to follow next time!

Review of the Merits of a Section 2254 Petition for Writ of Habeas Corpus: Childers v. Floyd, No. 08-15590, 2011 WL 2162083 (11th Cir. June 2, 2011)

Turning back once more to the topic of petitions for writ of habeas corpus, if a court determines that all the procedural requirements have been met, the court may then proceed to review the merits of the petition.  Under section 2254(d) (1)-(2), the petition shall not be granted with respect to any claim that was adjudicated on the merits in State court, unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or, “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Eleventh Circuit opinion of Childers v. Floyd, No. 08-15590, 2011 WL 2162083 (11th Cir. June 2, 2011), illustrates how difficult it can be to prevail on the merits of a habeas petition.  In 2001, while Childers had been serving as a County Commissioner for Escambia County, Childers and a fellow County Commissioner, Willie Junior, became involved in a kick-back scheme relating to the construction of a soccer complex owned by one Joe Elliot.  Junior entered a plea agreement with the State, and testified against Childers at Childers’ trial.  After Childers was convicted of bribery and unlawful compensation for official behavior, Childers was sentenced to 42 months’ incarceration.  Elliot was acquitted.  See Childers, 2011 WL 2162083 at *1-*6

Childers moved for a new trial, arguing that the trial court erred in part by violating his 6th Amendment confrontation rights.  The trial court disagreed, and Childers pursued his 6th Amendment claim through direct appeal and in his petition for writ of habeas corpus.  Even though Childers initially won a victory in his appeal to the Eleventh, the Court voted to rehear the case en banc, and ultimately affirmed the district court’s denial of Childers’ petition.  See Childers, 2011 WL 2162083 at *9-10.  In its rationale, the Court emphasized the long-standing principles of comity, and determined that the state court had properly adjudicated Childers’ claim on the merits.  See Childers, 2001 WL 2162083 at *10-*13.  Proceeding to the merits of the petition, the Court recalled the parameters of review under section 2254(d)(1), as well as the highly deferential review of state court factual findings.  See Childers, 2001 WL 2162083 at *13-*21.  After analyzing Childers’ claims in light of the “multiple layers of deference owed to the state court’s determination,” 2011 WL 2162083 at *22, the Court ultimately found that Childers was not entitled to habeas relief because Childers failed to show that the District Court of Appeal unreasonably applied federal law, or that the decision was contrary to clearly established federal law.

People should take two things away from the Childers opinion.  First, while prevailing on a petition for habeas corpus in the Eleventh Circuit is extremely difficult, it is possible.  Unfortunately, any victory may be short-lived.

Petitions for Writ of Habeas Corpus: Exhaustion and Procedural Bar

As I mentioned in my last post on petitions for writ of habeas corpus, petitions have to be timely filed.  In addition to timeliness, petitioners also have to consider the issues of exhaustion and procedural bar.

Exhaustion is a concept based on comity and federalism.  Although the Federal courts are available to consider Federal constitutional questions, the Federal courts do not sit in a strict appellate capacity over the State courts.  Generally, for the exhaustion element to be met, the petitioner must have presented any Federal constitutional claims to the State court, thereby allowing the State court the opportunity to review the claims first.  If the claims have not been presented to the State court, a Federal court may find that the claims have not been exhausted.  In such instance, the Federal court may dismiss the Federal 2254 petition without prejudice, so as to allow the petitioner to present, or exhaust, his claims in State court.  In addition, if a 2254 petition contains both exhausted and unexhausted claims, (otherwise known as a “mixed petition”), the 2254 petition may likewise be dismissed without prejudice.  A good discussion of these principles can be found in Thompson v. Wainwright, 714 F.2d 1495, 1503-1504 (11th Cir. 1983); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998); and, Bailey v. Nagle, 172 F.3d 1299 (11th Cir. 1999).

With regard to procedural bar, where a 2254 petitioner has failed to raise his or her Federal claims properly in State court, the Federal court may find that the petitioner is procedurally barred from raising the claims in Federal court, unless a petitioner can make a showing of cause for and actual prejudice from the default, or by establishing a fundamental miscarriage of justice.  See Bailey, 172 F.3d at 1306.  As noted in Bailey, 172 F.3d at 1302-1303, claims are generally procedurally defaulted in two ways: (1) where the State court correctly applies a procedural default principle of state law and determines that the Federal claims are barred; or, (2) where the petitioner never raised the claim in State court, and it is obvious that the unexhausted claim would be procedurally barred based on a State law procedural default.  Where unexhausted claims would be procedurally barred in State court, the Federal court may determine that such claims do not provide a basis for Federal habeas relief.  See Snowden, 135 F.3d at 736.

Nevertheless, where it would be futile for a petitioner to return to State court because procedural defaults bar any right to relief, the Federal court may determine that such futility is an exception to the exhaustion requirement, and decline to dismiss the petition.  See Bailey, 172 F.3d at 1306-1307 (Carnes, J. dissenting).

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Appeals in State and Federal Courts

Whether a party is in State or Federal court, whenever a court renders an adverse decision, a party should consider several factors in deciding whether to appeal the order, including: (1) whether there is a right to appeal the order; (2) when the appeal may be filed; (3) what are the time limits governing the appeal; (4) in which court will the appeal lie; (5) what is the applicable standard of review; and, (6) what are the costs associated with the appeal.

With regard to the right to appeal, parties should be aware that some orders may not be immediately appealable.  Rather, the rules may provide that the appeal may only be heard at the end of the case.

With regard to the time of the appeal and applicable time limits, the parties may wish to consult the appellate rules for guidance on the time in which notices of appeal, appellate briefs, and appeals-related motions should be filed.  Failure to follow the applicable rules may result in a party losing the appeal.  The Rules for the United States Court of Appeals for the Eleventh Circuit may be found here.  The Florida Rules of Appellate Procedure may be found here.

In determining where to file the appeal, appeals in both the State and Federal system generally lie with the next higher court.  For example, State court cases in the County Court may be appealed to the Circuit Court, and Circuit Court cases may be appealed to the District Court of Appeal.  Opinions rendered by any of the Florida District Courts of Appeal may be appealed to the Florida Supreme Court.  In the Federal system, orders issued by a United States Magistrate Judge may be appealed to the United States District Court, District Court orders may be appealed to the Eleventh Circuit, and opinions issued by the Eleventh Circuit may be appealed to the United States Supreme Court.

Standards of review on appeal include de novo and abuse of discretion.  A party should be aware that the likelihood of success on appeal may be determined in large part by the applicable standard of review.

Finally, a party should be aware that costs of an appeal may be substantial.  Prior to deciding whether to appeal, a party may wish to consider the costs associated with filing the notice of appeal, designating the record and transcripts, and filing briefs and motions.  Having counsel attend oral argument may also add to the cost of appeal.

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