SECOND CIRCUIT APPEALS

SECOND CIRCUIT APPEALS February 2015-1-

DISCLAIMER These materials were prepared in an effort to assist CJA counsel in understanding the rules applicable to Second Circuit appeals and to answer some of the questions that regularly arise about Anders briefs and petitions for certiorari. THIS IS ONLY A GUIDE TO POINT YOU IN THE RIGHT DIRECTION. Hopefully, these materials will help you to find the relevant rules and case law, but they are NOT intended to serve as a substitute for your own research. Every case presents its own challenges that may necessitate a different approach. These materials relate primarily to appeals filed in 2010 and later that are subject to the current e-filing rules. Local Rule 25.2 explains the procedures for emailing.pdf documents in hybrid cases filed before 2010. Please read the Federal Rules of Appellate Procedure and the Second Circuit s Local Rules thoroughly, and consult them each and every time you file an appeal. You may also consult with the Clerk s Office at the Second Circuit when you have specific procedural or technical questions. You should also consult the home page of the Second Circuit s website and review the Announcements before each filing: http://www.ca2.uscourts.gov/home.html The relevant rules and forms are perpetually changing. We have reviewed the versions that are current today, but you should always go to the Second Circuit website to download the newest version of a form when you prepare to file it and regularly check the Court s website for announcements. The Second Circuit has created its own publication that you can also rely on, called How To Appeal a Criminal Case. Feel free to call with any questions and we ll do our best to help. We also hope that you will contact us if you have anything to add to these materials or if you find any errors or changes as we hope to continually update them. -2-

1. Before You File an Appeal Admission to the Second Circuit In order to practice before the Second Circuit, you must be admitted to the Second Circuit Bar. Technically, you can be admitted pro hac vice on a case by case basis, and this will be liberally granted in cases where trial counsel wishes to continue in a case on appeal, but it is better to simply apply for admission to the Second Circuit. In order to apply for admission you will need to do the following: Register with PACER to file electronically in CM/ECF in the Second Circuit. Complete the application form provided on the Court s website http://www.ca2.uscourts.gov/clerk/attorneys/attorney_admissions.html Submit a certificate of good standing issued within the previous six (6) months from the primary court of admission listed on the application. Obtain a Sponsor who is a member in good standing of the Second Circuit bar who can prepare a motion for admission. Submit the application and all related materials electronically through CM/ECF and pay the $216.00 fee electronically. Retain the signed originals of all materials in the application packet for production upon the Court s request. Renewal of Admission Admission to the Second Circuit is not permanent; it must be renewed every five years. See Local Rule 46.1. A form is available for this purpose on the Second Circuit website. If you do not renew within 30 days of the deadline, you will be placed on inactive status; after 12 months on inactive status you will be removed from the bar of the Court and required to re-apply to practice. You can go to https://ecf.ca2.uscourts.gov/n/beam/servlet/transportroom?servlet=att_search.jsp to look yourself up on a list of admitted attorneys. This list will show you the date on which you were admitted, so you will know when you need to renew. To renew your admission, you must submit a renewal application and a $25.00 fee, both electronically. The application for renewal is here: http://www.ca2.uscourts.gov/clerk/case_filing/forms/pdf/attorney%20renewal%20form-i nstructions%20rev%201-23-14.pdf If you were admitted to the Second Circuit before 2009 and have never renewed your admission, you are likely considered inactive and should contact the Court. -3-

ECF Appellate Filing Registration Every attorney appearing in the Second Circuit must register for electronic filing with the appellate court. See Local Rule 25.1(b)(1). Your District Court ECF login will not work on appeals. As of 2014, a new NextGen system has been implemented which requires creation of a new ECF account and an upgraded PACER account. Instructions for creating an account are here: http://www.ca2.uscourts.gov/clerk/register_efiling_upgrade_pacer_acct.html Adobe Acrobat Software Upgrade All documents filed with the Second Circuit are now electronically filed. See Local Rule 25.1(c). No paper copies will be accepted (except required copies of briefs and motions). Electronically filed documents must be in Adobe.pdf format, and they must be optimized and text searchable. See Local Rule 25.1(e). That means you can not simply scan a hard copy on your copier and save it as a.pdf. You must optimize and OCR Scan the document using the Adobe Acrobat document production software. This is a very easy process that takes only a few minutes. If your document is not optimized and text searchable, it will be rejected by the Second Circuit, and you will have to correct the problem and refile. The free version of Adobe Acrobat Reader that most people have on their home computers will not perform the OCR function making the document text searchable. You will probably need to upgrade to Adobe Acrobat Standard. The software is available from www.adobe.com. 2. File the Notice of Appeal Time for Filing You must file the notice of appeal within 14 days of the entry of judgment. See Fed. R. App. P. (4)(b)(1)(A). Note that this used to be 10 days, from which weekends and holidays were excluded. The Rules have changed so that it is now 14 calendar days. The Rules provide that [a] judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket. Fed. R. App. P. 4(b)(6). This suggests that it is the filing in the docket of the written judgment that triggers the running of the 14 day appeal period, not the oral announcement of the sentence. Cf. United States v. Salerno, 794 F.2d 64, 68 (2d Cir. 1986) (reversed on other grounds, 481 U.S. 739) ( First, although the notices of appeal list the March 28 Order as among those of which review is sought, that order was never entered in the court s criminal docket. Instead, it apparently was superseded by the order dated April 2, 1986, which was embodied in the April 2 Opinion. The April 2 Opinion was entered in the criminal docket on April 7. Thus the 10-day appeal period began on April 7. ). -4-

However, the better practice is to file the notice of appeal within 14 days of the sentencing hearing. Docketing of the minute entry reflecting the imposition of sentence may also trigger the time for filing. There is no clear Second Circuit case law stating that 4(b)(6) refers solely to the written judgment imposing sentence, and some suggesting the contrary. See United States v. Isabella, 251 F.2d 223, 225 (2d Cir. 1958) ( Isabella was sentenced in open court on May 1, 1957. The time to appeal started running then and he had notice as he heard Judge Edelstein impose sentence upon him. ). At least one Judge of this Court has stated that the time starts running on the date of the sentencing proceeding. Extension of Time for Filing The period of time for filing an appeal may be extended by the District Court upon a finding of excusable neglect or good cause. Fed. R. App. P. 4(b)(4). The case law on what constitutes excusable neglect or good cause is not generous. However, such a request may be made of the District Court before or after the time for filing an appeal has expired. The Court may grant an extension of up to 30 days from the otherwise applicable deadline. Such requests have generally been granted in this District where counsel shows good cause, for instance, if the client is detained and counsel is unable to confirm the client s wishes regarding appeal within the allotted period, that has generally been sufficient to obtain an extension. Steps Required To File Notice of Appeal A Notice of Appeal form must be completed in full and filed with the District Court. The form is available on the Second Circuit website at http://www.ca2.uscourts.gov/clerk/case_filing/forms/pdf/form%20a%20revised%203-1 1.pdf Electronic filing of the Notice of Appeal will of course result in ECF service to all counsel, but it is a good practice to send a copy of the Notice to your client by regular mail. 3. Order Transcripts Initial Ordering Procedure Within 14 days of the filing of the Notice of Appeal, the appellant must order the transcripts that will be necessary for the appeal. Please note that in the case of an Anders brief, the plea transcript is always necessary, even if the defendant challenges only his sentence and not his guilt. See United States v. Ibrahim, 62 F.3d 72, 74 (2d Cir. 1995) ( [B]ecause the function of an Anders brief is to demonstrate that a conscientious examination of the record has been made and that there are no non-frivolous issues on which an appeal can be based, we believe that Anders briefs in the future should always contain a discussion regarding a guilty plea. ). -5-

There is a special form to be completed in ordering transcripts, rather than a section on the Notice of Appeal form itself. You must complete a Form B to order a transcript. Form B is available on the Second Circuit website at http://www.ca2.uscourts.gov/clerk/case_filing/forms/pdf/form_b_-_criminal_appeal_tr anscript_information_form_b_(december_2009).pdf CJA counsel must also complete a payment form, Form 24, available at http://www.ca2.uscourts.gov/clerk/case_filing/forms/pdf/cja24inst.pdf The Form B must be filed with the Court no more than 14 days after the filing of a notice of appeal. See Local Rule 12.2. There is a separate entry for this form on the ECF filing page in the category of Correspondence/Forms/Letters. The name of the court reporter will always be noted on the minute entry for a court proceeding. For ECRO monitors, you may need to inform both the monitor and the transcriber of the order. Transcript Follow-Up The Court now places on counsel the task of pursuing the court reporter until a transcript is received. Under Local Rule 11.3, the transcript must be received within 30 days of the court reporter s receipt of Form B. If the court reporter anticipates that the transcript will take longer to prepare, the reporter must file a request for an extension of time. If the transcript has not been received within 30 days, counsel must notify the circuit clerk in writing, and must update the circuit clerk in 14-day intervals until the transcript is filed. To do this, counsel should file a transcript status update letter with the Second Circuit. Please note that the transcript status letter is to be electronically filed in the category Correspondence/Forms/Letters under the designation Case Status Update Letter RECEIVED. Please note that the Court may reduce the fee paid for a transcript by 10% and then by 20% if the transcript is late. See Local Rule 11.3(d). The Court will also notify the District Judge of the delay. These rules result in more accountability for court reporters and may in certain cases lead to conflicts between court reporters and counsel. For this reason, it is particularly important to carefully document your order of the transcript and your efforts to obtain it after the order. 4. Prepare the Index to Record on Appeal Within 14 days of filing the Notice of Appeal, the appellant must file the Index to the Record on Appeal and do whatever else necessary to facilitate transmission of the record to the Second Circuit. The Index is to be filed with the District Court, enabling the -6-

District Court Clerk to assemble the record and forward it to the Court of Appeals. See Local Rule 11.1. Appointed counsel in CJA cases do not need to file an Appendix at the time the Brief is filed. Rather, the Index to the Record serves this purpose by directing to the Clerk s Office to transmit all relevant documents to the Court of Appeals. For that reason, it is important to carefully ensure that all relevant documents are included in the Index to Record on Appeal. If you miss something, or additional documents (e.g. transcripts) are filed later, you can file a supplemental Index to Record at any time. 5. The Acknowledgment and Notice of Appearance Form In the past, the Clerk s Office sent out a paper copy of the docket in each appeal with a form requesting that counsel confirm that the caption is correct and confirm his or her appearance. Now, this notice is sent by the Clerk s Office in electronic form only, so be sure to watch your email for it. The form must be completed and filed within 14 days. See Local Rule 12.3 There is a separate designation for this document on the ECF filing page in the category Correspondence/Forms/Letters. 6. Setting a Briefing Schedule The appellant must file a Scheduling Notification letter within 14 days of receipt of the transcript. There is an entry for the Scheduling Notification on the ECF filing page in the category Correspondence/Forms/Letters. The Scheduling Notification must indicate the date on which the appellant s brief will be filed. The selected date must be within 91 days (14 weeks) of the receipt of the completed transcript. (Note that the maximum 91 days runs from receipt of the transcript, not from filing of the Scheduling Notification.) The date selected by the appellant will be so ordered by the Court as long as it complies with this rule. See Local Rule 31.2. If no Scheduling Notification is filed in the allotted 14 days from receipt of the transcript, the Court Clerk will enter an order requiring the appellant s brief to be filed 40 days from the date the transcript was received. In cases with a voluminous record, the Court will entertain a request for a deadline longer than 91 days, but good cause must be shown for the extended deadline. Once the appellant s brief is filed, the appellee must file, within 14 days, its own Scheduling Notification, setting the filing date for its brief within 91 days of the filing of the appellant s brief. -7-

Any reply brief must be filed within 14 days of the filing of the appellee s brief. See Local Rule 31.2(a)(2). Once the Court has so ordered a deadline for the filing of a brief, no extensions of the filing deadline will be granted. See Local Rule 27.1(f). The only recognized bases for an extension of time to file the brief are serious personal illness or death in counsel s immediate family. This applies to both the appellant and the appellee. In light of this fact, it will generally be best to select the latest possible filing deadline, but to plan to file the brief at least a few days early, to provide a cushion in the event of an emergency. On March 18, 2011, the Court issued the following announcement on this issue: Denial of Requests to Extend Briefing. A party must file its principal brief by the date ordered pursuant to Local Rule 31.2. Because the Court's docket is current and the Court places cases on the calendar immediately after briefing concludes, the Court discourages and will deny requests to extend briefing time absent serious personal illness or death in counsel's immediate family as stated in Local Rule 27.1(f). The emphasis on the word deny is in the original notice to counsel. On May 10, 2013, the Court issued another announcement on this subject: Today the United States Court of Appeals for the Second Circuit issued an opinion entitled RLI Insurance Co. v. JDJ Marine, Inc., in which the Court declined to reinstate an appeal after a dismissal based on a party's failure to file a timely brief. All litigants are reminded that the Court does not grant a motion to extend the time to file a brief absent an extraordinary circumstance, such as serious personal illness or death in counsel's immediate family. See Second Circuit Local Rule (LR) 27.1(f). As underscored in the opinion, the press of other business is not an extraordinary circumstance justifying an extension under [the Court's] rules. In the event an extraordinary circumstance justifying an extension of time to file a brief does exist, a party must file the request to extend the filing time as soon as practicable after the extraordinary circumstance arises. See LR 27.1(f)(3). In sum: They re not kidding around about this. If you do experience the kind of extraordinary circumstance that would warrant an extension, you must move immediately for the extension. See Local Rule 27.1(f)(3). -8-

7. Filing the Brief & Appendix There are a great number of rules governing the form and contents of an appellate brief and appendix and they will not all be reproduced here. Be sure to check the Federal Rules of Appellate Procedure as well as the Local Rules to ensure that you are in compliance. In particular, Fed. R. App. P. 28 sets out the required elements of every brief, Fed. R. App. P. 32 discusses the form of the brief, and Fed. R. App. P. 30 sets out the rules governing the appendix. Some of the key rules governing appellate briefs are: The main brief may not be longer than 30 pages, or 14,000 words. There are strict limitations on which fonts may be used and how the letters/lines may be spaced. A certification that these limits have been complied with is required. References to the record must be to specific pages in the Appendix or, where no appendix is submitted, to the page in the original document. Every brief must contain a statement of jurisdiction, even if it is not contested. The brief must be accompanied by a certificate of service. Special service requirements apply to Anders briefs. Six paper copies of the brief and appendix must be filed with the Court, in addition to the electronic filing. The appellant s brief must have a blue cover. Pursuant to Fed. R. App. P. 30(f) and Local Rule 30.1, an appendix need not be filed in most cases that are proceeding IFP that includes CJA cases. However, an appendix may be filed in such cases where counsel believes it is important to draw the Court s attention to a particular document or portion of the record. If you do not file an appendix, you need to attach the Order or Judgment appealed from as an exhibit to your brief, and it is wise to file a letter notifying the Case Manager that you are not filing an appendix, in accordance with Local Rule 30.1. There are several rules relating to the.pdf formatting of documents filed with the Second Circuit that must be observed. Some are discussed above under upgrading your software. All documents must be text searchable and page numbering must be matched between the hard copy and the.pdf copy. The Court s website has useful tips on accomplishing these tasks: http://www.ca2.uscourts.gov/clerk/case_filing/electronic_filing/how_to_use_cmecf/worki ng_with_pdfs.html -9-

8. Oral Argument Oral argument will not be granted automatically in all cases. See Local Rule 34.1. If you wish to seek oral argument, you must file an Oral Argument Statement within 14 days of the filing of the appellee s brief. This form is available on the Court s website at http://www.ca2.uscourts.gov/clerk/case_filing/forms/pdf/oral%20argument%20statement %2012-2011.pdf The form indicates that if it is not timely filed, oral argument will not be granted. Even if you request oral argument, it will not always be granted. At a meeting with several of the Second Circuit Judges in 2008, we were told that not requesting oral argument sends a message to the Court that the non-requesting party does not feel strongly about the merits and/or strength of his case. Their recommendation was that the parties should always request argument. 9. Reply Briefs A reply brief may be filed by the appellant within 14 days of the filing of the appellee s brief. The reply brief may not exceed 15 pages, subject to the same restrictions on spacing and font as apply to the main brief. The format of a reply brief is described in Fed. R. App. P. 28 and 32. A reply brief is not required, but at least one former Judge of the Second Circuit always began his analysis of each case by reading the reply brief, and several other Judges have recently informed us that they feel not filing a reply brief signals a weakness in the appellant s case. Passing up the opportunity to file a reply would be a mistake. A reply brief should have a gray cover. To the extent a supplemental brief is filed, the cover should be tan. 10. Miscellaneous Defective Documents If you file a document in the ECF system that is somehow not quite right, you will get a defective document notice. It is worth reviewing the notice if only to be reminded of all of the details that must be checked before a document is filed. The notice generally allows a set period of time, from a few days up to one week, to cure the defective filing by re-filing. It is possible that in some cases the curing period may be different. When you re-file, you simply file the replacement document as though you were filing it for the first time. If it is successful, you will receive an email -10-

notification that the error has been cured. Certificate of Service The Second Circuit provides a certification page on its website at http://www.ca2.uscourts.gov/clerk/case_filing/forms/pdf/certificate_of_service.pdf There s no harm in using the Court s version of the form, and if you do so, you can at least be assured it is sufficient. Even when submitting a letter, it is worthwhile to attach this form as a formal certificate of service, rather than simply listing the names and addresses you are sending to. This is a fillable.pdf form which makes it very easy to work with. Hyperlinks Since you will be filing briefs electronically, you have the ability to include hyperlinks in the text of your document that may be helpful to the Court (specifically, to the law clerk) in accessing information you feel is important. For instance, you can cite to a website inside your document like this: The Second Circuit has made many of its forms available at http://www.ca2.uscourts.gov/clerk/case_filing/forms/forms_home.html. You can also cite to a different portion of your own document like this: As noted above, none of this will work if you are not registered with the appellate ECF system. Local Rule 25.1(i) states that a hyperlink does not replace a normal citation. Also, bear in mind that some Judges will probably view your document only in printed form. Joining the Second Circuit CJA Panel Being a member of the CJA Panel for the District Court does not automatically make you a member of the Second Circuit CJA Panel. Information on the Second Circuit Panel is available here: http://www.ca2.uscourts.gov/clerk/attorneys/cja.html Anders Briefs Under Second Circuit rules, if you were counsel to a client in the District Court, you are automatically continued as counsel and obligated to represent your client on appeal until and unless you are relieved by the Court. See Local Rule 4.1(a). Sometimes, that means you have to file an Anders brief. Nobody wants to file an Anders brief it s contrary to everything we do as defense lawyers. In many cases, you will be able to make a reasonableness argument about the sentence that allows you to file a substantive appeal, even when you have very little hope that it will succeed. If there is a colorable argument, it is preferable to file a substantive brief. In most cases, it will also be the less burdensome task. But sometimes you may determine that you have no option other than -11-

to file an Anders brief and move to withdraw. There are a variety of requirements that are unique to the filing of an Anders brief. The Second Circuit has provided a publication that does an excellent job of laying out the process. http://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_case/pdf/anders%20brief%20instruc tions%20and%20checklist%20combined%2010-11.pdf The basics are these: 1. You must file a motion to be relieved as counsel with your brief. This motion is subject to all of the requirements that apply to other motions filed in the Second Circuit. 2. You must file an affidavit with your brief that states: A. The basis of the motion to withdraw. B. The fact that you have informed your client that you have filed an Anders brief, that this filing will probably result in dismissal of the appeal and affirmance of the conviction, and that he has the right to request new counsel or to file a pro se brief with the Court. 3. You must include a copy of the PSR in a special sealed appendix to the brief and, if the sentence was outside the advisory guidelines range, a copy of the Statement of Reasons as well. 4. You must send copies of the brief, the motion to be relieved as counsel, and the scheduling order to your client by certified mail. 5. You must inform your client that he has the right to submit a pro se brief arguing that there is a basis for appeal, and that if he intends to do this, he must notify the Court within 14 days of his receipt of the Anders brief of his intention, and he must set forth a date by which he will file his pro se brief that is within 91 days of his receipt of the Anders brief. 6. You must make a conscientious examination of the whole record and determine that no non-frivolous basis for appeal exists. This includes an examination of the guilty plea proceeding, even if your client has only instructed you to challenge the sentence. 7. Your brief must clearly and carefully analyze each required element of a plea proceeding under Rule 11 and confirm that there was no error in the colloquy. It must also analyze the procedural and substantive reasonableness of the sentence. If the Anders brief does not, in the Court s view, adequately address the required elements, the Court may (1) require additional briefing; (2) deny the motion; or (3) appoint new counsel. -12-

In the alternative, if you believe your client wishes to assert a claim on appeal of ineffective assistance of counsel, that creates a conflict for you, and you can move to withdraw. Such motions should be filed immediately upon the appeal being docketed with the Second Circuit. If a defendant is seeking to appeal a sentence that is within the appeal waiver, the only basis on which the waiver can be avoided is generally a claim that counsel was ineffective in negotiating the waiver or in counseling the client about the waiver. Thus, any case in which a client is seeking to appeal a sentence that is within the waiver is one in which you should be able to move to withdraw on the grounds of conflict, without preparing an Anders brief. Petitions for Rehearing and for Certiorari If you lose on appeal, there are three options for challenging the panel s decision: 1. Petition for rehearing by the panel You can request that the original panel deciding your appeal reconsider its decision by filing a petition within 14 days of the issuance of the decision. See Local Rule 40.1, Fed. R. App. 40. The wording of the federal rule suggests that this petition is intended to apply where the panel overlooked or misapprehended a significant point, not simply where the parties are dissatisfied with the outcome. The Local Rules provide that a party may be sanctioned for filing a frivolous motion for rehearing. See Local Rule 40.1(d). 2. Petition for rehearing en banc You can request a rehearing by the full Court sitting en banc by filing a petition with 14 days of the issuance of the decision. A petition for rehearing en banc is appropriate, according to Fed. R. App. P. 35, only where the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed or involves one or more questions of exceptional importance. If both a petition for rehearing by the panel and a petition for rehearing en banc are being sought, they must be filed jointly in a single filing. See Local Rule 35.1. 3. Petition for a writ of certiorari You can appeal the Second Circuit s decision to the U.S. Supreme Court by filing a petition for a writ of certiorari. A petition for a writ of certiorari must be filed within 90 days from the date of the entry of judgment or the denial of a petition for rehearing. The Supreme Court s website, www.supremecourt.gov, provides detailed filing information. A publication is available entitled Guide to Filing In Forma Pauperis Cases as well. Under the Second Circuit s CJA Plan, appointed counsel are required to inform the client in writing of the Court s decision on an appeal, and advise the defendant of his right to petition for a writ of certiorari, as well as the likelihood of success of such a petition. If the client requests that counsel file a petition for certiorari, -13-

counsel is required to do so unless relieved by the Court. The Second Circuit s CJA plan states that a motion to be relieved of this duty on the grounds that any such petition would have no likelihood of success may be filed with the Court within 10 days of the ruling. If such a motion is granted, counsel must advise the client in writing of the ruling and of the procedures for filing a petition or a writ of certiorari pro se within 48 hours. [Please note that as of this writing, the version of the Second Circuit CJA Plan posted on the District of Connecticut website was outdated; you should go here to read the current version on the Second Circuit site.] Please note that the date of the issuance of judgment is not the same as the date of the mandate. The mandate is issued 21 days after the judgment in most cases. The deadline for filing the above petitions runs from the date of judgment, not from the date of the mandate. The same is true of the deadlines for filing petitions for a writ of habeas corpus. -14-