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Federal Court Criminal Appeals in South Carolina

Overview

What follows is an overview of the post-conviction process for individuals convicted in federal court in South Carolina. After an individual is convicted in federal court, he will have two main appellate procedures available to him that he can utilize to attempt to get his conviction reversed. Before discussing those two procedures in detail, it is worthwhile to note that these procedures do not (and cannot) result in the reviewing court modifying or reducing the defendant’s sentence in any way. Each of the procedures discussed below will result in the defendant’s conviction and/or sentence being reversed, if successful. In other words, these procedures allow the defendant to argue that he is entitled to a new trial or a new sentencing proceeding. If he prevails on these claims, the case is sent back to the federal district court, and the trial and/or sentencing proceedings are repeated from the beginning.


The post-conviction procedures are broken down into the following two phases. It is almost always in a defendant’s best interests to complete each step in sequence, for a variety of reasons.

Direct Appeal

Stage One

2255 a.k.a. Habeas Corpus

Stage Two

Direct Appeal

After an individual is convicted and sentenced, his attorney must file a Notice of Appeal in the district court. This removes the case from the local district court and sends it to the Fourth Circuit Court of Appeals in Richmond, Virginia. Once the case arrives there, the parties must submit written briefs to the Court explaining their position. The defendant will ask the Court to reverse his conviction, whereas the Government will argue that the defendant’s conviction should remain in place.

On direct appeal, a defendant may only argue about issues that appear in the transcript of proceedings at trial (note that except in very rare circumstances, a person who pleads guilty will not file a direct appeal – they will instead proceed directly to phase 2, 2255 a.k.a. Habeas Corpus). During the direct appeal phase, there are no hearings, no trials, and no opportunities to add anything to the record that wasn’t already presented to the district court. As a result, the defendant is typically limited to complaining about rulings made by the trial judge during their trial.

Examples of things that a defendant can complain about on direct appeal:

  • The Judge’s denial of a motion to suppress evidence.
  • The Judge’s denial of a pre-trial ruling to exclude or admit certain kinds of evidence.
  • The trial Judge sustaining (agreeing with) an objection made by the prosecuting attorney, when the objection was incorrect.
  • The trial Judge overruling (disagreeing with) an objection made by the defense attorney, when the objection should have been sustained (agreed with).
  • The trial Judge incorrectly instructing the jury on the law.
  • The trial Judge refusing to give an instruction to the jury that was requested by the defense attorney.
  • The trial Judge failing to grant a directed verdict to the defendant, in cases where there was no evidence to support a particular charge.
  • The trial Judge allowing expert witnesses to testify who were not qualified.
  • The Judge allowing the prosecutor to present harmful evidence about the defendant’s character or background.
  • The trial Judge making improper comments to the jury, or in front of the jury.
  • The trial Judge’s incorrect calculation of applicable guideline ranges for sentencing purposes.
  • The trial Judge’s failure to properly articulate the basis for the defendant’s sentence (see 18 U.S.C. § 3553), especially in situations where the Judge imposes an above-guidelines sentence.

Examples of things that a defendant typically cannot complain about on direct appeal:

  • The defense lawyer’s failure to investigate the case.
  • The defense lawyer’s failure to call witnesses.
  • The defense lawyer’s failure to object to improper evidence, testimony, or comments by the prosecutor.
  • The defense lawyer’s failure to communicate with the client, visit him at the jail, or present the correct defense at trial.

After briefs have been submitted to the Fourth Circuit Court of Appeals, they will issue a decision. The Court of Appeals will either affirm the defendant’s conviction (keep it in place), or reverse the conviction (undo the conviction and/or sentence). In either case, the losing party may want the Supreme Court of the United States to review the decision: if the Government loses, they will ask the Supreme Court to take the case and reverse the Court of Appeals’ decision (putting the defendant’s conviction back in place)… If the defendant loses, they will ask the Supreme Court to take the case and reverse the Court of Appeals’ decision (reversing the defendant’s conviction and sentence).

The Supreme Court of the United States does not review every case presented to it. People who want them to review a case file what is called a “petition for writ of certiorari.” This document, which the party files in the Supreme Court, essentially asks the Court to take the case. The Supreme Court is authorized to review whatever cases it chooses to. The majority of petitions for certiorari are denied. However, if the Supreme Court feels that the Court of Appeals made the incorrect decision, or if the Supreme Court feels that the case presents an important issue of law, it may grant the petition for certiorari, which means that it agrees to review the case. If the Court grants the petition, both parties file briefs in the Supreme Court, and the parties await the Court’s decision, as they did before the Court of Appeals. If the Supreme Court denies the petition, and refuses to hear the case at all, the defendant’s case is sent back to the trial court for further proceedings (phase 2). If the Supreme Court grants the petition and hears the case, and the Supreme Court ultimately reverses the defendant’s conviction, his case will be scheduled for a new trial. If the defendant’s conviction is affirmed, he must commence with further proceedings (phase 2 of the post-conviction timeline).

Federal Habeas Corpus

A federal habeas corpus petition, commonly referred to as a “2255” is a document that is filed in the same court where the defendant was convicted. A 2255 is a pleading that alleges that the defendant is being held in federal prison in violation of his constitutional rights. In other words, the circumstances that caused him to be convicted (and sentenced to prison) included a violation of the defendant’s rights. Most 2255 claims will arise from the Sixth Amendment of the United States Constitution. Among the guarantees of the Sixth Amendment is the right to be represented by an attorney at trial. In the landmark case of Strickland v. Washington, the Supreme Court of the United States held that in cases where a defendant’s attorney does something during the course of representation (including during trial) that is objectively unreasonable, for all practical purposes it may be the equivalent of the defendant having no attorney at all, which is a violation of the Sixth Amendment. To win a 2255, the defendant must show not only that his trial attorney made a big mistake, but that this mistake likely contributed to the defendant’s conviction. In other words, you must show more than just a mistake by the trial lawyer – the mistake must be something that, if the attorney had NOT made it, the defendant may not have been convicted at all. It is a very high bar, but it is not insurmountable.

When a defendant files a 2255, the case may be scheduled for a hearing before a district court Judge. At the hearing, the defendant’s new lawyer will typically subpoena the defendant’s prior lawyer, and have him or her testify about the things that they did during the course of the representation. The 2255 lawyer also has the opportunity to present new evidence, witnesses who were not called at trial, or any other evidence that the lawyer believes should have been presented during the defendant’s trial.

Examples of things that a defendant can complain about during a 2255:

  • The defense lawyer’s failure to investigate the case.
  • The defense lawyer’s failure to call key witnesses (including alibi witnesses).
  • The defense lawyer’s failure to object to improper evidence, testimony, or comments by the prosecutor.
  • The defense lawyer’s failure to present a valid legal defense at trial.
  • The defense lawyer’s failure to request jury instructions at trial.
  • The defense lawyer’s conflict of interests which should have caused him or her to withdraw from the case.
  • The defense lawyer accidentally presenting evidence or testimony that was harmful to the defendant.
  • The defense lawyer advising the defendant not to testify at trial, when the defendant’s testimony was necessary in order to raise a legal defense.
  • The defense lawyer advising the client to reject a pre-trial plea offer based on the lawyer’s misunderstanding of the law (including incorrect advice regarding the sentencing ranges that the defendant would be subject to if he or she were convicted, or incorrect advice regarding the guideline ranges).
  • The defense lawyer’s failure to inform the defendant of a plea offer that the defendant would have accepted if he or she knew about it.
  • The defense lawyer’s failure to have a competency evaluation, if the defendant was not legally competent to stand trial.
  • The defense lawyer’s failure to request a charge on a lesser offense.
  • The defense lawyer’s failure to properly advise the defendant about the guideline ranges in his case.

In cases where the client pleads guilty prior to trial, the defense lawyer’s failure to make the court aware of the terms of the plea agreement, or failing to object when the prosecutor did not abide by the agreed-upon terms.

Ultimately, the Judge will issue a written order which either denies or grants the defendant’s 2255 petition. If the Judge grants the petition, the Government will typically try to appeal that decision (asking the higher court to reverse the district court Judge’s decision and reinstate the defendant’s conviction). Alternatively, in cases where the district court Judge denies the defendant’s petition, the defendant may be able to appeal that decision (asking the higher court to reverse the district court Judge’s decision, and in turn to reverse the defendant’s conviction). So, in many cases, a 2255 proceeding will be following by an appeal from the district court Judge’s ruling. This process proceeds in a similar fashion to the phase 1 direct appeal procedures described above (including the potential further appeal to the Supreme Court of the United States, if the Court of Appeals denies relief).