Were you or a loved one convicted of a crime in federal court in the state of California? Did the court treat you unfairly or unjustly?
It may be possible to reverse the court’s conviction (and/or the judge’s sentence) by way of a federal criminal appeal.
We are a statewide law firm of criminal defense lawyers that helps clients to pursue appeals at the state and federal levels.
We have a great deal of experience in the federal courts. We know how to navigate the intricacies and bureaucracy of the federal system in order to give our clients the best chance at success.
Below, our California criminal appeals attorneys explain the federal appeals process in California by addressing the following:
- 1. A basic overview of appellate law
- 2. Comparing & contrasting federal vs. California state appeals
- 3. The appellate process in California federal courts
- 4. The appellate process in California federal courts
- 5. Waiving your right to appeal by entering a guilty or nolo contendere “no contest” plea
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
If you got unjustly convicted or sentenced, the law provides an avenue of recourse. This recourse — known as an appeal — is a request for a higher court to review the proceedings that took place in the lower court.
This request first goes to an appellate court and later, possibly, to a supreme court. These courts differ, depending on whether you were convicted in state court or federal court. In either event, a request for an appeal is not a request for a new trial.
The court of appeals does not
- consider any new evidence,
- listen to new witness testimony, or
- retry the case.
The federal criminal appeals court simply reviews the records from the lower court’s proceedings in an effort to determine if there were any “prejudicial legal” errors that must be corrected to ensure a more just resolution. “Legal errors” are occurrences in the trial process that do not comply with state or federal law.
An error is “prejudicial” if it probably affected the outcome of the case.1
Example: The federal judge wrongfully allows a hearsay witness to testify for the prosecution. The testimony turns out to be very damaging to the defense. Aside from the hearsay witness, the U.S. Attorney has a relatively weak case. The jury nevertheless convicts.
The federal appeals court will likely overturn the conviction. Admission of the evidence was a legal error by the judge. The error was prejudicial because without the erroneously admitted evidence, the jury may not have convicted the defendant.
The federal appeals process is very similar to how to appeal a California criminal conviction. Both systems follow the same general course which begins with
- a notice of appeal, followed by
- written briefs,
- oral argument and, if necessary,
- a request for review,
all of which are explained in Section 3. The California Federal Appellate Process.
In addition, the grounds for appealing a California conviction are similar to the grounds for appealing a federal conviction. These grounds include any legal errors that — if not committed — would likely have produced a more favorable outcome. The errors could have been made:
- at the pretrial hearing,
- during trial, or
- at the time of sentencing.
Yet several differences exist between the federal and state systems.
The first major difference between the two court systems is where you go to file your appeal. You file
- a California misdemeanor appeal with the “Appellate Division of the Superior Court” and
- a felony appeal with the California Court of Appeal.”2
However, if you are appealing a conviction for a federal crime, you would file your appeal first with the United States Court of Appeal for the Ninth Circuit. If the Ninth Circuit decides against you, you could seek recourse to the Supreme Court of the United States.
A second major difference deals with terminology.
- In state court, the party filing the appeal is known as the “appellant,” and the party opposing the appeal is known as the “respondent”.
- In federal court, the party filing the appeal is also known as the “appellant,” but the opposing party is referred to as the “appellee”.
Sometimes for clarity, the court refers to the parties — and the parties refer to themselves — by their actual names or by “petitioner” for the appealing party and either “warden” or “state” for the appellee.3
A third difference goes to the means of seeking an appeal to the supreme court.
- In the California system, if the Appellate Division of the Superior Court or the Court of Appeal rules against you, you may file a petition for review with the California Supreme Court.
- In federal court, if you wish to contest the Ninth Circuit Court of Appeal’s ruling, you must file what is known as a writ of certiorari.
A petition for a “writ of certiorari” is a request for the Supreme Court to review the lower court’s decision to determine if there were, in fact, legal errors that it should remedy. If the court grants this writ — which the vast majority of times it does not — the court will establish a schedule for you to file your briefs and present your oral argument.
If the Supreme Court denies your writ of certiorari, this means it declines to hear your case and the Federal Circuit Court decision stands.
If you were convicted of a federal crime — that is, a crime that
- violates federal law (most commonly prohibited under Title 18 of the United States Code),
- crosses state lines (such as many types of fraud offenses), and/or
- is committed against federal property or federal employees.
you would file your appeal in the Ninth Circuit Court of Appeal. This appeals court serves nine western states including California.
The fact is that most criminal defendants end up in state courts. However, there are still a large number of defendants who are charged with federal crimes, which is why it is still important to understand the federal appellate process should you find yourself being prosecuted within this system.
The first step we take when handling your California federal appeal is to file your “Notice of Appeal“. Federal Rules of Appellate Procedure require that we file this notice with the court within 14 days of
- the entry of either the judgment or order that we are appealing, or
- the filing of the government’s notice of appeal (in cases where the government is the appellant).4
If you can demonstrate excusable neglect or good cause, the court may grant a 30-day extension on the above limits.5
As California federal appeals lawyer John Murray6 explains,
“This is why it is so important to make sure that if you are planning on appealing your case, you immediately consult with a skilled California federal appellate attorney. Timeframes and deadlines for filing California appeals are critical, whether in the state or federal system — waiting too long to do so could jeopardize your opportunity to pursue your case.”
If you are incarcerated — and wish to file a notice of appeal from prison — as long as you deposit your notice in the institution’s internal mail system on or before the last day of filing, the federal court will accept it as timely.7
In order to benefit from this rule, you must offer a written declaration or a notarized statement, stating
- the date you placed the notice in the institution’s mail system and
- that you prepaid first-class postage.8
If you accidentally file your notice with the California Court of Appeal instead of with the federal Ninth Circuit Court of Appeal, the court will not hold that against you as long as the clerk of the California Court of Appeal receives it within the proper timeframe. They will then send it to the federal court for filing.9
While your appeal is pending, you may wish to ask the federal court to
- set bail,
- reduce bail, or
- release you OR (that is, release you solely based on your promise to reappear).
We can help by filing a motion for
- bail pending appeal or
- revocation of bail pending appeal.
There are certain technical requirements that must accompany this motion. Failure to comply with these rules could lead the court to conclude that the motion was filed merely to delay your incarceration in violation of the law.10
This is another reason why it is critical to seek representation from a skilled California federal appeals attorney who has an in-depth knowledge of the complex rules that govern federal appeals in California.
Once we have filed your notice of appeal, we must begin compiling the record on appeal. The “record on appeal” consists of
- the original papers and exhibits filed in the federal district court,
- the transcript of proceedings (if any), and
- a certified copy of the docket entries prepared by the district clerk (that is, the clerk who handled the trial proceedings).11
The Federal Rules of Appellate Procedure require that within 14 days of filing your notice of appeal we
- order a reporter’s transcript pertaining to the parts of the proceedings that are not already on file and which we consider necessary to present a proper appeal,
- file a statement of the issues that we intend to present,
- make arrangements to pay for the transcripts.12
With respect to the third requirement, indigent defendants — that is, those who cannot afford to hire a private attorney — are entitled to
- a free copy of the reporter’s transcript and, for that matter,
- the appointment of counsel to represent them on appeal.13
The California Appellate Project is the agency that works with indigent defendants for state appeals. However, the district courts use federal public defenders and community public defenders for these services.
If transcripts are not available, we may prepare a statement of the evidence or proceedings from the best available means, which includes your recollection of the proceedings. Once we serve the opposing party with a copy, they are free to object to or amend the statement.
Once both parties agree, we submit the final proposal to the trial court for review.14
Because the federal court of appeals does not consider new evidence, the appellant’s brief is the most important part of the appeal. The brief is our opportunity to explain exactly how the defense attorney, prosecutor, jury, and/or judge committed legal error — and why the court should correct that error.
Federal appellate law requires that the appellant file this brief within 40 days after the final trial court record is submitted. The opposing party (usually the government) must then file its reply brief within 30 days. You then have 14 days to file your own reply brief that responds to the arguments presented by the government.15
In addition to these timelines, there are numerous other laws that regulate the form and content of the appellate briefs.16 Again, this is why having a California federal appeals lawyer is critical. Deviating from these rules will have a negative impact on your chances of overturning your California conviction and/or sentence on appeal.
After the federal Ninth Circuit Court of Appeal has received and reviewed each party’s briefs, it will hear oral arguments.17 Oral arguments provide an opportunity for each side to
- clarify its positions and
- answer any questions the appellate judges may have.
This is not the time for restating the facts of your brief. This is the time to make sure that you are highlighting its main issues.
If you wish, you may allow your brief to speak for itself and may waive your oral arguments. However, this is rarely a smart approach because the judges may have questions that will remain unanswered if you do not personally appear to answer them.
Once the court has received all briefs and has heard oral arguments, it must render its decision.
After reading the briefs and hearing the oral arguments, a three-judge panel privately discusses the case. In order to reach their decision, the judges consider any relevant legal precedent (that is, prior court cases that have facts and legal issues that are similar to the facts and legal issues in your case).
Sometimes the federal appeals court is required to follow precedent and other times it is not. For example, the Court of Appeals must follow the precedent that was decided by the U.S. Supreme Court.
However, the Court of Appeals is not necessarily bound by the precedent established in other circuit courts (although other circuit courts may help influence the court’s decision). Courts typically follow their own precedent unless they conclude that legal errors existed in those cases as well.
Although there is no time limit on how long the court may take to announce its decision, it typically takes between three months and one year, depending on
- how many other cases the court has on its calendar, and
- the complexity of the case.
Once at least two of the three federal judges agree on a decision, one of the judges writes an opinion. An “opinion” announces and explains the court’s decision.
If one of the judges disagrees with the other two, they are entitled to write a dissent. A “dissent” is a statement explaining why the third judge disagrees with the majority opinion.
If the judges believe that the opinion will be helpful in determining the outcome of future cases, the opinion will be publicly published for others to read. Other judges and attorneys will then be able to use your case as precedent where appropriate.
However, when the judges believe that the issues in your case are most likely only important to the parties involved in your case — and are therefore unlikely to enhance legal precedent — the court will issue a shorter, unsigned opinion that will not be publicly published.
When you appeal a federal conviction and/or sentence, you are essentially asking the court to do one of two things:
- overturn your conviction (in which case, you are cleared of any wrongdoing and go free), or
- remand the case.
When the federal court “remands” the case, it sends it back to the trial court to
- retry your case,
- resentence you, or
- otherwise correct the legal error.
If you are unhappy with the federal court’s ruling, you have a couple of options.
- File a petition for rehearing with the same court.18 Although these petitions are rarely granted, we know the most successful ways to convince the court that it either overlooked or misinterpreted one of the issues that is critical to the case.
- File a petition for review (otherwise known as a petition for a writ of certiorari, described above in Section 2. Federal Appeals v. State Appeals) with the United States Supreme Court.
You may petition for review if
- your petition for rehearing is denied, or
- if your case was heard by the California Court of Appeal and the California Supreme Court, and you have exhausted your state court remedies.19
The U.S. Supreme Court receives thousands of petitions for review every year, and grants very few of them. A seasoned federal appeals lawyer knows the most effective ways to convince the Supreme Court that a particular case is appropriate for review.
If you entered a guilty or nolo contendere “no contest” plea — and therefore believe that you are prevented from appealing because you waived your right to do so — do not despair. We may be able to help.
Even if you waived your right to appeal, that does not necessarily mean that you have given up your right to appeal every issue. If
- the government breached its part of the plea agreement,
- you are making a claim based on ineffective assistance of counsel, or
- if the trial court judge sentenced you to an illegally harsh sentence,
you may still be entitled to a federal appeal.20
Call us for help.
If you or a loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone.
We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For information about Nevada federal appeals law, go to our article Nevada federal appeals law.
- See, for example, United States v. Kennedy (United States Court of Appeals for the Ninth Circuit, 2011) 643 F.3d 1251; United States v. Ganoe (United States Court of Appeals for the Ninth Circuit, 2008) 538 F.3d 1117.
- California Penal Code 1466 — An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, [that is, a California misdemeanor appeal] to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases: (1) By the people: (A) From an order recusing the district attorney or city attorney pursuant to Section 1424. (B) From an order or judgment dismissing or otherwise terminating all or any portion of the action, including such an order or judgment, entered after a verdict or finding of guilty or a verdict or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy. (C) From sustaining a demurrer to any portion of the complaint or pleading. (D) From an order granting a new trial. (E) From an order arresting judgment. (F) From any order made after judgment affecting the substantial rights of the people. (G) From the imposition of an unlawful sentence, whether or not the court suspends the execution of sentence. As used in this subparagraph, “unlawful sentence” means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court that strikes or otherwise modifies the effect of an enhancement or prior conviction. A defendant shall have the right to counsel in the people’s appeal of an unlawful sentence under the same circumstances that he or she would have a right to counsel under subdivision (a) of Section 1238. (H) Nothing in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition that is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation. (2) By the defendant: (A) From a final judgment of conviction. A sentence, an order granting probation, a conviction in a case in which before final judgment the defendant is committed for insanity or is given an indeterminate commitment as a mentally disordered sex offender, or the conviction of a defendant committed for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment or an order granting probation the court may review any order denying a motion for a new trial. (B) From any order made after judgment affecting his or her substantial rights.”). See also California Penal Code 1235, subdivision (b) — Questions of law alone; appeal by either party; application of title. (“(a) Either party to a felony case may appeal on questions of law alone, as prescribed in this title and in rules adopted by the Judicial Council. The provisions of this title apply only to such appeals. (b) An appeal from the judgment or appealable order in a felony case is to the court of appeal for the district in which the court from which the appeal is taken is located.”)
- Federal Rules of Appellate Procedure, Rule 28, subdivision “d” — References to Parties. (With respect to a California federal appeal.”In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.””)
- Federal Rules of Appellate Procedure, Rule 4, subdivision “b” — Appeal in a federal criminal case. (“(1) Time for filing a notice of appeal. In a criminal case, a defendant’s notice of appeal [for a federal appeal] must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal.”)
- See same, subdivision (b)(4) — Motion for extension of time. (“Upon a finding of excusable neglect or good cause, the district court may – before or after the time has expired, with or without motion and notice – extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).”)
- California federal appeals lawyer John Murray represents clients seeking federal appeals in the South Bay (including Long Beach and Torrance) as well as throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster.
- Federal Rules of Appellate Procedure, Rule 4, subdivision “c” — Federal appeal by an inmate confined in an institution. (“(1) If an inmate confined in an institution files a notice of appeal [for a federal appeal] in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day of filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. section 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.”)
- See same, subdivision “d” — Mistaken filing in the Court of Appeals. (“If [during a California federal appeal] a notice of appeal in either a civil or a criminal case is mistakenly filed in the Court of Appeals, the clerk of that court must note on the notice the date it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.”)
- See same, Rule 9-1.2 — Release pending appeal. (“(a) A motion for bail pending appeal or for revocation of bail pending [federal] appeal [such as a release OR], made in this court, shall be accompanied by the district court’s bail order, and, if the movant questions the factual basis of the order, a transcript of the proceedings had on the motion for bail made in the district court. If unable to obtain a transcript of the bail proceedings, the movant shall state in an affidavit the reason why the transcript has not been obtained. (b) A movant for bail pending appeal shall also attach to the motion a certificate of the court reporter containing the name, address, and telephone number of the reporter who will prepare the transcript on appeal and the reporter’s verification that the transcript has been ordered and that satisfactory arrangements have been made to pay for it, together with the estimated date of completion of the transcript. A motion for bail which does not comply with part (b) of this rule will be prima facie evidence that the appeal is taken for the purpose of delay within the meaning of 18 U.S.C. section 3143(b). (c) Unless otherwise directed by the court, the non-moving party shall file an opposition or statement of non-opposition to all motions for bail or revocation of bail pending appeal of a judgment of conviction within 10 days of service of the motion. (d) Unless otherwise directed by the court, the movant may file an optional reply within 7 days of service of the response. (e) If the appellant is on bail at the time the motion is filed in this court, that bail will remain in effect until the court rules on the motion.”)
- See same, Rule 10, The record on appeal, subdivision “a”.
- Federal Rules of Appellate Procedure, Rule 10, subdivision “b”. (“(b) The Transcript of Proceedings. (1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal [in a federal appeal] or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following: (A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications: (i) the order must be in writing; (ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and (iii) the appellant must, within the same period, file a copy of the order with the district clerk; or (B) file a certificate stating that no transcript will be ordered. (2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion. (3) Partial Transcript. Unless the entire transcript is ordered: (A) the appellant must within the 14 days provided in Rule 10(b)(1) file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement; (B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 10 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and (C) unless within 14 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 14 days either order the parts or move in the district court for an order requiring the appellant to do so. (4) Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript. (c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal. (d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the courts resolution of the issues. If the statement is truthful, it together with any additions that the district court may consider necessary to a full presentation of the issues on appeal must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30. (e) Correction or Modification of the Record. (1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly. (2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded: (A) on stipulation of the parties; (B) by the district court before or after the record has been forwarded; or (C) by the court of appeals. (3) All other questions as to the form and content of the record must be presented to the court of appeals.”)
- 18 USC Sec. 3006A — Adequate representation of defendants.
- Federal Rules of Appellate Procedure, Rule 10, subdivisions “c” – “e”. (“(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection [during a federal appeal]. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal. (d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the courts resolution of the issues. If the statement is truthful, it together with any additions that the district court may consider necessary to a full presentation of the issues on appeal must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30. (e) Correction or Modification of the Record. (1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly. (2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded: (A) on stipulation of the parties; (B) by the district court before or after the record has been forwarded; or (C) by the court of appeals. (3) All other questions as to the form and content of the record must be presented to the court of appeals.”)
- Federal Rules of Appellate Procedure, Rules 31 and 32.
- For rules governing oral arguments, see Federal Rules of Appellate Procedure, Rule 34.
- Federal Rules of Appellate Procedure, Rule 40 — Petition for Panel Rehearing. (“(a) Time to File; Contents; Answer; Action by the Court if Granted. (1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing [following an adverse ruling in a federal appeal] may be filed within 14 days after entry of judgment. But in a civil case, if the United States or its officer or agency is a party, the time within which any party may seek rehearing is 45 days after entry of judgment, unless an order shortens or extends the time. (2) Contents. The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Oral argument is not permitted. (3) Answer. Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request. (4) Action by the Court. If a petition for panel rehearing is granted, the court may do any of the following: (A) make a final disposition of the case without reargument; (B) restore the case to the calendar for reargument or resubmission; or (C) issue any other appropriate order. (b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must be served and filed as Rule 31 prescribes. Unless the court permits or a local rule provides otherwise, a petition for panel rehearing must not exceed 15 pages.”)
- Supreme Court Rules, Rule 10 — Considerations Governing Review on Writ of Certiorari. (“Review on a writ of certiorari [in a federal appeal] is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”)
- U.S. v. Bowe (2001) 257 F.3d 336, 342. (“Because of the reciprocal limitation upon the Government’s right to a federal criminal appeal where a defendant has waived the right to seek appellate review of a judgment of conviction or a sentence, we focus our inquiry on whether Bowe would have had the right to [a federal] appeal if the Government had breached the plea agreement. This issue was addressed in United States v. Gonzalez, 16 F.3d 985 (9th Cir.1993). In Gonzalez, the Ninth Circuit concluded that a defendant’s waiver in a plea agreement of his right to appeal was not enforceable where the Government had breached the agreement by opposing a departure for acceptance of responsibility. Id. at 988-990; see also United States v. Rosa, 123 F.3d 94, 98 (2d Cir.1997) (stating that “[a] defendant may appeal if the Government breaches the terms of the plea agreement.”). We agree with our sister circuits that a party’s waiver of the right to seek appellate review is not enforceable where the opposing party breaches a plea agreement.”). See also U.S. v. Henderson (1995) 72 F.3d 463, 465. (“A defendant may waive statutory rights, including the right to appeal, as part of a plea bargaining agreement. United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). However, we have previously noted, without deciding the issue, that waivers of rights to [a federal] appeal may not apply to ineffective assistance of counsel claims. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (noting that waiver of postconviction relief in plea agreement may not apply to collateral attacks based on ineffective assistance of counsel). Without deciding the issue, the Ninth Circuit has expressed similar sentiments. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) ( “We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel’s erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain.”).”)