Perfecting the 10th Circuit Appeal

The Right to Appeal

Your client’s federal right to appeal starts at the district court level. To be effective, counsel must consult with their client about their right to appeal when there is reason to think either:

(1) that a rational defendant would want to appeal or

(2) that this particular defendant reasonably demonstrated to counsel that the defendant was interested in appealing.

Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

Important to note, the inclusion of an appellate waiver in a plea agreement does not foreclose the issue of whether an appeal is rational. Garza v. Idaho, 139 S. Ct. 738, 745, 203 L. Ed. 2d 77 (2019) (the language of the appeal waiver can leave types of claims unwaived, the waiver could be forfeited by the prosecution, or some claims are fundamentally unwaivable).

If counsel is on notice that client wants to appeal, it would be professionally unreasonable not to file the notice of appeal. United States v. Orozco-Sanchez, 804 F. App'x 952, 962 (10th Cir. 2020). Courts are to presume prejudice if a defendant can show counsel either failed to consult client on their right to appeal or ignored client’s request to file an appeal. Garza, 139 S. Ct. 738, 747, 203 L. Ed. 2d 77 (2019) See also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (ineffective assistance of counsel is established when counsel’s performance that falls below the standard of “reasonably effective assistance,” and results in prejudice)

Filing the Notice

The Supreme Court has described the filing of a notice of appeal “as a purely ministerial task that imposes no great burden on counsel.” Flores-Ortega, 528 U.S. at 474, 120 S.Ct. 1029. True, except defense counsel’s obligation is not limited to filing just the notice of appeal. To perfect the appeal in the 10th Circuit counsel must file:

1.      Notice of Appeal

2.    Docketing Statement

3.    Entry of Appearance with Certificate of Interested Parties

4.    Motion to Withdraw

5.    Transcript Order Form

6.    Designation of Record

7.     Leave to Proceed in Forma Pauperis

These documents must be filed with the District Court and/or the Circuit Court within 14 days of the filing of the Notice of Appeal. The process is important for setting your client up for a successful appeal and it takes time.

Lucky for you, 2nd-Chair has this process down.

Let us take this “ministerial task” off your to-do list.