How Can You Challenge A Federal Criminal Conviction?

If your loved one has been convicted of a federal crime, or you have, you want to know what can happen to challenge that conviction.

Some people want to overturn the conviction because what the judge did was wrong, or what the jury did wasn't right. Others want to challenge the conviction because their lawyer handled the case poorly. The Constitution says you have a right to the effective assistance of counsel in a federal criminal case, and sometimes, when that right is infringed, people want to overturn a conviction based on that.

In this short video, federal criminal defense attorney Matt Kaiser explains the difference between a direct appeal and a proceeding where you say the lawyer was ineffective - which is often done through a petition under 28 U.S.C. § 2255.

Video Transcript:

If you or a loved one has been convicted with a crime in Federal Court often what you are eager to do is to find out ways to challenge that. You’re eager to find ways to try to get your family member home to undo the conviction.

There are really two main ways to attack a conviction in Federal Court.

The first is a direct appeal. That’s where you file a notice of appeal soon after sentencing – within fourteen days – and what you are talking about in a direct appeal is what the trial court did wrong, what the judge did wrong, what the jury did wrong. You are trying to say what happened in the court below wasn’t for the law, it wasn’t right. Importantly what you are talking about is the trial court judge’s errors or the jury’s errors.

The other thing you can do is you can bring what's called a 2255 it's named after the section of the United States code that establishes it, 28 U.S.C. section 2255. What a 2255 petition is? Is it's a habeas petition where you are saying I am locked up, I am in custody because of something that happened that violated my rights. And the main right that people are talking about in the habeas petition is their right to have an effective lawyer. So a 2255 is most often used as a way to complain about what your lawyer did during the case. So if your lawyer didn’t investigate evidence or your lawyer botched things you would bring a 2255.

And so it's important to know when you decide 2255 direct appeal that they are attacking very different things. A direct appeal is attacking what the trial court did and a 2255 is attacking what your lawyer did when he or she was representing you. Normally the timing is important in most courts in this country – you have to do a direct appeal first and then you do a 2255. That’s not the case in every court. But figuring out what you want to address, what you want the court to address will help you figure out which vehicle you want to ask the court for help.