What Happens After Sentencing? A Road Map for Appeals and Post-Conviction Advocacy

A long-time De-Bug friend with extensive experience in state and federal criminal appeals and collateral post-conviction advocacy came and gave an incredible workshop to families whose loved ones are just starting that journey. The session was part of our Participatory Defense Training Series for families whose loved ones are entangled in the criminal justice system. At ACJP, we know that just because a judge delivers a sentence, doesn’t mean families give up. And we have been fortunate to have witnessed families welcome loved ones home after they have won an appeal. But navigating what happens after a sentence is rendered can be a confusing maze. And after direct appeals, people incarcerated and their loved ones are often left alone without counsel. Just like at the trial stage, families, and their application of participatory defense principles, can impact the outcome of cases if they are informed more about the process. So below is a road map of what happens after sentencing given by our appeal expert friend and shared at the workshop. It details what options people have after sentencing, a description of what happens at that stage, applicable case law, and what can help towards relief. Below that are a few legislative updates to be aware of, and at the bottom are forms for 1) California Notice of Appeal in a Felony 2) California Petition for Habeas Corpus 3) Federal Habeas Corpus Petition

Good luck!
(Note: This is California specific)

Family members attend workshop on appeals to see how they can assist their loved ones.

Family members attend workshop at De-Bug Center on appeals to see how they can assist their loved ones.


  • Entitled to counsel on direct appeal. If your trial attorney fails to file a Notice of Appeal, contact appellate program office.
  • Notice of appeal must be filed within 60 days (30 days for misdemeanor) of the final judgment (sentencing order/revocation of probation).
    • Note Prison Mailbox rule.
    • Needn’t be formal (include case # & court, date judgment entered, statement of reason for appeal; signature with date; ask for appointment of counsel). Close with
  • Issues: not enough evidence to justify the verdict and/or mistakes of law at/before trial
  • Additionally: appealing validity of plea or probation violation, etc.
  • Review is generally limited to the record presented at trial
  • If Appealing Guilty Plea
    • Must seek Certificate of Probable Cause (CPC) to argue that plea was not legally entered (ex. You didn’t understand the plea terms, were not advised of right to go to trial or the consequences of pleading, no factual basis for plea, etc). The CPC is needed because the facts asserted are not part of the record. You wouldn’t need a CPC to appeal a pretrial motion denial because there is a record.
    • To appeal based on what happened AFTER plea was entered and not challenging the plea itself (prosecutor or court violated the terms of the bargain or sentence is unlawful) then you need to state appeal is “based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.” If you are appealing the denial of pretrial motions, state that the appeal is based on such denial. (standard form includes boxes).
    • Note, pleas often contain waivers of appeal/habeas rights (except IAC during negotiation process rendering the plea not knowing or voluntary)
    • Beware that challenging a plea can be risky (consider whether you risk a worse outcome)

STATE HABEAS PETITIONS (civil) aka Post Conviction Petition or Collateral Attack

  • Requirements: must be in custody (some residual restraint), mootness, exhaustion, successive petitions warning, no specific time limits but “reasonably promptly” from the time you are aware of issue (facts not the law). *counsel has additional requirements
  • File where judgment issued. Unless challenging in-prison conditions affecting fact or duration of confinement arising from administrative decision (discipline or credits in custody) – then file in jurisdiction where confined. If you are challenging conditions of confinement that don’t affect the length of your term (food, access, etc), you must file a civil rights action not a habeas petition. But a denial of parole would be challenged in habeas and brought where judgment imposed.
  • No right to counsel
  • The only way to raise claims that are not in the transcripts or on the record.
  • Usually filed in the Superior Court first, then Court of Appeal, then Petition for Review in the California Supreme Court. Sometimes the Superior Court is skipped and the petition is first filed in the California Court of Appeal (usually along with direct appeal).
  • Typical claims: Ineffective assistance of counsel (trial and/or appellate) or denial of right to counsel; prosecutorial misconduct; change in the law after appeal time; competency; new evidence. *Be sure to include state and federal basis for constitutional claims.
  • Court of Appeal may respond with (1) summary denial; (2) denial without prejudice to refiling in superior court; (3) request for an informal response; (4) dismiss for procedural/jurisdictional reasons or (5) issue writ or an order to show cause (for return by state)
  • Filings after OSC – return, traverse, reply, documentary evidence and/or evid hearing – Super Ct decision on merits
  • Petition for Review should be filed within 10 days if the Court of Appeal’s issues a summary denial (no reasoned opinion). 30 days if an OSC was issued.
  • Grant of habeas corpus is appealable (unlike denial which is a de novo petition)


  • Must show that your conviction or custody violated the US Constitution or federal law. State law can only be challenged if it violates federal law. A writ will only be granted if the California court decision was either (1) contrary to clearly established federal law, as determined by the Supreme Court of the US, OR (2) based on an unreasonable determination of the facts in light of the evidence.
  • Must show that all state remedies have been fully “exhausted” (all issues have been raised in the proper way in California through the highest court). You must specifically cite what federal right or law you claim has been violated. (but – cause/prejudice exception)
  • Must be in custody when the petition is filed and issue not moot
  • It is very difficult to file more than one federal habeas petition
  • Timing deadlines are strict – Petition must be filed in the US District Court (where judgment entered or where confined) within 1 year of: (1) the date the conviction was final (after completion of direct review); (2) the date a change in the law provides a basis to challenge the conviction or sentence; OR (3) the date when new facts/evidence giving rise to the claim could have been discovered by reasonable effort. The time is tolled while exhausting in state court as long as there is no unreasonable delay between state steps.
  • Examples of federal habeas claims & federal right or law implicated:
    • Involuntary confession, Violation of 14th Amendment due process rights.
    • 5th Amendment violation (made to testify against self).
    • Suggestive identification techniques, 14th Amendment due process rights.
    • Competency, 14th Amendment right to examination; Godinez v Moran, 509 US 389 (1993).
    • Denial of counsel, 5th & 6th Amendment right to counsel; Gideon v. Wainwright, 372 US 335, 343-45 (1963)(if you can’t afford a lawyer one should be appointed for you); etc.
    • Ineffective assistance of counsel, 6th Amendment; Strickland v Washington, 466 US 668 (1984).
    • Trial court denial of your right to represent yourself, 6th & 14th Amendment rights to self-representation. Faretta v California, 422 US 806, 818-19 (1975).
    • Guilty plea was not knowing or voluntary, 14th Amendment & 6th Amendment (if blaming counsel); Boykin v Alabama, 395 US 238 (1969)(generally); Padilla v Kentucky (2011, collateral consequences); Missouri v Frye (2012, botched plea deal).
    • Speedy Trial, 6th Amendment; Barker v. Wingo, 407 US 514 (1972).
    • Statute of Limitations, 14th
    • Prosecution withheld evidence, 14th Amendment, Brady v Maryland, 373 83 (1963).
    • State failed to preserve important evidence, 14th Amendment, California v Trombetta, 467 US 479 (1984)
    • Denial of court appointed expert, 14th Amendment due process; Ake v. Oklahoma, 470 U.S. 68, 82–83 (1985).
    • Witness lied about getting immunity for his/her testimony. 5th and 14th Amendment due process; Giglio v US, 405 US 150 (1972)
    • Denial of right to cross examine a witness against you in violation of the Confrontation Clause of the 6th Amendment; Crawford v Washington, 541 US 36 (2004).
    • Jury was biased or unfair, 6th Amendment right to fair/impartial jury.
    • Jury was less than 6 members or not unanimous, 6th Amendment (California)
    • Members of certain groups were excluded from the jury pool or the Prosecutor intentionally used his/her peremptory strikes to remove them. 14th Amendment equal protection rights; Batson v. Kentucky, 476 US 79 (1986)
    • Improper jury instructions, 14th Amendment due process; Kentucky v Whorton (1979)
    • Insufficient evidence supported the verdict, 14th/5th Amendment due process, Jackson v Virginia, 443 US 307 (1979).
    • Judge Bias, due process clause.
    • Prosecutorial Misconduct
    • Crime for which convicted is unconstitutional, 14th Amendment
    • Certain punishment received is now forbidden, 14th Amendment
    • Double Jeopardy, 5th Amendment
    • Statute retroactively adds punishment that was not applicable when you were convicted or when crime was committed. Ex Post Facto Clause (Article 1, sec 9).
    • Denial of right to be present at trial. McKaskle v Wiggins, 465 US 168 (1984).
    • Denial of right to testify at trial, Rock v Arkansas, 483 US 44 (1987).
    • Lack of jurisdiction in the trial court. Due process clause of 5th and 14th
    • Sentence is disproportionate to the crime in violation of the 8th Amendment’s prohibition on cruel and unusual punishment.
  • Harmless error rule
  • Issues that generally cannot be raised on federal habeas – illegal search & seizure (4th amendment); new laws after direct review completed (unless retroactive or decriminalizing, fundamental fairness – apprendi);
  • COA, appeal process


  • Prop 47 (11/14) changed some felonies to “wobblers” into misdemeanors – these are many drug-possession cases and property crimes under $950 (current commitment crimes and prior strike offenses). Doesn’t apply if prior “super-strike” or sex crime. Relief should be requested in the sentencing court before 11/4/17.
  • People v Vargas, 59 Cal.4th 635 (2014) held that 2 prior strike convictions arising from a single act against one victim cannot be used to impose a life term under the Three Strikes Law. Vargas had 2 priors for 1999 carjacking and robbery in the same act – the court is required to strike one on the priors under Romero.
  • Prop 36 (11/12) allows some who were sentenced to life terms under the old Three Strikes Law to ask the court to resentence them to a lesser term if it would not pose an unreasonable risk of danger to public safety. The deadline for filing a Prop 36 petition expired 11/6/14 but a court can still consider a late request if the petitioner shows good cause for missing the deadline.


One thought on “What Happens After Sentencing? A Road Map for Appeals and Post-Conviction Advocacy

  1. Even if a criminal defendant was wealthy enough to afford a private attorney, by the time most defendants have been convicted..they are broke and on their own.. There is no money in post conviction work…so, yes, you and your families had better become “jailhouse lawyers”…fast. Unfortunately, our system is biased against testimony and even physical evidence which goes against the prosecution …plus , the standard bias is “in the interest of the finality of justice”… In other words “go away and die”….you are just clogging the pineline.

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