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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 19868
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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I have heard that if a defendant wants to appeal from a State

Resolved Question:

I have heard that if a defendant wants to appeal from a State appeal court to the US Supreme Court, there must have been some constitutional error in his proposition of error.


In this case, a criminal misdemeanor with a 1yr sentence, there was only one proposition of error which I believe was on state grounds, erroneous admission of hearsay evidence. But the defendant had requested the his attorneys to use miranda rights violations a part of the case. He had also told his trial counsel he should have a drug expert but the court appt atty said he did not have enough money for that.

So my question is could the defendant use those constitutional points, miranda rights and ineffective counsel, to appeal to the Supreme Court even though they were not propositions of error in the direct appeal to Oklahoma Court of Criminal Appeals?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Lucy, Esq. replied 1 year ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today.

Unfortunately, a person cannot raise issues for the first time on Appeal to the United States Supreme Court. A person does not directly file an appeal with the Supreme Court. They must file a request for review, called a writ of certiorari. Most of those requests are denied, which is not a decision on the merits of the case. The Court usually only takes cases of national significance, and the vast majority of requests are denied (they accept about 1-2% of the 7,000 annual requests they get). If a person is convicted of a crime in state court, and doesn't raise federal constitutional grounds at any point during the process, the Supreme Court most likely would not accept the case.

I apologize that this was probably not the Answer you were hoping to receive. However, it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

Good luck.
Customer: replied 1 year ago.

Thank you for your response and I am not trying to be argumentative but you said "Unfortunately, a person cannot raise issues for the first time on Appeal to the United States Supreme Court."


This really seems to put the defendant at a big disadvantage especially if he has public defenders as in this case. The reason I say that is there is no way the public defender is going to say his co public defender at trial was ineffective. And he is certainly not going to admit he is ineffective. So they can do a poor job and never worry about the case going to the US Supreme Court. Even the state appeal court judges have no worry of the case going beyond them if no constitutional issue was brought up. Isn't this unfair to the defendant? Is there some other means that the defendant can complain about ineffective counsel ie not bringing up miranda rights violations and not having a drug expert after the appeal to the state appeal court?


 


 

Expert:  Lucy, Esq. replied 1 year ago.
Ineffective assistance of counsel can be brought up on the original appeal to the state appellate court. It cannot be raised at trial, for many reasons. But if someone has exhausted all state appeals, and never raised ineffective assistance of counsel, the U.S. Supreme Court usually won't take the case to hear that issue for the first time.

A public defender's job, first and foremost, is to represent his client. He absolutely can and will state that another lawyer in the public defender's office did not provide effective assistance if it will help the client. I've also seen defense lawyers argue that they themselves provided ineffective assistance of counsel. Every federal constitutional violation can be raised on the initial appeal, discussed throughout the process by the state courts, and appealed to the US Supreme Court, if necessary. Every defendant has the same opportunity to raise these arguments.

From a constitutional standpoint, the Supreme Court of the United States has no authority to decide issues of state law that do not implicate federal constitutional principles. Most cases brought in state courts never go beyond the state court judges, because the state Supreme Court is the highest authority on state law issues (except in New York, which calls their high court the Court of Appeals).
Customer: replied 1 year ago.


You stated: "
"A public defender's job, first and foremost, is to represent his client. He absolutely can and will state that another lawyer in the public defender's office did not provide effective assistance if it will help the client. I've also seen defense lawyers argue that they themselves provided ineffective assistance of counsel. Every federal constitutional violation can be raised on the initial appeal, discussed throughout the process by the state courts, and appealed to the US Supreme Court, if necessary. Every defendant has the same opportunity to raise these arguments."


 


No doubt it is the public defenders job to represent his client. Maybe in some utopian world that happens all the time but not in these United States. It did not happen in this case. My question was if there was in fact ineffective counsel and the defendant told the appeal counsel and he did not act on it what can the defendant do? The defendant's understanding was he had to accept what ever proposition of error his counsel wrote up. The appeal counsel never let the defendant see the appeal brief before it was submitted. So is there anything that can be done in a case like the? The defendant has emails where he told the appeal counsel about the trial court counsel not getting a drug expert and not bringing up miranda violations. The appeal court counsel just acted as they were not significant. He made excuses for the trial counsel. What can the defendant do about this? The records were given to the appeal court judges 4 weeks ago.


 


 

Expert:  Lucy, Esq. replied 1 year ago.
I'm not saying that public defenders are perfect. I were merely responding to your statement that a public defender wouldn't be willing to claim that another public defender did a bad job.

Once a person's state court appeals are exhausted, the next step may be to file a writ of habeas corpus in the local federal district court. The case would have to go through the system before getting to the U.S. Supreme Court.
Customer: replied 1 year ago.

You said: "Once a person's state court appeals are exhausted, the next step may be to file a writ of habeas corpus in the local federal district court. The case would have to go through the system before getting to the U.S. Supreme Court."


 


There is only one appeal Court in Oklahoma. Is there anything else the defendant can do once the judges give their opinion as far as that court is concerned? My understanding is there was nothing else the defendant could do in the state after they made their decision.


 


So are you saying in this writ of habeas corpus he can explain about ineffective counsel even though it was not brought up by appeal counsel on direct appeal?


 


 

Expert:  Lucy, Esq. replied 1 year ago.
There is nothing that can be done to directly challenge a state high court decision, unless a person is challenging the state court's interpretation of federal constitutional issues that can be appealed to the U.S. Supreme Court.

A writ of habeas corpus is used to claim that it is unlawful for the state to continue to hold a person in jail. There are many, many reasons that are used to support the request. There are no guarantees - many, many defendants use habeas corpus to try to get out of jail once the appeals process is exhausted, and the requests are routinely denied. But you asked if there were any other options, and that is an option available to some people. Here is an overview that could help.
http://www.law.cornell.edu/wex/habeas_corpus


I will note, however, that for a person who received a one-year sentence, he may be out of jail before the Appeals Court has issued an opinion, in which case it would be moot. In that scenario, the option might be to seek a pardon from the governor (keeping in mind, again, that these requests are only very rarely granted).
http://www.ppb.state.ok.us/
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 19868
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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