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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26776
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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my federal public defender refuses to file a motion for a stay

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my federal public defender refuses to file a motion for a stay while pending appeal, what should I do?
Hi Jacustomer,

Did your public defender tell you why he wouldn't do this for you?
Customer: replied 4 years ago.

No, he will not even return any of my phone calls. This has been an on-going problem since he first began representing me in July of 2011. My appeal is in the 6th circuit court of appeals.

Customer: replied 4 years ago.

Time is of the essence, and he clearly does not care, nor does he have my best interest at heart! I would like to have him withdraw from my case, so that I do suffer irreparable harm. The problem is that I live in CA, and the case was originally tried in the Western Dist of KY.

Hi Lashanda,

As a general rule, if a defense lawyer won't do something like this it's because he already knows the law will not grant the motion and that he would face sanctions for filing a frivolous motion if he brought it. I'm not saying that this is the case here. I'm just giving you the most common reason. There could be others as well and I could not possibly guess.

If he's a Federal public defender then he works out of a Federal defender's office. That means he has a supervisor. I would call his office, speak to his boss and find out why the attorney refuses to do what you're asking and ask them what they intend to do about this. You could also ask him for another attorney from the office if he doesn't suggest it himself.

Are you talking about the Federal defender who handled your trial case or the Federal Appellate defender who is in charge of the appeal?



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Customer: replied 4 years ago.

He is the Chief PDF, so who would be the chain of command above him? The main premise of my appeal is ineffective assistance of counsel, in regards XXXXX XXXXX!!! He hasn't even cared to ask me why I am even appealing?


Let me re-phrase my first statement.


There was motion filed: it read as a request for a stay pending appeal/ and or extension of self surrender date. The judge did not respond to the order regarding the stay and gave me a 30 day extension. The issue at hand is regarding the Stay pending appeal, whereas the Rules of procedure regarding the appellate court stipulate that a motion must 1st be attempted in the district court before it can be brought forth to the Appellate court for a decision. Therefore, I need him to re-file the (now Emergency) motion for stay pending appeal, so that the judge must render a decision!

Thank you for clarifying, Lashanda.

If your main argument is the ineffective assistant of your counsel, he may see your interests as antithetical to his and likely has withdrawn from your case. Unfortunately that would create a conflict situation with the rest of the office as well. So you're left with having to retain private counsel to file the stay, or to get to the judge and see if he'd appoint you an alternative defender provider to file it, or file this yourself pro se. At this point there aren't many options and I agree that time is of the essence.
Customer: replied 4 years ago.

so you're saying that I can have another lawyer file the motion for a stay on my behalf, and that I don't have to rely solely upon him?


Your lawyer may have withdrawn from your case. Under the circumstances there's a conflict staying with you and that would explain why he hasn't called you back. You may need the judges permission to substitute counsel, but what choice do you have on short notice? Yes, you should be able to have another lawyer file the motion for the stay.

I'm assuming that when you were sentenced your lawyer filed a notice of a appeal and then transferred the file to an appellate defender. He can't keep the case if you're going against him.
Customer: replied 4 years ago.

To the best of my knowledge he has not withdrawn from representing me, and I haven't received any written correspondence stating that he has. Again, I will preface that he has never called me, even while the original trial proceedings were taking place! However at this juncture, I am not going to tolerate this type of willful behavior at the Appellate level.


Agreed. You'll have to get another lawyer on ir unless you want to file the motion yourself.
Customer: replied 4 years ago.

Thank you for your advice.

You're very welcome.

Good luck with this.

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