How to Process a Legal Appeal Successfully

Copyright © 2009 by Rick Haley.

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Contents

PROPER REMEDIES

Statement Pursuant to CPLR § 5531

Preliminary Statement

Questions Presented

Statement of Facts

Argument

Conclusion

Conclusion

PROPER REMEDIES

Introduction from a Real Jailhouse Lawyer

I have studied the law ever since November 4, 1981, (the date of my arrest) simply because I was erroneously arrested and eventually convicted of crimes I am not guilty. After a jury trial, I was sentenced to two consecutive twenty-five-to-life sentences. Significantly, at the time of my arrest, I only had a seventh-grade education. Now, I have two separate degrees as a paralegal. I have never given up my fight for freedom, and I practically live in the law library morning, afternoon, night, on weekends, and more times than not, on legal holidays. Significantly, it took nearly ten (10) years to write this legal book, and it is one of a kind.

Within this book, you will find that I have outlined every procedure you should utilize directly after your conviction, sentencing, and throughout the complete direct appeal process in the state courts. Those formal procedures are located in the index and include how to compose cover letters, an affidavit of service, and initial letter to your appellate counsel. Note: If you have the same trial and appellate counsel, this is a conflict-of-interest situation, and a complete formal motion for the reassignment of counsel is enclosed, along with two separate Freedom of Information Law request letters addressed to agencies, judicial law requests to the courts, an appeal letter from the denial of documents, and other formal motions. These formal motions include an application for permission to file a pro se supplemental brief on the direct appeal from conviction, writ of error coram nobis (ineffective assistance of appellate counsel), a CPL §440.10[1][h] motion (ineffective assistance of trial counsel), an application to the New York State Court of Appeals, and a memorandum of law. I have also enclosed a motion for the assignment of counsel. In fact, in every motion that I submit to the court, I always attach a motion for the assignment of counsel. One is enclosed for your convenience. All motions, etc. herein have relevant statutes and state and federal case laws cited therein.

More times than not, an attorney will be retained for the trial. After conviction and sentence, all funds will have been depleted, and being assigned an attorney on the direct appeal may become difficult. The appellate division will want to know exactly why you were able to retain an attorney for trial, yet you want to submit an in forma pauperis application, fully expecting the appellate division to grant you poor person status and assign an attorney to represent you on the direct appeal from conviction. Don’t sweat the small stuff because I have enclosed a complete motion for just that purpose.

Another fatal stumbling block is being assigned the same attorney on the direct appeal that you had at the trial level.

Termination of representation means that after the conviction and sentence, you must proceed on the direct appeal with a different attorney. Note: You do not want the same attorney for the direct appeal that you had at the trial level because that kind of representation is fully considered to be a conflict-of-interest situation (see Billy-Eko v. United States, 8 F.3d 111, at page 114 [2nd Cir. 1993]). Even though there are many types of conflicts, they are all treated the very same by the courts. See U.S. v. Levy, 25 F.3d 146, at 153 n. 5 (2nd Cir. 1994), which held: "This Circuit, however, has not questioned the universal applicability of the Supreme Court’s conflicts precepts and has consistently applied the same basic doctrine in all conflict-of-interest situations. See Fulton, 5 F.3d at 609."

Note: All cover letters etc. will be addressed to the district attorney of county. Furthermore, notice that bold letters will inform the reader exactly where in the appendix those letters and forms can be located.

The imprisoned pro se litigant area is still heavily burdened with technicalities, inmates’ acceptance of wrong legal advice from those untrained in matters of law and procedure, are dangerous and more times than not, fatal stumbling blocks for the unwary. If you diligently follow everything outlined within this legal book, there is no doubt that you will prevail in your endeavors.

Lastly, always remember attorneys are friends of the court. Follow everything your attorney does on your behalf. Furthermore, officials are technically a tricky bunch, including your attorney, and you must watch them at all times. They will not pay attention to the law, completely fail to obey the law, look for all loopholes, and if you are proceeding by yourself, they will twist the facts in your case.

The following legal information will assist those who are serious in battling the courts, seeking justice in whatever form and ultimately, their freedom. Be sure to Shepardize everything because the law changes all the time without notice.

Proceeding on the Direct Appeal after Conviction

Notice: When you go to the law library, do not steal pages out of the law books. If you do and are caught, you will suffer the consequences (Appendix A).

Whenever you write letters to the courts, the district attorney’s office, police agencies, your attorney, etc. you must always prepare a cover letter (Appendix 1).

On whatever envelope you use, always write or type on the lower left of the envelope: Urgent legal mail / Confidential.

All letters, motions, etc., must be accompanied with an affidavit of service, pursuant to the reasoning rendered in the New York Civil Practice Law and Rules section 2103[f][1]. The proper way in which to cite that statute and others are shown on the back of the cover page of every statute. As an example: N.Y. C.P.L.R. §2102[f][1]. An affidavit of service is enclosed for your convenience (Appendix 2).

Harris v. Senkowski, 298 F.Supp.2d 320 at 335 (E.D.N.Y. 2004) held: Pursuant to the ‘prison mailbox rule,’ a pro se habeas petition is properly considered filed as of the date it was given to prison officials for forwarding to the court clerk (Noble v. Kelly, 246 F.3d 93, 97-98 [2d Cir. 2001], quoting Adeline v. Stinson, 206 F.3d 249, 251 n. 1 [2d Cir. 2000] Per curiam). Per curiam means the decision of all judges.

In Forma Pauperis Status on the Direct Appeal

Too many times the appellate division in the first through the fourth departments denies applications for in forma pauperis status and the assignment of counsel to represent newly incarcerated inmates. This is because those courts want to be fully informed why you were able to retain counsel at the trial level but now lack sufficient funds to retain counsel on the direct appeal. I have enclosed a motion to address this continuing problem for your convenience (Appendix 3).

Assignment of Counsel and Investigative Services

In every separate motion that I prepared and submitted to the court by myself, I have always attached a separate motion for the assignment of counsel and investigative services.

McKethan v. Mantello 292 F.3d 119, at 123 (2nd Cir. 2002) held: "The constitutional right to appointed counsel exists only during the original criminal proceedings and the direct appeal from a conviction (See Pennsylvania v. Finley, 481 U.S. 551, 555-556, 107 S.Ct. 1990 [1987]). In other words, ‘[o]ur cases establish that the right to appointed counsel extends to the first appeal of right, and no further.’"

There are certain criteria for the assignment of counsel in any motion other than on the direct appeal.

Specifically, you must submit at the very least fifteen (15) letters to attorneys requesting their assistance. There are six (6) separate factors that the courts take into consideration when you request counsel. Hodge v. Police Officers (802 F.2d 58 [2nd Cir. 1986]) held them as (1) unable to conduct the investigation, (2) credibility, (3) ability to present the case, (4) legal issues are complex, and (5) whether appointment of counsel would lead to a quicker and more just result by sharpening the issues and shaping examinations.

Of course the courts will always take into consideration the appointment of counsel if your claims have substantial merit.

I always argue that I am a prisoner and, therefore, have no effective means in bringing my claims to the attention of the lawyers’ marketplace. The laws of economics, although they might well attract a lawyer for other litigants, take a different turn when prison walls intervene (see Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, at 174 [2nd Cir. 1989]).

It is my utmost pleasure to announce that within my last CPL §440.10[1][h] motion that I submitted, in a decision and order dated July 22, 2004, the judge assigned counsel for presentment of my 440 motion to the court (see also N.Y. Jur.2d costs in civil actions, assignment of counsel, and Carmody-Wait 2d §149:281 on the assignment of counsel for indigent persons). I have enclosed a motion for your convenience (Appendix 4).

Reassignment of Counsel on the Direct Appeal

As previously stated, more times than not, the appellate division will assign the same attorney on the direct