Legal Question in Criminal Law in California

Re: Need form for motion to file late notice of appeal

I'm afraid I have bad news for you and your employer. Rule 4(b)(4) of the Federal Rules of Appellate Procedure addresses the subject of late criminal appeals. It says that "Upon a finding of excusable neglect or good cause, the district court may -- before or after the time has expired, with or without motion and notice -- extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b)." Since the normal time to appeal is only 10 days and since the notice of appeal evidently was due about eight months ago, it is too late.

The client's remedy is to petition for a writ of habeas corpus arguing that he had ineffective assistance of counsel ("IAC") in connection with the notice of appeal. Establishing IAC involves proving two things: first, that the attorney performed so badly that no competent attorney would call his work reasonable (missing a critical deadline almost has to satisfy this requirement) and, second, that the defendant would have received a more favorable result with better lawyering. There is no guarantee that his petition will succeed, but the court will have to consider his arguments in order to decide whether a direct appeal would have yielded a more favorable result. The net effect will be that the same arguments he could have made on appeal will instead be made under a different procedure and will be evaluated under the same standards of review.

The laws governing habeas corpus petitions are intricate and your client needs to be very careful how he proceeds because he can inadvertantly waive important rights if his papers aren't drawn carefully.

Your employer can't write the petition unless he is willing to admit that he completely screwed up (which he did), because otherwise he would face a conflict of interest -- he would have to attack his own performance while not being willing to admit that it was sub-standard. The client can try to do it in pro per but is likely to make at least one serious error and thereby harm his legal interests. I strongly advise that he hire new counsel.

The next several weeks are likely to be unpleasant for your employer, depending upon how eager the client and his family are to make trouble for him. He could be sued for malpractice, though in California it is nearly impossible for a criminal defendant to win such a case unless he can prove he is actually innocent. Additionally, your employer is likely to face some serious questioning from the State Bar.

While your boss is legally responsible for what happened, chances are that he is not the one who actually made the mistake. If he figures out who did, that person is also likely to face some unpleasant times. If it was you, now might be a good time to start revising your resume.