Sentencing, Appeals, and Post-Conviction Relief: From Verdict to Habeas

Summary. How a sentence is built, what an appeal can and cannot do, and how collateral review actually works.

Part I: Three different things

People say "appeal" for everything that happens after a conviction. There are actually three distinct processes, with different courts, deadlines, standards, and lawyers.

Sentencing is part of the trial court case. It determines the punishment.

The direct appeal asks a higher court to review the trial court's record for legal error. It is limited to what is in the record, and largely to what was preserved.

Collateral review — state post-conviction, and federal habeas corpus — is a separate civil proceeding attacking the conviction or sentence on grounds that generally could not be raised on direct appeal, most commonly ineffective assistance of counsel and newly discovered evidence.

Confusing them is the most common and most costly error in this area, because a claim raised in the wrong proceeding is frequently barred forever.

Part II: Sentencing

The factors

18 U.S.C. § 3553 instructs federal courts to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing, and to consider: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence to reflect the seriousness of the offense, promote respect for law, provide just punishment, afford deterrence, protect the public, and provide the defendant with needed educational, vocational, medical, or other correctional treatment; the kinds of sentences available; the guidelines range; policy statements; the need to avoid unwarranted disparities; and restitution.

Most state schemes track this structure, whether by statute, by sentencing guidelines, or by a general reasonableness standard.

The constitutional rule about facts

Apprendi v. New Jersey held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

Blakely v. Washington applied that rule to a state guidelines system, holding that the relevant "statutory maximum" is the maximum a judge may impose on the facts reflected in the jury verdict or admitted by the defendant — not the maximum in the statute.

United States v. Booker then applied Blakely to the federal guidelines and, in a separate remedial holding, excised the provision making them mandatory. The guidelines became advisory.

What advisory actually means

Not optional. The procedure the Supreme Court described in Gall v. United States is:

Correctly calculate the guidelines range — the starting point and initial benchmark.
Consider the parties' arguments and the statutory factors.
Make an individualized assessment based on the facts.
If varying, explain — a major departure requires a more significant justification than a minor one.
Adequately explain the sentence to permit meaningful appellate review.

On review, an appellate court first checks procedural reasonableness (miscalculating the range, treating the guidelines as mandatory, failing to consider the factors, selecting a sentence on clearly erroneous facts, or failing to explain), and then substantive reasonableness under an abuse of discretion standard. Gall rejected requiring extraordinary circumstances for a variance and rejected a rigid mathematical proportionality test.

The practical consequence: a guidelines calculation error is the most reliably reversible sentencing error there is, which is why the arithmetic matters enormously even in an advisory system.

The presentence report

This document determines more than the hearing does. It contains the offense conduct, the guidelines calculation, criminal history, personal history, financial condition, and — in most districts — a recommendation.

The objection process is the case. Objections must be made in writing by a deadline, disputed facts must be identified specifically, and unresolved disputes must be resolved by the court or expressly disclaimed as not affecting the sentence.

Why it matters beyond the sentence: the report follows the defendant into the correctional system, where it drives security classification, program eligibility, and — later — release decisions. A factual error left uncorrected because it "doesn't affect the guidelines" can cost years of programming eligibility.

Mandatory minimums

Where a statute prescribes a minimum, the sentencing factors and the guidelines yield to it. The routes below the minimum are narrow: a government motion for substantial assistance, and the statutory safety valve for defendants meeting criteria including limited criminal history, no violence or weapon, no leadership role, and truthful disclosure to the government.

This is why charging decisions determine sentences more than sentencing hearings do, and why the plea negotiation is where the real sentencing advocacy occurs.

Allocution

The defendant's right to speak before sentence. It is not a formality — appellate courts have reversed for its denial — and it is the only unmediated moment the defendant has.

What works: brief, specific, accountable, forward-looking. What does not: relitigating guilt, blaming, minimizing, or reading a long prepared text. Three honest minutes outperform fifteen scripted ones.

Part III: The direct appeal

The deadline is short and jurisdictional. In federal criminal cases, a notice of appeal is due within 14 days of entry of judgment. State deadlines commonly run 30 to 60 days. Missing it is generally fatal, subject to narrow relief for excusable neglect or ineffective assistance in failing to file.

What an appeal is: a review of the existing record for legal error. It is not a retrial. No new evidence, no new witnesses, no new theories — with narrow exceptions.

Preservation determines everything. An issue raised and ruled on below is reviewed under the ordinary standard. An issue not raised is reviewed, if at all, for plain error — requiring error that is clear, that affected substantial rights, and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. The difference in reversal rates between the two is enormous.

The standards of review, which do most of the work:

Questions of law — de novo.
Factual findings — clear error.
Evidentiary rulings and most discretionary calls — abuse of discretion.
Sufficiency of the evidence — whether any rational trier of fact could have found the elements beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict. This standard is nearly insurmountable, and defendants consistently overestimate it.
Constitutional errors — many are subject to harmless error review, requiring the government to show harmlessness beyond a reasonable doubt; a small category is structural and requires reversal without a harm inquiry.

And a critical limitation: ineffective assistance of counsel is generally not cognizable on direct appeal, because the record does not contain counsel's reasons. It belongs in collateral review.

Part IV: Collateral review — the second track

State post-conviction

Every state has a mechanism — variously a post-conviction relief petition, a state habeas petition, a motion to vacate, or a coram nobis proceeding. The rules differ in every particular: the deadline, whether counsel is appointed, whether an evidentiary hearing is available, what claims are cognizable, and how many petitions are permitted.

Two features are near-universal. Claims that were raised on direct appeal are barred as previously litigated. Claims that could have been raised on direct appeal but were not are barred as waived or defaulted. What survives is what could not have been raised — principally ineffective assistance, newly discovered evidence, and suppressed exculpatory material.

Ineffective assistance

Strickland v. Washington sets a two-part test:

Deficient performance — that counsel's representation fell below an objective standard of reasonableness, judged on the facts of the case viewed as of the time of counsel's conduct, with a strong presumption that the conduct falls within the wide range of reasonable professional assistance and that challenged actions might be considered sound strategy.

Prejudice — a reasonable probability that, but for counsel's unprofessional errors, the result would have been different; a reasonable probability being one sufficient to undermine confidence in the outcome.

Both prongs are demanding, and courts may address either first. What wins these claims is not an argument that counsel should have done better — it is a showing of what a specific, identified investigation would have produced: the witness who was never interviewed and what they would have said, the expert who was never retained and what the report would have concluded, the record that was never obtained.

The plea context matters enormously in practice, since the overwhelming majority of convictions follow pleas, and the advice given about the plea — including its consequences — is where a great many meritorious claims live.

Brady claims

Brady v. Maryland held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The elements as developed: the evidence was favorable, either exculpatory or impeaching; it was suppressed, willfully or inadvertently; and prejudice ensued, meaning a reasonable probability of a different result. The duty extends to evidence known to others acting on the government's behalf, including police, which is why a prosecutor's personal ignorance is not a defense.

Because the violation is by definition concealed, these claims surface late — which is why they are collateral claims and why the discovery of the file is frequently the whole case.

Federal habeas

28 U.S.C. § 2254 governs petitions by state prisoners; 28 U.S.C. § 2255 is the analogous motion for federal prisoners.

The barriers are formidable and they are the actual subject of most habeas litigation:

The one-year statute of limitations, running generally from the latest of: the date the judgment became final; the removal of an unconstitutional state impediment; the date a newly recognized retroactive right was initially recognized; or the date the factual predicate could have been discovered through due diligence. Properly filed state post-conviction proceedings toll it, but the tolling rules are technical and a great many petitions are lost to miscalculation.

Exhaustion — every claim must first have been fairly presented to the state's highest court.

Procedural default — a claim the state courts declined to hear on an adequate and independent state procedural ground is barred, absent cause and prejudice or a showing of actual innocence.

Deference. Relief is unavailable on a claim adjudicated on the merits in state court unless the decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts. "Unreasonable" means more than incorrect — it requires that no fairminded jurist could agree.

The second-or-successive bar at 28 U.S.C. § 2244, requiring authorization from the court of appeals before a second petition, on narrow grounds.

And a doctrine worth understanding precisely. Martinez v. Ryan held that inadequate assistance of counsel at an initial-review collateral proceeding may establish cause to excuse the procedural default of a substantial claim of ineffective assistance at trial. But Shinn v. Ramirez then held that a federal habeas court may not hold an evidentiary hearing or otherwise consider evidence beyond the state-court record to develop such a claim, where the prisoner or their counsel failed to develop the factual basis in state court.

The practical consequence of Shinn is severe and it should be stated plainly: the factual record for an ineffective assistance claim must be built in the STATE post-conviction proceeding. A claim developed for the first time in federal court will generally fail regardless of its merit.

Part V: Sentence reduction and release

Compassionate release. 18 U.S.C. § 3582 permits a court to reduce a term of imprisonment where extraordinary and compelling reasons warrant it, after the defendant has exhausted administrative remedies or 30 days have passed since a request to the warden, considering the sentencing factors and applicable policy statements. Since defendants gained the right to file directly, this has become a significant avenue — for serious medical conditions, age combined with time served, family circumstances such as the death or incapacitation of a caregiver, and other grounds recognized by policy.

Retroactive guideline amendments permit reductions where the Sentencing Commission has made an amendment retroactive.

Rule 35 corrections — clear error within a short window, and reductions for substantial assistance on government motion.

Clemency — commutation and pardon, executive and discretionary, with no legal standard and no appeal.

Parole, where it exists. It was abolished in the federal system for offenses after 1987 but persists in most states, with release decided by a board on standards that vary enormously.

Part VI: What actually gets relief

Being direct about this is more useful than encouragement.

Direct appeals succeed at a low rate, and the successes cluster in identifiable places: guidelines calculation errors, evidentiary rulings on preserved objections, jury instruction errors, and — occasionally — suppression rulings. Sufficiency challenges almost never succeed.

Collateral relief is rarer still, and the successes cluster around failures to investigate — the alibi witness nobody interviewed, the medical records nobody obtained, the expert nobody consulted — and around suppressed evidence discovered later.

What improves the odds, in every proceeding:

Preservation at trial. The single largest determinant of appellate outcomes.
A complete record. Transcribe everything, including bench conferences and voir dire.
Specificity. "Counsel was ineffective" fails; "counsel failed to interview Maria Vega, whose affidavit is attached and states that she was with the defendant at the time" is a claim.
Deadlines. More post-conviction claims are lost to the one-year clock and to exhaustion than to the merits.
Building the record in the right forum, which after Shinn means the state post-conviction proceeding.

Part VII: Five matters

The guidelines error nobody caught

A defendant is sentenced to 108 months. The presentence report applied a four-level enhancement for a leadership role. Trial counsel did not object; the enhancement rests on a single co-defendant's statement that the report characterizes as establishing the defendant "directed others."

On appeal, the unpreserved error is reviewed for plain error — a materially harder standard than the de novo review a preserved objection would have received. But guidelines calculation errors are the category where plain error relief is most often granted, because an incorrect range is clear, it affects substantial rights when it produces a longer sentence, and it implicates the fairness of the proceeding.

What the appellate brief must show: that the enhancement's legal standard requires more than a defendant's relative culpability — organizational leadership, recruitment, decision-making authority, or a claim to a larger share — and that the record contains no finding of any of that. Then the arithmetic: the corrected range, and the sentence's position within it.

The lesson for trial counsel is unglamorous: object to every guidelines calculation, in writing, by the deadline, even where the objection seems unlikely to succeed. The difference between de novo and plain error review is the difference between a live issue and a dead one, and the objection costs an afternoon.

The claim that belonged somewhere else

Appellate counsel files a direct appeal arguing that trial counsel failed to call an alibi witness.

This will lose, and not on the merits. The record contains no evidence of what the witness would have said, whether counsel knew of them, or why counsel did not call them. Appellate courts decline these claims on direct appeal precisely because the record cannot support them — and in many jurisdictions, raising it on direct appeal and losing bars raising it later as previously litigated.

What should have happened: the direct appeal raises the record-based issues (the guidelines error, the evidentiary ruling, the instruction), and the ineffective assistance claim is reserved for state post-conviction, where an evidentiary hearing can develop the witness's affidavit, counsel's file, and counsel's testimony about the decision.

And after Shinn, the stakes of that choice are higher than they used to be: the factual record must be built in state court, because federal habeas will generally not permit development of evidence the petitioner failed to develop there.

The Brady file discovered in year six

A post-conviction investigator obtains the police file through a public records request and finds a witness statement, never disclosed, in which the only eyewitness described a suspect of a different height and build.

The elements, in order: the statement is favorable — both exculpatory and impeaching; it was suppressed, whether willfully or inadvertently, and the prosecutor's personal ignorance is not a defense because the duty extends to evidence known to police; and there is prejudice, meaning a reasonable probability of a different result.

How the materiality showing is built: not by asserting that the jury might have acquitted, but by describing the trial the defense would have conducted — the cross-examination of the eyewitness with the prior inconsistent description, the closing argument that becomes available, and what the government's case looks like once its central witness is impeached.

The procedural work matters as much as the merits. The claim was unavailable earlier, which addresses both the procedural default and the limitations period — the one-year clock runs from when the factual predicate could have been discovered through due diligence, and the petition should establish when and how the file was obtained and why it could not have been obtained sooner.

The general lesson: in any serious post-conviction case, get the file — police reports, notes, dispatch records, lab bench notes, the prosecutor's file where obtainable — through public records requests, discovery in the post-conviction proceeding, or both.

The one-year clock miscalculated

A state prisoner's conviction becomes final on 10 March. He files a state post-conviction petition on 1 October, which is denied and finally resolved on 15 May two years later. He files in federal court four months after that.

Do the arithmetic: 205 days ran before the state petition was filed. Properly filed state post-conviction proceedings toll the clock while pending. Roughly 120 more days ran after the state proceedings concluded. Total: about 325 days — inside the year, but with only about forty days to spare.

Where these calculations go wrong:

The state petition was not "properly filed" — untimely under state law, or filed in the wrong court — in which case it tolled nothing and the entire period ran.
Counsel assumed the clock restarted after state proceedings. It does not; it resumes.
The finality date was miscalculated, ignoring the ninety days for a certiorari petition where direct review concluded in the state's highest court.
A gap between the denial and the appeal within the state system was assumed to toll when the state's rules made the appeal untimely.

The practical instruction: calculate the deadline in writing, with dates, at the outset, and keep a running tally. Equitable tolling exists but requires diligence plus an extraordinary circumstance and is granted rarely. More federal habeas petitions are lost to this arithmetic than to any merits doctrine.

The sentence that changed years later

A man serving a long term develops a serious progressive illness the Bureau facility cannot manage. He has served eleven years, has a clean disciplinary record, and has completed every available program.

Compassionate release under 18 U.S.C. § 3582 is the mechanism: extraordinary and compelling reasons, after exhausting administrative remedies or thirty days from a request to the warden, considering the sentencing factors and applicable policy statements.

What a successful motion contains:

The medical record, complete, with a physician's statement about prognosis, care requirements, and what the facility can and cannot provide.
The administrative request to the warden and the response or the thirty-day lapse.
The institutional record — disciplinary history, program completions, work assignments, education.
A release plan: where he will live, who will care for him, what medical coverage applies, and what supervision is proposed.
A sentencing factors analysis: time served relative to the original sentence, changes in the applicable law or guidelines, age-related recidivism data, and why release is consistent with the purposes of sentencing.

Related avenues to check in the same review: retroactive guideline amendments; a Rule 35 motion if within the window; clemency; and, in state systems, parole eligibility and medical or geriatric release statutes, which exist in most states and are consistently underused.

Part VIII: Sentencing advocacy that works

Sentencing is the stage where advocacy has the most room to operate, because the range of lawful outcomes is wide and the standard — sufficient but not greater than necessary — is genuinely open-textured.

Start early. The most effective sentencing work begins at the plea, not after it. Charge selection, the stipulated facts, whether a mandatory minimum is in play, and the acceptance of responsibility posture are all determined before the report is written.

Attack the report methodically. Read it three times: once for the guidelines arithmetic, once for factual accuracy, once for what it says about the person. Object in writing to every calculation error and every factual inaccuracy, including those that do not change the range, because the report follows the defendant into custody and drives classification and program eligibility.

Build the mitigation record. A sentencing memorandum that recites the statutory factors is worth little. One that supplies evidence on them is worth a great deal:

A social history — where this person came from, what happened to them, and how it connects to the offense.
Records rather than assertions — school, medical, mental health, military, employment, and treatment.
An evaluation where a condition is present, addressing diagnosis, treatment needs, and prognosis.
Letters from people who know the defendant now, describing specific observations, not character adjectives.
A concrete plan — the job, the housing, the treatment slot, the supervision — because judges sentence more leniently when they can see what release looks like.

Address the government's theory directly. If the argument is deterrence, engage the evidence on marginal deterrence from sentence length. If it is seriousness, distinguish the conduct within the offense category. If it is disparity, produce comparable sentences — the statutory factor about unwarranted disparities cuts both ways and defendants rarely use it.

Prepare the allocution. Three minutes, spoken not read, accountable and specific, addressing the harm and what has changed. Rehearse it. The most common failure is a defendant who has been told to "say something" and says the wrong thing under pressure.

Prepare the family. Whoever speaks should be brief and should not attack the victim, the prosecutor, or the process. A parent who says "he has always been a good boy and the police lied" undoes an hour of careful work.

And ask for a specific number. A memorandum that asks for "a sentence below the guidelines" invites the court to pick the bottom of the range. One that asks for a specific term with a supported rationale gives the court something to grant.

Part IX: What a plea gives up, and what survives

Because the overwhelming majority of convictions follow pleas, the most consequential post-conviction question is usually what the plea preserved.

A guilty plea waives all non-jurisdictional defects that preceded it — including, in most circumstances, suppression rulings, speedy trial claims, and grand jury defects. This surprises defendants constantly: the suppression motion that was litigated and lost is generally gone once a plea is entered.

A conditional plea, permitted in the federal system and many states with the government's consent and the court's approval, preserves a specified pretrial issue for appeal while entering a plea. It requires the reservation to be in writing and specific, and it is dramatically underused — a defendant who wants to preserve a suppression ruling should ask.

Appeal waivers are common in plea agreements and are generally enforceable. Read the scope: many waive the right to appeal the conviction and any sentence within or below a stated range, while preserving claims of ineffective assistance and prosecutorial misconduct. Some waive collateral attack as well.

What survives even a broad waiver, in most circuits:

Ineffective assistance in negotiating or entering the plea itself.
Claims that the plea was not knowing and voluntary.
A sentence exceeding the statutory maximum or based on a constitutionally impermissible factor.
Jurisdictional defects.
Claims the waiver itself was not knowing and voluntary.

And what a plea does not waive at all: the collateral consequences the defendant may not have been told about. Immigration consequences are the most significant — advice about them is constitutionally required in many circumstances, and a plea entered without it may be attackable. See Removal Proceedings and Humanitarian Relief. Firearms disability, registration requirements, licensing consequences, and housing and benefits eligibility all follow the plea and are frequently unmentioned at the colloquy.

The practical instruction for defense counsel is that the plea colloquy is the last clean moment: make a record of the advice given about immigration, firearms, registration, licensing, and appeal rights, and get the client's understanding on the transcript. The practical instruction for a defendant is to ask, before pleading, exactly what this conviction does to their immigration status, their right to possess a firearm, their professional license, their housing, and their ability to appeal.

Part X: Innocence claims and new evidence

A subset of post-conviction work is not about legal error at all. It is about the possibility that the wrong person was convicted, and it operates under different rules.

Newly discovered evidence is a recognized ground in most state post-conviction schemes, typically requiring that the evidence: was discovered after trial; could not have been discovered earlier with due diligence; is material and not merely cumulative or impeaching; and would probably produce a different result. The "probably" standard is demanding and it is why many factually powerful claims fail.

Freestanding innocence — the claim that a person is innocent, without any accompanying constitutional violation — is recognized in some state schemes and its availability in federal habeas is limited and contested. The practical consequence is that innocence claims are usually packaged with a constitutional claim: suppressed evidence, ineffective investigation, false testimony, or discredited forensic science.

Where innocence claims actually come from:

DNA testing of previously untested biological evidence, with statutes in every state providing access to testing on a showing that results could establish innocence. Preservation is the constant problem — evidence is destroyed on routine schedules, and a preservation demand should go out immediately.
Recantation by a witness, which courts view skeptically and which requires corroboration to be useful.
Discredited forensic disciplines. Several fields once presented as reliable have been substantially undermined, and a number of states have created statutory mechanisms permitting relief where the science underlying a conviction has changed. Check whether the state has such a statute; they are recent and underused.
False confessions, where recording, expert testimony on interrogation-induced confessions, and inconsistencies with the physical evidence combine.
Identification error, where the procedures used are examined against what is now known about suggestion and confidence.
Informant testimony, where undisclosed benefits are discovered — which is simultaneously a Brady claim.

And the practical infrastructure: innocence organizations exist in nearly every state, most affiliated with law schools, and they accept applications directly from incarcerated people and families. They are free, they screen carefully, and they are the right first contact for a claim of actual innocence with a factual basis.

A candid note about what they can take. These organizations receive far more requests than they can accept and generally prioritize cases with testable biological evidence, a plausible alternative perpetrator, or a specific identifiable defect. A letter that states the specific reason to doubt the conviction — with names, dates, and documents — is far more likely to be screened in than one asserting innocence generally.

Part XI: The map, in one place

The single most useful thing for a person or family navigating this is a picture of which door is which, and when each one closes.

Stage	Court	What it can address	Typical deadline	Standard
Sentencing	Trial court	The punishment	At the hearing; PSR objections earlier	Sufficient but not greater than necessary
Rule 35 / correction	Trial court	Clear error; assistance	Very short (days)	Statutory
Direct appeal	Appellate court	Record-based legal error, preserved	14 days federal; 30–60 state	De novo / clear error / abuse of discretion / plain error
Discretionary review	State supreme court	Selected issues	Short, after intermediate court	Discretionary
Certiorari	U.S. Supreme Court	Federal questions	90 days	Discretionary
State post-conviction	Trial court (usually)	Ineffective assistance, new evidence, Brady	Varies widely by state	State standards; hearing may be available
Federal habeas (§ 2254 / § 2255)	Federal district court	Federal constitutional claims	One year, with tolling	Deference; unreasonable application; procedural default
Second or successive	Court of appeals first	Narrow grounds	On authorization	Very restrictive
Compassionate release	Sentencing court	Extraordinary and compelling reasons	After exhaustion or 30 days	Statutory factors
Retroactive amendment	Sentencing court	Reduced range	When amendment is retroactive	Statutory
Clemency	Executive	Anything	None	Discretionary; no appeal
Parole	Board	Release	Eligibility date	State standards

Four rules that follow from the table:

File the notice of appeal. It is the cheapest act in the entire process and its omission forecloses everything downstream. If there is any doubt, file it.
Do not put a claim in the wrong box. Record-based error goes on direct appeal; ineffective assistance and new evidence go in collateral review. A claim in the wrong proceeding is frequently barred in the right one.
Build the factual record in state post-conviction, because federal habeas will generally not develop it for you.
Calculate every deadline in writing, with dates. The one-year federal clock, the state post-conviction deadline, and the appellate deadline are each capable of ending a meritorious case on their own.

And a note on counsel. There is no constitutional right to appointed counsel in most collateral proceedings, which means the people with the strongest claims are frequently the ones least equipped to present them. Law school post-conviction and innocence clinics, state post-conviction defender offices where they exist, and pro bono programs are real and are underused — and a specific, documented letter gets attention that a general one does not.

Part XII: Six things worth remembering

File the notice of appeal. Fourteen days in federal court, thirty to sixty in most states, jurisdictional. It costs almost nothing and its absence ends everything.
Preservation is the appeal. An objection made and ruled on gets ordinary review; one not made gets plain error, and the gap between those two standards is where most appeals are decided. Object to every guidelines calculation in writing, even the ones you expect to lose.
The presentence report outlasts the hearing. It drives the sentence, then the security classification, then the program eligibility, then the release decision. Correct every factual error, including the ones that do not change the range.
Put each claim in the right proceeding. Record-based error on direct appeal; ineffective assistance and new evidence in collateral review. A claim raised in the wrong forum is frequently barred in the right one.
Build the record in state post-conviction. After Shinn, a federal habeas court will generally not develop facts the petitioner failed to develop in state court. The state petition is where the affidavits, the records, and the hearing testimony have to be created.
Specificity wins and generality loses. "Counsel was ineffective" is not a claim. "Counsel never interviewed Maria Vega, whose attached affidavit places the defendant elsewhere, and whose name appeared in the police report counsel possessed" is one. The same is true of Brady claims, sentencing arguments, and compassionate release motions: name the document, attach it, and say what it would have changed.

And a word about time. Post-conviction work is slow — years, frequently — and the deadlines that govern it are unforgiving in the opposite direction. The combination is cruel and it is the actual shape of the field. The practical response is to calendar every deadline in writing at the outset, to start the investigation immediately rather than when the petition is due, and to keep the file organized well enough that a new lawyer picking it up in year four can find what year one produced.

Frequently asked questions

How long do I have to appeal? In federal criminal cases, 14 days from entry of judgment. State deadlines are commonly 30 to 60 days. The deadline is jurisdictional — calendar it the day of sentencing.

Can I raise new evidence on appeal? No. Appeals are decided on the existing record. New evidence belongs in collateral review.

Why can't my appeal raise ineffective assistance? Because the record does not contain counsel's reasons. It belongs in state post-conviction or a § 2255 motion.

Are the guidelines mandatory? No, after Booker — but the range must be correctly calculated and considered, and a calculation error is the most reversible sentencing error there is.

What is the habeas deadline? Generally one year, with tolling for properly filed state post-conviction proceedings. The calculation is technical and unforgiving.

Why does the state post-conviction petition matter so much? Because Shinn means the factual record for an ineffective assistance claim generally must be developed there. A claim first developed in federal court will usually fail.