Steve Palmer [00:00:00]:

Lawyertalkpodcast.com what's the appeal? Well, what is the appeal? Well, this is where I talk about all things that involve appeals and appellate rights and post conviction stuff, getting people out of jail or trying to or challenging convictions, etc. And when I started this, I thought, well, nobody's really going to care about what's the appeal, but people do. I get lots of questions about this stuff. And so I'm going to keep doing it. If you like it, if you got a question or something you want me to cover specifically about appeals federal, state or otherwise, check it out. LawyerTalkPodcast.com or leave a comment. But today I'm going to talk about something that I've run into lately. I my practice, Palmer Legal Defense, we've been doing a lot of appellate work.

Steve Palmer [00:00:39]:

I started my career writing. I have a background in writing. I love it. And I do a lot of appellate work. And since COVID I've sort of shifted my practice to do even more of it. And I've noticed something I've noticed something there. And this isn't I'm not here to impugn other lawyers because a lot of times people get what they get or people do what they know to do. But there's so many pitfalls and nuances in the appellate process that I know that a lot of folks, they go to an attorney.

Steve Palmer [00:01:12]:

And what I'm really getting at is how to choose an appellate lawyer. Find somebody who knows the nuances, find somebody who knows the pitfalls, who find somebody who will inform you about, not only say the direct thing in front of you or the appeal that you're looking at, but maybe all the other possibilities. And here's why I'm bringing this up, because there are so many ways to screw up the appellate ladder. And everybody, if you've listened to these, this series, you know what I'm talking about, the appellate ladder, where you have to take every step all the way up. And there are so many ways to screw up the appellate ladder that you run into as you go up the ladder, you find out there's no more steps because you didn't do something early on to put that step in place. And I ran into this recently. I'm in federal court on something called habeas corpus, which is where we're asking a federal court to look at a state court conviction. And typically, if you're going to get federal review of a state court conviction, you have to give the state courts every opportunity to fix it themselves.

Steve Palmer [00:02:15]:

So that's the first thing Every opportunity to fix it themselves. Maybe it's the second, but it doesn't matter. There's no particular order. Meaning if there's an issue in, say, at trial and somebody does, there's evidence that's admitted and the lawyer doesn't object to the trial court, then that is not giving a state court a full opportunity to fix it itself. Meaning later on in habeas corpus, if there's no objection to that, you're going to get thrown out because somebody didn't object. Now, what's the second thing? And we'll actually, we'll just take that up the ladder for a second. So then you go to the court of appeals in state court and you don't raise that issue. The defendant hires an appellate lawyer who doesn't know to raise that issue or doesn't for whatever reason or misses it.

Steve Palmer [00:02:58]:

Then you get up to federal court over here and the court's going to say, sorry, even though there was an objection here, you didn't raise it. You didn't tell the court of appeals about this issue and give that state court an opportunity to fix it itself. Or maybe you did give that direct appeal so the court of appeals a chance to fix it. But you asked the Ohio Supreme Court or your local, state supreme court. Not local, whatever your state supreme court is, to look at it, and you leave that issue out. And now you're on federal habeas corpus and the court's going to say, look, I get it, you objected. You raised it on direct appeal. But you didn't ask your state supreme court to fix it itself.

Steve Palmer [00:03:36]:

So now you're defaulted. You can't raise it here. The other requirement, and this is the one that, that drives me bananas, every time we object at a trial, I make it a federal issue. And what does that mean? Objection. This is hearsay. And it violates my client's right of confrontation under the sixth amendment to the United States Constitution and similar provisions of the Ohio Constitution. I turn into this rote pain in the backside to judges. They look at me like, what are you doing? Why are you, Mr.

Steve Palmer [00:04:08]:

Constitution? Well, because I do appellate work, folks, and I've been over here on habeas corpus before where a lawyer didn't say that thing and they didn't give the state court a fair and full opportunity to fix the issue. The federal issue. You have to make it a federal issue. You can't go to federal court and ask them to fix a state issue. You have to go to federal court and ask them to fix a federal issue. Meaning a constitutional federal issue. And this is so critical. And that's why when you hire an appellate lawyer, say you've just been convicted, and the appellate lawyer raises all the issues, but they only quote the Ohio Constitution, the Pennsylvania Constitution, or wherever you are, and they don't quote the U.S.

Steve Palmer [00:04:48]:

constitution, and they don't cite cases supporting your proposition from the federal courts or the U.S. supreme Court. They are, they are. They're failing to put the steps in place on the appellate ladder. And you're going to, unfortunately, if you get that far, all the way up to habeas, you're going to learn it the hard way. The court is going to say, sorry, you're out. We can't help you when you get to habeas corpus. It's what we call discretionary review.

Steve Palmer [00:05:15]:

And in federal court terms, that means the federal courts don't want. They don't want to look at it. They don't care about your state court case. They could care less. And you're thinking, well, why not? It's the most serious thing in my life. It is. But to them, they don't care. Almost to the point where it's offensive.

Steve Palmer [00:05:29]:

They don't care. They could care less. They only want to look at something if they absolutely have to. So you have to check every box, you have to build every step, you have to put every rung on the ladder. And you can't give the federal courts a reason not to look at it because they will take it. They will always take that reason, and they will kick you out, and you're going to be sitting in a state court prison cell even though there was a huge mistake in your case because somebody didn't raise it the right way. So this is why it's so critical when you interview appellate lawyers. Don't take the first one.

Steve Palmer [00:05:59]:

Or maybe I don't want to say that because it could be me. I could be the first one, and I'm probably a good one for you. So don't make sure that you ask these questions. What about the federal issues? When can I get to federal court? How can I get to federal court? Do we have to raise these issues in a federal way in the state courts? Just ask these questions because the answers mean everything. Now. It couldn't. It. It may be that you win the state court of appeals and you never need to go up to federal court.

Steve Palmer [00:06:26]:

I get paid to worry about stuff that most people don't worry about, and I'm worried about the future. I, I have this crystal ball every time I take an appellate case. And I think, all right, let's say the worst thing happens. I don't win on direct appeal, and then I don't win in the court, in the Ohio Supreme Court. Now what do I have a federal issue that I can raise later. And if, if I, if, if I'm going to get that far, how do I raise it? Now, I'm not a great chess player. Actually, my son beats me, even though he's younger and hasn't played as much. But he, you know, you have to predict the board.

Steve Palmer [00:06:55]:

You have to see 10 moves ahead. And if you don't, you're losing before you even start. So look, what's the appeal? Check it out. LawyerTalkPodcast.com if you like the podcast and you got a question, shoot me a topic. I'll be happy to cover it. If you got an appeal and you want me to look at it, I'm happy to do it. I work all over the place, federal, state courts, anywhere. PalmerLegalDefense.com.