This information was prepared by Appellate Defense Division, in an effort to assist defense counsel and their clients during the appellate process. If any errors or omissions are noted, please contact Appellate Defense through DSN 612-4770 or 800-414-8847. Official Disclaimer: Since policies and procedures change without notice, clients should consult with local offices and OPRs for verification of this information.
Your appeal to the Air Force Court of Criminal Appeals (AFCCA)
Pursuant to your request after your trial, appellate defense counsel has been assigned. This attorney will carefully review your record of trial to ascertain whether errors or other matters exist which may be beneficial to your appeal. Your appeal is generally limited to matters indicated in the record of trial and related papers which have already been sent to this office. It is not necessary that you provide your appellate defense attorney with additional information: however, if you do have information relating to your appeal which you desire to discuss with counsel you may contact your appellate counsel by phone or by written correspondence (see phone number and address on the Contact Us page).
DO NOT DELAY. Court rules at each appellate level require the prompt filing of any pleadings for consideration on your behalf. Personal statements that you want to submit to the court should be sworn to before a notary public or include the language "I, (NAME), (SOCIAL SECURITY NUMBER), do hereby make the following declaration under penalty of perjury pursuant to 28 U.S.C. Section 1746." Any additional matter must be sent to your appellate counsel early enough to ensure court-filing deadlines can be met. Your failure to expeditiously communicate with your appellate counsel could result in your appellate counsel being unable to include such matters before the court's deadline. Time suspense's are strictly enforced by the court.
Appellate defense counsel will read your entire record of trial and research any applicable law. If any issues are discovered in your case, then a written brief will be submitted to AFCCA. If your appellate defense counsel cannot find any matters upon which to raise issues to the court, your case will still be forwarded to AFCCA so that the court may consider your case on its merits. Even when a case is submitted on its "merits," AFCCA independently reads the entire record of trial. If they identify any issues, they may decide those matters and may even specify issues back to be briefed.
AFCCA is composed of active duty Air Force officers. The Court will ultimately make a decision in your case. It may reverse a portion of the trial court's decision. Alternatively, AFCCA may uphold or affirm the trial court's verdict and sentence in part or total.
Appealing to the U.S. Court of Appeals for the Armed Forces (CAAF)
Any petition to appeal AFCCA's decision must be filed with CAAF (a group of civilian judges) no later than 60 days from the earlier date of: a) the date on which you are notified of the decision of AFCCA or b) the date on which a copy of the decision of the AFCCA after being served on appellate counsel of record is deposited in the United States mail for delivery by first-class mail to you at the address you provided. (If you have not provided an address, then it is sent to the latest address shown in your official service record.) Typically, therefore, the petition is due 60 days after your Air Force Court opinion is issued.
Unlike review before the AFCCA, review before the CAAF, the next-higher level appellate court, is discretionary. This means that the CAAF reviews only those cases they select for their consideration. Only a small percentage of the cases presented by appellants for review by the CAAF are actually selected for review, and those selected cases involve an assertion of legal error. Therefore, if your case was submitted to the AFCCA on its "merits," it will not be submitted to the CAAF on its merits, unless you let us know of your desire to the contrary. This will result in the end of your appellate review. However, if your case was submitted to the AFCCA alleging a legal error which is reviewable by CAAF, we will automatically petition your case to them if the AFCCA decides against you, unless you tell us you do not want your case appealed to CAAF. (Note: issues regarding the factual sufficiency of the evidence or the severity of your sentence cannot be raised to CAAF.)
Thirty days after the petition is filed, our office will file a "supplement to petition for grant of review." This brief will raise legal issues reviewable by CAAF (or we will file a "merits" brief at your request). CAAF will generally take several months to decide if they are going to grant review of your case. If they deny your petition for grant of review, the appeal of your case is concluded and there is no further appellate review. (You cannot petition the U.S. Supreme Court if your petition is denied by CAAF.) If CAAF grants your petition, additional briefs will again be filed on the legal issues identified in your case and oral argument will probably be ordered. CAAF will issue an opinion in your case some months after the oral argument. They can reverse or affirm your case in part or in total.
Supreme Court Review
If your conviction is affirmed by CAAF, you have 90 days from the date of the decision to submit a Petition for a Writ of Certiorari to the U.S. Supreme Court. The U.S. Supreme Court normally denies Petitions for Writs of Certiorari. This is because the criteria for the types of cases they review are not as broad as the lower courts. The U.S. Supreme Court generally looks to review issues of widespread, national applicability, such as those which deal with matters of constitutional law. Just as the Supreme Court defers to state courts in the interpretation of their own state law, the Supreme Court also defers to the CAAF in the interpretation of military law. Because Supreme Court review of military cases is highly unlikely, it is our division's policy to request review in only those cases that most clearly meet the Supreme Court's criteria. In order to determine which cases meet this criteria, we have established a Supreme Court Committee. The committee reviews unfavorable decisions by the CAAF for possible presentation to the Supreme Court. The committee is composed of three experienced appellate defense counsel from the Appellate Defense Division. By applying the Supreme Court's criteria for granting review, the committee determines whether we should request review from the Supreme Court. The committee's decisions are then approved or disapproved by the Chief of the Appellate Defense Division, who is the final approval authority. You still have the right to retain civilian counsel or to represent yourself before the Supreme Court. (Our office has a handout on the procedures.)
It is clearly critical that you keep us informed of your current address/phone number and how to contact you swiftly so your deadline to appeal can be met, if you desire to appeal. As you can see, your case on appeal can take different routes, depending on rulings which begin with the AFCCA. Our ability to represent you most effectively is dependent on you keeping in contact with your appellate defense counsel so you may remain current on the status of your case and your options for appeal.