Post-Conviction August 18-19, 2016

Wyndham Garden

Austin TX 78741

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Topic:

Federal Appeals

Speaker: Nicole DeBorde Hochlaube & DeBorde, PC

712 Main St Ste 2400

Houston, TX 77002-3215

713.526.6300 phone

713.228.0034 fax

Nicole@debordelawfirm.com Email

Federal Appeals A Short Guide to Federal Appeals

By Nicole DeBorde

nicole@debordelawfirm.com 713-526-6300

Special Thanks to Daniel DeLaGarza

Federal Appeals

The chances of winning a federal appeal in a criminal case are very, very

small. In fact, according to the Fifth Circuit’s latest published statistics, on 3.7% of the criminal appeals filed in that court resulted in reversal. With the not so cheerful news that you have a little worse than a 96% chance of losing, the goal of this paper is to give a bird’s eye view of some helpful information necessary to pursue an appeal in federal court. The attached flowchart from the Fifth Circuit website gives an overview of what takes place in the federal appellate process, which on average, takes about eight to nine months. Also attached to this paper is an “appellate checklist” also available on the Fifth Circuit’s website. Additionally, while the Federal Rules of Appellate Procedure govern, this paper will focus on how appeals travel through the process in the Fifth Circuit specifically, and if you are working on appeal in a different circuit, remember to check that court’s website for rules specific to that court. Finally, oral argument is only granted in about 25% of the cases before the Fifth Circuit, your briefing is your only chance at persuasion at least 75% of the time. Your writing should be clear, concise and persuasive while sticking to the facts in your record. Write as if your reputation and credibility depend on what you submit. They do. Take time to draft a succinct description of how the court has jurisdiction, how the case came to be before the circuit court and to describe your issues clearly and concisely. In deciding which points of error to address in your brief, remember that including arguments that are either unclear or clearly lacking in merit bring into question the validity of the other issues you wish the court to address. More is often not better. Also, avoid the “record march” when describing your facts. The statement of facts should be persuasive while remaining honest and should tell a story in the narrative. It is not effective writing to summarize each witness’s testimony in the order of testimony. Instead, tell a story and break the story into relevant paragraphs with headings or sub-headings. For argument, break the argument discussion into clearly divided topics, also with headings. When citing cases, avoid extensive quoting. You have probably cited a case because the case stands for some idea you wish to convey. The citation with your argument should be sufficient in most cases. Clear writing is often more brief and concise. Write your brief as if you are writing the opinion for the judges.

Pre-Briefing Notice of Appeal Appeal from a final judgment or order of a district court is taken by filing a notice of appeal with the district court clerk within the time prescribed in FED. R. APP. P. 3(a) and 4. The notice of appeal must name all the parties taking the appeal, designate the judgment or order, or part thereof, you are appealing, and identify the court you are appealing to, FED. R. APP. P. 3(c). The district court clerk will notify the government by mail that a notice of appeal has been filed and will send the Court a copy of the notice of appeal and the district court docket entries, FED. R. APP. P. 3(d). Time for Filing A defendant must file a notice of appeal within 14 days after entry of the judgment or order being appealed, FED. R. APP. P. 4(b). The prescribed time for filing notice of appeal is jurisdictional and may not be extended by the court of appeals except in the limited circumstances articulated in Rule 4, see FED. R. APP. P. 26(b). Appeal Docketed Once notice of appeal and the district court docket entries are filed, the clerk’s office reviews the information and dockets appeals from the district courts. Jurisdictional Review After the case is docketed, the Court conducts an initial jurisdictional review. Cases with obvious jurisdictional deficiencies are sent to a three-judge jurisdictional review panel for review and possible dismissal. Assuming the reviewing staff attorney notes no obvious jurisdictional issue a notice of docketing activity and enclosures, using the ECF system. At this time, the Court will also direct you to pay any outstanding fees, to send in an appearance form as required by 5TH CIR. R. 46, and how to obtain access to the Record on Appeal for use in writing your brief. Entry of Appearance 5TH CIR. R. 46.3 states attorneys must enter their appearance in each case in which they participate at the time the case is docketed or upon notice by the clerk. A form for entry of appearance is provided by the clerk. In addition to other pertinent information, the form requires counsel to cite all pending related cases and any cases on the docket of the Supreme Court, or this or any other United States Court of Appeals, which involve a similar issue or issues. Counsel must update such information at the time of briefing. Counsel must also indicate on the form whether the appeal is in a category of cases requiring preference in processing and

disposition as set out in 5TH CIR. R. 47.7. You can download the form from the clerk’s office section of the court’s web site: 1) COMPLETE IT ELECTRONICALLY, 2) SAVE IT, AND 3) UPLOAD THE COMPLETED FORM WHEN YOU DOCKET YOUR APPEARANCE ELECTRONICALLY. Because there may be delay between when you file an appearance form and when you can actually file a document electronically, counsel is advised to file an appearance form as soon as they know they will be participating in the case whether it is on written motions or oral arguments. Transcript Order Form To order necessary transcripts, counsel must: 1) Complete Part I of the transcript order form approved by the Court and distributed by the clerk of the district court, see sample TRANSCRIPT ORDER FORM below; 2) Serve copies on the court reporter, the clerk of the district court and all other parties to the appeal, 3) file a copy with the court of appeals; and 4) Make satisfactory arrangements to pay for the transcript, at the time you order the transcript. The order is not complete until financial arrangements have been made with the court reporter, 28 U.S.C. § 753(f), FED. R. APP. P. 10(b)(4). If the United States is paying under the Criminal Justice Act, the order must say so and you must fill out and submit a CJA-24 form, which are available at the district court clerk’s office. After the court reporter receives your transcript order form, he or she must: 1) Acknowledge getting it; 2) Estimate the completion date and the number of pages in the completed transcript; and 3) Complete Part II of the Transcript Order Form. The court reporter files one copy of his acknowledgment with the Court and another with the district court clerk, 5TH CIR. R. 11.1. ECF FILERS NEED TO FILL OUT THE TRANSCRIPT ORDER FORM ELECTRONICALLY AND UPLOAD IT WHEN DOCKETING THE EVENT IN CM/ECF. The appellant must order necessary transcripts, not already on file, within 14 days after the notice of appeal is filed. Because time required for the production of transcripts is a major cause of delay in appeals, counsel is urged to order and to pay for all necessary transcripts as soon as possible after the notice of appeal is filed. In an appeal where the appellant requests expediting the appeal because his sentence is one year or less, counsel must order and pay for necessary transcripts when the notice of appeal is filed. The Court does not favor motions for extensions of time to file briefs when the necessary transcripts were not ordered in a timely manner.

Electronic Record on Appeal Certified The district court clerk is responsible for determining when the record on appeal is complete for purposes of the appeal. Unless the record on appeal is sent to the Court within 15 days from the filing of the notice of appeal or 15 days after the filing of the transcript of any trial proceedings, whichever is later, the district court clerk must advise the Clerk of Fifth Circuit of the reasons for delay and request an extension to file the record. The Fifth Circuit Court Clerk may grant an extension for no more than 45 days. Extensions beyond 45 days are referred to a single judge. When transmitting the record on appeal in a direct criminal appeal involving more than one defendant, the district court must separate and identify the pleadings and any transcripts of pre-trial, sentencing, and post-trial hearings

that apply to fewer than all of the defendants. However, only one copy of the trial transcript is required. Briefing Notice Briefing notices are tailored to each individual case but will generally tell you: 1) The brief due date; 2) The court does not favor extensions of time to file briefs; 3) The court can dismiss your case if you do not timely file your brief; 4) How to cite to the record on appeal in writing your brief; and 5) will remind you to send in an appearance form, discussed above, if you have not already done so. Counsel should read the briefing notice promptly and make a checklist of what needs to be done.

Extensions In federal appellate court, extensions are far from automatic even

when unopposed. Unopposed requests for extension for less than 30 days normally

should be made via CM/ECF (under the Briefing Category), 5TH CIR. R. 31.4.3.1,

and must include a letter detailing the need. The clerk should receive all motions

requesting an extension at least 7 days before the due date. 5TH CIR. R. 31.4.1.

and the Internal Operating Procedures following 5TH CIR. R. 27 and 31 express

the court’s sense that absent extraordinary circumstances, the MAXIMUM

extension in criminal cases is 30 days. (Fifth Circuit Website)

Computing Time All deadlines are calculated using the “days are days,” or

calendar days method. FED. R. APP. P. 26 gives explicit instructions how to count

deadlines expressed in days and hours, etc.

Briefing Principal Briefs FED. R. APP. P. and 5TH CIR. R. 28 set out the requirements for briefs filed in appeals. The principal brief must contain the following, in the order indicated, a(n):

1. Cover meeting the requirements of FED. R. APP. P. 32. 2. Certificate of interested persons, 5TH CIR. R. 28.2.1; 3. Statement regarding oral argument, 5TH CIR. R. 28.2.3; 4. Table of contents with page references, FED. R. APP. P. 28(a)(2); 5. Table of authorities, FED. R. APP. P. 28(a)(3); 6. Brief statement of jurisdiction, FED. R. APP. P. 28(a)(4)(A)

through (D);

7. Statement of the issues presented for review, FED. R. APP. P. 28(a)(5);

8. Statement of the case, setting out the facts relevant to the issues presented for review, describing the relevant procedural history, and identifying rulings presented for review with appropriate references to the record, FED. R. APP. P. 28(a)(6);

9. Summary of the argument, FED. R. APP. P. 28(a)(7); 10. Argument, FED. R. APP. P. 28(a)(8). This must contain the party’s

contentions with respect to the issues presented, and the reasons therefor, and must include citations to relevant authorities, statutes, and page numbers in the record on appeal. Although FED. R. APP. P. 28(a)(8)(B) allows discretion on where to place the standard of review in your brief, the Fifth Circuit greatly prefers that your standard of review be “clearly identified in a separate heading before discussion of the issues.” If the issue is failure to admit or exclude evidence, refusal to give a particular jury instruction, or any other ruling for which a party must record an objection to preserve the right of appeal, your brief should identify where in the record on appeal counsel made proper objection and where it was ruled upon;

11. Short conclusion, setting forth the precise relief sought, FED. R. APP. P. 28(a)(9);

12. Signature of counsel or a party, FED. R. APP. P. 32(d) and 5TH CIR. R. 25.2.10 for ECF filing;

13. Proper certificate (proof) of service, FED. R. APP. P. 25. 14. Certificate of compliance, if required by FED. R. APP. P. 32(a)(7)

and 5TH CIR. R. 32.3. Designation of Parties Designations as “appellant” and “appellee” should be used as little as possible. In the interest of clarity, the briefs should, as much as possible, use the designations used in the court or agency below, the actual names of the parties, or terms descriptive of the parties. Citing to the Record The Fifth Circuit has now adopted the Electronic Record on Appeal (EROA) as the official record in cases in which the district court created the appellate record. Thus your appeal may contain three types of records on appeal. First, the appeal may have an entire record prepared before the court adopted the Electronic Record on Appeal (EROA) as the official record that uses "USCA5" pagination. Second, your appeal may have a

record created under the new EROA format, which includes the case number (for example, 13-12345). Finally, the appeal may have original and supplemental records and may contain both USCA5 and EROA pagination formats. Record Citation Format You may only use the EROA citation format for EROA records. For EROA appeals, in single record cases, you will utilize the format of "ROA," followed by a period, followed by the page number (e.g., ROA.123). For multiple record EROA cases, you will utilize the format of "ROA," followed by a period, the Fifth Circuit's case number, another period, and then the page number (e.g., ROA.13-12345.123). Paper Copies The Court requires paper copies of an appellant’s brief after the electronic version is screened to ensure no deficiencies exist. Once the Court ensures no deficiencies exist it will advise counsel to send in the paper copy. Cover Except for filings by unrepresented parties, paper copies of briefs must have a durable cover and be in the colors prescribed by the federal rules. The cover must have the: 1) Case number at the top of the cover; 2) Name of the court; 3) Title of the case; 4) Nature of the proceeding and the name of the court; 5) Title of the brief, identifying the party or parties on whose behalf the brief is filed, e.g., “Appellant’s Brief” or “Brief of Appellant”; 6) Name, office address, and telephone number of counsel representing the party filing the brief. The brief must be bound securely and the binding may not obscure the text, and must allow the brief to lie reasonably flat when open. The court strongly prefers spiral binding. Paper Size, Line Spacing and Margins The brief must be on 8½ x 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Typeface. You may use either monospaced or proportionally spaced typeface. Text written in proportionally spaced typeface must include serifs, and the typeface must be at least 14 points. Monospaced typeface may not have more than 10½ characters per inch. As an exception to the federal rule, footnotes may be in 12 point or larger proportional typeface.

Page Limits. Principal briefs which have 30 or fewer pages automatically meet the length standards of FED. R. APP. P. 32(a)(7)(A). Principal briefs can be longer than 30 pages if counsel complies with the “type-volume” limits and provide a certificate of compliance. Type-volume Limits A principal brief may have up to 14,000 words in either proportional or monospaced typeface. Alternatively if your software application cannot count words, or if your brief is typed on a typewriter which has monospaced typeface, the brief may have up to 1,300 lines of text. In counting pages, words, or text lines, do not count the certificate of interested persons, the tables of contents and citations, statement regarding oral argument, addendum containing statutes, rules or regulations, and any certificates of counsel. Record Excerpts What are They? The Fifth Circuit uses the original record in deciding every case on the merits, and the district court sends the record to counsel for use in writing their briefs. You must pay for shipment costs. Parties are not required to file an “appendix” as contemplated by FED. R. APP. P. 30, because the Court uses the original record on appeal. However, 5TH CIR. R. 30 requires parties represented by counsel to file record excerpts in appeals from decisions of district courts, the U.S. Tax Court, and in Agency cases, except for Immigration and Naturalization Service proceedings. Record Excerpts are intended to give circuit judges a readily available and brief document they can read along with the briefs in deciding whether a case needs oral argument. Circuit judges also refer to the record excerpts in preparing for oral argument. When preparing record excerpts counsel should remember the purpose and include only those portions of the record on appeal required by the 5th Cir. Rules, or which will assist the judges when you compile the “optional” contents. Counsel must review the ROA within 20 days of dispatch from the clerk’s office and advise electronically or in writing both the appropriate District Court (or the Tax Court, if appropriate) and Fifth Circuit clerk’s offices of any errors in, or omissions from, the ROA. Failure to comply may result in a denial of any requested extension of time to file a brief due to an alleged error in, or incomplete ROA.

Number of Copies After electronically filed record excerpts are reviewed and noted to be sufficient by the Court, paper copies will be requested. Four copies of excerpts from the district court record should be filed with the Court. Counsel must also serve a copy of the record excerpts on the AUSA. Mandatory Contents Record excerpts must include copies of the following portions of the district court record. Counsel should take particular care in binding the record excerpts to ensure that the binding does not obscure the documents in the excerpts, particularly the docket entries:

1. The docket sheet; 2. The notice of appeal; 3. The indictment in criminal cases; 4. Any jury verdict; 5. The judgment or interlocutory order appealed; 6. Any other orders or rulings being reviewed; 7. Any relevant magistrate judge’s report and recommendation; 8. Supporting opinion or findings of fact and conclusions of law

filed, or transcript pages of orally delivered opinions or findings of fact;

9. A certificate of service complying with FED. R. APP. P. 25. Optional Contents Optional record excerpts may not exceed 40-pages but may include those parts of the record referred to in the briefs, including:

1. Essential pleadings or portions thereof; 2. Jury instructions given or refused that present an issue on appeal,

together with any objection and the court’s ruling, and any other relevant part of the jury charge;

3. The administrative law judge’s findings and conclusions, if the appeal seeks review of a court order reviewing an administrative agency determination;

4. Relevant transcript pages challenging admission or exclusion of evidence, or other interlocutory ruling or order;

5. Relevant parts of written exhibits presenting an issue on appeal. Form Record excerpts must:

1. Have a numbered table of contents, with citation to the record, starting with the lower court docket sheet;

2. Be on 8½ x 11 inch light paper with clear black images; 3. Be tabbed to correspond to the numbers in the table of contents; 4. Be securely bound (spiral binding is preferred) in a way that

allows the excerpts to lie reasonably flat when opened; 5. Have a durable white cover conforming to FED. R. APP. P.

32(a)(2), except titled “RECORD EXCERPTS.” Nonconforming Record Excerpts Nonconforming or otherwise deficient excerpts will be filed. However, if deficiencies are not corrected within the time allowed, the excerpts may be stricken by the Court, sanctions may be imposed against the filing attorney, and the appeal may be dismissed for failure to prosecute.

Certificate of Compliance Form

FED.R.APP.P.-FORM6

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type-Volume Limitation, Typeface

Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of FED. R. APP. P.

32(a)(7)(B) because:

this brief contains [state the number of] words, excluding the parts of the

brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii), or

this brief uses a monospaced typeface and contains [state the number of] lines

of text, excluding the parts of the brief exempted by FED. R. APP. P.

32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of FED. R. APP. P.

32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because:

this brief has been prepared in a proportionally spaced typeface using

[state name and version of word processing program] in [state font size and name of type

style], or

this brief has been prepared in a monospaced typeface using [state name

and version of word processing program] with [state number of characters per inch and

name of type style].

/s/

Attorney for

Dated:

Reply Briefs

Reply briefs are optional, but not always necessary. Do not file a reply brief if you

are restating what has already been said in your original brief. File a reply brief

only when necessary to rebut an important argument from the appellee and if that

argument has not been made clearly in your original brief. If you do file a reply

brief, it must contain a table of contents with page references and a table of

authorities - cases, statutes and other authorities with page references, FED.

R. APP. P. 28(c). Reply briefs are due within 14 days after service of the

appellee’s brief, FED. R. APP. P. 31(a)(1). A reply brief cannot exceed 15 pages,

7,000 words or 650 text lines, FED. R. APP. P. 32(a)(7).

Preparing for Oral Argument

Reread the portions of the record that form the basis of your issues. Review and be

prepared to discuss in detail each of the issues you raised in your brief. Read the

cases cited in your brief and your opponent’s brief. It can be helpful to list the

cases in alphabetical order in color-coded lists (blue for your cases, red for theirs

for example) along with the legal idea presented in the case. Your job is to

convince the judges that reason and fairness, along with the law, support the relief

you are requesting. Give an opening statement outlining where you plan to go in

argument, but be prepared to deviate from your plan. Be concise and professional,

always avoiding personal attacks. Talk with the judge, and do not read arguments.

Timetable from Fifth Circuit Website

WHAT WHO WHERE/WHEN REFERENCE

Notice of

Appeal Appellant

Filed in USDC: Criminal Cases: within 14

days after entry of judgment, or 30 days if

the U.S. is the appellant

Civil Cases: within 30 days after entry of

the order of judgment, or 60 days if the

U.S. is a party

Filed in USTC: Tax Cases: within 90 days

after decision is entered

FED. R. APP.

P. 4(b)

FED. R. APP.

P. 4 (a)

FED. R. APP.

P. 13

WHAT WHO WHERE/WHEN REFERENCE

Filing and

Docketing

fees

Appellant

or

Petitioner

Paid to the USDC or USTC

when notice is filed, unless

appellant is IFP or U.S.:

Filing Fee $5.00

Docket Fee $500.00

Paid to the clerk 5th Cir. in

cases seeking review of

administrative orders or other

original proceedings:

Docket Fee $500.00

FED. R. APP. P. 3 28

USC § 1913

Transcript

Order Form Appellant

Delivered to court reporter

and copies filed in USDC and

5th Cir. within 14 days after

notice is filed

FED. R. APP. P. 10(b)

Transcript Court

Reporter

Filed in USDC:

Criminal and Civil Cases:

Within 60 days after ordered

5th CIR. R. 11.2,

Appellate Transcript

Management Plan

Record on

Appeal

Clerk,

USDC

Filed in 5th CIR.: 15 days after

filing a notice or filing of

transcripts, whichever is later

FED. R. APP. P.

11(b), 5th Cir. R.

11.3

Appellant's or

Petitioner's

Opening Brief

Appellant or

Petitioner

Filed in 5th CIR.:

within 40 days of the

date of briefing notice,

(unless expedited or by

order of the court)

5th CIR. R.

31.3

Appellee's or

Respondent's

Answer Brief

Appellee or

Respondent

Filed in 5th CIR.: within

33 days after date of

appellant’s or petitioner’s

certificate of service.

5th CIR. R.

31.3

Appellant’s or

Petitioner’s

Reply Brief

Appellant or

Petitioner

Filed in 5th CIR.: within

14 days after service of

appellee’s or respondent’s

brief

FED. R. APP. P.

31

Oral Argument

Calendars Clerk, 5CIR.

Issued 60 days prior to

oral argument

Internal

Operating

Procedure

after 5th CIR.

R. 34

Oral Argument

Appearance

Appellant/Petitioner

Appellee/Respondent

As set forth in calendar

notice:

Normally, counsel

must check in with the

clerk at least 30

minutes before the

court convenes the

session

5th CIR. R.

34.9

Decision Judges, 5th CIR. Usually several weeks

to several months after [no cite]

submission

Petition for

Panel

Rehearing

And

Petition for

En Banc

Rehearing

Parties

seeking

rehearing

Filed in the 5th CIR.: within 14

days after entry of judgment

unless a civil case in which U.S.

or agency or officer thereof is a

party; then 45 days after entry of

the judgment

FED. R. APP. P.

40, see also FED.

R. APP. P. 35 and

5th CIR. R. 35

Bill of Costs Prevailing

Party

Filed in the 5th CIR.: within 14

days after the entry of judgment

FED. R. APP. P.

39, see also 5th

CIR. R. 39

Mandate Clerk, 5th

CIR.

Issued on the calendar day after

the time for filing petition for

rehearing expires, unless petition

for rehearing is filed, then issued

on the 8th

calendar day after

entry of any order denying the

petition for rehearing

FED. R. APP. P.

41, and Internal

Operating

Procedure after

5th CIR. R. 41

Petition for

Writ of

Certiorari

Parties

Seeking

Writ

Filed with the clerk, U.S. Supreme

Court, within 90 days of entry of

judgment or denial of timely

petition for rehearing

28 USC § 2101(c)

Rule 13,

Supreme Court

Rules

THE LIFE OF AN APPEAL IN THE FIFTH CIRCUIT COURT OF APPEALS*

Notice of Appeal

Filed in district court

$505 fee due

FRAP 3 & 4

Appeal DocketedJurisdictional

Review Entry of

Appearance

5th Cir. R. 46.3

Transcript Order Form

Due 15 days from docketing letter

FRAP 10(b) for Appellant

FRAP11(b), 5th Cir. R. 11 and IOPs

following for Ct. Rpt. and DC Clerk

Briefing Notice

Issued

Proceed to Briefing

Electronic Record On Appeal

Certified

Due 15 days from filing of TS or

receipt of notice TS unnecessary

5th Cir. R. 11.3

Briefs Filed

Appellant’s Brief

40 days

7 copies

FRAP 28(a) 5th Cir.R.

28 &

FRAP 28.1(c)(1)

Appellee Cross

Appellant’s Brief

30 days / 7 copies

FRAP 28.1(c)(2)

Appellee’s Brief

30 days

7 copies

FRAP 28(b) & 5th Cir.

R. 28

Appellant’s Reply

Brief

14 days

7 copies

FRAP 28(c)

Appellee Cross

Appellant’s Reply

Brief

14 days / 7 copies

FRAP 28.1(c)(4)

Appellant Cross

Appellee’s Brief

30 days / 7 copies

FRAP 28.1(c)(3)

Supplemental Briefs

By court order only

5th Cir. R. 28.4 &

FRAP 28.1(c)(5)

Amicus Curiae

FRAP 29 & 5th Cir. R.

29

Motions Pending

FRAP 27, 5th Cir. R.

27 and IOPs foll.

Record Excerpts

4 copies

5th Cir. R. 30

Motions granted,

denied or deferred

by Clerk, Single

Judge or Panel

No Motions Pending

or only deferred

motions pending

Proceed to Screening

Briefing Complete

Intervenor

5th Cir. R. 31.2

Brief cover color governed by

FRAP 32(a)(2) for regular briefs

and FRAP28.1(d) for cross

appeals

Record Excerpt cover color

governed by 5th Cir. R. 30.1.7(d)

Calendaring

FRAP 34, 5th Cir. R.

34 & IOP Prep. And

Pub. Calendars foll.

FRAP 34Without Argument

IOP Decision W/O Oral

Arg. Foll. FRAP 34

Writing Judge

Designated

IOP Case Conf. &

Designation of

Writing Judge foll.

FRAP 34

Opinion Circulated

Judgment Issued

Proceed to

Rehearing

Petition for Rehearing and/

or Rehearing En Banc

14 days, 45 days if US in

Civil. FRAP 35 &40, 5th Cir.

R. 35 & 40 and IOPs foll.

both

Request Response

10 days or set by

court

Granted or Denied

Bill of Costs

FRAP 39 & 5th Cir. R.

39

Mandate Issues

8 days from denial of

rehearing or 22/53 days

from opinion if no rehearing

filed. FRAP 41, 5th Cir. R.

41 and IOPs foll.

Case Ends or

petition for writ of

cert may be filed at

S. Ct.

90 days from opinion

or denial of rehearing

PRE-BRIEFING

BRIEFING

MOTIONS

SCREENING

CALENDARING AND ORAL ARGUMENT

REHEARING MANDATE

1

2

3

4

5

6 7

Proceed to

Screening

Ready for Screening

FRAP 34, 5th Cir. R.

34 & IOPs foll. FRAP

34

Screen To Court

IOP Screening foll.

FRAP 34

Screen To SAO

IOP Screening foll.

FRAP 34

Tentatively

Calendared

Summary CalendarProceed to

Rehearing

Proceed to

Calendaring

Panel Conference

Held

With Argument

IOP Oral Argument

foll. FRAP 34

Argument Heard

Opinion Issued

Opinion Circulated Opinion Issued Judgment Issued

Jurisdictionally

Defective

Jurisdictionally

Sound

Jurisdictional Panel Order Circulated Order IssuedJudgment as

Mandate Issued

Proceed to

Reconsideration

* Does not encompass Mandamus, Original

Proceedings or Petitions for Review