August 05, 2004

Steps for Release Pending Appeal

To assist those who may have clients with cases on appeal presenting Blakely issues, and whose sentences may already be served if Blakely violations happened and had to be resentenced without any enhancements, I am reproducing -without identifying data- an exchange from a First Circuit CJA Group listserv:

Appellant is currently incarcerated for 15 months and has filed a Blakely Brief. If the court rules in favor of the Appellant, Appellant's sentence of incarceration should be 6 months. The government has not filed it's brief yet and the 6 month date is coming up. I have filed a Motion to expedite a decision or oral argument, but can I file a FRAP 9(b) Motion for Release Pending Appeal without going to the District Court first? Can CJA Appellate Counsel even represent Appellant in the District Court? Is there another (better) procedure for release pending appeal in this circumstance?

The following reply was thereafter posted:
Forwarded your question to Peter Goldberger in Ardmore, PA, an appellate guru. He suggested the following:
File in the district court, attaching a copy of appellate brief as an exhibit for the "substantial issues" prong, and the appellate docket for the "likely to result in a sentence shorter than the appellate process" prong. The rules require you to ask the USDJ first. Dist Ct retains this jurisdiction even while appeal is pending. If denied, then apply to the court of appeals.
Peter Goldberger, aside from being "an appellate guru," is deserving of much more recognition than that, as I can personally attest from the help he gave me late the other night in a recent Blakely matter I was dealing with. He always seems to have time for everyone, although he is a very busy person. I recommend you go to NACDL's site and order the video of the Blakely discussion in which the panelists included Peter, Hon. Nancy Gertner, Jeffrey L. Fisher (counsel for Blakely), and Michael R. Dreeben, Deputy Solicitor General who argued for the United States as amicus in Blakely.