A Jailhouse Lawyer’s

Manual

Chapter 1:
How to Use the JLM

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 1

HOW TO USE THE JLM

A. General Comments
If you have been convicted of a crime and sentenced to prison, A Jailhouse Lawyer’s
Manual (the “JLM”) is for you. It contains information about challenging your conviction or
your sentence, about your rights while you are in prison, and about different ways to obtain
an early release from prison.
The JLM contains thirty-six Chapters. You should begin by reading Chapters 2, 5, and 6.
These Chapters teach you the basics of understanding and using legal materials. You can
also look in the Table of Contents for the subject or subjects that are related to your
concerns.
The Appendices at the end of the JLM are also important. Appendices I and II contain
the addresses of the federal courts and state courts in New York. Appendix III is a list of
addresses for District Attorneys’ offices in New York. Appendix IV contains a list of several
organizations that help prisoners. Appendix V contains a dictionary of legal terms used in
the JLM.
The JLM discusses only those areas of law that refer to prisoners’ rights. To learn about
the law relating to other matters—such as automobile accidents or apartment leases—you
will need to look elsewhere. Chapter 2, “An Introduction to Legal Research,” explains how to
research these and other areas of law in your prison law library.
Similarly, although the JLM explains the procedures you can use to attack your
conviction, it does not explain many other areas of the law, such as the constitutional limits
on the power of the police to search you, to seize evidence from you, or to arrest you. The
JLM does not describe the limits on a grand jury’s power to indict you, or the limits on what
the prosecutor can say to the jury or ask witnesses or defendants during the trial. If you have
been convicted of a crime, these are areas of law that you will probably need to know more
about to determine whether your conviction was lawful. The most important rules in these
areas of the law derive from the Fourth, Fifth, and Sixth Amendments of the U.S.
Constitution, and court rulings declaring what these amendments mean in relation to cases
like your own. The best way to learn about Fourth, Fifth, and Sixth Amendment issues is to
research them in the library using the skills you will learn by reading Chapter 2 of the JLM.
In general, it is always a good idea to seek the assistance of a lawyer in pursuing any
legal action. But, it is often not possible to get professional legal assistance—at least at first.
If you do not have a lawyer, the JLM can help you initiate a legal action on your own, or
interest a lawyer in your case. Even if you have a lawyer, the JLM will be helpful because no
one is more concerned about your rights and needs than you. If you know what your lawyer
should be doing, what papers he or she should be filing, and what questions he or she should
be asking, you will be better able to actively participate in your case. You might even be able
to help your lawyer with some of the work. Remember, in criminal appeals and most other
actions, very strict time limits exist. Learn these time limits and make sure your attorney
files all necessary papers on time.
Two final suggestions about using the JLM: use it cautiously and share it. Use it
cautiously because it may contain statements that are out-of-date by the time you read them
and because it may take years of litigation before you can vindicate your rights in court. To
make sure that a statement, statute, or holding is not out-of-date, follow the steps described
in Chapter 2, which explain “Shepard’s” and “pocket-parts.” Never forget that an incorrect or
weak legal argument may waste a valuable opportunity to challenge a violation of your
rights.
 Share the JLM because there are not enough to go around. Share it also because you will
benefit from others’ understanding and assertion of their rights. One prisoner’s victory in
court may bring about changes in prison conditions that will improve life for all prisoners,
including you.
B. How to Use the JLM to Learn About the Law
If you are not a jailhouse lawyer and you want to learn the basic tools of the jailhouse
lawyer, begin by reading Chapter 2, “An Introduction to Legal Research.” If at all possible,
read Chapter 2 in the law library and look at each book the Chapter mentions. Do not expect
to understand all of Chapter 2 the first time you read it. It often takes law students many
months before they understand how all of the different research tools work. The key to
learning how to do legal research is practice.
The next step is to read Chapter 6, which introduces you to basic legal documents and to
the most common types of legal proceedings. After you have read Chapters 2 and 6, you will
be able to understand how the research for the memorandum in Chapter 6 was done and why
the memorandum was written. From this point on, it is simply a question of refining your
skills and broadening your familiarity with the law. The best way to do this is to read the
remainder of the JLM.
If you come across a word in the JLM that you do not understand, refer to Appendix V. If
the word is not explained there, use the legal dictionary in your prison’s law library.
If you already know how to do legal research but have a specific problem, look at the
Table of Contents to see which sections may be applicable to your problem. If you need to
determine your rights in an area covered by the JLM, like religious freedom or temporary
release programs, read the appropriate Chapter and then confirm what it states through
research in the library. This is done by finding the part(s) of the Chapter discussing your
problem and then writing down the cases or statutes that are cited in the footnotes. If these
authorities are cases, read the cases and then Shepardize them; if they are statutes, find the
statutes, check their pocket-parts to make sure that they have not been repealed or
amended, and then look at the “notes of decisions” in the pocket-parts to see if they have
been recently interpreted by the courts. Although terms like “Shepardize” and “notes of
decisions” may seem strange to you right now, Chapter 2 will explain them. You should make
sure to read all the Chapters that might contain information on any part of your case.
You should read Chapter 5 if you have a serious problem and you think you require relief
(help) from a court. This Chapter directs you to other Chapters that explain the kinds of legal
proceedings you can use. Again, verify and update anything cited in the JLM that you plan
to use in your case. Outdated and incorrect cases or statutes will jeopardize your chances of
winning or may delay the process.
If no Chapter in the JLM discusses your problem, you will have to start from the
beginning, using the legal research skills that you will learn by reading Chapter 2. It is also
possible that one of the Chapters in the JLM discusses a similar problem. If this is the case,
it may be helpful to start your research by reading some of the cases or statutes cited in that
Chapter.
C. How to Use the JLM When Filing a Lawsuit
Once you have decided that your rights have been violated or that you have a valid claim
and you want to go to court, you should turn to the sample legal papers in Chapters 9, 16,
and 17 (and Chapters 10, 20, and 22 for New York State Prisoners). Each of these Chapters
discusses a different kind of lawsuit and provides examples of the legal papers that you must
send to the court in order to initiate the suit. These legal papers are called “forms” because
you use the basic language and fill in the blanks with the facts that apply to your case. For
example, Chapter 9, “Appealing Your Conviction or Sentence,” contains the types of papers
you will need to start a criminal appeal.
It is important that you do not tear these sample legal papers out of the JLM and do not
copy them word for word. If you tear them out and try to send them to a court, or if you
simply copy them and then send your copy to a court, the court will either throw them out or
send them back to you. In order to use these forms, you must read the first part of the
Chapter that discusses how to use them. Then follow the footnotes contained in each legal
paper. These tell you exactly how to prepare your own version.
After you have written your version of the legal papers, you must make copies of what
you have written. Each Chapter tells you how many copies you will have to make. Then you
will have to mail the original plus several copies to a court. Appendices I and II explain to
which court the papers should be sent. You may also have to send copies to the District
Attorney. Appendix III contains the mailing addresses of all of the District Attorneys in New
York. Most prisons have photocopying machines. If your prison does not, you can copy your
papers by retyping or rewriting them.
Chapters 4 and 9 also explain how to request a court-appointed lawyer to pursue your
case. When you make this request—by filing “poor person’s” or in forma pauperis papers—
you can also ask the court to assume the responsibility for “serving” all of your papers on
your opponents and to allow you to proceed without paying court fees up front. Under the
Prison Litigation Reform Act (“PLRA”), prisoners may be required to pay court-filing fees in
full. The full cost of the fees will be deducted gradually from your prison account. For a fuller
discussion of the PLRA and how it affects your rights, read Chapter 14 of the JLM, “The
Prison Litigation Reform Act.”
D. How to Use the JLM if You Are Not Imprisoned in New York State
Many of the Chapters in the JLM discuss the law as it exists in New York State. If you
are not a prisoner in the state of New York, these laws do not apply to you. You must find out
what laws and regulations your state or municipality has issued. Similarly, cases decided by
New York state courts that are described in the JLM do not apply directly to non-New York
state prisoners.
Do not be discouraged if you are unable to find materials dealing with the laws and
regulations of your particular state. The JLM is valuable for prisoners outside of New York
for at least two reasons. First, many of the Chapters discuss laws that affect prisoners
outside of New York. Several Chapters have parts on, or are entirely devoted to, the law of
states other than New York. Furthermore, as you will learn in Chapter 2, all the decisions by
the United States Supreme Court discussed in the JLM apply to all prisoners throughout the
nation. Second, by reading the Chapters in the JLM you will learn how to effectively
research the laws of your own state. Chapter 2 gives you the skills to become an excellent
jailhouse lawyer no matter what state law applies to you.
Although this book does not always present you with the exact answer you need, it
teaches you how to get the answer on your own. Wherever you are imprisoned, you can use
your new-found skills to protect your rights and advance your interests. A careful reading of
the Chapters that relate to your problem will allow you to think like a lawyer and to analyze
your problem from a legal perspective. Knowing how to think this way is very important
because what matters most is not what remedies you think best, but the remedies to which
you are entitled by law.
 A Jailhouse Lawyer’s
Manual

Chapter 2:
Introduction to Legal Research

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 2

INTRODUCTION TO LEGAL RESEARCH*

A. Introduction
To be an effective “jailhouse lawyer,” you must understand both how the judicial system
is organized and how to find and use the law so that you can work within that system.
Effective legal research helps you learn about your rights and the law. It allows you to
present your position to the court in a persuasive and understandable form. The purpose of
this Chapter is to explain how the courts are organized and to introduce you to the methods
of legal research.
To research the law properly, it is necessary to first understand how courts are organized
and the powers and functions of each level of the judicial system. The arguments you present
to a court will depend on the type of court it is and what powers it has. For example, while it
may be appropriate to present one argument to a trial court, it may be inappropriate to make
the same argument to an appellate court. Part B of this Chapter explains how the judicial
system is organized and will help you understand the powers each court has at the different
levels of the system. Part C explains basic legal research and suggests an outline for the
development of your legal arguments.
B. An Overview of the Court System
In order to move your case successfully through the judicial system, you need to
understand the system’s basic structure. Courts are responsible for determining what a law
means, both in general and in particular cases. The courts are divided based on what type of
subject matter or arguments they can hear and where they are located. Furthermore, there
are two types of law: law created by a legislature and law created by judges on a court.
Understanding this basic structure will help you to be an effective jailhouse lawyer.
1. The Court System
The American judicial system is made up of two types of courts: trial courts and appellate
courts. Trial courts are the courts where evidence is put forth and the facts of the case are
established. Criminal trials determine the guilt or innocence of the accused while civil cases
determine whether the defendant is liable (i.e., responsible for damages or wrongs) to the
plaintiff. (In civil cases, one party sues another party for a remedy.) Appellate courts review
the legal conclusions of trial courts for errors. This review may result in the appellate court
ordering a new trial. The major difference between the two levels of courts is that trial courts
decide issues of fact (did person A hit person B with a baseball bat?), while appellate courts
restrict their review to how the trial court applied the law to those facts (if person A did hit
person B, is this assault?). Appellate courts will rarely interfere with a factual finding of a
trial court. (If the trial court decided person A did hit person B, the appellate court will
generally accept that as true.) Thus, factual disputes are not normally considered in
appellate courts.1
Criminal defendants usually have an automatic right to appeal their conviction or
sentence to an appellate court.2 This intermediate appellate court is often called the Court of
Appeals in the state system and the Circuit Court of Appeals in the federal system. Whether

* This Chapter was revised by Susan Maples based on previous versions by Kristin Heavey, Jennifer
Parkinson, Paul Quinlan, William H. Knight, Andrew Cameron, and Patricia A. Sheehan.
1. Normally, appellate courts will overturn factual findings of a trial court only if there was no
evidence presented at trial to support the trial court’s factual finding.
2. Prosecutors, on the other hand, can only rarely appeal.
you can appeal the intermediate appellate court’s decision to a higher appellate court usually
depends on whether or not the higher appellate court agrees to hear your case. Usually, only
cases that raise new legal issues will be granted permission for a second appeal. This higher
appellate court is normally the “court of last resort” and is often called the Supreme Court.
The typical court structure is shown below in Figure 1.

State Courts Federal Courts

U.S. Supreme Court
State Supreme Court
↑ ↑
Court of Appeals Circuit Court of Appeals
↑ ↑
Trial Court Federal District Courts
Figure 1: Typical Organization of State and Federal Courts. (For a more detailed
diagram, see the inside front and back covers of the JLM).
Some states have different names for their courts, but the basic organization remains the
same.3 Each state, as well as the District of Columbia and the federal government, has its
own system of courts. Each is a separate “jurisdiction.” Jurisdiction is the area over which a
court has the power to resolve disputes and enforce its decisions. Jurisdiction is restricted by
both geographic area and subject matter. Both ideas are discussed in more detail in the
following paragraphs.
(a) Subject Matter Jurisdiction
Courts are divided into state and federal courts. Federal courts are limited to hearing
cases that involve the U.S. Constitution or a law passed by the U.S. Congress4 (called a
“federal statute”). State courts are generally free to deal with any matter. Defendants often
prefer to bring their case in federal court, if possible, because federal courts can often hear
cases more quickly than state courts. Another difference is that some state court judges are
elected, while all federal judges are appointed for life by the President with the approval of
the U.S. Senate.
Some courts are also limited in the subject matter of law they may consider. For
example, the New York City Criminal Court can only hear non-felony criminal case; the
Federal Tax Court can only hear tax cases.5
(b) Territorial Jurisdiction
Not only are courts restricted in the subject matter they can consider; they are also
limited to hearing cases from particular regions. For example, the Criminal Court of New
York City is geographically restricted to hearing matters that arise within New York City.
Similarly, the federal court for the Eastern District of New York is geographically limited to
matters arising in Long Island, Queens, Brooklyn, and Staten Island.

3. New York State has a more complicated court structure but still follows the basic pattern for
states. In New York, the names of the courts are different from most states. The highest court is called
the Court of Appeals. The intermediate appellate courts are the four departments of the Appellate
Division. The trial court is called the Supreme Court. This structure concerns New York State only. For
more details on the organization of the New York State court system, see the diagrams on the inside
back cover of the JLM.
4. U.S. Const. art. III, § 2. The § symbol means section. Additional federal statutes also provide
original jurisdiction in federal district court for civil cases that concern the “Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331 (2000). You can also file a civil complaint in federal
district court if you and the other party are citizens of different states and more than $75,000 is
involved. 28 U.S.C. § 1332 (2000).
5. Handeland v. Comm’n of Internal Revenue, 519 F.2d 327, 329 (9th Cir. 1975).
 Appellate courts also have limited geographic jurisdiction. Each federal Circuit Court of
Appeals is given a number and represents a specific geographic area which can include
several states. The following are the twelve Circuit Courts and the states (and territories)
that are in their jurisdiction:
A. First Circuit: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode
Island;
B. Second Circuit: Connecticut, New York, and Vermont;
C. Third Circuit: Delaware, New Jersey, Pennsylvania, and the Virgin Islands;
D. Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West
Virginia;
E. Fifth Circuit: Louisiana, Mississippi, and Texas;6
F. Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee;
G. Seventh Circuit: Illinois, Indiana, and Wisconsin;
H. Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota,
and South Dakota;
I. Ninth Circuit: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada,
Oregon, Washington, and the Northern Mariana Islands;
J. Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming;
K. Eleventh Circuit: Alabama, Florida, and Georgia;
L. D.C. Circuit: District of Columbia.
The U.S. Supreme Court is the highest appellate court in the federal judicial system. As
such, it is the final court of appeal in all cases arising in the federal court system. The Court
also has the power to hear criminal appeals from the highest appellate state court, but only
on issues of federal law.7 If no issue of federal law is raised, the state Supreme Court is the
court of last resort in criminal cases that began within the state court system.
To properly conduct research, you must first understand the position and powers of
different courts to make sure that the court you present your argument to is the proper court
and has the power to grant the remedy that you seek. Knowledge of the jurisdiction of
various courts will also allow you to ensure that no court has acted beyond its powers. For
example, if you were convicted of a felony in the Criminal Court of New York City, the
conviction is invalid. The reason is that the court is only authorized to hear non-felony
criminal cases and therefore exceeded its subject matter jurisdiction. 8 Similarly, if the
offense took place outside the City of New York, the Criminal Court of New York City would
have no jurisdiction over the case.
2. The Basis of Judicial Decision Making: What is “The Law”?
Judges make decisions based on law. Your task as a jailhouse lawyer is to convince the
judge that the law supports your arguments. The law is found in three places: (1)
constitutions; (2) legislation (also called “statutes” or “statutory law”); and (3) case law.
Judges generally give weight to each source of law according to the order set out above. In
other words, constitutions are more influential than legislation, and legislation is more
persuasive than case law. The basic hierarchy, or organization, is set out below in Figure 2.

6. Before Oct. 1, 1981, the 5th Circuit included all of the states that are now in the 5th Circuit
plus all of the states now in the 11th Circuit.
7. As explained in Part B(1)(a) of this Chapter, this includes matters involving the Constitution,
a federal statute, or a treaty.
8. As noted in Part B(1)(a) of this Chapter, the New York City Criminal Court can only consider
non-felony cases.
 U.S. Constitution (strongest authority, most persuasive)
↑
Federal legislation
↑
State constitutions
↑
State legislation
↑
Case law from appellate courts
↑
Case law from trial courts (weakest authority, least persuasive)

Figure 2: Hierarchy of Sources of Law

Part C of this Chapter will describe how to find the law. However, before you begin legal
research, you must understand a few more things about the different types of law that exist.
A constitution is the supreme law of the jurisdiction and is enacted by a special
procedure. Each state has its own constitution in addition to the United States Constitution.9
Legislation is passed by the legislative body in each jurisdiction. Legislation is the typical
form in which laws are enacted. Case law is the law that results when a court decides a case.
In deciding a case, the court is making law in two ways. First, the court determines what
the law says about the dispute between the parties directly involved in the case. On a
broader level, the decision affects other people, because the court’s resolution of the issues in
the case forms precedent for other similar cases. This means that when a court decides a
case, it will look at how other courts decided similar issues and will follow those examples.
Stare decisis, which means “already decided,” refers to the system by which courts rely on
earlier, similar cases as precedent. The greater the similarity between the cases, the stronger
the precedent. Thus, it is very important to find out whether issues in your case have already
been decided by your court or other courts. These other cases will give you a good idea about
how your case will be decided. Knowledge of the other cases will allow you to find out what
arguments might be successful. This knowledge may also reveal what arguments you will
need to rebut (argue against) when your case is before the court.
Once suitable precedent cases have been found, you must convince the court that the
precedent case is sufficiently similar to your case and that its conclusion should be followed.
If the precedent case works against you, you must convince the court that the precedent case
is different from your case, and its conclusions should not be applied to your case. This is
often referred to as “distinguishing” a case. 10 For example, suppose that you have been
placed in solitary confinement for having complained to a newspaper reporter about prison
conditions. You should look for a precedent case saying that the prison cannot punish a
prisoner, or put a prisoner in solitary confinement, for such complaints. If you find such a
case, your next step is to convince the court that you were placed in solitary confinement
because of your complaints, and not for a different, valid reason.
Not all precedent cases are equally persuasive. If the precedent case was decided by a
judge on the same court as your judge, or by an appellate court above your court, the
precedent case is very strong. In effect, the earlier case defined the law in that particular
jurisdiction. A lower court risks almost certain reversal by a higher court if it does not follow
the precedent. The court that created the precedent is also unlikely to overrule itself without

9. The U.S. Constitution is considered the “supreme law of the land.” U.S. Const. art. VI.
Therefore, neither state constitutions nor state or federal legislation can be in conflict with the U.S.
Constitution.
10. Ignoring the case is not a good idea because the other side will likely use it against you in its
arguments.
extremely good reasons. These types of precedents are sometimes called “controlling
precedents.”11 Courts will only rarely refuse to follow controlling precedents. However, in
some instances, older controlling precedents may carry less weight when applied to a modern
case. Furthermore, precedents may be overruled (and become useless) by legislation or by a
higher court that believes the lower court made an incorrect decision. It is therefore very
important to make sure the precedent you have found is still good law (i.e., has not been
overruled).
Precedents from other jurisdictions are also valuable but are not “controlling.” For
instance, if most courts in other states decide an issue in the same way, those out-of-state
decisions are not controlling precedent in your state, but can provide a suggestion for how
your state should decide the issue.
Chapter 6 of the JLM, “An Introduction to Legal Documents,” will discuss the legal
papers that you will need to provide to a court. These documents are very important and
should be written in the most persuasive manner possible. The first step in the process is to
figure out your most compelling or convincing arguments and to find support for those
arguments. As discussed above, finding precedents will allow you to learn which arguments
were successful with other courts and which arguments were not. The higher the court the
case comes from and the greater the similarity between your case and the precedent case, the
stronger the precedent. You should search for similar cases not only in your jurisdiction but
also in other jurisdictions (although cases from your own jurisdiction will be much more
persuasive). You should also consider public policy reasons why a court should rule in your
favor. Public policy reasons are arguments that a particular outcome should be avoided
because it is bad for society as a whole, not just for you.
If much of the case law is against you, you must explain to the court why the reasoning of
the earlier cases should not be applied to your case. One common way of distinguishing your
case from others is by pointing out the factual differences between your case and the earlier
cases. A superficial difference like the following will not help your case: “that case involved
them, but my case involves me.” A useful distinction is one that casts doubt upon whether
the precedent should be applied in your case. An example of a useful distinction would be: “in
that case the pretrial detainee’s own actions prevented a speedy trial; while in my case, trial
has been repeatedly delayed through no fault of my own.”
C. Legal Research: How to Find and Support Legal Arguments
a. Sources for Legal Research
The resources in a law library may be separated into three categories. The first category
is “primary sources.” Primary sources are themselves “law” and include constitutions,
legislation, court decisions, regulations passed as a result of legislation, executive orders, and
the rulings of administrative tribunals. Executive orders, regulations, and the rulings of
administrative tribunals are examples of delegated authority. Since legislative bodies such
as the U.S. Congress cannot regulate the details of every law, other government bodies are
appointed to fill in the details of generally worded statutes, usually by creating regulations.
Courts base their decisions on all of these primary sources of law.

11. Certain state court systems are structured to require trial courts to consider the decisions of
all appellate courts within the state as controlling. For example, New York’s first level appellate courts
are called its Appellate Division. The Appellate Division is divided into four Departments. An appellate
decision from any Department is controlling for all trial courts within the state. Stewart v. Volkswagen
of Am., Inc., 181 A.D.2d 4, 7, 584 N.Y.S.2d 886, 889 (2d Dept. 1992); Mountain View Coach Lines, Inc.
v. Storms, 102 A.D.2d 663, 664, 476 N.Y.S.2d 918, 919–20 (2d Dept. 1984). But see People v. Salzarulo,
168 Misc. 2d 408, 411, 639 N.Y.S.2d 885, 887 (Sup. Ct. N.Y. County 1996) (holding that trial courts are
only bound by the Appellate court in their Judicial Department).
 A second category of resources found in a law library are “secondary sources.” Secondary
sources are not themselves law. Instead, secondary sources discuss and comment on the law.
This commentary can be helpful in figuring out what the law is and where to find it.
Secondary sources include textbooks, treatises, form books, dictionaries, periodical literature
such as law journals, and manuals like the JLM. Secondary sources can be used not only to
find and help explain the law, but also to persuade the court. While courts prefer primary
sources, secondary sources are also sometimes considered. Manuals like the JLM should
not be used as authority for the court, but other secondary sources—like law review articles
and treatises—are appropriate if you cannot find any applicable cases or statutes. Along with
cases and statutes, law reviews and treatises can also support your arguments.
The third category of resources found in a law library is search books. Search books are
library tools that help you to find primary and secondary sources of authority. They include
digests of court decisions, citators (such as Shepard’s), and annotated statute books. Each of
these search tools is discussed in more detail in the remainder of this Chapter.
2. Methods of Legal Research
The goal of legal research is to find relevant primary sources. Your prison library will
contain not only these primary sources, but also research tools to help you find authorities
relevant to your case. Though the research necessary to prepare for each case will be
different, the research process has seven basic steps:
(1) Analyze the problem;
(2) Get an overview of the subject matter;
(3) Find relevant legislation;
(4) Find relevant cases;
(5) Check other sources;
(6) Update your research; and
(7) Cite cases.
While prior experience with an issue may allow you to skip some steps, it is
recommended that you conduct each step for each research issue.
Remember, your research will be more successful if you take careful notes during your
research. It will provide a record of your research and will help you avoid losing information.
(a) Analyze the Problem
Your case will begin with a story, not a precise series of legal issues. While you will
eventually translate the story into a set of legal issues, you must first confirm the facts of
your story. This will require you to review any evidence from the trial court transcript if you
are preparing an appellate case. For civil cases (for example, suing the prison for use of
excessive force), you should gather as much information as possible about your issue,
preferably written documentation. As your research progresses, you will need to look at the
facts again to determine which facts are most important.
If you are conducting research for appellate review of a lower court decision, remember
that the appellate court will accept the facts as found by the lower court. Unless you intend
to challenge the factual findings of the lower court (see footnote 1 in this Chapter) you should
limit your review to these facts as found by the lower court.
Once you have a firm grasp of the applicable facts, you need to examine the legal issues
raised by your case. Before beginning an extensive research project, you should ask yourself
three questions:
(1) what are the legal issues that I want to raise?;
(2) which court has the power to hear my case and rule on the issues I will raise?; and
(3) if the merits of my legal arguments are accepted, does the court have the power to
award me the relief I seek?
 The final question raises the issue of remedy. Remedies are discussed in detail in
Chapter 9 and Chapters 13–17 of the JLM. The research issues associated with the first two
questions are dealt with in the remainder of this Part of the Chapter.
The first question gets to the heart of your case: what are the issues that you want the
court to consider? To determine these, you must focus on the general areas of law raised by
your case. Is your case about arrest? bail? parole?
In a civil case, you will need to determine what you need to prove to show that the
defendant is liable for each claim you are asserting. (In civil cases, you are the plaintiff and
the person or prison you are suing is the defendant.) You should also be prepared to rebut
any defenses the defendant makes. Most of this information will be found in case law,
although statutes may also be important.
In an appellate case, your focus will be on errors made by the trial court. A general
review of secondary sources covering arrest and trial practices will help you know what to
look for. Then you should thoroughly review the lower court proceedings and decision in your
case to identify areas of possible error. The next step is to conduct focused research on the
laws applicable to your case and figure out whether an error was made.
In deciding which issues to investigate, it will help to break down the general areas of
law into more specific problems. Thus, you would go from a broad area (such as “criminal
procedure”) to a narrower area (such as “searches incident to arrest”) and ultimately to a
narrow question (such as whether a police officer can use a “choke hold” to arrest a suspect
and search for drugs). It is easier to research a narrow issue and build it into a larger case
than to try to research the entire case right away.
The second question you need to consider and resolve is that of jurisdiction. A court is
limited in the type of case it can consider. As discussed in Part B(1) of this Chapter, there are
both territorial and subject matter limits on a court’s power. Therefore, you must first
determine the proper court in which to bring an action or appeal. Territorial jurisdiction for a
trial court will depend on where the alleged crime took place. For an appellate court,
territorial jurisdiction will depend on the court from which the appeal is being made (see
Part B(1) of this Chapter). You should also confirm subject matter jurisdiction before
beginning extensive research on the merits of your case. Most cases will not involve
complicated jurisdictional issues. But, you must not ignore jurisdiction as a court will not
consider your case if it lacks jurisdiction to hear it.
(b) Get an Overview of the Subject Matter
Starting on legal research is often difficult. It is helpful to understand generally the
areas involved in your case before you focus on narrow issues. Background reading will help
you understand how to apply the current law to your facts. Two particularly helpful sources
for general overviews are legal encyclopedias, which provide concise summaries of the law,
and treatises, which provide a more detailed analysis. Prison libraries usually have the two
most common legal encyclopedias, American Jurisprudence and Corpus Juris Secundum, as
well as copies of treatises such as McCormick on Evidence, Johnson’s The Elements of
Criminal Due Process, Kerper’s Introduction to the Criminal Justice System, and Kerper’s
Legal Rights of the Convicted. When reading these sources, be sure to keep track of any
cases, legislation, or constitutional “provisions” that may help your case. A provision is a
phrase or section of a constitution or law that stands for a specific legal right or principle. To
find a subject in an encyclopedia or treatise, use either the “index” (usually found in the back
of a book; if you are talking about more than one index, the plural is “indices”) or the “table of
contents” (usually found in the beginning of a book). Both types of research are fully
described later in this Chapter.
 (c) Find Relevant Legislation
After learning the basics of the subject area, turn to the main sources of law—legislation
and cases. Research can take a very long time. It is helpful to write out good notes about the
sources you read and follow the outline this Chapter provides. If you do this, you will
increase your chances of successful research.
After this Chapter, legislation should be the starting point for your research. Legislation
includes constitutions, federal and state statutes, and supporting governmental enactments,
such as regulations and administrative decisions. Constitutions and statutes are generally
broken down into parts called articles, sections (the § symbol means “section”), and clauses.
Regulations issued by state or federal agencies, such as the New York Department of
Correctional Services or the U.S. Bureau of Prisons, are an important form of legislation and
should be checked during your research.
(i) Federal Constitution
Constitutions create the structure of government and define individual rights and
liberties. They are the most important authorities, and the Constitution of the United States
is the supreme law of the United States. Any federal case or statute, or any state
constitution, case, or statute that violates the U.S. Constitution is “unconstitutional,” which
means it is completely invalid. Thus, the Constitution should be your first source to research
your case, and you should determine if a constitutional provision applies to your case at the
beginning of your research. The first ten amendments to the Constitution (known as the “Bill
of Rights”), along with the Fourteenth Amendment, are the most important parts of the
Constitution for criminal defendants and prisoners. They contain guarantees of personal
rights and liberties. Of particular interest are the First Amendment (freedom of speech), the
Fourth Amendment (search and seizure), the Fifth Amendment (grand jury indictment,
double jeopardy, self-incrimination, and due process), the Sixth Amendment (jury trials for
crimes and procedural rights), and the Eighth Amendment (excessive bail and cruel and
unusual punishment). The Fourteenth Amendment is also very important because it
prohibits state governments from depriving you of life, liberty, or property without due
process of law (i.e., certain legal procedures), and it guarantees the equal protection of law.
Similar rights are guaranteed to you from the federal government through the Fifth
Amendment. The text of the Constitution can be found in each of the first twenty-eight
volumes of the United States Code Annotated (“U.S.C.A.”).
(ii) State Constitutions
Each state has its own constitution. The text of the New York State Constitution appears
in the first few volumes of McKinney’s Consolidated Laws of New York Annotated
(“McKinney’s”). Each state’s constitution is supreme over all other laws of that state,
including statutes the legislature passes and cases its courts decide. But, state constitutions
are not supreme over federal law, which means the U.S. Constitution and laws the U.S.
Congress passes. State constitutions apply only to state law. While many provisions of state
constitutions are similar to provisions found in the U.S. Constitution, your state constitution
may give you more rights than the U.S. Constitution. Thus, you should consult your state
constitution after reviewing the U.S. Constitution.
The U.S. Constitution and most state constitutions are found in “annotated” volumes.
Annotated volumes include the text of each constitutional provision and summaries of cases
that have interpreted them. Following the constitutional text is a section titled “Notes of
Decisions,” which has case summaries grouped into separate legal subjects. There is an index
to these legal subjects at the beginning of each Notes of Decisions section. The case citation12

12. Case citations are discussed in Part D of this Chapter.

for the case being summarized follows the summary. Annotated volumes also contain other
research tools that can help you. These include cross-references, which are citations to legal
encyclopedias and relevant treatises in which the subject is discussed, as well as the West
“key number system” (discussed later in this Chapter). Finally, annotated volumes often
contain summaries of legislative history, which gives you information about why a particular
law was passed.
To find the relevant constitutional provisions for your case, use the constitutional index
found at the back of the final constitutional volume. 13 The methods you use to locate
statutes14 and cases15 related to your legal question are also applicable to finding relevant
constitutional provisions in a constitutional index.
(iii) Federal Statutes
The U.S.C.A. contains the text of the U.S. Constitution and all laws passed by the U.S.
Congress. Following the text of many of the legislative provisions is a section titled “Notes of
Decisions” which contains summaries of cases that have interpreted each provision. These
summaries are not law but will give you an idea of which cases may be helpful to read in
detail. The U.S.C.A. also contains other useful research tools such as cross-references to the
West key number system, discussed in Part C(2)(d) of this Chapter, located in the section
entitled “Library References,” found after each legislative provision.
The U.S.C.A. is divided into fifty “titles.” Each title brings together in one place all
federal laws in a particular subject area. For example, Title 18 brings together all federal
laws concerning crimes and criminal procedure while Title 28 does the same for laws
concerning the judiciary and judicial procedure. There is a paperback index to the entire
U.S.C.A. (excluding the constitutional volumes) shelved after the main volumes. Each title
also has its own index located in its last volume.
The text of all federal laws also appears in the United States Code (“U.S.C.”). The U.S.C.
is organized in exactly the same way as the U.S.C.A. It differs from the U.S.C.A. in that each
title contains only the law, not the Notes of Decisions. Your prison library may have the
U.S.C.A., the U.S.C., both, or neither.
If you are charged with an offense under federal law, a useful starting point is to review
the text of the provision under which you are charged. Beneath the text of that provision of
law there may be summaries of cases interpreting the text that will allow you to see how
courts have applied that provision in other cases.
It is essential that your research be current. Hardcover volumes of sources are not
replaced frequently. The most up-to-date information is found in soft cover updates found in
a folder inside the back cover of each hardcover volume or next to the volumes on the shelf
(“pocket part”). Soft cover updates contain information received after publication of the
hardcover volume. These pocket parts will reveal any recent amendments to the statutory
provision and any recent cases interpreting that provision. You must check the pocket part
for the most current law whenever you use a hardcover volume of any source in your
research.16

13. Note that there is a separate index for the constitutional volumes of the U.S.C.A. A larger
multi-volume paperback index is published for the rest of the U.S.C.A. volumes that refer to legislation,
but that index does not contain any references to the Constitution.
14. Statutes are described in Part C(2)(c)(v) of this Chapter.
15. Cases are described in Part C(2)(d) of this Chapter.
16. When a statute has been amended or repealed within the past twelve months, the pocket
part may not have the most recent change. For the most up-to-date information, consult the paperback
supplement normally shelved at the end of the volumes you are using. Paperback supplements are
updated monthly.
 The entire U.S.C. is updated every six years. The most recent volumes are from 2006.
The U.S.C.A. is updated more frequently. If your prison library has not updated its collection
of hardcover volumes, you should continue to check the pocket parts to make sure that your
research is up to date.
You should always check whether statutes have changed before relying on them in a
legal paper. When referring to a federal statute, cite to the most recent U.S.C. or U.S.C.A. in
your prison library, meaning the book and pocket parts that you looked at while researching
your case. It may not be the same year as the versions cited in the JLM.
(iv) State Statutes
State statutes are organized in a manner similar to federal statutes. Each state
organizes its statutes a little differently, but consider New York as an example. The
permanent laws of New York are found in McKinney’s Consolidated Laws of New York
Annotated (“McKinney’s”).17 Like the U.S.C.A., McKinney’s is organized according to subject
matter but divided into “books” rather than “titles”, and arranged in alphabetical order.
Thus, Book 10B brings together all New York laws on the subject of Correction Law (Prison
Law), Book 11A does so for Criminal Procedure, and Book 39 for Penal Law (Criminal Law).
McKinney’s also contains “Notes of Decisions” summarizing cases that have interpreted each
provision. When working with state statutes, as with federal statutes, be careful to consult
the pocket parts for the most current legislation and cases. State statutes are updated
frequently, using pocket parts. The years listed in JLM citations to state statutes may not
correspond to the version in your prison library. As with federal statutes, cite to the version
in your prison library.
McKinney’s also contains a section called “Practice Commentary” following certain
provisions. This commentary is neither a case summary nor law, but it reflects the comments
of a lawyer who has studied the statute. The commentaries help researchers understand the
law. Like general summaries of particular subjects, commentaries can be useful sources of
analysis and research information.
If you are charged with an offense under state law, a useful starting point is to review
the text of the provision under which you are charged. In New York, crimes are defined in
Book 39, “Penal Law”. The procedural aspects of criminal prosecution are found in the New
York Criminal Procedure Law (“N.Y. Crim. Proc. Law”). The N.Y. Crim. Proc. Law is found
in the fifteen volumes that make up McKinney’s Book 11A. Do not confuse the N.Y. Crim.
Proc. Law with the New York Civil Practice Law and Rules (“N.Y. C.P.L.R.”), which explains
the rules of the courts in New York.
(v) Finding Statutes—The General Index
You will not always have a particular statute or statutory section to begin your research.
If you are starting from scratch and the provision under which you were charged is not
helpful, the best place to turn is the “general index” of a source. This is true whether you are
researching the U.S. Constitution, federal legislation, or state legislation. The general index
is normally found in separate volumes at the end of the source you are using. For example,
the general index for New York legislation is found in several paperback volumes shelved
after McKinney’s main volumes. The index lists topics in alphabetical order, so you can begin

17. If you need to find a law that is no longer in force (for example, if you were convicted under a
version of the Penal Law that was later changed), look first to McKinney’s for the current version of the
law. After the current statute, find the “Historical and Statutory Notes” section, which will tell you
what year of the Session Law to look at in order to find the old law. That year’s “Session Law” can be
found in McKinney’s Session Laws of New York. It is unlikely, however, that a prison library will have
the Session Laws. If your library does not have the Session Laws, the “Historical and Statutory Notes”
section often lists a short summary of changes that have been made to the original law.
by searching for a word that describes or is related to your problem. These descriptive words
can refer to an event (for example, “arrest” or “homicide”), to certain persons (for example,
“addicts” or “police”), to places (for example, “prison” or “hospital”), or to things (for example,
“motor vehicles” or “weapons”). General descriptive words are divided into subcategories. For
example, under “weapons” you will find separate entries for different types of firearms. The
general index is designed to lead you to the relevant statutes from a variety of descriptive
words. Thus, you need not find the “perfect” word. Keep track of the different possible
descriptive words as you research and use the many indices to help you find relevant
authorities.
A second method of finding legislation is to check the title or book index. The title or book
index is similar to a table of contents, and is found at the beginning of each volume. So, for
example, scanning the names of the McKinney’s volumes shows three possible criminal titles:
“Correction Law,” “Penal Law,” and “Criminal Procedure Law.” If you were researching a
procedural issue (say your home was searched pursuant to a search warrant in the middle of
the night), the volumes on Criminal Procedure Law (Book 11A) seem like the most useful
place to begin. You would then take out a volume of 11A and turn to its “book index.” Note
that this table appears after the shorter “Table of Contents” section, and is immediately
before the statutory provisions. The book index breaks down the general subject of Criminal
Procedure into smaller topics and subtopics.
Following each subtopic is a list of statutory sections that deal with that subtopic, so you
can review the subtopics to find statutory provisions that may be helpful for your research.
For example, on the issue of “nighttime searches,” the book index in any of the volumes of
11A shows a section on “procedures for securing evidence.” It also lists a subtopic of “search
warrants.” If you go to the volume of 11A that contains the legislation on search warrants
(Sections 690.05 to 690.55) and turn to the beginning of that section, you will see another
listing of even more specific subtopics that includes “search warrants; when executable”
(Section 690.30). Turning to that section of the legislation, you will find that in New York
search warrants may only be used between 6:00 a.m. and 9:00 p.m. unless the warrant
provides otherwise. Thus, you have found a law to support your complaint if the warrant
used to search your house did not explicitly allow the search to be conducted at night. After
the text of Section 690.30, you will find a “Practice Commentaries” and a “Notes of Decisions”
section that contains summaries of a number of cases applying this legal rule to various
circumstances. Updating your findings by turning to the pocket part of that volume reveals
several more recent cases on nighttime searches.
Do not be discouraged if you are having trouble finding a relevant law. Research takes
time, and you may need to try the general index, the title or book index, or even a little
browsing before you can find relevant legislation. Or, your case may be governed by court
cases rather than legislation. Finding case law is the subject of Part C(2)(d) of this Chapter.
(vi) Legislative History
When reading legislation, the “legislative intent,” or what the legislators wanted the
statute to accomplish, is often unclear. Knowing the legislative intent can often help you
understand the legislation. It may help you apply the legal rule to the facts of your case. This
factual situation may not have been considered by the legislators when they created the law.
The best way to find legislative intent is to review the “legislative history” of the legislation.
State legislative history is difficult to find and often cannot be found at all. This Subsection
will concentrate on how to find the legislative history of federal laws and therefore learn the
congressional purpose behind federal legislation.
 Legislative history consists of the written record of what Congress considered before
passing a law. It includes the text of the bill18 introduced into the legislature, any later
amendments (changes) to the bill, committee and conference reports 19 , congressional
hearings, and the debates of the House of Representatives and Senate. Committee reports
are produced by the Congressional Committees that review legislation. Conference reports
are produced by “conferences” set up when the House and Senate pass different versions of
the same legislation. Because the conference report is produced jointly by the committees of
both the Senate and the House just before the final passage of the legislation, it is perhaps
the most important source of legislative intent.
Legislative history is found in many books that are not located in prison libraries.
However, one publication, the United States Code Congressional and Administrative News
(“U.S.C.C.A.N.”), publishes “compiled” legislative histories that bring several sources
together in one place. Although the U.S.C.C.A.N. does not provide all legislative history, it is
the only source of legislative history you are likely to find in a prison library. There are
several volumes of the U.S.C.C.A.N. for each year. To use these books, you must know the
year in which the statute was passed. The U.S.C.A. tells you the year the statute you are
researching was passed at the end of each section. It may also tell you where in the
U.S.C.C.A.N. to find the legislative history. Each set of annual U.S.C.C.A.N. volumes also
contains a table of “Legislative History.” This table lists all the laws passed during that year
and identifies certain parts of the legislative history. To find legislative history in
U.S.C.C.A.N., look in the index found in the last volume of that year. Search the index for the
name or the subject of the statute you are researching. The index will list the page number
where you can find legislative history for that topic. The volumes of U.S.C.C.A.N. with
“Legislative History” on their spines contain the text of the legislative report from the House
of Representatives or the Senate.
If you review the legislative history of a statute, you will often find a statement by a
member of Congress or by a committee that explains what Congress intended it to mean. If
this explanation helps your argument, you should quote it in the papers you submit to the
court.
Legislative histories of state statutes are hard to find because few states keep a record of
the process of enacting a bill. In New York, legislative history is usually found in the New
York Legislative Annual, which you are unlikely to find in a prison library. Your library may,
however, have McKinney’s Session Laws of New York (mentioned in footnote 17 of this
Chapter), which contains limited legislative history for some bills enacted that year. This
legislative history is found at the end of the final Session Law volume for that year.
(vii) Court Rules
Court rules govern the mechanics of how to get a case into court and what procedures are
used once the case is before the court. Sometimes these rules are called “rules of practice” or
“rules of procedure.” The U.S. Supreme Court has created court rules that apply to all cases
in federal courts. The rules are published as part of Title 28 of the U.S.C.A. (in the volumes
that have the word “rules” on their spines), and include “Notes of Decisions” sections
summarizing cases interpreting the rules. Formally, the rules are separated into the Federal
Rules of Civil Procedure (rules for federal civil cases), the Federal Rules of Criminal
Procedure (rules for federal criminal cases), and the Federal Rules of Appellate Procedure
(rules for appellate procedure in all federal cases). There may also be additional local rules
enacted by local federal courts. In addition, the Federal Rules of Evidence govern what can

18. A statute is called a “bill” before it is passed by legislators.

19. The House of Representatives and the Senate are subdivided into committees that work in a
particular area. For example, the House Judiciary Committee works on legislation that concerns the
federal judiciary.
be used as evidence in federal cases. The Federal Rules of Civil Procedure and the Federal
Rules of Evidence are published in separate volumes that are part of Title 28 of the U.S.C.A.
State courts have their own court rules. In New York, for example, the rules of court are
contained in McKinney’s New York Rules of Court. This paperback volume contains the rules
of court for all New York state courts. It also contains the “local federal rules” for the federal
district courts in New York and the Second Circuit Court of Appeals. These rules will tell you
in which court to file papers and how the papers should be filed (size, form, etc.). The rules
will also tell you the usual court calendar. For example, some courts hear certain kinds of
cases only on specific days of the week. The rules will also tell you what information is
required for certain kinds of lawsuits. If you are involved in a New York State or federal
case, always review the New York Rules of Court. In particular, review the section(s) that
apply to the court to which you are sending your papers. This review should be done before
filing any legal papers, since you do not want to find out afterwards that the deadline for
filing the papers has already passed. If you cannot figure out something in the New York
Rules of Court, sometimes a court clerk will tell you the answer over the telephone. The
addresses and telephone numbers of the trial courts in New York are contained in Appendix
II of the JLM. Call the courthouse and ask for the court clerk’s office. Although this does not
always work, it might save you time and effort.
(viii) Administrative Codes
Federal and state legislatures often give government agencies the power to create rules
or regulations that govern specific subjects. The rules are often referred to as
“administrative” rules or regulations. Here are two examples: the federal government gives
the Bureau of Prisons power to make specific rules about how federal prisons are run, and a
state will often allow the state’s Department of Corrections to make specific rules about how
state prisons are run.
All federal administrative rules and regulations are published in the Code of Federal
Regulations (“C.F.R.”). Similarly, rules and regulations from all departments or agencies
within a state are also collected together and published. Each state organizes the regulations
a little differently, but the publications are often referred to as the administrative “code,”
“rules,” or “regulations.” For instance, New York’s administrative codes are published in the
Official Compilation of Codes, Rules & Regulations of the State of New York (“N.Y. Comp.
Codes R. & Regs.”), and Texas’ codes are published as the Texas Administrative Code. Your
prison library may have a copy of the C.F.R. and/or a copy of your state’s administrative
code.
If you are in a federal prison, you may want to review a copy of the C.F.R. to find out if
any provisions are relevant to your case. The C.F.R. has many volumes, organized
alphabetically by subject matter, and a separate general index will likely be shelved after the
main volumes. This general index is a good place to begin your research. For instance, you
can open the general index and look under “Prisons Bureau,” and under the main heading
(which will be in bold type), there are several subtopics. You can scan those subtopics, and if
any of them appears to be related to your case, the index will refer you to the appropriate
title and section of the C.F.R. For example, if you are interested in parole issues, you can look
under “Prisons Bureau” for the subtopic on “Parole,” which will refer you to “28 C.F.R. 572.”
This means that the rules on parole in federal prisons are contained in Title 28, Part 572 of
the C.F.R. You can then pull out the appropriate volume from the shelf (the title and part
information is on the spine of the book), and read through Part 572 to see if there is a
“section” that interests you. Note that in the C.F.R., sections are simply subtopics under each
Part. For example, you would refer to “Part 572,” but to “section 572.30.” The index to the
C.F.R. is updated once every year.20
If you are in a state prison, you may want to review a copy of your state’s administrative
code. The administrative code will likely have many volumes, organized by subject. A good
place to begin your research is in the general index, which should be in one or more volumes
shelved after the code’s main volumes. For instance, if you have a question about how much
exercise time prisoners are supposed to have, you may want to begin by looking in the
general index under “prisons.” In New York, the index would then refer you to the section on
“correctional institutions.” Under “correctional institutions,” there are many subtopics. One
of these subtopics is “exercise,” which refers you to “7 § 304.3” and “7 § 1704.6.” If you then
look at Title 7, section 1704.6 of the N.Y. Comp. Codes R. & Regs., you will find that in New
York, most prisoners are allowed to exercise outside of their cells for at least one hour each
day. If you are using a state administrative rule or regulation in your legal papers, be sure to
check whether the regulation has been recently updated or changed. Updates to state
administrative code can usually be found in soft cover volumes that follow the main volumes
of the administrative code.
(d) Find Relevant Cases
The bulk of your research time will be spent trying to find cases to support your
arguments. In researching cases, you are searching for a case that is most similar to your
case. To be most useful to you, the case must have the same facts as your case, have been
decided by a court in your jurisdiction, and must not have been reversed on appeal, or
overruled by a later case or statute. It also helps if the case is recent.
Sometimes you may hear about the “holding” or the “dicta” of a case. The holding is the
major part of the decision in a case and usually applies only to cases with facts like the case
the court decided. Dicta is all of the other things that the court says in the opinion (“dicta” is
the plural; when you are talking about only one such comment, say “dictum”). For example,
the holding of a case may be that you have the right to an attorney in a criminal case, and
other comments that the court may make about the general role of an attorney would be
dicta. You will rarely find a “perfect” case. Thus, your search should be for cases that have
strong similarities to your case.
In addition to looking for similar cases that help you, you need to be aware of any similar
cases not supporting your position. You must be prepared to explain to the judge why that
contrary case should not apply to your situation or why the judge should not follow that case.
Remember, your opponent will also be researching your case. You must be ready to respond
to your opponent’s arguments and to make your own.
A law report is the written record of the decision reached by the court. The decision set
out by the court is called an “opinion.” Books that contain these reports are known as
“reporters.” This is where you will find case law to support your arguments.
(i) Federal Reporters
There are three levels of courts in the federal system, and each level has a separate
“reporter.” The Supreme Court reporter is called the United States Reports (abbreviated as
“U.S.”). The circuit court reporter is called the Federal Reporter (abbreviated as “F.,” “F.2d,”
or “F.3d”). The trial court is called a district court and its reporter series is called the Federal
Supplement (abbreviated as “F. Supp.” or “F. Supp. 2d”). Not all decisions of federal district
courts are published. Publication is called “reporting” a decision. In New York, there are four
federal district courts: the Northern, Southern, Eastern, and Western Districts. Reported

20. To get updates before the new version is printed, you first have to look at the monthly “List of
C.F.R. Sections Affected” which will refer you to the appropriate section in the Federal Register. It is
highly unlikely that you will have access to these resources in prison.
decisions of each of these courts are found in the F. Supp. Each reported case is found and
referred to by its “citation.” The citation of a case provides both the official way of referring to
an opinion and tells you where to find the text of the opinion. Citations will be explained in
Part D of this Chapter, but you may want to read that Part now.
Unfortunately, many opinions that are of interest to prisoners are “unreported” or
“unpublished”—that is, they do not appear in the Federal Supplement or Federal Reporter
volumes available in prison law libraries. Many cases that do not appear in a reporter are
available on computer services like Lexis and Westlaw. Citations like “2000 U.S. App. LEXIS
12345” or “2000 U.S. Dist. LEXIS 12345” are Lexis citations. In the JLM, unpublished cases
are generally cited to Lexis (“LEXIS”), and occasionally Westlaw (“WL”), and are always
indicated with the text “(unpublished)” after the citation. Sometimes cases have book
citations (such as “F.2d”) but the opinions are not actually printed; they are just listed in a
table. In the JLM, table citations are included, where available, along with a citation to an
electronic source.
You should note that a citation like “___ F. Supp. ___, 2001 U.S. Dist. LEXIS 12345”
means the case is not unpublished, but is merely a recently reported decision that will be
available in the Federal Supplement in the near future. You should check to see if this
decision has been published in a reporter since the JLM was printed.
The JLM cites published decisions whenever possible. Courts generally prefer that you
cite published cases, so you should research the rules of the court in which you are filing
before you cite unpublished cases. Some courts may bar citations to unpublished cases
altogether; some permit it in certain circumstances where specific requirements are met,
such as serving a copy of the case on other parties and on the court. These rules can be
obtained for a small fee from the court clerk (the pro se clerk in New York). At the very least,
an unpublished case may help you predict the outcome of similar lawsuits. Many legal
researchers find unpublished cases helpful because they can shed light on particular
applications of settled law; in areas in which the law is unsettled, unpublished cases may
provide the only insight into how a court may respond to a certain type of claim.
Recently, the Federal Rules of Appellate Procedure were changed, which affects your
ability to cite to unpublished cases in certain situations. For federal appellate courts, you can
now cite to any unpublished cases that were decided on or after January 1, 2007.21 You
should note that most unpublished cases are not precedential, which means that courts do
not have to follow their holdings. They can be cited, however, for their persuasive value. Also,
you generally do not need to attach a paper copy of the case to your petition or brief, as long
as the case is available on a publicly accessible database.22 Some jurisdictions have more
specific rules. For example, many federal courts allow you to cite to unpublished cases even if
they were decided before January 1, 2007.23

21. Fed. R. App. P. 32.1.

22. The two computer services mentioned above, Lexis and Westlaw, are examples of publicly
accessible databases.
23. The 1st, 3rd, 4th, 5th, 6th, 10th, and 11th Circuit Courts allow citation to unpublished cases
decided before and after Jan. 1, 2007. 1st Cir. R. 32.1.0(a) (“An unpublished judicial opinion, order,
judgment or other written disposition of this court may be cited regardless of the date of issuance.”);
3rd Cir. I.O.P. 5.7 (“The court by tradition does not cite to its non-precedential opinions as authority.
Such opinions are not regarded as precedents that bind the court because they do not circulate to the
full court before filing.”); 4th Cir. R. 32.1 (“If a party believes … that an unpublished disposition of this
Court issued prior to January 1, 2007, has precedential value in relation to a material issue in a case
and that there is no published opinion that would serve as well, such disposition may be cited if the
requirements of FRAP 32.1(b) are met.”); 5th Cir. R. 47.5.3 (“Unpublished opinions issued before
January 1, 1996, are precedent. Although every opinion believed to have precedential value is
published, an unpublished opinion may be cited pursuant to Fed. R. App. P. 32.1(a).”); 6th Cir. R. 28(g)
(“Citation of unpublished decisions is permitted. FRAP 32.1(b) applies to all such citations.”); 11th Cir.
R. 36.2 (“Unpublished opinions are not considered binding precedent, but they may be cited as
 There are a few ways you can learn about cases that don’t appear in the federal
reporters. First of all, you can read the JLM. While ordinarily you should never cite a case
that you haven’t read, for some cases you may have to rely on the descriptions in this book
(if, having read the rules of the court in which you are filing your claim, you decide it is
acceptable to cite unpublished cases).
The West Group sells a compilation of U.S. Court of Appeals unpublished opinions called
the Federal Appendix, last updated (at the time of this printing) in 2006. You could ask your
library to subscribe to the Federal Appendix, although your library might not, as the 182-
volume set is very expensive. You can also ask a lawyer or someone else with access to Lexis
or Westlaw to print out the case and send it to you. Keep in mind that these electronic
sources are expensive and lawyers who assist pro se prisoners may not have the resources to
respond to such requests.
Finally, some federal courts will send prisoners copies of unreported cases, upon request
and for a fee; others will not. Send your request to the clerk of the court in which the case
was decided. You could also try writing a letter to the chambers of the judge who wrote the
opinion and request a copy. In both instances, be sure you include the case name, the docket
number (for example, “No. 12 345 67”), the court, and the date of the decision. All of this
information should be available in the JLM citation. If you can tell which decision you are
looking for (e.g., the summary judgment motion, the motion to dismiss, or the motion to set
aside the jury verdict, etc.), indicate that as well.24
Citations will be discussed further in Part D of this chapter. However, here is a short
example of a citation: Mukmuk v. Comm’r, 369 F. Supp. 245 (S.D.N.Y. 1974). The italicized
portions of the citation are the parties involved in the case. (Comm’r is the accepted
abbreviation for “Commissioner”.) The first number (369) is the volume number of the
reporter, which appears on the spine of the book. “F. Supp.” identifies the Federal
Supplement reporter. The second number (245) is the page in the 369th volume of the
Federal Supplement upon which the case of Mukmuk v. Comm’r begins (the 245th page). The
information in parentheses refers to the court in which the case was decided (S.D.N.Y. refers
to the Southern District Court of New York) and the year in which the case was decided
(1974). Thus, if you need to refer to this case in your legal papers, you should use the citation
listed above. In your research, you will come across many similar citations, or variations of
such citations. You can use a citation to find the text of the case by following the procedure

persuasive authority.”); 10th Cir. R. 32.1(a) (“The citation of unpublished decisions is permitted to the
full extent of the authority found in Fed. R. App. P. 32.1.”). However, the 2nd, 7th, 8th, and 9th Circuit
Courts allow citation to unpublished cases only if the cases were decided on or after Jan. 1, 2007. 2nd
Cir. R. 23(c)(2) (“Citation to summary orders filed prior to January 1, 2007, is not permitted in this or
any other court, except in a subsequent stage of a case in which the summary order has been entered,
in a related case, or in any case for purposes of estoppel or res judicata.”); 7th Cir. R. 32.1 (“No order of
this court issued before January 1, 2007, may be cited except to support a claim of preclusion (res
judicata or collateral estoppel) or to establish the law of the case from an earlier appeal in the same
proceeding.”); 8th Cir. R. 32.1a (“Unpublished opinions issued on or after January 1, 2007, may be cited
in accordance with FRAP 32.1.”); 9th Cir. R. 36.3 (“Unpublished dispositions and orders of this Court
issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with Fed. R.
App. P. 32.1.”). When filing in the D.C. Circuit Court, you can cite to its own unpublished opinions
dating back to Jan. 1, 2002, but you can only cite to unpublished opinions from another circuit court
decided prior to Jan. 1, 2007 if that particular court’s rules allow it. D.C. Cir. R. 32.1 (“All unpublished
orders or judgments of this court, including explanatory memoranda (but not including sealed
dispositions), entered on or after January 1, 2002, may be cited as precedent … [U]npublished
dispositions of other courts of appeals entered before January 1, 2007, may be cited only under the
circumstances and for the purposes permitted by the court issuing the disposition …”).
24. You can sometimes tell what motion the decision relates to by the parenthetical explanation
that follows the citation. For example, if a case citation has a parenthetical explanation that begins
with “(granting motion to dismiss where …)” the decision you are looking for decided the motion to
dismiss.
explained in this paragraph. A fuller explanation of citations is provided in Part D and
Appendix A of this Chapter.
The second level of court in the federal system is called the circuit court of appeals.25
There are twelve such circuits in the United States.26 Circuit courts are the intermediate
appellate courts in the federal system. Reports of all circuit court decisions are found in the
Federal Reporter (abbreviated as “F.”, “F.2d” or “F.3d”). The Federal Reporter has three
series of reporters (so the volume numbers do not get too high within each series) with
volumes individually numbered within each series. Each circuit court of appeals covers
appeals from several federal district courts. Cases from the four New York federal district
courts plus the district courts of Connecticut and Vermont are appealed to the Second Circuit
Court of Appeals (abbreviated “2d Cir.”). Thus the case United States v. Bush, 47 F.3d 511
(2d Cir. 1995) is a 1995 case from the Second Circuit Court of Appeals found on page 511 of
volume 47 of the Federal Reporter (Third Series).
The third and highest level of the federal court system is the United States Supreme
Court. There is only one U.S. Supreme Court. In addition to hearing cases from lower federal
courts, the Supreme Court can also hear certain cases from state high courts. All U.S.
Supreme Court decisions are reported in the “official” reporter United States Reports
(abbreviated as “U.S.”). Decisions of the Supreme Court are also reported in two “unofficial”
reporters, the Supreme Court Reporter (abbreviated as “S. Ct.”) and the United States
Supreme Court Reports, Lawyers’ Edition (abbreviated as “L. Ed.” or “L. Ed. 2d”).27 The text
of the opinions published in any of the three Supreme Court reporters is identical, although
the citations are different. However, if you are citing a case in a legal paper, use the United
States Reports (“U.S.”) citation, if available. Thus, the citation for the famous case that
requires the police to inform those in custody of their rights is Miranda v. Arizona, 384 U.S.
436 (1966). As only Supreme Court cases are reported in the reporter “U.S.”, it is not
necessary to list the court name in the citation.
Prison libraries usually have copies of only the Supreme Court Reporter. However, you
can find the “U.S.” citation at the top of each case in the Supreme Court Reporter listed
above the case name. The S. Ct. version of the case also provides cross-references throughout
the opinion to the corresponding “U.S.” pages. This is useful if you are quoting text from the
decision, since you can read the decision in the “S. Ct.” reporter but cite the correct page in
the “U.S.” reporter. We have tried to give the citations to all three of the Supreme Court
reporters in the JLM.
(ii) State Reporters
State reporters are organized in the same way as federal reporters. New York has three
levels of courts and three official state reporters. New York Miscellaneous Reports
(abbreviated as “Misc.” or “Misc. 2d”) reports the decisions of state trial courts. Appellate
Division Reports (abbreviated as “A.D.” or “A.D.2d”) reports the decisions of New York’s
intermediate appellate courts. New York Reports (abbreviated as “N.Y.” or “N.Y.2d”) and the
North Eastern Reporter (abbreviated as “N.E.” or “N.E.2d”) both report decisions rendered by
New York’s highest court, the New York Court of Appeals.
Important appellate decisions of the New York courts are also reported in an unofficial
reporter called the New York Supplement (abbreviated as “N.Y.S.” or “N.Y.S.2d”). This is the

25. When a losing party is not satisfied with the outcome of a trial court case, it can challenge
the decision by bringing the case before the circuit court for review.
26. See Part B of this Chapter for a discussion of the Circuit Courts of Appeals.
27. One advantage of the Lawyers’ Edition is that for selected cases, not only is the text of the
case provided but attorneys’ briefs submitted to the Court are also summarized. This reporter also
includes essays written by its editorial staff on significant issues raised by selected cases. These essays
provide a good review of the case law on those issues.
only New York reporter in most New York prison libraries. The text of opinions published in
the New York Supplement is identical to that published in the official reporters. However, if
possible, citations to the official reporter should be used in papers submitted to New York
state courts. The N.Y.S. or N.Y.S.2d version of the case provides the official citation at the
beginning of each opinion (for example, it will give the N.Y.2d citation). Every state has its
own official reporter. Check your prison library to find the official reporter of your state.
(iii) Reporters as Research Tools
All reporters are useful as research tools, but those published by West Publishing
Company (“West”) are the most useful. West reporters begin each case by providing
“headnotes.” Headnotes are separate paragraphs that summarize each of the major issues
decided in the case. Each headnote is numbered and labeled with a “key number” that
identifies the legal issue that was discussed. As the next Subsection of this Chapter will
explain, these key numbers allow you to find other cases that deal with the same issue.
Although useful research tools, headnotes are not part of the decision and therefore
should not be quoted or discussed in legal papers. Reading only the headnotes may give you a
mistaken understanding of the decision. If the headnote discusses a topic that might be
relevant to your case, you should find and read the section of the decision on which the
headnote is based. If this section of the decision is helpful, that part of the decision can be
used in your legal papers. To find the part of the decision that supports a particular
headnote, refer to the paragraph(s) in the decision labeled with the same number as the
headnote. Because West publishes almost all of the major reporters, headnotes will be
present in most case reports that you read. Ultimately, however, you must read the entire
case to determine if the case will be truly useful to you.
(iv) Digests and the “Key Number System”
You may have found helpful cases while doing your background reading (for example, in
treatises), or while researching relevant constitutional or statutory references (in the “Notes
of Decisions” section of the applicable source). If you have found no useful cases (and even if
you have), the next step is to look at a “digest.” Your prison library probably has three
digests. The United States Supreme Court Digest is the digest used to find relevant Supreme
Court cases. For relevant cases from other federal courts, use the Federal Practice Digest.
Your prison library should also have a state digest, which will help you find relevant cases
from your state. In New York, that digest will be the New York Digest.
Digests summarize case law using the West headnotes discussed above. Whereas cases
have individual headnotes for each issue discussed in the case, the digests take headnotes
from all the reported cases, and group them together by subject matter. You can use digests
by first finding the broad subject area relating to your issue. These subject areas, known as
the “Digest Topics,” are arranged alphabetically. Examples of Digest Topics include arrest,
bail, convicts, and criminal law. Within each Digest Topic, there will likely be many
subtopics, each of which is assigned a “key number.” You will know you are looking at the
key number because it will have a little picture of a key in front of it. Once you find the
Digest Topic and key number of a particular legal point, you can use that number to find
cases on that legal point in any jurisdiction. The key numbers are the same for all digests.
For example, Criminal Law key number 37(1), which covers entrapment, can be used to find
cases on this issue in New York state courts (by looking in the New York Digest), in federal
courts (by looking in the Federal Practice Digest), and the U.S. Supreme Court (by looking in
the U.S. Supreme Court Digest), or cases from any state court (by looking in the digest of
that state). For this reason, finding a key number for a particular issue in your case can
greatly advance your research.
 Under each key number, a digest will list “headnotes,” i.e. cases and their citations that
address the topic of the key number. Depending on how often a particular issue is litigated,
there may be no headnotes or hundreds of headnotes under each key number. Headnotes are
listed first by the level of the court that decided the case, next in alphabetical order by
jurisdiction and finally in reverse chronological order (by date, beginning with the most
recent) within each jurisdiction. Each headnote also provides a cite to the relevant case.
Digests do not provide comments on cases; they simply contain organized lists of
headnotes (cases by topic). It is up to you to decide whether a particular case might be
applicable to your legal problems. Once you decide that a headnote discusses an issue that
might be helpful, you should write down the citation given in the headnote, and use that
citation to find the text of the case in a reporter. You can decide whether the headnote has
pointed you to a useful case only after you have actually read that case. Digests are only
research guides; you may find that a headnote points you to a helpful case, but you also may
find that a promising headnote leads you to an unhelpful case.
Note that digests are usually published in several series, with each series limited to a
certain time period. For example, the fourth series of the New York Digest only contains
headnotes for cases decided from 1978 to the present; for earlier cases, you would need to
consult an earlier series of this digest. You must be aware of the period covered by the digest
to maximize your research effort. Each digest will explain its coverage in its preface, found at
the beginning of each volume. As with all other sources, do not forget to update by referring
to the pocket part28 of each hardcover volume you consult.
(v) Finding Key Numbers
There are three basic ways of finding relevant key numbers. The first and easiest way is
if you have already found a useful case. Obtain the case from a reporter published by West.
Next, review the headnotes found at the beginning of the case. One or more of the headnotes
will concern the issue(s) with which you are interested. At the beginning of the headnotes
there will be a number preceded by the picture of a key. This is the “key number.” As
described earlier, this key number can be used to find other cases that address the same
issue by looking in the digests under that key number.
The two other ways of obtaining key numbers are similar to the way you would find
relevant legislation. As described earlier, one of these ways is the “book index” method. This
method requires looking in a digest’s book index, (located at the front of the volume), and
scanning the alphabetical list of subject areas (digest topics) and the breakdown of each
subject area into smaller topics and even smaller subtopics. For example, suppose that you
were looking for federal cases on whether a search pursuant to a search warrant could be
executed at night. You would start by pulling out the volume that has “Search and Seizure”
on the spine of the book (volumes 84 and 85 in the Federal Practice Digest (Fourth Series)).
At the beginning of the section on Searches and Seizures is an index that breaks down the
large topic of Searches and Seizures into smaller and more specific legal areas. Part III refers
to “Execution and Return of Warrants.” By looking at the subtopics under Part III, you will
find an entry for “Time of Execution” and an even more specific entry “nighttime execution.”
This last entry corresponds to the key number 146 in the digest topic “Searches and
Seizures.” You should then write down all possible key numbers (here, Search and Seizure
146), and look up each key number and review a few headnotes under the numbers. In this
way you will find useful key numbers and potentially helpful cases.
The final way of finding key numbers is by using the general index to the digests. This
index is called the Descriptive Word Index (“DWI”) and contains several volumes. The DWI
lists words in their common, everyday usage. It then tells you what digest topic in the main

28. For a discussion on pocket parts see Part C(2)(c)(iii) of this Chapter.
part of the digest you should look at to find cases and headnotes related to that word. Often,
the DWI will give you the key number under which to look.
For example, suppose that you wanted to know whether you were entitled to be
represented by a lawyer in prison disciplinary proceedings. A reasonable place to start
looking would be the digest topic “Prisons” since that is where the disciplinary proceeding is
to occur. In the DWI of the New York Digest (Fourth Series), there is a subheading under
“Prisons” called “Proceedings” under which you will see a section titled “Discipline and
Grievance,” which includes “counsel and counsel substitutes.” Next to “counsel and counsel
substitutes” is the key number Prisons 13(9).
You would then look at the digest volume containing the digest topic “Prisons” and turn
within that volume to key number 13. You will see that the specific issue of whether you are
entitled to be represented by counsel in prison disciplinary proceedings is discussed as the
ninth heading under key number 13, or “13(9).” As indicated earlier, you should read the
descriptions of the cases, write down the citations of possibly useful cases, and then read
these cases. To find similar cases in another jurisdiction, look up “Prisons 13(9)” in the digest
for that jurisdiction.
A more specialized digest index is the Words and Phrases Index, which is found in a
separate volume of each digest series. This index gives citations of cases that define a word
or phrase. For example, if you want to know in detail what is meant by the term “detention,”
look it up in this index. The index will give you the citations of cases that have defined that
term. Although the Words and Phrases Index will not give you a key number, you can go to
the cases it cites to obtain relevant key numbers.
D. Citation
Whenever you mention cases, statutes, regulations, etc. in your legal writing, these
materials must be referenced in a proper legal form known as a “citation.” Legal citations
allow a reader to easily find the sources that you use in your legal writings.
There are many rules about citation style, but the major ones are detailed below. Also,
Appendix A at the end of this Chapter analyzes the most common types of citations and will
help you understand basic citation style. Detailed rules for every imaginable legal citation
are contained in A Uniform System of Citation (commonly called “The Bluebook”), a
publication that your prison library may have. Proper legal citation of cases, constitutions,
and statutes should not be ignored, as it not only helps your readers find the materials that
you are discussing, but also gives the judge a good first impression of your research.
1. Citing Cases
A case citation includes information about the parties involved in the case, the reporter
in which the case can be found, the court that decided the case, and the date of decision. The
“case name” (a listing of the names of the parties on either side) comes first and is underlined
or italicized: for example, People v. Delaremore or People v. Delaremore. Next comes
information that tells you where to find the case, in this order: the volume number of the
reporter, the abbreviation of the reporter, and the page number at which the case starts (for
example, 212 A.D.2d 804). The final portion of the citation is enclosed in parentheses. It
includes the court that decided the case and the year the decision was released (for example,
(N.Y. App. Div. 1995)). Thus, the complete citation would be: People v. Delaremore, 212
A.D.2d 804 (N.Y. App. Div. 1995). The court name “N.Y. App. Div.” stands for the New York
Supreme Court, Appellate Division. Note that in New York, the intermediate level of
appellate court (the Appellate Division) is split into four separate “Departments.” If you are
citing an Appellate Division case to a New York state court, you may also want to include
which Department the decision came from. So in the example above, the court name could be
expanded to “N.Y. App. Div. 2d Dept.” in order to show that the decision came from the
Second Department. If the reporter that you are using publishes the decisions of only one
state (for example, N.Y.S.2d), it is not necessary to repeat the state in the court name. For
example, a correct citation would be: People v. Aponte, 759 N.Y.S.2d 486 (App. Div. 1995), not
“(N.Y. App. Div. 1995).” If the reporter publishes the decisions of only one court (for example,
S. Ct.), it is not necessary to list that court in the citation. Appendix A at the end of this
Chapter summarizes the major citation styles.
You will sometimes want to refer to a particular page within the written opinion. If you
are citing part of a case for the first time, put a comma after the number of the first page of
the case and then put the specific page number. For example, Allen v. Hardy, 478 U.S. 255,
259 (1986) indicates you are specifically referring to page 259. If you have already given a
citation to that particular case earlier in the paper, you can use a short form (abbreviated
citation). The basic rule for short form is to write the name of the first party in the case (for
example, Allen), then the volume number of the reporter and the reporter abbreviation, and
then the word “at,” followed by the page number of what you want to cite (478 U.S. at 259).
So, the short form citation of this case would be: Allen, 478 U.S. at 259. If the first party is a
governmental party, use the other party’s name. Thus, United States v. Rosario would be
shortened to Rosario and never to United States.
Normally, you cite to the decision of the highest court that considered a case. Thus, if the
case was ultimately decided by the New York Court of Appeals (the highest state court in
New York), it is not necessary to cite to the decisions of the lower New York courts that
heard the same case. There may be times, however, that you wish to cite to the lower court
decision. It would be appropriate to cite a lower court decision, for example, where the lower
court considered an issue that a later court upheld without comment. However, if the case
has been appealed to a higher court, this should be reflected in the citation. For example,
Schmuck v. United States, 840 F.2d 384 (7th Cir. 1988), aff’d, 489 U.S. 705 (1989). This
citation shows that the U.S. Supreme Court “affirmed,” or upheld, the decision of the
Seventh Circuit Court of Appeals in the Schmuck case. If a decision has been reversed on
appeal but the part of the decision that helps you was not reversed, the citation should
reflect this—for example, People v. Perkins, 531 N.E.2d 141 (Ill. App. Ct. 5th Dist. 1988),
rev’d on other grounds sub nom. Illinois v. Perkins, 496 U.S. 292 (1990). This citation tells
you that the Supreme Court decided the Perkins appeal two years after the Fifth District of
the Illinois Appellate Court made its decision, and reversed that decision for a reason
unrelated to the part of the case that helps you. The citation also shows that the Supreme
Court considered the case under a different name than the Fifth District of the Illinois
Appellate Court (that is what “sub nom.” means).
When you cite a federal appellate court decision, show whether the Supreme Court has
refused to review the decision. For example, United States v. Fisher, 895 F.2d 208 (5th Cir.
1990), cert. denied, 493 U.S. 834 (1989). “Cert.” stands for “writ of certiorari,” which the
Supreme Court issues when it decides to review a lower court decision. “Cert. denied” means
that a party asked the Supreme Court to review the case but the Supreme Court refused to
issue certiorari and thus refused to review the case. As a point of information, the Supreme
Court refuses to review an overwhelming majority of the cases that come before it for
certiorari.
You must check each case you cite to find out whether it was appealed and whether it
was reversed or affirmed on appeal. Read Part E(2)(a) of this Chapter for information of how
to update a case. If the entire case was reversed, you should not mention the lower court’s
decision in your legal papers because it is no longer good law.
2. Citing Statutes
Citations for statutes are similar to other legal citations. The citation shows: (1) the
“volume” number of the book the statute is in (the “title” or “book” number); (2) the statutory
source in which you found the statute (for example, the United States Code Annotated is
cited as U.S.C.A.); (3) the section of the law to which you are referring; and (4) the date of
publication of the volume in which you found the statute. An example is 42 U.S.C.A. § 1983
(1994); 42 is the title, U.S.C.A. is the abbreviation for United States Code Annotated, §
means section, 1983 means the section 1983 within title 42, and 1994 is the year the volume
you looked at was published. If the statute was changed recently, you must cite to the
changed version of the statute. You can determine if a statute has been changed by looking
at the supplement or “pocket part” at the back of the hardcover volume. For instance, if
section 1983 had been amended in 1995, you would cite the amended section like this: 42
U.S.C.A. § 1983 (Supp. 1995). If you want to refer to the entire statute and only part of it has
been amended, you would cite it like this: 42 U.S.C.A. § 1983 (1994 & Supp. 1995).
Citations for federal administrative regulations are very similar to citations for statutes.
The citation includes (1) the title number of the regulation; (2) the source in which you found
the regulation (the Code of Federal Regulations is cited as C.F.R.); (3) the specific section
cited; and (4) the date of the code edition. For example, 28 C.F.R. § 544.70 (2003) refers to
section 544.70 of Title 28 of the C.F.R., of the volume published in 2003. This section
discusses the Federal Bureau of Prisons literacy program.
The format for citations to state administrative codes is slightly different in each state,
but generally contain the same information as citations to statutes or federal regulations.
Generally, the citation includes (1) the source that contains the state’s administrative code
(for example, the Official Compilation of Codes, Rules & Regulations of the State of New
York, cited as N.Y. Comp. Codes R. & Regs.); (2) the title or book number of the regulation
(for example, in New York, Title 7 contains the rules and regulations of the Department of
Corrections); (3) the specific section of the regulation to which you are referring; and (4) the
publishing date of the volume in which you found the regulation. For example, N.Y. Comp.
Codes R. & Regs. tit. 7 § 1704.6 (2003) is the correct citation for Title 7, section 1704.6 of the
Codes, Rules, and Regulations of the State of New York. Although the format varies slightly
in each state, you may be able to find the correct citation format for your state’s
administrative code by looking in the first few pages of any volume of the code. Depending on
the publisher of your state’s code, these pages may include information that gives the correct,
official citation format.
Any citation in a footnote should be followed by a period.
E. Important Next Steps
1. Check Other Sources
A final way to research an issue is to read the JLM. If there is a chapter that discusses
the issue or topic that you are interested in, read the cases cited in that chapter. If you want
additional cases in this subject area, you can obtain the key numbers by looking at the case
headnotes in the relevant reporter. The key numbers will allow you to find additional cases
in the digests.
Another way to find out more about a relevant case and its subject matter is to look up
that case in the “Table of Cases” in a relevant treatise. If the case is listed, read what the
treatise author has to say about the case and the issues it discusses. While not binding on
courts, treatise commentary can be helpful to a researcher and can be used to support your
legal arguments.
Although legislation and case law will be the major sources of support for your legal
arguments, other sources in your library might also be useful. A second review of general
treatises may be helpful in explaining some of the cases you found. This review may also
provide leads for other potential arguments. You should also read legal magazines and
newspapers. Your prison library will likely have the local legal newspaper, such as the New
York Law Journal. Any other type of legal aid found in your library should also be consulted.
Practice commentaries, loose-leaf services, manuals, form books, textbooks, and legal
dictionaries are all useful sources that your law library may have.
2. Update Your Research
It is essential that your research be up-to-date. Any authority you use should be
examined to make sure it is current law. To ensure that statutes are current, consult the
latest code editions and supplements. As described in Part C(2)(c)(iii) of this Chapter, a
hardcover volume will likely have soft cover updates in the pocket at the back of the volume.
It may also have supplementary updates shelved after the main volumes. You must also
ensure that any case you use has not been overturned or overruled. Finally, you must
confirm that the issue you have been researching has not been reinterpreted or modified by
more recent cases or statutes. You normally check to make sure that cases and the issues
decided in them are up-to-date with a research tool called Shepard’s Citations.
(a) Shepard’s
Shepard’s Citations (“Shepard’s”) is a research tool that provides a listing of all cases
that have cited the case you are checking. Using this tool is called “Shepardizing.” Shepard’s
serves two purposes: (1) it allows you to update your research and confirm that the case you
wish to rely upon has not been affected by later legal developments (overruled, criticized,
etc.), and (2) it points you to more cases that might be helpful.
There is a separate series of Shepard’s volumes for each level of federal court. Thus,
there is a separate series for the Federal Supplement, the Federal Reporter, and the United
States Reports (U.S.C.). Shepard’s volumes are also available for state reporters. The basic
function of Shepard’s is to list every other reported case that discusses a particular case. You
use it to check for updates to cases that you want to cite. Updating means checking to see if
the case is still good law that you can rely on. Thus, if Miranda v. Arizona is discussed in ten
other cases, Shepard’s will identify these cases. Shepard’s will list a case that overrules the
case you wish to update, as well as other cases that discuss, explain, or even mention the
case you are updating. This will allow you to find out what other courts have said about the
case you are updating and will also show you how other courts have handled the issues
raised by that case.
Cases are listed in Shepard’s only by citation, not by name. To “Shepardize” a case, first
find the Shepard’s series that corresponds to the reporter in which your case is found. The
corresponding case reporter name is printed on the binding of each Shepard’s volume. For
example, if the case you are updating is reported in “F.2d,” find the Shepard’s volumes that
have “Federal Reporter (Second Series)” printed on the binding. The binding will also show
what year(s) or volume(s) of the reporter that the Shepard’s volume covers. Next, find the
volume number in the citation of the case you are updating. (The volume is the first number
in the citation.) Open the Shepard’s volume that includes the volume of the Reporter, then
search for that volume number in the upper right hand corner of the page. Once you’ve found
the page where the citations for that volume number begin, look down the columns of
citations listed until you find the starting page number of the case you are updating. This
page number will be printed in large bold type. Beneath the bold page number are citations
to cases that have mentioned the case you are updating. Citations in Shepard’s are provided
alphabetically by jurisdiction and in reverse chronological order within each jurisdiction. The
citations are not given in full. They contain only the volume number, the reporter, and the
page number that refers to the case you are updating. (Note that the page number provided
is not the first page of the cited case, but rather the page where the case being updated is
mentioned.)
A list of abbreviations appears at the front of each Shepard’s volume to help you decode
and understand the reporter abbreviations. There are often letters in front of the listed
citations. The letters are a code that tells you how the later cases treated the case you are
Shepardizing. They tell you whether a later court overruled, criticized, or followed the case.
The code letters are explained in a table on the inside of the front cover of each Shepard’s
volume. The most important symbols to look for are “o” which indicates the case you are
researching has been overruled, “r” which indicates that the case you are researching has
been reversed, and “d” which indicates that the case you are researching has been
distinguished, that is, another court has created an exception to the case you are
researching. These are “negative treatments” of the case. Negative treatment makes a case
less reliable. If the case you are researching has been overruled or reversed, then it is no
longer useful to you. If it has been distinguished, then you must find out why it was
distinguished and then make arguments why your situation should not be distinguished
from the case you are shepardizing. Sometimes a court reverses, overrules, or distinguishes
only a part of a previous case rather than the entire opinion. Therefore, it is important to
determine whether the specific issue of interest to you has been reversed, overruled, or
distinguished. Even if the court overruled or reversed the case based on a different issue, if
you use this case in your legal documents, your case citation should indicate that the case
was reversed on other grounds so the court knows you have done your research.
To find the most recent cases that have mentioned the case you are updating, check the
hardcover supplements, if any. Next, check the current paperback cumulative supplements.
The supplements are organized in the same way as the main volume. Each supplement
should be checked in the same way as the main volume. There are also volumes of Shepard’s
citations for statutes and federal rules, which list the judicial opinions that cite particular
statutory provisions or federal rules. These are used to update statutes and rules in the same
manner as the series for updating case law.
Shepardizing is used not only to update cases but also as a means to find other helpful
cases. If you already have one case that is useful, Shepardizing that case will often lead you
to other cases that will be helpful. The disadvantage of this method of finding cases is that
Shepard’s does not contain headnotes. Thus, you must read the cited case to learn whether it
is helpful. However, you can shorten your search if you know the relevant headnote number
from the case you are updating. You can use this headnote number to limit the cases you
need to review to those containing the same number. In some citations there is a small
superscript number between the reporter abbreviation and the page number; this shows that
the cited case discusses the issue described in that headnote (superscript is text written
small and high like this: wordsuperscript). If you are interested in the issue discussed in
headnote number 2 of the case you are updating, scan the list of citations for those that have
a superscripted “2” in the citation. This will limit your review of cases to those cases that
discuss the issue corresponding to headnote number 2 of the case you are updating. Not all
citations will list which headnotes are discussed. If you find a citation that does not list
which headnotes are discussed, you cannot tell whether that case will be useful until you
read it.
Regardless of whether you use Shepard’s to find cases, you must always use it to ensure
the cases you are citing were not overruled, reversed, or distinguished.
F. Summary
Research is a key step in developing and presenting a legal argument. This Chapter has
suggested an outline for the development of your legal arguments:
(1) Analyze the problem—separate your case into small, discrete issues. This will help
you get started and provide manageable issues for you to research;
(2) Get an overview of the subject area—review treatises and legal encyclopedias to
obtain an introduction to the details of particular areas of law;
 (3) Find relevant legislation—consult the annotated codes to find U.S. and state
constitutional provisions, federal statutes, state statutes, and legislative history;
(4) Find relevant cases—read cases cited in annotated codes such as U.S.C.A. and
McKinney’s. Find additional cases through digests, key numbers, indices, words and
phrases tables, and Shepard’s;
(5) Check other sources—review treatises, legal periodicals, practice commentaries,
manuals, form books, texts, and legal dictionaries for additional commentary;
(6) Update your research—make certain that you rely on the latest editions and
supplements; Shepardize your case law and legislation; and
(7) Complete your citations—properly cite the authorities upon which you rely.
Two preliminary issues that you will want to confirm before beginning your research are:
(1) which court has jurisdiction to hear your case (both territorial and subject matter
jurisdiction), and (2) if you are appealing a conviction, whether the prosecutor followed
proper court rules to get your case to court. The following are the sources most often used in
prison law libraries to find the law.
For federal law:
(1) U.S.C.A. (for statutes and the annotations that follow the statutory text)
(2) Modern Federal Practice Digest (for federal cases on specific topics).
The major reporters you will be looking to for reported federal cases will be: the Federal
Supplement, cited as __ F. Supp. __, __ F. Supp. 2d __, and __ F. Supp. 3d __ (the 3d series
will contain the most recent cases) for selected cases from all federal district courts; the
Federal Reporter, cited as __ F. __, __ F.3d __, and __ F.3d __ (the 3d series will contain the
most recent cases), for cases from all federal circuit courts of appeals; and the Supreme Court
Reporter, cited as __ S. Ct. __, for cases from the U.S. Supreme Court.

For New York law:

(1) McKinney’s (for statutes and for the case annotations that follow the statutory text)
(2) New York Digest (for New York cases on specific topics)
The major reporter you will be looking to for reported New York cases will be the New
York Supplement (Second Series). It is cited as __ N.Y.S.2d __.
G. Other Ways to Learn About Legal Research
Many organizations have developed materials to help non-lawyers understand the law.
For example, West Publishing Company publishes The Guide to American Law, Everyone’s
Legal Encyclopedia, which is directed toward non-lawyers. A detailed explanation of how to
conduct legal research is found in M. Cohen’s Legal Research in a Nutshell. Finally, the law
is full of technical terms. Black’s Law Dictionary (8th ed. 2004) is particularly helpful in
explaining legal terms.
H. Conclusion
Legal research is a critical task for jailhouse lawyers because it provides the legal rules
and principles you will need to argue your case effectively. The process begins with
identifying the appropriate court (state versus federal, trial versus appellate, one with proper
jurisdiction). The next step involves breaking down the issues in your specific case—the
factual story—to see what legal sources you can use to make your argument. You should
start with finding the legislation or administrative rules that apply, which can demonstrate
where your rights have been violated or how a court got it wrong. It will then be important to
find precedents that have facts similar to your case and support your position. Finally, after
you gather different legal sources, you must make sure these sources are still valid and up-
to-date (i.e., Shephardize) and cite them properly.
 APPENDIX A

CITATION EXAMPLES OF COMMON AUTHORITIES

A-1. Federal Cases

reporter abbreviation (U.S. Reports)

“v” for versus reporter volume number specific page referred to (pin cite)

Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).29

first party date of decision

second party
first page of case (no court is indicated as it
is clear from reporter name
that this is a United States
Supreme Court case)

parties reporter abbreviation

(Federal Reporter (Second Series))

United States v. Kokinda, 866 F.2d 699

(4th Cir. 1989), rev’d, 497 U.S. 720 (1990).
Citation of case in which
higher court took action

deciding court date of

decision
action taken by a higher court, in this case,
the United States Supreme Court
(“rev’d” stands for reversed)

Shortform (abbreviated) citation for the above case after it has been cited in full
earlier in your legal paper:

Volume number and reporter

Kokinda, 497 U.S. at 725.

specific page referred to (pin cite)

shortened case name
(should be italicized)
Do not use a governmental party as the named
party (e.g., State), because many other cases
will also have the name of a governmental
party in them. Use the other party’s name
instead.

29. You will notice that the JLM often cites to many different reporters for each case. Often, cases
are published in more than one reporter—these “extra” citations are “parallel citations.” If possible, you
should always cite to an official reporter (for example, “U.S.,” or “F.2d.”). If you do not have the official
reporter available at your prison library, just make sure that your citation to an unofficial reporter is
accurate.
A-2. State Cases

reporter abbreviation
(New York Reports, Second Series—the
official reporter of the New York Court of
parties
Appeals)

Hynes v. Tomei, 92 N.Y.2d 613, 706 N.E.2d 1201, 684 N.Y.S.2d 177 (1998), cert.
denied, 119 S. Ct. 2359 (1999)

Action taken by a higher court, in this case, the parallel citations

United States Supreme Court. (“cert. denied” indicates The two citations that refer to
that the U.S. Supreme Court denied the petition for “N.E.2d” and “N.Y.S.2d” are parallel
certiorari). The reporter “S. Ct.” is an unofficial reporter citations. For more information on
for the U.S. Supreme Court. This is a recent case—often parallel citations, see note 29 of this
cases are available in the Supreme Court Reports (“S. Appendix A.
Ct.”) before they are printed in the United States Reports
(“U.S.”). The next number is the citation of the case in
which the Supreme Court took action.

A-3. Constitutions

United States Constitution

abbreviation for amendment

U.S. Const. amend. I.

abbreviation of number of amendment cited

constitution cited

State Constitution

abbreviation for article

N.Y. Const. art. IV, § 7.

abbreviation of section symbol and specific section cited

constitution cited

number of article cited

A-4. Statutes

Federal Statute

title section symbol and specific section cited

28 U.S.C.A. § 1291 (1988).

date of code edition cited
code abbreviation
(United States Code Annotated)

State Statute

abbreviated title of statute

date and edition of code cited

N.Y. C.P.L.R. 7801 (McKinney 1997).

specific section cited

A-5 Definitions for Common Statutory Abbreviations

Ann. Annotated
App. Appendix
art. article
Civ. Civil
Comp. Compilation
Const. Constitution
Ct. Court
Crim. Criminal
et seq. et sequentes, latin for ‘and the following ones’
Gen. General
Jud. Judicial
P. or Proc. Procedure
Rev. Revised
R. Rules
Stat. Statutes
S. Ct. Supreme Court
tit. title
 A Jailhouse Lawyer’s
Manual

Chapter 3:
Your Right to Learn the Law
and Go to Court

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 3

YOUR RIGHT TO LEARN THE LAW AND GO TO COURT*

A. Introduction
Although many rights are suspended while you are in prison, courts have protected a
prisoner’s constitutional right to access the state and federal courts.1 This right includes a
prisoner’s ability to prepare and submit petitions and complaints, including federal habeas
corpus petitions and civil rights actions.2 The Supreme Court held in Bounds v. Smith that
“the fundamental constitutional right of access to the courts requires prison authorities to
assist inmates in the preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from persons trained in the
law.”3 In other words, the Supreme Court believes that prisoners need a way to learn the law
in order to take full advantage of their constitutional right to access the courts. If the state
stands in the way of your ability to do legal research or get legal assistance, you may be able
to file a suit claiming that you have been denied access to the courts. You may also be able to
file a suit claiming a denial of court access if the state prevents you from creating and
mailing your legal papers by withholding necessary resources or materials. The Supreme
Court stated in Bounds that the right of access to the courts includes the state’s obligation to
provide indigent prisoners “with paper and pen to draft legal documents, with notarial
services to authenticate them, with stamps to mail them.”4
The Supreme Court has limited the circumstances in which a prisoner can win a denial
of access suit. In 1996, the Court held in Lewis v. Casey that in order for a prisoner to have a
cause of action under Bounds, he must first show that an actual injury has occurred because
he has been denied access to the courts. This actual injury requirement means you must
show both that the State’s legal access program was inadequate, and that you suffered an
actual injury because of its inadequacies. The Supreme Court went on to hold that proving
an actual injury requires showing that a “non-frivolous legal claim” has been frustrated.5
Therefore, under Lewis, you must show (1) your right of access to the courts was denied, and
(2) because of that denial you lost a non-frivolous legal claim.6

*This Chapter was revised by Sarah Jackel based on previous versions by Laura Burdick, Shima
Kobayashi, Monica Ratliff, Jeffra Becknell, Carolyn Hotchkiss, and Marianne Yen. Special thanks to
John Boston of the Prisoners’ Rights Project at The Legal Aid Society.
1. See Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800, 1814, 40 L. Ed. 2d 224, 243
(1974) (describing right of access to courts as part of constitutional due process of law requirements);
see also Murray v. Giarratano, 492 U.S. 1, 11 n.6, 109 S. Ct. 2765, 2771 n.6, 106 L. Ed. 2d 1, 12 n.6
(1989) (tracing right of access to courts to due process and equal protection clauses of U.S.
Constitution).
2. Bounds v. Smith, 430 U.S. 817, 828 n.17, 97 S. Ct. 1491, 1498 n.17, 52 L. Ed. 2d 72, 83 n.17
(1977). For an explanation of federal habeas corpus petitions and how to use them, see JLM, Chapter
13. Civil rights actions involve the violation of your constitutional rights. For more information about
your constitutional rights and how to sue those who violate your constitutional rights, see Chapter 16
of the JLM, which discusses Section 1983 and Bivens actions.
3. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72, 83 (1977).
4. Bounds v. Smith, 430 U.S. 817, 824–25, 97 S. Ct. 1491, 1496, 52 L. Ed. 2d 72, 81 (1977).
5. Lewis v. Casey, 518 U.S. 343, 351–53, 116 S. Ct. 2174, 2180–81, 135 L. Ed. 2d 606, 617–19
(1996). Lewis was a class action claiming denial of prisoners’ right of access to courts. The Supreme
Court reversed a Ninth Circuit decision ordering Arizona to provide prisoners with extensively
equipped law libraries and experienced library staff.
6. Lewis v. Casey, 518 U.S. 343, 350–51, 116 S. Ct. 2174, 2179–89, 135 L. Ed. 2d 606, 617–18
(1996).
 Congress has also limited the ability of prisoners to bring denial of access suits. In 1995,
Congress enacted the Prison Litigation Reform Act (“PLRA”) which, among other things,
requires prisoners to exhaust their prison’s administrative remedies before filing claims
alleging violation of civil rights under 42 U.S.C. Section 1983 in federal court. The
information provided in this Chapter is to be used only as a supplement to the information
provided in Chapter 14 of the JLM. If you decide to pursue any claim in federal court,
you must read Chapter 14 of the JLM on the Prison Litigation Reform Act. Failure to
follow the requirements in the PLRA can lead, among other things, to the loss of your good-
time credit and to the loss of your right to bring future claims in federal court without paying
the full filing fee at the time you file your claim.
This Chapter explains what constitutes a violation of your right of access to the courts.
Parts B and C explore the threshold requirements you must prove before the court will
examine your opportunities for access: that you suffered an actual injury and that you did so
because the state failed to fulfill its duty. Part B explains the actual injury requirement, as
stated in Lewis v. Casey. Part C outlines the reach of the state’s7 duty to provide you access
to the courts. The later Parts explain your rights once these requirements have been met.
Part D explains what adequate law libraries must contain. Part E explains what constitutes
adequate assistance from persons trained in the law (including the role of jailhouse lawyers8
in providing adequate assistance). Part F explains the state’s duty to provide you with legal
materials. Appendix A provides a list of organizations that will help you to get certain legal
materials. Be aware, however, that these organizations usually charge a fee for their
services.
Because the rights described in this Chapter relate to the conditions of your confinement,
the PLRA requires you first try to protect your rights through your institution’s
administrative grievance procedure. Read Chapter 15 of the JLM for further
information on inmate grievance procedures. If you are unsuccessful or do not receive a
favorable result through these procedures, you can then either bring a case under 42 U.S.C.
§ 1983, file a tort action in state court (or in the Court of Claims if you are in New York), or
file an Article 78 petition in state court if you are in New York. More information on all of
these types of cases can be found in Chapter 5, “Choosing a Court and a Lawsuit,” Chapter
14, “The Prison Litigation Reform Act,” Chapter 16, “42 U.S.C. § 1983,” Chapter 17, “Tort
Actions,” and Chapter 22, “Article 78,” of the JLM.
B. Fulfilling the Actual Injury Requirement
The Supreme Court in Lewis v. Casey narrowly interpreted the Bounds decision by
holding that establishing a violation of your right to access the courts requires showing
“actual injury” from the alleged violation. 9 The actual injury requirement is not a new

7. “State” in this chapter means either a state government or the federal government. In other
words, if you are a federal prisoner, when we refer to “state” in this chapter, for you it means the
federal government.
8. Black’s Law Dictionary 851 (8th ed. 2004) defines a jailhouse lawyer as “[a] prison inmate who
seeks release through legal procedures or who gives legal advice to other inmates.”
9. Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 617–18 (1996); see
also Chirceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999) (finding that denial of access to funds from
prison accounts to pay for filing fees did not constitute an actual injury because the complaint had been
successfully filed); Tourscher v. McCullough, 184 F.3d 236, 242 (3d Cir. 1999) (finding that defendant
failed to allege facts demonstrating that the number of hours he was required to work frustrated his
access to the courts); Klinger v. Dep’t of Corr., 107 F.3d 609, 617 (8th Cir. 1997) (showing a complete
and systematic denial of access to the law library or legal assistance was not enough to demonstrate
actual injury); Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (dismissing a claim because the
prisoner suffered no injury as a result of alleged interference with legal mail); Pilgrim v. Littlefield, 92
F.3d 413, 416 (6th Cir. 1996) (holding that pro se prisoners failed to demonstrate that inadequacy of the
prison law library or legal assistance caused actual injury); Sabers v. Delano, 100 F.3d 82, 84 (8th Cir.
concept, but the Lewis approach makes things harder for prisoners. Establishing that the
prison’s law library or legal assistance program is inadequate is not enough to prove actual
injury. You must also show that you were kept from pursuing a non-frivolous claim—that is,
“a claim for relief that is at least arguable in law and in fact” 10 —because of these
inadequacies.11
One way to prove an actual injury may be to show a complaint you prepared was
dismissed for failure to meet a technical requirement you could not have known about
because of the insufficient legal assistance provided at your prison facility.12 Another way
may be to show you were prevented from filing a claim in the first place because of
weaknesses in the legal facilities provided.13 If you and others bring a class action, you must
show the injury was systemic—that is, you must show a system-wide problem.14
C. How The State’s Limited Duty to Provide Access to the Courts May Apply to
You
There are a few things to keep in mind when developing your claim: (1) your state’s duty
to provide you with adequate law libraries or adequate assistance from persons trained in
law may not extend to the type of action you want to bring; (2) your correctional facility can
choose how it will meet its duty to provide legal information or expertise; (3) the state’s duty
almost always applies regardless of the kind of facility in which you are incarcerated; (4) it is
currently unclear how far the state’s duty to provide access extends; (5) the state’s duty
applies whether or not you are considered indigent.
First, courts disagree about whether your right of access to the courts is applicable in all
cases or only in those cases involving constitutional rights. In Lewis v. Casey,15 the Supreme
Court stated that your right of access does not guarantee your right to file any claim; instead,
this right is limited to non-frivolous lawsuits that attack prison sentences or challenge the
conditions of confinement. 16 Though this language is somewhat unclear, Lewis and
subsequent cases have narrowly defined the claims to which the right of access to the courts

1996) (finding prisoner had to show actual injury due to denial of access to courts, even if denial was
systematic; specifically, prisoner had the burden of showing that the “lack of a library or the attorney’s
inadequacies hindered [her] efforts to proceed with [the] legal claim in a criminal appeal, post-
conviction matter, or a civil rights action.”); Stotts v. Salas, 938 F. Supp. 663, 667–68 (D. Haw. 1996)
(holding that a state prisoner transferred to another state must show actual injury to have law books
sent from the state of his former prison).
10. Lewis v. Casey, 518 U.S. 343, 399, 116 S. Ct. 2174, 2203, 135 L. Ed. 2d 606, 662 (1996).
11. Lewis v. Casey, 518 U.S. 343, 352–53, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606, 616 (1996).
The Court said, “the inmate … must … demonstrate … the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351, 116
S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996).
12. Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996).
13. Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996)
(arguing that a prisoner could prove actual injury if the “inadequacies of the law library” prevented him
from even filing a complaint).
14. See, e.g., Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606, 616
(1996) (holding that “isolated instances of actual injury” are not enough to show a systemic Bounds
violation).
15. Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).
16. The Supreme Court in Lewis held:
“Bounds does not guarantee inmates the wherewithal to transform themselves into litigating
engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.
The tools it requires to be provided are those that the inmates need in order to attack their
sentences, directly or collaterally, and in order to challenge the conditions of their confinement.
Impairment of any other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.”
Lewis v. Casey, 518 U.S. 343, 355, 116 S. Ct. 2174, 2182, 135 L. Ed. 2d 606, 620 (1996).
extends. 17 For example, some courts have held that the state’s duty extends only to the
initiation of habeas corpus proceedings, direct appeals, and civil rights actions,18 because
these are the only actions specifically mentioned in Bounds v. Smith.19 Thus, your state’s
duty to provide access to the courts may not extend to ordinary civil proceedings. 20
Nonetheless, you should check your state’s law on this issue, which may cover civil
proceedings.
Second, the state may choose how to fulfill its duty.21 The state may provide you with an
adequate law library, adequate assistance from persons trained in the law, a combination of
the two, or something slightly different.22 For example, an inadequate or non-existent law
library may not violate a prisoner’s right of access when the state provides some other sort of

17. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (holding that “a prisoner’s
right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims
only”); Wilson v. Blankenship, 163 F.3d 1284, 1291 (11th Cir. 1998) (holding that the civil forfeiture
case that the plaintiff was attempting to litigate was “not a type of case that is included under the right
of inmates’ access to courts under Lewis”).
18. Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999).
19. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72, 83 (1977) (holding
federal habeas corpus or state or federal civil rights actions are encompassed within right of access to
the courts); see also Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992) (determining that requiring a
state to provide affirmative legal assistance to prisoners in actions unrelated to constitutional rights or
their incarceration would be “an unwarranted extension of the right of access”); cf. Glover v. Johnson,
75 F.3d 264, 269 (6th Cir. 1996) (finding female prisoners not entitled to legal assistance in child
custody matters); John L. v. Adams, 969 F.2d 228, 235–36 (6th Cir. 1992) (holding states do not have a
duty to provide affirmative assistance to prisoners on civil matters arising under state law, but noting
that “states are required to provide affirmative assistance in the preparation of legal papers in cases
involving constitutional rights and other civil rights actions related to their incarceration … [and also
that] in all other types of civil actions states may not erect barriers that impede the right of access of
incarcerated persons”); Walters v. Edgar, 900 F. Supp. 197, 229 (N.D. Ill. 1995) (finding prisoners have
no constitutional right to assistance from the state to pursue child custody matters).
20. See Glover v. Johnson, 75 F.3d 264, 269 (6th Cir. 1996) (holding female prisoners not entitled
to legal assistance in child custody matters); John L. v. Adams, 969 F.2d 228, 235–36 (6th Cir. 1992)
(holding that states do not have a duty to provide affirmative assistance to prisoners on civil matters
arising under state law).
21. Morello v. James, 810 F.2d 344, 346–47 (2d Cir. 1987) (“The right of access to the courts is
substantive rather than procedural. Its exercise can be shaped and guided by the state but cannot be
obstructed, regardless of the procedural means applied.” (citations omitted)); Ramos v. Lamm, 639 F.2d
559, 583 (10th Cir. 1980) (“Bounds does not hold that inmates have an absolute right to any particular
type of legal assistance. The states are still free to choose among a variety of methods or combinations
thereof in meeting their constitutional obligations [to provide access to the courts].” (citations omitted));
Glover v. Johnson, 75 F.3d 264, 266–67 (6th Cir. 1996) (holding that state could terminate funding for
prison legal services program that provided female prisoners with assistance on child care matters
because the termination did not violate the right of access to courts).
22 . The Supreme Court has pointed out that “while adequate law libraries are one
constitutionally acceptable method to assure meaningful access to the courts,” alternative programs
may be acceptable. Bounds v. Smith, 430 U.S. 817, 830, 97 S. Ct. 1491, 1499, 52 L. Ed. 2d 72, 84 (1977).
The Bounds Court suggested some alternatives to having a law library:
“Among the alternatives [to providing law libraries] are the training of inmates as paralegal
assistants to work under lawyers’ supervision, the use of paraprofessionals and law students
…, the organization of volunteer attorneys through bar associations or other groups, the hiring
of lawyers on a part time consultant basis, and the use of full-time staff attorneys, working
either in new prison legal assistance organizations or as part of public defender or legal
services offices.”
The Bounds Court did not consider this list of proposed alternatives exhaustive, stating that “a legal
access program need not include any particular element we have discussed, and we encourage local
experimentation.” Bounds v. Smith, 430 U.S. 817, 831–32, 97 S. Ct. 1491, 1499–1500, 52 L. Ed. 2d 72,
84–85 (1977).
legal assistance.23 At the same time, while the state is free to devise its own legal access
plan, there is no guarantee that courts will find it sufficient to satisfy your right of access to
the courts.24
Third, the state’s duty to provide you with access to the courts is not limited to those in
state prison, but also extends to prisoners in county and city jails,25 incarcerated juveniles,26
persons serving brief sentences in local jails, pretrial detainees, and mental patients under
commitment. Prisoners who are transferred from one state correctional facility to another or
from a state correctional facility to a federal correctional facility retain their right of access to
the courts and therefore must be provided some legal access program.27 However, as in Blake
v. Berman, the court may find that the state has fulfilled its duty by providing you with
persons trained in the law but no legal materials pertaining to the state in which you were
convicted.28 For example, a federal court in New York has suggested that a state might fulfill
its obligation to provide access to the courts by either supplying law books or providing legal
counsel to state prisoners incarcerated in federal facilities.29
Fourth, the extent of a state’s duty to assist your access to the courts is unclear. For
instance, is it enough for a state to assist only until you are finished writing your complaint?
Lewis greatly limits the Bounds decision by explaining that prison authorities have no duty
to enable the prisoner to find or recognize violations of his rights30 or to “litigate effectively
once in court.”31 This seems to imply that your right to access the courts extends only until

23. Prison authorities may “replace libraries with some minimal access to legal advice and a
system of court-provided forms … that asked the inmates to provide only the facts and not to attempt
any legal analysis.” Lewis v. Casey, 518 U.S. 343, 352, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618–19
(1996) (citations omitted). See also Blake v. Berman, 877 F.2d 145, 146 (1st Cir. 1989) (finding law
school clinical program might be considered an adequate alternative to a law library).
24. See Novak v. Beto, 453 F.2d 661, 663–64 (5th Cir. 1971) (finding that a prison legal access
program consisting of a small “library,” permission to use the law books of fellow prisoners, the prison
employment of two full time attorneys, and three senior law students employed one summer may not be
a sufficient alternative to allowing prisoners to provide some form of legal assistance to one another).
25. See Leeds v. Watson, 630 F.2d 674, 676–77 (9th Cir. 1980) (finding that there is a question of
obstruction when prisoners in a county jail are required to get a court order to have access to a law
library close by, and must be accompanied by a guard, and are not given sufficient information
concerning these requirements); Williams v. Leeke, 584 F.2d 1336, 1340 (4th Cir. 1978) (finding that a
situation where a prisoner in a city jail was only allowed access to legal resources 45 minutes a day,
three days a week was “on its face a constitutional violation”); Cruz v. Hauck, 475 F.2d 475, 476 (5th
Cir. 1973) (holding that prison regulations must not unreasonably invade the relationship of the
prisoner to the courts in a case where the prisoner was in a county jail); Tuggle v. Barksdale, 641 F.
Supp. 34, 36–37 (W.D. Tenn. 1985) (discussing how the fundamental right of access to the court may be
applied in a county jail).
26. John L. v. Adams, 969 F.2d 228, 233 (6th Cir. 1992) (holding that incarcerated juveniles have
a constitutional right of access to the courts).
27. Messere v. Fair, 752 F. Supp. 48, 50 (D. Mass. 1990) (holding that neither a copying service
providing Massachusetts law but requiring specific citations, nor a Connecticut legal assistance
program that refused to work on Massachusetts legal materials, provided a prisoner “meaningful access
to the Massachusetts courts within the contemplation of Bounds v. Smith”).
28. Blake v. Berman, 877 F.2d 145, 146 (1st Cir. 1989) (finding prison program providing legal
assistance instead of full law library satisfied access requirements).
29. See Kivela v. U.S. Attorney Gen., 523 F. Supp. 1321, 1325 (S.D.N.Y. 1981) (holding prisoners’
right of access to courts satisfied where state has provided either law books or legal counsel), aff’d, 688
F.2d 815 (2d Cir. 1982).
30. Lewis v. Casey, 518 U.S. 343, 354, 116 S. Ct. 2174, 2181, 135 L. Ed. 2d 606, 619 (1996)
(denying that “the State must enable the prisoner to discover grievances” (emphasis omitted)).
31. The Lewis Court restricted the Bounds ruling to require states to provide the tools “that the
inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the
conditions of their confinement. Impairment of any other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences of conviction and incarceration.” Lewis v. Casey,
the time that you file your claim. Therefore, the state could technically assist you until you
submit your complaint and forgo any assistance from then on.
Finally, the right of access to the courts applies to prisoners regardless of their financial
status.
D. What is an Adequate Law Library?
The Supreme Court has never defined exactly what an “adequate” law library is.32 The
American Association of Law Libraries’ (“AALL”) Special Committee on Law Library
Services to Prisoners has a suggested list of resources that should be in a prison law library,
but states are not required to follow the AALL’s guidelines, and various circuits have come
up with their own list of what a prison law library should contain.33 Even if a prison has a
law library that meets either a circuit’s requirements or the AALL’s guidelines, a court may
still decide that access to the court has been denied if books are frequently missing34 or if
prisoners cannot use the library. 35 For example, functionally illiterate prisoners, 36 non-
English speakers,37 and the blind cannot use typical law libraries.38 When prisoners cannot

518 U.S. 343, 355, 116 S. Ct. 2174, 2182, 135 L. Ed. 2d 606, 620 (1996).
32. The Court simply stated that prisoner access to the courts should be “adequate, effective, and
meaningful” and that “‘[m]eaningful access’ to the courts is the touchstone.” Bounds v. Smith, 430 U.S.
817, 822–23, 97 S. Ct. 1491, 1495, 52 L. Ed. 2d 72, 79–80 (1977) (quoting Ross v. Moffitt, 417 U.S. 600,
611, 615, 94 S. Ct. 2437, 2444, 2446, 41 L. Ed. 2d 341, 351, 353 (1974)).
33. In Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 856 (9th Cir. 1985), the Ninth Circuit
held that the following list of books “meets minimum constitutional standards and provides inmates
with sufficient access to legal research materials to prepare pro se pleadings, appeals, and other legal
documents” for Idaho State: Idaho Code; Idaho Reports; United States Reports, from 1962 to present;
Federal Reporter Second Series, beginning with volume 273 [1960]; portions of the United States Code
Annotated, including Federal Rules of Appellate Procedure and Federal Rules of Evidence; Appellate
Rules of the Ninth Circuit Court of Appeals; Local Rules of the United States District Court for the
District of Idaho; various Nutshells on procedure, civil rights, criminal law, constitutional law, and
legal research; West Pacific Digest Second Series; various volumes of Federal Practice & Procedure;
Manual for Complex Litigation Pamphlet Subscription; Federal Practice & Procedure, Criminal
Pamphlet; West Federal Practice Digest 2d; Pacific Digest Second Series; Federal Supplement,
beginning with volume 482 [1980]. In Tuggle v. Barksdale, 641 F. Supp. 34, 39 (W.D. Tenn. 1985), the
court stated that the law library in question should include: [all] volumes and titles of U.S.C.A … which
cover the United States Constitution, and Titles 5, 15, 18 with complete rules of the various courts, 28
with complete rules, 42 and the General Index … Federal Practice and Procedure by Wright and Miller,
… Tennessee Code Annotated Volume 7 and 10 and Criminal Law Library (2-volume set, latest
edition)[,] … Black’s Law Dictionary latest edition. See also Griffin v. Coughlin, 743 F. Supp. 1006,
1020–25 (N.D.N.Y. 1990), in which the court detailed and examined the inventory of the Clinton Main
law library and stated that it was constitutionally sufficient and provided prisoners with “access to a
law book inventory which rises above the constitutional minimum.”
34 . Walters v. Edgar, 900 F. Supp. 197, 226–27 (N.D. Ill. 1995) (finding that prison’s
replacement of missing volumes only once a year appeared to be inadequate maintenance of library,
and holding that even if prisoners might be responsible for stealing the missing volumes, “each
plaintiff’s right of access to the courts is individual, and therefore a … [prisoner] cannot be prevented
access by … theft”).
35. See, e.g., Cruz v. Hauck, 627 F.2d 710, 721 (5th Cir. 1980) (“Library books, even if ‘adequate’
in number, cannot provide access to the courts for those persons who do not speak English or who are
illiterate.”); Acevedo v. Forcinito, 820 F. Supp 886, 888 (D.N.J. 1993) (“[F]or prisoners who cannot read
or understand English, the constitutional right of access to the courts cannot be determined solely by
the number of volumes in, or size of, a law library.”).
36. See, e.g., Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 855–56 (9th Cir. 1985) (stating
that “[a] book and a library are of no use, in and of themselves, to a prisoner who cannot read”); U.S. ex
rel. Para-Prof. Law Clinic v. Kane, 656 F. Supp. 1099, 1105–07 (E.D. Pa. 1987) (the elimination of a
jailhouse lawyer association, leaving only a law library for prisoners, would leave functionally illiterate
prisoners without court access), aff’d, 835 F.2d 285 (3d Cir. 1987).
37. See, e.g., U.S. ex rel. Para-Prof. Law Clinic v. Kane, 656 F. Supp. 1099, 1106 (E.D. Pa. 1987)
(stating that “Spanish-speaking inmates who cannot read or write English are unable to present, with
use the law library because of illiteracy, an inability to speak English, or a disability, the
state may need to provide a legal assistance program consisting of persons trained in the law
in addition to, or in place of, an adequate prison law library.39
Generally, the state may limit your access to law libraries and legal materials for
security reasons. 40 The Supreme Court held in Lewis v. Casey that restrictive practices
justified by security concerns will be upheld even if they obstruct court access.41 For instance,
prison officials may restrict the amount of time an individual prisoner may spend in the
library 42 and the amount of time the library is open “in light of legitimate security
considerations.”43 But, the state may not limit your access to law libraries or legal assistance
to the point that your right of access to the courts is frustrated.44
Prison regulations that affect segregated prisoners’ access to law libraries, legal
materials, and legal assistance have spawned a great deal of litigation. Courts have stopped
states from enforcing regulations restricting or withholding law books from prisoners in
solitary confinement.45 Several (but not all) courts have criticized requirements that make
prisoners request specific books to be delivered to their cells,46 or identify the exact materials

reasonable adequacy, complaints to the courts without assistance”).

38. Phillips v. United States, 836 F. Supp. 965, 967–68 (N.D.N.Y. 1993) (stating that a prisoner’s
blindness may effectively deny him access to the prison law library).
39. Phillips v. United States, 836 F. Supp. 965, 967–68 (N.D.N.Y. 1993) (stating that denial of
access to a legal assistance program may give rise to a claim of denial of access to the court).
40. Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985) (stating that “[p]rison
officials of necessity must regulate the time, manner, and place in which library facilities are used”)
(citing Twyman v. Crips, 584 F.2d 352, 358 (10th Cir. 1978)).
41. Lewis v. Casey, 518 U.S. 343, 361–62, 116 S. Ct. 2174, 2185, 135 L. Ed. 2d 606, 624 (1996)
(holding that “delays in receiving legal materials or legal assistance” are “not of constitutional
significance, even where they result in actual injury” as long as they come from “prison regulations
reasonably related to legitimate penological interests”).
42. Shango v. Jurich, 965 F.2d 289, 292–93 (7th Cir. 1992) (holding that restrictions on library
hours which included: being closed nights, weekends, and holidays; allowing general population
prisoners to use library, optimally for 10 to 11 hours, one day each week; and limiting the library
visitation hours for prisoners in segregation and protective custody to about three hours every third to
fifth weekday, did not deny prisoners the constitutional right of meaningful access as described in
Bounds); see also Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985) (stating that
library being open a minimum of eleven hours each day was “an adequate amount of total library
access time”).
43. Shango v. Jurich, 965 F.2d 289, 292 (7th Cir. 1992) (quoting Caldwell v. Miller, 790 F.2d 589,
606 (7th Cir. 1986)).
44. See Straub v. Monge, 815 F.2d 1467, 1469 (11th Cir. 1987) (stating that “[r]egulations and
practices that unjustifiably obstruct the availability of professional representation or other aspects of
the right of access to the courts are invalid” (quoting Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct.
1800, 1814, 40 L. Ed. 2d 224 (1974)).
45. See, e.g., Knell v. Bensinger, 489 F.2d 1014, 1017 (7th Cir. 1973) (holding that, although a
prisoner in isolation does not have unlimited rights to use the library, if a prisoner in solitary
confinement is prevented from using the library or consulting an advisor to prepare a petition, the
courts may find that the prisoner’s right of access was effectively denied); U.S. ex rel. Para-Prof. Law
Clinic v. Kane, 656 F. Supp. 1099, 1104–05 (E.D. Pa. 1987) (finding prison’s program of providing a
small number of cases or books to segregated prisoners was unconstitutional, and prison had a “duty to
insure that the ‘opportunity to do legal research [given to segregated prisoners] must be at least the
equivalent of the opportunity that is available to an inmate who is permitted to go personally to the
prison library’” (quoting Wojtczak v. Cuyler, 480 F. Supp. 1288, 1301 (E.D. Pa. 1979)); Johnson v.
Anderson, 370 F. Supp. 1373, 1383–85 (D. Del. 1974) (holding prison rules allowing a prisoner in
solitary confinement access to only one law book of his choosing on two times during the week violated
the prisoner’s due process right), modified on other grounds, 420 F. Supp. 845 (D. Del. 1976).
46. The runner system or paging system, “also known as an ‘exact-cite system’ because an
inmate must request materials by exact cite,” has been deemed an inadequate legal access system for
both segregated and non-segregated prisoners by some courts. Cannell v. Bradshaw, 840 F. Supp. 1382,
they want to use before entering the library.47 However, a prison can meet its obligation to
provide a segregated prisoner with access to the courts by allowing some, but not unfettered,
access to legal materials or some access to legal assistance.48
E. The State’s Duty to Permit Access to Adequate Legal Assistance
While the Bounds v. Smith Court described various legal substitutes for law libraries,49 it
never defined the elements of an adequate legal access program or adequate assistance from
persons trained in the law. Therefore, it is not exactly clear what “adequate” means in these
contexts, but courts have occasionally described what might qualify.50 For example, if the
state only provides people to assist you who are not trained in the law, the court would most
likely find that such assistance does not satisfy your right of access to the courts.51
Occasionally, the state may decide to fulfill its obligation to provide you with access to
courts by allowing other prisoners to assist you.52 Prisoners who provide other prisoners with
legal assistance are called jailhouse lawyers or “writ writers.”53 In Johnson v. Avery, the
Supreme Court held that a state could not prevent one prisoner from assisting another
prisoner in the preparation of his writ in the absence of reasonable alternatives to such
assistance.54 Therefore, if the state does not provide you with any sort of adequate legal
access program, it cannot prohibit you from getting assistance from a jailhouse lawyer.55
Although the state may not prohibit you from getting assistance from a jailhouse lawyer, the

1389 (D. Or. 1993) (holding paging system alone does not provide adequate access to the courts); Griffin
v. Coughlin, 743 F. Supp. 1006, 1023 (N.D.N.Y. 1990) (finding book request system deprived protective
custody prisoners of meaningful access to the courts).
47. See, e.g., Cepulonis v. Fair, 732 F.2d 1, 4 (1st Cir. 1984) (finding requirement that prisoners
identify specific volumes sought prior to entering library to be suspect); Williams v. Leeke, 584 F.2d
1336, 1339 (4th Cir. 1978) (“It is unrealistic to expect a prisoner to know in advance exactly what
materials he needs to consult.”).
48. See, e.g., Lovell v. Brennan, 566 F. Supp. 672, 696–97 (D. Me. 1983) (stating that an adequate
legal access plan would provide segregated prisoners with access to law books and a prisoner advocate,
or other persons trained in the law, depending on the circumstances), aff’d, 728 F.2d 560 (1st Cir.
1984).
49. Bounds v. Smith, 430 U.S. 817, 831, 97 S. Ct. 1491, 1499–500, 52 L. Ed. 2d 72, 84–85 (1977).
50. In Gluth v. Kangas, the Ninth Circuit upheld the district court’s imposition of a training
program for prisoner legal assistants. The Gluth Court stated that “Bounds requires, in the absence of
adequate law libraries, some degree of professional or quasi-professional legal assistance to prisoners.
Although legal training need not be extensive, Bounds does require that inmates be provided the legal
assistance of persons with at least some training in the law.” Gluth v. Kangas, 951 F.2d 1504, 1511–12
(9th Cir. 1991) (citations omitted).
51. Valentine v. Beyer, 850 F.2d 951, 956 (3d Cir. 1988) (“An untrained legal research staff is
insufficient to safeguard an inmate’s right of access to the courts”) (quoting Para-Professional Law
Clinic v. Kane, 656 F. Supp. 1099 (E.D. Pa. 1987), aff’d, 835 F.2d 285 (3d Cir. 1987), cert. denied, 485
U.S. 993, 108 S.Ct. 1302, 99 L. Ed. 2d 511 (1988)).
52. This has also been called “mutual assistance among inmates.” Johnson v. Avery, 393 U.S.
483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969).
53. See Johnson v. Avery, 393 U.S. 483, 487–88, 89 S. Ct. 747, 749−750, 21 L. Ed. 2d 718, 722–
23 (1969) (discussing role of prisoners who provide legal assistance to other prisoners).
54. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969) (striking
down a prison regulation that forbade prisoners from providing each other with any sort of legal help or
advice).
55. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969)
(“[U]nless and until the State provides some reasonable alternative to assist inmates in the preparation
of petitions for post-conviction relief, it may not validly enforce a regulation … barring inmates from
furnishing such assistance to other prisoners.”). However, you have no right to demand the assistance
of a specific jailhouse lawyer. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (prisoner
had no right to “services of a particular writ writer”); Prisoners’ Legal Ass’n v. Robertson, 822 F. Supp.
185, 190 (D.N.J. 1993) (holding a prisoner has no “right to the assistance of a particular prisoner”).
state still has the power to reasonably regulate the activities of jailhouse lawyers. 56 For
example, the state can require that a jailhouse lawyer get approval from the state prior to
helping another prisoner.57 The state can also prohibit jailhouse lawyers from visiting the
cells of the prisoners they are assisting,58 and from receiving payment for their services.59
F. The State’s Duty to Provide Materials
The Supreme Court has held that the right of access to the courts includes providing
indigent prisoners “with paper and pen to draft legal documents, with notarial services to
authenticate them, and with stamps to mail them.” 60 In other words, even if the state
provides an adequate law library or assistance from persons trained in the law, failure to
provide you with the materials necessary for drafting, notarizing, and mailing your legal
documents may also violate your right to access the courts.
There are a few important things to remember before claiming that you have been denied
access to the courts because of the state’s refusal to provide you with materials. First, you
may not be entitled to all or any of the materials that you request. The courts have held: that
prisoners may be given pencils instead of the pens mentioned in Bounds; 61 that prisoners
have no constitutional right to use or possess computers or typewriters;62 that the state is not

56. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969) (“[T]he
State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners
to abuse both the giving and the seeking of assistance … for example, by limitations on the time and
location of such activities ...”); Sizemore v. Lee, 20 F. Supp. 2d 956, 958 (W.D. Va. 1998) (holding the
prisoner can be ordered not to engage in writ writing on an individual basis when the security of the
prison requires the order and that writ writers were not mandated where the prison provided prisoners
with a law library and legal assistance.
57 . Rivera v. Coughlin, 210 A.D.2d 543, 543−544, 620 N.Y.S.2d 505, 506 (3d Dept. 1994)
(upholding determination of disciplinary violation by a prisoner who sent a letter to the FBI on behalf
of another prisoner without receiving prior approval for providing such assistance pursuant to state
directives).
58. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (holding that prisoner was not denied
effective assistance of counsel where jailhouse lawyers were prohibited from visiting his cell).
59. Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 751, 21 L. Ed. 2d 718, 724 (1969)
(jailhouse lawyers may be punished for receiving payment for legal assistance); Henderson v. Ricketts,
499 F. Supp. 1066, 1069 (D. Colo. 1980) (“Compensation to jailhouse lawyers by other inmates may be
prohibited.”).
60. Bounds v. Smith, 430 U.S. 817, 824–25, 97 S. Ct. 1491, 1496, 52 L. Ed. 2d 72, 81 (1977).
61. Canell v. Bradshaw, 840 F. Supp. 1382, 1391 (D. Or. 1993) (“Security considerations may …
justify the issuance of two-inch ‘golf’ pencils.”) (citing Jeffries v. Reed, 631 F. Supp. 1212, 1215 (E.D.
Wash. 1986)). However, the court also stated that if the prisoner in Canell had suffered from a medical
condition preventing him from drafting legal documents longhand with a two-inch pencil, then “[u]nder
those circumstances, a full-sized writing instrument or typewriter might become an indispensable tool
for communicating with the court. If prison officials know of such a problem, then their denial of … [the
prisoner’s] request could constitute a deprivation of necessary legal supplies unless that action was
justified by a sufficient penological interest.” Canell v. Bradshaw, 840 F. Supp. 1382, 1391 (D. Or.
1993).
62. See, e.g., Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994) (finding “no constitutional right to
a typewriter as an incident to the right of access to the courts … [and no] constitutional right to
typewriters of a specific memory capacity” (citations omitted)); Sands v. Lewis, 886 F.2d 1166, 1169
(9th Cir. 1989) (holding that prisoners have no constitutional right to a typewriter); Am. Inmate
Paralegal Ass’n v. Cline, 859 F.2d 59, 61 (8th Cir. 1988) (“Prison inmates have no constitutional right of
access to a typewriter and prison officials are not required to provide one as long as the prisoner is not
denied access to the courts.”) (citation omitted); Walters v. Edgar, 900 F. Supp. 197, 229 (N.D. Ill. 1995)
(“[P]risons are not required to provide inmates with typewriters.”); Howard v. Leonardo, 845 F. Supp.
943, 946 (N.D.N.Y. 1994) (“[I]nmates have no constitutional right to the possession and use of a
typewriter … since prisoners are not prejudiced by filing hand written briefs.”) (citation omitted));
Lehn v. Hartwig, 13 Fed. Appx. 389, 392 (7th Cir. 2001) (holding that “if prisoners have no
constitutional right to a typewriter, they certainly do not have a right to a computer.”) (citations
required in all cases to provide free photocopying;63 that the state need not provide unlimited
free postage;64 and that a notary need not be available at all times.65 Second, unlike its duty
to provide adequate law libraries or assistance from persons trained in the law, the state’s
duty to provide you with materials may only apply to indigent prisoners. You may need to
research the laws and regulations in your state to determine what the accepted standard for
indigence is in your correctional facility and in your state.66 Third, your right of access to the
courts may be balanced against the state’s “legitimate interests, including budgetary
concerns.”67 In other words, a court could determine that the state’s duty to provide you with
materials is limited by state budgetary or security concerns. Fourth, the state’s duty to assist
you may only apply to habeas corpus petitions and civil rights actions involving
constitutional claims.68
Finally, when you sue on the basis of the state’s refusal to provide necessary materials,
you also need to show that you suffered an “actual injury” as a direct result of that refusal.
Because standards vary depending on where you are, you will need to research this “actual
injury” requirement in your state and circuit. Canell v. Bradshaw is an example of one
state’s particular requirements. In Canell, a prisoner claimed that he was denied access to
the courts because the state would not make photocopies for him. The court stated that he

omitted)); but see Tuggle v. Barksdale, 641 F. Supp. 34, 38 (W.D. Tenn. 1985) (holding jail must provide
a sufficient number of usable typewriters in legal room unless they can be proven to be a security
threat).
63. Gittens v. Sullivan, 670 F. Supp. 119, 122 (S.D.N.Y. 1987), aff’d 848 F.2d 389 (2d Cir. 1988)
(finding provision of carbon paper to prisoners was “sufficient to provide proper access to the courts ….
The State should not be forced to provide free access to copier machines for prisoner use when there is
an acceptable, less costly substitute.”); Dugar v. Coughlin, 613 F. Supp. 849, 854 (S.D.N.Y. 1985)
(noting prisons may make prisoners pay for photocopies, as this is a “reasonable balance of the
legitimate interests of both prisoners and the State”). But see Canell v. Bradshaw, 840 F. Supp. 1382,
1392 (D. Or. 1993) (holding prisoner has clearly established right to photocopying under certain limited
circumstances).
64. Gittens v. Sullivan, 670 F. Supp. 119, 123 (S.D.N.Y. 1987) (holding provision of $1.10 per
week for stamps and an additional advance of $36.00 for legal mailings to indigent prisoner satisfied
the constitutional minimum for access to the courts); Dugar v. Coughlin, 613 F. Supp. 849, 854
(S.D.N.Y. 1985) (upholding directive providing that prisoners could mail five one-ounce letters per week
free of charge but would have to pay for any mail weighing more than one ounce, or in excess of five
one-ounce letters in one week, because “a prisoner’s constitutional right of access to the courts … does
not require that prisoners be provided with unlimited free postage”); see also Pacheco v. Commissioner,
897 F. Supp. 671, 681 (N.D.N.Y. 1995).
65. The courts have held that correctional facilities must provide prisoners with notaries public.
Tuggle v. Barksdale, 641 F. Supp. 34, 39–40 (W.D. Tenn. 1985) (holding the prison “must continue to
afford notary publics for all inmates”). Correctional facilities, however, need not make the notary
services available five days a week. Dugar v. Coughlin, 613 F. Supp. 849, 854 (S.D.N.Y. 1985) (holding
that prisoners do not have a constitutional right to notary services five days a week).
66 . See, e.g., Gluth v. Kangas, 951 F.2d 1504, 1508–09 (9th Cir. 1991) (finding that the
Department of Correction’s indigency policy, which only allowed a prisoner to apply for indigency
classification if his prison account balance was less than $12.00 was unconstitutional because it forced
prisoners to choose between purchasing the mandatory hygienic supplies and essential legal supplies,
and that an indigency standard of $46.00 was more appropriate).
67. See Gittens v. Sullivan, 670 F. Supp. 119, 122 (S.D.N.Y. 1987) (“The State should not be
forced to provide free access to copier machines for prisoner use when there is an acceptable, less costly
substitute.”); Dugar v. Coughlin, 613 F. Supp. 849, 853–54 (S.D.N.Y. 1985) (holding that making
prisoners pay for photocopies is a “reasonable balance of the legitimate interests of both prisoners and
the State”).
68. See Lewis v. Casey, 518 U.S. 343, 354–55, 116 S. Ct. 2174, 2181–82, 135 L. Ed. 2d 606, 620
(1996) (holding that Bounds only requires states to provide tools that “inmates need in order to attack
their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.
Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.”).
could prove that the state had deprived him of meaningful access to the courts, but in order
to do so he would have to: demonstrate that he wanted to copy specific documents which
could not be duplicated longhand; that those documents were to be filed with the court as
part of a specific memorandum or other document; that he had advised [prison] officials of
this need; his request was denied either by or in accordance with a policy promulgated by the
defendants; that those documents were relevant and necessary to the particular case; and
had to be omitted from the filing as a consequence of the prison officials’ refusal to provide
photocopying services.69
Remember, if you are going to pursue this type of action, you must bring a Section 1983
or a Bivens claim. Please see Chapter 16 of the JLM for more details on these claims.
G. Conclusion
In this Chapter, you have learned that if you (1) exhaust your prison’s administrative
remedies for getting your complaint heard, (2) are not able to go to court or are hindered in
pursuit of your claim by state interference, and (3) suffer an injury as a result of the state’s
interference or denial of your right to access the courts, you may pursue a claim against the
state. You can request that the state provide you with access to an adequate law library,
adequate assistance from someone trained in the law, or some other legal access program. A
state can regulate its jails and prisons for the purpose of discipline and safety, but cannot
completely deny a prisoner’s right of access to the courts.
Pursuing a claim has several requirements. First, you must show that you suffered an
actual injury from the state’s failure to provide you with an adequate opportunity to litigate
your claim.70 Second, some state courts have held that the state only needs to provide you
with an adequate law library or legal access program if you want to pursue federal habeas
corpus petitions or state or federal civil rights actions. Third, the state, not you, decides what
type of legal access you will get, though it must provide you meaningful access to the
courts.71 Fourth, the state must adhere to the requirements laid out in this Chapter whether
or not you are considered indigent. Finally, the state can place reasonable limits on your
ability to use the library or other legal access programs.

69. Canell v. Bradshaw, 840 F. Supp. 1382, 1392 (D. Or. 1993).
70. See Lewis v. Casey, 518 U.S. 343, 350–51, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 617–18
(1996) (explaining that there is no general right to a law library or legal assistance except as they
relate to a prisoner’s actual ability to access the courts).
71. Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir. 1978) (“Under Bounds, the state is duty
bound to assure prisoners some form of meaningful access to the courts. But states remain free to
satisfy that duty in a variety of ways.”).
 APPENDIX A

DIRECTORY OF SELECTED LAW LIBRARIES OFFERING SERVICES

TO PRISONERS**

If your state is not listed, you, or someone you know, should check the Southern Center
for Human Rights’s webpage (http://www.schr.org) for organizations and libraries providing
legal materials to prisoners.

CALIFORNIA
Oakland Alameda County Law Library
125 Twelfth Street
Oakland, CA 94607
(510) 208-4832
http://www.acgov.org/law/index.htm
Serves Alameda County prisoners. Photocopies are $0.52/page plus a $10 handling fee, tax,
postage and prepayment. The library requires correct citations and gives no legal advice. 30-
page limit per request.
Los Angeles Los Angeles County Law Library
301 W. First Street.
Los Angeles, CA 90012
(213) 629-3531
http://lalaw.lib.ca.us
This library serves prisoners and other institution residents in California. No material is
loaned. Correct citations are required and limited reference work is done. Prepayment is
required.
Photocopies: $12.00 transaction charge per document for the first 25 pages
(includes postage and tax) and sales tax if applicable. $0.25 per page
over first 25 pages.
Payee: Los Angeles County Law Library
San Diego San Diego County Public Law Library
1105 Front Street
San Diego, CA 92101-3904
(619) 531-3900
http://www.sdcpll.org
This library serves prisoners and other institutional residents located at institutions in
California. It lends materials to prisoners of San Diego County Jail under procedures set up
by the Sheriff under a federal court consent decree. Loan periods are 1, 3, or 7 days. Correct
citations are required.
Photocopies: $0.20 per page, $5.00 fee per citation. Shipping and handling is $0.50
per order plus postage (prepayment required).
Payee: San Diego County Public Law Library

** These are the libraries or facilities that provide materials in states where the most JLMs are sold. If
you live in a different state than those listed, you should contact law school or governmental law
libraries in your state.
Santa Clara Heafey Law Library
Attn: Prisoner requests
Santa Clara University
500 El Camino Real
Santa Clara, CA 95053
Serves prisoners in California institutions. Exact citations are required. Only primary
materials (cases, statutes, administrative regulations; not journal articles or treatises) are
eligible for photocopying. There is a 30-page limit on photocopies per year. Photocopies are
provided free of charge. No material is loaned, and no reference work is done. Library will
only respond to mail requests.
Ventura Ventura County Law Library
800 South Victoria Avenue
Ventura, CA 93009-2020
http://www.infopeople.org/ventura/vclaw
This library serves prisoners in Ventura County only. Correct citations are required and only
cases and statutes are available.
Photocopies: $0.25 per page, plus postage. Prepayment is required; limit of 20
pages per letter.

NEW JERSEY
Trenton New Jersey State Library
185 West State Street P.O. Box 520
Trenton, NJ 08625-0520
(609) 278-2640
www.njstatelib.org
Serves only prison libraries located at institutions operated by New Jersey State Department
of Corrections. Requests must be submitted by NJDOC prison librarians on behalf of
prisoners. There is no charge to prison libraries, but there is a limit of 50 pages per day per
prison. No material is loaned, and all material must be law-related. Correct citations are
required. Limited reference work is done, and no legal advice is given.

NEW YORK
Albany Prisoner Services Project—New York State Library
Cultural Education Center
Empire State Plaza
Albany, NY 12230
(518) 474-5355
http://www.nysl.nysed.gov/index.html
Serves only prisoners located at institutions operated by New York State Department of
Correctional Services. To access library services, a prisoner should send a letter to the library
and the library will respond by sending the proper forms. No material is loaned and all
material must be law related. Correct citations are required and limited reference work is
done, but no legal advice is given. No charge for photocopies. In addition, prisoners may
borrow non-law material through their prison libraries and inter-library loan.
New York Fordham Law School Library
140 West 62nd Street
New York, NY 10023
 (212) 636-6900
http://lawlib1.lawnet.fordham.edu/
This library serves prisoners and other institution residents located at institutions in New
York. No materials are loaned, no reference work is done, and correct citations are desirable.
The library will only provide copies of published materials.
Photocopies: $0.10 per page, plus $5.00 postage and handling fee. Limit of 75
copies per request. Prepayment by money order payable to Fordham
Law Library required.

VIRGINIA
Charlottesville University of Virginia Law Library
580 Massie Road
Charlottesville, VA 22903
(434) 924-3384
http://www.law.virginia.edu/html/librarysite/library.htm
This library serves prisoners and other residents of Virginia institutions only. No material is
loaned and correct citations are required. No legal advice is given.
Photocopies: $0.50 per page. Prepayment required; quotations given.
Payee: University of Virginia Law Library
Williamsburg Wolf Law Library
William and Mary School of Law
PO Box 8795
Williamsburg, VA 23187-8795
(757) 221-3255
http://www.wm.edu/law/lawlibrary/
The library will provide cases if correct citations are given. No legal advice is given. In
addition, prisoners may borrow certain materials that circulate (books and treatises, not
statutes or case reporters) through inter-library loan if their prison library has an official
ILL program.
Photocopies: Prices are per item requested; quotations are given. $3.00 for less
than 10 pages. $5.00 for 11–20 pages. $7.00 for 21–40 pages. $10.00
for 41–60. No copies over 60 pages.
Payee: Photocopy Account/Marshall-Wythe Foundation
A Jailhouse Lawyer’s
Manual

Chapter 4:
How to Find a Lawyer

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 4

HOW TO FIND A LAWYER*

A. Introduction
Finding a lawyer if you do not have the money to pay a private attorney can be difficult,
but it is not impossible. Before you try to find a lawyer, you must know the following:
(1) the type of correctional institution you are in (city, county, federal or state);
(2) the type of case for which you are seeking representation (civil, criminal, or criminal
appeal);
(3) if you are seeking a criminal appeal, the name of the county in which you allegedly
committed the crime; and
(4) your county of residence.
The more specific things you know about your case, the easier it will be to find a lawyer
and to help the lawyer prepare your case. There are generally two types of cases in which
you may be involved:
(1) Criminal: A criminal case is a case in which the state charges you with a crime. If
you have already been convicted and are in prison, you are probably not currently
involved in a criminal trial unless the state thinks that you committed a crime while
you were in prison. Therefore, this Chapter does not discuss how to find a lawyer for
a criminal trial. But, you may want to try a criminal appeal. A criminal appeal is a
case in which you appeal from the conviction or sentence that sent you to prison. If
you have a right to a criminal appeal, you also have the right to a lawyer if you
cannot afford one.1 Read Part B below if you would like to find a lawyer to help you in
your criminal appeal.
(2) Civil: A civil case is a case in which you either bring a claim against someone (an
individual or the state), or an individual brings a non-criminal claim against you.
You file a civil lawsuit whenever you bring any of the suits explained in the JLM
Chapters about federal and state habeas corpus, Section 1983, Article 78 of the New
York Civil Practice Law and Rules, and tort actions. Unlike in criminal cases and
appeals, you do not have the right to a lawyer when filing a civil case. Read Part C if
you would like to try to find a lawyer to help you in your civil case.
B. Attorneys for Criminal Appeals
When you have the right to bring a criminal appeal, you also have the right to have a
lawyer assigned to your case if you are unable to pay a private lawyer to represent you.2 If
you cannot afford an attorney for your criminal appeal, you should petition the court to
proceed as a poor person (or what in legal terms is called in forma pauperis) and ask the
court to assign an attorney to your case. Chapter 9 of the JLM, “Appealing Your Conviction
or Sentence” has sample poor person’s papers.

*This Chapter was written by Won Park based on a previous version by Angie Armer and members of
the 1991–1992 Columbia Human Rights Law Review.
1. Douglas v. California, 372 U.S. 353, 357–58, 83 S. Ct. 814, 816–17, 9 L. Ed.2d. 811, 814–15
(1963) (finding that a State must provide counsel for an indigent defendant in a first appeal as of right).
2. Douglas v. California, 372 U.S. 353, 357–58, 83 S. Ct. 814, 816–17, 9 L. Ed.2d. 811, 814–15
(1963). There are some higher-level appeals you do not have the right to bring, such as to the United
States Supreme Court. In those cases, you may not have the right to a lawyer if you cannot afford one.
See Ross v. Moffitt, 417 U.S. 600, 610, 94 S. Ct. 2437, 2443, 41 L. Ed.2d 341, 351 (1974) (holding a State
need not appoint counsel to aid a poor person pursuing a second-tier discretionary appeal).
 One of the first places you should try contacting when looking for a lawyer is the Public
Defender or Indigent Defender office in any of the following places:
(1) the county where the appellate court (the higher court) is located;
(2) the county where your prison is;
(3) the county where your original trial took place; or
(4) the county where you live.
These offices can provide you with further information about having a lawyer assigned to
your criminal appeal. If you have access to the Internet, the easiest way to find a Public
Defender is by doing a simple Internet search. For example, you can try using the term
“Public Defender” and the name of one of the four counties mentioned above on a research
site like Google or Yahoo.3
If you would like to choose your lawyer instead being assigned one, you have fewer
options than if you were filing a civil suit. Most Legal Aid offices do not handle criminal
appeals. But, some organizations have specific criminal appeals divisions. The Legal Aid
Society of New York City is one such organization. See Appendix IV of the JLM for other
such groups. You might also contact local prisoners’ rights groups, which may refer you to
organizations handling criminal appeals free of charge.4 Keep in mind that lawyers cannot
arrange contingency fees with you for a criminal case. Read Part C below for more
information about contingency fees.
C. Attorneys for Civil Cases
If you are looking for a lawyer for a civil case in the federal courts, think about whether it
is worth it to bring your case because of what may happen under the Prison Litigation
Reform Act (“PLRA”). You MUST read Chapter 14 of the JLM, “The Prison Litigation
Reform Act.” Failure to follow the requirements in the PLRA can have negative
consequences. For example, you can lose the good-time credit you have earned so far. Some
attorneys do not know very much about the PLRA, so you should make sure to know about it
yourself so that you can tell your attorney about the requirements.
If you have a civil case, and if you are incarcerated in a New York state institution, you
may be able to find a lawyer through the Prisoners’ Legal Services of New York (“PLS”). PLS
is described in the very beginning of Appendix IV of the JLM (Part A(1)(a)). PLS provides
assistance to prisoners in state institutions in cases involving habeas corpus, jail time and
sentence problems, and warrants and detainers. They may also be able to forward your
letter to a private attorney who could handle your Section 1983 case, Article 78 petition, or
tort action. But unlike the Legal Aid Society of New York mentioned above, PLS does not
handle criminal cases or criminal appeals.
If you are in a city, county, or federal prison, check the other organizations listed in
Appendix IV to see if special legal assistance programs serve prisons in your area. Check if a
Legal Aid office exists in the county in which you are incarcerated. If none exists in your
county, check for offices in the surrounding counties, since these organizations might be able

3. To find a list of Federal Public Defenders, visit the Office of Defender Services website,
available at http://www.fd.org. Federal Public Defenders either work for the federal government
directly, or are paid through federal government funds. Take note that Federal Public Defenders take
on fewer cases than State or local Public Defenders.
4. The American Civil Liberties Union (“ACLU”) publishes a Prisoners’ Assistance Directory
with contact information for organizations helping prisoners around the U.S. This book costs $35. If
you would like to buy it, write to:
National Prison Project of the ACLU
Attn: Prisoners’ Assistance Directory
915 15th St. NW, 7th Floor
Washington, D.C. 20005
to help you. Note that Legal Aid organizations usually handle only civil matters unless they
have a special criminal appeals division. Also, many Legal Aid offices may not be able to help
you because their government funding does not allow them to help prisoners. However, the
Prisoners’ Rights Project of the Legal Aid Society of New York does not receive government
funding, and it sometimes takes cases that help many prisoners.
You can also ask the court to appoint a lawyer for you. You should do this at the same
time you file your poor person’s papers.5 New York law states that a New York court may
assign an attorney to you in a civil case at the same time it permits you to proceed as a poor
person, but this is rare.6 If you can establish your inability to pay a lawyer, you may be able
to get a lawyer assigned to your case if your claim is substantial. For example, you are much
more likely to get a lawyer if there is a lot of factual investigation that must be done on your
case that you cannot do because you do not have the money. You are also more likely to get a
lawyer if the facts of your case depend on the credibility (believability) of people involved.7 In
general, if your case requires you to know very complex legal issues that you yourself cannot
handle, the court may be more willing to assign you a lawyer.8 If you are not assigned a
lawyer but your case survives the defendants’ motion for summary judgment,9 you should
again request the court to assign you a lawyer as they may be more likely to do so at that
stage.10 Remember, if the court assigns you a lawyer, you will have little or no say as to who
your lawyer will be. Thus, you first should try on your own to find a lawyer whom you trust
and who is committed to helping you.
Remember that many lawyers will be taking your case to earn a fee. Whether you pay a
flat fee (fixed amount of money for the lawyer to represent you), an hourly fee, or a
contingency fee, you will still be expected to pay for the lawyer’s litigation expenses, either
before or after money is spent on your case.11 These expenses may include things like long-

5. Chapters 2–8 of the JLM discuss how to bring a lawsuit. Chapter 9 of the JLM, “Appealing
Your Conviction or Sentence,” explains how to file poor person’s (also called in forma pauperis) papers
in the context of an appeal. You should change the affidavit example shown in Appendix B-3 of JLM,
Chapter 9 to show that you are filing poor person’s papers in a civil case, not a criminal appeal. See
N.Y. C.P.L.R. § 1101 (McKinney 2007). These papers establish that you do not have the money to pay
for a lawyer.
6. N.Y. C.P.L.R. 1102(a) (McKinney 2007). The court has the discretion to appoint you a lawyer
for free if a lawyer is needed to reach a fair decision. But, you do not have a constitutional or statutory
right to a lawyer. See In re Smiley, 369 36 N.Y.2d 433, 438, 330 N.E.2d 53, 55, N.Y.S.2d 87, 91 (1975)
(noting that there is no absolute right to assigned counsel and that the determination to assign an
attorney lies within the discretion of the court).
7. For example, if you claim that your warden assaulted you, the facts of your case would depend
on the credibility of you, your warden, witnesses, and maybe other prisoners or staff members who
knew you and the warden. In such a case, a court might be more willing to assign you a lawyer.
8. See Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d Cir. 1986) (reaffirming the Maclin factors
apply to judicial determinations of appointment of counsel); Maclin v. Freake, 650 F.2d 885, 887 (7th
Cir. 1981) (setting forth the factors for a district court to consider in determining whether to appoint
counsel). But see Stewart v. McMickens, 677 F.Supp. 226, 227–228 (S.D.N.Y. 1988) (interpreting Hodge
to require appointment of counsel “only where the individualized assessment suggests that an
apparently legitimate case cannot proceed without the assistance of an attorney”).
9. Summary judgment is when a court decides before a trial that no trial will be necessary
because in applying the law to important undisputed facts, one party is clearly the winner.
10. You should request assignment of counsel again at this stage because if your case survives a
summary judgment motion, the court thinks that it is worthy of a trial or hearing. See Hendricks v.
Coughlin, 114 F.3d 390, 393 (2d Cir. 1997) (invalidating lower court’s application of a bright line rule of
appointing counsel only after plaintiff’s case survived a motion for summary judgment).
11. See N.Y. State Bar Assoc., The Courts of New York: A Guide to Court Procedures with a
Glossary of Legal Terms 66–68 (2001),
http://www.nysba.org/Content/NavigationMenu/PublicResources/GuidetotheiCourtsofNewYorki/Courts
ofNY2002.pdf (discussing basis of your legal fee as well as your rights as a client).
distance telephone calls, postage, photocopying, stenographers for depositions, hiring an
investigator, medical reports, etc. Unless you get poor person’s status, you are also
responsible by law for all court costs, such as filing fees.
If you cannot pay a lawyer’s fees, a lawyer might take your case for a contingency fee.12
You will be asked to sign an agreement giving the lawyer a percentage (usually 33%) of
whatever money the other side gives you if you win (the “recovery”). If you do not win, your
lawyer gets no money. Lawyers cannot ask you for a contingency fee in criminal or domestic
relations (family law) cases.
D. Conclusion
Finding a lawyer whom you trust and can work with is an important part of your legal
process. You should feel that you can be truthful with your lawyer, and that your lawyer is
working in your best interest. Even if finding a good lawyer seems frustrating, keep trying.
When you write letters to ask for legal help, provide as much specific information about your
case as possible so a lawyer can see you have a good case.
If you cannot find a lawyer, or you choose not to hire an attorney, you have the option of
acting pro se. This means that you represent yourself without the aid of an attorney. You
should still try to proceed pro se if you cannot find a lawyer.

12. You cannot be convinced to enter into a contingency fee arrangement by fraud, nor can your
lawyer ask for so much money that the lawyer obviously took advantage of you. See Gair v. Peck, 6
N.Y.2d 97, 106, 160 N.E.2d 43, 48, 188 N.Y.S.2d 491, 497–498 (1959) (holding contingency fees may be
disallowed where “the amount of the fee, standing alone and unexplained, may be sufficient to show
that an unfair advantage was taken of the client or, in other words, that a legal fraud was perpetrated
on him”); see also King v. Fox, 7 N.Y.3d 181, 191, 851 N.E.2d 1184, 1191, 818 N.Y.S.2d 833, 840 (stating
a contingent fee may be unconscionable if not proportional to the value of the services rendered).
 A Jailhouse Lawyer’s
Manual

Chapter 5:
Choosing a Court and a Lawsuit:
An Overview of the Options

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 5

CHOOSING A COURT AND A LAWSUIT: AN OVERVIEW OF THE

OPTIONS*
A. Introduction
This Chapter will briefly explain the different lawsuits available to you, so that you can
decide which type of lawsuit is best for you to bring. Each kind of lawsuit is described in
more detail in later chapters of the JLM, so you should read those chapters for more specific
information.
The first step you should take when determining what suit to bring is to ask yourself: Do
I want to attack the cause of my imprisonment, or the circumstances I am suffering in
prison, or both? If you think unlawful circumstances led to your imprisonment, consult Part
B of this Chapter. If you think something unlawful and damaging has happened to you while
in prison—for example, the prison refuses to give you your mail—consult Part C. If you are
not sure, read both Part B and Part C for more information.
For the best chance of success, you must pay attention to things the law requires you to
do when bringing the type of suit you choose. Many lawsuits require you to do certain things
before you even begin the lawsuit itself (such as pursue an administrative grievance). Some
lawsuits also require you to do certain things once you have begun the lawsuit (such as pay
court fees, unless you can qualify for an exception).
Different types of lawsuits have different results, or remedies. For example, some
lawsuits allow you to demand that the opposing party pay you money if you win. But, other
lawsuits do not provide for such money damages. Some types of lawsuits may lead to the
reversal of your sentence or conviction, while other types do not provide for such remedies.
Once you know what remedies each type of lawsuit can provide, you can decide which type of
suit, if any, is right for you to file.
B. Lawsuits to Challenge Your Conviction or Sentence
1. Criminal Appeals
If a New York trial court convicted you of a crime, you have the right to appeal your
conviction or your sentence to a higher New York court. 1 Prisoners in other states, and
prisoners who were convicted of a federal crime, have a similar right to appeal their
convictions.2 On appeal, the higher, or appellate, court will examine the record of your trial to
determine whether the judge or prosecutor committed any legal errors3 in conducting your
trial or sentencing. The appellate court may also determine if the jury properly weighed the
evidence at trial, or if your sentence was excessively harsh or longer than the maximum time
allowed by law. JLM, Chapter 9, “Appealing Your Conviction or Sentence,” explains the
criminal appeals process in detail.
2. Post-Conviction Remedies
New York also has three other procedures your can use to challenge the legality of your
sentence or conviction. These additional procedures are frequently called “post-conviction

1. N.Y. C.P.L.R. 5601 (McKinney 2007).

2. Fed. R. App. P. 4.
3. Legal errors are explained in JLM, Chapter 9, “Appealing Your Conviction or Sentence;” JLM,
Chapter 20, “Using Article 440 of the New York Criminal Procedure Law to Attack Your Unfair
Conviction or Illegal Sentence;” JLM, Chapter 13, “Federal Habeas Corpus;” and JLM, Chapter 21,
“State Habeas Corpus.”
remedies,” because you are asking the court to help you after you have been convicted. These
procedures are different from an appeal, because during the appeal process your conviction is
not yet final. The three post-conviction remedies are: an Article 440 motion, a petition for
state habeas corpus, and a petition for federal habeas corpus. These procedures do not exist
only in New York. Chapter 20 of the JLM lists the statutes in every state that are similar to
New York’s Article 440 motion.4 JLM, Chapter 21 covers state habeas corpus procedures for
Florida, New York, and Texas. Furthermore, prisoners in every state have the right to
petition for federal habeas corpus. Federal habeas corpus is described in more detail in JLM,
Chapter 13. Keep in mind, however, that an appeal is often the most effective way of
challenging your sentencing or conviction. So, if you can, you should try to appeal your
sentence before you try these other remedies.
(a) Article 440 Motion5
In an Article 440 motion, you request the trial court to review circumstances that made
your conviction or sentence unfair. Examples of these circumstances are a change in the law,
discovery of new evidence, an unauthorized or illegal sentence, or misconduct by the
prosecutor or judge of which you did not and could not have known at the time of your trial.6
You may also make an Article 440 motion on the grounds that you were convicted and
sentenced in violation of your rights under the U.S. or New York State constitutions. 7
However, you cannot raise any claims you have already raised or could have raised in your
criminal appeal. Relief under an Article 440 motion is a new trial, a new appeal, or a new
sentence. Keep in mind that although there is no statute of limitations (time limit) for
making an Article 440 motion, a court may not grant your motion if you wait too long after
your sentencing to make your motion.8 Chapter 20 of the JLM, “Using Article 440 of the New
York Criminal Procedure Law to Attack Your Unfair Conviction or Illegal Sentence,”
discusses Article 440 in great detail, and you should read it before making this motion.
(b) State Habeas Corpus9
State habeas corpus challenges the government’s right to keep you in prison by looking
into whether your confinement is legal. In general, however, New York courts will require
you to use Article 440 instead of a petition for state habeas corpus unless you are challenging
a parole decision and bail. Relief under habeas corpus is immediate release from custody.
Chapter 21 of the JLM, “State Habeas Corpus,” explains New York habeas corpus in detail,
as well as Florida and Texas habeas corpus procedures. New York habeas corpus is available
to challenge bail determinations, revocations of your parole, extradition, arraignment and
delay, misdemeanor complaint and delay, felony complaint and delay, and speedy trial.
(c) Federal Habeas Corpus10
Federal habeas corpus is a procedure through which you can get a federal judge to review
a claim that you were convicted or sentenced in violation of your rights under the federal
Constitution. This is different from an Article 440 motion or a petition for state habeas

4. See Appendix A of JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedure
Law to Attack Your Conviction or Sentence.”
5. N.Y. Crim. Proc. Law §§ 440.10–440.65 (McKinney 2005 & 2007 Supp.).
6. N.Y. Crim. Proc. § 440.10(a)–(g) (McKinney 2005 & 2007 Supp.).
7. N.Y. Crim. Proc. § 440.10(h) (McKinney 2005 & 2007 Supp.).
8. See People v. Byrdsong, 161 Misc. 2d 232, 236, 613 N.Y.S.2d 543, 545 (Sup. Ct. Queens County
1994) (declaring that a post-conviction motion filed nine years after trial and seven years after appeals
was, in the interest of finality, too long of a time period to continue further litigation).
9. N.Y. C.PL.R. 7001–12 (McKinney 2007).
10. 28 U.S.C. §§ 2241–66 (2006).
corpus, where you ask a state judge to review your state constitutional claims. Recently,
federal judges have been more reluctant to interfere in state criminal proceedings, and,
therefore, it has become more difficult for prisoners to get federal courts to review their
claims.11 Furthermore, federal legislation now requires that prisoners exhaust all forms of
state relief, such as filing an Article 440 motion or petitioning for state habeas corpus, before
seeking relief in federal court.12 You also have only one year to make a federal habeas corpus
claim from the time you were sentenced or re-sentenced to prison.13 Chapter 13 of the JLM,
“Federal Habeas Corpus,” explains federal habeas corpus in detail, and you should read it
carefully if you wish to bring a federal habeas claim.
C. Lawsuits to Challenge the Conditions of Your Imprisonment14
Before you decide to bring a claim about your prison conditions, you must read JLM
Chapter 14 on the Prison Litigation Reform Act (“PLRA”). The PLRA makes it harder for
prisoners to take their complaints about prison conditions to federal court. The PLRA also
imposes harsh consequences if you bring your claim incorrectly. Though the PLRA only
applies to federal court cases, many states have passed similar laws to reduce the amount of
prisoner litigation, especially in civil actions. JLM, Chapter 2, “Introduction to Legal
Research,” will help you learn how to research if your state has laws similar to the PLRA.
For federal court claims, the PLRA requires you pay the full court filing fee even if you
proceed in forma pauperis (as a poor person). If you file as a poor person, your fees will be
taken in installments from your prison account. This means instead of having to pay all the
fees at one time, you can pay bit by bit. Keep in mind that under the PLRA, you risk
receiving a “strike” under the “three strikes” provision. The three strikes provision of this
law states that if you have three cases dismissed as frivolous, malicious, or failing to state a
valid legal claim, you will have to pay the full filing fee up front to pursue your claim. If you
receive three strikes, you will not be able to use the in forma pauperis procedure allowing
you to pay the filing fee in installments from your prison account. Moreover, if the court finds
you have filed a lawsuit for malicious or harassing purposes, you may lose any good-time
credit you have earned.15 Another very important thing to remember is that the PLRA states
that you must exhaust all administrative remedies—such as institutional grievance
procedures and their appeals—before you bring a claim in court.16 Otherwise, your claim will
be thrown out and you will not get your filing fee back. These are only a few of the
restrictions imposed by the PLRA. Therefore, you must read Chapter 14 of the JLM before
you file any federal claim.
1. Filing an Administrative Grievance
The PLRA forces you to use all administrative grievance programs available to you
before filing a federal court case. Many states also have this requirement. In New York, you
must first file a complaint in the New York State Inmate Grievance Program before bringing
a lawsuit. See JLM Chapter 15, “Inmate Grievance Procedures,” for more details about the

11. This concern will not be relevant to you if you are a federal prisoner in a federal institution.
12. The Prison Litigation Reform Act is explained briefly in the next section, and in detail in
JLM Chapter 14.
13. 28 U.S.C. § 2244(d)(1) (2006) (“A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State Court.”).
14. You can also file a complaint with the Department of Justice (DOJ), but, this is not a lawsuit,
as they do not have to respond to your complaint. See Part 6 of this Section for more details on the DOJ
process.
15. 28 U.S.C. § 1932 (2006).
16. 42 U.S.C. § 1997e(a) (2006).
New York program as well as some basic information about similar inmate grievance
programs in other states.
The New York State Inmate Grievance Program allows prisoners in any of the facilities
of the Department of Correctional Services (“DOCS”) to file a complaint. Grievances must be
about a DOCS policy, rule, or regulation, either as it is written or as correction officials or
officers have applied it to you personally. Issues and problems that do not relate to a DOCS
policy, rule, or regulation, or that do not involve you personally cannot be resolved through
this program. For example, if your complaint involves a policy, rule, or action of an outside
agency, such as the Division of Parole, the DOCS cannot help you.17
2. 42 U.S.C. Section 1983
Because state and city prison or jail officials and guards are considered state employees,
a federal law, 42 U.S.C. Section 1983 (“Section 1983”), allows you to sue them if they deprive
you of your federal constitutional rights (like your right to adequate medical care, to be free
from assault, and to have access to the courts and to legal materials). You cannot use
Section 1983 to attack your conviction or sentence.
To file a Section 1983 complaint, you must provide a detailed description of the incident
or practice that provides the basis for your individual claim. You might also be able to bring
your lawsuit as a class action. A class action is a suit brought on behalf of you and all others
who experience the same problem or have the same complaint. 18 You can also add any
supplemental state claims to your federal cause of action if a state claim involves the same
facts as the alleged federal constitutional or statutory violation.19
Section 1983 has a statute of limitations, which is the limit on the amount of time you
have before your right to file a lawsuit expires. Section 1983 claims use the state statute of
limitations for personal injury suits in the state in which the court is located. The statute of
limitations period begins to run when you find out about (or should have found out about) the
injury that you are complaining about.
A federal judge who hears a Section 1983 claim may order or award: (1) an injunction (an
order to prison officials to stop denying you your rights or to take steps to allow you to
exercise your rights); (2) damages (money payments to make up for your injuries); or (3) a
declaratory judgment (a statement by the court about the nature and limits of your rights
made before they have been violated).
After you determine the district court in which you must file, you should write to the
clerk of that district court asking for the forms and information you need. By mailing the
appropriate documents to the clerk, you have filed your Section 1983 lawsuit. Chapter 16 of
the JLM, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of
Federal Law,” discusses Section 1983 suits in detail.
3. Bivens Actions20 under 28 U.S.C. Section 1331
Because there is no statute similar to Section 1983 allowing you to sue federal officials
who deprive you of your federal rights, you can use what is called a “Bivens action” under 28
U.S.C. §1331(a). 21 A Bivens action is the federal equivalent of a Section 1983 action. So, a lot

17. State of New York, Department of Correctional Services, Directive No. 4040 § III (F), Inmate
Grievance Program (1998) (as revised Aug. 22, 2003).
18. But, keep in mind that you need a lawyer to file a class action. You cannot file one by
yourself.
19. See Part C(6)(b) of JLM Chapter 16, “Using 42 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain
Relief from Violations of Federal Law,” for more information on supplementing your federal Section
1983 case with state claims.
20. For more information on Bivens actions see Part E of Chapter 16 of the JLM, “Using 42
U.S.C. § 1983 & 28 U.S.C. §1331 to Obtain Relief from Violations of Federal Law.”
21. The name “Bivens action” is taken from the case Bivens v. Six Unknown Named Agents of
of the information applying to Section 1983 actions also applies to Bivens actions. For
example, just like a Section 1983 action, you may use a Bivens action to complain about
conditions and/or treatment violating your constitutional rights. Because of the PLRA, you
must also exhaust (use up) available administrative remedies before filing in federal court.
In bringing a Bivens action you can sue the federal official who violated your rights. But,
you can sue the official only in his individual capacity, not in his official capacity. What this
means is that you can sue the official as a person, and not as a government employee. 22 You
also cannot bring a Bivens action against a federal agency or a private corporation which
contracts with the federal government to operate prison facilities.23 If you wish to sue a
private corporation that operates prison facilities, you might have more success trying to
bring a state tort action. Federal courts also may not listen to your complaint if it sounds like
you are suing for a harm that is not very serious, such as your personal items being taken
from you.
If you bring a Bivens action, you must serve a copy of the summons and complaint on (1)
the named defendants, (2) the U.S. Attorney for the district in which you bring your suit, and
(3) the U.S. Attorney General in Washington, D.C. 24 If you seek injunctive or declaratory
relief (meaning you are asking that what is being done to you stops, but you are not looking
to get money), you may file your suit in the federal district where any defendant resides,
where the events complained of occurred or are occurring, or where you presently reside. 25 If
you are suing under Section 1331 for only money damages, you need to serve the summons
and complaint on (1) the U.S. Attorney for the district in which you bring your suit, (2) the
U.S. Attorney General in Washington, D.C., and (3) the officer or employee being sued. 26 To
sue for damages, you must file in the federal district in which all the defendants reside or the
district in which your claim arose (where the events you are complaining about occurred). 27
All service must be by registered or certified mail. 28
4. Tort Actions in State Courts
As noted above, if you were injured by a state official or employee, and as a result your
constitutional rights were violated, you may file a Section 1983 suit. This is a claim under
federal law. You may also file a tort action in state courts against anyone who deliberately or
carelessly injured you, or damaged or destroyed your property. You can file a state tort action
regardless of whether they violated any of your constitutional rights, and regardless of
whether you are also filing a Section 1983 federal suit.29 Even if you are not filing a Section
1983 suit, you can bring a tort action in state courts. 30

Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91 S. Ct. 1999, 2001, 29 L. Ed. 2d 619, 622 (1971) (holding
that a lawsuit for a 4th Amendment violation is permitted against a federal agent).
22. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (stating that a
Bivens action “must be brought against the federal officers involved in their individual capacities.”).
This is because if you sue an officer in his “official capacity,” it is like suing the federal government, and
under the concept of “sovereign immunity,” the federal government cannot be sued.
23. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d 456, 461
(2001) (refusing to extend Bivens to allow recovery against a private company operating a halfway
house under contract with the Federal Bureau of Prisons).
24. Fed. R. Civ. P. 4(i).
25. 28 U.S.C. §1391(e) (2000).
26. Fed. R. Civ. P. 4(i)(2)(B).
27. Fed. R. Civ. P. 4(i).
28. Fed. R. Civ. P. 4(i)(1).
29. If someone did violate your federal constitutional rights, you may also file a tort action in a
federal court.
30. If you file a tort action in New York state court, you should file your claim in the New York
Court of Claims.
 In New York, if the person who injured you was a state official, state employee, or
someone acting under the authority of the state (like a private doctor the state hired), you
may sue New York State in the Court of Claims. The Court of Claims only allows such claims
against the state and can only award money damages; it cannot issue an injunction. Also,
before filing suit in the Court of Claims, you must exhaust administrative procedures, like
the Inmate Grievance Program, and pay a filing fee. You should read JLM, Chapter 17, “The
State’s Duty to Protect You and Your Property: Tort Actions,” for information about tort
actions.
5. Tort Actions in Federal Courts
If you are a federal prisoner and want to sue for a simple tort violation, you must sue
using the Federal Tort Claims Act (“FTCA”)31 instead of a Bivens action. The FTCA is a
statute allowing people to sue the federal government for harm federal employees may have
caused you or your property while were doing their jobs. You must first send in Form 95,
“Claim for Damage, Injury, or Death,” and ask for damages from the federal agency whose
employee allegedly caused the harm.32 Many FTCA cases go through the agency and are
settled there. But, if your claim is denied, you may file suit in federal court. Remember: if
you have not gone through the administrative remedies before going to federal court, the
judge will dismiss your case.
6. Article 78 Proceedings
Article 78 of the New York Civil Practice Law allows you to go to court to challenge
decisions made by New York State administrative bodies or officers. 33 Like all the suits
mentioned above in Part C, you cannot use Article 78 to challenge your conviction or
sentence. Article 78 is useful to challenge decisions made by administrative bodies like the
Department of Correctional Services, the Board of Parole, and the Temporary Release
Committee, or by state employees such as prison guards and administrators. You may
challenge decisions made by bodies like these if you think they did something wrong when
making a decision in one of the following four ways: (1) they acted beyond their legal
authority; (2) they failed to do something required by law; (3) they made an unreasonable or
grossly unfair (arbitrary) decision; or (4) they made a decision at a hearing without enough
evidence.34 Remember that you cannot challenge your sentence or conviction under Article
78; however, you may, for example, challenge the Board of Parole’s decision to revoke your
parole, which, if successful, would lead to your release from prison. Chapter 22 of the JLM,
“How to Challenge Administrative Decisions Using Article 78 of the N.Y. C.P.L.R.” discusses
Article 78 proceedings in detail.
7. Challenging Unconstitutional Prison Conditions Through the
Department of Justice
The United States Department of Justice (“DOJ”) has authority under a law called the
Civil Rights of Institutionalized Persons Act to investigate state and local institutions for
unconstitutional conditions.35 This unit does not investigate federal institutions; you must

31. Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2000).

32. You can get this form by writing to the clerk of the federal district court in which you plan to
file your action. Form 95 is also available at http://www.usdoj.gov/civil/forms/SF95.pdf (last visited
April 10, 2008).
33. N.Y. C.P.L.R. 7801 (McKinney 1994 & Supp. 2006).
34. N.Y. C.P.L.R. 7803(1)–(4) (McKinney 1994 & Supp. 2006).
35. 42 U.S.C. § 1997 (2000). Some New York federal courts have held that, under the PLRA,
prisoners must exhaust the DOJ’s disability complaint procedure in addition to their internal prison
grievance procedure before filing a disability-related complaint in federal court. Other courts have
disagreed. You should read JLM Chapter 14, “The Prison Litigation Reform Act,” specifically Part E(1),
use another agency like the Bureau of Prisons if you want to file a complaint about a federal
prison.36 The DOJ will only investigate allegations of systemic abuse—problems experienced
by many prisoners. If you think your prison suffers from widespread constitutional abuses,
you might consider writing to the DOJ. The DOJ cannot provide individual relief, nor can it
bring a claim regarding your criminal sentence. For these matters, you should contact an
attorney. 37
The Special Litigation Section of the DOJ protects the constitutional and federal
statutory rights of persons confined in certain institutions owned or operated by state and
local governments. These institutions include facilities for individuals who are mentally ill or
developmentally disabled, nursing homes, juvenile correctional facilities, and adult jails and
prisons. The department’s recent focus has included work on abuse in nursing homes,
juvenile facilities, sexual victimization of women prisoners, and the unmet medical needs of
prisoners and pre-trial detainees.
The Special Litigation Section enforces federal civil rights statutes in four major areas:
(1) conditions of institutional confinement; (2) law enforcement misconduct; (3) access to
reproductive health facilities and places of religious worship; and (4) protection of
institutionalized persons’ religious exercise rights. The DOJ receives a large number of
claims every year and cannot investigate every claim. The DOJ also takes a long time to
conduct an investigation, so it is important to be patient if you do bring a claim.
If you write to the DOJ, try to be as specific and clear as possible. Your letter should
include your name, prisoner ID number, race, the length of your sentence and how much of it
you have served, and a description of what happened or the condition you believe to be
unconstitutional. When you talk about what happened, be sure to include, where relevant,
how many times the abuse happened, the names and races of the people involved, and
whether the abuse has happened to other prisoners. If you know of others who have had
similar experiences, encourage them to write letters too. Send the letter to:
Special Litigation Unit
Civil Rights Bureau, U.S. Department of Justice
950 Pennsylvania Avenue NW
Patrick Henry Building, Room 5028
Washington, D.C. 20530
Telephone: (877) 218–5228; (202) 514–6255; Fax: (202) 514–0121; (202) 514–6273
If you are filing a complaint under the American Disabilities Act, you must write to a
different division of the DOJ. JLM, Chapter 28, “Rights of Prisoners with Disabilities,” will
help you file this complaint.
A summary of the Special Litigation Section’s work is also available on the DOJ website
at http://www.usdoj.gov/crt/activity.html (last visited March 14, 2008).
D. Conclusion
When you are thinking about beginning a lawsuit, you must first determine exactly what
your particular grievance is. Defining your problem will help you decide which laws or
procedures are the most appropriate to remedy your situation. After thinking about your
issue, decide which of the two main categories of legal action applies to you: 1) lawsuits that

for more information about whether filing a complaint with the DOJ qualifies as an “administrative
remedy” under the PLRA such that you must exhaust before bringing a complaint about prison
conditions in federal court.
36. See www.bop.gov (last visited March 14, 2008) for more information. The D.C. Prisoners’
Project of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs also offers a helpful
guide to the Bureau of Prisons complaint process: www.washlaw.org/pdf/BOP_Greivance_Guide.pdf
(last visited March 14, 2008).
37. See http://www.usdoj.gov/crt/split/complaints.htm (last visited March 14, 2008).
challenge your conviction or sentence, or 2) lawsuits that challenge the conditions of your
imprisonment. You may be interested in both of these types of lawsuits. Read additional
chapters of the JLM that relate to your issue to help you make a decision. The next step is to
learn what will be required of you for different types of legal action. Review the different
types of suits described above for each type of legal problem, and think about what is
required to be successful. In addition to comparing the legal requirements of the different
types of actions, be sure to think back to what your problem is, and decide what your goals
are for fixing that problem. Since different lawsuits provide different types of solutions, you
should evaluate your potential courses of action with your goal in mind. At that point, you
will be in the best position to decide if legal action is right for you, and if so, which type of
lawsuit you should pursue.
 APPENDIX A

LAWSUITS THAT CHALLENGE YOUR CONVICTION OR SENTENCE

Type of Suit Characteristics of Where Do I Bring My Important Things to JLM Chapters you
the Suit Claim: State or Remember must consult
Federal Court?

Criminal A higher court looks It depends on where you The higher court can only Chapter 9:
Appeal at your case to see if were first convicted. If look for legal errors, not “Appealing Your
the lower court, you were convicted in a factual ones. Sentence or
judge, or prosecutor state trial court, you will Conviction”
committed any legal appeal to a higher state
errors during the court. If you were
trial or sentencing. convicted in a federal
court, you will appeal to
a higher federal court.
Article 440 A trial court You can bring this You cannot raise any Chapter 20: “Using
reviews claim only in the New claims you have already Article 440 of the
circumstances that York state courts. See raised or could have raised New York
may have made Appendix A of JLM in a criminal appeal. Criminal
your conviction or Chapter 20 for similar Procedure Law to
sentence unfair. laws in other states. Attack Your
Unfair Conviction
or Illegal
Sentence”
Federal A federal judge You may bring a federal You must have tried to Chapter 13: “Federal
Habeas reviews your claim that habeas corpus claim use all the relief that Habeas Corpus”
Corpus your rights were only in federal court. your state provides
violated under the U.S. before seeking federal
Constitution. habeas corpus.
Remember that you
have a one-year time
limit to bring a federal
habeas corpus action.
You must have
exhausted all your
remedies before this.
Judges do not like to
grant this.
State In New York, state You may bring a state In New York, try Chapter 21: “State
Habeas habeas corpus is used habeas corpus claim Article 440 before you Habeas Corpus”
Corpus mainly to challenge only in state court. bring a state habeas
bail determinations and petition. Courts will
revocations of parole. generally make you
use Article 440 unless
you are challenging
bail or a parole
decision.
 APPENDIX B

LAWSUITS THAT CHALLENGE THE CONDITIONS OF YOUR IMPRISONMENT

Type of Suit Characteristics Which Court- State Important Things to JLM Chapters you
of the Suit or Federal? Know must consult

Administra- You may file a An Make sure you know Chapter 15:
tive complaint not to a administrative about the Prison “Inmate Grievance
Grievance court, but to an grievance is not Litigation Reform Act Procedures”
administrative body. filed with a court, (PLRA) and its
In prison, this means but the PLRA requirements. See JLM,
that you will first file requires you to Chapter 14, “The Prison
a complaint with your bring an Litigation Reform Act.”
prison. administrative
grievance before
challenging
prison conditions
in federal court.
42 U.S.C. You may sue state or Section 1983 claims You cannot use a Chapter 16: “Using
§ 1983 city prison officials if are usually filed in Section 1983 claim to 42 U.S.C. § 1983
they violate your federal court. challenge your and 28 U.S. § 1331
federal constitutional conviction or sentence. to Obtain Relief
rights. You must follow the from Violations of
state statute of Federal Law”
limitations (deadline)
for personal injury suits
and file your complaint
by this deadline.
Consider whether you
might also bring your
suit as a class action.
You cannot use a
Section 1983 claim if
you are complaining
about a federal official.
28 U.S.C. You use this type You may bring a You can sue a federal Chapter 16: “Using
§ 1331 of lawsuit to Bivens action only in official only in his 42 U.S.C. § 1983
(Bivens complain about federal court. individual capacity, not and 28 U.S. § 1331
Actions) federal officials in his official capacity. to Obtain Relief
who violate your You cannot sue federal from Violations of
federal agencies through a Federal Law”
constitutional Bivens action.
rights. You cannot use this suit
This is the federal to sue private
equivalent to a corporations that work
Section 1983 suit, with the federal
so much of the government to operate
information about your prison facility (use
Section 1983 suits a tort action instead).
also applies to
Bivens actions.
 Type of Suit Characteristics Which Court- State Important Things to JLM Chapters you
of the Suit or Federal? Know must consult

Tort Actions In addition to a You may bring a tort In New York, you can Chapter 17: “The
Section 1983 suit action in federal or sue the state of New State’s Duty to
or a Bivens action state court. York in the Court of Protect You and Your
(above) you can file Claims if the person Property: Tort
a tort action who injured you was a Actions”
against anyone state official or
who deliberately or employee.
carelessly injured Remember, if you are a
you or your federal prisoner, you
property. must first exhaust
You can also bring administrative remedies
a tort claim by under the FTCA and
itself. PLRA before bringing a
claim in federal court.

Article 78 You may challenge You may bring an You cannot use this type Chapter 22: “How
decisions made by Article 78 suit only of lawsuit to challenge to Challenge
administrative in New York State your conviction or Administrative
bodies or officers in Court. sentence. Decisions Using
court (for example, Article 78 of the
the Board of New York Civil
Parole, or state- Practice Law and
employed prison Rules”
guards).
You may challenge
decisions that may
be unlawful or
actions that show
the administrative
bodies failed to
follow the law.

United States The DOJ will This type of claim is The DOJ cannot provide There are no JLM
Department of investigate only brought in federal individual relief—it will Chapters on this
Justice (DOJ) allegations of court. only look into problems subject. For more
systemic abuse that are experienced by information, go to:
(continued many prisoners. http://www.usdoj.g
unconstitutional The DOJ also will not ov/crt/split/complai
behavior that look into problems in nts.htm
harms everyone) in federal institutions.
state and local If you decide to write to
institutions. the DOJ Special
Litigation Unit, make
sure your letter is as
clear and specific as
possible.
A Jailhouse Lawyer’s
Manual

Chapter 6:
An Introduction to
Legal Documents

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 6

AN INTRODUCTION TO LEGAL DOCUMENTS*

A. A. Introduction: The Right and Responsibilities of Self-Representation
You have the right to bring your own lawsuit and to represent yourself in court. This is
called bringing a lawsuit pro se.1 Although it is always helpful to have the aid of a lawyer, it
is not always possible to get legal assistance, especially in the early stages of a lawsuit. If you
plan to start a legal action, it is crucial that you familiarize yourself with the documents that
you will need to provide to the court. Courts require that certain documents are prepared
and filed at specific times in order to begin and maintain a lawsuit. The purpose of this
Chapter is to give you a general introduction to legal documents and a basic framework that
explains the order in which documents are required in most cases.
Each type of lawsuit described in the JLM has at least one plaintiff or petitioner and at
least one defendant or respondent.2 In some lawsuits, there may be more than one plaintiff.
For example, several prisoners who were all mistreated in the same way can bring a lawsuit
together. Your lawsuit will be stronger if you can show that you have been a victim of a
regular practice that is illegal, or if you can demonstrate that several people suffered the
same mistreatment. You may even be able to bring a lawsuit in the name of a group of people
without having to ask them all to join your lawsuit as plaintiffs. Such a lawsuit is called a
“class action” and may be very powerful.3 If you are suing prison officials who are mistreating
several prisoners, but you are the only plaintiff, the prison officials can have the case thrown
out by merely improving conditions for you and no one else. This is because the court only
has power over those people named in the suit—once the prison officials have improved
conditions for you, your case is “moot” and will be dismissed. If this happens, the court
cannot do anything about the conditions or mistreatment of others unless another suit is
brought. On the other hand, if you bring a class action naming all the prisoners who are
suffering as plaintiffs, prison officials may have to improve conditions for everyone before the
court can dismiss the case. You should try to find a lawyer for this type of case.
In some cases, there may also be more than one defendant. Under the rule of supervisor
liability (respondeat superior), an employer may sometimes be held liable for the illegal acts
of his or her employees. Therefore, you should always name as a defendant the individual
who injured you, as well as that individual’s superiors up to the Commissioner of
Corrections.
If you are a plaintiff, you would begin your lawsuit by notifying the court and the person
you are suing that you intend to sue. This is done by filing papers (discussed in more detail
below) with the court. In these initial papers, you explain the problem you are having and
what you would like the court to do about it. Once the court receives these papers, the person
you are suing is allowed to defend himself by filing papers with the court that respond to

* This Chapter was written by Taryn A. Merkl based in part on previous versions by Colleen Romaka
and other former members of the Columbia Human Rights Law Review.
1. New York Prisoners’ Legal Services publishes a newsletter entitled “Pro se,” which discusses
how to proceed pro se in various contexts. Many libraries have it. The newsletter is also available from
Prisoners’ Legal Services. To subscribe, send in a request with your name, DIN number, and facility to
Pro Se, 114 Prospect Street, Ithaca, NY 14850.
2. The terms “plaintiff” and “petitioner” are both used to refer to the person who brings a
lawsuit. Similarly, the terms “defendant” and “respondent” are both used to refer to the person who is
being sued. Which terms are used will vary depending on the court in which the case is brought.
3. See Fed. R. Civ. P. 23 (the Federal Rule of Civil Procedure laying out the procedures for class
actions); N.Y. C.P.L.R. 901–09 (McKinney 2006) (the rule laying out the procedures for class actions in
New York State courts).
your charges. At this point, you are generally given another opportunity to file more papers,
in which you respond to what your opponent has stated in his papers. In most cases, this
exchange of claims and responses to the charges occurs before the court makes any decisions
on the substance (also called the “merits”) of the lawsuit itself.
B. B. The Legal Documents
All lawsuits, regardless of type, require the same basic legal documents. These
documents usually fall into five categories: (1) papers needed to start the lawsuit; (2)
supporting papers; (3) miscellaneous papers; (4) the answer from the party being sued; and
(5) the reply to that answer by the party bringing the lawsuit. Although they serve the same
functions, the names of these documents may differ depending upon the particular lawsuit
you choose to file. For example, in a federal habeas corpus action, the paper needed to start a
lawsuit is called a petition, while in a criminal appeal it is called a notice of appeal.
JLM Chapters 2 through 5 describe in detail the various types of lawsuits that you may
bring and provide you with instructions on how to prepare the forms that you need for each
type of suit. A summary of different types of lawsuits, based on New York procedure, is also
given in JLM Chapter 5. This Part provides an overview of the legal documents you will need
to prepare if you decide to bring one of the actions discussed in the JLM. The chart at the
end of this Chapter matches the various names given to the five basic categories of papers to
each type of lawsuit that you may bring.
What comes to most people’s minds when they think about a lawsuit is a courtroom trial.
However, before any case actually gets into court, certain legal documents must be prepared
and filed with the court. If you are appearing (bringing a lawsuit) pro se (without a lawyer),
you are responsible for preparing the necessary documents. Therefore, it is important that
you read Chapters 2 through 5 of the JLM, and carefully follow the directions on how to
write the necessary documents. This Part discusses the functions of the five basic types of
legal documents necessary to start and maintain the various legal actions.
1. Papers Needed to Start a Lawsuit
Once you have determined what type of action you would like to bring, you must file
papers with the court explaining why you are seeking help from the court (pleadings). In
these documents, you will usually state what your opponent has done to you and what you
want the court to do about it. You will also explain the basis of the court’s jurisdiction
(power) to hear your case. Depending upon what type of lawsuit you bring, the names of the
papers may differ. The chart at Appendix A of this Chapter provides the names of these
papers for each lawsuit. You should refer to the section of the JLM describing your legal
problem in detail to determine how these documents should be prepared.
2. Supporting Papers
In the papers that you file to start a lawsuit you will make certain claims about what
your opponent did to you and why you are seeking help from the court. At this point in most
lawsuits, the court will need some sort of evidence that supports your claims. Two types of
supporting evidence, Affidavits and Memorandums, are discussed below:
(a) Affidavits
Supporting papers usually take the form of an affidavit. An affidavit is a sworn (either
notarized or signed by a friend of the court) written statement, by a party to the lawsuit, or
by a witness, supporting the claims you made in your starting papers. An affidavit’s purpose
is to provide the court with some factual evidence that supports your claims. Therefore, it
should contain specific facts. It may consist of your own testimony and/or that of someone
else who witnessed or has firsthand knowledge of the facts of your claim.
 (b) Memorandum of Law
In some suits, a legal memorandum (or brief) is required. A legal memorandum is a
statement of the law (as opposed to the facts) on a particular legal issue. A memorandum
discusses the legal arguments upon which your claim is based. In your memorandum, you
present the facts of your case, and compare them to similar cases. The memorandum of law
serves a purpose similar to that of the affidavit—it demonstrates support for the claims that
you made in your starting papers. The legal memorandum, an example of which appears in
Appendix B of this Chapter, should begin with a statement of the facts in your case. The body
of the memorandum should deal with all of the legal issues that you think arise from the
facts of your case. The legal issues will be based on your legal rights or laws that provide a
privilege. You should research these questions of law and explain to the court how other
courts have dealt with the issues you are raising. Chapter 2 of the JLM, “Introduction to
Legal Research,” explains how to research an issue in the law library.
3. Miscellaneous Papers
You may also file miscellaneous papers, which usually deal with procedural questions of
law (the process by which your case is decided). These questions of law differ from
substantive questions of law (the factual and legal issues of your case), but they nevertheless
can affect your chances of success in the lawsuit. For example, they may include a request for
a lawyer, whose expertise could make the difference between whether you win or lose your
case. They may also include a request to file (or proceed) as a poor person, known as in forma
pauperis, which would free you from having to pay the normal fees and filing costs necessary
to bring a lawsuit.4 The miscellaneous papers that you will need to file will differ depending
on the type of lawsuit you are bringing. You should refer to the chart at Appendix A of this
Chapter to determine what papers are appropriate for your particular lawsuit. You should
also refer to the specific section of the JLM that discusses your legal problem in detail in
order to determine how to prepare these documents.
4. Answering Papers from the Opposing Party
The party you sue is required to answer your starting papers. There are several ways to
answer. The answering party may simply admit or deny the allegations in your papers. The
answering party may also state that he does not know if your statements are true. This is the
equivalent of a denial.5 If the party you have sued answers without replying to one of your
factual allegations, the court will conclude that he has admitted that your allegation is true.6
Another option that the defendant has is to attack the sufficiency of your starting papers
by raising certain defenses.7 The opposing party will typically raise these types of defenses in
a motion to dismiss your complaint. If the opposing party wins such a motion, the court has
the option of either dismissing your case or granting you the opportunity to amend your
complaint and correct the errors. If you are given an opportunity to amend your complaint,

4. Under the Prison Litigation Reform Act (“PLRA”), prisoners filing claims in court are required
to pay full court filing fees. The full fee will gradually be deducted from your prison account. For a
fuller discussion of the PLRA and how it affects your rights, see JLM Chapter 14.
5. See Fed. R. Civ. P. 8(b) (rule on defenses and forms of denials for actions in federal court); N.Y.
C.P.L.R. 3018(a) (McKinney 1991) (rule for denials and defenses in New York State courts).
6 . See Fed. R. Civ. P. 8(d) (federal rule regarding the effect of a party’s failure to deny
allegations); N.Y. C.P.L.R. 3018(a) (McKinney 1991) (rule regarding the effect of a party’s failure to
deny allegations in New York State courts).
7. For a list of the seven defenses that may be made by motion under the Federal Rules of Civil
Procedure, see Fed. R. Civ. P. 12(b). For a list of comparable grounds on which a motion may be made in
New York courts, see N.Y. C.P.L.R. 3211(a) (McKinney 2005). You must check the court rules for your
particular state or federal court for a complete list of defenses.
you should think of the amended complaint as new starting papers, which your opponent
needs to answer.
An example of an answer that would attack the sufficiency of your starting papers is a
motion to dismiss for failure to state a claim. By filing this motion, your opponent
argues you have no legal claim.8 For example, you might want to sue a prison official because
you feel you do not get to spend enough time outside each day. But, if there is no law
requiring prison officials to allow prisoners to be outdoors for a certain number of hours each
day, your claim could be dismissed upon the prison official’s motion because no matter what
the facts were, you could not show the official violated a law. In this example, the judge
would look at the pleadings (the papers you filed to start the case and your opponent’s
motion to dismiss), and would dismiss your case because there would be no basis for the
court to give any relief for that claim.
Another type of answer that your opponent can submit is a motion for summary
judgment. In a summary judgment motion, the opposing party states that there are no facts
in dispute (as opposed to legal issues in dispute) and argues that there is no way that you
can introduce facts to prove your claim. Therefore, he is entitled to judgment as a matter of
law.9 This means that a judge may decide the case without the case ever going before a jury.
For example, you might bring a Section 1983 action10 claiming that your constitutional right
under the Eighth Amendment to be protected against “cruel and unusual punishment” was
violated because a prison guard hit you. The opposing party might file a summary judgment
motion claiming one violent incident does not establish “cruel and unusual punishment”
within the meaning of the Eighth Amendment.11 The judge will read the legal papers and
consider the facts in the light most favorable to the non-moving party (the party that opposes
the summary judgment motion). This means that the judge will give the benefit of the doubt
to the party opposing summary judgment. If the judge believes that there is no way you can
demonstrate that the single incident violated the Eighth Amendment, the motion for
summary judgment will be granted. If the judge thinks that a reasonable jury could find in
your favor, however, then he will deny summary judgment, and your case will move forward
toward trial.
Summary judgment is different than a motion to dismiss for failure to state a claim. In a
motion to dismiss for failure to state a claim, the judge only relies on the pleadings
(allegations submitted to the court) to make a decision. However, when your opponent files a
motion for summary judgment, the judge decides the motion based on affidavits submitted by
both sides. This means that if your opponent submits an affidavit in support of a summary
judgment motion, you have the right to introduce affidavits to support your claim and oppose
the motion. 12 When you are opposing a motion for summary judgment, you should
demonstrate in an affidavit that there are disputed facts that, if considered by a reasonable

8. See Fed. R. Civ. P. 12(b)(6); N.Y. C.P.L.R. 3211(a)(7) (McKinney 2005).

9. See Fed. R. Civ. P. 56 (the federal rule for summary judgment); N.Y. C.P.L.R. 3212 (McKinney
2005) (the New York rule for summary judgment).
10. See Chapter 16 of the JLM for a discussion of 42 U.S.C. § 1983.
11. See Chapter 24 of the JLM for an explanation of Eighth Amendment protections in
assault cases.
12. If you would like to introduce any documents to support your opposition to the motion,
these must be “authenticated” by an affidavit unless they are already in the court’s record. See Fed. R.
Civ. P. 56(e)(1); Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). This means you
should have someone who has knowledge swear that the documents are genuine and reliable. A person
has the requisite knowledge to authenticate a document in an affidavit if he could authenticate a
document during trial under the evidence rules. See, e.g., Fed. R. Evid. 901. Also note that some
documents, such as public records and newspapers, are “self-authenticating,” which means that they
are considered so trustworthy that they do not need to be sworn to in an affidavit. See Fed. R. Evid.
902.
person (like someone on a jury), would tend to support your claim. If possible, you should
seek to amend your complaint (or other introductory papers) to correct any possible defects.
In addition to attempts to have your case dismissed, your opponent may choose to file
answering papers that require you to file more papers. These types of answers may include a
motion for a more definite statement because your complaint was not specific enough.13
This type of motion may be granted in order to give the party being sued a chance to
understand and answer the charges made. It may also simply be a delaying device, used to
buy more time for your opponent. If this motion is granted, you will have to amend your
complaint to explain your claims in more detail. An answering party may also file a
counterclaim against you.14 If a counterclaim is brought against you, this means that the
opposing party is alleging that you did some harm to him. For example, if you sue a prison
guard for assaulting you, the prison guard may answer in turn with a claim that you injured
him instead. If a counterclaim is filed, you must file a reply stating your version of the
events.15
Finally, the party you sued may not be able to respond to your charges within the time
limits given to answer. If this happens, he will probably request an extension from the
court.16 Courts usually grant these requests. If, however, the opposing party does not file (1)
an answer to your charges; (2) a motion attacking the validity of your charges; or, (3) a
motion for an extension of time, you have the right to request that the judge enter a default
judgment, which is a judgment in your favor. 17 A default judgment assumes that your
charges are true because the party you sued did not respond to them. To get a default
judgment, you must file a request that a default judgment be entered with the clerk of the
court. You will later request the same court to order the relief you requested in your starting
papers.
5. Your Reply to the Opposing Party’s Answer
Once you receive the opposing party’s answer, you should read it closely. Carefully
reading your opponent’s answering papers will help you determine the arguments he will
make as the case progresses. For example, an opponent might raise an affirmative defense in
the answer, such as a claim of contributory negligence.18 Once you know what facts and
arguments your opponent will use to prove a claim, you will be able to counter them
effectively. (You should also note that an affirmative defense may not be used at trial if it
was not raised in the answer to the complaint,19 although a court will usually grant the
defendant permission to amend an answer to add an affirmative defense).
In some instances, such as when the opposing party files a counterclaim in his or her
answer, you may be required to respond to the charges. If a reply is required by the court and
you do not file, everything in the answer will be accepted as true by the judge and you will
lose your lawsuit. Even if you are not required to reply to the opposing party’s answer, but
the court allows you to do so, you should go ahead and prepare a well-reasoned reply to the
statements that your opponent makes. It is in your best interest to file and serve a written
reply whenever it is possible to do so.
Chapters 9 to 13, 15 to 17, and 20 to 22 explain in detail the types of claims you can bring
and the kinds of documents you will need to maintain such actions. In each Chapter, there

13. See Fed. R. Civ. P. 12(e); N.Y. C.P.L.R. 3024(a) (McKinney 1991).
14. See Fed. R. Civ. P. 13; N.Y. C.P.L.R. 3019(a) (McKinney 1991).
15. See Fed. R. Civ. P. 7(a); N.Y. C.P.L.R. 3011 (McKinney 1991).
16. See Fed. R. Civ. P. 6(b); N.Y. C.P.L.R. 2004 (McKinney 1997).
17. See Fed. R. Civ. P. 55; N.Y. C.P.L.R. 3215 (McKinney 2005).
18. This means that the other side will say that your carelessness somehow helped cause the
injury and therefore they are not (fully) responsible.
19. See Fed. R. Civ. P. 8(d); N.Y. C.P.L.R. 3211(e) (McKinney 2005).
are examples of the papers you need to file. The table in Appendix A will help you to
familiarize yourself with the names of the papers each suit requires.
C. C. Conclusion
If you are thinking about taking legal action, you should take the following steps:
(1) identify the law that has been broken;
(2) determine the type of lawsuit you need to file; and
(3) gather the necessary documents.
Appendix A of this Chapter lists types of lawsuits and forms the court requires for each
type of suit.

If you file a lawsuit, you will need:

(1) papers to start a lawsuit;
(2) papers supporting your lawsuit; and
(3) other important papers required by the court.
After you have filed your lawsuit, the opposing party should respond to your claim. If the
opposing party responds, you should reply. If the opposing party does not respond, you
should file papers with the court requesting a default judgment.
 APPENDIX A

LEGAL DOCUMENTS TABLE

Type of Papers to Start Suit Supporting Papers Miscellaneous Answers Replies

Suit Papers

Criminal • Notice of Appeal • Papers to Perfect • Poor Person’s • Opposing • Reply Brief
Appeal Appeal Papers Brief
• Bail Request
Papers
• Papers for
Requesting
Extension of Time

Article • Notice of Motion to • Affidavits • Poor Person’s • Answer

440 Vacate Judgment Papers
• Notice of Motion to
Set Aside Sentence

Federal • Petition • Affidavits • Motion for • Answer • Traverse

Habeas Appointment of
Corpus Counsel

State • Petition • Check • Notice of Time • Return • Reply

Habeas requirements of your and Place of
Corpus state Hearing
• Poor Person’s
Papers

42 U.S.C. • Summons • Affidavit • Poor Person’s • Answer • Reply

§ 1983 Papers
• Complaint • Motion to
Dismiss
• Order to Show
Cause and Temporary
Restraining Order

Tort • Notice of Intention • Affidavits • Affidavit to • Demand for • Bill of Particulars

Action to File Claim Request Reduction Bill of
of Filing Fees Particulars
• Notice for
Permission to File • Notice of Appeal
Late Claim
• Verified Tort Claim

Article 78 • Order to Show • Affidavits • Affidavit to • Answer • Reply

Cause Request Reduction
or Waiver of Filing
• Notice of Petition Fees
• Verified Petition
• Request for Judicial
Intervention
• Application for an
Index Number
 APPENDIX B

SAMPLE MEMORANDUM OF LAW20

This Appendix contains an example of a memorandum of law, or a brief. This particular
memorandum was submitted to a federal district court in opposition to defendants’ motion for summary
judgment on a Section 1983 claim for excessive force in violation of the Eighth Amendment.21 We are
including this in the JLM so you may study the form and style of a brief. The names of all parties and
witnesses and facts have been changed. The footnotes have been added to clarify and explain things to
you but should not go in your memorandum. In addition, you should not use the cases cited in this
sample without verifying they are still good law. See JLM, Chapter 2, for information on Legal
Research.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
X
:
Robert K. Simms,
:
Petitioner, :
:
:
- against - : 97 Civ No._________
:
Corrections Officer William D. Bennett, :
New York State Penitentiary, and Sergeant :
Paul J. Wright, :
:
Respondents. :
X

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION

TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Robert K. Simms (“Simms”) respectfully submits this Memorandum of Law in Opposition
to Defendants’ Motion for Summary Judgment.

PRELIMINARY STATEMENT

On January 17, 1990, defendant William D. Bennett (“Bennett”), a corrections officer at the New
York State Penitentiary (“Penitentiary”), physically assaulted and threatened to beat and kill Robert
Simms, an inmate awaiting processing. Defendant Paul J. Wright (“Wright”), Bennett’s supervisor,
knew of the attack and death threats, yet did nothing to intervene and protect Robert Simms. Simms
brings this lawsuit under 42 U.S.C. § 1983 against Officer Bennett for his malicious and sadistic use of
excessive force and against Sergeant Wright for his deliberate indifference to the attack and threats of
beating and death.

20. This memorandum of law is based on a submission drafted by Daniel M. Abuhoff and Nicole
A. Ortsman-Dauer at Debevoise & Plimpton LLP.
21. For more information on how to bring a claim under 42 U.S.C. § 1983, see Chapter 16 of the
JLM. Chapter 24 of the JLM discusses the law that applies to your right to be free from assault in
prison.
 Defendants have moved for summary judgment arguing (i) Simms suffered de minimis physical
injuries and unactionable psychological pain; (ii) the force used by Bennett, if any, was reasonable and
necessary; and (iii) Wright did not act with deliberate indifference because he did not witness the
physical attack and threats of beating and death. Defendants are wrong on both the law and the facts.
First, the use of force here was more than de minimis. Bennett shoved Simms, pushed him into a
wall, swung him around the search room, and punched him in the arms, legs, and face, while
simultaneously screaming that he should shoot, stab, and beat him. As a result of the attack, Simms
suffered more than de minimis physical and mental pain, sustaining not only bruises to his arms, legs,
and face, but also serious and extensive mental pain lasting to the present. The Eighth Amendment’s
prohibition on the unnecessary and wanton infliction of pain encompasses both physical and mental
pain.
Second, the evidence demonstrates that there was no need for force. Simms provoked no attack. He
was not violent. He did not refuse to follow Officer Bennett’s instructions. As indicated by the content of
Bennett’s threats, the attack—fueled by Bennett’s personal feelings of hatred and disgust—was
malicious, sadistic, and for the very purpose of causing Simms harm.
Finally, the supervising officer, Sergeant Wright, was deliberately indifferent to Simms’s plight.
Wright admits to hearing noise from the search room. Indeed, Wright was told by Simms what was
going on. Yet, Wright chose to do nothing to stop the attack.
Defendants’ motion for summary judgment should be denied.

1. STATEMENT OF FACTS
(a) Robert Simms’ Child Pornography Convictions

Plaintiff Robert Simms, a black male in his late forties, is a convicted child pornographer. The last
conviction took place on January 10, 1990. As a result of that conviction, Simms was sentenced to five
years imprisonment, which he served at the New York State Penitentiary from January 17, 1990 to
January 16, 1995. (Simms Aff. ¶ 3).22

a. Officer Bennett Attacks Robert Simms and Sergeant Wright Does Nothing

Simms arrived at the Penitentiary at approximately 9:30 a.m. on January 17, 1990. He was led
into the bullpen holding cell and sat on a bench as he waited to be processed. In addition to Simms,
there was only one other person in the bullpen. (Simms Aff. ¶ 5; Simms Dep. 20:12–13).
On the morning of January 17, 1990, defendant Officer Bennett and Officer Howard Lewis
(“Lewis”) worked the 8:00 a.m. to 2:00 p.m. shift in the search area of the Penitentiary. (Bennett Dep.
35:25–27; Lewis Dep. 24:8–10). Sergeant Wright, working the same shift, was the supervisor on duty.
(Wright Dep. 22:36–24:5).
Corrections officers at the Penitentiary all have the opportunity to learn incoming inmates’
charges. Not only do corrections officers discuss, on occasion, inmates’ charges, but officers working in
the booking and search areas have access to that information. (Bennett Dep. 43:15–19, 52:9–55:12,
62:24–64:14; Lewis Dep. 27:7–15, 36:24–37:5). Simms sat on the bullpen bench for approximately one
hour when he heard Officer Bennett shouting from inside the search room, located a few yards from the
bullpen: “He’s pond scum. That low-life piece of trash kiddie porn lover deserves to be killed. Someone
should kill him.” (Simms Aff. ¶ 12; Simms Dep. 21:15–24:7; Compl. Pt. II at 1).
In order to determine the source of and reason for the threats, Simms stood up from the bullpen
bench and approached the bullpen bars. Bennett approached the bullpen, stood very close to Simms,
and screamed: “You revolting cradle robber. Get the hell out of my face, you pedophile. You nauseate

22. Citations to “Simms Aff. ¶ __” refer to the Affidavit of Robert K. Simms, dated August 15,
1998. Citations to “___ Dep.” refer to the transcript of the deposition for the individual specified.
Citations to “Compl.” refer to Simms’ Complaint. Citations to “Def. Mem.” refer to the Defendants’
Memorandum of Law. The symbol “¶” refers to a particular paragraph in that document. A citation that
reads 20:12-13 indicates that the cited information can be found on page 20, lines 12 through 13 of the
referenced document.
me! Get the hell away from the bars before I beat you senseless.” Simms was terrified and did not know
how to respond. He had done nothing to provoke the threats. (Simms Aff. ¶ 12; Compl. Pt. II at 1).
Officer Bennett, becoming even more aggressive, continued his verbal attack for the next half hour.
He screamed: “If I had a knife, I’d stab you in your chest right now. Get away from the bars you
disgusting pond scum pervert!” Simms became very anxious. He thought he was going to be killed by
Officer Bennett or by other inmates to whom Bennett would reveal his charges. (Simms Aff. ¶ 13;
Simms Dep. 24:7–13; Compl. Pt. II at 1–2).
A few minutes later, Simms was retrieved from the bullpen and escorted to the search room where
Officer Bennett stood, glaring at him. (Simms Aff. ¶ 14; Simms Dep. 26:14–25; Compl. Pt. II at 6).
Officer Lewis and approximately four to six other corrections officers—including Officer Felding, who
booked Simms that morning and prepared his booking sheet containing his child pornography
charges—also stood in the room, all staring at Simms and Bennett with expressions of expectation.
(Simms Aff. ¶ 15; Compl. Pt. II at 4).
Officer Bennett slammed shut the search room door and pushed Simms from behind with two
hands, towards the wall where the other officers stood. He pushed Simms approximately ten times and
swung him around the room. Bennett slapped Simms’ face and body and again began to scream threats
of beating and death at Simms. Bennett next shoved Simms into the wall next to the corrections
officers while screaming: “You vile scumbag. I should kill you. If I had my knife, I’d carve you up. If I
had my revolver, I’d blow you to shreds. You are a sick maggot.” Simms was terrified and kept still.
(Simms Aff. ¶ 16; Simms Dep. 28:12–30:25; Compl. Pt. II at 3–4).
Officer Bennett continued to push Simms into the wall while yelling that he could not stand the
sight of Simms. Simms finally asked Bennett what he had done to deserve this attack and reminded
Bennett he did not know the details of Simms’ case. Bennett responded by yelling that he did not give
“two hoots” about the circumstances of Simms’ case; he was going to carve him up anyway. Bennett
pushed Simms. Simms ricocheted off the wall, and Bennett continued to scream obscenities and threats
of beating and death. Officer Lewis and the others in the search room looked on with amusement.
(Simms Aff. ¶ 17; Simms Dep. 29:15–30:10; Compl. Pt. II at 6–7).
At some point, Officer Bennett demanded that Simms stand in a particular spot in the search
room. Each time Simms moved to the requested spot, Bennett taunted him and screamed, “No, this
way!,” pointing to a different spot. He then swung Simms around the room, grabbing his arm and
launching him off. Bennett repeated this several times. (Simms Aff. ¶ 18; Simms Dep. 28:7–29:6).
Eventually, Bennett screamed that Simms should strip. Simms complied and removed his shirt. He
never refused or questioned Bennett’s order. When Simms put his shirt on an empty chair in the room,
however, Bennett flew into a rage. He whipped Simms’ shirt around in the air above his head,
screaming that Simms was a repulsive child pornographer. Bennett prepared to punch Simms again.
Simms turned his body to avoid being hit and called out for the sergeant. (Simms Aff. ¶ 16; Simms
Dep. 28:9–30:12, 33:14–20, 35:8–29).
Sergeant Wright heard “loud screaming” coming from the search room and went to investigate.
(Wright Dep. 28:7–9, 30:22–25, 50:7–25). As Wright appeared at the door, Bennett acted as if nothing
were wrong. Simms told Wright that he was glad Wright had arrived and that he needed Wright’s help.
Wright cut Simms off and told him to “shut the hell up and take off your clothes,” to which Simms
replied, “You’re in this too! This is unbelievable.” Simms did not question Wright’s order to strip.
Rather, he took off his pants. Bennett strip-searched him. (Simms Aff. ¶ 20; Simms Dep. 30:21–32:12,
39:8–40:2; Compl. Pt. II at 8; Wright Dep. 32:20–23, 52:19–21; Bennett Dep. 49:4–20).
Once the strip search was completed, Simms told Wright that Bennett had physically assaulted
him and threatened to beat, stab, and kill him. Wright responded, “Well, this is jail!” and walked out of
the search room, leaving Simms alone with Bennett and the other officers. (Simms Aff. ¶ 4; Davis Dep.
28:7–29:15; Wright Dep. 15:02–16:20 (testifying that Davis had a complaint about the officers)).
Once Sergeant Wright left the search room, Simms dressed and Bennett resumed threatening him.
Bennett again shoved Simms, sending him flying across the search room. Bennett screamed, “You are a
piece of crap! You are a disgusting kiddie porn loving animal who deserves to die. I am going to make
sure someone’s going to kill you. Your days are numbered.” (Simms Aff. ¶ 18; Simms Dep. 40:15–42:30;
Compl. Pt. II at 8). Bennett then led Simms out of the search room and screamed, “Send him to
protective custody and get him out of my face. He gets off on little girls!” (Simms Aff. ¶ 20; Simms Dep.
41:18–22; Compl. Pt. II at 9). After spending approximately forty-five minutes in the search room,
Simms was taken to a cell in protective custody where inmates are kept alone in separate cells that are
kept locked for most of the day. Simms did not want to be housed in protective custody after the
assault. He feared he would be more vulnerable to attack by defendants or others because there would
be no witnesses. (Simms Aff. ¶ 22; Simms Dep. 35:3–23, 40:21–42:3, 56:15–58:4; Compl. Pt. II at 10).

(c) Robert Simms’ Physical and Mental Pain Resulting from the Attack

As a result of the attack, Simms sustained bruises on his arms, legs, and face. He requested
medical attention the day after the incident. By the time Simms saw a doctor—a week later—these
injuries were no longer visible. (Simms Aff. ¶ 24; Simms Dep. 44:12–18, 48:23–50:2; Compl. Pt. II at 5).
In addition to the physical injuries, Simms suffered extreme and extensive mental pain. Not only
was he humiliated and shocked by the search, but for the entire time he was housed at the
Penitentiary, he was anxious and terrified that Bennett, Lewis, and Wright were going to beat or kill
him—either by themselves or by encouraging other inmates—and cover it up. Simms felt hopeless. He
became depressed and contemplated suicide. To this day, Simms suffers from nightmares about the
attack. (Simms Aff. ¶ 29; Simms Dep. 49:15–51:12, 52:14–15; Compl. Pt. II at 5).
On January 18 and 19, Simms made several visits to the Mental Health Clinic. He was depressed,
aggravated, and in despair. He did not want to be housed in protective custody where no one could
witness any further attack. (Mental Health Evaluation Sheet, dated January 18, 1990). One nurse
specifically noted that the “Problem” was that Simms was harassed by corrections officers because of
his charge. (Id.)23. Simms also received help for his psychological pain from Mark Denby, a Muslim
mullah (religious leader) in Simms’ community, and Dr. Margaret Phillips, Simms’ therapist. These
individuals visited Simms on numerous occasions while he was at the Penitentiary. After Simms
finished serving his sentence in 1995, he continued to meet with Dr. Phillips, with whom he often spoke
about the assault. (Simms Aff. ¶ 26; Simms Dep. 44:16–17, 53:18–19, 57:14–28; Compl. Pt II at 5–7).
(d) Robert Simms’ Complaint and the “Investigation”
On January 19, two days after the attack, Simms wrote a letter to Warden Frank Boston detailing
the physical abuse and death threats prompted by his child pornography charges. He also noted
Sergeant Wright’s unconcerned reaction. (Simms Aff. ¶ 28). Captain Sharon Grant conducted an
investigation, then wrote a report to Warden Boston on January 26. Of course, Grant concluded that
there was no merit to Simms’ Claim. (Grant Report).

2. ARGUMENT

The standards for summary judgment24 are well settled. The moving party25 bears the burden of
establishing that there are no genuine issues of material fact in dispute26. See, e.g., Consarc Corp. v.
Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). This standard bars the court from
resolving disputed issues of fact. If there are material factual issues, the court must deny summary
judgment. See, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932

23. “Id” means that the author is citing to the same source that the author cited to immediately
prior. In this case, “Id” refers to the Mental Health Evaluation Sheet, dated January 18, 1990.
24. “Summary judgment” is a legal term which means that a judge can decide the case in one
party’s favor without the case ever going to a jury because the facts are not in dispute and the judge
can make a ruling on the law.
25. The “moving party” is the person who made the motion to the court asking the court to do
something. In this case, the moving party is Officer Bennett, who is asking the court to decide the case
in his favor at the summary judgment stage instead of going forward to a trial.
26. When a party claims that there are “no genuine issues of material fact in dispute,” that
means that all the parties agree about the facts, or a neutral third party would have to say that the
facts seem to heavily favor one party’s story over the other’s as the real version of events.
(1987). In evaluating whether there are factual issues, the court is to view the evidence in the light
most favorable to the non-moving party 27 and draw all permissible inferences 28 in the non-moving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). However, assessments of
credibility, conflicting versions of events, and the weight to be assigned to evidence are for the jury, not
the court. See id. at 255.

D. A. Officer Bennett’s Attack On Robert Simms Violated The Eighth Amendment

The Eighth Amendment prohibits the “unnecessary and wanton infliction of pain”29 and is the
source of claims for excessive force under Section 1983. Whitley v. Albers, 475 U.S. 312, 319 (1986).
Analysis of an excessive force claim contains both objective and subjective inquiries. 30 An official’s
conduct violates the Eighth Amendment when (i) the conduct is “objectively, sufficiently serious,” and
(ii) the prison official acts with a “sufficiently culpable [guilty] state of mind.” Farmer v. Brennan, 511
U.S. 825, 834 (1994) (internal quotation marks omitted).

(a) Officer Bennett’s Conduct Was Sufficiently Serious.

Defendants argue that summary judgment should be granted because (i) Simms’ physical injuries,
if any, were de minimis, 31 and (ii) Simms’ psychological injuries are not serious enough to justify
continuing this Section 1983 case. As demonstrated below, however, the physical injuries and
psychological pain suffered by Robert Simms were sufficiently serious to satisfy the Eight Amendment
standard.

(i) The Use of Force Was More Than De Minimis

The objective component of a claim for excessive force under the Eighth Amendment is satisfied if
the injury suffered results from something more than a de minimis use of force. See Hudson v.
McMillian, 503 U.S. 1, 9–10 (1992); Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). Significant injury,
that is “injury that requires medical attention or leaves permanent marks,” is not required. Hudson,
503 U.S. at 7–8, 13 (“The absence of serious injury is .†.†. relevant to the Eighth Amendment inquiry
but does not end it.”).
As an initial matter, defendants contend that Officer Bennett never used force against Robert
Simms or even had any physical contact with him. (Def. Mem. 7). This argument, however, is hotly
disputed and thus summary judgment must be denied. See, e.g., Allah v. Cox, No. 96-CV-1225, 1998
WL 725939, at *2 n.2 (N.D.N.Y. Oct. 9, 1998) (summary judgment denied where corrections officer’s
version of events is expressly contradicted by inmate).
Alternatively, defendants contend that the force used by Bennett—which defendants dismiss as
mere grabbing and pulling—was de minimis. (Def. Mem. 5–7). But the evidence shows that Simms was
shoved, pushed into a wall, swung around the search room, and punched—all while being threatened
with further beatings and death for approximately forty-five minutes in the search room. (Simms Aff.
¶¶ 12–13; Simms Dep. 25:24–26:16, 32:2–3; Simms Stmt., dated January 19, 1990).

27. The “non-moving party” is the person who did not make the motion to the court. Here, the
non-moving party is Simms, who is opposing Officer Bennett’s motion for summary judgment. Simms
wants the case to go forward to a trial, instead of being decided in Officer Bennett’s favor by a judge.
28. To “draw all permissible inferences” means that the court should take the facts and make
any and all favorable assumptions that the facts can support which would favor the non-moving party,
Simms. Because a judge ruling on summary judgment is ending the case before it goes to trial, the
judge must give “the benefit of the doubt” to the party opposing summary judgment.
29. “Wanton infliction of pain” means excessive, cruel, or immoral infliction of pain.
30 . “Objective” means as viewed by an outsider, sometimes referred to as the ordinary
“reasonable person.” “Subjective” means how a specific person viewed the incident.
31. “De minimis” is a legal term that means something has occurred in such a small quantity
that it is not significant, and there is thus no legal remedy. Here, Officer Bennett is arguing that
Simms’ physical injuries were de minimis. This means Officer Bennett is trying to claim that Simms
was not hurt badly enough for the law to take notice of his injuries.
 Defendants cite a number of cases to support their argument that the use of force against Simms
was de minimis as a matter of law. None of these cases is on point. They are either decided on grounds
other than the use of force or involve momentary uses of force dramatically different from the repeated
and continuous physical assault and death threats inflicted on Robert Simms. See Reyes v. Koehler, 815
F. Supp. 109, 114 (S.D.N.Y. 1993) (summary judgment granted for defendant where inmate did not
allege malice or intent to cause harm and where defendant’s pushing plaintiff against wall was “a
momentary act, of such limited duration as to belie any inference of malicious or sadistic intent to
cause harm”) (internal quotation marks omitted); Harris v. Keane, 962 F. Supp. 397, 408 n.12 (S.D.N.Y.
1997) (squeezing inmate’s finger once is de minimis) (emphasis added); Candelaria v. Coughlin, 787 F.
Supp. 368, 374–75 (S.D.N.Y. 1992) (use of force de minimis where inmate did not allege any “repeated
or continuous grabbing” or any physical injury), aff’d, 979 F.2d 845 (2d Cir. 1992).
Simms suffered bruises to his arms, legs, and face. (Simms Aff. ¶ 20; Simms Dep. 54:10–24). Such
visible injuries are more than sufficient to sustain an Eighth Amendment action. See, e.g., Griffin v.
Crippen, 193 F.3d 89, 91–92 (2d Cir. 1999) (reversing district court’s determination that inmate’s
bruised shin and swelling over left knee were de minimis as a matter of law); Smith v. Marcellus, 917
F. Supp. 168, 171–73 (W.D.N.Y. 1995) (abrasion under left eye, small laceration near right ear, four
superficial skin tears on upper calf, and slightly swollen wrist, resulting from attack by corrections
officers, constitutes sufficient injury).
Defendants make much of the fact that plaintiff was not given medical treatment for his bruises.
(Def. Mem. 7–8). However, Simms asked for treatment. (Simms Aff. ¶ 1). Defendants cannot be relieved
of responsibility for the physical abuse of Robert Simms because they refused him medical treatment
for at least a week after abusing him. The provision of medical treatment, in any event, is merely one
fact to be weighed by the jury in assessing whether the physical force was more than de minimis. See
Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (plaintiff’s failure to seek medical treatment for
injuries not fatal to Section 1983 claim).

(ii) Simms Can Recover for His Psychological Pain

Were there any question as to Bennett’s use of more than de minimis physical force on Simms—
and there should be none—Simms’ psychological pain provides a separate basis for recovery. The
intentional infliction of psychological pain can form the basis of a Section 1983 claim where the pain
suffered is more than de minimis. The Supreme Court has stated:
[T]he Eighth Amendment prohibits the unnecessary and wanton infliction of “pain,” rather than
“injury.” “Pain” in its ordinary meaning surely includes a notion of psychological harm. I am unaware of
any precedent of this Court to the effect that psychological pain is not cognizable32 for constitutional
purposes.
Hudson, 503 U.S. at 16 (Blackmun, J., concurring) (internal citation omitted); see also St. Germain
v. Goord, No. 96-CV-1560 (RSP/DRH), 1997 WL 627552, at *3–4 (N.D.N.Y. Oct. 8, 1997) (inmate’s
misery, anguish, psychological pain, and fear found actionable).
Defendants argue that verbal threats alone are not enough to bring a claim under Section 1983.
But this is not a case about a verbal argument. Simms was threatened while he was being assaulted.
Verbal threats, accompanied by some physical force or injury, can violate the Eighth Amendment. As
the case law makes clear, when threats are accompanied by conduct that increases the credibility of the
threats, an inmate’s constitutional rights are violated. See Northington v. Jackson, 973 F.2d 1518,
1522–24 (10th Cir. 1992) (alleged psychological injury resulting from sheriff’s placement of revolver to
inmate’s head, accompanied by threats to shoot, held more than de minimis); Burton v. Livingston, 791
F.2d 97, 100–01 (8th Cir. 1986) (guard drawing weapon and threatening to shoot while using racially
offensive language held more than de minimis use of force); Douglas v. Marino, 684 F. Supp. 395, 397–

32. “Cognizable” means that a court can recognize or identify something. Here, when the Court
declares that psychological pain is cognizable for constitutional purposes, the Court means that
psychological pain is something that the Court can take into account when considering a case alleging a
constitutional violation has taken place.
98 (D.N.J. 1988) (allegation that prison employee brandished knife while threatening to stab prisoner
stated Section 1983 claim).
It is clear even from the cases on which defendants rely that threats accompanied by physical
conduct violate the Eighth Amendment. In Jermosen v. Coughlin, for example, the court held that
verbal threats do not amount to a constitutional violation “unless accompanied by physical force or the
present ability to effectuate the threat.” 878 F. Supp. 444, 449 (N.D.N.Y. 1995) (emphasis added).
Similarly, in McFadden v. Lucas, the court stated, “mere threatening language” is not a constitutional
violation where the “plaintiff has nowhere alleged that he was physically assaulted [or that] any
touching of his person occurred at all.” 713 F.2d 143, 146 (5th Cir. 1983), cert. denied, 464 U.S. 998
(1983) (emphasis added); see also Harris v. Keane, 962 F. Supp. 397, 406 (S.D.N.Y. 1997) (“Allegations
of threats, verbal harassment or profanity, without any injury or damage, do not state a claim under
Section 1983.”) (emphasis added).
Unlike the cases cited by defendants—where the threats were unaccompanied by other conduct or
the plaintiff was not physically abused—Robert Simms was threatened with beatings and death even
as he was physically attacked. (Simms Aff. ¶ 12–13). The lack of any justification for these threats
indicates that their purpose was to inflict psychological harm. See infra Part B. Simms’ placement in
protective custody, where he might be assaulted without witnesses, only bolstered the threats’
credibility. See Hudspeth v. Figins, 584 F.2d 1345, 1347–48 (4th Cir. 1978) (guard’s threat that inmate
would be shot supported by subsequent transfer to work detail supervised by armed guards).
Simms’ psychological pain was not de minimis. During the search process, he experienced
humiliation, anxiety, and the terror of death or severe injury. Afterwards, fearing that Bennett, Lewis,
and Wright were going to beat or kill him, Simms sank into a deep depression and contemplated
suicide. Defendants’ argument that Simms’ suicidal thoughts should be disregarded because he could
not actually kill himself misses the point that he suffered psychological pain. (Def. Mem. 6 n.1). He
received psychological treatment from the Mental Health Clinic, which specifically noted that Simms
had been harassed by corrections officers and that he was “depressed.” (Mental Health Evaluation
Sheets). Simms also received counseling from Mullah Mark Denby and Dr. Margaret Phillips. To date,
he suffers from nightmares of the incident. (Simms Aff. ¶ 22; Simms Dep. 43:15–44:2, 49:18–51:18;
Simms letter, dated January 24, 1990). Thus, Simms’ mental pain is actionable.
Defendants characterize Simms’ psychological pain as not “rational” because (i) the threats were
conditional; (ii) an investigation was conducted; and (iii) the threats of beatings and killing were never
effectuated. (Def. Mem. 11–13). None of these arguments withstands scrutiny [close examination].
First, defendants’ suggestion that Simms’ fear of beating and death would only be justifiable had
Bennett phrased his threats in the present tense—”I’m going to kill you now”—and that Simms should
have taken comfort from the use of the conditional perfect in Bennett’s actual statement—”I should kill
you”—assumes that Simms has a high-level understanding of grammar and an ability to identify
different verb tenses under those circumstances.
Defendants’ second point, that Simms’ fear and terror during the assault on January 17, 1990,
should have been ameliorated [made better] by defendants’ investigation taking place on January 26,
1990, is similarly far-fetched. Even after the attack, Simms could have derived little comfort from an
internal investigation, given his previous experience with Penitentiary personnel. As to the merits of
the investigation, the quality of internal reports rests on credibility—a jury issue. See Payne v.
Coughlin, No. 82 Civ. 2284 (CSH), 1987 WL 10739, at *3 (S.D.N.Y. May 6, 1987).
Finally, as discussed above, verbal threats are indeed actionable where accompanied by physical
force. It is not necessary for Simms to have actually been beaten, shot, stabbed, or killed to maintain
this lawsuit. See St. Germain, 1997 WL 627552, at *3–4 (holding actionable inmate’s mental pain and
fear resulting from corrections officers’ threats to “beat the hell out of plaintiff” which never
materialized). Defendants rely on Doe v. Welborn, 110 F.3d 520 (7th Cir. 1997), in arguing that Simms’
fear of beating and death are not compensable since the threats never materialized. That reliance is
misplaced. Doe is a conditions-of-confinement case; this is a case about excessive use of force. As Doe
itself states: “What is necessary to show sufficient harm for purposes of the Cruel and Unusual
Punishments Clause depends on the claim at issue.” 110 F.3d at 524. Thus, while the psychological
harm of the plaintiff in Doe did not rise to “the extreme deprivations” required to make out a
conditions-of-confinement claim, Simms’ psychological injury is actionable because “a plaintiff in an
excessive force case need not allege significant injury in order to survive dismissal.” Id. (internal
citations and quotation marks omitted). Under the circumstances, the fear and other mental pain,
which Simms suffered due to Bennett’s threats of beating and death, accompanied by Bennett’s
aggressive physical actions, were clearly rational.

(b) Officer Bennett Acted Maliciously and Sadistically to Cause Harm

For claims of excessive force, the state of mind requirement turns on whether the prison official
applied the force “‘maliciously and sadistically to cause harm.’” Hudson, 503 U.S. at 6 (quoting Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), cert. denied, 414 U.S. 1033 (1973)). In making that
determination, the trier of fact is to consider the following factors: (i) “the extent of the plaintiff’s
injuries;” (ii) “the need for the application of force;” (iii) “the correlation [relationship] between that
need and amount of force used;” (iv) “the threat reasonably perceived by the defendants;” and (v) “any
efforts made by the defendants to temper [decrease] the severity of a forceful response.” Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Hudson, 503 U.S. at 7).

(i) Plaintiff Simms Suffered Physical and Mental Harm

As a result of Bennett’s use of excessive force and threats of beating and death, Simms suffered
physical and mental injury. See supra Sections 1(b) and (c)

(ii) There Was No Need for Force or Death Threats

Where, as here, there is evidence that an attack by a corrections officer is unprovoked or without
sufficient justification, courts generally will deny summary judgment. See, e.g., Corselli v. Coughlin,
842 F.2d 23, 27 (2d Cir. 1988) (reversing summary judgment where jury could find defendant initiated
argument and struck inmate without justification); Moore v. Agosto, No. 93 civ. 4835, 1996 WL 125660,
at *2 (S.D.N.Y. Mar. 20, 1996) (summary judgment denied where plaintiff maintained defendants
initiated the confrontation), aff’d, 164 F.3d 618 (2d Cir. 1998).
Defendants claim Bennett was justified in using force because of Simms’ “admitted” refusal to
follow defendants’ instructions to submit to a strip-search, stand away from the bullpen bars, stand
where directed in the search room, and place his clothing in the designated place. (Def. Mem. 6–8).
Defendants’ arguments are undermined by the simple fact that Bennett attacked Simms prior to
the issuance of any of these instructions. The threats of violence began as Simms sat in the bullpen,
and the physical attack began as soon as Simms entered the search room. (Simms Aff. ¶¶ 8, 11; Simms
Dep. 19:20–20:3, 24:25–25:9, 25:14–25:14). Moreover, when Simms was ordered to strip, he complied.
(Simms Aff. ¶¶ 15, 18; Simms Dep. 32:15–21; Simms letter dated January 24, 1990).
The other so-called “instructions” illustrate the malice and sadism motivating Bennett’s attack. For
example, Bennett’s alleged “instruction” to stand away from the bullpen bars was in fact stated as
follows:

You revolting cradle robber. Get the hell out of my face, you pedophile. You nauseate
me! Get the hell away from the bars before I beat you senseless.

(Simms Aff. ¶ 9; Simms Dep. 21:2–15). In addition, the purported “instruction” to stand in a
particular spot was nothing but a malicious taunt. Bennett indeed told Simms to stand in a particular
spot. However, each time Simms moved to the place indicated, Bennett screamed, pointed to a different
spot, grabbed Simms’ arm, and swung him to the new location. (Simms Aff. ¶ 14; Simms Dep. 27:22–
27:2).
The expressions of disgust and hatred, which continued throughout the beating and accompanied
the death threats, were a product of Bennett’s personal feelings, not a good faith effort to maintain
discipline. The evidence is clear that Bennett knew Simms’ charges prior to the attack:
 (1) Felding, the booking officer who prepared the booking sheet stating Simms’ charges, stood in
the search room while Simms was assaulted and searched (Booking Sheet; Bennett Dep.
31:10–25, 41:20–42:3, 49:3–7, 52:8–53:8; Def. Interrog. Resp. No. 7);
(2) Bennett, Lewis, and Wright admitted to talking about inmates’ charges (Bennett Dep. 56:17–
25; Lewis Dep. 26:2–18; Wright Dep. 41:16–19);
(3) Bennett admitted that he had access to inmates’ charges (Bennett Dep. 53:2–54:8; see also
Lewis Dep. 26:2–18); and
(4) The threats are replete with references of Simms being a child pornographer (Simms Aff. ¶¶ 7,
8, 9, 11, 14, 18; Simms Dep. 19:14–25, 25:6–7).
The fact that malice motivated Bennett’s acts against Simms are explained, in part, by Bennett’s
testimony that he finds sex offenses committed against minors more disgusting than other crimes
committed by inmates. (Bennett Dep. 58:3–10). Moreover, Bennett was emboldened by his “amused”
audience of corrections officers in the search room. (Simms Aff. ¶ 12; Simms Dep. 27:23–28:2; Def.
Interrog. Resp. No. 7).
Defendants contend that the force used was necessary to avoid the “potential” security risks
associated with a backlog of detainees waiting to be processed. (Def. Mem. 8). However, the “potential”
risk could never have been a reality here. The morning of January 17, 1990, only Simms and one other
detainee were waiting to be processed. (Simms Aff. ¶ 6).

(iii) The Amount and Type of Force Used Were Disproportionate to the Need

There is no correlation here between the need for force and the amount of force used. Given that
Simms offered no physical or verbal resistance nor refused any orders, Bennett’s pushing, shoving,
swinging, punching, and simultaneous threatening with death and severe injury were clearly excessive.
Even assuming arguendo (for the sake of argument) that Simms did refuse to strip, the
circumstances would not require the amount of physical force that Bennett used. Bennett himself
admitted that Simms was not violent during the strip-search. (Bennett Dep. 48:14). See Martinez v.
Rosado, 614 F.2d 829, 831–32 (2d Cir. 1980) (violation of prison rule and refusal to obey direct order do
not alone justify physical assault without evidence of physical resistance by inmate or other indication
that amount of force was proper); see also Corselli, 842 F.2d at 27 (even where there is evidence that
inmate may have failed to follow an order, officer can still be found to have used excessive or gratuitous
force). Moreover, it is hard to see how threatening to shoot, beat, and stab Simms would get Simms to
perform the desired action of stripping. At a minimum, this is a question for the jury. See, e.g., Trice v.
Strack, No. 94 Civ. 4470 (BSJ), 1998 WL 633807, at *3 (S.D.N.Y. Sept. 14, 1998) (whether force was
applied maliciously and sadistically left for jury where defendants struck, tackled, and kicked plaintiff
who may have precipitated conduct by waving underwear in one defendant’s face).

(iv) Bennett Could Not Reasonably Have Perceived Simms as a Threat.

It is clear that Bennett could not reasonably have seen Simms as a threat. On January 17, 1990,
Simms was 5’4” and approximately 135 pounds, as compared to the taller, more muscular defendant
Bennett. (Simms Aff. ¶ 8; Simms Dep. 19:6–9; Booking Sheet). In addition, while Bennett was
accompanied by Lewis and four to six other corrections officers in the search room, Simms was the only
inmate present. (Bennett Dep. 39:9–14, 48:3–11; Def. Interrog. Resp. Nos. 2, 7).

(v) Bennett Has Demonstrated No Effort to Temper His Response.

Finally, defendants have suggested no efforts by Bennett to temper the severity of the response. As
noted above, Bennett assaulted and threatened Robert Simms prior to any peaceful request that Simms
strip, and continued to do so for another 45 minutes.
E. B. DEFENDANT WRIGHT EVINCED DELIBERATE INDIFFERENCE WHEN HE FAILED
TO PROTECT ROBERT SIMMS FROM BENNETT’S PHYSICAL ASSAULT AND
ACCOMPANYING DEATH THREATS.

Defendants argue summary judgment should be granted for Sergeant Wright because (i) Wright
did not participate in or witness the physical attack and death threats directed toward Simms, and (ii)
Wright took adequate steps to ensure that Simms’ constitutional rights were not violated. (Def. Mem.
5–6). However, summary judgment is not appropriate because Wright acted with deliberate
indifference when he failed to protect Simms from Bennett’s physical assault and death threats.
The legal standard is that a supervisor may be liable under Section 1983 for the actions of his
supervisees where, as here, the supervisor exhibits “deliberate indifference” to an inmate’s safety.
There is no requirement of direct participation in the constitutional violation. See, e.g., Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994). Deliberate indifference exists where (1) there is a substantial risk of
serious harm to an inmate, and (2) the prison official knows of the risk and disregards it by failing to
take steps to prevent harm to the inmate. See Farmer, 511 U.S. at 834; see also Hayes v. New York City
Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996).

i. Robert Simms was at a substantial risk of serious harm.

Here, the first requirement for a finding of deliberate indifference, “substantial risk of serious
harm,” is clearly met. A violent assault perpetrated without justification and solely for the purpose of
causing harm creates a substantial risk of serious harm. See supra I.B.

(b) Wright knew of and disregarded the harm to Simms by not acting to prevent it.

The second requirement of deliberate indifference, culpable intent, is also met. The evidence
establishes Wright had knowledge that Robert Simms faced a substantial risk of serious harm on the
morning of January 17, 1990, regardless of whether Wright actually witnessed the physical abuse and
death threats. Specifically:
(1) Wright admitted in deposition that he proceeded into the search room after hearing “loud
screaming” coming from that room. (Wright Dep. 26:23–28:23, 48:23–25, 54:4–6). Wright’s
Incident Report, stating that Wright “heard noise” coming from the search room, confirms this.
(Incident Report of Sgt. Wright).
(2) Once the strip-search was completed, Simms told Wright that Bennett physically assaulted
him and threatened him with his life. (Simms Aff. ¶ 16; Simms Dep. 37:13–22).
(3) Wright admitted in deposition that Simms had filed a complaint about Officer Bennett.
(Wright Dep. 13:02–16:20).
The evidence further establishes that Wright disregarded the substantial risk of serious harm that
he knew Simms faced. Even after hearing suspicious noises coming from the search room and being
told that Bennett had attacked Simms, Wright did not immediately investigate the situation,
reprimand (warn or punish) Bennett, or even stay in the search room until the booking and search
process was complete. After Simms told Wright he needed Wright’s help, Wright told Simms to “shut
the hell up and take off your clothes.” (Simms Dep. 38:18–20). Then, after specifically being informed of
the abuse, Sergeant Wright merely told Simms, “Well, this is jail!” and walked out of the search room.
(Simms Aff. ¶ 17; Simms Dep. 39:12–14; Simms letter, dated January 24, 1990). Given the evidence
indicating that Wright had knowledge of the risk Simms faced, this indifferent response cannot be held
reasonable as a matter of law.
That Wright failed to prevent any further harm to Simms is proven by the fact that Wright left
Simms in the room with Bennett to suffer further abuse. Simms was indeed subjected to more abuse
when Wright left the search room. Once Wright exited, Bennett shoved Simms, sending him reeling
across the search room. Bennett screamed, “You are a piece of crap! You are a disgusting kiddie porn
loving animal who deserves to die. I am going to make sure someone’s going to kill you. Your days are
numbered.” (Simms Aff. ¶ 19; Simms Dep. 34:9–15; Compl. Pt. III at 6).
 The failure to intervene to prevent harm to an inmate constitutes deliberate indifference,
subjecting the supervisor to liability. See, e.g., Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995)
(summary judgment denied where defendants were present but failed to intervene to prevent another
prison official from firing a shotgun at inmate); Buckner v. Hollins, 983 F.2d 119, 122–23 (8th Cir.
1993) (where defendant failed to prevent prison official from beating plaintiff, jury could find deliberate
indifference for defendant’s failure to intervene); see also Hayes, 84 F.3d at 621 (reversing summary
judgment for corrections officers where plaintiff advised officer he was in danger prior to attack, and
record revealed no protective measures taken); Livingston v. Rivera, No. 94-CV-5319, 1999 WL 26902,
at *3 (E.D.N.Y. Jan. 20, 1999) (officer’s statement and other circumstances, suggesting defendant had
knowledge that inmate was exposed to imminent serious harm, precluded summary judgment). Here,
there is substantial evidence that Wright disregarded a clear and obvious risk of harm to Simms. As a
result, Simms suffered further physical assault and threats of beating and death. Wright’s failure to
take any steps—much less any reasonable ones—to prevent this abuse makes him liable, and at
minimum, precludes summary judgment in his favor.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment should be denied.
Dated: _______________________
<<date submitted>> <<City, State>>
Respectfully submitted,
<<Attorney Firm Name>>33
By:______________________
Rachel A. Felder (RF-XXXX)34
<<Attorney’s Address>>
<<City, State>>
<<Phone number>>
Attorney for Plaintiff
Robert K. Simms

33. If you are submitting your memorandum of law pro se, you should put your name here.
34. If you are submitting your memorandum of law pro se, you should put your name, address,
and contact information (including your inmate number, if applicable,) here.
A Jailhouse Lawyer’s
Manual

Chapter 7:
Freedom of Information

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia Human Rights Law
Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended
as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any
information contained herein is intended to or shall constitute a contract between the JLM and any reader,
and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of
the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at
Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,
because the law changes frequently, we cannot guarantee that all information is current.
 CHAPTER 7

FREEDOM OF INFORMATION*
A. Introduction
This Chapter describes laws that allow you to request copies of government documents and files. There
are several reasons why these documents might be useful to you: you may want to review copies of your files
and rap sheets to make sure they are accurate and complete; you may want to get copies of internal
memoranda and manuals that lay out procedures prison officials must follow; and, if you are preparing to
sue the government, you can use a freedom of information request to gather support for your case.
All fifty states and the District of Columbia have passed some sort of state open records laws. See
Appendix A. Many of these laws are modeled on the federal Freedom of Information Act. Only state freedom
of information laws grant access to state and local government records; the federal Freedom of Information
Act does not apply to state or municipal agencies, including state correctional systems.
There are specific procedures that you must follow depending on the type of information you are
requesting. Each agency has a different procedure for accessing information. It would be impossible in this
Chapter to outline the procedures for every agency. Instead, this Chapter will give you an overview as to the
law itself and what rights you have under the Freedom of Information Act (“FOIA”), the Privacy Act (“PA”),
and the New York Freedom of Information Law (“FOIL”). Be sure to check the specific procedures for your
particular request before filing an information request.
Part B of this Chapter outlines the laws that allow you to get documents from the federal government.
Part C discusses New York’s Freedom of Information Law. Prisoners in other states should still read Part C
to get an idea of the types of documents prisoners most often request, and look carefully at the provisions of
their state’s freedom of information statute. Part D contains an address for the Federal Citizen Information
Center—if you need help figuring out which federal agency to contact, write or call the Federal Citizen
Information Center for help. Appendix A contains a list of state freedom of information laws. Appendix B of
this Chapter contains a form to use to request information from the Department of Justice (“DOJ”) and other
federal agencies. Appendix C contains sample letters for filing a FOIA/PA request and/or appeal. Appendix D
lists addresses of organizations and federal governmental agencies that can provide more help.
B. The Federal Freedom of Information Act
1. Overview & History
Your right to access the files of the United States government is established by two federal laws: the
Freedom of Information Act, 1 enacted in 1966, and the Privacy Act of 1974. 2 These laws have been
tremendously successful in enabling public access to government files. The Freedom of Information Act
(“FOIA”) allows you to request all public documents, including records that relate to you. The Privacy Act
(“PA”) deals only with personal files. It gives you the right not only to look at your own records, but to
correct, change, or remove records that contain incorrect, irrelevant, or incomplete information about you. If
your request is incorrectly denied or ignored, you can sue under both laws in federal court.
FOIA and the PA implement one of the basic principles of democracy—the public’s right to know what
its government is doing. As written, FOIA gives access to all government records unless they fall into one of
nine narrowly defined categories of materials that agencies are allowed, but not required, to withhold.3 In
practice, however, there are often bureaucratic roadblocks to getting records, and you will probably not
always get immediate access to everything you think you are entitled to.
2. What Agencies Are Covered & What Records Are Available
FOIA applies to documents held by agencies in the executive branch of the federal government. These
agencies include military departments, cabinet departments, including the Department of Justice (which

* This Chapter was written by Benjamin Van Houten based in part on previous versions by Laura Burdick, Geraldine R.
Eure, Susan Widule, and Saleemah Ahamed.
1. 5 U.S.C. § 552 (2000).
2. 5 U.S.C. § 552a (2000).
3. 5 U.S.C. § 552(b) (2000). These exemptions are discussed later in this Part.
controls both the Federal Bureau of Investigation (“FBI”) and federal prisons), departments of the Executive
Branch (such as the Defense Department), independent federal agencies (such as the Environmental
Protection Agency (“EPA”)), and government-controlled corporations (such as the United States Postal
Service (“USPS”)). FOIA does not apply to documents held by federal courts or by Congress.4 FOIA also does
not apply to documents held by “the President’s immediate personal staff or units within the Executive
Office whose sole function is to advise and assist the President.”5 FOIA does not apply to state or local
governments, including state prison systems; these are usually covered by separate laws.6
FOIA allows you to look at almost all records under a federal agency’s control.7 But, some records may be
exempt, in which case you will not be allowed access despite FOIA. Part B(3) of this Chapter, “Exemptions to
Record Availability,” discusses the specific exemptions. The Supreme Court has defined an “agency record”
as a document that is (1) either created or obtained by the agency, and (2) under control of the agency at the
time of the FOIA request.8 Agency records may include many different types of information, such as papers,
reports, letters, films, computer tapes, photographs, and sound recordings in the possession, custody, or
control of an agency. In 1996, Congress made clear that electronically stored information should be included
within the definition of a “record” under FOIA.9 In addition, you may request records in any form or format
in which the agency keeps them, and the agency must make reasonable efforts to meet your request.10
However, FOIA does not allow you to demand answers to questions. The information must already be
contained in an existing agency record. An agency is not obliged to create a new record, collect information it
does not have, or research or analyze data to meet your request. For this reason, when requesting records,
you must “reasonably describe” the material you want.11 This does not mean you need to know a specific
document or file number, but your request should be specific enough that a government agency employee
familiar with the subject area of your request can locate the records with a reasonable amount of effort. Also,
a records request under FOIA and the PA must be in writing, and must include proper identification.
The PA grants you the power to look at any record within an agency’s files that pertains to you, unless
the agency has published formal notice that the system of records is exempted by law from public access.12
Under the PA, as long as you are either a U.S. citizen or an alien lawfully admitted for permanent residence
(“LPR”), you may apply to look at any records about yourself that are kept in the executive branch of the
federal government.13 In other words, a U.S. citizen or LPR can look at any records that are filed according

4. 5 U.S.C. §§ 551(1)(A)–(B) (2000).

5. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S. Ct. 960, 971, 63 L. Ed. 2d 267,
285 (1980) (finding that telephone notes taken by Kissinger in his capacity as Assistant to the President did not
constitute “agency records” under FOIA); see also Armstrong v. Executive Office of the President, 1 F.3d 1274, 1296 (D.C.
Cir. 1993) (holding that presidential records are not subject to FOIA, but declining to ascertain whether the guidelines
defining presidential materials were appropriate), rev’d on other grounds, 90 F.3d 553 (D.C. Cir. 1996); Meyer v. Bush,
981 F.2d 1288, 1293 (D.C. Cir. 1993) (holding that the determination of whether an entity is an “agency” depends on how
close operationally the group is to the President, the nature of its delegation from the President, and whether it has a
self-contained structure); Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995) (holding that the Executive Residence
is not an agency under FOIA as it does not exercise independent authority).
6. State government records can be obtained using state freedom of information laws. The New York Freedom of
Information Law is discussed in Part C of this Chapter. See Appendix A of this Chapter for a list of the freedom of
information laws of all 50 states and the District of Columbia.
7. 5 U.S.C. § 552(a)(3) (2000).
8. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 146, 109 S. Ct. 2841, 2849, 106 L. Ed. 2d 112, 126 (1989)
(holding that court opinions in agency files are “agency records”).
9. 5 U.S.C. § 552(f)(2) (2000) reads: “For purposes of this section, the term ... ‘record’ and any other term used in
this section in reference to information includes any information that would be an agency record subject to the
requirements of this section when maintained by an agency in any format, including an electronic format.” This
language includes computer disks, CD-ROMs, microfiche, microfilm, and all other digital or electronic media.
10. See Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985) (holding that a department must only
make reasonable, but not exhaustive, efforts to respond to a FOIA request); Maynard v. CIA, 986 F.2d 547, 559 (1st Cir.
1993) (holding that when the diligence of an agency’s attempt to respond to a FOIA request is at issue the agency should
issue an affidavit which should describe how the search was conducted and how the agency’s filing system would make
further search difficult). The new statute rejects Dismukes v. Dep’t of the Interior, where the court held that an agency
“has no obligation under the FOIA to accommodate the plaintiff’s preference.” 603 F. Supp. 760, 763 (D.D.C. 1984).
11. 5 U.S.C. § 552(a)(3) (2000).
12. For exemptions, see 5 U.S.C. §§ 552a(j)–(k) (2000).
13. 5 U.S.C. § 552a(a)(2) (2000). This is unlike FOIA, which gives access rights to “any person.” 5 U.S.C. §
552(a)(3) (2000).
to his or her name, social security number, or some other personal identifier. Detailed information about
how to access agency records can be found in Part B(4) of this Chapter, “How to Make Your Request.”
3. Exemptions to Record Availability Under FOIA and the PA
FOIA exempts nine categories of materials; in other words, the law states the government does not need
to disclose material fitting into any one of these nine categories. It also states, however, an agency may not
withhold an entire file or document just because part of it is exempt.14 The agency can only withhold those
parts of the record falling within the exemption. In addition, FOIA exemptions are not mandatory. Agency
officials can choose to waive the exemptions and release the material(s) even if they fall within one of the
nine categories, unless another statute specifically limits or prohibits disclosure of that kind of information.
The most common of the nine FOIA exemptions are:15
(1) Records that are “properly” secret in the interests of national defense or foreign policy;
(2) Documents “related solely to the internal personnel rules and practices of an agency.” In practice,
this is a very limited exemption because if a person outside the agency can show a legitimate interest
in the records, the material cannot be of “solely” agency interest;
(3) Matters “specifically exempted from disclosure” by other federal statutes. In order for this claim of
exemption to stand up in court, the agency must point to a statute that either (a) requires that the
category of information must be withheld, or (b) establishes particular criteria for withholding
information. The agency must also show that the material it is withholding falls under the statute.
This exemption is complicated by the fact that there is no complete list of statutes that meet these
criteria and some statutes have their own provisions governing disclosure and disclosure procedures
and exemptions. However, you should always make your request for records under FOIA;
(4) “Trade secrets and commercial or financial information” given to the government with the
expectation that they would be kept secret;
(5) “Inter-agency or intra-agency memoranda or letters.” This exemption protects communications that
are meant to be distributed only within the government and that contain advice, opinions, and
recommendations that officials offer to each other. Congress enacted this exemption so as not to
inhibit decision-making within agencies. This exemption may not be used to withhold facts, agency
decisions, or policies;
(6) “Personnel and medical and similar files” which could not be released to someone other than the
subject of the file without resulting in an “unwarranted invasion of personal privacy.” This
exemption balances an individual’s interests of privacy against the public’s interest in knowing.16
The files must contain sufficiently intimate details about someone to claim an invasion of privacy.
Although FOIA generally favors disclosure, courts regularly uphold the nondisclosure of information
to unconcerned parties about marital status, legitimacy of children, welfare payments, family fights
and reputation,17 medical details and conditions,18 “rap sheets,”19 and the incarceration of United
States citizens in foreign prisons;20 and

14. 5 U.S.C. § 552(b) (2000).

15. 5 U.S.C. §§ 552(b)(1)–(7) (2000).
16. See U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 603 n.5, 102 S. Ct. 1957, 1962 n.5, 72 L. Ed. 2d
358, 365 n.5 (1982) (explaining that although citizenship information is “a matter of public information” and therefore
less likely to be exempted from disclosure under Exemption 6, status as a “public record” alone does not prevent the
record’s disclosure from being an invasion of personal privacy).
17. See Rural Hous. Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 76–77 (D.C. Cir. 1974) (holding that an
investigation report containing detailed personal and medical information of persons allegedly discriminated against by
the Department of Agriculture were “within the class of similar files” and its disclosure depended on whether it would
result in a “clearly unwarranted invasion of personal privacy”).
18. See McDonnell v. United States, 4 F.3d 1227, 1254 (3d Cir. 1993) (noting that a “living individual” may have a
“strong privacy interest in withholding his medical records” that outweighs a public request.”); Rural Hous. Alliance v.
U.S. Dep’t of Agric., 498 F.2d 73, 77 (D.C. Cir. 1974) (holding that Exemption 6 of FOIA covered a USDA report that
included, among other things, individual’s medical condition and history); Brown v. FBI, 658 F.2d 71, 74–75 (2d Cir.
1981) (upholding denial of plaintiff’s request for FBI files that included an individual’s possible involvement with illegal
drugs as information that falls within Exemption 6).
19. See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 780, 109 S. Ct. 1468,
1485, 103 L. Ed. 2d 774, 800 (1989) (holding that a third-party request for an individual’s rap sheet when the request
does not seek “official information” about a government agency is an “unwarranted” invasion of privacy).
20. See Harbolt v. Dep’t of State, 616 F.2d 772, 774 (5th Cir. 1980) (holding disclosure of names and addresses of
 (7) All “records or information compiled for law enforcement purposes.”
In 1986, Exemption 7 was amended, effectively broadening the exemption to include more records or
information.21 For example, law enforcement manuals now readily satisfy the exemption requirements and
may not be subject to disclosure. The amendments also include three new categories of records or
information that may be protected from disclosure (see provisions (4), (5) and (6) below). These provisions
apply if the release could reasonably be expected to:
(1) “Interfere with [law] enforcement proceedings.” This includes federal and state court proceedings. If
release of records could, for example, enable targets of investigations to avoid detection or would
prematurely reveal evidence or strategy in the government’s case, then it can be properly excluded;22
(2) Deprive a person of a fair trial;
(3) “Constitute an unwarranted invasion of personal privacy.” The majority of courts have held the
identities of law enforcement personnel exempt unless you can show proven, significant misconduct
on the part of the investigators;23 in other words, the names of law enforcement personnel will
usually not be revealed;
(4) “Disclose the identity of a confidential source, including a state, local, or foreign agency or authority
or any private institution which furnished information on a confidential basis.” Confidentiality
includes any information supplied by a confidential source. If the information is of a confidential
nature, given to the agency by one source only, and collected in the course of a criminal investigation,
agencies are permitted to withhold all of the information provided by that source;
(5) Disclose investigative techniques, procedures or guidelines for law enforcement investigations or
prosecution. This exemption is limited to techniques, procedures or guidelines not generally known
to the public, or the usefulness of which is not generally known to the public; and
(6) “Endanger the life or physical safety of any individual.” This is the most frequently claimed
exemption. In order to properly claim the law enforcement exemption, the government must show
that the withheld material relates directly to legitimate “law enforcement purposes.”24
(7) In addition to federal law enforcement, this exemption may also apply to records compiled to enforce
state law.25
While FOIA requesters are generally sent copies of the information they have requested, there may be
instances when the agency may only allow you to see the documents, rather than have them. In Tax Analysts
v. United States Department of Justice,26 the court noted an agency need not respond to a FOIA request for
copies of documents when the agency itself has provided an alternative way of accessing the same
information.27 For example, if an agency makes the requested information available in a public reading
room, this is enough to satisfy that agency’s obligation under FOIA.28 Therefore, if an agency declines to
send you copies of the requested information, it must provide you with an alternative form of access.29

U.S. citizens imprisoned in foreign countries on narcotics offenses would be an unwarranted invasion of their privacy).
21. 5 U.S.C. § 552(b)(7) (2000); see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 756 n.9, 109 S. Ct. 1468, 1473 n.9, 103 L. Ed. 2d 774, 785 n.9 (1989) (explaining that the shift from “the would
constitute” standard to “the could reasonably be expected to constitute” standard “represents a considered congressional
effort ‘to ease considerably a federal law enforcement agency’s burden in invoking [Exemption 7]’”).
22. See Manna v. U.S. Dep’t of Justice, 51 F.3d 1158, 1164–65 (3d Cir. 1995) (affirming a district court’s finding
that government records were properly denied under Exemptions (b)(7)(A) and (D) because disclosure of such
information would interfere with future prosecutions and deny sources confidentiality that they were assured).
23. See, e.g., Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993) (holding that government employees have a privacy
interest in concealing their identities).
24. See, e.g., Ferreira v. Drug Enforcement Admin., 874 F. Supp. 15, 17 (D.C. Cir. 1995) (holding that the DEA
properly withheld the names and identities of agents when the disclosure could reasonably be expected to endanger their
life or physical safety).
25. The other two rarely used exceptions to FOIA concern government regulation of financial institutions and
geological/geophysical information. Please refer to the statute, 5 U.S.C. §§ 552(b)(8)–(9) (2000), for more information.
26. Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1067 (D.C. Cir. 1988) (holding that an agency may not
avoid producing its records in response to a FOIA request by directing the requester to a public source outside the
agency that has the same information), aff’d, 492 U.S. 136, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989).
27. Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1067 (D.C. Cir. 1988) (holding that an agency may not
avoid producing its records in response to a FOIA request by directing the requester to a public source outside the
agency that has the same information), aff’d, 492 U.S. 136, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989).
28. Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1067 (D.C. Cir. 1988) (holding an agency may not avoid
producing its records in response to a FOIA request by directing the requester to a public source outside the agency that
 The PA also has exemptions to disclosure. These exemptions are much broader than the FOIA
exemptions. The nine PA exemptions are:30
(1) Material “maintained by the Central Intelligence Agency” (“CIA”);
(2) Material maintained by a law enforcement agency. This includes police, corrections, and
prosecutors’ offices. To be exempt, the record by an agency under this section must consist of:
(3) information compiled to identify individual criminal offenders and alleged offenders;
(4) information compiled for criminal investigation, including reports of informants and investigators; or
(5) reports identifiable to an individual that were compiled at any stage of the process of enforcement of
the criminal laws;
(6) Material that is “properly” secret in the interests of national defense or foreign policy;
(7) Material compiled for criminal investigative law enforcement purposes by agencies whose principal
function is not law enforcement;
(8) Material contained in Secret Service record systems, relating to protection of the President and
others whom the Secret Service protects;
(9) Material required by statute to be maintained and used solely as statistical records;
(10)Material that identifies individuals whose identity was promised concealment when they provided
information used in conducting background checks of job applicants to and employees of the federal
government;
(11)Material related to testing or examination used solely to determine individual qualifications for
appointment or promotion in the federal service; or
(12)Material that would identify individuals whose identity was promised concealment when they
provided information used in promotion decisions for members of the armed forces.
You should always request information under both FOIA and the PA. Agencies may not withhold
information that is exempt under one statute but not exempt under the other.31 In other words, “[I]f a FOIA
exemption covers the documents, but a Privacy Act exemption does not, the documents must be released
under the Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must be
released under FOIA.”32
Do not let the exemptions stop you from making requests, as the records may be available under an
agency or court interpretation. In addition, agencies are not required to withhold information just because a
particular exemption could be applied. Agency officials can choose to waive the exemptions and release the
material(s) you requested. If information is withheld, you can challenge that decision by writing an
administrative appeal letter or filing a lawsuit.
4. How to Make Your Request for Information from the Department of Justice
As noted above, every agency has a very specific procedure that must be followed in order for a FOIA or
PA request to be granted. This Subsection will only describe the procedure that must be followed if you are
seeking to request information from the Department of Justice (“DOJ”). For information from other agencies,
or if you do not know which agency holds the information you want, you can consult any government
directory or the “United States Government Manual.”
To order a $27 copy of the “United States Government Manual,” send requests to:
Superintendent of Documents
P.O. Box 371954
Pittsburgh, PA 15250-7954

has the same information), aff’d, 492 U.S. 136, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989); see also Oglesby v. U.S. Dep’t of
the Army, 920 F.2d 57, 70 (D.C. Cir. 1990) (finding an agency is not required to mail information in response to a FOIA
request when that information has been made available to the public in another format); Grunfeld & Harrick v. U.S.
Customs Serv., 709 F.2d 41, 42–43 (11th Cir. 1983) (holding an agency was not required to mail documents in response
to a FOIA request when the documents were available for viewing and copying at the custom house in Puerto Rico).
29. Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1067 (D.C. Cir. 1988) (holding that an agency may not
avoid producing its records in response to a FOIA request by directing the requester to a public source outside the
agency that has the same information).
30. 5 U.S.C. §§ 552a(j)–(k) (2000).
31. 5 U.S.C. §§ 552a(t)(1)–(2) (2000).
32. Martin v. Office of Special Counsel, 819 F.2d 1181, 1184–89 (D.C. Cir. 1987) (denying disclosure of information
requested by Appellee as such disclosure was exempted by both the PA and the FOIA).
 You can also call (202) 512-1800 or access http://www.gpoaccess.gov/gmanual on the Internet.
In general, if you request information from the DOJ, you should try to send your request to the specific
division that has the records you want. If you are uncertain about which division to write, you can send your
request to the DOJ’s FOIA/PA Mail Referral Unit, and someone in that division will forward your letter to
the division they think most likely to have the information you want. All requests should be in writing.
Send requests to:
FOIA/PA Mail Referral Unit, Justice Management Division
U.S. Department of Justice, Room 114 LOC
950 Pennsylvania Ave., N.W.
Washington, DC 20530-0001
Attn: FOIA Request
The rest of this Part addresses how to make a request for information from two divisions of the DOJ: the
Federal Bureau of Prisons (“BOP”) and the FBI. It discusses the fees that you will be charged for making
such requests, the types of responses you may receive from either the FBI or the BOP, and the appeals
process, which may be useful if your request is denied.
(a) Requesting Information from the Federal Bureau of Prisons
The BOP maintains records on current and former prisoners of the federal penal and correctional
institutions as well as records relating to the administration of the agency. This Subsection will describe (i)
how to request information from your institution and (ii) how to request information from the BOP under
FOIA and the PA.
(i) Requesting information from your institution33
If you would like access to your Inmate Central File, the BOP encourages you to request this information
from your institution. Many records within the Inmate Central File can be disclosed without you filing a
FOIA request. These include records relating to your sentence, detainer, participation in programs,
classification data, parole information, mail, visits, property, conduct, work, release processing, and general
correspondence. You can also request access to some medical records from your institution.
The Warden of your institution should have designated a staff member to receive requests for access to
these records. In order to request access to your Inmate Central File or medical records, you should submit a
request to this person, who must, as promptly as is practical, schedule a time for you to review your file.
Staff members must tell you if there are documents in your Inmate Central File or medical records
withheld from disclosure. If you would like access to these documents, you should make a FOIA request.
(ii) Requesting information from the BOP under the Privacy Act
To file a request for information from the BOP under FOIA, including any information withheld from
your review of your Inmate Central File or your medical records, or any other records, your request should:34
(1) Be in writing;
(2) Be clearly marked “Freedom of Information Act/Privacy Act Request” on the front of the letter and
the envelope;
(3) Clearly describe the records you seek, including the approximate dates covered by the records;
(4) Include your full name, current address, date of birth, place of birth, and social security number (if
you have one); and
(5) Include your Federal register number (optional).
You must also verify your identity in one of the following ways:
(1) Complete and sign Form DOJ-361 (See Appendix B);

33. All of the information regarding making requests from your institution can be found in Bureau of Prisons
Program Statement 1351.05, issued on September 19, 2002, available at
http://www.bop.gov/DataSource/execute/dsPolicyLoc by clicking on General Administration and Management and then
by clicking on Document Name: “Release of Information.”
34 . Bureau of Prisons Program Statement 1351.05, issued on September 19, 2002, available at
http://www.bop.gov/DataSource/execute/dsPolicyLoc (click on General Administration and Management; then click on
Document Name: “Release of Information”); U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/oip/04_3.html (last visited Sept. 17, 2008).
 (2) Have the signature on the request witnessed by a notary; or
(3) Include the following statement before the signature on the requested letter: “I declare under
penalty of perjury that the foregoing is true and correct. Executed on [date].”
The DOJ has stated that “if you request information about yourself and do not follow one of the
procedures [described above], your request cannot be processed.”35 If you are seeking personal information,
make sure that you provide the necessary identification information.
If you are requesting information under the PA about someone other than yourself, the information will
not be disclosed unless:
(1) You provide a statement by the other person specifically authorizing the release of information; the
statement must be signed by that person and either witnessed by a notary or include a declaration
made under penalty of perjury; or
(2) You provide evidence that the subject of the request is deceased, such as a death certificate, or some
comparable proof of death such as a newspaper obituary.
Having completed these steps, you may mail your request to:36
Freedom of Information Act/Privacy Act Section
Office of the General Counsel, Room 841
Federal Bureau of Prisons
320 First St., N.W.
Washington, DC 20534
If you have access to the Internet, you may also submit a request on-line through the BOP website. The
website can be accessed at http://www.bop.gov/foia/submit.jsp.
(b) Requesting Information from the FBI
The FBI collects evidence in legal cases in which the United States is or may be an interested party and
investigates violations of certain federal statutes.37 Requests for information under FOIA and/or under the
PA from the FBI should be addressed to:
David M. Hardy, Chief
Record/Information Dissemination Section, Records Management Division
Federal Bureau of Investigation
Department of Justice
935 Pennsylvania Avenue, N.W.
Washington, DC 20535-0001
To request any information from the FBI, under either FOIA or the PA, your request must:
(1) Be in writing;
(2) Provide your full name;
(3) Provide your date and place of birth; and
(4) Either be notarized by a notary public, or include the following statement before the signature on the
letter: “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].”
If you are requesting information about someone else and that person is living, your request must
include a waiver signed by that person and verified by a notary public. You must also include the person’s
full name and date and place of birth. If you are requesting information about someone who is deceased, you
must provide the name of the deceased, and proof of death, either in the form of an obituary, death
certificate, or published record that indicates the person is, in fact, dead.38
(c) Fees

35 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,” updated May 2006,
http://www.usdoj.gov/04foia/referenceguidemay99.htm#how (last visited Mar. 9, 2008).
36 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,” updated May 2006,
http://www.usdoj.gov/04/foia/referenceguidemay99.htm#how (last visited Mar. 9, 2008).
37. See 28 U.S.C. § 531–540(C) (2000) (describing various crimes that the FBI is authorized to investigate, for
example, crimes involving government officers and employees and killing of state or local law enforcement officers).
38. Telephone Interview with staff member of the Federal Bureau of Investigations (Nov. 13, 2006).
 Within a reasonable amount of time after your request, staff should provide you with copies of the
disclosable documents from your Inmate Central File and/or medical records. Copies cost ten cents per page.
In addition, you will be charged a fee for the search time required to process your request. The cost of search
time is $2.25 per fifteen minutes for clerical staff, $4.50 per fifteen minutes for professional staff, and $7.50
per fifteen minutes for managerial staff. You will not be charged for the first 100 pages of duplication or the
first two hours of search time, and you will only be charged for fees that total above $8.00.39
When you file either a FOIA or PA request with the DOJ, the Department assumes that you are willing
to pay fees up to $25. In the majority of requests made to the DOJ, no fees are ever charged.40 However, if
you are not willing or able to pay $25, you should state the limit you are able to pay in your request letter. If
the DOJ estimates that your fees will be more than $25, they will give you the opportunity to make a
cheaper request or ask you to commit to pay the estimated amount before your request is processed.
According to the DOJ website, “[y]ou ordinarily will not be required to actually pay the fees until the records
have been processed and are ready to be sent to you.”41
The DOJ charges for copies (ten cents per page), the cost of computer print-outs and tapes, and labor.
The cost of labor is $4.00 per fifteen minutes for clerical staff, $7.00 per fifteen minutes for professional staff,
and $10.25 per fifteen minutes for managerial staff. The DOJ will not charge you for the first two hours of
search time or the first 100 pages of copies. If the total fee is less than $14, the DOJ will not charge any fee.
You can also request a fee waiver. To get a fee waiver, you must show you are requesting the information
to benefit the public, not your own interests.42 Inability to pay is not a basis for a fee waiver.43 If you are
indigent, you can attempt to request a fee waiver for that reason; but, the DOJ usually denies such requests.
(d) Initial Response to Requests
Once a division of the DOJ has processed your request and any fee issues have been resolved, the
division will send you a response. This response may either be (1) the information you requested, (2) some of
the information you requested and a letter explaining why part of your request was denied, or (3) a letter
explaining why your entire request was denied. If information is being withheld, the letter will tell you
whether the information is being withheld pursuant to one of the exemptions to the PA or FOIA.
The BOP should respond to your request within twenty business days, not counting Saturdays, Sundays,
and legal holidays. The twenty-day period begins when the request is received by the BOP’s FOIA office. The
BOP may extend the initial response time an additional ten business days when one of the following applies:
(1) Records must be collected from field offices;
(2) A “voluminous” quantity of records must be located, compiled, and reviewed in response to the
request; or
(3) The request requires consultation with another agency that has a substantial interest in the
responsive material, or among two or more other DOJ Divisions.44
(4) When the BOP needs more time to process your request, they will inform you in writing and give you
the opportunity to modify your request.
5. What to Do if Your Request is Denied
If your initial request is denied, you should first file an administrative appeal with the agency from
which you are requesting information. If your administrative appeal is also denied, you can file a lawsuit.

39 . See Bureau of Prisons Program Statement 1351.05, issued on September 19, 2002, available at
http://www.bop.gov/DataSource/execute/dsPolicyLoc by clicking on General Administration and Management and then
by clicking on Document Name: “Release of Information.”
40. U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm#fees (last visited Mar. 9, 2008).
41 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm#fees (last visited Mar. 9, 2008).
42.U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm (last visited Mar. 9, 2008).
43 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm (last visited Mar. 9, 2008).
44 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”
http://www.usdoj.gov/04foia/referenceguidemay99.htm (last visited Mar. 9, 2008).
 (a) Filing an Appeal
You should file an appeal if you are not satisfied with the response you have received to your FOIA
request. Your appeal should be:
(1) In writing;
(2) Marked “Freedom of Information Act Appeal”—both on the front of the envelope and the appeal
itself;
(3) Received within sixty days of the date of the BOP’s determination letter; and
(4) Addressed to:
Office of Information and Privacy
United States Department of Justice
Suite 11050
1425 New York Avenue, N.W.
Washington, DC 20530-0001
Attn: Freedom of Information Act Appeal
Your appeal should include the name of the Component that denied your request, the initial request
number the Component assigned to the request, and the date of the Bureau’s action.45 If no request number
has been assigned, you should try to enclose a copy of the BOP’s determination letter with your appeal. You
should also explain your reasons for disagreeing with the BOP’s denial of your request. Do not attach specific
documents unless they directly pertain to a point you are making in the appeal. Once your appeal has been
received, it will be reviewed by an attorney in the Office of Information and Privacy (“OIP”). At that point,
the OIP will either affirm the BOP’s decision, affirm part of the BOP’s decision and release other
information requested, or return or “remand” the request to the BOP to consider the request again.46
(b) Filing a Lawsuit
If the appeal does not get you the information you requested, you can file a lawsuit to force the agency to
release the documents. Though technically you have up to six years after the date on which your
administrative appeal was denied to file a lawsuit,47 you should try to file as soon as possible to demonstrate
to the court that you need the information.
Filing a FOIA complaint should be relatively inexpensive and simple. 48 Sometimes, as soon as the
complaint is filed, the government will release the documents without further litigation. If your case is a
more or less routine denial of documents that you think are clearly covered by FOIA, you may wish to draft
and file your own short-form complaint. In addition, you should consider filing a “Motion for a Vaughn
Index” using the sample Vaughn motion reproduced in Appendix C-5 at the end of this Chapter.49 This is a
routine motion under which the government agency will be required to give you an itemized index describing
the documents it is withholding and the justification it claims for withholding each.
After you file your complaint, the burden is on the government to come forward and justify why it is
withholding the information.
C. New York’s Freedom of Information Law
1. Right of Access to Information
(a) Generally
The New York Freedom of Information Law50 (“FOIL”) grants New York state prisoners access to some of
their prison records, and to statements and memoranda that lay out the Department of Correctional
Services’ policies. This law was patterned after the FOIA (the federal Freedom of Information Act) and was

45 . U.S. Dep’t of Justice, “Freedom of Information Act Reference Guide,”

http://www.usdoj.gov/04foia/referenceguidemay99.htm#appeals (last visited Mar. 9, 2008).
46. 28 C.F.R. § 16.9 (2005).
47. 28 U.S.C. § 2401(a) (2000).
48 . Various resources are available to help jailhouse lawyers filing FOIA lawsuits. The names of several
organizations that will advise, though usually not represent, FOIA litigants can be found in Appendix D of this Chapter.
49. This procedure was adopted in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
50. N.Y. Pub. Off. Law §§ 84–90 (McKinney 2001 & Supp. 2004).
“designed to make available to the public all documents generated by, and in the possession of, the
government unless a compelling reason requires their confidentiality.”51
FOIL provides that governmental agencies shall make rules and regulations enabling the public to
access agency records.52 The law also provides for certain exceptions to the general rule of public access,
which closely follow the exceptions to the federal FOIA.53 The FOIL exemptions are54
(1) Records that are specifically exempted from disclosure by other state or federal statutes. For
example, personnel records of corrections officers and police officers that are “used to evaluate
performance toward continued employment or promotion” are protected from disclosure under N.Y.
Civil Rights Law Section 50-a;55
(2) Records that, if disclosed, would constitute an unwarranted invasion of personal privacy under the
provisions of subsection 89(2) of FOIL. Under Section 89, employment, medical or credit history, or
information of a personal nature reported in confidence to an agency and not relevant to the ordinary
work of such agency is exempt from disclosure under FOIL;56
(3) Records that, if disclosed, would impair present or imminent contract awards or collective bargaining
negotiations;
(4) Trade secrets submitted to an agency by a commercial enterprise or derived from information
obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the
competitive position of the subject enterprise;
(5) Records made or gathered for law enforcement purposes and which, if disclosed, would interfere with
law enforcement investigations or judicial proceedings. For example, evidence seized from a crime
scene may be properly exempted from disclosure because the evidence may identify a confidential
source or reveal “non-routine” techniques or procedures relating to a criminal investigation.
Disclosure is also restricted where it would deprive a person of the right to a fair trial;57
(6) Records that, if disclosed, would endanger the life or safety of any person, including another
prisoner, prison official, or a member of the general public. For this reason, records that would
jeopardize prison security, such as a list of correctional records and the location of such records may
be excluded from disclosure;58
(7) Inter-agency or intra-agency materials that are agency proposals, recommendations, deliberations,
opinions, evaluations, or other agency materials that do not constitute factual information,
instructions to staff that affect the public, final agency policy determinations, or external audits;59
(8) Examination questions or answers that are requested prior to the final administration of such
questions;
(9) Records that, if disclosed, would jeopardize the security of an agency’s information technology assets,
including its computer systems; and

51. Ralph J. Marino, The New York Freedom of Information Law, 43 Fordham L. Rev. 83, 83 (1974). Senator
Marino was the Senate sponsor of the law; see also N.Y. Pub. Off. Law § 84 (McKinney 2001 & Supp. 2007).
52. N.Y. Pub. Off. Law § 87(1)(b) (McKinney 2001 & Supp. 2007).
53. N.Y. Pub. Off. Law § 87(2) (McKinney 2001 & Supp. 2007).
54. N.Y. Pub. Off. Law § 87(2) (McKinney 2001 & Supp. 2007).
55. N.Y. Civ. Rights Law § 50-a(1) (McKinney 1992).
56. N.Y. Pub. Off. Law § 89(2)(b)(i), (v) (McKinney 2001 & Supp. 2007).
57. N.Y. Pub. Off. Law § 96(2)(d) (McKinney 2001 & Supp. 2007).
58. See Fournier v. Fish, 83 A.D.2d 979, 979, 442 N.Y.S.2d 823, 824 (3d Dept. 1981) (holding that correctional
facility had properly excluded from its subject matter lists of records kept by the Department of Correctional Services
and records kept by the correctional facility, specifically information relating to the exact location in prison facility of
documents requested, on basis that disclosure would jeopardize prison security); Lonski v. Kelly, 149 A.D.2d 977, 977–
78, 540 N.Y.S.2d 114, 114 (4th Dept. 1989) (finding that a videotape showing a prisoner’s transfer to a special housing
unit could not be released because it revealed the geographical layout of the unit and disclosed identities of prisoners
and offices, and therefore could “endanger the life or safety” of the people involved); Buffalo Broad. Co., Inc. v. N.Y. State
Dep’t of Corr. Servs., 155 A.D.2d 106, 112–13, 552 N.Y.S.2d 712, 715 (3d Dept. 1990) (holding that state correctional
facilities could properly be required to disclose videotapes, but could, subject to judicial approval, delete parts to satisfy
concerns regarding interference with criminal prosecutions, personal privacy, and institutional safety concerns).
59. See, e.g., Russo v. Nassau County Cmty. Coll., 81 N.Y.2d 690, 699, 623 N.E.2d 15, 19, 603 N.Y.S.2d 294, 298
(2d Dept. 1993) (finding “inter-agency or intra-agency materials” to mean communications exchanged for discussion
purposes, but not communications constituting final policy decisions); see also Miracle Mile Assocs. v. Yudelson, 68
A.D.2d 176, 183, 417 N.Y.S.2d 142, 147 (4th Dept. 1979) (holding that developer seeking city documents was improperly
denied access to materials that did not contain any advice or opinion which was part of an agency’s deliberative process,
but rather were materials stating or reflecting an agency’s final determination).
 (10) Records that are photographs, microphotographs, videotape or other recorded images prepared
under authority of Section 1111-a of the vehicle and traffic law.60
The law also requires that certain records be kept. For example, each agency must keep a reasonably
detailed list, by subject matter, of all records in its possession.61 This requirement ensures that you will be
able to find out what kinds of records exist so that you may decide if you need a copy of them.
(b) Freedom of Information and the Department of Correctional Services
The Department of Correctional Services (“DOCS”) has issued regulations to comply with FOIL.62 These
regulations set forth the DOCS rules about what types of records you may obtain, as well as the procedures
you can use to get those records. Where the DOCS regulations conflict with FOIL, FOIL applies. In other
words, DOCS regulations cannot keep you from obtaining information that FOIL permits you to obtain.
Procedures for obtaining each type of record available under the DOCS regulations are described in more
detail in Part C(3) of this Chapter.
2. General Procedure to Obtain Access to Records
Requests to obtain access to records must be in writing and must reasonably describe the record sought.
Whenever possible, the request should include the title, file number, and date of the record, as well as any
other details that may help to locate and identify it. In Konigsberg v. Coughlin, the New York State Supreme
Court held that a prisoner’s request for “any and all files or records kept on me” was a reasonable
description. In that case, however, the prisoner records coordinator collected around 2,300 pages of records.63
Because you may be charged for the records sought, it is in your best interest to be as specific as possible
when describing the records you want. Always include your name, address, New York identification number,
and inmate number in your request. Keep a copy of your request letter. If you are requesting records
regarding a specific incident, include the exact date and location (address if possible) of the incident.64 A
sample FOIL request letter that you can use is included in Appendix C-3.
Within five business days after receiving a request for a DOCS record, the state must determine if the
record is in state custody, unless it is a medical record, in which case the state has ten days to respond.65 The
custodian/records access officer should send you acknowledgment of receipt of your request and notification
of the approximate date when your request will be granted or denied.66 If the record is not found after a
diligent search, the custodian must indicate that the record cannot be found, is in the custody of another
specified agency, does not exist.67 If the agency you have written has the record, the custodian must either:
(1) deny your request for access under the exemption(s) specified under FOIL Section 87(2); (2) produce the
record for inspection at the agency office; (3) advise you that the record is in custody and make
arrangements for copying and payment of fees at a later date; (4) mail you copies upon payment; or (5)
provide you with the information in the record instead of making a copy if you so agree.68 As a practical
matter, it may take much longer than five business days before you receive a response to your request.
If the agency cannot locate the records you requested, then the agency must provide proof that it
conducted a “diligent search” for the records.69 You may ask the custodian for a written certification of that

60. N.Y. Veh. & Traf. Law § 1111-a (McKinney 2006 & Supp. 2007).
61. N.Y. Pub. Off. Law § 87(3)(c) (McKinney 2001 & Supp. 2004).
62. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 5 et seq. (2005). The N.Y. Comp. Codes R. & Regs. contains rules and
regulations issued pursuant to laws passed by the Legislature. Title 7 covers the regulations issued by the Department
of Correctional Services. See also N.Y. State Dep’t of Corr. Servs. Directive # 2010, Nov. 18, 2003 (issuing the regulations
found in Title 7). The New York State Division of Parole has issued similar regulations covering its parole records. These
regulations can be found at N.Y. Comp. Codes R. & Regs. tit. 9, §§ 8000.5, 8008 (2001); see also Part C(3)(d) of this
Chapter for a discussion of how to obtain parole records.
63. Konigsberg v. Coughlin, 68 N.Y.2d 245, 247, 501 N.E.2d 1, 2, 508 N.Y.S.2d 393, 394 (1986).
64. See Cromwell v. Ward, 183 A.D.2d 459, 463, 584 N.Y.S.2d 295, 297 (1st Dept. 1992) (noting the importance of
identifying the specific dates and locations of incidents).
65. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(a) (2007).
66. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(b) (2007).
67. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(c) (2007).
68. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(d) (2007).
69. See Key v. Hynes, 205 A.D.2d 779, 781, 613 N.Y.S.2d 926, 928 (2d Dept. 1994) (holding that the allegations
made on information and belief that prosecutor’s office did not have the report that prisoner had requested was
insufficient, since entirely conclusory statements do not constitute evidentiary proof), overruled by Rattley v. New York
proof. If any part of the records arrives deleted, or if your entire request is denied, the agency must provide
you with a reason in writing and tell you that you have a right to appeal.70
While there are no fees for the agency’s searching for the records or for making the records available for
inspection, DOCS does charge fees for the photocopying of records. The current fee for photocopies of DOCS
records is twenty-five cents ($.25) per page not exceeding nine inches by fourteen inches in size.71 DOCS
may, at its discretion, provide the records along with a bill for the fees due, require assurance of payment
before the copies are delivered, or require payment before delivering the copies to you. Any fees you owe for
photocopying may be waived at the discretion of the custodian of the records. You should consider asking in
your request that you be notified before your request is filled if there will be fees (or to limit the request to
within a specific dollar amount in fees). The sample FOIL request letter in Appendix C-3 contains wording
like this which you can use to prevent being billed for unexpected fees.
If you are denied access to a record, you can appeal the denial to Counsel of the Department of
Correctional Services. 72 The FOIL provides that you must appeal all denials within thirty days. 73 This
appeal must be in writing and must contain your name and address, the date of your request, the specific
record requested, the place of request if not DOCS, the date of the denial, and, if known, the person denying
your request. A sample FOIL appeal letter that you can use is included in Appendix C-4. Send the appeal to:
Counsel, New York State Department of Correctional Services
1220 Washington Avenue, Building No. 2
State Campus
Albany, NY 12226
(518) 457–4951
The Counsel for the Department of Correctional Services has ten business days to review the issue after
receiving your appeal. He must allow access to the record or explain in writing the reason for the denial.
Again, as a practical matter, it may take much longer to receive a response. If you do not receive a response
from Counsel, you may go directly to court for review of the denial.
You may bring a legal proceeding for review of such denial74 under Article 78 of the New York Civil
Practice Law and Rules.75 JLM Chapter 22 discusses how to file an Article 78 petition. You must, however,
exhaust all administrative remedies before turning to the courts for relief. If your request for agency records
is denied, follow the appeal procedure of that agency. For example, if your request for DOCS records is
denied, you must appeal to DOCS Counsel before bringing your Article 78 petition to challenge the denial.76
3. Procedures to Obtain Copies of Indices, Medical Records, Administrative
Records, Parole Records, Criminal History Records & Inmate Records
(a) The Index
The Department of Correctional Services must keep an index, which is a reasonably detailed, current
list, organized by subject matter, of all records in its possession. The master index may enable you to
determine the title or name of the record containing the information you want. Because all indices contain
subject-matter references, the index may be helpful if you want a copy of an administrative memorandum
but are unable to identify the particular record you want. To obtain a copy of the master index, write to:
Deputy Commissioner for Administration
New York Department of Correctional Services

City Police Dep’t, 96 N.Y.2d 873, 875, 756 N.E.2d 56, 58, 730 N.Y.S. 2d 768, 770 (2d Cir. 2001) (holding that Public
Officers Law § 89(3) does not specify the manner in which an agency must certify that documents cannot be located, and
therefore that the Police Department’s statement that it had conducted a diligent search for the documents it could not
locate met the certification requirement).
70. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.35(e) (2007).
71. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.36 (2007). As noted in the section on medical records, the fee for
medical records is fifty cents per page.
72. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.45 (2007).
73. N.Y. Pub. Off. Law § 89(4)(a) (McKinney 2001).
74. N.Y. Pub. Off. Law § 89(4)(b) (McKinney 2001).
75. N.Y.C.P.L.R. 7801 et seq. (McKinney 1994).
76 . See Sommer v. Jones, 96 A.D.2d 624, 624, 464 N.Y.S.2d 879, 880 (3d Dept. 1983) (holding that the
administrative remedies provided under sections 5.20, 5.50, 5.51, and 5.52 of the New York Codes, Rules and
Regulations must be exhausted before the prisoner can ask a court to review the case).
 1220 Washington Avenue, Building No. 2
State Campus
Albany, NY 12226–2050
Each prison is required to keep a master index of its documents. To obtain a copy of your prison’s master
index, you should write to the prison Superintendent or Director, or the prison “inmate records coordinator,”
if one has been designated. Note that no prison is required to keep an index of records on individual
prisoners. If you want to obtain indices of records of an agency other than the DOCS (for instance, you may
want a city or county corrections department’s index), you should call or write that agency’s Freedom of
Information Officer (sometimes called a “Records Access Officer”) to request a copy.
The current fee for a copy of the index is twenty-five cents ($.25) per page for photocopies not larger than
nine inches by fourteen inches in size.77 If you cannot pay to copy the index, you should say in your request
that you are a prisoner and unable to pay the fee. Any custodian of records has the authority to excuse you
from paying the fee or some portion of it. It has been the practice to allow prisoners to obtain copies of the
master index free of charge. Once the fee is paid or waived, a copy of the index will be sent to you.
D. Medical/Health Records
You may wish to get a copy of your medical records (DOCS uses the term “health records”). DOCS has
established a separate policy for prisoners to access their health records. This means that FOIL is not the
way to acquire copies of these records. Instead, health records are handled by a different set of procedures
that are described within this Subsection.78 For more information about how to request your health records,
you should consult the DOCS Division of Health Services’ Health Services Policy Manual Section 4.10 or ask
your institution’s Nurse Administrator.
Health records are defined as any departmental records created or received by a health care provider,
including information on an individual’s past, present, or future physical health, mental health, or a
condition. This includes information received from another provider about a prior examination or treatment
of a patient. Health records do not include substance or alcohol abuse records, or mental health records.
Generally, a New York State prisoner can obtain a copy of his medical records by submitting a request to
the Nurse Administrator, designated as the “record access officer” for health records. If you are at a Regional
Medical Unit, make the request to the Health Information Management Technician.79 All requests must be
in writing, signed and dated. Health record copies cost fifty cents per page; in addition, you may be charged
for the labor it takes to find and copy the health record, at a cost of $3.25 for every fifteen minutes of labor.
Even if access to part of your health record is denied, the rest of the record must be provided. In
addition, you will receive a written explanation for the denial, as well as notice about how to appeal the
denial. According to the manual, where confidentiality and safety concerns prevent the release of your
health record, the decision not to release this information is not reviewable.80 However, other concerns that
lead a health care provider to deny you information are reviewable. To appeal the denial, you should notify
the Facility Health Services Director in writing. The Director will review the appeal and rule on it within
thirty days.81 Once a decision has been made, you will be notified in writing. If a decision is made to deny the
appeal, you may make a complaint to the HIPAA Privacy Officer. If you have a complaint about your
attempts to get access to, release of, or disclosure of your health records, you should contact the Nurse
Administrator or file a grievance through the Inmate Grievance Program. Chapter 15 of the JLM has
information about prisoner grievance procedures.
E. Administrative Records
Administrative records are the memoranda and directives that describe DOCS policies. They may also
include manuals and rulebooks for DOCS employees, as well as Inmate Grievance Committee decisions. To
obtain a copy of the DOCS administrative records, send a written request to:82

77. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.36 (2007).

78. FOIL is the proper way to request health services policies and documentation, but not to get copies of your
health records. See N.Y.S. Dep’t of Corr. Serv. Div. of Health Serv., Health Service Policy Manual § 4.10 (2003).
79. N.Y.S. Dep’t of Corr. Servs. Div. of Health Serv., Health Service Policy Manual § 4.10 (2003).
80. N.Y.S. Dep’t of Corr. Servs. Div. of Health Serv., Health Service Policy Manual § 4.10 (2003).
81. N.Y.S. Dep’t of Corr. Servs. Div. of Health Serv., Health Service Policy Manual § 4.10 (2003).
82. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.11 (2007).
 Records Access Officer
Department of Correctional Services
1220 Washington Avenue, Building No. 2
Albany, NY 12226–2050
F. Parole Records
The New York State Division of Parole keeps records on every prisoner eligible for parole or parole
release. If you are parole-eligible, your case record, maintained by your “street” parole officer, will contain a
comprehensive set of the records the Division of Parole maintains about you.83 Parole regulations provide
that the Division of Parole will only grant you access to those records prior to (1) a scheduled appearance
before the Board; (2) a scheduled appearance before an authorized hearing officer; or (3) the filing of an
administrative appeal of a final decision of the Board.84 Also, you will only be allowed to see the portions of
the record that will be considered by the Board or hearing officer during your appearance or hearing.85
To make a request for those parts of your case record that you are allowed to see, write to the senior
parole officer at your prison, or the area parole office that serves the area where your institution is located.86
Your letter should include (1) your name and identification number; (2) whether you have a release
interview, revocation hearing, or appeal pending; (3) the prison or jail in which you are confined; (4) and
your signature.87 Explain in the letter that in order to prepare for your upcoming hearing or appeal, you
want to review all of the information in your file that will be considered by the Board of Parole. Your request
must be received at least ten days before the scheduled date of a final revocation hearing or the final date to
perfect an administrative appeal, and at most one day subsequent to receiving notice of the scheduled date of
any other hearing.88 The fee for requested copies of parole records is twenty-five cents ($.25) per page.89
For more information on parole records and procedures, refer to Chapter 36 of the JLM on Parole.
G. Criminal History Records90
A prisoner’s criminal history record is filed with the Division of Criminal Justice Services (“DCJS”). The
procedure for obtaining these records varies slightly from other records. 91 A written request for your
criminal history data should include your name, any other name you may have used or may be known by,
your birth date, your DIN (Department of Corrections “Department Identification Number”), and, if you
have it, your NYSID (“New York State Identification Number”). In addition, it is helpful to include your race,
sex, and Social Security number. You must also state in your request how long you will be incarcerated. If
you will be incarcerated for less than forty-five days, DCJS will not send you a copy of your criminal history
record. DCJS will send current prisoners a copy of their record free of charge.
There may be forms available in your prison library that you can use instead of writing your own written
request. Your request should be sent to:
Division of Criminal Justice Services
Record Review Unit
4 Tower Place

83. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 8000.5(a)–(b) (2007). Your case record may contain the following
information about you: a complete statement of the crime(s), the circumstances of each crime, all pre-sentence
memoranda, the nature of the sentence, the sentencing court, the name of the judge and district attorney, reports as to
your social, physical, mental, and psychiatric condition and history, and probation reports.
84. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(5)–(6) (2007).
85. Access is further restricted by content. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 8000.5(c)(2)(i) (2007).
86. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(3) (2007).
87. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(8) (2007).
88. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(3)(ii) (2007).
89. N.Y. Comp. Codes R. & Regs. tit. 9, § 8000.5(c)(7) (2007).
90. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.1 (2007) (providing prisoners the right to review their own criminal
history records and to challenge the accuracy or completeness of the record).
91. The information in this paragraph has been drawn from the Legal Action Center’s “How to Get and Clean Up
Your New York State Rap Sheet,” which can be found online at http://www.lac.org/pubs/gratis/NYS_Rap_Sheet_Final.pdf
(7th ed. 2007) (last visited Mar. 10, 2008). The Legal Action Center also publishes versions of this guide for California,
Illinois, Pennsylvania, and Virginia. These can be found at http://www.lac.org/pubs/gratis/crimjus.html (last visited Mar.
10, 2008). Contact information for the Legal Action Center can be found in Appendix D-1.
 Albany, NY 12203
(518) 485–7675
If, after reviewing your criminal history data, you find it is inaccurate or incomplete, you may challenge
the errors.92 To correct your file you must submit a “Statement of Challenge” to the DCJS, in which you
must identify the specific information that you believe is incorrect and include any documentation or proof.93
Also, be sure to list any other agencies that may have the erroneous data.94 A blank Statement of Challenge
form should be included with the copy of your criminal history record that you have received.
DCJS will review your file within a reasonable time period after receiving your “Statement of Challenge”
form and any supporting documentation.95 DCJS will check the errors you pointed out in your form against
the records kept by the Director of the Bureau of Identification and Criminal History Operations (“BICHO”).
If it finds that you are right about the errors, DCJS will make the necessary corrections to your file and will
notify you in writing of those corrections.96 DCJS also will forward the corrections to agencies listed on the
“Statement of Challenge” form.97 If it does not agree with your challenge after checking the BICHO records,
DCJS will notify you in writing. You may appeal a negative finding by BICHO by notifying the
Commissioner of DCJS in writing within a reasonable time period after receiving notification from DCJS.
Within a reasonable time after receiving your request, the Commissioner will notify you of the result of your
appeal and order any appropriate corrections to be made.98
H. Inmate Records
New York State prisoners can also gain limited access to their inmate records. An inmate record includes
the documents in a prisoner’s central office folder (or institutional folder); it does not include medical
records.99 The regulations give you access to your “personal history” and “correctional supervision history
data.”100 Your personal history records contain information like your age, date of birth, birthplace, city of
prior residence, occupation, physical description, correctional facilities in which you have been incarcerated,
commitment information, and departmental actions about your sentence, and release or re-imprisonment.101
Your correctional supervision history data record contains records of disciplinary charges and
dispositions, good behavior allowance reports, warrants and cancellations of warrants, legal papers, court
orders, transportation orders, records of institutional transfers and changes in program assignments, reports
of injury to prisoners, and property records, including the personal property list and postage account card.102
If you would like access to these records, you should request them from your assigned counselor, who
serves as the “records access officer.”103 If you disagree with a decision not to release a part of your record,
you may appeal to Counsel of the Department of Correctional Services. If the appeal is denied, you may then
challenge it in court with an Article 78 petition. JLM Chapter 22 tells you how to file an Article 78 petition.
It is often easier to get records than the regulations suggest. There is now a presumption that all records
should be available for public inspection except those specifically excluded. Furthermore, the agency has the
burden of proving that a record should be excluded.104 The courts have held that public disclosure laws are to
be read broadly,105 and statutory exemptions from disclosure read narrowly, to allow maximum access.106

92. N.Y. Comp. Codes R. & Regs. tit. 9, §§ 6050.2(a)–(b) (2007).

93. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.2(a) (2007).
94. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.2(c) (2007).
95. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.2(b) (2007).
96. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.2(b) (2007).
97. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.2(c) (2007).
98. N.Y. Comp. Codes R. & Regs. tit. 9, § 6050.3 (2007).
99. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.5(g) (2007).
100. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.5(g) (2007). For medical records, see Part (C)(3)(b) of this Chapter.
101. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.5(i) (2007).
102. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.5(a) (2007).
103 . N.Y.S. Dep’t of Corr. Servs., Directive No. 2010, Departmental Records 3 (rev. 2006), available at
http://www.docs.state.ny.us/Directives/2010.pdf.
104. N.Y. Pub. Off. Law § 89(4)(b) (McKinney 2001 & Supp. 2007).
105. See, e.g., Burke v. Yudelson, 81 Misc. 2d 870, 878, 368 N.Y.S.2d 779, 787 (Sup. Ct. Monroe County 1975),
aff’d, 51 A.D.2d 673, 673, 378 N.Y.S.2d 165, 166 (4th Dept. 1976) (noting disclosure laws should be liberally construed,
and so the burden of proving a release is not allowed falls on the agency seeking to deny the disclosure request).
106. N.Y. Comp. Codes R. & Regs. tit. 21, § 1401.1(d) (2007) (“[C]onflicts among laws governing public access to
records shall be construed in favor of the widest possible availability of public records.”).
I. Correcting Errors in Your Personal History or Correctional Supervision History Records
Once you have the opportunity to inspect your records, if they contain anything incomplete or
inaccurate, you should tell the custodian of the records. This is the person from whom you received the
records (if they were inmate records, then it should be your counselor).107 You may only correct incorrect
information that appears in your personal history or correctional supervision history.108
Once you have expressed an objection concerning your record, the custodian must, within a reasonable
time, investigate the accuracy and completeness of the information, unless there are reasonable grounds to
believe that your objection is frivolous. 109 If the custodian determines that the disputed information is
incorrect or incomplete, she must make the changes in the record that are necessary. The custodian must
also report the results of the investigation to you and tell you of any changes made to your record no later
than forty-five days after being notified of your objection.110
If you still dispute the accuracy or completeness of the information after investigation and a
determination by the custodian, you may appeal the custodian’s determination to the Inspector General of
the Department of Correctional Services.111 This appeal must be in writing and sent to:
Inspector General, Department of Correctional Services
State Campus, Building No. 2
Albany, NY 12226–2050
The Inspector General can affirm, modify, or reverse the custodian’s determination. He must notify you
within thirty days of the decision in your case.112 If the record is found to be incorrect and is then corrected,
the Department must notify all those who were given the erroneous information and tell them about the
corrected information. 113 You can request that you be given a list of all agencies, individuals, or
organizations that were given the erroneous or incomplete information about you.114
1. The Committee on Open Government
If you have problems obtaining information under New York’s FOIL, you may want to complain to the
Committee on Open Government established by FOIL.115 This committee is charged with monitoring the
program that gives the public access to records. The committee tries to make sure that agencies have
complied with the law, and can also furnish an advisory opinion to any person who wants one. The
committee also has a staff that is responsible for answering any questions about the FOIL. Its address is:
New York State Department of State, Committee on Open Government
41 State St.
Albany, NY 12231
(518) 474–2518
J. Federal Citizen Information Center
If you need help determining which federal agency to contact for your request, write or call the Federal
Citizen Information Center for assistance.
Federal Citizen Information Center
P.O. Box 450
Camby, IN 46113

107. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.50 (2007). On amending your record, see N.Y. Comp. Codes R. & Regs.
tit. 7, §§ 6.8-6.11 (2007).
108. See, e.g., Rowland D. v. Scully, 152 A.D.2d 570, 570, 543 N.Y.S.2d 497, 498 (2d Dept. 1989), aff’d, 76 N.Y.2d
725, 557 N.E.2d 112, 557 N.Y.S.2d 876 (holding that a prisoner was not entitled to examine forms in order to challenge
their accuracy, unless the forms contained information relating to his correctional supervision or personal history).
109. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.51(a) (2007).
110. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.51(b) (2007).
111. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.52 (2007). If the Inspector General decides against you, you may
challenge his decision in court.
112. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.52 (2007).
113. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.54 (2007).
114. N.Y. Comp. Codes R. & Regs. tit. 7, § 5.53 (2007).
115. N.Y. Pub. Off. Law § 87(1)(a) (McKinney 2001 & Supp. 2007).
 Toll free number: 1–800–333–4636
http://fic.info.gov
K. Conclusion
If you would like access to information in government files, there are laws allowing you to ask for
documents from federal and state agencies. If you want records from the federal government, you can file a
FOIA request or a Privacy Act request. If you would like records from a New York state agency, you should
file a request under New York’s Freedom of Information Law (“FOIL”). Appendix A contains citations to
other states’ freedom of information laws. You should direct your request to the agency with the records you
want. Appendix D lists the addresses of some government agencies. Remember: each agency has specific
procedures, so it is important to check to see what information you need to provide in your request.
 APPENDIX A

STATE FREEDOM OF INFORMATION LAWS

Alabama Ala. Code §§ 36-12-40 to 36-12-43 (LexisNexis 2001 & Supp. 2006).
Alaska Alaska Stat. §§ 40.25.100 to 40.25.220 (2006 & Supp. 2007).
Arizona Ariz. Rev. Stat. Ann. §§ 39-121 to 39-126 (2001 & Supp. 2006-2007).
Arkansas Ark. Code Ann. §§ 25-19-101 to 25-19-109 (2002 & Supp. 2007).
California Cal. Gov’t Code §§ 6250 to 6270 (West 1995 & Supp. 2007).
Colorado Colo. Rev. Stat. Ann. §§ 24-72-201 to 24-72-206 (West 2001 & Supp. 2007).
Connecticut Conn. Gen. Stat. Ann. §§ 1-200 to 1-242 (West 2000 & Supp. 2007).
Delaware Del. Code Ann. tit. 29, §§ 10001 to 10005 (2003 & Supp. 2006).
Dist. of Columbia D.C. Code Ann. §§ 2-531 to 2-539 (LexisNexis 2001 & Supp. 2007).
Florida Fla. Stat. Ann. §§ 119.01 to 119.15 (West 2002 & Supp. 2007).
Georgia Ga. Code Ann. §§ 50-18-70 to 50-18-77 (2006 & Supp. 2007).
Hawaii Haw. Rev. Stat. Ann. §§ 92F-1 to 92F-42 (LexisNexis 2007).
Idaho Idaho Code Ann. §§ 9-337 to 9-350 (2004 & Supp. 2007).
Illinois 5 Ill. Comp. Stat. Ann. §§ 140/1 to 140/11 (West 1993 & Supp. 2007).
Indiana Ind. Code Ann. §§ 5-14-3-1 to 5-14-3-10 (LexisNexis 2001 & Supp. 2004).
Iowa Iowa Code Ann. §§ 22.1 to 22.14 (West 2001 & Supp. 2007).
Kansas Kan. Stat. Ann. §§ 45-215 to 45-250 (2000 & Supp. 2007).
Kentucky Ky. Rev. Stat. Ann. §§ 61.870 to 61.884 (LexisNexis 2004 & Supp. 2007).
Louisiana La. Rev. Stat. Ann. §§ 44:1 to 44:41 (2007).
Maine Me. Rev. Stat. Ann. tit. 1, §§ 401 to 410 (1964 & Supp. 2006).
Maryland Md. Code Ann., State Gov’t §§ 10-611 to 10-630 (LexisNexis 2004 & Supp. 2007).
Massachusetts Mass. Ann. Laws ch. 4, § 7(26)(Lexis Nexis 1999) and ch. 66, § 10 (LexisNexis 2002 & Supp.
2007).
Michigan Mich. Comp. Laws Ann. §§ 15.231 to 15.246 (West 2004 & Supp. 2007).
Minnesota Minn. Stat. Ann. §§ 13.03 to 13.04 (West 2000) and 138.17 (West 2005 & Supp. 2007).
Mississippi Miss. Code Ann. §§ 25-61-1 to 25-61-17 (2006 & Supp. 2007).
Missouri Mo. Ann. Stat. §§ 109.180 to 109.190 (West 1997 & Supp. 2007).
Montana Mont. Code Ann. §§ 2-6-101 to 2-6-112 (2006).
Nebraska Neb. Rev. Stat. §§ 84-712 to 84-712.09 (1999 & Supp. 2006).
Nevada Nev. Rev. Stat. Ann. §§ 239.005 to 239.030 (LexisNexis 2005 & Supp. 2005).
New Hampshire N.H. Rev. Stat. Ann. §§ 91-A:1 to 91-A:9 (LexisNexis 2001 & Supp. 2007).
New Jersey N.J. Stat. Ann. §§ 47:1A-1 to 47:1A-13 (West 2003 & Supp. 2007).
New Mexico N.M. Stat. Ann. §§ 14-2-1 to 14-2-12 (LexisNexis 2003 & Supp. 2007).
New York N.Y. Pub. Off. Law §§ 84 to 90 (McKinney 2001 & Supp. 2007).
North Carolina N.C. Gen. Stat. §§ 132-1 to 132-10 (2005).
North Dakota N.D. Cent. Code §§ 44-04-18 to 44-04-19.2 (2001 & Supp. 2007).
Ohio Ohio Rev. Code Ann. §§ 149.43 to 149.44 (West 2002 & Supp. 2007).
Oklahoma Okla. Stat. Ann. tit. 51, §§ 24A.1 to 24A.29 (West 2000 & Supp. 2008).
Oregon Or. Rev. Stat. §§ 192.410 to 192.505 (2005 & Supp. 2007).
Pennsylvania 65 Pa. Cons. Stat. Ann. §§ 66.1 to 66.9 (West 2000 & Supp. 2007).
Rhode Island R.I. Gen. Laws §§ 38-2-1 to 38-2-15 (1997 & Supp. 2007).
South Carolina S.C. Code Ann §§ 30-4-10 to 30-4-165 (1976 & Supp. 2006).
South Dakota S.D. Codified Laws §§ 1-27-1 to 1-27-33 (2004 & Supp. 2007).
Tennessee Tenn. Code Ann. §§ 10-7-503 to 10-7-509 (1999 & Supp. 2006).
Texas Tex. Gov’t Code Ann. §§ 552.001 to 552.029 (Vernon 2004 & Supp. 2007).
Utah Utah Code Ann. §§ 63-2-101 to 63-2-909 (2004 & Supp. 2007).
Vermont Vt. Stat. Ann. tit. 1, §§ 315 to 320 (2003 & Supp. 2007).
Virginia Va. Code Ann. §§ 2.2-3700 to 2.2-3714 (2007).
Washington Wash. Rev. Code Ann. §§ 42.56.001 to 42.56.904 (West 2006 & Supp. 2007).
West Virginia W. Va. Code Ann. §§ 29B-1-1 to 29B-1-7 (LexisNexis 2007 & Supp. 2007).
Wisconsin Wis. Stat. Ann. §§ 19.31 to 19.39 (West 2003 & Supp. 2006).
Wyoming Wyo. Stat. Ann. §§ 16-4-201 to 16-4-205 (2007).
 APPENDIX B

SAMPLE DEPARTMENT OF JUSTICE CERTIFICATION OF IDENTITY FORM116

U.S. Department of Justice Certification of Identity
PRIVACY ACT STATEMENT: In accordance with 28 C.F.R. Section 16.41(d), personal data sufficient
to identify the individuals submitting requests by mail under the Privacy Act of 1974, 5 U.S.C. Section 552a,
is required. The purpose of this solicitation is to ensure that the records of individuals who are the subjects
of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department. Failure to
furnish this information will result in no action being taken on the request. False information on this form
may subject the requester to criminal penalties under 18 U.S.C. Section 1001 and/or 5 U.S.C. Section
552a(i)(3).
Public reporting burden for this collection of information is estimated to average 0.50 hours per
response, including the time for reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collection of information. Suggestions for
reducing this burden may be submitted to Director, Facilities and Administrative Services Staff, Justice
Management Division, U.S. Department of Justice, Washington, DC 20530 and the Office of Information and
Regulatory Affairs, Office of Management and Budget, Public Use Reports Project (1103-0016), Washington,
DC 20503.
Full name of Requester1
Citizenship status2
Social Security Number3
Current Address
Date of Birth
Place of Birth
I declare under penalty of perjury under the laws of the United States of America that the foregoing is
true and correct, and that I am the person named above, and I understand that any falsification of this
statement is punishable under the provision of 18 U.S.C. Section 1001 by a fine of not more than $10,000 or
by imprisonment of not more than five years or both, and that requesting or obtaining and record(s) under
false pretenses is punishable under the provisions of 5 U.S.C. Section 552a(i)(3) by a fine of not more than
$5,000.

Signature4 _________________________________ Date __________

OPTIONAL: Authorization to Release Information to Another Person

This form is also to be completed by a requestor who is authorizing information relating to himself or herself to be released to
another person.
Further, pursuant to 5 U.S.C. § 522a(b), I authorize the U.S. Department of Justice to release any and all information relating
to me to: _________________________________________________
(Print or Type Name)

1 Name of individual who is the subject of the record sought.

2 Individual submitting a request under the Privacy Act of 1974 must be either “a citizen of the United States or an Alien
lawfully admitted for permanent residence,” pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as
Freedom of Information Act requests pursuant to 5 U.S.C. Section 552, rather than Privacy Act requests, for individuals
who are not United States citizens or aliens lawfully admitted for permanent residence.
3 Providing your social security number is voluntary. You are asked to provide your social security number only to

facilitate the identification of records relating to you. Without your social security number, the Department may be
unable to locate any or all records pertaining to you.
4 Signature of individual who is the subject of the record sought.

116. The most up-to-date version of this form is available at http://www.usdoj.gov/oip/forms/cert_ind.pdf.

 APPENDIX C

SAMPLE LETTERS117
C-1. Sample FOIA Request Letter (Federal)
Return Address
Date
Freedom of Information Officer
Name of Agency
Address

Dear Sir or Madam:

This request is made under the Freedom of Information Act (FOIA), 5 U.S.C. Section 552 [and the
Privacy Act 5 U.S.C. Section 552a].
Please send me copies of [here clearly describe the documents you want, such as the names, places, and
period of time about which you are inquiring].
As you know, the Freedom of Information Act provides that if portions of a document are exempt from
release, the remainder must be segregated and disclosed. Therefore, I will expect you to send me all
nonexempt portions of the records which I have requested, and ask that you justify any deletions with
reference to specific exemptions of FOIA. The information requested is not to be used for commercial benefit,
so I do not expect to be charged fees for your review of the material to see if it falls within one of FOIA’s
exemptions.
[Option I]
I promise to pay reasonable search and duplication costs in connection with this request. However, please notify me ahead of
time if you estimate that total fees will exceed $ ______ so I can approve the additional amount.
[Option II]
FOIA provides for the waiver or reduction of search and duplication fees where the “disclosure of the
information is in the public interest because it is likely to contribute significantly to public understanding of
the operations or activities of the government and is not primarily in the commercial interest of the
requester.” This request should be exempt from all fees because [here explain how you intend to distribute
the information you receive, and how those to whom you distribute it will be better informed about the
operations of the government]. If you deny this request, however, please notify me if fees will exceed $______
so I can decide whether to pay the fees or appeal your denial of my request for a waiver.
Sincerely,
[Signature]

117 . Additional sample letters available at http://www.foia.cia.gov/sample_request_letter.asp;

http://www.nfoic.org/foi-center/sample-letters.html#foireq; http://rcfp.org/foiact/apple.html.
C-2. Sample FOIA Appeal Letter (Federal)118
Return Address
Date

Administrator
Name of Agency
Address
To the Administrator:
This is an appeal under the Freedom of Information Act (“FOIA”), 5 U.S.C. Section 552. On [date] I made
a FOIA request to your agency for [brief description of the materials sought]. On [date] your agency denied
my request because [state the ground for denial cited by that agency or that the agency failed to respond
within lawful time limits]. Copies of the correspondence are attached.
Please be informed that I consider the requested material clearly releasable under FOIA and consider
your agency’s policy to be arbitrary and capricious.
[Here insert any arguments in favor of disclosure, if you wish.]
I expect that upon reconsideration, you will reverse the decision to deny my request. However, if you do
deny this appeal, I intend to file a lawsuit to compel disclosure.
Sincerely,
[Signature]

C-3. Sample FOIL Request Letter (New York State)119

Return Address
Date

Records Access Officer

Name of Agency
Address of Agency
City, NY ZIP code

Re: Freedom of Information Law Request

Records Access Officer:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law,
I hereby request records or portions thereof pertaining to __________________ [identify the records in which
you are interested as clearly as possible].
If there are any fees for copying the records requested, please inform me before filling the request
[or: .†.†. please supply the records without informing me if the fees are not in excess of $____].
As you know, the Freedom of Information Law requires that an agency respond to a request within five
business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look
forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me
of the reasons for the denial in writing and provide the name and address of the person or body to whom an
appeal should be directed.
Sincerely,
[Signature]

118 . Additional sample appeal letters available at http://www.nfoic.org/foi-center/sample-letters.html#foiapp;

http://www.fcfp.org/foiact/appb.html.
119. Additional sample FOIL request letters available at htpp://www.dos.state.ny.us/coog/freelaw.html.
C-4. Sample FOIL Appeal Letter (New York State)120
Return Address
Date

Records Access Officer

Name of Agency Official
Appeal Officer
Address of Agency
City, NY ZIP code

Re: Freedom of Information Law Appeal

Dear __________:
I hereby appeal the denial of access regarding my request, which was made on __________ [date] and
sent to __________ [records access officer, name and address of agency].
The records that were denied include:_______________ [list and describe the records that were denied].
As required by the Freedom of Information Law, the head or governing body of an agency, or whomever
is designated to determine appeals, is required to respond within ten business days of the receipt of an
appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as
required by law.
In addition, please be advised that the Freedom of Information Law directs that all appeals and the
determinations that follow be sent to the Committee on Open Government, Department of State, 41 State
Street, Albany, New York 12231.
Sincerely,
[Signature]

C-5. Sample Vaughn Motion121

[Use the proper court caption]
Motion Under Vaughn v. Rosen to Require
Detailed Indexing, Justification, and Itemization
Plaintiff [your name] moves this Court for an order requiring Defendants [name of agency and agency
head] to provide within 30 days of the filing of the Complaint in this action, a detailed justification for
allegations contained in the Defendant’s Answer and previous administrative denial that the requested
documents are exempt from disclosure under the Freedom of Information Act, 5 U.S.C. § 552, including an
itemization and index of the documents claimed to be exempt, correlating specific statements in such
justification with actual portions of the requested documents. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), cert. den., 415 U.S. 977 (1974).
Respectfully Submitted,

[Name of plaintiff or plaintiff’s attorney]

Address

Dated: [date] [city and state]

120. Additional sample appeal letters available at http://www.dos.state.ny.us/coog/freelaw.html.

121 . Additional sample Vaughn Motion available at http://www.rcfp.org/foiact/appd.html. It is difficult to
determine the proper federal court in which to file your Vaughn motion. To find out how to proceed, write or call the
clerk of the federal district court that has jurisdiction over the agency from which you are trying to get information. Most
federal agencies are headquartered in Washington, D.C. The address for the federal district court of D.C. is: Clerk’s
Office, United States District Court for the District of Columbia, 333 Constitution Avenue, N.W., Washington, D.C.
20001. The phone number is (202) 354-3000.
 APPENDIX D

ADDRESSES
D-1. Additional Information & Assistance
American Civil Liberties Union (“ACLU”) Legal Action Center
125 Broad St., 18th Floor 225 Varick Street
New York, NY 10004 New York, NY 10014
Phone: (212) 549–2500 Phone: (212) 243–1313 or
ACLU chapters can give you information about FOIA or Toll free 1–800–223–4044;
“open records” laws, like FOIL, if you are seeking state Fax: (212) 675–0286
or local government records. E-Mail: [email protected]
http://www.lac.org
Freedom of Information Clearinghouse The Legal Action Center publishes the very useful “How
1600 20th Street N.W. to Get and Clean Up Your State Rap Sheet,” with editions
Washington, D.C. 20009 covering New York, California, Illinois, Pennsylvania,
Phone: (202) 588–7790 and Virginia.
http://www.citizen.org/litigation/free_info
The Clearinghouse gives legal and technical assistance to ACLU National Prison Project
public interest groups, journalists, and individual citizens 915 15th Street N.W.
using the laws granting access to information that is held 7th Floor
by the government. Washington, D.C. 20005
Phone: (202) 393–4930
http://www.aclu.org/prison/index.html
The Prison Project will refer prisoners to local aid
groups where requests for information from state
authorities are addressed.

D-2. Federal Government Agencies

Remember, always mark the outside of the envelope, “Freedom of Information Act Request.”
Divisions of the Department of Justice Office of the General Counsel
Civil Rights Division FOIA Unit
Chief, FOIA/PA Branch Department of Justice
Civil Rights Division 5107 Leesburg Pike, Suite 2600
United States Department of Justice Falls Church, VA 22041
950 Pennsylvania Avenue N.W. Phone: (703) 305–0470
NALC Building, Room 311
Washington, D.C. 20530 Office of the Attorney General
Phone: (202) 514–4209 Requests should be addressed to:
Fax: (202) 514–6195 Deputy Director
Office of Information and Privacy
Criminal Division
Department of Justice
Chief, FOIA/PA Unit
Criminal Division 1425 New York Avenue N.W.
Keeney Building, Suite 1127 Suite 11050, Flag Building
Department of Justice Washington, D.C. 20530-0001
Washington, D.C. 20530–0001 (202) 514–FOIA
Phone: (202) 616–0307
Justice Management Division
Drug Enforcement Administration Justice Management Division
Drug Enforcement Administration FOIA/PA Mail Referral Unit
Freedom of Information Operations Unit Department of Justice
Department of Justice Room 114, LOC
700 Army Navy Drive Washington, D.C. 20530–0001
West Building, 6th Floor (301) 583–7354
Arlington, VA 22202 The Justice Management Division can help you
Phone: (202) 307–7596 with questions regarding requests within the
Justice Department, such as which division to
Federal Bureau of Investigation write to, and how to write the request.
Federal Bureau of Investigation Chief
Record/Information Dissemination Section Bureau of Citizenship and Immigration
Records Management Division Services (formerly INS)
Federal Bureau of Investigation Bureau of Citizenship
Department of Justice and Immigration Services
935 Pennsylvania Avenue, N.W. Director
Washington, D.C. 20535–0001 FOIA/PA Program
Phone: (202) 324–5520 (ask for Freedom of 425 Eye Street, N.W., 2nd Floor
Information or FOI/PA) ULLICO Building
Washington, D.C. 20536
United States Parole Commission Phone: (202) 272–8269
FOIA Officer Fax: (202) 514–4310
United States Parole Commission
Department of Justice U.S. Commission on Civil Rights
Suite 420, 5550 Friendship Boulevard U.S. Commission on Civil Rights
Chevy Chase, MD 20815 FOIA Officer
Phone: (301) 492–5959 624 Ninth Street, N.W.
Fax: (301) 492–5563 Washington, D.C. 20425
Phone: (202) 376–7796
Immigration
Requests for the Board of Immigration Appeals Equal Employment Opportunity Commission
(“BIA”), the Office of the Chief Immigration Equal Employment Opportunity Commission
Judge, and the Office of the Chief Legal Counsel/FOIA
Administrative Hearing Officer (OCAHO) 1801 L Street, N.W., 6th Floor
should be addressed to: Washington, D.C. 20507
Executive Office for Immigration Review Phone: (202) 663–4640
Department of Health and Human Services
Department of Health and Human Services
Director, FOIA/Privacy Division
Room 645-F
Hubert H. Humphrey Building
330 C Street S.W., Room 5416
Washington, D.C. 20201
Phone: (202) 690–7453
Fax: (202) 690–8320

Internal Revenue Service

Internal Revenue Service
FOIA Disclosure Manager
Office of Disclosure
1111 Constitution Avenue, N.W.
Washington, D.C. 20224
Phone: (202) 622–6200
A Jailhouse Lawyer’s
Manual

Chapter 8:
Obtaining Information To
Prepare Your Case:
The Process of Discovery

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia Human Rights Law
Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended
as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any
information contained herein is intended to or shall constitute a contract between the JLM and any reader,
and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of
the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at
Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,
because the law changes frequently, we cannot guarantee that all information is current.
 CHAPTER 8

OBTAINING INFORMATION TO PREPARE YOUR CASE: THE PROCESS OF

DISCOVERY*
A. Introduction
This Chapter is an overview of the general rules of discovery. Discovery is the process that allows you to
ask your opponent and other parties for information they possess that you need to present your case. Your
opponent can also use the discovery process to get information from you. Discovery allows you to get
information not only from your opponent but also from other sources, like co-defendants or other potential
witnesses. Discovery usually takes place before the trial begins. In a civil action, the process starts after the
legal papers that begin a suit have been filed. In a criminal action, it generally starts after the defendant has
been arraigned (or brought before the court to plead to the charge brought against him).
Discovery is governed by a fairly complicated set of rules.1 It is important to know the rules because
they: (1) instruct you on how to get the information you need; and (2) inform you of what information you
have to give an opponent to avoid the court penalizing you. The rules tell you how to get information and
limit what information needs to be disclosed. The judge supervises the discovery process in each case.
Discovery rules differ depending on the type of case (civil or criminal) and the type of court (state or
federal) in which you are appearing. Civil discovery is very broad and has relatively few restrictions.
Criminal discovery, on the other hand, is quite different and relatively limited. Regardless of the depth of
treatment given to a particular rule in this Chapter, you must always check the appropriate rule yourself, in
addition to any cases interpreting the rule. You should also Shepardize (or update) the rules and the cases,
since the rules change quite frequently. Chapter 2 of the JLM, “Introduction to Legal Research,” explains
Shepardizing and other methods of legal research.
There are two reasons to be aware of discovery procedures. First, you should use discovery to fully
prepare your case for trial. Second, you must also know how to respond to your opponent’s requests for
information from you. Discovery is a privilege and a responsibility: when you file a suit, you have the right to
information from your opponent but you also must respond to your opponent’s requests for discovery. If you
refuse to comply with proper discovery requests from the other side, your lawsuit may be dismissed.
Discovery is intended to:
(1) narrow and clarify the issues that will be presented to the court;
(2) find out the claims of each party;
(3) find out the important facts and details of your case and your opponent’s case;
(4) obtain testimony from witnesses while their memory is fresh or before they might for some reason
become unable to testify in court; and
(5) eliminate the delay and undue surprise that would occur if each party knew nothing about the other
side’s case until the trial itself.
Once you have completed the discovery process you will know much more about what you will have to
prove and disprove to win your case. You will also know what information you still need to be successful.

* This Chapter was revised by Paula M. McManus and Roslyn R. Morrison based in part on previous versions by Colleen
Romaka, David Lamoreaux, and members of the 1977–78 Columbia Human Rights Law Review.
1. In federal court, the Federal Rules of Civil Procedure (Fed. R. Civ. P.) are used in civil cases, and the Federal
Rules of Criminal Procedure (Fed. R. Crim. P.) are used in criminal cases. New York state court uses the Civil Practice
Law and Rules (N.Y. Civ. Prac. L. & R. or N.Y. C.P.L.R.) in civil cases and the Criminal Procedure Law (N.Y. Crim. Proc.
L.) in criminal cases. N.Y. Crim. Proc. L. is also commonly referred to as C.P.L. Each set of rules contains discovery
procedures for the appropriate type of case. For other states, you can find rules of civil and criminal procedure in the
state’s Annotated Code or Annotated General Statutes. Also, for most states, West or LexisNexis publishes a yearly
volume for the state that contains current rules of civil and criminal procedure. West’s publication is Rule of Court–
State. (For example, if you are looking for information on Connecticut, look to West’s 2007 Connecticut Rules of Court–
State.) LexisNexis’ publication is called Court Rules Annotated. (For example, if you are looking for information on New
Hampshire, look to LexisNexis’ 2007 New Hampshire Court Rules Annotated.) You can often request the volume you
need through inter-library loan if your library does not carry it.
 This Chapter gives you an overview of the discovery rules. Part B addresses the discovery rules for civil
lawsuits, while Part C focuses on the discovery rules for criminal cases. Each of these Parts is further
divided between discovery in federal cases and discovery in state cases.
B. Civil Discovery
C. Introduction
Specific rules of civil procedure govern the various tools of civil discovery.2 They vary depending on
whether you bring your case in federal or state court. 3 The federal rules governing civil discovery are
discussed in Part B(2) of this Chapter; the New York State rules are discussed in Part B(3). Although the
basic ideas are the same, it is important to know the specific rules of the court where you bring your claim.
Otherwise, your case may be dismissed early. Also, individual courts and judges can set their own special
procedural rules. These rules cannot conflict with the law, but you should try to find out if your judge has a
special system you should follow. You can do this by writing to the clerk of the court. The addresses of the
federal and state courts in New York are listed in Appendices I and II at the end of the JLM.
There is no required form for filing a discovery request, but you should state clearly the information you
are seeking and the rule under which you are making your request. Many legal formbooks contain examples
of the many different types of discovery requests.4 Selected federal forms are provided in the Appendix at the
end of this Chapter. Do not tear them out of the book; you must copy them on your own paper and insert the
particular information that you need.
D. Federal Discovery Procedures
(a) Introduction
In a civil action in federal court, discovery is governed by the Federal Rules of Civil Procedure, Rules 26–
37.5 The rules are fairly straightforward and should be relatively easy to follow. There is one basic rule to
keep in mind: you should show that any material you seek is reasonably relevant to your case. Courts will not
look kindly on you if you deliberately harass the person you are suing with burdensome requests not
important to the case and requiring him to spend a great deal of time or money answering. The judge may
impose penalties on anyone who abuses the discovery process in this way.6 At the same time, the discovery
rules are usually applied liberally so that all sides may get the information they need to pursue their case.
(b) Scope of Discovery
In a civil action, only information not “privileged” may be discovered. Information that is privileged may
be kept secret. In addition, information must be “relevant” to your case for it to be discoverable.
One category of privileged information is communication between certain people that the law, as a
matter of public policy, wishes to protect by keeping private. Examples of privileged relationships are those
existing between lawyer and client, doctor and patient, priest and confessor, and husband and wife. Any
information given by one person to another within any of these relationships, and meant to be kept
confidential or secret, is considered “privileged.” This means, for example, that if your opponent requested
copies of your personal correspondence, you would not have to give him letters that you wrote to your spouse,
lawyer, etc. Of course, it also means that your opponent can withhold such privileged material from you.
Another category of privileged material, which is often the largest barrier to getting information, is trial
preparation material, also called “attorney work product.”7 The work product rule is complicated and an in-

2. See Fed. R. Civ. P. 26–37 (Depositions and Discovery) (federal courts); N.Y. C.P.L.R., art. 31 (Disclosure) (New
York state courts). These rules of civil procedure also apply to attacks on a conviction after appeal, such as federal or
state habeas corpus petitions, or Article 440 motions in New York. See JLM Chapters 13, 20, and 21 for information on
habeas corpus and Article 440. Note: discovery in habeas proceedings is only available for “good cause.” See Henard v.
Newkirk, 987 F. Supp. 691, 694 (N.D. Ind. 1997) (directing prisoner to show good cause to authorize discovery).
3. Useful summaries of the law governing discovery in federal courts include Charles Alan Wright & Mary Kay
Kane, Law of Federal Courts, 580–647 (6th ed. 2002) and 6, 7 James William Moore, Moore’s Federal Practice 26–37A
(3d ed. 2007).
4. See, e.g., James William Moore, Moore’s Federal Practice 26–37A (3d ed. 2007).
5. Note that habeas corpus rules differ slightly from discovery rules. See Chapter 13 of the JLM, “Federal Habeas
Corpus,” and 28 U.S.C. §§ 2246, 2247 (2000).
6. Fed. R. Civ. P. 37(a)(4)(B). Sanctions are discussed in Part B(2)(f) of this Chapter.
7. The rule protecting attorney work product is also called the “Hickman-Taylor rule” because it is based upon the
depth analysis of it is not included in this Chapter. Briefly, the rule covers information, analysis, arguments,
and opinions prepared by attorneys for trial. Facts may be available if you can show “substantial need”8—
that is, if you cannot get the information anywhere else and it would be unfair if you did not have it—but
your opponent’s lawyer’s opinions and analysis are not available to you through discovery.9
If you feel your opponent has requested privileged material from you, it is your responsibility to show the
court the privilege applies to you. If you refuse to respond to a discovery request because you think the
information is privileged, you must give the reason for the privilege (without giving away the information),
and you must respond to any other discovery requests not calling for privileged material. The court will then
decide your claim of privilege and may order you to turn over the material if it decides it is not privileged.
A second requirement for discovery is that the material must be “relevant” to the case. Information is
relevant when it supports the truth or denial of a point which either side is trying to prove. Imagine, for
example, that you have filed a civil lawsuit for police misconduct at the time of your arrest.10 In proving
misconduct you would have to identify the officer who you feel was abusive. The arrest record directly
supports your proof on this point because it would state the officer’s name. The arrest record would then be
relevant, and you could ask for it in discovery. On the other hand, if you asked for the officer’s high school
report card, that information would probably be irrelevant. If you asked for it and the other side objected,
the judge would probably rule that the report card is not discoverable.
Information is also relevant when it may lead to other relevant information. Even though the
information may be inadmissible at trial because it is “irrelevant” under the rules of evidence, it may still be
discoverable. You may request information if there is any reasonable possibility that it will lead you to
admissible evidence that you can present at trial.11 Still using the police misconduct example above, assume
that you have found out the officer’s name. When suing the officer personally (you would probably also sue
the police department), it would be helpful to know his background. You might then request the names and
addresses of other members of the police department, for example, because these other officers might know
whether the officer has a violent disposition. Since you might find important information showing the
officer’s abusive work practices, you should be able to find out these other officers’ names and possibly
depose them (depositions are discussed in Part B(2)(d)(i) of this Chapter below). Even though you might not
find any useful information or information that is admissible in court, the discovery rules permit you to try
to build your case by following leads that may provide you with relevant information.
(c) Mandatory Discovery: Rule 26
Rule 26 of the Federal Rules of Civil Procedure attempts to ensure a smooth and quick exchange of basic
information between you and your adversary. The rule requires both an early meeting between you and your
adversary and mandatory disclosure of certain information. Below is a brief overview of the rule’s
requirements. But, since the rule is fairly detailed, you should also read over that section of the Federal
Rules if you are involved in a federal civil suit. Also, it is important to note that local courts have the option
of suspending Rule 26 requirements. You should therefore always check with the clerk of the court in order
to determine what your responsibilities are.
Under Rule 26(f), you and your adversary must meet “as soon as practicable” to discuss your case. The
goal of this meeting is to see if there is any possibility of settling and therefore no need to have a trial. In
addition, the Rule requires the parties to create a “discovery plan.” This means you and your opponent need
to make deadlines for discovery. Note that if you have a federal criminal case and are incarcerated, your
attorney will usually draft a motion in which she requests all discovery materials. She will often discuss this
discovery motion with you after your arraignment, either at the courthouse or at the prison facility.

Supreme Court case Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).
8. See, e.g., In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 (2d Cir. 2007) (finding “substantial need”
for the documents requested because they were unique evidence and could not be obtained through other means).
9. You cannot, for example, ask your opponent to tell you in advance the argument that he will make at trial.
Work product privilege is covered in Fed. R. Civ. P. 26(b)(3), to which you should refer if work product protection
becomes an issue in your case.
10. In Mercado v. Division of New York State Police, 989 F. Supp. 521, 523 (S.D.N.Y. 1998), the court held that
N.Y. Civ. Rights L. § 50-a, which says a police officer’s personnel files may only be turned over if the officer consents or if
a judge issues an order requiring the release of these records, does not necessarily apply to discovery in federal litigation.
11. Fed. R. Civ. P. 26(b)(1).
 Within fourteen days after the Rule 26(f) meeting, Rule 26(a)(1)(A) requires that you and your adversary
exchange certain basic information such as the names, addresses, and phone numbers of any persons who
may have discoverable information. Since your adversary is entitled to Rule 26(a)(1) information without
making any particular request of you, you should read this rule carefully to determine what information you
are required to send. Also, you should be familiar with the Rule’s requirements in order to determine
whether your adversary has given you all of the information to which you are entitled. If you or your
adversary plans to call expert witnesses at trial, Rule 26(a)(2) makes such information discoverable and you
should refer to this Rule for the exact information that may be discovered. In addition, Rule 26(a)(3) requires
you and your adversary to inform each other of people you plan to call as witnesses in a trial and to
exchange summaries of any evidence that you plan to introduce at a trial. The exchange of information
under Rule 26(a)(3) must take place at least thirty days before trial.
Lastly, Rule 26(e) requires both parties to voluntarily supplement or correct any information already
exchanged if they later obtain information which makes the initial information either incomplete or
inaccurate. Under Rule 26(g), you must sign and write your address on all information that you supply to
your adversary. By doing so, you indicate that to the best of your knowledge the information is complete and
correct. Also, remember that Rule 26(g) requires you to tell the truth and disclose all information.
(d) Additional Methods of Obtaining Information
(i) Depositions: Rules 27, 28, 30, 31, and 32
In a deposition, a party or any other person who may have useful information is questioned. Depositions
are usually conducted by the attorney for the party who is seeking the information.
Oral depositions take a similar form to the examination of witnesses at a trial. Basically, a meeting is set
up by you or your lawyer with the person you want to depose (the defendant or a potential witness),12 the
opposing lawyer (the other side normally will have one), and a stenographer.13 Under Rule 26(d), depositions
(as well as any other forms of discovery) may be sought only after the initial mandatory meeting between the
parties has taken place, unless the court gives permission. 14 Rule 30(a)(2)(A) limits the number of
depositions each side may take to a maximum of ten. Nevertheless, if you feel that you need to take more
depositions, you may seek the court’s permission. To determine whether to grant your request for more
depositions, the court will look at several factors, including (1) whether the information you are seeking is
unreasonably cumulative or duplicative15 or if it can be obtained more conveniently from another source; (2)
whether you have already had and passed on the opportunity to get the information you are seeking; and (3)
whether the burden or expense of the proposed discovery outweighs its likely benefit.16
At the deposition, you may ask a broad range of questions. Depositions are particularly useful because
they give you the opportunity to obtain an uncoached, spontaneous response from the deponent (the person
being questioned).17 Depositions are often considered the most beneficial form of discovery because they
provide the parties with face-to-face contact, unlike other discovery methods.
The problem with depositions, however, is that they tend to be time-consuming and expensive. If you
depose someone, you must usually hire a stenographer and pay the costs of having the stenographer’s notes
typed out in readable form. Both sides, their attorneys, and the witness must arrange a suitable time and
place for the deposition. Rule 29 of the Federal Rules of Civil Procedure can offer some relief by providing for
the use of stipulations.18 If you and your opponent agree, you can hold the deposition in a place convenient
for you (such as the jail or prison), and you can tape record the deposition instead of hiring a stenographer.

12. The “defendant” (sometimes called “respondent”) is the party being sued. The “plaintiff” (sometimes called
“petitioner”) is the party who filed the papers to bring the suit. The “deponent” is the person questioned in a deposition.
13. The “stenographer” is a professional secretary who types in shorthand everything said during the deposition.
14. Fed. R. Civ. P. 26(d).
15. “Cumulative” refers to discovery requests so broad and including so much material they are difficult or
impossible to fulfill within a reasonable time period. “Duplicative” means discovery requests repeating earlier discovery
requests needlessly. These requests are often made with the goal of making it hard for the other side to meet requests.
16. Fed. R. Civ. P. 26(b)(2)(C).
17. The deponent may not be as well prepared by his attorney as he will be at the trial, and the attorney will not
have an opportunity to review the deponent’s responses before you receive them.
18. A “stipulation” is a written agreement between the parties to a court proceeding which states that they agree
to a certain fact, rule, or way of proceeding.
 If your opponent is unwilling to stipulate to alternative methods of taking a deposition, you can also
make a motion to the court to order him to cooperate.19 Be prepared to show specific reasons for your request
(for example, that you cannot afford a stenographer). Another option is to obtain written depositions. If you
choose to use written depositions, you should refer to Rule 31 for the exact procedure. However, you should
note that the use of written depositions does not allow you to get the face-to-face, un-coached answers which
you can probably get with oral depositions.
(ii) Interrogatories: Rule 33
Interrogatories are written questions that must be answered in writing under oath. Only parties to a
suit (you and your opponent) can be ordered by the court to respond to interrogatories. Unlike depositions,
outside witnesses cannot be ordered to respond to interrogatories. Apart from this important limitation,
interrogatories are a very useful device because they are inexpensive. Rule 33(a) limits the number of
questions each party may ask to twenty-five. Nonetheless, if you feel you need to ask more than twenty-five
questions, you may ask the court for special permission to do so. To determine whether your request should
be granted, the court will consider whether the information you are seeking is unreasonably repetitive,
whether you have already had the opportunity to obtain the information, and whether the burden or expense
of the additional interrogatories would outweigh their likely benefit.20 Interrogatories may be sent as soon as
you and your opponent have attended the mandatory meeting under Rule 26(f). Note that many local courts
and individual judges have their own special rules for handling interrogatories. If you are considering
serving interrogatories, you should check with the clerk of the court to find out if special rules apply to you.
After sending the interrogatories to your opponent, he must answer within thirty days unless there is a
court order stating otherwise, or you and your opponent agree that there should be more or less time
allowed.21 As with depositions, your questions must be relevant to the case, they cannot ask for privileged
material, and they cannot be unduly or unreasonably burdensome to the other side. If you are suing a prison
official for assault, for example, you might ask the following questions in your interrogatory:
(1) Were you on Block 8 at or around 8:00 P.M. on January 30, 1999?
(2) Why were you on Block 8 at 8:00 P.M. on January 30, 1999?
(3) At 8:00 P.M. on January 30, 1999, did you hear any noise coming from the east dayroom?
(4) Did you go inside the east dayroom shortly after 8:00 P.M. on January 30, 1999?
You will notice that in order to obtain specific answers, you will need to ask specific questions. You should be
careful not to phrase your questions in a manner that allows only a “yes” or “no” answer if you want more
information. Questions (1), (3) and (4) above are types of questions that would be answered with only a “yes”
or “no.” But question (2) cannot be answered by a “yes” or “no.”
If you have trouble getting answers to your interrogatories and there is no legitimate reason for your
opponent’s failure to respond (such as a claim that you are seeking privileged or irrelevant information),
then you can submit a motion for an order compelling discovery under Rule 37(a)(2)(B). However, in order
for a court to grant your motion, you must be able to show that, before asking the court for help, you made
every effort to get the answers from your opponent. If the judge does grant your motion, your opponent will
be penalized by the court if he does not respond to your interrogatories. Some judges are reluctant to issue
orders compelling discovery, so you should read the Federal Rules of Civil Procedure closely and prepare an
argument to show why you need the information requested and that you have a right to receive it.
(iii) Production of Documents: Rule 34
Rule 34 of the Federal Rules of Civil Procedure enables you to obtain documents and other physical
objects in your opponent’s possession. Once again, you may only get those materials that are relevant to your
case and are not privileged. Like other forms of discovery, permission of the court is not generally required
and it is assumed by the Rule that the parties will cooperate in disclosing the needed material.
You can request materials after you have met with your opponent under Rule 26(f), or you can ask the
court for permission to request materials sooner. As with interrogatories, there is a thirty-day period in
which to respond. If your opponent refuses to cooperate with a reasonable request, you can file an order to

19. Fed. R. Civ. P. 26(c)(2).

20. Fed. R. Civ. P. 26(b)(2)(C).
21. Fed. R. Civ. P. 33(b)(3).
compel discovery under Rule 37(a)(2)(B). If your opponent does not comply with the order, you can make a
motion asking the court to sanction your opponent under Rule 37(b).22
A request for production must describe the name and date of each document or object as specifically as
possible. You should try to find out as much as you can about the documents or objects your opponent has
that might be useful to you. Note: when prison officials provide documents in discovery, they often “redact,”
or blacken out, information they think is secret or sensitive. If you think your opponent is hiding information
you need and are entitled to see, you can move for an order compelling discovery under Rule 37(a)(2)(B).
Remember that Rule 34 does not limit you to requesting documents that might be found in an official
file; you can ask for books, accounts, memoranda, letters, photographs, charts, physical evidence, or any
other object you can describe specifically. It is possible that you might request such a large volume of
material that it is only feasible for your opponent to send you copies. In that case, you should be prepared to
pay copying costs or ask the court to pay them under a poor person’s order.23
(iv) Subpoenas: Rule 45
Rule 45 allows you to compel witnesses who are not parties to the suit to attend a deposition or trial. You
can also ask the witness to bring with them documents or other discoverable materials that fall under Rule
34. A subpoena to a third party to produce such material is often called a subpoena duces tecum. If you serve
a subpoena on a third party—either to testify or to produce documents—and the party refuses, the court may
hold that party in contempt for failure to comply. In order to file a subpoena, you must obtain a form by
writing to the clerk of the court.
(v) Admissions: Rule 36
Rule 36 is a convenient tool allowing you to serve a written “request for admission” to your opponent.
You do not need the court’s permission to serve this request but you must wait until after you attend the
Rule 26(f) meeting with your opponent. The form of a request for admission is similar to an interrogatory,
except that you must prepare a list of statements for your opponent to admit or deny. The court will consider
the statements admitted unless your opponent submits a written denial within thirty days.
Here are some statements that you might include in a request for admission, using the prison assault
example presented earlier in Section B(2) of this chapter:
(1) Admit that you were in Block 8 at 8:00 P.M. on January 30, 1999.
(2) Admit that you heard noises coming from the east dayroom at 8:00 P.M. on that evening.
(3) Admit that you went inside the east dayroom shortly after 8:00 P.M. on that evening.
(4) Admit that the attached copy of the incident report is a true and accurate copy of the original on file.
Note that in requests for admission, you cannot make open-ended information requests, like in question
(2) of the interrogatory examples in Part B(2)(d)(ii) above.24 Also, requests for admission under the Federal
Rules are intended primarily to resolve issues that are preliminary, incidental, or without substantial
disagreement. If you ask your opponent to admit a fact that presents a “genuine issue for trial,” he must
respond but may deny the matter until evidence is presented. But, Rule 37(c)(2) states if you prove a fact
your opponent has refused to admit, your opponent may be required to pay some of your attorney’s fees.
(e) Duty to Disclose
Both parties have the right to discover important information from the other side, and both parties have
the responsibility to cooperate in making discoverable material available. If you believe, however, that your
opponent has made an unreasonable discovery request of you—for example, one that asks for privileged
information or that is meant to intimidate you or needlessly consume your time and money—you can move
for a protective order under Rule 26(c) instead of preparing a response to the request.
In a motion for a protective order, you must give the judge a good reason why your opponent’s request for
information was improper or unreasonable. You must also show that you have made every effort to resolve

22. A sanction is a penalty or punitive measure that results from one’s failure to comply with a law, rule, or order.
See Black’s Law Dictionary (8th ed. 2004). Usually, sanctions are monetary fines, but they can also be imprisonment or
dismissal of a lawsuit.
23. A poor person’s order is a statement signed under oath and submitted to the court that requests a waiver of
court costs and states that the applicant is financially unable to pay.
24. “Why were you on Block 8 at 8:00 P.M. on January 30, 1999?”
this issue with your opponent before you sought help from the court (for example, you told your opponent
that you thought his request was unreasonable and he refused to make any changes). If the judge grants a
protective order, your opponent’s request will either be thrown out (in which case you will not have to
respond) or be limited (in which case you will only have to respond to part of the request).
(f) Sanctions: Rule 37
Rule 37 allows the court to issue sanctions (monetary fines) against any person who fails to comply with
the rules of discovery. This provides a way for the court to enforce discovery rules.
If your opponent has not responded to your request for discovery and you have made every effort to get
him to respond, you can move for an order compelling your opponent to comply with your request. If your
motion is granted but your opponent still does not comply, the court may hold your opponent in contempt of
court, and your opponent may face fines or even imprisonment. If the plaintiff refuses to comply with
discovery requests, the court may dismiss the lawsuit. All of these punishments are available under Rule 37.
Often, parties will be encouraged to comply with discovery requests if they find out that their opponent has
moved for sanctions.
E. New York Discovery Procedure
Introduction
For the most part, the rules governing discovery procedures in civil suits brought in New York state
courts are similar to the federal rules discussed above. The following is a brief description of the New York
statutes, noting some of the differences between the federal and New York state rules. If you have a case in a
New York state court, you will need to carefully examine both these rules and the cases that apply them.
This Section should help you get started.25
New York statutes use the term “disclosure” instead of “discovery,” but the procedures are basically the
same. The statutes governing disclosure are contained in Article 31 of the New York Civil Practice Law and
Rules (“N.Y. C.P.L.R.”).
A major difference between New York disclosure and federal discovery is that under the New York rules,
parties are not required to meet or give out information voluntarily.26 As a result, you must request any
information that you want from your opponent, and vice-versa. Also, you and your opponent do not need to
wait until after you meet to begin making requests for information. Generally, information can be requested
after a complaint is filed, but only after the defendant has responded or the time period for the defendant’s
response has expired, whichever comes sooner.
Another difference between the two systems of discovery lies in how to deal with difficulties that arise
during the discovery process. Under N.Y. C.P.L.R. 3104, you may request that the court appoint a referee to
oversee the process. This may be helpful if you have difficulty getting your opponent to cooperate. But if you
make this request, the court has the option of requiring you to pay the referee’s expenses. If you are thinking
about this option, you may wish to write to the clerk of the court to see how your particular judge generally
handles such situations. You should keep in mind the provisions for and costs of getting language
translation. According to N.Y. C.P.L.R. 3114, if a witness does not understand English, translation must be
provided to that person for all questions and answers. The cost of this translation must be paid by the party
seeking the information. If you need information from a person who needs a translator but you cannot pay
for this, you should check with the court to see if you have other options.
Methods of Obtaining Information
(i) Depositions
Depositions in New York state court require twenty days notice, unless the court orders otherwise.27 A
subpoena is required to depose someone who is not a party to the proceeding.28 The federal rules do not

25. J. Weinstein et. al., New York Civil Practice Law and Rules Manual (2d ed. 1997), provides a great deal of
information on New York civil procedure and disclosure. Its organization follows the structure of the N.Y. C.P.L.R., so
you can simply consult the section of the Weinstein/Korn/Miller Manual that corresponds to the N.Y. C.P.L.R. section
you want to research.
26. For the opposite federal rule, see Fed. R. Civ. P. 26(a).
27. N.Y. C.P.L.R. 3107 (McKinney 2005).
28. N.Y. C.P.L.R. 3106(b) (McKinney 2005).
normally require advance notice or a subpoena. As with the federal rules, any material that is requested
through disclosure in New York courts must be relevant and not privileged. If you are in a situation where
you think information that you want to request, or information requested from you, may be “privileged,” you
should refer to N.Y. C.P.L.R. 3101, which details what types of information are privileged and what
information may be requested through discovery.
Section 3106(c) of the N.Y. C.P.L.R. requires the court’s permission before a deposition can be taken from
a person in prison. This rule affects both parties: it applies if you need to depose a fellow prisoner and/or if
your opponent wishes to depose you. If your opponent does depose you, Section 3116(a) requires that you
read your statement (or have it read to you) after the deposition. At this point you are required to sign your
deposition. However, before you sign, you should feel comfortable that everything in the deposition is true to
the best of your knowledge. If you feel that a change needs to be made, you may write in the change at the
end of the deposition. You must also state the reasons for making the change. Once your deposition is
finished, Section 3101(e) states that you are allowed to keep a copy. It is always a good idea to request a copy
so that you have a record of your testimony.
(ii) Interrogatories
The practice and form for interrogatories is similar to that used in the federal courts; however, some
differences exist. Under New York law, without a court order, a plaintiff may not serve a defendant with an
interrogatory until after the time limit for the defendant to answer the plaintiff’s complaint has expired. On
the other hand, a defendant can serve interrogatories on any other party whether or not he has answered the
plaintiff’s complaint. In other words, after receiving the complaint, the defendant may immediately serve an
interrogatory.29 Also in New York, the answering party has only twenty days to answer the interrogatory or
to object to the questions. 30 Finally, unlike the Federal Rules, New York does not limit the number of
interrogatories that may be requested.31
(iii) Requests for Production
In New York, requests for production of documents and other materials are similar to requests in federal
court under Federal Rules of Civil Procedure. New York also allows the discovery of materials in the custody
and control of non-parties, if the court grants permission.32
New York courts require that requests for production are not unduly burdensome. This means you must
know what you are seeking and it must be relevant to the case. Production requests used for “fishing
expeditions” will be thrown out. For example, in Konrad v. 136 East 64th Street Corporation, a New York
court ruled that even though N.Y. C.P.L.R. 3120(2) does not require requested documents to be “specifically”
identified, an overbroad discovery request, without a clear target or focus, would be thrown out.33 The court
noted requests must be relevant and the documents sought described with “reasonable particularity,” not
impose an undue burden, and represent a “fishing expedition.”34 Returning to the prison assault example
earlier in Section B(2)(d) of this chapter, an example of a “fishing expedition” would be a discovery request
for the entire file of every police officer who worked in the precinct in which you were arrested.
(iv) Subpoenas
New York rules regarding subpoenas are very similar to the federal rules. Both allow the subpoena
duces tecum (ordering the witness to appear and to bring specified items), which must be issued by a judge
in certain proceedings.35

29. N.Y. C.P.L.R. 3132 (McKinney 2005).

30. N.Y. C.P.L.R. 3133(a) (McKinney 2005).
31. N.Y. C.P.L.R. 3130(1) (McKinney 2005).
32. N.Y. C.P.L.R. 3111, 3120(1) (McKinney 2005).
33. Konrad v. 136 East 64th Street Corp., 209 A.D.2d 228, 228, 618 N.Y.S.2d 632, 633 (1st Dept. 1994) (finding
that an overbroad discovery request constituted an undue burden).
34. Konrad v. 136 East 64th Street Corp., 209 A.D.2d 228, 228, 618 N.Y.S.2d 632, 633 (1st Dept. 1994) (requiring
that discovery requests be relevant).
35. N.Y. C.P.L.R. 2301–08 (McKinney 1991 & Supp. 2007).
 (v) Admissions
With respect to admissions, the N.Y. C.P.L.R. follows the federal rules closely. 36 A request for an
admission may be served by the plaintiff after the defendant has answered the complaint, but no later than
twenty days before trial. The person receiving a request for admission has twenty days to admit or deny the
allegation or give a detailed explanation of why he cannot admit or deny the allegation.37
(vi) Motions to Compel Disclosure and Sanctions
If you are having difficulty obtaining information to which you are entitled, you may move the court to
compel disclosure under N.Y. C.P.L.R. 3124. If the court grants your motion and your opponent still does not
provide you with the information, the court may impose penalties under N.Y. C.P.L.R. 3126. You should also
keep in mind that N.Y. C.P.L.R. 3101(h) requires all persons to amend or supplement information they have
submitted if at any time they obtain or remember new information that makes their initial statements
incomplete or wrong. If this requirement is not followed, the court is authorized under N.Y. C.P.L.R. 3101(h)
to make “whatever order may be just.” In some instances, this may mean that the court will not allow into
the trial any evidence concerning the subject matter that should have been supplemented.
Section 3103 of the N.Y. C.P.L.R. allows the court to issue orders “designed to prevent unreasonable
annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” If you
feel your opponent obtained information improperly,38 you may make a motion to the court under N.Y.
C.P.L.R. 3103(c), and the court may keep that information from being used as evidence at trial.
This is only a brief overview of the New York Rules. Although they are generally similar to the Federal
Rules, if you are suing in a New York state court, be sure to study the relevant sections of the N.Y. C.P.L.R.
noted above before proceeding.
F. Criminal Discovery
The rules governing discovery in a criminal prosecution differ from those that govern a civil proceeding.
In general, discovery in criminal cases is more restrictive and limited.
The following section, Part C(1), discusses criminal discovery in federal cases. It explains that the
prosecution must turn over certain materials to the defendant in all criminal cases under the Sixth
Amendment of the United States Constitution. Part C(2) presents an outline of the discovery rules that
apply in New York criminal cases. Finally, there is a brief note about federal discovery procedures. The New
York rules were modeled on the federal rules. Remember that this part does not treat criminal discovery
rules in detail. If you are involved in a criminal case, you should refer to the applicable rule and research
any cases that apply the rule.
Federal Constitutional Requirements
According to the rule laid down by the U.S. Supreme Court in Brady v. Maryland, a prosecutor may not
refuse a request by the defendant for evidence that is favorable to him and is material either to guilt or to
punishment.39 Suppression of such “exculpatory” evidence (evidence which helps the defendant), even as a
mistake, is unacceptable under Brady.
This does not mean that a prosecutor must disclose all evidence favorable to a defendant. The Brady rule
only requires disclosure of favorable evidence that is crucial to the defendant’s case. Any evidence that is
crucial to proving your innocence must be disclosed as a matter of right. The prosecutor’s failure to reveal

36. See N.Y. C.P.L.R. 3123 (McKinney 2005); Fed. R. Civ. P. 36.
37. N.Y. C.P.L.R. 3123 (McKinney 2005). For a more detailed explanation of an admission, see Part B(2)(d)(v) of
this Chapter.
38. For an example of information obtained in an “improper manner,” see Juskowitz v. Hahn, 56 Misc. 2d 647,
648, 289 N.Y.S.2d 870, 871–72 (Sup. Ct. Nassau County 1968), where the defendant obtained evidence from the plaintiff
without notifying the plaintiff’s attorney. The court, while declining to make a judgment on whether the defendant’s
actions were unethical, decided that the circumstances were sufficient to warrant suppression of the evidence.
39. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963). However, under
Arizona v. Youngblood, if the police lose evidence that is potentially exculpatory, the defendant must show bad faith on
the government’s part in order to prevail in court. Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S. Ct. 333, 337, 102 L.
Ed. 2d 281, 289 (1988).
such evidence may have a number of consequences, including a new trial or the striking of evidence offered
by the prosecution.40
Federal courts have indicated several limitations to the Brady rule. First, the prosecution is only
required to disclose evidence that helps the defendant (“exculpatory evidence”) if it is “material”—that is, if
it would affect the outcome of the trial.41 Withholding “Brady information” may not result in a new trial if
there is enough other evidence to convict the defendant. Furthermore, Brady does not require the
prosecution to turn over evidence the defense knew existed or should have been able to take advantage of
without the help of the prosecution.42 An example of this rule, as applied in federal court, is a situation in
which the prosecution does not give the defense a witness’ pretrial statement, but instead suggests that the
defense may want to interview the witness. Even though the prosecution withheld the statement, it cannot
be said to have “suppressed” the evidence.43
Second, Brady imposes a duty upon the prosecution to turn over evidence that might help to show the
defendant’s innocence, but it does not give the defense “unsupervised authority to search through the
[state’s] files” in search of exculpatory material.44 It is the state that decides which information must be
disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it
to the court’s attention, the prosecutor’s decision not to disclose is final.45
Exculpatory evidence does not have to directly show that the defendant is innocent. It may simply
weaken the prosecution’s case. One example would be material that casts doubt on a witness’ credibility.
This material is called “impeachment evidence.” The prosecution can be required to turn over a witness’
pretrial statements if they are inconsistent with the witness’ in-court testimony, because the defense can use
the pretrial statement to weaken the witness’ testimony.46
You should understand that Brady represents the minimum standard of discovery guaranteed by the
U.S. Constitution in all criminal cases in the United States. Thus, the states are obligated to provide a
criminal defendant with this material, as well. State discovery rules, such as those found in New York, may
supplement this minimum standard and entitle you to more discovery. In a federal case, however,
exculpatory material that must be disclosed under Brady is the only discovery material the government
must provide to a criminal defendant.
G. New York Procedures
(a) Introduction
New York has been at the forefront of a movement to permit criminal defendants freer access to
information. The results have been good. Though criminal defendants are still limited in obtaining
information before trial, the New York legislature has passed a set of laws governing discovery, found under
Article 240 of the New York Criminal Procedure Law (N.Y. Crim. Proc. L.).47 Article 240 is patterned on Rule
16 of the Federal Rules of Criminal Procedure. So, if you run into a discovery problem and find federal cases

40. For specific examples of various applications of the Brady rule, see Marvin Waxner, New York Criminal
Practice §17.03[8] (2d ed. 2005). See also Chapter 13 of the JLM, “Federal Habeas Corpus.”
41. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001, 94 L. Ed. 2d 40, 57 (1987) ) (noting that “the
government has an obligation to turn over evidence in its possession that is both favorable to the accused and material to
guilt or punishment,” and defining “material” to indicate that there is a “reasonable probability” that had that evidence
been disclosed, the result of the proceeding would have been different (citing States v. Bagley, 473 U.S. 667, 678, 105 S.
Ct. 3375, 3381, 87 L. Ed. 2d 481, 491 (1985)).
42. United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (holding that the government was not required to
provide allegedly exculpatory grand jury testimony when the defendant knew or should have known the essential facts).
43. See United States v. Salerno, 868 F.2d 524, 542 (2d Cir. 1989) (rejecting the defendant’s argument that the
government should have had to turn over grand jury testimony of a potential witness when the defendant knew that he
might be interviewed). Note that in New York, witnesses’ pretrial statements must generally be disclosed even if they
are not Brady material. People v. Rosario, 9 N.Y.2d 286, 289, 173 N.E.2d 881, 883, 213 N.Y.S.2d 448, 450 (1961) (finding
that justice entitles the defendant to see a witness’ prior statement “as long as the statement relates to the subject
matter of the witness’ testimony and contains nothing that must be kept confidential”).
44. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 1002, 94 L. Ed. 2d 40, 58 (1987).
45. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 1002, 94 L. Ed. 2d 40, 59 (1987).
46. Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490, 506 (1995) (noting, in discussing
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), that there is no difference between
exculpatory and impeachment evidence for Brady purposes).
47. N.Y. Crim. Proc. L. §§ 240.10–240.90 (McKinney 2002).
interpreting Rule 16 in your favor, the New York state courts usually will consider the case as persuasive
(that is, supportive of your case) for interpreting Article 240.48
A general overview of discovery rules found in Article 240 of the N.Y. Crim. Proc. L. follows. Specific
problems that may arise will require you to refer to the statutory provisions themselves and any
accompanying notes.49
(b) Scope of Discovery
a. Discovery Between the Accused and the Prosecutor
You may request a limited amount of information that is “material” to your case. Article 240 allows you
to inspect, photograph, copy, or test certain types of “property,” 50 like police reports or recordings of
statements.
One type of discoverable material that you may request is any written, recorded, or oral statement you
made to the police or to persons acting under police direction “other than in the course of the criminal
transaction.”51 You are also entitled to similar statements made by a co-defendant who will be tried jointly
with you. This will generally apply where you or a co-defendant have made a statement following arrest. A
statement made at the police station is an example. Notice that this does not cover statements made during
“the criminal transaction”. For example, ordinarily the prosecution is not obligated to turn over copies of
conversations between you and an undercover officer during a drug transaction. An exception exists where
the statement is recorded electronically; if a conversation is recorded on tape, you are entitled to it through
discovery.52 This can be very helpful in setting up certain defenses, such as entrapment. In an entrapment
defense, you need to show that the police induced you to commit a crime you would not have committed if
they had left you alone.
Discovery of any statement made before the criminal transaction began can also be important. Such
evidence might be important in establishing whether you had the motive or intent to commit the crime. For
instance, if you made a statement before a homicide was committed indicating that you hated the victim, it
could be used to prove motive. It is important, then, that you discover any material of this sort if it exists.
Another type of discoverable “property” is a transcript of testimony you or a co-defendant made before a
grand jury.53 A transcript of your testimony could be helpful in revealing any weaknesses in your case
because it could indicate whether you gave any damaging testimony. It might also help you to maintain a
consistent version of your story. If, for instance, you make a statement at trial inconsistent with the
testimony you gave before the grand jury, the prosecution could point this out. This inconsistency could
weaken your credibility with the judge or the jury. You will want to anticipate and, if possible, prevent this.
Article 240 also allows you to discover scientific evidence, 54 such as a written report or document
concerning a physical or mental examination; scientific test or experiment which relates to the crime for
which you are charged; psychological reports; ballistics reports (scientific gun examination that can
determine whether a bullet was fired from a particular gun); drug tests; semen tests; and blood-typing. Tape
or electronic recordings constitute yet another type of discoverable property.55 The prosecutor must disclose
any tape or electronic recording that he intends to introduce at trial if you request such material.
You are also entitled to reports that reveal the approximate date, time, and place of the crime and of the
arrest.56 This information may be useful if you have an alibi. Also you may discover “any other property”

48. People v. Copicotto, 50 N.Y.2d 222, 226, 406 N.E.2d 465, 468, 428 N.Y.S.2d 649, 652 (1980) (stating that the
criminal discovery procedure in Article 240 was adopted from Fed. R. Civ. P. 16).
49. Chapter 17 of Waxner’s New York Criminal Practice also provides helpful information about New York
criminal discovery. Marvin Waxner, New York Criminal Practice (2d. ed. 2005).
50. “Property” is defined as “any existing tangible personal or real property, including, but not limited to, books,
records, reports, memoranda, papers, photographs, tapes or other electronic recordings, articles of clothing, fingerprints,
blood samples, fingernail scrapings or handwriting specimens, but excluding attorneys’ work product.” N.Y. Crim. Proc.
L. § 240.10(3) (McKinney 2002).
51. N.Y. Crim. Proc. L. § 240.20(1)(a) (McKinney 2002).
52. N.Y. Crim. Proc. L. § 240.20(1)(g) (McKinney 2002).
53. N.Y. Crim. Proc. L. § 240.20(1)(b) (McKinney 2002).
54. N.Y. Crim. Proc. L. § 240.20(1)(c) (McKinney 2002).
55. N.Y. Crim. Proc. L. § 240.20(1)(g) (McKinney 2002).
56. N.Y. Crim. Proc. L. § 240.20(1)(i) (McKinney 2002).
obtained from you or a co-defendant.57 This might include weapons, clothing, drugs, tools, cars, or other
items. Discovery of this type of property can help you in preparing your case since it gives you insight into
what the prosecutor is going to present at trial as a means of linking you to the crime.
b. Discovery Between the Accused and Third Parties: Subpoena Duces Tecum
The subpoena duces tecum is a process whereby the court orders a witness to bring documents relevant
to the court proceedings with them when they come to testify. It is frequently used when information is in
the hands of third parties—parties other than the prosecutor (and his staff) and the defendant.58 Article 240
does not allow the prosecutor or defendant to discover third party material by the usual means of a demand
to produce or motion for discovery. Therefore, the subpoena duces tecum is the method used in seeking
disclosure of this material.
In order to obtain a subpoena duces tecum for pretrial discovery purposes under N.Y. Crim. Proc. L.
Section 610.20(3), in your motion you must show the following:59
(1) The materials are relevant and evidentiary;
(2) The request is specific;
(3) The materials are not otherwise reasonably obtainable before trial by the exercise of due diligence;
(4) You cannot properly prepare for trial without production and inspection of the material before the
trial and the failure to procure the information may tend to unreasonably delay the trial; and
(5) The application is made in good faith and is not intended to be a general “fishing expedition.”
(6) In addition, your motion for a subpoena duces tecum should indicate a specific time and place for
inspection of the desired materials.
(c) Non-discoverable Material
The two types of material that are generally not discoverable under Article 240 are (1) attorney’s work
product, and (2) records of any statement made in the course of the criminal transaction, with the exception
of any electronic recordings that the prosecutor intends to introduce at trial.60 “Attorney’s work product” is
defined in the statute as “property to the extent that it contains the opinions, theories, or conclusions of the
prosecutor, defense counsel or members of their legal staffs.”61 The prosecutor is not required to turn over
memoranda, or other documents containing his legal theories or opinions. In the same manner, you are not
required to produce yours if a prosecutor’s demand is made. If you have, for instance, several notes laying
out the defense of consent in a rape charge, you do not need to reveal the means by which you are going to
attempt to show consent. This rule is very similar to the work product rule found in civil discovery.
(d) Procedures to Obtain Information
Under N.Y. Crim. Proc. L. Section 240.10(1), you may obtain access to any discoverable material before
the trial begins by serving a “demand to produce” on the prosecutor.62 A demand to produce is a written
notice that you may serve on your adversary without first getting permission from the court. It will include
information as to what “property” you want to inspect, and it must provide a reasonable notice of the time at
which you desire to conduct the inspection. It is important to be fairly specific in making your demands. You
are not permitted to go on a “fishing expedition” by requesting in very general terms to inspect property. For

57. N.Y. Crim. Proc. L. § 240.20(1)(f) (McKinney 2002).

58. See State ex rel. Everglades Cypress Co. v. Smith, 139 So. 794, 795, 104 Fla. 91, 93 (Fla. 1932) (stating that the
process of subpoena duces tecum is applicable to witnesses other than the adverse party to the case).
59. People v. Price, 100 Misc. 2d 372, 379, 419 N.Y.S.2d 415, 420 (Sup. Ct. Bronx County 1979). The list cited
above is not a direct quote from the case, but rather reflects clarifications of the case’s meaning as subsequent case law
has interpreted it.
60. See United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (stating that a prosecuting party only has the
duty to disclose exculpatory evidence which is known to the prosecution but unknown to the defense).
61. N.Y. Crim. Proc. L. § 240.10 (McKinney 2002). However, if any exculpatory Brady material exists, see Part
C(1) of this Chapter, then a duty to disclose that particular evidence is imposed, despite the fact that the material might
include some work product. See People v. Finkle, 103 Misc. 2d 985, 986, 427 N.Y.S.2d 374, 375 (Sup. Ct. Sullivan County
1980). Routine police records containing information required to be filed in the normal course of business are not exempt
from discovery. People v. Simone, 92 Misc. 2d 306, 312–13, 401 N.Y.S.2d 130, 134 (Sup. Ct. Bronx County 1977).
62. See N.Y. Crim. Proc. Law §§§ 240.80, 240.90, and 255.20 (McKinney 2002) for information on filing a motion
for an order of discovery.
example, it would be improper for you to demand inspection of any and all information in the prosecutor’s
files that might be material to the case.
According to N.Y. Crim. Proc. L. Section 240.80, a demand to produce must be filed within thirty days
following your arraignment.63 However, if you are not represented by counsel, the thirty-day period does not
start until counsel initially appears on your behalf—provided you have requested an adjournment to obtain
such assistance.
Discovery mechanisms are not limited to the defendant. The prosecutor, too, may take advantage of
reciprocal discovery under N.Y. Crim. Proc. L. Section 240.30.64 In addition to discovery, you may also be
ordered to provide non-testimonial evidence, such as appearing in a line-up, providing a hand writing
sample, fingerprinting, posing for photographs so long as they are not a re-enactment of the crime, or
submitting to a reasonable physical or medical inspection. 65 As a defendant, you must respond to the
prosecutor’s demands to produce by either providing the desired information or filing a refusal of demand
under N.Y. Crim. Proc. L. Section 240.35.
The discovery process does not end once the trial begins. Under N.Y. Crim. Proc. L. Section 240.45,
certain materials can be discovered at the initial stages of the trial. These materials could prove to be very
important to your case. After the jury has been sworn and before the prosecutor’s opening address,66 the
prosecutor must turn over to you the following documents or information:
(1) Any statement (including testimony before a grand jury or a videotaped examination) made by a
person the prosecutor plans to call as a witness that relates to the subject matter of the witness’s
testimony;67
(2) Any conviction record of a witness to be called at trial if the prosecutor is aware of the record; and
(3) Information concerning any pending criminal action against any witness the prosecution intends to
call, if the prosecutor is aware of such action.
(4) You have the same duty to reveal such information before presenting your case.68
This information can be helpful because it may permit you to attack the credibility of prosecution
witnesses. For instance, if you find out that a potential witness for the prosecution has been previously
convicted of perjury, or lying under oath, you may use this information at trial to impeach the witness (that
is, to attack his credibility). Revealing this fact to a jury may cast doubt on the truth of the witness’
testimony. This could give you an advantage.
(e) Duty to Disclose
Throughout the entire discovery process, there is a duty to disclose properly requested information in the
discovery process. This means that both the prosecutor and the defendant must hand over to the other side
any important documents or information that the other side has requested. You must be careful not to ignore
the prosecutor’s demands for discoverable material. Otherwise, you could face court sanctions by the court.69
Despite the general duty to disclose, there are situations where a prosecutor or defendant may refuse to
reveal requested information. The main requirement for refusing to disclose is that you must have a
reasonable belief that the requested material is not discoverable. For example, material may not be
discoverable where it is irrelevant, privileged, or subject to a protective order.70 When refusing to comply
with a demand, you must do so in writing and explain the reasons for your refusal.71 This must be done
within fifteen days from the time you are served with the demand unless you can show good cause why you

63. For an example of a demand form, see Marvin Waxner, New York Criminal Practice, Form No. 17:1 (2d. ed.
2005).
64. However, the prosecutor may only ask for material that is similar in kind and character to the material you
are asking for from him.
65. N.Y. Crim. Proc. Law § 240.40(2)(b) (McKinney 2002).
66. In the case of a non-jury trial, the information must be turned over prior to the offering of evidence.
67. This is commonly called Rosario material. See People v. Rosario, 9 N.Y.2d 286, 289, 173 N.E.2d 881, 882–83,
213 N.Y.S.2d 448, 450 (1961). In federal practice these documents are governed by the Jencks Act, 18 U.S.C. § 3500
(2000).
68. N.Y. Crim. Proc. Law § 240.45(2) (McKinney 2002).
69. N.Y. Crim. Proc. Law § 240.70 (McKinney 2002).
70. N.Y. Crim. Proc. Law § 240.35 (McKinney 2002).
71. N.Y. Crim. Proc. Law § 240.35 (McKinney 2002).
need more time.72 Your refusal must be served upon the demanding party and a copy of it must be filed with
the court.73
If the prosecutor demands information from you and you refuse, but your refusal is unjustified, the court
may order you to disclose the material anyway.74 Similarly, if the prosecutor refuses to provide information
that you demand, but the court finds the prosecutor’s refusal of your demand unjustified, it will order that
the prosecutor give you the material you requested. 75 The court may also order discovery of any other
materials the prosecutor intends to use at trial if you show that such property is material to your case and
that the request is reasonable.76
If you feel there is good reason for refusing to turn over some of your material, you can apply for a
protective order, which will deny or limit discovery. Likewise, if the prosecutor thinks there is a good reason
not to turn over information to you, the prosecutor can apply for a protective order. Even other parties
affected in your case can apply for a protective order if they think there is a good reason not to turn over
information. The court can also issue a protective order on its own initiative.77
In order to be granted a protective order denying or limiting discovery by the other side, you must show
good cause. Good cause includes constitutional limitations; danger that physical evidence may be destroyed
or damaged; substantial risk of physical harm; the possibility of intimidation or bribery (usually a
prosecutor’s defense); a risk of unjustified annoyance or embarrassment to any person; any potential
negative effects on the legitimate needs of law enforcement, such as protection of informants; or any other
factor that outweighs the usefulness of discovery.78 When filed, a motion for a protective order suspends
discovery of the particular matter.79 This means that you or (the prosecutor) won’t be forced to hand over the
disputed material until the judge makes a decision on your request for the protective order.
It is extremely important that you follow these rules. If you refuse to disclose information requested by
the prosecutor, you must be sure to establish that you have a “good cause.” If you do not, the court may order
sanctions.80 The court may, for example, prohibit the use of certain evidence or prohibit you from calling of
certain witnesses at your trial. It may also take “any other appropriate action” that it thinks is reasonable to
sanction you. Therefore, it is important that you pay special attention to the procedures involved,
particularly to the time limits (deadlines for filing certain motions and requests) found throughout N.Y.
Crim Proc. L. Section 240.
It is also important to remember that there is a continuing duty to disclose any additional information
subject to discovery.81 This means that if you have made a demand for material and the prosecutor later
receives information that is covered by your original request, the prosecutor must turn it over that
information to you. Similarly, you must turn over material that you later become aware of if it is covered by
a prosecutor’s earlier demand to produce.
(f) Summary
This description of various discoverable materials and information is meant only to give you a very
general picture of the tools that are available to you in a criminal proceeding. Effective use of these tools
requires a careful reading of Article 240 of the N.Y. Criminal Procedure Law and the particular sections
relating to types of discoverable material. You must also look at the case law interpreting the various
provisions, particularly if you are looking for the answer to a very specific question. Much of the case law can
be found in the annotations to the New York statutes, which are listed directly after the statute provisions.
Supplemental treatises (other articles) may also be helpful.

72. N.Y. Crim. Proc. Law § 240.80(2) (McKinney 2002).

73. N.Y. Crim. Proc. Law § 240.35 (McKinney 2002).
74. N.Y. Crim. Proc. Law § 240.40(2)(a) (McKinney 2002).
75. N.Y. Crim. Proc. Law § 240.40(1)(a) (McKinney 2002).
76. N.Y. Crim. Proc. Law § 240.40(1)(c) (McKinney 2002).
77. N.Y. Crim. Proc. Law § 240.50(1) (McKinney 2002).
78. N.Y. Crim. Proc. Law § 240.50(1) (McKinney 2002).
79. N.Y. Crim. Proc. Law § 240.50(3) (McKinney 2002)
80. N.Y. Crim. Proc. Law § 240.70(1) (McKinney 2002).
81. N.Y. Crim. Proc. Law § 240.60 (McKinney 2002).
 H. Federal Discovery
If your criminal case is in federal court, you should refer to Rule 16 of the Federal Rules of Criminal
Procedure for the discovery rules. Since Article 240 of N.Y. Criminal Procedure Law is very similar to Rule
16 of the Federal Rules of Criminal Procedure, there are really no major differences in form. Federal Rule 16
provides for basically the same types of discoverable material, 82 and has similar rules for limiting the
discovery process by protective orders.83 There are also provisions for sanctions if a party does not follow the
Rule84 or violates the continuing duty to disclose.85
It is important to note, however, that although Federal Rule 16 is very similar in form to Article 240 of
the N.Y. Crim. Proc. L., the federal rule is applied differently in practice. Discovery is harder to get in
federal courts than in New York state courts, which makes it harder for you to get information that you
want from the prosecutor. This is because federal courts allow the prosecutor to make more decisions about
what he will and will not disclose to you. The courts will usually support those decisions.
When you make a specific request or motion, be sure to cite the relevant subsections of Rule 16 as
authority for your specific requests and motions. If you need to subpoena a third party to produce documents
or evidence (subpoena duces tecum), refer to Rule 17(c) of the Federal Rules of Criminal Procedure.
I. Conclusion
Discovery is a process by which you and your opponent can find out important information from each
other about your case. The rules of discovery govern when you may request information from your opponent
and when you are required to disclose information to your opponent. These rules differ depending on
whether your case is a civil or criminal matter and whether you are in state or federal court. It is important
to find out the rules that apply to the court you are in, since failing to comply with the appropriate rules of
discovery may result in the judge imposing penalties on you or even throwing your case out of court.

82. See Fed. R. Crim. P. 16(a) and (b).

83. See Fed. R. Crim. P. 16(d)(1).
84. See Fed. R. Crim. P. 16(d)(2).
85. See Fed. R. Crim. P. 16(c).
 APPENDIX A

SAMPLE DISCOVERY DOCUMENTS

A-1 Sample Request For Production of Documents
A-2 Sample Request For Admission
A-3 Sample Notice of Interrogatory
A-4 Sample Notice of Motion for Order Compelling Discovery

Selected legal forms for conducting discovery in federal court follow. Do not tear these forms out of
the book. You must copy them onto your own paper, filling in appropriate information that applies to you.
You may be able to adapt these forms to state procedure if your state’s discovery law is similar to that
contained in the Federal Rules of Civil Procedure. In that case, you should replace the federal rule cited with
the applicable state law or rule. But, you should always consult a legal form book for your state if you are not
sure that these forms conform to your state’s procedure.

A-1. SAMPLE REQUEST FOR PRODUCTION OF DOCUMENTS86

[proper case caption]87

Plaintiff [your name] requests defendant [defendant’s name] to respond within [number] days to the
following requests, namely that:
Defendant produce and permit plaintiff to inspect and to copy each of the following documents: [You
should list the documents either individually (for example, minutes of a prison disciplinary hearing) or by
category (for example, personnel files of one of the defendants) and describe each of them.]
[You should also state the time, place, and manner of making the inspection and of making the
photocopies. You may wish to request that the defendants send copies of the documents to you at your prison
facility. You should also request that the defendants send a list of all of the documents they are sending so
that you make sure that none of the documents were lost in transit.]
Defendant produce and permit plaintiff to inspect and to photograph, test, or sample each of the
following objects: [list the objects either individually (baton used by guard) or by category (blood and hair
samples of the guard or the samples obtained from you during a medical examination).]
[Again, you should ask the defendants to send the evidence to you, unless you are concerned that the
objects will be interfered with before they reach you at the prison. You may wish to request specifically that
the objects are sent in sealed containers so that you can see if they are tampered with before they reach you.
However, if they are tampered with before they reach you, you may have no remedy.]
Defendant permit plaintiff [or name someone that will get the information for you] to enter [describe
property to be entered] and to inspect, photograph, test or sample [describe the portion of property and the
objects to be inspected. Since you will not be able to leave your facility to visit a property, you should ask
someone else to visit the cell block or other area where the incident that you are complaining about
occurred.]
[You should also state the time, place, and manner of making the inspection and performance of any
related acts.]
Dated:
[date] [city, state]
Signed,
[your name & address]
Plaintiff, pro se.

86. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-26 (4th ed. 2004) (Form D-1).
87. Chapter 6 of the JLM, “An Introduction to Legal Documents,” includes examples of what case captions look
like.
 A-2. SAMPLE REQUEST FOR ADMISSION88

[proper case caption]

Plaintiff [your name] requests defendant [defendant’s name], within [number] days after service of this
request, to make the following admissions for the purpose of this action only and subject to all pertinent
objections to admissibility which may be interposed at the trial:
That each of the following documents, exhibited with this request, is genuine:
[Here list the documents and describe each document that you have so that the defendant will be able to
verify that it is the actual document and not something that has been changed.]
That each of the following statements is true:
[Here list the statements that you would like the defendant to admit. If you believe that the defendant
may not want to admit certain things, you may not want to include those things in a request for admission,
but in an interrogatory.]
Dated:
[date] [city, state]
Signed,
[your name & address]
Plaintiff, pro se.

A-3. SAMPLE NOTICE OF INTERROGATORY89

[proper case caption]

To: [Each party and the attorney for each party]

PLEASE TAKE NOTICE that pursuant to Rule 31, Fed. R. Civ. P., the following interrogatories are to
be propounded on behalf of [party seeking answers] to [name and address of deponent] by [name and title of
deposition officer] pursuant to notice served herewith.
[Set out interrogatories in numerical order.]
Dated:
[date] [city, state]
Signed,
[your name & address]
Plaintiff, pro se.

88. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-30 (4th ed. 2004) (Form F-1).
89. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-23 (4th ed. 2004) (Form B-9).
 A-4. SAMPLE NOTICE OF MOTION FOR ORDER COMPELLING DISCOVERY90
Note: This motion seeks to compel production of documents. This form may also be used if your opponent
has refused to comply with a different discovery request (for example, failing to respond to interrogatories).
Simply change the language referring to a request for production of documents to indicate the type of
discovery you are seeking.
[proper caption]
[Plaintiff/defendant] moves this court for an order pursuant to Rule 37 of Fed. R. Civ. P. [describe relief
sought]. A copy of a proposed order is attached to this motion. The reasons supporting this motion include
[explain reasons such as the defendant’s failure to answer your interrogatories, to produce records, or to allow
you to perform discovery in a way that was practical for you].
[Plaintiff/defendant] further moves the court for an order seeking reasonable attorney’s fees and costs
and expenses incurred in this proceeding. There exists substantial justification for seeking fees, costs and
expenses, because [explain reasons why such as defendant’s ignoring your requests or defendant’s telling you
that your case was worthless because you are a prisoner].
This motion is based upon the notice, pleadings, records, and files in this action, and the attached
supporting affidavits [or: declarations] of [party, witness, attorney—persons who can state that they know
that the defendant did not produce the documents or that you did not receive them] and the attached
memorandum of law [if necessary or appropriate], and oral and documentary evidence to be presented at the
hearing on the motion [if you think a hearing will be necessary].
Dated:
[date] [city, state]
Signed,
[your name & address]
Plaintiff, pro se.

90. Adapted from Roger S. Haydock & David F. Herr, Discovery Practice app. B-34 (4th ed. 2004) (Form G-1).
A Jailhouse Lawyer’s
Manual

Chapter 9:
Appealing Your Conviction
Or Sentence

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia Human Rights Law
Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended
as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any
information contained herein is intended to or shall constitute a contract between the JLM and any reader,
and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of
the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at
Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,
because the law changes frequently, we cannot guarantee that all information is current.
 CHAPTER 9

APPEALING YOUR CONVICTION OR SENTENCE*

A. Introduction
This Chapter explains how you can appeal your conviction or sentence. This Chapter deals specifically
with New York law. If you have been convicted or sentenced in a federal court, your appeal will be governed
by federal law, and you should use the prison’s law library to find information about federal appeals.
Likewise, if you have been convicted or sentenced in a state court outside of New York, that state’s laws will
govern your appeal, and you should use the prison’s law library to find information about those laws. Even if
New York law does not apply to your appeal, however, you may find it useful to read this Chapter for
background information about general issues relating to appeals.
This Chapter is divided into eight main parts. Part A (the part you are reading now) is the introduction.
Part B explains what a criminal appeal is and describes where you should file an appeal. Part C discusses
how your right to appeal may be limited and what you can do to keep your right to appeal. Part D explains
what you can do before the court hears your appeal, including how you can request release on bail while your
appeal is pending. Part E describes the grounds on which an appellate court reviews your case, and what
type of relief is available to you. Part F explains what papers you need to fill out in order to appeal and
explains where, when, and how you should file these papers. Part G discusses the possibility of pursuing
your claim if you lose on appeal.1 Finally, Part H discusses your right to have a lawyer when you appeal,
which is also called your right to effective assistance of appellate counsel. For now, keep in mind that you
have a constitutional right to counsel for your appeal.2 This means that if you cannot afford to hire a lawyer
for your appeal, the state must provide you with a lawyer.3
At the end of this Chapter, you will find two appendices that contain useful information. Appendix A will
help you figure out where you should file your appeal. Appendix B provides sample papers for appeals,
including papers needed to get a lawyer without cost, to get released on bail pending appeal, and to get an
extension of time to take your appeal. You should read the entire Chapter before consulting these sample
papers: if you complete the forms incorrectly, you may lose your chance to appeal. These forms are samples
only: you must write your own versions of these papers. If you simply tear these papers out of the book and
send them to a court, the court might ignore them.
Keep in mind as you read this Chapter that timing is crucial to preserving your right to appeal.
B. What Is a Criminal Appeal?
A criminal appeal allows you to take your case to a higher court, called an “appellate court.” This higher
court has the power to review, and potentially change, certain trial court decisions. A criminal appeal allows
you to challenge your sentence and/or your conviction of a felony, misdemeanor, or violation. 4 As the
“appellant,” you will argue the trial court’s judgment5 or sentence was wrong because of harmful legal errors
that occurred at your trial or hearing.

* This Chapter was revised by Douglas Shively, based on previous versions by Sydney Bird, Miranda Berge, Peggy
Cross, Joy Fuyuno, Deidra D. Dixon, Janet Ellis, and Amy Metzler.
1. See Melvin Bressler et al., Appeals in Criminal Cases, in New York Criminal Practice Handbook 651, 651
(Lawrence N. Gray ed., 2d ed. 1998). Bressler has been an important resource in the writing of this Chapter of the JLM.
We strongly recommend it for a detailed, chronological discussion of the criminal appellate process in New York State.
2. See Douglas v. California, 372 U.S. 353, 356–58, 83 S. Ct. 814, 816–17, 9 L. Ed. 2d 811, 814–15 (1963) (holding
that during a first appeal, an indigent defendant (someone who cannot afford a lawyer) has the right to a lawyer,
including the right to a lawyer appointed at the state’s expense).
3. See Douglas v. California, 372 U.S. 353, 356–58, 83 S. Ct. 814, 816–17, 9 L. Ed. 2d 811, 814–15 (1963) (holding
an indigent defendant (someone who cannot afford a lawyer) has the right to a lawyer appointed at the state’s expense).
4. A felony is a crime that is punishable by a prison term of more than one year. N.Y. Penal Law § 10.00(5)
(McKinney 2004 & Supp. 2008). A misdemeanor is an offense, other than a “traffic infraction,” that can be punished by a
brief jail sentence of at least 15 days but no more than one year. N.Y. Penal Law § 10.00(4) (McKinney 2004 & Supp.
2008). A violation is a non-criminal offense that is punishable by no more than 15 days in jail. N.Y. Penal Law § 10.00(3)
(McKinney 2004 & Supp. 2008).
5. A judgment means your conviction (the entry of a guilty plea or a guilty verdict) and your sentence. See N.Y.
Crim. Proc. Law § 1.20(13)–(15) (McKinney 2003 & Supp. 2008).
 After the appellate court reviews your appeal, it will make one of three decisions. First, it might
“reverse” the trial court’s judgment, which means it declares the entire judgment invalid. Second, it might
“affirm” the trial court’s judgment, which means it upholds the entire judgment. Finally, it might “modify”
the trial court’s judgment, which means it reverses part of the judgment and affirms another part of the
judgment.6 If the appellate court reverses or modifies the judgment, it will also take some action to correct
the judgment, such as reducing your sentence or dismissing your indictment.7
Sometimes the appellate court might determine that it does not have enough information to decide your
appeal right away. If this happens, the appellate court may suspend your appeal and send the matter to a
lower court for additional proceedings. 8 This means that the appellate court will not decide whether to
affirm, modify, or reverse the judgment until the lower court has held another hearing.
If you decide to file an appeal, you will need to figure out to which court you should submit your appeal.
There are two types of court to which appeals can be made: (1) an intermediate appellate court9 or (2) the
Court of Appeals of the State of New York, which is the highest state court.10 In most cases, you will need to
file an appeal with an intermediate appellate court before the Court of Appeals will hear your case. If you
have been sentenced to death, however, you have the right to appeal directly to the Court of Appeals without
having to go through an intermediate appellate court.11
Note that there are many intermediate appellate courts, so unless you are appealing directly to the
Court of Appeals, you need to figure out which is the right intermediate appellate court for your case. This
will depend on where you were convicted.12 For example, if you were convicted of a felony in a New York
supreme court, you must appeal to the appellate division of the department in which you were convicted.13
Appendix A at the end of this Chapter can help you figure out where to file your appeal.
You will also need to figure out if you need permission to file your appeal. In general, you do not need
permission if you are appealing: (1) the trial court’s judgment against you,14 (2) your sentence,15 or (3) an

6. See N.Y. Crim. Proc. Law §§ 470.10(1), (2), 470.15(2) (McKinney 1994 & Supp. 2008).
7. See N.Y. Crim. Proc. Law § 470.10(3) (McKinney 1994 & Supp. 2008).
8. This process is called “remitting.” For examples of when the appellate court has remitted a matter for further
hearings, see People v. Hasenflue 24 A.D.3d 1017, 1018, 806 N.Y.S.2d 766, 768 (3d Dept. 2005) (decision withheld and
matter sent back to trial court to look at the defendant’s competency to stand trial); People v. Britt, 231 A.D.2d 581, 583,
647 N.Y.S.2d 527, 529 (2d Dept. 1996) (matter sent back for more hearings on whether the trial judge followed the
proper three-step procedure to find out if peremptory strikes—which are used to keep certain people off of a jury—were
used to keep people off the jury because of their race).
9. An intermediate appellate court means any court possessing the power to hear appeals other than the Court of
Appeals. N.Y. Crim. Proc. Law § 450.60 (McKinney 2005 & Supp. 2008). In New York, there are two intermediate
appellate courts: the appellate division and the appellate term. See the inside covers of the JLM for diagrams of New
York’s federal and state court systems.
10. The Court of Appeals of the State of New York is the highest state court. For an explanation of New York’s
state court system, see JLM. For a diagram of the New York state system, see the JLM’s inside back cover.
11. N.Y. Crim. Proc. Law § 450.70 (McKinney 2005 & Supp. 2008).
12. N.Y. Crim. Proc. Law § 450.60 (McKinney 2005 & Supp. 2008).
13. N.Y. Crim. Proc. Law § 450.60(1) (McKinney 2005). For more information, see Appendix A of this Chapter.
14. N.Y. Crim. Proc. Law § 450.10(1) (McKinney 2005 & Supp. 2008). Though a trial court makes many orders and
rulings during your trial, you cannot appeal these rulings until there is a final judgment. See, e.g., People v. Boyd, 91
A.D.2d 1045, 1046, 458 N.Y.S.2d 643, 644 (2d Dept. 1983) (holding that any objection to an intermediate order denying a
motion to suppress evidence is reviewable only on an appeal from judgment); People v. Pollock, 67 A.D.2d 608, 608, 412
N.Y.S.2d 12, 12 (1979), aff’d, 50 N.Y.2d 547, 407 N.E.2d 472, 429 N.Y.S.2d 628 (1980) (stating no separate appeal is
available for an order denying a motion to set aside a verdict; review is only available on appeal from judgment).
15. N.Y. Crim. Proc. Law § 450.10(2) (McKinney 2005 & Supp. 2008). Note that the statute says it excludes
appeals of allegedly excessive sentences if you agreed to the sentence as part of a plea bargain. But, the Court of Appeals
decided this part of the statute is unconstitutional because the legislature (which created the statute) does not have the
power to prevent the appellate division from hearing these appeals. See People v. Pollenz, 67 N.Y.2d 264, 270, 493
N.E.2d 541, 543, 502 N.Y.S.2d 417, 419 (1986) (holding under Article 1, Section 4(k) of the New York State Constitution,
the legislature could not limit the appellate division’s jurisdiction, such that the legislature could not write a law
prohibiting defendants from appealing excessive sentences). Section 450.10(2) of the New York Criminal Procedure Law
may still be applicable in cases where the intermediate appellate court is an appellate term. See Preiser, Practice
Commentaries, N.Y. Crim. Proc. Law § 450.10 (McKinney 2005 & Supp. 2008). Note also, though the statute itself may
not prevent an appeal of an allegedly excessive sentence, you may have voluntarily waived your right to appeal your
sentence or conviction as part of a plea or negotiated sentence. For more information, see Part C(2) of this Chapter.
order granting the District Attorney’s motion under Article 440 to set aside your sentence to impose a longer
sentence.16 New York law grants you the right to appeal these decisions to an intermediate appellate court.
For other challenges, however, you may first need to get permission before you file an appeal. For
example, if you have already made a motion to vacate your judgment under Section 440.10 of the New York
Criminal Penal Law or a motion to set aside your sentence under Section 440.20, and the court has denied
your motion, you will need to ask the court for permission to appeal the court’s denial.17 Note that if you
need to ask for permission to appeal, a court does not have to accept your appeal, whereas a court must
accept your appeal if you have the right to appeal on that issue.
After an intermediate appellate court reviews your case and makes a decision, you may then appeal this
decision to the Court of Appeals of the State of New York, but only if you have permission. This means that
you do not have a right to appeal the appellate court’s decision to the Court of Appeals. Note that the Court
of Appeals will only consider one application for permission to appeal per case, including applications
addressed to a justice of the appellate division.18 If the Court of Appeals decides to hear your case, it will
issue a certificate of leave to appeal.19 Part G explains this process in detail.
Finally, keep in mind that filing an appeal is not the only way to challenge your conviction or your
sentence under New York law. In certain situations, you may be able to file a motion to vacate the judgment
against you20 or a motion to set aside your sentence.21 These motions are often called Article 440 motions,
and are usually only available where a direct appeal would not be possible. In other words, when the record
from your trial does not contain the necessary facts for a court to decide the issue that you want to raise on
appeal, you may be able to file an Article 440 motion instead of an appeal.22 For a more detailed description
of when you can file an Article 440 motion and which claims you may raise in an Article 440 motion, see
Chapter 20 of the JLM.
C. Limits on Your Right to Appeal
When deciding whether you should appeal your criminal conviction or sentence, you should first
determine whether there are any limits on your right to appeal. This is an important first step because you
may have already lost all or part of your right to appeal. A person can surrender (give up) their right to
appeal in several ways. For example, if you pleaded guilty, you might have agreed to waive (give up) your
right to appeal as part of a plea bargain. Even if you did not waive your right in a plea agreement, your right
to appeal may be limited if you missed certain deadlines or failed to raise certain objections in trial court.
This Part will help you to identify if there are any potential limits on your right to appeal, including time
limits, plea agreements, and the preservation requirement. If limits on your right to appeal exist, this Part
will also help you determine the possibility for reinstating (getting back) your right to appeal.

16. N.Y. Crim. Proc. Law § 450.10(4) (McKinney 2005 & Supp. 2008). For more information regarding Article 440
appeals, see Chapter 20 of the JLM.
17. See N.Y. Crim. Proc. Law § 450.15 (McKinney 2005). If you obtain permission, you can appeal a sentence that
you could not otherwise appeal under Section 450.10(1) and (2) of the New York Criminal Procedure Law; you can also
appeal the denial of your Article 440 motion to vacate a judgment or set aside a sentence. See Form B-2 in Appendix B at
the end of this Chapter for a sample application for permission to appeal. You may make only one such application. The
procedure for requesting leave to appeal under Section 460.15 varies depending on to which intermediate court you are
applying. N.Y. Crim. Proc. Law § 460.15(2) (McKinney 2005). See generally N.Y. Comp. Codes R. & Regs. tit. 22, §§
600.8(d), 670.12(b) (2003) (describing these procedures); N.Y. Comp. Codes R. & Regs. tit. 22, § 800.3 (1995) (same); N.Y.
Comp. Codes R. & Regs. tit. 22, § 1000.13 (1998) (same); Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 460.15
(McKinney 2005 & Supp. 2008).
18. See People v. Liner, 70 N.Y.2d 945, 945, 519 N.E.2d 619, 524 N.Y.S.2d 673 (1988) (dismissing appeal made by
defendant’s lawyer on ground that court could not hear appeal after defendant had already made pro se application for
appeal to the appellate division); People v. Nelson, 55 N.Y.2d 743, 743, 431 N.E.2d 640, 447 N.Y.S.2d 155, 156 (1981)
(dismissing appellate division’s grant of permission to appeal while prior application was pending in Court of Appeals).
19. N.Y. Crim. Proc. Law § 460.20 (McKinney 2005 & Supp. 2008); see also N.Y. Crim. Proc. Law § 450.90
(McKinney 2005 & Supp. 2008). If you are appealing an appellate division’s order, a judge from the same department of
the appellate division may grant you a certificate of leave to appeal before the Court of Appeals. N.Y. Crim. Proc. Law §
460.20(2)(a) (McKinney 2005 & Supp.2008).
20. See N.Y. Crim. Proc. Law § 440.10 (McKinney 2005 & Supp. 2008).
21. See N.Y. Crim. Proc. Law § 440.20 (McKinney 2005 & Supp. 2008).
22. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 440.10 (McKinney 2005 & Supp 2008).
 1. Time Limits
The general rule is that you will lose your right to appeal if you wait too long to file a notice of appeal
after you have been sentenced. To preserve your right to appeal, you must file two copies of a notice of
appeal 23 with the clerk of your trial court within thirty days of the date you were sentenced. 24 When
appealing a judgment, you must count thirty days from the original sentence, even if there was a re-
sentencing.25 Within the same thirty-day period, you must also serve a copy of the notice of appeal on the
District Attorney of the county in which your trial was held.26 See Part F, “Preparing Your Papers for
Appeal.” THESE TIME LIMITS ARE EXTREMELY IMPORTANT.
If you fail to file a notice of appeal within the thirty-day period, you lose your right to appeal entirely,
and an appellate court will refuse to review your conviction. This thirty-day period after your conviction is a
critical period, and you have a constitutional right to counsel during this time.27
If you miss the thirty-day deadline, you may be able to recover your right to appeal by filing a motion for
a time extension.28 This extension will only be granted if you meet two requirements. First, you must make
the motion for a time extension within one year of the original deadline for filing a notice of appeal.29 Second,
your failure to file on time must have resulted from one of the following factors:
(1)Improper conduct of a public servant (for example, if a prosecutor stood in the way of your good-faith
efforts to file on time);30
(2) Improper conduct, death, or disability of your lawyer (examples of improper conduct include your
lawyer’s failure to inform you in writing of your right to appeal,31 failure to inform you of your right
to apply for leave to appeal as a poor person,32 and failure to start your appeal after being informed
of your desire to appeal);33 or
(3)Your inability to communicate with your lawyer, in person or by mail, about whether to take an
appeal until after the filing deadline had passed. To win an extension based on an inability to
communicate with your lawyer, the inability to communicate must have been (a) because you were
in prison AND (b) through no fault of your own or your attorney.34 If you are not in prison, or if you
were incarcerated but could have communicated with your lawyer (and you or your lawyer simply
neglected to do so) the court will deny your motion. (Note, however, that if your lawyer acted

23. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2008); see also N.Y. Crim. Proc. Law § 450.90
(McKinney 2005 & Supp. 2008).
24. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2008).
25. N.Y. Crim. Proc. Law § 450.30(3) (McKinney 2005 & Supp. 2008).
26. N.Y. Crim. Proc. Law § 460.10(1)(b) (McKinney 2005 & Supp. 2008).
27. See People v. Montgomery, 24 N.Y.2d 130, 132, 247 N.E.2d 130, 132, 299 N.Y.S.2d 156, 159 (1969) (holding
that every defendant has a right to appeal a conviction; this right cannot be lost because of defendant’s unawareness of
the right or because of counsel’s failure to fulfill an agreement to take action within the required time period).
28. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008). The extension may be for no more than 30
days, counting from the date of the decision to grant the extension.
29. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008). Although this one-year time limit for
making a motion for an extension of time cannot be extended, an appellate court might decide not to enforce the one-year
time limit in extremely rare circumstances. See People v. Thomas, 47 N.Y.2d 37, 389 N.E.2d 1094, 416 N.Y.S.2d 573
(1979) (holding that, in the interest of justice, the district attorney could not enforce the one-year time limit to file a
460.30 motion when the defendant had made an honest effort to appeal within the appropriate time limit and the failure
of the district attorney to cooperate had contributed to the failure of the defendant’s timely attempt to appeal).
30. See People v. Johnson, 69 N.Y.2d 339, 341, 506 N.E.2d 1177, 1178, 514 N.Y.S.2d 324, 325 (1987) (allowing an
appeal after the filing deadline had passed where defendant’s prior, timely attempts to secure an appeal had been
prevented by the actions of the state).
31. See People v. Nunez, 178 A.D.2d 1029, 1029, 578 N.Y.S.2d 780, 781 (4th Dept. 1991) (granting extension of
time to appeal where defense counsel failed to provide defendant with written notice of right to appeal); N.Y. Comp.
Codes R. & Regs. tit. 22, § 1022.11 (2001) (requiring defense attorney, upon conviction, to inform defendant in writing of
defendant’s right to appeal or seek permission to appeal, and right, if indigent, to seek leave to appeal as a poor person).
32. See People v. Nunez, 178 A.D.2d 1029, 1029, 578 N.Y.S.2d 780, 781 (4th Dept. 1991) (granting extension of
time to appeal where defense counsel failed to provide defendant with written notice of right to appeal); N.Y. Comp.
Codes R. & Regs. tit. 22, § 1022.11 (2001) (requiring defense attorney, upon conviction, to inform defendant in writing of
defendant’s right to appeal or to seek permission to appeal, and right, if indigent, to do so as a poor person).
33. See People v. Lord, 181 A.D.2d 1076, 1076, 582 N.Y.S.2d 305, 306 (4th Dept. 1992) (granting extension of time
to appeal where defense counsel had failed to carry out defendant’s request to appeal).
34. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008).
 improperly, you may be eligible for an extension under the “improper conduct, death, or disability of
your lawyer” factor described above, even if you do not qualify for an extension under the “inability
to communicate with your lawyer” factor.)
If you do not satisfy both of these requirements—making your motion for an extension within one year
after your original thirty days to appeal has passed and showing you missed your original deadline to appeal
due to one of the three allowable factors—then you will not be granted a time extension.
If you think that you can satisfy these requirements, then you should send your motion for a time
extension to the appellate court to which you want to appeal.35 See Appendix A of this Chapter to figure out
which court this is. The motion must be in writing and must contain a sworn statement of the facts that
support your request for a time extension.36 You must notify the District Attorney of your motion. The
District Attorney may then file papers opposing your motion.37
If questions exist about the facts underlying your request for an extension—for example, whether you
were really unable to or simply failed to communicate with your lawyer—the appellate court may order the
trial court to hold a hearing on these issues. Once the facts are clarified, or if there are no factual questions
to begin with, the appellate court will grant or deny your motion for an extension.38
If the appellate court grants you a time extension, you must submit your notice of appeal within thirty
days from the day of the appellate court’s decision to grant the extension.39 If the appellate court denies your
motion for an extension, you may appeal the denial only if a judge on the Court of Appeals gives you
permission to appeal and the intermediate appellate court states that it based its decision solely on the
law.40 Additionally, you may only appeal the denial if your original appeal was an appeal by right; you may
not appeal a decision denying an extension for an appeal that requires permission.41
2. Plea Agreements
If you pleaded guilty, you may have waived many of the rights on which you can base your appeal. If you
pleaded guilty as part of a plea bargain or negotiated sentence, you automatically gave up (forfeited) your
right to appeal certain errors. This is true even if your plea agreement does not say you waived this right.
Moreover, some plea agreements contain additional waivers of your right to appeal, in which you agree to
give up the right to appeal errors in addition to those that you automatically forfeit simply by pleading
guilty. The next two parts explain these limits on your right to appeal.
i. Rights Automatically Forfeited by Your Guilty Plea
If you pleaded guilty, (regardless of whether your plea included a waiver agreement), you automatically
forfeited the right to appeal many types of errors, even if your plea agreement does not specify them.42 In
general, if you plead guilty, you give up the right to argue the factual issue of guilt.43 Additionally, you
cannot raise problems with discovery or other pretrial matters on appeal.44 The following errors are among
those you automatically forfeit the right to appeal by pleading guilty:
(1) The insufficiency of the evidence before the grand jury;45

35. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008). See Form B-5 in Appendix B of this Chapter
for a sample notice of a motion for extension of time.
36. N.Y. Crim. Proc. Law § 460.30(2) (McKinney 2005 & Supp. 2008).
37. N.Y. Crim. Proc. Law § 460.30(2) (McKinney 2005 & Supp. 2008).
38. N.Y. Crim. Proc. Law § 460.30(3)B(5) (McKinney 2005 & Supp. 2008).
39. N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2005 & Supp. 2008).
40. N.Y. Crim. Proc. Law § 460.30(6) (McKinney 2005 & Supp. 2008).
41. See People v. Nealy, 82 N.Y.2d 773, 773, 624 N.E.2d 175, 176, 603 N.Y.S.2d 991 (1993) (holding defendant may
not appeal the appellate division’s denial of an extension of time to request permission to appeal to Court of Appeals).
42. See generally N.Y. Crim. Proc. Law § 220.10 nn.222–75 (McKinney 2002 & Supp. 2006); People v. Gerber, 182
A.D.2d 252, 259–60, 589 N.Y.S.2d 171, 174 (2d Dept. 1992) (explaining the claims that are forfeited by a guilty plea). For
a more recent list of forfeited claims, see People v. Hansen, 95 N.Y.2d 227, 231 n.3, 738 N.E.2d 773, 776 n.3, 715
N.Y.S.2d 369, 372 n.3 (2000).
43. See People v. Garcia, 216 A.D.2d 36, 36–37, 627 N.Y.S.2d 666, 667 (1st Dept. 1995) (finding that “by pleading
guilty, the defendant has waived his right to litigate the issue of his guilt … .”).
44. See People v. Berezansky, 229 A.D.2d 768, 771, 646 N.Y.S.2d 574, 577 (3d Dept. 1996) (finding that a
defendant who waives indictment and pleads guilty “waives all discovery and all other pretrial and trial matters … .”).
45. See People v. Caleca, 273 A.D.2d 476, 476, 711 N.Y.S.2d 743, 744 (2d Dept. 2000) (explaining that by “pleading
guilty, the defendant waived his claim that the evidence submitted to the Grand Jury was” insufficient).
 (2) The insufficiency of instructions before the grand jury;46
(3) The refusal of the trial court to try you separately from a co-defendant;47
(4) The denial of your right to a jury trial;48
(5) The denial of your right of confrontation;49
(6) The limits on your privilege against self-incrimination;50
(7) The absence of counsel during certain proceedings; and51
(8) The statutory (as opposed to constitutional) right to a speedy trial.52
By pleading guilty, however, you do not automatically forfeit the right to appeal every issue. That is, even
if you pleaded guilty, you did NOT automatically forfeit the right to appeal these errors:53
(1) You were denied your constitutional right to a speedy trial;54
(2) You were tried in violation of your constitutional right against double jeopardy;55
(3) The trial court failed to determine your competency to stand trial;56

46. See People v. Palo, 299 A.D.2d 871, 871, 749 N.Y.S.2d 452, 452 (4th Dept. 2002) (finding that defendant’s claim
of improper grand jury instruction did not survive a guilty plea).
47. See People v. Sheppard, 177 A.D.2d 668, 668, 576 N.Y.S.2d 368, 369 (2d Dept. 1991) (finding that a guilty plea
constitutes a waiver of the right to seek appeal of the trial court’s denial of a severance motion).
48. See People v. Walls, 129 A.D.2d 751, 751, 514 N.Y.S.2d 513, 513 (2d Dept. 1987) (finding that a guilty plea
waives the right to appeal issues relating to both the right to a jury trial and the right to confront witnesses); see also
People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (holding that a guilty plea signaled
“defendant’s intention not to litigate the question of his guilt and necessarily involves the surrender of certain
constitutional rights,” including the right to jury trial).
49. See People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (holding that a guilty
plea necessarily involves surrender of certain constitutional rights, including the right to confrontation).
50. See People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (holding that a guilty
plea necessarily involves surrender of certain constitutional rights, including the privilege against self-incrimination).
51. See People v. Reiblein, 200 A.D.2d 281, 283, 613 N.Y.S.2d 789, 790 (3d Dept. 1994), appeal denied, 84 N.Y.2d
831, 641 N.E.2d 172, 617 N.Y.S.2d 151 (3d Dept. 1994) (holding that, by pleading guilty, defendant waived right to
appeal on the grounds that defense counsel was not present at psychiatric interview).
52. After pleading guilty, you may not raise your statutory right to a speedy trial under New York Criminal
Procedure Law § 30.30 (McKinney 2003 & Supp. 2008). See People v. Smith, 272 A.D.2d 679, 681, 708 N.Y.S.2d 485, 487
(3d Dept. 2000) (“By pleading guilty, defendant waived appellate review of his statutory right to a speedy trial … .”).
53. This list is not exhaustive. For more examples of what you can appeal after pleading guilty, see N.Y. Crim.
Proc. Law § 220.10 nn.221–83 (McKinney 2002 & Supp. 2006), N.Y. Crim. Proc. Law § 470.15 n.18 (McKinney 1994 &
Supp. 2008), N.Y. Crim. Proc. Law § 710.70 n.59 (McKinney 1995 & Supp. 2008). See also People v. Hansen, 95 N.Y.2d
227, 230–31 n.2, N.E.2d 773, 776 n.2, 715 N.Y.S.2d 369, 372 n.2 (2000) (describing the issues that survive a guilty plea).
54. A plea of guilty does not automatically prevent you from appealing on the ground your constitutional right to a
speedy trial was violated. See People v. Lopez, 6 N.Y.3d 248, 255, 844 N.E.2d 1145, 1148, 811 N.Y.S.2d 623, 626 (2006)
(finding that a claim regarding constitutional right to a speedy trial cannot be waived by guilty plea and waiver of
appeal); People v. Smith, 272 A.D.2d 679, 681, 708 N.Y.S.2d 485, 487 (3d Dept. 2000) (holding defendant’s right to raise
his constitutional right to a speedy trial survives … his guilty plea”); People v. Hansen, 95 N.Y.2d 227, 230–31 n.2, 738
N.E.2d 773, 776 n.2, 715 N.Y.S.2d 369, 372 n.2 (2000) (listing constitutional claims that survive a guilty plea). But, after
pleading guilty you may not raise your statutory right to a speedy trial under Section 30.30 of the New York Criminal
Procedure Law. (McKinney 2003 & Supp. 2006). See People v. Smith, 272 A.D.2d 679, 681, 708 N.Y.S.2d 485, 487 (3d
Dept. 2000) (“By pleading guilty, defendant waived appellate review of his statutory right to a speedy trial … .”).
55. See Menna v. New York, 423 U.S. 61, 63 n.2, 96 S. Ct. 241, 242 n.2, 46 L. Ed. 195, 198 n.2 (1975) (holding that
a guilty plea does not waive a claim that the state cannot constitutionally prosecute the charge against the defendant);
People v. Prescott, 66 N.Y.2d 216, 221, 486 N.E.2d 813, 815–16, 495 N.Y.S.2d 955, 958 (1985) (holding that a defendant’s
constitutional double jeopardy claim survives a guilty plea and may be raised for the first time on appeal). But you may
not raise your statutory right against double jeopardy under Section 40.20 of the New York Criminal Procedure Law.
People v. Prescott, 66 N.Y.2d 216, 220, 486 N.E.2d 813, 815, 495 N.Y.S.2d 955, 957 (1985) (holding that a guilty plea
results in forfeiture of statutory double jeopardy claim, even if presented to the court prior to the plea); see also People v.
Gray, 300 A.D.2d 696, 697, 752 N.Y.S.2d 731, 733 (2d Dept. 2002) (same, but emphasizing that a constitutional double
jeopardy claim survives a guilty plea).
56. See People v. Lopez, 6 N.Y.3d 248, 257, 844 N.E.2d 1145, 1150, 811 N.Y.S.2d 623, 626 (2006) (holding that a
claim regarding competency to stand trial cannot be waived by guilty plea and waiver of appeal when the defendant only
gave a one-word response when asked whether she understood the conditions of a guilty plea); People v. Callahan, 80
N.Y.2d 273, 280, 590 N.Y.S. 46, 50, 604 N.E.2d 108, 112 (1992) (holding that a guilty plea accompanied by waiver of
right to appeal does not waive the right to raise questions of competency to stand trial); People v. Armlin, 37 N.Y.2d 167,
172, 332 N.E.2d 870, 874, 371 N.Y.S.2d 691, 697 (1975) (holding that a plea of guilty does not waive right to a mandated
competency hearing); People v. Bennefield, 306 A.D.2d 911, 911, 761 N.Y.S.2d 906, 907 (4th Dept. 2003) (holding that
“issues relating to defendant’s competency survive both” a guilty plea and a waiver of a right to appeal).
 (4) The statute under which you were convicted is unconstitutional;57
(5) Your sentence was illegal or unduly harsh;58
(6) Your plea was not voluntary or knowing;59
(7) Jurisdiction was not proper in the trial court;60
(8) Your conviction was based entirely upon false evidence;61
(9) You were improperly denied a motion to suppress evidence;62 or
(10) The trial court improperly determined the felony on which your sentence was based.63
Even if you have not automatically forfeited the right to appeal these issues by pleading guilty, you still
may have given up the right to appeal these issues by either waiving them by agreement or by failing to
preserve them. Waiving and preserving your right to appeal is discussed in more detail below.
ii. Rights You Waive by Agreement
In addition to pleading guilty, you may also have agreed to waive your right to appeal as part of a plea
bargain or negotiated sentence.64 If your plea included an agreement to waive your right to appeal, you still
have several options. First, you may appeal, claiming your waiver was invalid. A waiver may be considered
invalid if you did not knowingly, intelligently, and voluntarily agree to waive your right to appeal.65

57. See Gesicki v. Oswald, 336 F. Supp. 371, 374 n.3 (S.D.N.Y. 1971), aff’d, 406 U.S. 913, 92 S. Ct. 1773, 32 L. Ed.
2d 113 (1972) (holding that a guilty plea does not waive “the right to contest the constitutionality of the statute” under
which the defendant was convicted); see also People v. Lee, 58 N.Y.2d 491, 493, 448 N.E.2d 1328, 1329, 462 N.Y.S.2d
417, 418 (1983) (explaining that “[a] defendant by a plea of guilty does not forfeit the right on appeal from the conviction
to challenge the constitutionality of the statute under which he was convicted.”).
58. See People v. Lopez, 6 N.Y.3d 248, 255, 844 N.E.2d 1145, 1148, 811 N.Y.S.2d 623, 626 (2006) (finding that a
claim challenging the legality of the sentence cannot be waived by a guilty plea); People v. Seaberg, 74 N.Y.2d 1, 9, 541
N.E.2d 1022, 1025, 543 N.Y.S.2d 968, 972 (1989) (same); People v. Pollenz, 67 N.Y.2d 264, 267–68, 493 N.E.2d 541, 541–
42, 502 N.Y.S.2d 417, 418–19 (1986) (finding that a defendant who pleaded guilty has the right to appeal the
“excessiveness of a negotiated sentence” to the appellate division); People v. Thompson, 60 N.Y.2d 513, 520, 458 N.E.2d
1228, 1231, 470 N.Y.S.2d 551, 554 (1983) (finding that defendant, by pleading guilty, does not waive a statutory right to
appeal for a sentence reduction). There are also numerous examples of defendants who challenged sentences that
departed from the estimated guidelines contained in plea agreements. See United States v. Wyatt, No. 06-cr-782 (DLI),
2008 U.S. Dist. LEXIS 46182, at *27–34 (E.D.N.Y. June 12, 2008) (finding that government breached plea agreement by
making comments that amount to an argument for an upward departure from the estimate guideline); see also United
States v. Allen, 550 F. Supp. 2d 494, 511 (S.D.N.Y. 2008) (finding that a sentencing range which was twice that
contained in the defendant’s Pimentel letters constituted mistreatment of defendants and warranted a downward
departure or below-guideline sentence).
59. See People v. Catu, 4. N.Y.3d 242, 245, 825 N.E.2d 1081, 1082, 792 N.Y.S.2d 887, 888 (2005) (reversing
conviction based on a guilty plea on the basis that the guilty plea was not a “voluntary and intelligent choice”); People v.
Gerber, 182 A.D.2d 252, 260–61, 589 N.Y.S.2d 171, 175–76 (2d Dept. 1992) (noting that the issue of whether a plea was
voluntary or knowing survives a guilty plea, but denying defendant’s appeal on the basis that the issues he sought to
appeal were forfeited by a valid guilty plea).
60. See People v. Taylor, 65 N.Y.2d 1, 5, 478 N.E.2d 755, 757, 489 N.Y.S.2d 152, 154 (1985) (“A guilty plea does not
forfeit the right to raise a jurisdictional defect … .”).
61. See People v. Pelchat, 62 N.Y.2d 97, 108, 464 N.E.2d 447, 453, 476 N.Y.S.2d 79, 85 (1984) (finding that a
defendant who pleaded guilty was allowed to challenge a conviction when the prosecutor knowingly based the charges on
false evidence). For examples of rights and claims forfeited by law upon a valid guilty plea, see People v. Gerber, 182
A.D.2d 252, 260–61, 589 N.Y.S.2d 171, 175–76 (2d Dept. 1992).
62. N.Y. Crim. Proc. Law § 710.70(2) (McKinney 1995 & Supp. 2008).
63. See People v. Lacend, 140 A.D.2d 243, 244, 528 N.Y.S.2d 832, 833 (1988) (modifying status of defendant, who
had pleaded guilty, from predicate violent felon to predicate felon and remanding for re-sentencing).
64. A waiver generally covers any aspect of a case that does not fall within certain exceptions. For example, a
waiver means that you give up the right to appeal your conviction on the grounds that your lawyer failed to raise certain
defenses. See People v. Parilla, 8 N.Y.3d 654, 659, 870 N.E.2d 142, 145, 838 N.Y.S.2d 824 (2007) (holding that a waiver of
the right to appeal as part of a plea agreement prevented the defendant from raising the issue of a statute of limitations
defense on appeal). For information on how other states address the issue of waivers by agreement, see Robert K.
Calhoun, Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127, 135–45 (1995).
65. See People v. Seaberg, 74 N.Y.2d 1, 11, 541 N.E.2d 1022, 1026–27, 543 N.Y.S.2d 968, 972–73 (1989) (holding
that defendants’ waivers of their right to appeal were valid because they were voluntary, knowing and intelligent). A
waiver is not voluntary, knowing, and intelligent (and therefore is not valid) if the trial record does not demonstrate that
the trial court made certain that the defendant understood the meaning of the waiver before agreeing to it. See People v.
Billingslea, 6 N.Y.3d 248, 257, 844 N.E.2d 1145, 1149, 811 N.Y.S.2d 623 (2006) (holding that a defendant’s waiver of her
right to appeal was not valid because the trial court did not adequately explain to the defendant that she was agreeing to
 Second, you can appeal certain types of claims that are considered so important to society that they can
never be waived. This means even if you waived your right to appeal in a plea agreement or as part of a
negotiated sentence, you still have a right to appeal certain types of claims.66 These claims include
(1) a challenge to a death sentence;67
(2) a claim that you were denied your constitutional right to a speedy trial;68
(3) a challenge to the legality of court-imposed sentences;69
(4) a challenge to the constitutionality of the statute outlawing the conduct to which you pleaded guilty;70
(5) claims regarding your competency to stand trial;71 or
(6) claims that ineffective assistance of counsel affected the voluntariness of your guilty plea.72
Keep in mind, though, that there may be other claims that society has a strong interest in, including
double jeopardy, that can be waived in certain instances.73

waive all of her rights to appeal, rather than only the rights to appeal that she would automatically forfeit simply by
pleading guilty). However, a waiver that is adequately explained in writing and signed by the defendant may be valid
even if the trial court does not fully explain the terms of the waiver to the defendant. See People v. Ramos, 7 N.Y.3d 737,
738, 853 N.E.2d 222, 222, 819 N.Y.S.2d 853, 853 (2006) (holding that the trial record established that the “defendant
knowingly, intelligently and voluntarily waived his right to appeal” based on a written waiver agreement, even though
the trial court did not fully explain the terms to the defendant). Also, a waiver can be found to be knowing, intelligent,
and voluntary even if it does not mention that you are waiving your rights knowingly, intelligently, and voluntarily. See
People v. Kemp, 94 N.Y.2d 831, 833, 724 N.E.2d 754, 755, 703 N.Y.S.2d 59, 60(1999) (holding that defendant’s waiver of
right to appeal was valid, and noting that no particular language is required to make a bargain voluntary and knowing).
66. See People v. Callahan, 80 N.Y.2d 273, 280, 604 N.E.2d 108, 112, 590 N.Y.S.2d 46, 50 (1992) (holding that a
waiver of right to appeal does not prevent an appeal based on denial of defendant’s constitutional speedy trial right). See
generally Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 450.10 (McKinney 2005 & Supp. 2006).
67. N.Y. Crim. Proc. Law § 470.30(2) (McKinney 1994 & Supp. 2006).
68. See People v. Blakley, 34 N.Y.2d 311, 313, 313 N.E.2d 763, 764, 357 N.Y.S.2d 459, 461 (1974) (holding that a
constitutional speedy trial claim may not be waived as part of a plea bargain); People v. Callahan, 80 N.Y.2d 273, 280,
604 N.E.2d 108, 112, 590 N.Y.S.2d 46, 50 (1992) (holding that a waiver of right to appeal does not prevent an appeal
based on denial of defendant’s constitutional speedy trial right).
69. See People v. Francabandera, 33 N.Y.2d 429, 434 n.2, 310 N.E.2d 292, 294 n.2, 354 N.Y.S.2d 609, 612 n.2
(1974) (upholding defendant’s plea bargain as valid but noting that the legality of a sentence and the voluntariness of
the plea are always appealable); see also People v Callahan, 80 N.Y.2d 273, 280, 604 N.E.2d 108, 112, 590 N.Y.S.2d 46,
50 (1992) (discussing waivers of right to appeal and noting that the legality of a sentence remains appealable even where
a defendant specifically waives the right to appeal). Note that the right to appeal the legality of a sentence includes the
right to appeal on the basis that there was an unreasonable delay in sentencing. People v. Campbell, 97 N.Y.2d 532, 533,
769 N.E.2d 1288, 1288, 743 N.Y.S.2d 396, 396 (2002) (holding that a guilty plea does not waive “a claim of unreasonable
delay in sentencing” as the claim challenges the legality of the sentence).
70. See People v. Lee, 58 N.Y.2d 491, 493–94, 448 N.E.2d 1328, 1329, 462 N.Y.S.2d 417, 418 (1983) (overturning
defendant’s conviction by guilty plea on the ground that the statute under which he was convicted was unconstitutional);
People v. Beaumont, 299 A.D.2d 657, 659, 749 N.Y.S.2d 612, 614 (3d Dept. 2002) (holding that the defendant’s right to
appeal the constitutionality of the statute under which he was convicted survived his valid waiver of his right to appeal).
71. See generally People v. Armlin, 37 N.Y.2d 167, 168, 332 N.E.2d 870, 871, 371 N.Y.S.2d 691, 693 (1975)
(holding that defendant’s guilty plea could not prevent the defendant from raising the issue of competency on appeal).
72. See People v. Johnson, 288 A.D.2d 501, 502, 732 N.Y.S.2d 137, 138 (3d Dept. 2001) (explaining that “to the
extent that a claim of ineffective assistance of counsel impacts on the voluntariness of a defendant’s guilty plea, the
claim survives a waiver of the right to appeal” but noting that the “claim must ordinarily be preserved by a motion to
withdraw the plea or a motion to vacate the judgment of conviction … .”).
73. For example, in People v. Allen, the Court of Appeals held that a defendant may expressly waive the right to
appeal a constitutional double jeopardy ruling in a plea bargain. The defendant in that case pleaded guilty just before
the start of a second trial after a mistrial had been declared during the first trial. When he later attempted to appeal his
conviction, the Court of Appeals ruled that he had validly waived the right to a double jeopardy defense in his plea
bargain. The court determined that society’s interest in the right to a double jeopardy defense was not as strong as, for
example, its interest in the right to a speedy trial. Therefore, while you cannot waive the right to a speedy trial, you can
waive the right to a double jeopardy defense if you agree to do so in your plea bargain. People v. Allen, 86 N.Y.2d 599,
603, 658 N.E.2d 1012, 1015, 635 N.Y.S.2d 139, 142 (1995); see also Preiser, Practice Commentaries, N.Y. Crim. Proc.
Law § 220.10 (McKinney 2002 & Supp. 2008). The Court of Appeals later held that the right to appeal a constitutional
double jeopardy ruling may be waived as part of a general waiver of the right to appeal even if the waiver agreement
does not specifically state that the right to appeal on the basis of double jeopardy is being waived. People v. Muniz, 91
N.Y.2d 570, 575, 690 N.E.2d 182, 186, 673 N.Y.S.2d 358, 362 (1998) (finding that there is “no principled basis upon
which to conclude that a defendant cannot impliedly waive a claim of double jeopardy” when the waiver agreement
allows the defendant to appeal from all waivable aspects of the case).
 Finally, note that while you cannot waive your right to challenge an illegal sentence, you can waive your
right to challenge your sentence as too harsh or excessive.74 This is true even if your plea agreement did not
contain the promise of a specific sentence as long as you were informed of the potential maximum sentence.75
3. Failure to Protest (the Preservation Requirement)
Whether you pleaded guilty or not, you may be barred from raising certain issues on appeal if you failed
to “preserve” them at trial. To preserve legal errors in the trial court for review on appeal, you (or your
lawyer, if you had one at trial) generally must have objected to these mistakes at trial when they occurred,
or at any later time when the trial court still had the chance to correct the errors.76
In other words, you usually are not allowed to raise an issue (for example, that the trial judge made a
mistake) for the first time on appeal. Instead, you must have raised the issue at the trial so that the trial
court could have addressed it before it became a problem.77 In general, you must have identified the specific
legal basis for your objection at trial in order to preserve the error for appellate review.78 However, an
appellate court will also review an error on legal grounds that you did not specify at trial if the trial court
expressly decided the particular issue in response to an objection by a party.79 In either case, the error must
have been brought to the trial court’s attention.80
You may also preserve errors for review on appeal through a request, rather than an objection. This
means that if you unsuccessfully asked the judge for a particular ruling or instruction,81 you may challenge
the trial court’s failure to give the ruling or instruction that you requested in an appeal, even if you did not
formally object to the ruling or instruction that the judge actually gave.82 If, however, you want to appeal an
error in the ruling or instruction that was actually given by the trial court, as opposed to appealing the trial

74. See People v. Espino, 279 A.D.2d 798, 799, 718 N.Y.S.2d 729, 730 (3d Dept. 2001) (explaining a defendant may
waive the right to appeal a sentence as harsh and excessive, but a defendant may never waive the right to appeal the
legality of a sentence).
75. See People v. Hidalgo, 91 N.Y.2d 733, 737, 698 N.E.2d 46, 48, 675 N.Y.S.2d 327, 329 (1998) (finding that a
defendant’s waiver of the right to appeal prevented her from appealing her sentence).
76. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp. 2006). If you make no protest, the intermediate
appellate court cannot review the error as a “question of law.” N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp.
2008). But, an appellate court nonetheless may in its discretion decide to review the error "in the interest of justice” even
if the preservation requirement has not been met. N.Y. Crim. Proc. Law. § 470.15(6) (McKinney 1994 and Supp. 2007).
The “in the interest of justice” exception to the preservation requirement is discussed in Part (b) of this Subsection.
77. See Fed. R. Crim. P. 52(b) (providing that issues not raised in the trial court because of oversight, including
sentencing issues, are normally deemed forfeited on appeal unless they meet the standard for plain error). However, if,
for example, your lawyer challenges the jury instructions during the charge conference, and emphasizes the specific
problem with the instructions, the issue may be preserved for review. See, e.g., United States v. Joseph, No. 06-5911-CR,
2008 U.S. App. LEXIS 19169, at *11–12 n.3 (2d Cir. Sept. 9, 2008) (holding that issue was preserved when defense
counsel challenged the jury instructions at the charge conference).
78. See People v. Williams, 305 A.D.2d 703, 703, 759 N.Y.S.2d 684, 685 (2d Dept. 2003) (holding that issues were
not preserved for appeal because defendant failed to object, made only general objections, or moved too late for a
mistrial); People v. Rivera, 73 N.Y.2d 941, 942, 537 N.E.2d 618, 540 N.Y.S.2d 233 (1989) (holding that defendant’s
general objections did not preserve his argument for appellate review).
79. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp. 2006); see also People v. Johnson, 144 A.D.2d 490,
491, 534 N.Y.S.2d 207, 209 (2d Dept. 1988) (finding that the ground for appeal was properly preserved even though
defendant did not specifically raise it at trial, but finding only harmless error); see generally Preiser, Practice
Commentaries, N.Y. Crim. Proc. Law § 470.05 (McKinney 1994 & Supp. 2006) (summarizing New York Criminal
Procedure Law Section 470.05, which explains when an appeal will be allowed).
80. Note that this requirement applies to the prosecution too. Also, note that if a party does not file an appeal or a
cross-appeal, a court may not remedy an error, even in a clear error on its own initiative. See, e.g., Greenlaw v. United
States, 128 S. Ct. 2559, 2562; 171 L. Ed. 2d 399, 406 (2008) (holding that, absent a motion by a party in the form of an
appeal or cross appeal, a court cannot on its own initiative change a defendant’s sentence because it was clear error). In
Greenlaw, the lower court imposed a 10 year sentence on a count carrying a 25 year minimum. The government had
failed to appeal or cross-appeal this sentence, though it did object. The appellate court used the “plain error” rule to
justify finding the sentence too low. The Supreme Court held that it could not increase the sentence in this manner.
81. “Instruction” refers to what the judge tells the jury it should or should not consider as well as what questions
the jury must answer when it is deciding the verdict in your case.
82. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994 & Supp. 2008); see also People v. Leisner, 73 N.Y.2d 140,
147, 535 N.E.2d 647, 650, 538 N.Y.S.2d 517, 520 (1989) (holding that a trial court’s failure to give the jury the requested
instruction was an error preserved for appellate review).
court’s decision not to grant your request, you must have objected to the error at trial.83 If you did not object
to an error at your trial and the court did not consider the specific issue, an appellate court will usually
refuse to consider the error on appeal.
If you failed to preserve an error, there are two ways you may be able to appeal it. First, if the error you
wish to appeal falls into a limited class of errors that affect “the organization of the court or the mode of
proceedings,” you can appeal even if you did not preserve the error.84 These errors, which are listed in
Section (a) below, are considered so fundamental that they are not subject to the preservation requirement.
Second, even if you were required to preserve an error, a court may consider your appeal “in the interest
of justice.” This happens when a court believes that the error violated a fundamental principle of law.85 For
example, if the court believes that you did not receive a fair trial, or were denied one of your fundamental
constitutional rights, it may decide to consider your appeal “in the interest of justice.”86 These errors are
discussed in more detail in Section (b) below.
(b) Errors Not Subject to the Preservation Requirement
If the error you wish to appeal is a “mode of proceedings” error, you can raise it for the first time on
appeal, even if you did not preserve the error. “Mode of proceedings” errors include:87
(1) You were tried twice for the same offense in violation of your rights against double jeopardy
guaranteed by the New York State and U.S. Constitutions88 (note that this does not apply to rights
against double jeopardy provided by statute rather than a constitution89);

83. See People v. Leisner, 73 N.Y.2d 140, 147, 535 N.E.2d 647, 650, 538 N.Y.S.2d 517, 520 (1989) (finding that an
objection to a jury instruction is preserved when the court fails to grant the instruction request); People v. Narayan, 54
N.Y.2d 106, 112–13, 429 N.E.2d 123, 125, 444 N.Y.S.2d 604, 606 (1981) (holding defendant must timely object to a
judge’s ruling affecting his ability to confer with his attorney in order for the issue to be considered on appeal). If the
trial court grants the instruction that you (or your lawyer) requested but makes a mistake or otherwise gives an
instruction different than the instruction that you requested, this error is not preserved for appeal unless you brought
the mistake or inconsistency to the trial court’s attention at a time when the error could have been corrected. See People
v. Whalen, 59 N.Y.2d 273, 280, 451 N.E.2d 212, 215, 464 N.Y.S.2d 454, 457 (1983) (“Inasmuch as defendant’s request
was initially granted and his comments after the charge did not alert the [t]rial [j]udge to the error so as to afford an
opportunity to correct himself, defendant must be deemed to have waived any objection to the alibi instruction.”).
84. People v. Mehmedi, 69 N.Y.2d 759, 760, 505 N.E.2d 610, 611, 513 N.Y.S.2d 100, 101 (1987) (citing People v.
Ahmed, 66 N.Y.2d 307, 310, 487 N.E.2d 894, 896–7, 496 N.Y.S.2d 984, 985 (1985)) (holding that violation of defendant’s
right to be present at all material stages of the trial was automatically preserved for appeal, even though defendant did
not make an objection at trial); People v. Patterson, 39 N.Y.2d 288, 295, 347 N.E.2d 898, 903, 383 N.Y.S.2d 573, 577
(1976), aff’d, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977) (considering defendant’s appellate claim, even though
defendant had not raised a timely objection at trial, because the issue on appeal went to the organization of the court or
mode of proceedings at trial); see also N.Y. Crim. Proc. Law § 470.15(3)(c), (6)(a) (McKinney 1994 & Supp. 2007).
85. N.Y. Crim. Proc. Law § 470.15(3)(c), (6)(a) (McKinney 1994 & Supp. 2006).
86. See Ulster County Ct. v. Allen, 442 U.S. 140, 151 n.10, 99 S. Ct. 2213, 2221, n.10, 60 L. Ed. 2d 777, 788 n.10
(1979) (noting that “the New York Court of Appeals has developed an exception to the State’s contemporaneous-objection
policy that allows review of unobjected-to errors that affect a fundamental constitutional right”); People v. Voliton, 83
N.Y.2d 192, 195–96, 630 N.E.2d 641, 643, 608 N.Y.S.2d 945, 947 (1994) (affirming the appellate division’s use of its “in
the interest of justice” discretion to vacate and dismiss a conviction on the grounds of illegal seizure by the police but
declining to review defendant’s due process claim that was raised for the first time on appeal).
87. For a list of errors not subject to the preservation requirement, see People v. Ahmed, 66 N.Y.2d 307, 311–12,
487 N.E.2d 894, 896–97, 496 N.Y.S.2d 984, 986–87 (1985) (reversing defendant’s conviction where trial judge had, with
defendant’s consent, been absent for part of the jury deliberations, leaving a law clerk to answer questions from jurors).
88. U.S. Const. amend. V; N.Y. Const. art. I, § 6; see also People v. Prescott, 66 N.Y.2d 216, 218, 486 N.E.2d 813,
814, 495 N.Y.S.2d 955, 956 (1985) (holding that a claim of double jeopardy can be raised for the first time on appeal).
However, a claim of double jeopardy cannot be raised on appeal if the circumstances surrounding the defendant’s failure
to object amounted to a waiver of the right to appeal on double jeopardy grounds, or if the defendant has waived the
right to appeal by a waiver agreement. See People v. Michallow, 201 A.D.2d 915, 916, 607 N.Y.S.2d 781, 783 (1994)
(stating that defendant’s failure to object to mistrial was implied consent, and thus acted as waiver of her constitutional
right against double jeopardy); People v. Michael, 48 N.Y.2d 1, 7, 394 N.E.2d 1134, 1137, 420 N.Y.S.2d 371, 374 (1979)
(holding that that the issue of constitutional jeopardy may be raised for the first time on appeal, but noting that if a
defendant participated in court discussions regarding the grant of a mistrial and a retrial, and did not object to the
retrial, the defendant implicitly waived the right to challenge the retrial on double jeopardy grounds); People v. Muniz,
91 N.Y.2d 570, 574, 696 N.E.2d 182, 185, 673 N.Y.S.2d 358, 361 (1998) (a claim of constitutional double jeopardy may
validly be waived). For a discussion on waiver of the right to appeal, including waiver of the right to appeal a claim of
double jeopardy, see Part (C)(2) of this Chapter.
89. See People v. Biggs, 1 N.Y.3d 225, 231, 803 N.E.2d 370, 771 N.Y.S.2d 49, 53 (2003) (noting that unlike state
 (2) You were deprived of your right to a lawyer;90
(3) You were deprived of your right to be present at an important stage of the trial91 or other important
court proceedings;92
(4) Your lawyer was not told of the contents of a note the judge received from the jury before the judge
answered the jury’s questions;93
(5) You were deprived of your right to have your trial supervised by a judge;94 or
(6) Your sentence, or the way in which it was determined, was illegal.95
(c) Errors Reviewed “In the Interest of Justice”
If you failed to preserve an error that needed to be preserved for appeal, an intermediate appellate court
may decide to review the error “in the interest of justice.” In these cases, the appellate court will revisit the
issue if it believes the error was so harmful to you as to have made a fair trial impossible.96
Note that if you did not properly preserve an issue at trial, an appellate court is not required to review it
in the interest of justice. For example, if you are not a second felony offender, but the trial court treated you
as a second felony offender for sentencing purposes anyway, you should have objected at the time you were

and federal constitutional double jeopardy claims, which are reviewable even if not preserved at the trial court level, an
unpreserved statutory double jeopardy claim is not reviewable).
90. See People v. Arthur, 22 N.Y.2d 325, 329,239 N.E.2d 537, 539, 292 N.Y.S.2d 773, 666 (1968); (holding that the
issue of whether defendant was wrongly denied the right to counsel during police interrogation could be heard on appeal
for the first time, where statements made during the interrogation were used by the prosecution during trial); People v.
Kinchen, 60 N.Y.2d 772, 773, 457 N.E.2d 786, 787, 469 N.Y.S.2d 680, 681 (1983) (same).
91. See People v. Mehmedi, 69 N.Y.2d 759, 760, 505 N.E.2d 610, 611, 513 N.Y.S.2d 100, 101 (1987) (affirming
reversal of defendant’s conviction on the basis that instructions were given to the jury in defendant’s absence, even
though defendant’s trial counsel did not object to defendant being absent); see also People v. Kelly, 11 A.D.3d 133, 142–
43, 781 N.Y.S.2d 75, 84 (1st Dept. 2004), aff’d, 5 N.Y.3d 116, 832 N.E.2d 1179, 799 N.Y.S.2d 763 (2005) (acknowledging
that a violation of the right of a defendant to be present at the material stages of the trial is preserved for appellate
review even without an objection, but finding that defendant’s right to be present had not been violated).
92. See People v. Antommarchi, 80 N.Y.2d 247, 250, 604 N.E.2d 95, 97, 590 N.Y.S.2d 33, 35 (1992) (holding that
defendant has a right to be present at sidebar questioning of jurors when questioning explores prospective jurors’
backgrounds and relates to their ability to weigh the evidence objectively, but not when questioning relates to physical
impairment, family obligations, or work commitment); People v. Dokes, 79 N.Y.2d 656, 659, 595 N.E.2d 836, 838, 584
N.Y.S.2d 761, 763 (1992) (finding that a defendant’s statutory right to be present at trial includes the right to be present
during the selection of the jury, the introduction of evidence, the closing argument of counsel, and the court’s charge to
the jury); People v. McAdams, 22 A.D.3d 885, 885–86, 802 N.Y.S. 531, 532 (3d Dept. 2005) (finding that denial of
unwaived right to be present at sidebar conferences with potential jurors, including one conference about possible juror
bias, constitutes a denial of defendant’s right to be present at a material stage of the proceeding and is reversible error
on appeal even though defendant did not object at trial). You may, however, waive your right to be present if you
knowingly, voluntarily, and intelligently make the waiver. See People v. Williams, 92 N.Y.2d 993, 996, 706 N.E.2d 1187,
1189, 684 N.Y.S.2d 163, 165 (1998); People v. Kelly, 11 A.D.3d 133, 143, 781 N.Y.S.2d 75, 84 (1st Dept. 2004); People v.
Keen, 94 N.Y.2d 533, 728 N.E.2d 979, 707 N.Y.S.2d 380 (2000) (holding that the defendant effectively had waived his
right to be present for certain court proceedings).
93. See People v. O’Rama, 78 N.Y.2d 270, 276–80, 579 N.E.2d 189, 192–94, 574 N.Y.S.2d 159, 162–64 (1991);
People v. Kisoon, 23 A.D.3d 18, 22–23, 801 N.Y.S.2d 69, 72 (2d Dept. 2005) (holding court’s failure to give defendant’s
attorney a complete reading of jury’s question is preserved for appellate review even without an objection at trial). But
see People v. Williams, 38 A.D.3d 429, 430, 833 N.Y.S.2d 29, 30 (1st Dept. 2007) (holding if the trial court takes some
action in response to a juror’s note before reading the note to your attorney, but that action taken by the trial court was
not significant or would not have required input from your attorney, this error may not be appealed if not preserved).
94. See People v. Ahmed, 66 N.Y.2d 307, 311–12, 487 N.E.2d 894, 896–97, 496 N.Y.S.2d 984, 986–87 (1985)
(reversing defendant’s conviction where trial judge had, with defendant’s consent, been absent for part of the jury
deliberations, leaving a law clerk to answer two questions from jurors).
95. See People v. Callahan, 80 N.Y.2d 273, 280–81, 604 N.E.2d 108, 112, 590 N.Y.S.2d 46 (1992); People v. Samms,
95 N.Y.2d 52, 55–56, 731 N.E.2d 1118, 1120–21, 710 N.Y.S.2d 310, 312–13 (2000) (giving a more complete explanation of
which illegal sentence claims can be raised for the first time on appeal). Note, however, that this applies to sentences
that are illegal (that is, not allowed by law) and not merely harsh or excessive (but within the legal sentence that the
trial court was allowed to impose). See Part E(4) of this Chapter for a discussion of the difference between illegal and
excessive sentences.
96. N.Y. Crim. Proc. Law § 470.15(6) (McKinney 1994 & Supp. 2007). One strategy for bringing these types of non-
preserved claims is to include them in an ineffective assistance claim. For guidance on how to make this type of claim,
see JLM Chapter 12, Part B(3).
sentenced. If you failed to do so, an intermediate appellate court may still review the issue in the interest of
justice, but the decision to review the issue is completely up to the intermediate appellate court.97
Similarly, if you claim that the evidence used to convict you was legally insufficient, an appellate court
will not review this error as a “question of law,” unless you or your lawyer made a specific objection at trial,
not later than the conclusion of evidence and before summation.98 However, if legal insufficiency of the
evidence is first discovered by your lawyer on appeal, an intermediate appellate court may still decide to
hear your claim “in the interest of justice.”99 By contrast, a claim that the verdict is against the “weight of
the evidence”100 is a question of law that does not need to be preserved in order to be raised on appeal.101
D. What You Can Ask the Court to Do Before It Hears Your Appeal
Before an appellate court hears your appeal, you can ask the court system to help you with several
things, including getting a lawyer and a transcript of your trial. You can also ask the appellate court to stay
your judgment and release you on bail. This Part discusses each of these things in more detail.
1. Getting a Lawyer
You have a constitutional right to a lawyer on direct appeal.102 This means if you cannot afford a lawyer,
you can ask the appellate court to appoint a lawyer to represent you at no cost.103 Your right to a lawyer
applies when you or the government appeals a trial court’s final judgment. It also applies when you or the
government appeals other decisions the trial court made during the proceedings, including decisions about
what evidence is allowed, decisions to set aside the jury’s verdict, and denials of motions.104 To get a lawyer,
you will need to show proof that you do not have enough money to hire an attorney and to pay the cost and
expenses of your appeal.105 Appendix B provides samples of the papers you should file to make this request.

97. See People v. Benton, 196 A.D.2d 755, 756, 601 N.Y.S.2d 918, 919 (1st Dept. 1993) (court used its judgment to
review an incorrect decision which classified the defendant as a second violent felony offender). But see People v. Walton,
309 A.D.2d 956, 957, 766 N.Y.S.2d 93, 94 (2d Dept. 2003) (court declined to review defendant’s unpreserved claim that
he had been wrongly deemed a second violent felony offender).
98. See People v. Gray, 86 N.Y.2d 10, 19, 652 N.E.2d 919, 921, 629 N.Y.S.2d 173, 175 (1995) (holding that a claim
of legal insufficiency of the evidence must be preserved for review as a “question of law”, but noting that an intermediate
appellate court may decide to review such a claim “in the interest of justice” even if it was not preserved); see generally
Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 470.05 (McKinney 1994 & Supp. 2007).
99. See People v. Gray, 86 N.Y.2d 10, 22, 652 N.E.2d 919, 923, 629 N.Y.S.2d 173, 177 (1995) (holding that a claim
of legal insufficiency of the evidence must be preserved, but noting that an intermediate appellate court may decide to
review such a claim “in the interest of justice” even if it was not preserved).
100. See People v. Bleakley, 69 N.Y.2d 490, 493, 508 N.E.2d 672, 674, 515 N.Y.S.2d 761, 762 (1987) (describing
“weight of the evidence” analysis).
101. See People v. Roman, 217 A.D.2d 431, 431, 629 N.Y.S.2d 744, 745 (1st Dept. 1995) (finding that an appellate
claim that the verdict was against the weight of the evidence need not have been raised before the trial court because a
trial court has no authority to make a decision on this type of claim).
102. Anders v. California, 386 U.S. 738, 741, 87 S. Ct. 1396, 1398; 18 L. Ed. 2d 493, 496 (1967) (finding that an
indigent person has the right to appellate representation equal to that of a nonindigent person); Douglas v. California,
372 U.S. 353, 356-357, 83 S. Ct. 814, 815–16; 9 L. Ed. 2d 811, 813–14 (1963) (holding that the 14th Amendment requires
states to provide indigent persons representation on their appeals as of right); People v. Garcia, 93 N.Y.2d 42, 46, 710
N.E.2d 247, 249, 687 N.Y.S.2d 601, 603 (1999) (“[O]n a People's appeal, a defendant has the right to appellate counsel of
defendant's choice and the right to seek appointment of counsel upon proof of indigency.”)
103. If you were represented by a court-appointed lawyer at trial, your lawyer must continue to represent you
until your appeal is disposed of, unless he or she voluntarily withdraws from your case or is ineligible to continue as your
attorney. See People v. Strolla, 186 N.Y. 526, 526, 78 N.E. 1109, 1109 (1906). In order to continue as your lawyer on
appeal, your lawyer must (1) obtain your written consent and (2) be a member of the Assigned Counsel Plan appellate
panel. N.Y. Sup. Ct. Rules § 600.8 (2006). If your attorney is unable or unwilling to continue, you should request
appointment of a new attorney from the appellate court. See People v. Garcia, 93 N.Y.2d 42, 46, 710 N.E.2d 247, 249, 687
N.Y.S.2d 601, 603 (1999) (“[O]n a People's appeal, a defendant has the right to appellate counsel of defendant's choice
and the right to seek appointment of counsel upon proof of indigency.”).
104. N.Y. Unif. Trial Ct. Rules § 200.40 (2006).
105. N.Y. Sup. Ct. Rules § 671.5 (2006); see generally People v. West, 100 N.Y.2d 23, 789 N.E.2d 615, 759 N.Y.S.2d
437 (2003) (explaining the state’s obligation to provide legal counsel to poor defendants for appeals), rev’d on other
grounds, 12 A.D. 3d 152, 783 N.Y.S.2d 473 (1st Dept. 2004).
 If you decide that you do not want a lawyer to represent you on appeal, you may be able to prepare your
appeal and appear in court on your own, which is called appearing “pro se.” Note, however, that you do not
have a constitutional right to represent yourself on appeal, but a state may allow you to do so if it chooses.106
2. Requesting a Transcript
You can ask the trial court to provide you with a free transcript of your trial. In addition, you may ask
for permission to appeal on “the original record.” If the trial court grants this request, it will give the
appellate court and the prosecution copies of the record.107
3. Requesting a Stay
After filing and serving notice of your appeal, you can request a judge to “stay” your judgment. A stay
delays or interrupts your sentence’s execution until after your appeal. If you are appealing a death sentence,
or a judgment including a death sentence, the execution of your sentence is automatically stayed by filing a
notice of appeal.108 Note that you may file only one stay application after filing a notice of appeal.109
If you decide to apply for a stay, you will need to figure out whom you should ask for the stay. This will
depend on which court tried and sentenced you and which court will hear your appeal. For example, if you
are appealing to an appellate division from a judgment of a supreme court, you may apply for a stay from
any appellate division or supreme court judge in the county where the judgment was entered.110
4. Requesting Release from Jail
While you are waiting for your appeal to be heard, you can request a judge to release you on bail or on
your own “recognizance.” To be released on your own recognizance means that a court will permit you to
leave jail, on the condition that you will appear at court whenever your attendance is required, and that you
will comply with the orders and processes of the court.111
You do not have an absolute right to bail or recognizance while waiting for appeal.112 But, depending on
your offense, a judge may be able to grant your request. In many cases, a judge has discretion to determine
whether to release you. This means the law does not require the judge to keep you in custody or release you.
In these cases, you may not appeal the judge’s decision.113 But, in other cases, a judge does not have this
discretion. This means the law determines whether you must be held in custody.114 For example, if you were
convicted of a Class A felony, a judge may not release you because the law requires you be held in custody.115

106. See Martinez v. Court of Appeal of California, 528 U.S. 152, 160, 120 S. Ct. 684, 690 (2000).
107. See Appendix B-3 of this Chapter for sample papers to request free trial transcripts and copies of the record.
108. N.Y. Crim. Proc. Law § 460.40(1) (McKinney 2005 & Supp. 2007).
109. N.Y. Crim. Proc. Law § 460.50(3) (McKinney 2005 & Supp. 2007).
110. See Appendix A at the end of this Chapter.
111. N.Y. Crim. Proc. Law § 460.50(1) (McKinney 2005 & Supp. 2007); N.Y. Crim. Proc. Law § 460.50(2)(a)
(McKinney 2005 & Supp. 2007). To determine which judges can grant your application for a stay, see N.Y. Crim. Proc.
Law § 460.50(2) (McKinney 2005 & Supp. 2007).
112. See, e.g., United States v. Salerno, 481 U.S. 739, 752–55, 107 S. Ct. 2095, 2104–05, 95 L. Ed. 2d 697, 712–14
(1987); Gold v. Shapiro, 62 A.D.2d 62, 65, 403 N.Y.S.2d 906, 907, (2d Dept. 1978), aff’d, 45 N.Y.2d 849, 382 N.E.2d 767,
410 N.Y.S.2d 68 (1978). You do have the constitutional right that the court’s discretion not be exercised unreasonably or
arbitrarily, and that bail not be excessive. U.S. Const. amend. VIII; N.Y. Const. art. 1, § 5; see also Finetti v. Harris, 609
F.2d 594, 599–602 (2d Cir. 1979) (holding that denial of bail could be unconstitutional if the defendant could show that
there is no rational basis in the record to support the court’s decision).
113. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 460.50 (McKinney 2005 & Supp. 2007); see also
United States ex rel. Siegal v. Follette, 290 F. Supp. 636, 638 (S.D.N.Y. 1968) (NY law permits a judge to grant or deny
bail at her discretion after weighing the facts she considers significant). However, although an order denying bail is not
appealable, it may be reviewed on habeas corpus grounds. See JLM Chapter 21, “State Habeas Corpus.”
114. N.Y. Crim. Proc. Law § 510.30(1)(a)(b) (McKinney 1995 & Supp. 2006). N.Y. Crim. Proc. Law § 530.10
(McKinney 2005 & Supp. 2007) explains when a court is required or authorized to order bail or recognizance. A
defendant charged with a crime is entitled to bail or recognizance while a criminal action is pending. Sometimes even
after conviction a defendant is entitled to bail while his appeal is pending. New York State’s bail procedures are
statutory, with no automatic right to bail in New York State. But, bail must not violate the 8th Amendment restrictions
on excessive bail. See People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 33, 300 N.E.2d 716, 720, 347 N.Y.S.2d 178, 184
(1973). With certain exceptions, a court is not required to order bail or recognizance since the granting of these remedies
are generally discretionary. People v. Torres, 112 Misc. 2d 145, 149, 446 N.Y.S.2d 969, 972 (Sup. Ct. N.Y. County 1981).
115. N.Y. Crim. Proc. Law § 530.50 (McKinney 1995 & Supp. 2007).
 If your offense does not automatically require you to be held in custody, a judge will consider the
following factors to decide whether to grant your request for release:
(1) Your character, reputation, habits, and mental condition;
(2) Your employment and financial resources;
(3) Your family ties and length of residence in the community;
(4) Your criminal record, if any;
(5) Your previous record as a juvenile delinquent or youth offender, if any;
(6) Your previous record of responding to court appearances when required; and, above all,
(7) The likelihood that the judgment against you will be reversed on appeal.116
A judge may refuse to release you on bail if he or she thinks an appellate court is unlikely to reverse
your judgment.117 Therefore, when you submit a request for bail, you should include a brief statement that
explains your appellate claims and demonstrates that there is a reasonable possibility of reversal.
In general, you should petition for bail if there is any chance it will be granted. Keep in mind, though,
the amount of bail may be more than you can afford. If you are released on bail, you will avoid the difficulty
of preparing an appeal while in jail. But, you will not receive jail credit for the time that you are out on bail.
Note also if you are released on bail while your appeal is pending, the order releasing you will expire if
your appeal is not “perfected” within 120 days after the order is given.118 Generally, to perfect an appeal you
must deliver a specified number of copies of the trial record and your brief to the appellate court and the
opposing party.119 If your appeal is not perfected within 120 days, you should request a time extension to file
an appeal, explicitly asking the court to extend the 120-day period.120
E. What You Can Ask the Court to Do in an Appeal
In an appeal, you can ask the court to reverse or modify (reverse in part) the trial court’s judgment,
sentence, or order, and to direct some corrective action.121 If the appellate court determines that there was
error in your legal proceedings, it must decide what to do to correct the error. Some types of errors are
considered so serious that they automatically warrant the reversal of your judgment. Other errors have the
potential to be serious enough to warrant reversal, but they do not automatically require the court to
reverse. The court analyzes these errors under the “harmless error test.” The court decides an error is
harmless if it believes you would have received the same conviction and/or sentence even if the error had not
occurred. The court will not reverse or modify a judgment based on a harmless error.
1. Errors Requiring Automatic Reversal
Some errors are considered so harmful that their occurrence means you were denied a fair trial and are
entitled to a new one. These “fundamental errors” have such a significant effect on the verdict that they will
usually lead to an automatic reversal of your conviction.122 For example, errors in which the court misstates
the prosecution’s burden of proof on an issue will usually be considered fundamental.123 Other examples of
errors requiring automatic reversal include
(1) You were deprived of your right to counsel;124 including if you were denied your right to a lawyer of
your choosing,125 or if you were represented by a person pretending to be a lawyer;126

116. N.Y. Crim. Proc. Law § 510.30(2)(a)B(b) (McKinney 1995 & Supp. 2007).
117. See N.Y. Crim. Proc. Law § 510.30(2)(b) (McKinney 1995 & Supp. 2007).
118. N.Y. Crim. Proc. Law § 460.50(4) (McKinney 2005 & Supp. 2007). Note that under this statute, an order
granting release will expire if your appeal has “not been brought to argument in or submitted to the intermediate
appellate court” within 120 days. Courts have interpreted this statute to mean that such an order will expire if your
appeal is not perfected within 120 days. See People v. Higgins, 177 A.D.2d 1052, 578 N.Y.S.2d 70 (4th Dept. 1991).
119. N.Y. Crim. Proc. Law § 460.70 (McKinney 2005 & Supp. 2006). For more information about how to prefect
your appeal, see Part F(3) of this Chapter.
120. N.Y. Crim. Proc. Law § 460.50(4) (McKinney 2005 & Supp. 2007). The intermediate appellate court itself
must grant the extension, regardless of who issued the order. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law
§ 460.50 (McKinney 2005 & Supp. 2007).
121. You may also ask the trial court to conduct an additional fact-finding hearing, as explained in Part B of this
Chapter. See also N.Y. Crim. Proc. Law § 470.20 (McKinney 1994 & Supp. 2007).
122. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 470.05 (McKinney 1994 & Supp. 2007).
123. See People v. McLaughlin, 80 N.Y.2d 466, 472, 606 N.E.2d 1357, 1360, 591 N.Y.S.2d 966, 969 (1992)
(reversing convictions on counts for which the judge gave an erroneous charge to the jury).
124. See Gideon v. Wainwright, 372 U.S. 335, 339–43, 83 S. Ct. 792, 794–96, 9 L. Ed. 2d 799, 802–04, (1963)
 (2) The court failed to inform you of the dangers of proceeding without a lawyer;127
(3) You were denied your right to represent yourself;128
(4) Your judge was biased;129
(5) The judge gave a defective reasonable doubt instruction to the jury, in violation of your Fifth and
Sixth Amendment rights;130
(6) The judge gave an instruction to the jury that defined two alternative reasons for conviction, one
which was legally erroneous, and the appellate court now cannot say with absolute certainty that the
jury based its verdict on legally correct reason;131
(7) You were denied your state statutory right to be present at certain stages of the trial;132
(8) The verdict may have been based on either of two theories, one of which is illegal;133
(9) The prosecutor wrongly excluded potential jurors on the basis of their race or sex;134

(holding that a defendant in a criminal case has a constitutional right to assistance of counsel); People v. Hilliard, 73
N.Y.2d 584, 586–87, 540 N.E.2d 702, 542 N.Y.S.2d 507, 507–08 (1989) (holding that the trial court’s error in not allowing
defendant to contact his attorney for thirty days prior to arraignment was reversible error whether or not it was
harmless). In contrast to denial of effective assistance of counsel at trial, harmless error analysis is applicable to denial
of effective counsel at a pre-indictment preliminary hearing. See People v. Wicks, 76 N.Y.2d 128, 133–34, 556 N.E.2d
409, 411–12, 556 N.Y.S.2d 970, 972–73 (1990) (holding that the deprivation of a defendant’s right to counsel at a hearing
to determine whether the defendant could be held over for action by the grand jury is subject to harmless error analysis);
People v. Wardlaw, 18 A.D.3d 106, 112, 794 N.Y.S.2d 524, 529 (4th Dept. 2005) (holding that the deprivation of a
defendant’s right to counsel at a pretrial suppression hearing is subject to constitutional harmless error analysis).
125. See Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L. Ed. 158, 162; People v. Arroyave, 49 N.Y.2d
264, 270–71, 401 N.E.2d 393, 396–97, 425 N.Y.S.2d 282, 285–86 (1980).
126. See People v. Felder, 47 N.Y.2d 287, 294–96, 391 N.E.2d 1274, 1277–78, 418 N.Y.S.2d 295, 298–99 (1979)
(holding that the fact that defendant had unknowingly been represented by a non-lawyer who was pretending to be a
lawyer required automatic reversal). However, not every instance in which a person who is not licensed to practice law
participates as a lawyer for the defendant will require automatic reversal. See People v. Jacobs, 6 N.Y.3d 188, 190, 844
N.E.2d 1126, 1127, 811 N.Y.S.2d 604, 605 (2005) (holding that the minimal participation of a non-lawyer pretending to
be a lawyer in the defense did not require automatic reversal when the defendant was also at all times represented by a
licensed lawyer); People v. Kieser, 79 N.Y.2d 936, 937, 591 N.E.2d 1174, 582 N.Y.S.2d 988, 988 (1992) (holding that the
fact that a defendant is represented by a lawyer who is temporarily not entitled to practice law for some technical
reason, such as failure to pay bar dues, does not automatically require reversal).
127. See People v. Arroyo, 98 N.Y.2d 101, 103–04, 772 N.E.2d 1154, 1156, 745 N.Y.S.2d 796, 798 (2002) (reversing
a conviction because the trial court allowed defendant to represent himself without adequate inquiry into defendant’s
understanding of the choice).
128. See Faretta v. California, 422 U.S. 806, 833–34, 95 S. Ct. 2525, 2540–41, 45 L. Ed. 2d 562, 580–81 (1975)
(holding that forcing a literate, competent, and understanding defendant to be represented by counsel violated the
defendant’s 6th and 14th Amendment rights). However, a mentally ill individual does not necessarily have the right to
self-representation. The Supreme Court recently held that a court has the discretion to deny the request if the person is
found to lack the competence to represent himself at trial. In other words, in these cases, the judge may force the
defendant to accept the aid of a lawyer. Indiana v. Edwards, 128 S. Ct. 2379, 2388; 171 L. Ed. 2d 345, 357 (2008).
129. See Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 441, 71 L. Ed. 749, 754 (1927) (holding that trial under a
judge with a strong personal interest in the case violated defendant’s 14th Amendment rights).
130. See Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 188 (1993) (holding the
jury verdict required by the 6th Amendment must be one of guilt beyond a reasonable doubt under the 5th Amendment).
131. See United States v. Joseph, No. 06-5911-CR, 2008, U.S. App. LEXIS 19169, at *13 (2d Cir. Sept. 9, 2008).
132. See, e.g., People v. Antommarchi, 80 N.Y.2d 247, 250, 604 N.E.2d 95, 97, 590 N.Y.S.2d 33, 35 (1992)
(defendant was not present at bench conferences with jury candidates); People v. Dokes, 79 N.Y.2d 656, 661, 595 N.E.2d
836, 839–40, 584 N.Y.S.2d 761, 764–65 (1992) (defendant was not present at hearing about impeaching him with prior
illegal or immoral acts); see also People v. Kelly, 11 A.D.3d 133, 142–43, 781 N.Y.S.2d 75, 84 (1st Dept. 2004), aff’d, 5
N.Y.3d 116; 832 N.E.2d 1179; 799 N.Y.S.2d 763 (2005) (finding that defendant’s right to be present had not been
violated, but noting that such an error could not be considered harmless). But see State v. W.A., 184 N.J. 45, 63–64, 875
A.2d 882, 894 (2005) (holding that, unlike the New York rule, a defendant who does not affirmatively request the right to
participate in bench conferences over jury selection should be considered to have waived the right).
133. See People v. Martinez, 83 N.Y.2d 26, 32, 628 N.E.2d 1320, 1323, 607 N.Y.S.2d 610, 613 (1993) (holding that
harmless error analysis is not appropriate if the judge told the jury it could return a guilty verdict based on either of two
theories, one of which was illegal, and the jury did not say which theory it used to reach the guilty verdict).
134. The law no longer requires that you be a member of the same group as the wrongfully excluded jurors for the
error to be considered fundamental. Powers v. Ohio, 499 U.S. 400, 416, 111 S. Ct. 1364, 1374, 113 L. Ed. 2d 411, 429
(1991). The 14th Amendment prohibits discrimination in jury selection on the basis of gender as well as race. See J.E.B.
v. Alabama, 511 U.S. 127, 129, 114 S. Ct. 1419, 1421, 128 L. Ed. 2d 89, 97 (1994); see also Snyder v. Louisiana, 128 S. Ct.
1203; 170 L. Ed. 2d 175 (2008) (granting that a new trial was warranted because the prosecutor had improperly excluded
black jurors in a case where the defendant was black). In Snyder, the court found that a close examination of why the
 (10)You were denied the guarantee of a public trial;135
(11)A juror was improperly removed from the jury;136
(12)Your judge was absent during part of your trial;137
(13)During the selection of jurors, your judge improperly denied your claim that a juror should not be
included in the jury, and this refusal was based on the judge’s incorrect conclusion that you or your
lawyer were discriminating on the basis of race or gender;138 or
(14)During the selection of jurors, your judge improperly denied your claim that a juror should not be
included because the juror expressed doubt about his or her ability to decide the case fairly, and you
or your lawyer eventually used up all of your challenges to the jury composition.139
Note that the question of whether the harmless error test applies (as opposed to automatic reversal), and
what standard to apply, are issues evolving on both the state and federal levels.140
2. Errors Subject to Harmless Error Test
If the error that occurred in your proceedings was not one requiring automatic reversal of your
judgment, the court will subject the error to the harmless error test. Once the court decides that the error
occurred, it must decide if the error harmed you. In general, if the court finds your conviction (or plea) and
your sentence would have been the same even if the error had not occurred, then it will find the error was
harmless. The specific test that New York appellate courts apply to determine whether an error is harmless
depends on whether the error is a constitutional or non-constitutional error.
A non-constitutional legal error does not violate rights guaranteed by the U.S. Constitution or the New
York State Constitution. Rather, these types of errors generally violate rights guaranteed by state statutes
or common law. A non-constitutional legal error is harmful if: (1) there was not overwhelming proof of your
guilt at trial (apart from any wrongly admitted evidence); or (2) despite overwhelming proof of your guilt,
there is a “significant probability” that the jury would have acquitted you had it not been for the error.141
For example, the trial judge may not improperly examine a witness (for instance, by asking a witness
questions in a way that conveys to the jury an impression that the judge does not find the witness to be
credible).142 If the appellate court holds that the trial judge did indeed improperly examine a witness, it will
use the harmless error test to determine if your judgment should be modified or reversed. In general, the
stronger the evidence against you, the more likely a court will find a non-constitutional error harmless (and
therefore affirm the judgment against you).
A constitutional error is a legal error that violates rights guaranteed by the U.S. Constitution or the New
York State Constitution. Appellate courts apply a stricter standard (one that is more favorable to the
defendant) when reviewing constitutional errors. In general, a constitutional error is harmful unless there is
no reasonable possibility that the error might have contributed to your conviction, and thus the error is
harmless beyond a reasonable doubt.143

prosecutor excluded jurors was necessary where racial motives were present but not acknowledged.
135. See Waller v. Georgia, 467 U.S. 39, 47, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d 31, 39 (1984) (holding that closure
of a hearing without the required safeguards violated defendant’s 6th Amendment rights).
136. See, e.g., People v. Jones 210 A.D.2d 430, 431, 620 N.Y.S.2d 124, 125 (2d Dept. 1994) (reversing defendant’s
conviction and ordering a new trial because the trial court did not conduct a proper inquiry before discharging a juror,
and noting that such an error is not subject to harmless error analysis).
137. See People v. Ahmed, 66 N.Y.2d 307, 311, 487 N.E. 2d 894, 896, 496 N.Y.S.2d 984, 986 (1985) (absence of
judge during jury deliberations violated defendant’s right to jury trial, and conviction was reversed).
138. See, e.g., People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263, 267 (2d Dept. 1995) (reversing conviction
where trial court had improperly applied the Batson standard in rejecting defendant’s peremptory challenges).
139. See People v. Johnson, 94 N.Y.2d 600, 614–15 730 N.E.2d 932, 940, 709 N.Y.S.2d 134, 142 (2000) (holding
that the trial court erred by failing to either excuse or demand unconditional assurances from jurors who openly
admitted that they doubted whether they could be fair in the case).
140. For example, in 1991, the United States Supreme Court ruled that the harmless error test applies to the
admission of coerced confessions, in a departure from previous law. See Arizona v. Fulminante, 499 U.S. 279, 312,111 S.
Ct. 1246, 1266, 113 L. Ed. 2d 302, 333 (1991). This was a change in the previous standard explained in Payne v.
Arkansas, 356 U.S. 560, 568, 78 S. Ct. 844, 850, 2 L. Ed. 2d 975, 981 (1958).
141. See People v. Ayala, 75 N.Y.2d 422, 431, 553 N.E.2d 960, 964, 554 N.Y.S.2d 412, 416 (1990) (holding that
violations of defendant’s statutory rights at trial were harmless).
142. See People v. Mendez, 225 A.D.2d 1051, 1051–52, 639 N.Y.S.2d 219, 219–20 (4th Dept. 1996) (granting
defendant a new trial because the trial judge improperly examined witnesses in a manner depriving him of a fair trial).
143. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710–11 (1967); see also
 Possible grounds for reversal or modification and the corresponding relief that an appellate court is
likely to grant are set forth below.144
3. Appealing Your Conviction
You may appeal your conviction either “on the law” or “on the facts.” If you appeal your conviction “on
the law,” you will argue that legal errors in the trial deprived you of a fair trial or that the evidence used to
convict you was legally insufficient. If you appeal your conviction “on the facts,” you will argue that your
conviction was against the weight of the evidence.
i. “On the Law”
You can ask an appellate court to reverse the judgment “on the law” on the basis of: (1) legal errors that
deprived you of a fair trial; or (2) legally insufficient evidence to support your conviction.145
You may seek reversal “on the law” on grounds of legal errors that deprived you of a fair trial. In order to
seek a reversal “on the law” due to legal errors, you must have properly preserved these errors for review,
unless the error you are appealing is one that is not subject to the preservation requirement, as explained
above in Part C(3). Some examples of categories of legal errors that may support reversal include: (1)
erroneous evidentiary rulings; 146 (2) prosecutor’s misconduct; 147 (3) improper jury instructions; 148 or (4)
improper influence on the jury.149
If the appellate court does reverse your judgment because of legal errors, the court must order a new
trial on the counts of the original indictment.150 You cannot be retried, however, on (1) counts dismissed on
appeal or in a post-judgment order, or (2) counts or offenses of which you were effectively acquitted. For
example, if you were charged with first-degree murder, but convicted only of second-degree murder, you will
be considered acquitted of first-degree murder and can be retried only for second-degree murder.151
You may also seek reversal “on the law” on grounds of legal insufficiency.152 Legal insufficiency means
that the evidence presented by the prosecution was not sufficient to prove all the necessary elements of the

People v. Ayala, 75 N.Y.2d 422, 431, 553 N.E.2d 960, 964, 554 N.Y.S.2d 412, 416 (1990) (explaining the harmless error
test applied to the review of constitutional errors). The harmless error test for constitutional errors in habeas corpus
proceedings is a substantial error test, and not the test applied in Chapman. See Brecht v. Abrahamson, 507 U.S. 619,
637–38, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353, 373 (1993). For greater detail, see JLM Chapter 13, “Federal Habeas
Corpus,” and JLM Chapter 21 on New York State habeas corpus proceedings.
144. The same rules governing the consideration and determination of appeals by intermediate appellate courts
apply to the Court of Appeals, as long as you are appealing directly to the Court of Appeals. N.Y. Crim. Proc. Law §
470.30(1) (McKinney 1994 & Supp. 2008). But, in determining whether a death sentence is unduly harsh or severe, the
Court of Appeals must adhere to statutory guidelines. N.Y. Crim. Proc. Law § 470.30(3) (McKinney 1994 & Supp. 2006).
145. Note, however, that “on the law” reversals need not be limited to these two instances. N.Y. Crim. Proc. Law §
470.15(4)(a), (b) (McKinney 1994 & Supp. 2008) (noting “on the law” determinations need not be limited to these bases).
146. See, e.g., People v. Boughton, 70 N.Y.2d 854, 854–55, 517 N.E.2d 1340, 1341, 523 N.Y.S.2d 454, 455 (1987)
(trial judge wrongly allowed prosecutor to introduce confession without sufficient notice); People v. Reilly, 19 A.D.3d 736,
737–38, 796 N.Y.S.2d 726, 727–28 (3d Dept. 2005) (trial judge erred by allowing jury to hear evidence that was very
prejudicial but not very probative (helpful in resolving the case)).
147. See, e.g., People v. Collins, 12 A.D.3d 33, 784 N.Y.S.2d 489 (1st Dept. 2004) (effect of prosecutor’s remarks
during summation deprived defendant of a fair trial).
148. See, e.g., Griffin v. California, 380 U.S. 609, 612–13, 85 S. Ct. 1229, 1231–32 (1965) (reversible error is
committed when judge improperly comments during jury instructions on defendant’s failure to testify); People v. Colon,
143 A.D.2d 105, 105, 531 N.Y.S.2d 355, 356 (2d Dept. 1988) (defendant entitled to reversal where court’s instructions
were excessively lengthy and improperly drew attention to defendant’s failure to testify).
149. See Parker v. Gladden, 385 U.S. 363, 364–65, 87 S. Ct. 468, 470, 17 L. Ed. 2d 420, 422–23 (1966) (reversing
state court’s judgment against defendant where bailiff violated defendant’s 6th Amendment right to trial by impartial
jury by making statement to jurors that defendant was a wicked and guilty person); People v. Stanley, 87 N.Y.2d 1000,
1001–02, 665 N.E.2d 190, 191, 642 N.Y.S.2d 620, 621 (1996) (reversing judgment against defendant because, at the
crime scene, jurors conducted an unauthorized experiment to determine a witness’ credibility and so became “unsworn
witnesses” themselves); People v. Brown, 48 N.Y.2d 388, 395, 399 N.E.2d 51, 54, 423 N.Y.S.2d 461, 464 (1979) (finding
that improper but well-intentioned jury conduct that compromises the jury process mandates reversal).
150. N.Y. Crim. Proc. Law § 470.20(1) (McKinney 1994).
151. See, e.g., People v. Graham, 36 N.Y.2d 633, 639, 331 N.E.2d 673, 677, 370 N.Y.S.2d 888, 894 (1975)
(defendant could not be retried for murder in the second degree after the appellate division reduced the conviction to
manslaughter in the first degree).
152. For more information about legal sufficiency, see Preiser, Practice Commentaries, N.Y. Crim. Proc. Law §
470.15 (McKinney 1994).
crime of which you were convicted. For example, in order to convict a defendant of driving while intoxicated,
the prosecution must prove both that the defendant was drunk and that he was driving a car. If the
prosecution did not introduce any evidence that the defendant was driving a car, then the prosecution did
not prove that the defendant was driving while intoxicated, and the judgment will be reversed. 153 In
determining whether the evidence presented is legally sufficient, the appellate court will weigh whether any
valid reasoning or inferences could lead a rational person to the conclusion that the jury reached, viewing
the evidence in the light most favorable to the prosecution.154
The court must dismiss those counts of your indictment that the court determines to be supported by
legally insufficient evidence.155 The Double Jeopardy Clause of the Fifth Amendment (“nor shall any person
be subject for the same offense to be twice put in jeopardy of life or limb”156) prohibits the prosecution from
retrying any count that has been dismissed on the grounds of legal insufficiency.157 Thus, if the appellate
court reverses every count in your indictment for legal insufficiency, you will be set free. By contrast, if the
reversal is due to an error in the trial, and not because of legal insufficiency, there is no issue of double
jeopardy, and you may be retried for the same crime.158
An appellate court may modify a judgment by dismissing one or more counts based on legal insufficiency,
but affirming other counts for which there was legally sufficient evidence. In this situation, the appellate
court has two alternatives. It can either affirm the sentence that the trial court imposed for the counts that
were not dismissed,159 or it can “remand” (send the case back to the trial court) for re-sentencing.160
An appellate court may also modify the judgment to change your conviction to a “lesser included
offense.”161 A lesser included offense is a crime of lesser degree than the crime for which you were charged. A
lesser included offense exists when you cannot commit the greater crime of which you were charged without,
at the same time and by the same conduct, committing the lesser offense.162 Petit larceny, for example, is a
lesser included offense of third-degree robbery. Petit larceny is stealing property.163 Third-degree robbery is
stealing property through the use of force164 or threat of force.165 Since both offenses require you to steal
property, you cannot commit third-degree robbery without also committing petit larceny. Thus, if an
appellate court concludes that the prosecutor failed to prove that you used force (making your robbery
conviction legally insufficient), the appellate court may change your conviction to petit larceny, provided the
prosecutor did prove that you stole property. If the appellate court determines that the evidence proved a
lesser included offense, the court will send you back to the trial court for re-sentencing,166 unless you have
already served the maximum sentence permissible for the lesser crime.167

153. See, e.g., Easterling v. State, No. 1D07-4191, 2008 Fla. App. LEXIS 14084, at *2–3 (Fla. Dist. Ct. App. Sept.
15, 2008) (pending publication, page numbers subject to change) (reversing a conviction because the defendant’s failure to
register as a sex offender was not “willful and substantial” but rather because he lacked the $10 needed to register; thus,
the conviction could not stand).
154. See People v. Taylor, 94 N.Y.2d 910, 911–12, 729 N.E.2d 337, 337–38, 707 N.Y.S.2d 618, 618–19 (2000)
(reversing the appellate division for applying an incorrect standard of legal sufficiency).
155. N.Y. Crim. Proc. Law § 470.20(2)–(3) (McKinney 1994).
156. U.S. Const. amend. V.
157. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 2150–51, 57 L. Ed. 2d 1, 14 (1978) (the Double
Jeopardy Clause requires a judgment of acquittal if a court finds the evidence is legally insufficient). But see Lockhart v.
Nelson, 488 U.S. 33, 40–42, 109 S. Ct. 285, 291, 10 L. Ed. 2d 265, 273–74 (1988) (the Double Jeopardy Clause does not
prohibit a case being retried as long as the sum of the evidence, including evidence that was improperly admitted, would
have been sufficient to sustain a guilty verdict).
158. See Preiser, Practice Commentaries, N.Y. Crim. Proc. Law § 470.20 (McKinney 1994).
159. N.Y. Crim. Proc. Law § 470.20(3) (McKinney 1994).
160. N.Y. Crim. Proc. Law § 470.20(3) (McKinney 1994).
161. N.Y. Crim. Proc. Law § 470.15(2)(a) (McKinney 1994).
162. N.Y. Crim. Proc. Law § 1.20(37) (McKinney 2003).
163. N.Y. Penal Law § 155.25 (McKinney 1999).
164. N.Y. Penal Law § 160.05 (McKinney 1999).
165. See People v. Rychel, 284 A.D.2d 662, 663, 728 N.Y.S.2d 211, 213 (3d Dept. 2001) (finding legally sufficient
evidence for convictions for robbery in the third degree where force was merely threatened); People v. Smith, 278 A.D. 2d
75, 75, 718 N.Y.S.2d 305, 305 (1st Dept. 2000) (same).
166. N.Y. Crim. Proc. Law § 470.20(4) (McKinney 1994).
167. See People v. McBride, 248 A.D.2d 641, 642, 669 N.Y.S.2d 952, 952 (2d Dept. 1998) (finding no need to
remand for re-sentencing, since defendant had already served the maximum sentence allowable for the reduced offense).
 ii. “On the Facts”
You can ask an appellate court for reversal “on the facts” by arguing your guilty verdict was against the
weight of the evidence.168 In evaluating the weight of the evidence, an intermediate appellate court must
determine whether, based on the evidence, a jury could reasonably have found you not guilty. If the
appellate court concludes a jury could reasonably have found you not guilty, the court must weigh the
evidence submitted at trial to be sure the jury gave the evidence the weight it deserved. If the court decides
the jury did not give the evidence proper weight, the court may set aside the jury’s guilty verdict.169
If the appellate court sets aside your verdict as “against the weight of the trial evidence,” the appellate
court must dismiss the charge against you.170 According to New York law, you cannot be prosecuted again on
the same charge.171 Thus, if the court sets aside all of the charges against you as “against the weight of the
evidence,” the court will order your release from custody. If one or more, but not all, of the charges against
you are dismissed as against the weight of the evidence, the court may modify the judgment as described
above in Part E(3)(a).
4. Appealing Your Sentence
You can appeal your sentence on the ground that the sentence is either: (1) unlawful; or (2) unduly harsh
or excessive.172
iii. Unlawful Sentence
A sentence is invalid as a matter of law when its terms are not authorized by statute or when the
sentencing court considers inappropriate factors, like whether you decided to exercise certain rights. For
example, a sentence of thirty years for first-degree assault, a class B violent felony, is unlawful, since the
maximum penalty allowed for a class B violent felony is twenty-five years. 173 A sentence may also be
unlawful if it is based on a mistaken determination that you had a prior conviction,174 or if your sentences
were improperly ordered to run consecutively (one after the other), instead of concurrently (at the same
time).175 A sentence is also illegal if it constitutes “cruel and unusual” punishment.176

168. N.Y. Crim. Proc. Law § 470.15(5) (McKinney 1994).

169. See People v. Bleakley, 69 N.Y.2d 490, 495, 508 N.E.2d 672, 674–75, 515 N.Y.S.2d 761, 763 (1987) (holding
that the appellate division cannot find that a jury verdict is supported by sufficient evidence without first conducting a
factual analysis of whether the jury determination was against the weight of the evidence).
170. N.Y. Crim. Proc. Law § 470.20(5) (McKinney 1994).
171. The prosecution cannot retry any count that was reversed because it was against the weight of the evidence.
N.Y. Crim. Proc. Law. § 470.20(5) (McKinney 1994). This is based solely upon New York law, and not on constitutional
concerns of double jeopardy. See Tibbs v. Florida, 457 U.S. 31, 32, 102 S. Ct. 2211, 2213, 72 L. Ed. 2d 652, 655 (1982)
(holding that the Double Jeopardy Clause of the Constitution does not bar the retrial of an accused when an earlier
conviction was reversed based on the weight, as opposed to the sufficiency, of the evidence); People v. Romero, 7 N.Y.3d
633, 644 n.2, 859 N.E.2d 902, 909 n.2, 826 N.Y.S.2d 163, 170 (2006) (explaining that in New York, unlike many other
jurisdictions, a defendant cannot be retried on a charge that was reversed for being against the weight of the evidence).
This is different from a reversal based upon legal insufficiency, which raises constitutional double jeopardy issues, as
explained in Part E(3)(a) of this Chapter.
172. N.Y. Crim. Proc. Law § 450.30(1) (McKinney 2005). You may be able to appeal your sentence on the ground
that the sentence is unduly harsh or excessive even if you negotiated your sentence in exchange for a guilty plea. See
People v. Pollenz, 67 N.Y.2d 264, 268, 493 N.E.2d 541, 542, 502 N.Y.S.2d 417, 418 (1986) (holding that Article Six,
Section 4(k) of the New York Constitution prohibits the legislature from limiting a defendant’s right to appeal to the
appellate division, except regarding appeals of non-final orders, and concluding that that a statute that prohibited
appeals on the issue of excessive negotiated sentences was unconstitutional); see also N.Y. Crim. Proc. Law § 470.15(6)(b)
(McKinney 1994) (describing how an appellate court may use its discretion to reverse or modify a sentence as unduly
harsh or severe). See Part C(2) of this Chapter for a discussion of possible waiver of your right to appeal the issue of
whether your sentence was unduly harsh or excessive.
173. N.Y. Penal Law § 70.02(3)(a) (McKinney 2004).
174. See People ex rel. Furia v. Zelker, 70 Misc. 2d 167, 169, 332 N.Y.S.2d 310, 311 (Sup. Ct. Dutchess County
1971) (finding that where defendant’s 1959 conviction had been set aside before he was convicted on this offense in 1966,
the fact that he was convicted again in 1970 for the 1959 crime did not make him a “multiple felony offender” in 1966);
People v. Foster, 57 N.Y.S.2d 737, 738 (Sup. Ct. Cayuga County 1945) (finding a sentence unlawful because it had been
increased to reflect a prior felony, although no prior felony had been included in the indictment).
175. See, e.g., N.Y. Penal Law § 70.25(2) (McKinney 2004).
176. U.S. Const. amend. VIII; People v. Thompson, 83 N.Y.2d 477, 482, 633 N.E.2d 1074, 1077, 611 N.Y.S.2d 470,
473 (1994) (holding that a sentence of 15 years to life was not cruel and unusual punishment for a 17-year old convicted
 iv. Unduly Harsh or Excessive Sentence
A sentence is excessive if the sentence is allowed by the law, but is unfair based on the facts of your
case. 177 An appellate court may take into account, for example, the circumstances of your crime, the
probability of your rehabilitation, your background, and your criminal record, if any.178 You may appeal your
sentence as unduly harsh if anything over the minimum legal sentence was imposed. A court may also
consider whether the sentences you received are to run consecutively (one after the other) or concurrently (at
the same time). Even if the appellate court rejects all of your arguments regarding errors that occurred
during your trial, it may use its “in the interest of justice” discretion to order your sentences to run
concurrently (at the same time) instead of consecutively (one after the other).179
An intermediate appellate court may substitute its own discretion for that of the trial court in reviewing
and modifying your sentence.180 While some courts have held that an appellate court may modify a sentence
only if the trial judge abused his discretion,181 this is not the correct standard. An intermediate appellate
court may use its general review powers “to do whatever the trial court could have done,” in the interest of
justice.182 If an intermediate appellate court decides to change your sentence because it is unduly harsh or
excessive, then the court itself must impose some lawful lesser sentence. 183 If this happens, the court
changes only your sentence and the judgment is otherwise affirmed.184

of selling cocaine); People v. Diaz, 179 Misc.2d 946, 956–57, 686 N.Y.S.2d 595, 601–02 (Sup. Ct. N.Y. County 1999)
(holding that defendant’s sentence of 15 years to life was “grossly disproportionate” as applied to him and therefore
constituted “cruel and unusual punishment,” and re-sentencing defendant to 10 years to life); see also United States v.
Farley, No. 1:07-CR-196-BBM, slip op. at 8 (N.D. Ga. Sept. 2, 2008) (holding that a mandatory minimum sentence of 30
years was cruel and unusual punishment for a defendant who took steps to engage in sexual contact with a ten-year old
but who never actually had any contact with the child and where no harm was suffered).
177. When an appellate court decides whether a sentence is excessive or unduly harsh, it is said to be exercising
its “in the interest of justice” jurisdiction. N.Y. Crim. Proc. Law § 470.15(6)(b) (McKinney 1994 & Supp. 2006). See Part
B(3)(b) of this Chapter for a discussion of “in the interest of justice” jurisdiction. Note that if you were convicted of a
crack offense, you may be eligible for a sentence reduction, owing to recent changes in the federal sentencing. See U.S.
Sentencing Comm’n, “Reader-Friendly” Version of Amendments on Crack Cocaine and Retroactivity Effective May 1,
2008, at 3–4, available at http://www.ussc.gov/2008guid/200805_Reader_Friendly_Amendments.pdf (last visited Oct. 5,
2008) (describing a recent amendment to the sentencing guidelines that reduces sentences for offenses involving crack
and one or more controlled substances). However, at least one court of appeals has held defendants who were sentenced
as crack “career offenders” under a state statute are not eligible for re-sentencing. United States v. Moore, No. 08-11230,
2008 U.S. App. LEXIS 18924, at *19–20 (11th Cir. Sept. 5, 2008) (pending publication, page numbers subject to change).
178. See, e.g., People v. Bankowski, 204 A.D.2d 802, 803, 611 N.Y.S.2d 712, 713B14 (3d Dept.1994) (finding that
the harshest available sentence for manslaughter and drunk driving was not excessive where the defendant had a prior
conviction for drunk driving); People v. Pugh, 194 A.D.2d 863, 865, 599 N.Y.S.2d 317, 318 (3d Dept. 1993) (finding that
the defendant’s full and intentional participation in brutally violent crimes made the sentence appropriate, even though
the defendant was young and did not have any previous criminal record).
179. See, e.g., People v. Evans, 212 A.D.2d 626, 627, 623 N.Y.S.2d 4, 6 (2d Dept. 1995) (modifying a sentence in
which the defendant would have to serve four terms of “25 years to life imprisonment” one after another to a sentence in
which the defendant could serve the four terms all at the same time); People v. Quinitchett, 210 A.D.2d 438, 439, 620
N.Y.S.2d 430, 431 (2d Dept. 1994) (modifying a sentence in which the defendant would have to serve three terms of “25
years to life imprisonment” one after another to a sentence in which the defendant could serve the three terms all at the
same time).
180. See People v. Delgado, 80 N.Y.2d 780, 783, 599 N.E.2d, 675, 676, 587 N.Y.S.2d 271, 272, (1992) (noting that
“[a]n intermediate appellate court has broad power to modify a sentence that is unduly harsh or severe under the
circumstances, even though the sentence may be within the permissible statutory range” and that the court could
exercise this power, “if the interest of justice warrants, without deference to the sentencing court.”); People v. Wiggins,
24 A.D.3d 263, 263, 806 N.Y.S.2d 496, 297 (1st Dept. 2005) (reducing sentence on appeal as a matter of discretion in the
interest of justice); see also N.Y. Crim. Proc. Law. § 470.15(6)(b) (McKinney 1994 & Supp. 2008).
181. See, e.g., People v. Hoyle, 211 A.D.2d 973, 975, 621 N.Y.S.2d 756, 759 (3d Dept. 1995) (refusing to modify the
sentence because the lower court did not abuse its discretion in sentencing defendant).
182. People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675, 679 (2d Dept. 1982) (explaining that an intermediate
appellate court is not limited to an abuse of discretion standard of review when deciding whether to modify a sentence);
see also People v. Delgado, 80 N.Y.2d 780, 783, 599 N.E.2d 675, 676, 587 N.Y.S.2d 271, 272 (1992) (“An intermediate
appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances,
even though the sentence may be within the permissible statutory range.” (citing N.Y. Crim. Proc. Law § 470.15(6)(b)).
183. N.Y. Crim. Proc. Law § 470.20(6) (McKinney 1994 & Supp. 2006).
184. N.Y. Crim. Proc. Law § 470.15(2)(c) (McKinney 1994 & Supp. 2006).
 In a death sentence appeal, the Court of Appeals must focus upon the individual circumstances of your
case in determining whether your sentence is unjust. 185 Under New York law, the Court of Appeals is
required to consider the potential influence of passion or prejudice (including race-based prejudice) upon
your sentence, the penalty imposed in similar cases, and the weight of the evidence in support of your
sentence.186 An appellate court has three options when it reviews a death penalty sentence: (1) it can affirm
the death sentence, (2) it can remand the case for re-sentencing with the possibility of the death sentence, or
(3) it can remand the case for re-sentencing without the possibility of a death sentence.187
Although these appellate procedures for death penalty cases are still technically valid, there is currently
no constitutionally valid death penalty statute on the books in New York.188 This means that there will not
be any death penalty appeals in New York in the near future. However, the information regarding appellate
procedures in death penalty cases is provided because it is possible that the New York legislature could
enact a new death penalty statute some day in the future. Additionally, the information provided here may
be of some use to prisoners in states that do have active death penalty statutes.189
F. Preparing Your Papers for Your Appeal
1. What and Where to File
This Part will help you figure out which papers you need to file and where you should file them.
If you have a right to appeal and are appealing “as a matter of right,”190 you must file two copies of a
written notice of appeal with the clerk of the court in which you were sentenced.191 You must also serve a
copy of your notice of appeal upon the District Attorney of the county where your trial court is located.192 The
notice of appeal should state the following information: (1) your name; (2) your desire to appeal; (3) the court
to which you plan to appeal; (4) a description of the judgment, sentence, or order you wish to appeal; and (5)
your indictment number193 or your docket number if your proceedings occurred in the criminal court. If your
notice of appeal contains mistakes in the description of the judgment, sentence, or order to be appealed, the
appellate court may, in the interest of justice, excuse your mistakes and treat your notice as valid. 194
However, you should try to make your legal papers as correct as possible.
If you are challenging a decision for which there is no automatic right to appeal, for example a trial
court’s denial of your Article 440.10 or Article 440.20 motion, you must first seek permission to appeal. To do

185. See Gregg v. Georgia, 428 U.S. 153, 195, 96 S. Ct. 2909, 2936, 49 L. Ed. 859, 887 (1976) (observing that
concerns that a court might impose the death penalty in an “arbitrary and capricious manner” are “best met by a system
that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the
imposition of sentence and provided with standards to guide its use of the information”).
186. N.Y. Crim. Proc. Law § 470.30(3) (McKinney 1994 & Supp. 2008).
187. N.Y. Crim. Proc. Law § 470.30(5) (McKinney 1994 & Supp. 2006).
188. See People v. LaValle, 3 N.Y.3d 88, 99, 817 N.E.2d 341, 344, 783 N.Y.S.2d, 485, 488 (2004) (holding that the
current New York death penalty statute is unconstitutional); see also People v. Taylor, 9 N.Y.3d 129, 155–56, 878 N.E.2d
969, 984, 848 N.Y.S.2d 554 (2007) (vacating the sentence of the last prisoner on death row in New York).
189. Note that if you are currently seeking to appeal a death sentence on the grounds that the court failed to
consider a mitigating claim or mitigating evidence (that is, a claim or evidence that lessened the likelihood that you were
guilty), be sure to look for and read the following cases, which the Supreme Court will decide after this manual goes to
print: (1) Bell v. Kelly, Docket No. 07-1223, 128 S. Ct. 2108, 171 L. Ed. 2d 228 (2008) (agreeing to hear the case) and (2)
Cone v. Bell, Docket No. 07-1114, 128 S. Ct. 2961 (2008) (agreeing to hear the case). These cases will consider whether,
when reviewing an appeal of a death sentence, a federal court may consider mitigating evidence that the state court
either did not fully consider or a mitigating claim that a state court dismissed on procedural grounds.
190. See Part B of this Chapter, which explains when you have an automatic right to appeal.
191. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2008). This section applies to appeals as of
right to an intermediate appellate court or directly to the Court of Appeals. If there is no clerk of the trial court, you
must file one copy of your notice of appeal with the judge of the trial court and a second copy with the clerk of the
appellate court to which you plan to appeal. N.Y. Crim. Proc. Law § 460.10(2) (McKinney 2005 & Supp. 2008). If a
transcript of your trial was not made because there was no court reporter at your trial, you may file an affidavit of errors
with the trial court instead of a notice of appeal. If you file a notice of appeal, you must also file an affidavit of errors
within thirty days of filing your notice of appeal. N.Y. Crim. Proc. Law § 460.10(3) (McKinney 2005 & Supp. 2008). An
affidavit of errors is a sworn statement that explains the errors in the trial upon which your appeal is based. N.Y. Crim.
Proc. Law § 460.10(3) (McKinney 2005 & Supp. 2006). See Part F(2) of this Chapter for deadlines for filing.
192. N.Y. Crim. Proc. Law § 460.10(1)(b)–(3)(b) (McKinney 2005 & Supp. 2008).
193. See Forms B-1, B-2, and B-3 in Appendix B of this Chapter.
194. N.Y. Crim. Proc. Law § 460.10(6) (McKinney 2005 & Supp. 2008).
this, you must file an application for a certificate granting leave (permission) to appeal in the intermediate
appellate court.195 If you do not file the application and simply appeal without it, the court will not hear your
appeal, and by the time the problem comes to light it might be too late to fix it. If your application is granted,
the court will issue you a certificate granting leave (permission) to appeal. You must file both this certificate
and a notice of appeal with your trial court within fifteen days.196 If the appeal is from a local criminal court
and a court stenographer did not record your proceedings, you may submit an affidavit of errors in place of
the notice of appeal. See Part G for more information on how to appeal directly to the Court of Appeals.
In either case, once you have filed a notice of appeal, you should order copies of the trial transcript from
the court reporter. You will need copies of the transcript to “perfect your appeal.”197 If you cannot afford the
transcripts, you may request that the appellate court give you a free transcript, or request to appeal on the
original record.198 To do either, you must send the appellate court: (1) a letter stating your request; and (2)
an affidavit (a sworn statement witnessed by a notary public) setting forth your request, the amount and
sources of your income, and facts showing that you are unable to pay the relevant expenses. This affidavit to
proceed as a poor person on appeal, or for partial poor person relief, is called an in forma pauperis affidavit.
You should also send copies of the letter and affidavit to the district attorney of the county where your trial
court is located. Appendix B of this Chapter explains exactly how to fill out poor person’s papers. The same
procedure can be used to ask the court to appoint you a lawyer if you cannot afford one.
2. When to File
If your appeal is a matter of right, you must file and serve your notice of appeal within thirty days of
your sentencing date.199 You should file as soon as possible after sentencing, even if you are unsure you want
to appeal. Prompt filing does not force you to appeal, but protects your right to appeal if you decide to do so.
If your appeal is a matter of right and you are appealing directly to the Court of Appeals, the deadline
for filing your notice of appeal is the same as for an appeal as of right to an intermediate appellate court.
Also, you must file and serve your jurisdictional statement within ten days of filing your notice of appeal.
If you must seek permission to appeal, an application for a certificate granting leave to appeal to an
intermediate appellate court must be filed within thirty days after you receive a copy of the order or
judgment you wish to appeal.200 If the court gives you a certificate granting permission to appeal, you must
file the certificate and notice of appeal within fifteen days from the time the court created the certificate.201
3. How to Perfect Your Appeal
In addition to filing a notice of appeal, you must “perfect” your appeal.202 Generally, to perfect an appeal
you must deliver a specified number of copies of the trial record and your brief to the appellate court and to
the opposing party. The exact steps necessary to perfect an appeal vary in each appellate court. For details,
you should consult the rules of the appellate division or appellate term to which you are appealing.203

195. N.Y. Crim. Proc. Law § 460.10(4)(a) (McKinney 2005 & Supp. 2008) (describing procedure for seeking leave to
appeal). See also Appendix B, Form B-2, for a sample application for a certificate granting leave to appeal. Note, each
appellate division has its own rules for applying for a certificate. See JLM Chapter 20 for information on 440 motions.
196. N.Y. Crim. Proc. Law § 460.10(4)(b) (McKinney 2005 & Supp. 2006).
197. See Part F(3) of this Chapter on how to perfect an appeal.
198. Under the rules of the four appellate divisions, the procedure for seeking relief as a poor person in criminal
appeals is the same as that in civil cases. For an explanation of this procedure, see N.Y.C.P.L.R. 1101 (McKinney 1997 &
Supp. 2006). See also Anders v California, 386 U.S. 738, 741, 87 S. Ct. 1396, 1398, 18 L. Ed. 2d 493, 496 (1967) (an
indigent person has the right to appellate representation equal to that of a nonindigent person); Douglas v California,
372 U.S. 353, 356–57, 83 S. Ct. 814. 815–16, 9 L. Ed. 2d 811, 813-814 (1963) (the 14th Amendment requires States to
provide indigent persons representation on their appeals as of right); People v. Garcia, 93 N.Y.2d 42, 46, 710 N.E.2d 247,
249, 687 N.Y.S.2d 601, 603 (1999) (“On a People's appeal, a defendant has the right to appellate counsel of defendant's
choice and the right to seek appointment of counsel upon proof of indigency … .”).
199. N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 2005 & Supp. 2006). If you file the notice, but fail to serve it
upon the district attorney within the 30-day period, the appellate court may allow you to serve the notice after the
deadline, provided you have a good reason for not serving the notice in time. N.Y. Crim. Proc. Law § 460.10(6)
(McKinney 2005 & Supp. 2006).
200. N.Y. Crim. Proc. Law § 460.10(4)(a) (McKinney 2005 & Supp. 2008).
201. N.Y. Crim. Proc. Law § 460.10(4)(b) (McKinney 2005 & Supp. 2008).
202. N.Y. Crim. Proc. Law § 460.70 (McKinney 2005 & Supp. 2006).
203. For a listing of the rules, see N.Y. Comp. Codes R. & Regs. tit. 22, §§ 600.8, 600.11 (1st Dept., appellate
division) (2001); N.Y. Comp. Codes R. & Regs. tit. 22, §§ 640.3, 640.5, 640.6 (1st Dept., appellate term) (2001); N.Y.
 4. How to Prepare for Your Appeal
Once you have properly taken your appeal, you and your lawyer should review the record and begin to
prepare a brief. The brief is a memorandum of law, which is a paper that informs the appeals court of the
facts of your case, identifies the trial court’s errors, and explains why these errors require the appeals court
to reverse or modify your conviction or sentence.204 The brief is “served upon” or given to the court and your
opponent (the respondent). You should read a copy of the brief to make sure it contains all the arguments
that you believe the appeals court should consider in deciding your case.
If you have been assigned a lawyer, you do not have the right to insist the lawyer include arguments in
the brief your lawyer believes should not be presented to the appellate court.205 You may, however, request
permission to file a pro se supplemental brief (an additional brief of your own) to raise issues your lawyer left
out of the original brief. The appellate court will likely (but not necessarily) accept your pro se brief, provided
you request to file it in a timely fashion, usually by writing for permission to the appellate court where your
appeal will be heard, and provided you specifically identify in your request the issues that you intend to
raise in the pro se brief. You must request this permission in writing within thirty days of the date your
attorney files the brief. You should make sure your request is not too late or too general.206 The rules for
when you must file your request can be found in the rules of the court to which you are appealing.207
In response to your brief, your opponent (the respondent) will file a brief that argues that the trial
court’s judgment should stand. After the appellate court receives your opponent’s brief, it will set a calendar
date for oral argument.208 After your opponent files the brief, you also have the right to file a reply brief
within a few days. A reply brief gives you the opportunity to point out factual errors in the respondent’s
brief, or to mention relevant court decisions that have been issued since you submitted your initial brief. You
are not allowed to raise new issues in your reply.209
In an oral argument, your lawyer has about fifteen minutes to discuss the merits of your appeal directly
with the appellate court.210 The purpose of the oral argument is to focus the judges’ attention on important
points of your case and answer any questions or doubts they have about your claims. You should discuss
with your lawyer any particular points you would like emphasized in oral argument, since it is your lawyer’s
final chance to persuade the appellate court to rule in your favor. In some cases, you and your lawyer may
decide it is best not to argue your case orally. For example, your lawyer may believe an oral argument will
add little to the arguments presented in your written brief. Keep in mind there are risks involved in such a
decision. In some cases, the court may consider waiving the oral argument as an admission that your case is
weak. An oral argument also provides an important chance to clarify and expand on issues raised in your
brief. You and your lawyer should consider the matter carefully before making a decision on how to proceed.
Appellate court judges will decide your case after they read the briefs and hear the oral argument. The
court may or may not explain in writing the reasons for its decision.211 Keep in mind that the whole process,
from the time you file a notice of your appeal to the date the judges hand down their decision, is very time

Comp. Codes R. & Regs. tit. 22, §§ 670.8, 670.10, 670.12 (2d Dept., appellate division) (2001); N.Y. Comp. Codes R. &
Regs. tit. 22, §§ 731.1, 731.2, 731.4 (2d Dept., appellate term) (2001); N.Y. Comp. Codes R. & Regs. tit. 22, § 800.14 (3d
Dept., appellate division) (2001); N.Y. Comp. Codes R. & Regs. tit. 22, § 1000.4 (4th Dept., appellate division) (2001). See
Appendix A of this Chapter to determine where you should direct your appeal.
204. Part C of Chapter 6 of the JLM describes briefs and other legal papers in more detail.
205. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987, 993 (1983) (holding that a
defendant does not have the right to insist that his lawyer make every possible non-frivolous argument); People v.
White, 73 N.Y.2d 468, 479, 539 N.E.2d 577, 583, 541 N.Y.S.2d 749, 755 (1989) (same).
206. See People v. White, 73 N.Y.2d 468, 479, 539 N.E.2d 577, 583, 541 N.Y.S.2d 749, 755 (1989) (finding that
while it would be “better practice” for appellate courts to accept timely supplemental pro se briefs, the denial of an
application to accept a pro se brief is within the court’s discretion).
207. In the second department of the appellate division, for example, if you want to file a pro se brief, you must do
so within 30 days from the date your attorney filed her brief. For more information about the rules of the court to which
you are applying, see JLM Chapter 5.
208. Some appeals may take place without oral argument. Check the rules of the appellate court to which your
appeal is directed. See N.Y. Crim. Proc. Law § 460.80 (McKinney 2005 & Supp. 2006).
209. See Jonathan M. Purver & Lawrence E. Taylor, Handling Criminal Appeals § 128.12 506 (Supp. 2004).
210. The rules of the individual appellate courts set the amount of time allowed for oral argument. N.Y. Crim.
Proc. Law § 460.80 (McKinney 2005 & Supp. 2006).
211. The practice of affirming a decision without a written explanation (known as “summary affirmance”) has
been criticized by lawyers, but appellate courts sometimes do it nonetheless.
consuming and may be subject to delays. A typical appeal takes approximately two years. Each step may
take several months—including gathering the necessary documents, preparing the brief, obtaining the
respondent’s brief, getting a calendar date, and, finally, waiting for a decision.
Throughout your appeal, you should take an active role even if you have a lawyer. This includes
communicating frequently with your lawyer, suggesting issues for your lawyer to include in your briefs, and
requesting copies of documents relating to your appeal.
G. Continuing Your Appeal
If your first appeal is not successful, you may be able to pursue your claim in a higher court or by an
alternative procedure. This Part discusses how you can take an appeal that has been denied by an
intermediate appellate court to the Court of Appeals. It also discusses alternatives that you may consider if
the Court of Appeals denies your appeal.
If the intermediate appellate court denies your appeal, you may continue pursuing your claim by
appealing the intermediate appellate court’s order to New York’s highest court: the Court of Appeals. You
can appeal an intermediate appellate court decision affirming or modifying a trial court decision against you
only if: (1) the decision is based on the law alone; or (2) the remedy ordered is illegal. 212 Unlike the
intermediate appellate courts, the Court of Appeals cannot vacate a conviction solely on the basis that the
evidence does not sufficiently support the facts. In addition, the Court of Appeals cannot review a
determination made by an intermediate appellate court based upon its “in the interest of justice” discretion.
Keep in mind that you do not have an automatic right to appeal an intermediate appellate court decision
to the Court of Appeals; you may do so only if you obtain a certificate granting leave (permission) to
appeal.213 You must apply for this certificate within thirty days after you are served with the appellate court
order that you wish to appeal.214 You may seek permission to continue your appeal if the appellate court
affirms the trial court judgment, sentence, or order against you, or if you are dissatisfied with the appellate
court’s modification of the judgment, sentence, or order.215
When you are appealing from an unrecorded proceeding, you must file either a notice of appeal or an
affidavit of errors within thirty days after the judgment, sentence, or order was entered or imposed.216 If you
first file a notice of appeal, you have thirty days from the date of such filing to file an affidavit of errors.217
You must serve a copy of the affidavit of errors to the District Attorney within three days of filing the
affidavit with the court.218
The specific procedure for obtaining permission to appeal depends upon the particular intermediate
appellate court from which you are appealing. If you are appealing from any court other than the appellate
division, you must seek permission from a judge of the Court of Appeals. However, if you are appealing from
a decision of the appellate division, you may request a certificate of leave to appeal from either a judge of the
Court of Appeals or a justice of the appellate division in the same department that handed down the decision
that you are appealing.219 Many appellate division judges are hesitant to grant leave to appeal, however,
because they know that the Court of Appeals likes to decide for itself what cases it will hear. You can file
only one application, so you may wish to seek a certificate directly from the Court of Appeals. However, if an
appellate division judge dissented from the majority in your case, you may decide to apply to that judge for a
certificate of leave to appeal instead of going directly to a judge of the Court of Appeals.
To request a certificate from a judge of the Court of Appeals, you must send an application to the clerk of
the Court of Appeals. The application should be addressed to the chief judge, who will appoint one judge of
the Court of Appeals to consider your application.220 Your application must include copies of the briefs and

212. N.Y. Crim. Proc. Law § 450.90(2) (McKinney 2005 & Supp. 2006).
213. N.Y. Crim. Proc. Law § 450.90(1) (McKinney 2005 & Supp. 2006). Form B-2 in Appendix B is a sample
application for a certificate granting leave to appeal.
214. N.Y. Crim. Proc. Law § 460.10(5)(a) (McKinney 2005 & Supp. 2006).
215. N.Y. Crim. Proc. Law § 450.90(1) (McKinney 2005 & Supp. 2006).
216. N.Y. Crim. Proc. Law § 460.10 (3)(a) (McKinney 2005 & Supp. 2006).
217. N.Y. Crim. Proc. Law § 460.10(3)(a) (McKinney 2005 & Supp. 2006).
218. N.Y. Crim. Proc. Law § 460.10(3)(b) (McKinney 2005 & Supp. 2006).
219. N.Y. Crim. Proc. Law § 460.20(2)(a) (McKinney 2005 & Supp. 2006). If you are appealing from the decision of
an intermediate appellate court other than the appellate division (i.e., the appellate term), you must request the
certificate from a judge of the Court of Appeals. N.Y. Crim. Proc. Law § 460.20(2)(b) (McKinney 2005 & Supp. 2006).
220. N.Y. Crim. Proc. Law § 460.20(3)(b) (McKinney 2005 & Supp. 2006).
the appellate division decision along with a letter explaining why your case needs further review. You must
also include relevant transcripts that demonstrate that your appeal is based on a question of law and that
you preserved the right to appeal when the error was made. 221 Further review might be considered
appropriate if your case presents a novel issue of law (that is, an issue that the court has not yet considered),
if the lower court failed to follow established precedent, or if the appellate divisions differ in their
approaches to the issue involved. Once the judge grants your application and issues a certificate, your appeal
is taken. You may proceed to prepare your brief and oral argument.222
The jurisdictional statement explains the issues to be raised and gives legal authority to assert that the
Court of Appeals has the power to hear your claim. You will need to file two copies of the jurisdictional
statement with the clerk of the Court of Appeals, and serve one copy on the District Attorney of the county
where your trial court is located.223
If the Court of Appeals denies permission to appeal, you may request reconsideration of your application
by filing an application for reconsideration with the clerk of the court within thirty days of the issuance of
the certificate denying permission.224 Your application will be reassigned to the same judge who originally
ruled on it.225 Be aware that few of the cases heard at the intermediate level reach the Court of Appeals.226
If the Court of Appeals hears your appeal, it will affirm, reverse, or modify the intermediate appellate
court order227 and take or direct some appropriate corrective action.228
If the Court of Appeals hears your appeal but rules against you, you may still have other opportunities
for relief. First, if your case involves issues of federal law,229 you can apply for a writ of certiorari. This would
allow you a final appeal on those federal issues to the United States Supreme Court, but the Supreme Court
very rarely grants such permission. Second, in certain circumstances, you may seek to challenge your
conviction or sentence through a different post-conviction proceeding, such as an Article 440 motion, a
petition for state habeas corpus, or a petition for federal habeas corpus. See JLM Chapters 20, 21, and 13,
respectively, for explanations of these remedies.
H. Three Options for Dealing with Ineffective Assistance of Appellate Counsel
When you appeal your conviction, you have the right to effective assistance from your appellate
lawyer.230 This Part addresses what to do if you believe that your appointed attorney is not raising all the
issues that should be pursued on appeal. Note: you also have the right to effective assistance from your trial
lawyer. For information about how to challenge your trial lawyer’s assistance, see JLM Chapter 12.
This Part will discuss three particular strategies that have been used by prisoners: (1) responding to an
Anders brief submitted by your attorney, (2) filing supplemental briefs along with those of your attorney,
and (3) applying for a writ of error coram nobis for relief from ineffective counsel.

221. For a list of the requirements for bringing an appeal to the Court of Appeals, see N.Y. Comp. Codes R. &
Regs. tit. 22, § 500.20 (2005).
222. See N.Y. Comp. Codes R. & Regs. tit. 22, § 500.20 (2005) (criminal cases); N.Y. Comp. Codes R. & Regs. tit.
22, § 500.22 (2005) (civil cases).
223. N.Y. Comp. Codes R. & Regs. tit. 22, § 500.21 (2005). Proof of service on the district attorney must also be
filed with the clerk of the Court of Appeals. See N.Y. Comp. Codes R. & Regs. tit. 22, §500.20 (2005) for a list of the
information you need to include in the jurisdictional statement and the documents you need to file with the statement.
224. N.Y. Comp. Codes R. & Regs. tit. 22, § 500.20(d) (2005).
225. N.Y. Comp. Codes R. & Regs. tit. 22, § 500.20(d) (2005).
226. In 2006, the Court of Appeals decided 62 criminal appeals. See Chief Administrator of the Courts, State of
N.Y., The 29th Annual Report of the Chief Administrator of the Courts 4 (2006), available at
http://www.courts.state.ny.us/reports/annual/pdfs/2006annualreport.pdf; see also Preiser, Practice Commentaries, N.Y.
Crim. Proc. Law § 450.90 (McKinney 2005 & Supp. 2006) (discussing appellant’s hurdles to reaching appeals court).
227. N.Y. Crim. Proc. Law § 470.35(3) (McKinney 1994 & Supp. 2008).
228. N.Y. Crim. Proc. Law § 470.40 (McKinney 1994 & Supp. 2008). See N.Y. Crim. Proc. Law §470.40(2)–(3)
(McKinney 1994 & Supp. 2006) for rules controlling what action the court must take.
229. Violations of the U.S. Constitution present issues of federal law. See 28 U.S.C. § 1331 (2006).
230. Evitts v. Lucey, 469 U.S. 387, 395–96, 105 S. Ct. 830, 835–36, 83 L. Ed. 2d 821, 829 (1985) (holding the
fairness of the appellate process requires that a defendant receive more than nominal representation from counsel);
Douglas v. California, 372 U.S. 353, 357, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811, 815–16 (1963) (holding state requirement
that defendants make preliminary showing of merit prior to assignment of appellate counsel was unconstitutional).
 1. Anders Briefs
You may encounter a situation in which the attorney appointed for your criminal appeal asks the court
for permission to withdraw from your case by filing a motion known as an “Anders brief.” An attorney files
an Anders brief if she concludes, after reviewing your case, there are no non-frivolous claims you could make
on appeal. But, in the brief, your attorney must also identify, by references to the trial record, any issues
with at least arguable merit, supported by legal authority.231 After reviewing the Anders brief, a court will
grant your attorney’s request to withdraw from handling your appeal if it determines your attorney has
fulfilled the obligation to thoroughly examine the trial record for arguably appealable issues. If the court
agrees there are no non-frivolous claims you could make on appeal, it will affirmed the judgment from which
you seek to appeal and dismiss your appeal. But, if the court concludes there are non-frivolous claims on
which you could base an appeal, the court will appoint you a new attorney to help with your appeal.232
The fact that your attorney files an Anders brief does not in itself constitute ineffective assistance of
counsel.233 However, your attorney’s duty in the matter of your appeal is to be an “active advocate,” and her
Anders brief must be more than a conclusory statement that there are no non-frivolous claims that you could
make on appeal. It must show that your attorney made an independent and conscientious examination of the
record for the purposes of your appeal.234 You may disagree with your attorney over whether certain issues
of your case should be appealed. Your attorney must raise all issues that, in his or her professional
judgment, have arguable merit, but he or she is not obliged to raise every non-frivolous issue you request.235
If you believe that there are non-frivolous issues that should be pursued on appeal, but your attorney
refuses to do so and instead files an Anders brief, you will generally have the opportunity to file a pro se
supplemental brief on any issues you believe to be meritorious (deserving consideration by the court).236 You
should refer to the rules of the court to which you are appealing to determine whether you must first apply
for permission to submit your brief and whether there are any criteria the court may have set out for the
format of your brief. Your attorney is required to inform you of the fact that he has filed an Anders brief that
will likely result in an affirmation of your conviction, and he must also inform you of your right to file a pro
se supplemental brief.237 Your attorney must also provide you with a copy of the brief.238
You should file a supplemental brief. If you don’t file your own brief in response to your attorney’s
Anders brief, you could be prevented from successfully pursuing habeas relief on certain issues that could
have been raised on appeal, including ineffective assistance of counsel. For example, to obtain federal habeas

231. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967). But cf. Smith v.
Robbins, 528 U.S. 259, 272, 120 S. Ct 746, 756–57, 145 L. Ed. 2d 756, 771–72 (2000) (holding that states may adopt
procedures that differ from that described in Anders, so long as the underlying goal of adequate appellate review
required by the 14th Amendment is met). However, the “procedures adopted by New York courts closely parallel and are
clearly modeled upon the procedure set forth by the Supreme Court in Anders.” People v. Stokes, 95 N.Y.2d 633, 637, 744
N.E.2d 1153, 1155, 722 N.Y.2d 217, 219 (2001) (describing the procedures for Anders briefs that New York courts have
adopted and holding that the Anders brief filed by assigned counsel was insufficient because it did not adequately
advocate available non-frivolous arguments on defendant’s behalf).
232. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967) (describing
appointed attorneys’ duties to handle appeals); see also People v. Stokes, 95 N.Y.2d 633, 637, 744 N.E.2d 1153, 1155, 722
N.Y.2d 217, 219 (2001) (describing procedures New York courts have adopted for Anders briefs and holding Anders brief
filed by assigned counsel was insufficient because it did not adequately present available non-frivolous arguments on).
233. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 444, 108 S. Ct. 1895, 1905, 100 L. Ed. 2d 440, 456–57
(1988) (upholding constitutionality of a state requirement that when counsel filed a no-merit brief, he must include an
explanation of why an issue lacked merit); see also Jorge v. United States, 818 F. Supp. 55, 57 (S.D.N.Y. 1993) (holding
the “filing of an Anders brief does not in itself constitute ineffective assistance of counsel” and defendant must show that
“appellate counsel’s performance was unreasonably deficient” in order to prove ineffective assistance of counsel).
234. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1386, 1400, 18 L. Ed. 2d. 493, 498 (1967).
235. Jones v. Barnes, 463 U.S. 745, 751–54, 103 S. Ct. 3308, 3312–14, 77 L. Ed. 2d 987, 993–95 (1983) (holding
appellate counsel who did not raise every non-frivolous issue fulfilled duty of representing client to best of his ability).
236. United States v. Gomez-Perez, 215 F.3d 315, 320 (2d Cir. 2000) (stating that “[i]f counsel subsequently
determines that an Anders brief is appropriate and thereafter files such a brief, this Court must … afford the defendant
an opportunity to raise pro se any issues he feels merit discussion.” (citing Anders v. California, 386 U.S. 738, 744, 87 S.
Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967))).
237. United States v. Gomez-Perez, 215 F.3d 315, 321 n.2 (2d Cir. 2000) (stating that an attorney should “adhere
to standard practice by including with his Anders brief an affidavit certifying” that he has informed his client of the
filing of the brief, which will likely result in the affirmance of the client’s conviction).
238. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967) (“A copy of
counsel’s brief should be furnished” to the defendant.).
relief, a petitioner must exhaust state remedies and show his constitutional rights were violated.239 If you do
not raise issues in a pro se brief, a court may find you did not exhaust state remedies and bar you from
bringing a federal habeas petition.240 Further, where your attorney has submitted an Anders brief rejecting
issues in your supplemental brief as frivolous, New York courts may assign new counsel for your appeal.241
Finally, note that Anders is only binding law in federal court.242 That being said, citing Anders in state
appeals makes sense as state courts must follow an Anders-like analysis to ensure that your Fourteenth
Amendment rights are upheld.243
2. Filing Supplemental Briefs
Though you do not have an absolute right to file briefs to supplement the arguments made by your
appeals attorney in his or her brief, many appellate courts allow you to do so.244 You should first apply to the
court to which you are appealing for permission to file. Permission will usually be granted if you request
permission within thirty days of the date your appeals attorney has filed his or her brief AND you
specifically identify the issues you intend to raise in the pro se brief. You should consult the specific
Department’s rules and regulations for what your request should include.245 It is important to follow the
timeliness and specificity requirements, because if you do not, the court will likely deny permission to file.
3. Applying for Writ of Error Coram Nobis
If you want to challenge an appellate court’s affirmation of your conviction on the grounds that you
received ineffective assistance of appellate counsel, you may do so by filing a writ of error coram nobis.246 A
writ of error coram nobis is a way to challenge a conviction as infirm (faulty) and to petition the court to
correct errors of a fundamental nature. For example, you can use a writ of error coram nobis if your
appellate lawyer failed to prosecute an appeal or raise all issues effectively.247
You should direct the petition to the appellate division “where the allegedly deficient representation
occurred.”248 Note, if you wish to challenge your conviction’s affirmance because of ineffective assistance of
appellate counsel in New York state, the only way to do so is a writ of error coram nobis; you may not
challenge it with a motion to vacate judgment under New York Criminal Procedure Law Section 440.10.249 If

239. See JLM Chapter 13, “Federal Habeas Corpus,” for more information on federal habeas and exhaustion.
240. Jorge v. United States, 818 F. Supp. 55, 56 (S.D.N.Y. 1993) (stating that where “a defendant has failed to
raise a claim on direct appeal, the claim is barred … unless the petitioner can demonstrate ‘cause’ for the default of
normal appellate procedure and actual ‘prejudice’ from the alleged violation on which the claim is based.”) (citing
Campino v. United States, 968 F.2d 187 (2d Cir. 1992)); see also Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (“It is
well settled that all state remedies must be exhausted before a federal court may consider a state prisoner’s petition for a
writ of habeas corpus.”); Basnight v. Keane, No. 99-CV-4826 (FB), 2000 U.S. Dist. LEXIS 10940, at *9 (E.D.N.Y. Aug. 1,
2000) (unpublished) (stating that “a petitioner must exhaust all state remedies and show that his federal constitutional
rights have been violated” to get federal habeas relief).
241. See, e.g., People v. Pertillar, 15 A.D.3d 679, 679–80, 789 N.Y.S.2d 921, 922 (2d Dept. 2005) (relieving attorney
who had filed Anders brief and assigning new counsel to represent defendant on appeal).
242. Smith v. Robbins, 528 U.S. 259, 265, 120 S. Ct 746, 753, 145 L. Ed. 2d 756, 767 (2000) (holding that states
may adopt procedures that differ from those described in Anders, so long as the underlying goal of adequate appellate
review required by the 14th Amendment is met).
243. See People v. Stokes, 95 N.Y.2d 633, 637, 744 N.E.2d 1153, 1155, 722 N.Y.S.2d 217, 219 (2001) (noting that
the “procedures adopted by New York courts closely parallel and are clearly modeled upon the procedure set forth by the
Supreme Court in Anders”).
244. See People v. White, 73 N.Y.2d 468, 479, 539 N.E.2d 577, 583, 541 N.Y.S.2d 749, 755 (1989) (finding while it
would be “better practice” for appellate courts to accept timely supplemental pro se briefs, courts can decline to accept).
245. For more information about the rules of the court to which you are applying, see JLM Chapter 5.
246. People v. Bachert, 69 N.Y.2d 593, 594, 509 N.E.2d 318, 319, 516 N.Y.S.2d 623, 624 (1987) (holding claims of
ineffective assistance of counsel in the intermediate appellate court will be determined through the writ of coram nobis).
247. People v. Bachert, 69 N.Y.2d 593, 598, 509 N.E.2d 318, 321, 516 N.Y.S.2d 623, 626 (1987) (citing People v. De
Renezzio, 14 N.Y.2d 732, 199 N.E.2d 172, 250 N.Y.S.2d 76 (1964)); People v. Adams, 12 N.Y.2d 417, 420, 190 N.E.2d 529,
531, 240 N.Y.S.2d 155, 157–58 (1963)).
248. People v. Bachert, 69 N.Y.2d 593, 595–96, 509 N.E.2d 318, 322, 516 N.Y.S.2d 623, 627 (1987); People v. Velez,
286 A.D.2d 406, 728 N.Y.S.2d 720 (2d Dept. 2001) (both noting that an application for a writ of error coram nobis should
be addressed to the appellate court in which the claimed ineffective assistance of counsel occurred).
249. People v. Bachert, 69 N.Y.2d 593, 595–96, 509 N.E.2d 318, 319, 516 N.Y.S.2d 623, 624 (1987).
your petition is granted, the appellate court may allow you (most likely with a new lawyer) to re-argue your
original appeal.250 If your petition is denied, you may appeal that decision to the Court of Appeals.251
A form for writs of error coram nobis can be found in Appendix B-7. In the coram nobis brief, you must
explain the particular actions your appellate counsel took and the actions you believe your attorney should
have taken. Your statements—both of the facts and arguments—should be as clear and specific as possible.
Also, be sure to consult the rules of the particular jurisdiction for additional deadlines and requirements
that you must follow. Note that you also have the right to effective assistance from your trial lawyer. For
information about how to challenge your trial lawyer’s assistance, see JLM Chapter 12.
I. Conclusion
If you believe a harmful legal error occurred at your hearing or trial, you may be able to appeal your
conviction. The first step in this process is determining whether your right to appeal is limited by time, plea
agreements, failure to protest or various other reasons. If you right of appeal is not limited and you are
eligible to appeal, you should decide the specific legal basis for your appeal. Next, you will need to file the
correct appeals papers at the proper times to the right court. The appeals process can feel overwhelming and
complicated, but, by following the steps in this Chapter, you should be able to appeal your conviction. The
appendices provide detailed instructions for completing the paperwork and effectively crafting an appeal.

250. People v. Walton, 40 A.D.3d 1258, 1259, 836 N.Y.S.2d 442, 443 (3d Dept. 2007) (granting coram nobis relief in
part and reinstating defendant’s appeal as to certain issues).
251. People v. Stultz, 2 N.Y.3d 277, 281, 810 N.E.2d 883, 885, 778 N.Y.S.2d 431, 433 (2004) (explaining that an
intermediate appellate court’s decision regarding a petition for a writ of coram nobis may be appealed to the Court of
Appeals and defining the court of appeal’s standard of review for such an appeal).
 APPENDIX A

THE COURT TO WHICH YOU SHOULD APPEAL

Please also refer to the inside back cover of the JLM, which shows the structure of the New
York court system.

Court Where You Court Where Appeal

Crime Were Convicted252 May be Heard
Misdemeanor Local criminal court outside County court of the county where
New York City you were convicted; or the
Appellate Term of the New York
State Supreme Court in the Second,
Third, or Fourth Departments, if
the appellate division of that
department so directs.253

Misdemeanor New York City Criminal Court Appellate Term for the New York
in New York or Bronx State Supreme Court of the First
Counties Department.

Misdemeanor New York City Criminal Court Appellate Term for the New York
in Kings, Queens, or State Supreme Court of the Second
Richmond Counties Judicial Department.

Misdemeanor County court Appellate division of the

department where you were
convicted; or the Appellate Term
of the New York State Supreme
Court in the Second, Third, or
Fourth Departments, if the
appellate division of the
department so directs.

Felony County court Appellate division of the

department where you were
convicted.
Any Offense New York State Appellate division of the
Supreme Court department where you were
convicted.

252. Court where you file your notice of appeal.

253. The appellate division of the second judicial department does direct certain classes of cases to the appellate
term. Rules of the second department that discuss this matter may be found in McKinney’s New York Rules of Court.
N.Y. Comp. Codes R. & Regs. tit. 22, § 730.1 (2006).
 APPENDIX B

SAMPLE PAPERS FOR A CRIMINAL APPEAL254

This Appendix contains the following materials:

B-1. Notice of Appeal as of Right to an Intermediate Appellate Court255 from a Superior

Court256 Judgment, Sentence, Judgment and Sentence, or Order.
B-2. Notice of Application for a Certificate Granting Leave to Appeal to an Intermediate
Appellate Court or to the Court of Appeals
B-3. Papers Needed to Obtain the Services of a Lawyer Without Cost on Appeal, or Other
Poor Person Relief
a. Notice of Motion to Proceed as a Poor Person
b. Affidavit in Support of Motion to Proceed as a Poor Person on Appeal
B-4. Papers Needed to Get Release on Bail Pending Appeal
a. Notice of Motion for Recognizance or Bail Pending Appeal
b. Affidavit in Support of Motion for Recognizance or Bail Pending Appeal
B-5. Notice of Motion for Extension of Time in Which to Take an Appeal Pursuant to New
York Criminal Procedure Law Section 460.30
B-6. Affidavit in Support of Motion for Extension of Time to Take Appeal
B-7 Petition for Writ of Error Coram Nobis

DO NOT TEAR THESE FORMS OUT OF THE JLM. If you simply tear these papers out of the JLM
and send them to the court, the court will ignore the papers. Write your own versions of these forms, and fill
them out according to the facts of your particular case. The endnotes following the sample documents tell
you how to fill in the necessary information. Consult Parts A through F of this Chapter and Chapter 6 of the
JLM, “An Introduction to Legal Documents,” for assistance in preparing your case. The name and address of
the court to which you should send these papers are contained in Appendices I and II of the JLM.

254. These forms are based in part upon McKinney’s Forms, a useful resource providing sample forms for almost
any action you may wish to bring. The samples we have provided are broad and general, while the McKinney’s Forms
are specific and correspond to the statute underlying your action. See generally 18 West’s McKinney’s Forms A–C (2006).
255. New York law uses the term “intermediate appellate court” to refer to the appellate courts in each county that
decide the defendant’s first appeal. These courts are the appellate division and the appellate term.
256. New York law uses the general term “superior court” to include both the supreme court and certain county
courts in different counties that have jurisdiction over both felonies and misdemeanors.
 B-1. NOTICE OF APPEAL AS OF RIGHT TO AN INTERMEDIATE APPELLATE
COURT FROM A SUPERIOR COURT JUDGMENT, SENTENCE, JUDGMENT
AND SENTENCE, OR ORDER1

Supreme Court of the State of New York2

County of ___________________________3
----------------------------------------------------------x
The People of the State of New York, :
Plaintiffs, : Notice of Appeal
:
- against - : Indictment No. __________4
:
____________________________,5 :
Defendant. :
----------------------------------------------------------x

PLEASE TAKE NOTICE, that defendant, __________________, hereby appeals pursuant to section
450.10, subdivision (1), of the Criminal Procedure Law of the State of New York6 to the Appellate Division of
the Supreme Court, _______________7 Judicial Department, from the _________, _____8 judgment made and
entered by Hon. __________,9 convicting [him/her] of the class ____10 felony of ___________11 and that this
appeal is taken from said judgment and from each and every part thereof and every intermediate order
made therein.

Dated:____________,12 New York

____________13

___________________________
Attorney for Defendant14

____________________________________ Street
_________________________________ New York
Telephone Number: _______________________

To: Hon. ________________________15

District Attorney|

________________________County
_________________________Street
____________________ , New York
Clerk

Supreme Court of the State of New York

____________________________ County
_____________________________ Street
_________________________, New York
 B-2. NOTICE OF APPLICATION FOR A CERTIFICATE GRANTING
LEAVE TO APPEAL TO AN INTERMEDIATE APPELLATE COURT OR
TO THE COURT OF APPEALS16

Court of Appeals of the State of New York

----------------------------------------------------------x
The People of the State of New York, :
Plaintiffs-Respondents, : : Notice of Application
:
- against - : Indictment No. _________17
:
________________________________________ ,18:
Defendant-Appellant. _____________________ :
----------------------------------------------------------x

PLEASE TAKE NOTICE, that upon the annexed affidavit, the above named defendant-appellant makes
application to _______19 to determine the application hereby made for a certificate,20 pursuant to section
460.20 of the Criminal Procedure Law of the State of New York, certifying that this case involves a question
of law that ought to be reviewed by the Court of Appeals and granting leave to appeal to the Court of
Appeals from __[date]_____, _[year]_ order of the Appellate Division ______21 Judicial Department which
affirmed the ___[date]__, _[year]_, Supreme Court, ______________ County, judgment convicting defendant of
the class ______ felony of ______________ and sentencing defendant to an indeterminate term of
imprisonment at ________________________.22

Dated:______________________
___________________23
__________________________________________
Attorney for Defendant-Appellant
[Address and phone number]24

To: Clerk
Court of Appeals of the State of New York
Court of Appeals Hall
20 Eagle Street
Albany, New York25
 B-3. PAPERS NEEDED TO OBTAIN THE SERVICES OF A LAWYER
WITHOUT COST ON APPEAL, OR OTHER POOR PERSON RELIEF
These papers will allow you to obtain a free copy of the trial transcript, as well as a lawyer. These are
NOT the correct papers to file if you are filing a poor person’s action in FEDERAL court.

a. Notice of Motion to Proceed as a Poor Person

Supreme Court of the State of New York,

Appellate Division,26

___________________27 Judicial Department

-----------------------------------------------------------x
The People of the State of New York, :
Plaintiffs-Respondents, : Notice of Motion to Proceed
: As a Poor Person Upon Appeal
- against - :
: Indictment No. _________28
_____________________________,29 :
Defendant-Appellant. :
-----------------------------------------------------------x

PLEASE TAKE NOTICE, that upon the affidavit of _______________, sworn to on the ________ day of
__________, _____, 30 a motion will be made at a term of this court, for an order permitting defendant-
appellant to prosecute this appeal from the judgment entered in this action on the _________ day of _______,
_____31 as a poor person, directing that [he/she] be furnished a copy of the stenographic transcript of the trial
of this action without fee, and granting permission to appeal on the original record, upon the ground that
said defendant-appellant has insufficient income and property to enable [him/her] to pay the costs, fees, and
expenses to prosecute said appeal, and for such other and further relief as this Court may deem just and
proper.

Dated:______ ________________
_________________32 _________

__________________33
Defendant-Appellant
To: ___________________________
District Attorney
Address34

- or -

Clerk
Appellate Division, ____ Judicial Department
Address35
 b. Affidavit in Support of Motion to Proceed as a Poor Person on Appeal

Supreme Court of the State of New York

Appellate Division,
____________ Judicial Department36
-----------------------------------------------------------x
___________________________37 :
Defendant-Appellant, : Affidavit in Support of
: Motion to Proceed as a
- against - : Poor Person Upon Appeal
:
The People of the State of New York : Indictment No. _______38
Plaintiffs-Respondent. :
-----------------------------------------------------------x

State of New York

County of _____________39

_______________________________,40 being duly sworn, deposes and says:

1. I am the petitioner in the above-captioned case, and I make this affidavit in support of the attached
motion to proceed in forma pauperis.

2. I am presently in the custody of the Superintendent of _________ at ______________ pursuant to a

judgment of the Supreme Court of the State of New York, ___________ County, rendered on ________, _____,
convicting me of _________, in the _______ degree, and sentencing me to ______ years imprisonment.41

3. I am unable because of my indigence to pay the costs, fees, and expenses necessary to prosecute this
appeal. I am currently incarcerated and am earning $_____ per week in income and I own $_____ worth of
property. No other person has a beneficial interest in the outcome of this appeal.

4. During the trial I was represented by ________________.42

5. I believe in good faith that I am entitled to the relief that I am seeking in this case.

WHEREFORE, I respectfully ask for an order permitting me to prosecute this appeal as a poor person
and that I be furnished with the stenographic transcript of this action without fee and that I be assigned an
attorney to represent me on appeal and for such other and further relief as may be proper and equitable.

_________________________________________43
Defendant-Appellant
Sworn to before me
this _______ day of __________, _____
____________________________________
Notary Public44
 B-4. PAPERS NEEDED TO GET RELEASE ON BAIL PENDING APPEAL45
a. Notice of Motion for Recognizance or Bail Pending Appeal

Supreme Court of the State of New York

____________ Judicial Department46

----------------------------------------------------------x
The People of the State of New York :
Plaintiffs-Respondents, : Motion for
: Recognizance or Bail
- against - :
: Indictment No. ________47
________________________48 :
Defendant-Appellant. :
-----------------------------------------------------------x

PLEASE TAKE NOTICE, that upon the annexed affidavit of ___________ sworn to on the _________ day
of _______, ____49 and upon all proceedings in this case, a motion pursuant to section 510.20 of the Criminal
Procedure Law of the State of New York is made to this Court for an order revoking the order committing
______________50 to the custody of the [sheriff or Commissioner of the Department of Correctional Services]51
and releasing me in my own recognizance or on bail, on the grounds set forth in the affidavit, and for such
other and further relief as to the court may seem just and proper.

Dated:___________________
_____________________________ 52
_____________________________ 53
Defendant-Appellant

To: ________________________
District Attorney
Address54

- or -

Clerk
Appellate Division, ____ Judicial Department
Address55
b. Affidavit in Support of Motion for Recognizance or Bail Pending Appeal

Supreme Court of the State of New York

________ Judicial Department56

-----------------------------------------------------------x
The People of the State of New York :
Plaintiffs-Respondents, : Affidavit in Support of
: Motion for Recognizance
- against - : or Bail Pending Appeal
:
___________________________57 : Indictment No. _________58
Defendant-Appellant. :
-----------------------------------------------------------x

State of New York

County of ___________59

_______________________60 being duly sworn, deposes and says:

1. I am the defendant-appellant above named and I make this affidavit in support of the annexed notice
of motion.

2. On the _______ day of ______, _____, I was convicted of _________ in the _________ degree (Judge
__________) and I am presently in the custody of the Superintendent of ____________ at ______________
pursuant to the judgment and sentence in the case.61

3. I am now appealing my conviction of ____________, and I filed a Notice of Appeal on ______________,

_____.62

4. I believe that the facts of my case warrant the issuance of an order securing my release on bail in my
own recognizance:
____________________________________________________________________________________________________
________________________________________.63

5. Deponent believes that the appeal herein has great merit and that there is a reasonable possibility of
ultimate reversal of the judgment of conviction appealed from. The reasons why said judgment of conviction
should be reversed are:
____________________________________________________________________________________________________
________________________________________.64
6. No previous application has been made for the relief sought herein.

WHEREFORE, I respectfully pray that an order be entered revoking the order committing me to the
custody of ___________________65 and releasing me in my own recognizance or on bail, together with such
other and further relief as this court may deem proper and just.
_________________________________________66
Sworn to before me
this _________ day of __________, _____
____________________________________
Notary Public67
 B-5. NOTICE OF MOTION FOR EXTENSION OF TIME IN WHICH TO TAKE AN
APPEAL PURSUANT TO NEW YORK CRIMINAL PROCEDURE LAW § 460.3068
Supreme Court of the State of New York
Appellate Division ____________ Department69

-----------------------------------------------------------x
The People of the State of New York :
Plaintiffs-Respondents, : Notice of Motion For
: Extension of Time to
: Appeal Pursuant to
- against - : CPL ' 460.30
:
__________________________70 : Indictment No. _________71
Defendant-Appellant. :
-----------------------------------------------------------x

PLEASE TAKE NOTICE, that upon the annexed affidavit of __________72 sworn to on the _____ day of
_______, _____, 73 and upon all the proceedings in this case, a motion pursuant to section 460.30 of the
Criminal Procedure Law of the State of New York is made to this Court for an order reinstating the time for
taking an appeal from the [judgment/sentence/order] imposed by the Supreme Court of the County of
__________74 rendered on the _______ day of ______, _____75 upon conviction of the above named defendant of
the crime of _________, in the _______ degree76 upon the ground that said defendant’s failure to file a notice
of appeal in timely fashion resulted from the conduct of [defendant’s counsel]77 in failing to file a notice of
appeal as defendant had requested, and for such other and further relief as the Court may deem just and
proper.

Dated:__________________
__________________________ 78

_________________________________________79
Defendant-Appellant

To: Hon. ____________

District Attorney
Address80

Clerk
___________ Appellate Division
___________ Judicial Department
Address81
 B-6. AFFIDAVIT IN SUPPORT OF MOTION FOR EXTENSION OF
TIME TO TAKE APPEAL
Supreme Court of the State of New York
Appellate Division ___________ Department82

------------------------------------------------------------x
The People of the State of New York :
Plaintiffs-Respondents, : Affidavit in Support of
: Motion for Extension of
- against - : Time to Appeal Pursuant
: to CPL § 460.30
:
_________________________83 : Indictment No. _________84
Defendant-Appellant. :
------------------------------------------------------------x

__________________________,85 being duly sworn, deposes and says:

That I am the defendant herein and submit this affidavit in support of my application for leave to serve a
notice of appeal within thirty days after the granting of an order permitting me to file pursuant to section
460.30 of the Criminal Procedure Law of the State of New York.

On ___________, _____, I was convicted of ___________ in the _______ degree. (Trial Judge ____________.)
I received a sentence of _____________ years on _____________, _____. (Judge ____________.)86

I failed to file my Notice of Appeal within thirty days because:

____________________________________________________________________________________________________
__________________________________________________________________.87

WHEREFORE, I respectfully urge this Court to extend the time within which a notice of appeal may be
served and filed pursuant to section 460.30 of the Criminal Procedure Law of the State of New York and
issue an order granting this application permitting me to serve and file a notice of appeal within thirty days
from the date of said order and for such other relief as this Court may deem just and proper.

__________________________________________
Defendant-Appellant

Sworn to before me
this ________ day of ___________, _____.
____________________________________88
Notary Public
 B-7. PETITION FOR WRIT OF ERROR CORAM NOBIS
Supreme Court of the State of New York
Appellate Division ____________ Department89

----------------------------------------------------------x
The People of the State of New York, :
Plaintiffs-Respondents, : Petition for Writ of Error
Coram Nobis
:
- against - : Indictment No. _________90
:
________________________________________ ,91:
Defendant-Petitioner:
----------------------------------------------------------x

PLEASE TAKE NOTICE that above-named defendant-petitioner hereby moves the court for an issuance of a writ of
error coram nobis on the ground that defendant-petitioner was convicted of _________92 in _________93 on ______94, and
appealed to this court which affirmed _______95 conviction and that the representation of ______96, defendant-petitioner’s
attorney on appeal, was ineffective according to the standards of representation set out in the Sixth Amendment of the United
States Constitution.
The representation afforded to defendant-petitioner was defective in the following ways: ____________________.97
This motion is made and based on this petition and the affidavit of defendant-petitioner, and on the appellate briefs and
the Appellate Division decision,98 copies of which are attached and served, and on the pleadings, papers, records, and files of
this action.
Defendant-petitioner requests assignment of new appellate counsel for assistance in presentation of the writ moved for
herein.99

Dated:____________________ 100
__________________________________________
Defendant-Appellant
[Address and phone number]101

To:
Clerk
Supreme Court of the State of New York
Appellate Division, ___ Department102

Fill in the forms shown in Appendix B as follows:

 1 .See generally N.Y. Crim. Proc. Law § 450.10, McKinney’s Forms (2005).
2. Your Notice of Appeal is addressed to the court you were tried in, not the appeals court. This sample presumes
you were tried in a supreme court. If you were tried in a county court, be sure to substitute this court for the supreme
court at the top of the form.
3. Fill in the name of the county in which the trial court is located.
4. Your indictment number if you know it. Also, fill in the year in which you were indicted or arraigned.
5. Write your name in all the blanks referring to defendant.
6. You should cite “section 450.10, subdivision (1), of the Criminal Procedure Law of the State of New York” if you
are either appealing only the judgment or if you are appealing both the judgment and sentence. If you wish to appeal only
the sentence, you should replace the above citation with “section 450.10, subdivision (2), of the Criminal Procedure Law
of the State of New York.”
7. Insert the number of the department (First, Second, Third, or Fourth) in which you were tried. This is also the
department in which your appeal will take place.
8. Fill in the date of the judgment against you.
9. Fill in the name of the trial judge.
10. Fill in the letter of the class of the felony you were convicted of (for example, class B felony).
11. Fill in the name of the felony (for example, robbery in the first degree).
12. Fill in the town from which you are sending the Notice.
13. Fill in the date on which you are signing the Notice.
14. If you are representing yourself, or if you have an attorney but wrote this Notice of Appeal yourself, sign your

name, print or type your name below your signature, and fill in your address. If your attorney wrote the Notice, then he
or she will sign his or her name and provide an address and phone number.
15. Fill in the name and address of the District Attorney of the county in which you were tried. Include this

information on both the copy you are sending to the District Attorney and on the two copies you are sending to the trial
court, so that the clerk of the trial court will know that you have notified the District Attorney See Appendix III of the
JLM for a list of addresses of New York district attorneys.
16. See generally N.Y. Crim. Proc. Law § 460.20, Form 4, McKinney’s Forms (2005). This form can be used in any

one of three situations: (i) if you need to obtain permission to appeal to the appellate division or appellate term; (ii) if
your appeal to the appellate division or appellate term was unsuccessful, and you wish to apply to the court of appeals
for permission to appeal it; or (iii) if your appeal to the appellate division was unsuccessful and you wish to apply to the
appellate division for permission to appeal to the court of appeals. The first situation is explained in Part F of this
Chapter; the last two situations are explained in Part G. If you are applying to the appellate division for permission to
appeal to the court of appeals, you should replace the reference to the court of appeals at the top and bottom of the form
with the full name of the appellate division from which you are seeking permission to appeal (for example, the Supreme
Court of New York, Appellate Division, Third Department).
17. Your indictment number and the year in which you were indicted.
18. Your name.
19. If you are sending this Notice to a judge in the appellate division, fill in his or her name. If you are sending it to

the court of appeals, write “the Chief Judge of the Court of Appeals to designate an Associate Judge of the Court.” If your
first appeal was denied by a court other than the appellate division, such as a county court or an appellate term, then
you may send this application only to the court of appeals. See Part G of this Chapter.
20. If you want to apply for permission to appeal a denial of your Article 440 motion by the trial court, send your application to the
proper appellate court and replace the material in the form after “for a certificate ...” with:
pursuant to section 460.15 of the Criminal Procedure Law of the State of New York, certifying that this case
involves a question of law or fact which ought to be reviewed by the Appellate Division [or Appellate Term or
County Court] from the ___________, ____order by the Supreme Court [or County court or Criminal Court] of
___________ County which denied defendant’s motion to vacate judgment pursuant to section 440.10 [or motion
to set aside sentence pursuant to section 440.20] and affirmed the judgment convicting defendant of the class
_______ felony of __________ and sentencing [him/her] to an indeterminate term of imprisonment at
_____________.
To determine to which appellate court you should apply, see Appendix A of this Chapter. Remember, you must
submit an application along with this notice of application. In the application, you must explain why your Article 440
motion should be granted. Your application has a better chance of success if it is notarized as an affidavit. Most jails and
prisons have several staff members who will notarize your documents.
21. Fill in the date of the appellate court’s denial of your appeal, and the number of the judicial department.
22. Fill in the date of your conviction in the trial court, the county, the offense, as well as the prison to which you

were sent.
23. Your address and the date.
24. If you are representing yourself, fill in your own name and address. If your lawyer is writing this notice, he or

she will sign his or her own name and address.

25. If you are sending this to the court of appeals, address this Notice to the Clerk of the Court, and the clerk will

give notice to the District Attorney in the county in which your first appeal was denied. If you are sending this to the
appellate division, send two copies to the clerk of the appellate division and fill in the address. Also send a copy to the
District Attorney of the county in which you were first convicted and fill in his or her name and address on the copy you
send to the District Attorney. See Appendix III of the JLM for a list of addresses for New York district attorneys.
26. The different judicial departments have different rules as to whether to send this Notice to the clerk of the trial

court or to the clerk of the appellate court. Check with a lawyer or an advisor in prison for information on these rules.
27. Fill in the county and the number of the judicial department of the appellate division. Appendix II of the JLM

provides this information.

28. Your indictment or docket number and the year in which the proceedings against you began.
29. Your name.
30. Your name again, and the date of the affidavit.
31. The date of the conviction.
32. The date and your present location.
33. Your name.
34. Fill in the name and address of the District Attorney of the county in which you were tried. Include this

information on both the copy that you are sending to the District Attorney and on the two copies that you are sending to
the trial court, so that the clerk of the trial court will know that you have notified the District Attorney. See Appendix III
of the JLM for a list of addresses for New York district attorneys.
35. If this is the copy to the Appellate Division, fill in the address of the court.
36. Fill in the number of the judicial department. See Appendix II of the JLM.
37. Your name.
38. Your indictment or docket number and the year it was handed down.
39. The county in which you are presently living.
40. Your name.
41. The name of the prison you are currently in, where it is located, the county you were convicted in, the date you

were convicted, the crime and degree you were convicted of, and the number of years to which you were sentenced.
42. Your lawyer’s name, address, and telephone number. If your lawyer was assigned, indicate this fact here.
43. Your signature. If your attorney is making the application on these papers, then an affirmation (a statement

that the papers are true) by him or her may be substituted for the signature and seal of the notary. If you are signing the
affidavit, you should only do so in the presence of a notary public.
44. If your attorney does not make an affirmation, the notary public’s date and seal are placed here.
45. See generally N.Y. Crim. Proc. Law § 510.20, Form 2, McKinney’s Forms (2005).
46. Fill in the county and the number of the judicial department of the trial court. See Appendix II of the JLM.
47. Your indictment or docket number and the year proceedings against you began.
48. Your name.
49. Your name and the date of the affidavit (Form B-4(b)).
50. Your name.
51. If you are in a county jail, you are in the custody of a sheriff. If you are in a state prison, you are in the custody

of the Department of Correctional Services. Therefore, write either “sheriff” or “Commissioner of the Department of
Correctional Services,” depending on your particular situation.
52. Your address and the date.
53. Your name.
54. Fill in the name and address of the District Attorney of the county in which you were tried. Include this

information on both the copy that you are sending to the District Attorney and on the two copies that you are sending to
the trial court, so that the clerk of the trial court will know that you have notified the District Attorney. See Appendix III
of the JLM for a list of addresses for New York district attorneys.
55. If this is the copy to the appellate division, fill in the address of the court.
56. Number of the judicial department of the trial court.
57. Your name.
58. Indictment/docket number; year in which proceedings began.
59. City and county where affidavit was taken.
60. Your name.
61. The date of your conviction, the crime and degree, the trial judge, the name of your prison and its location.
62. State exactly what you are appealing. If you are appealing your sentence, add “and sentence.” If you are

appealing an order, add “and order.” Also fill in the date on which you filed the Notice of Appeal.
63. Set forth the facts and reasons why you should be released on bail pending your appeal (for instance, the lack of

seriousness of your crime, that you are not a threat to the community if you are out on bail, your previous good record in
making court appearances, and the likelihood of your success in overturning your conviction or sentence on appeal).
64. Explain why the judgment should be reversed, supporting your argument with facts from the record.

65. Fill in the name of the prison in which you are incarcerated.
66. Your signature and typed or printed name below. Do not sign until the notary is present.
67. Notary’s signature, the date and seal. If your attorney is making an application on papers submitted by him or

her personally, then an affirmation as to the truth of the papers may be substituted for the notary’s signature and seal.
 68. See generally N.Y. Crim. Proc. Law § 460.30, Form 1, McKinney’s Forms (2005). If you did not file a Notice of
Appeal within the thirty-day deadline, and you believe that you missed the deadline for a valid reason, such as the
inaction of your lawyer or a prison official, then you should file a motion for an extension pursuant to New York Criminal
Procedure Law Section 460.30. If granted, the motion will extend the time in which you must file a Notice of Appeal.
69. The county and the number of the department of the appellate division.
70. Your name.
71. Indictment or docket number and the year in which the indictment was handed down against you.
72. Your name.
73. The date of the affidavit.
74. The county in which the trial court was located.
75. The date of the judgment and/or sentence or order that you are appealing.
76. The crime and the degree of the felony or misdemeanor.
77. Explain here why you missed the deadline for filing a Notice of Appeal. Do not claim that you missed the filing

deadline due to your attorney’s misconduct, unless this is actually the case.
78. Fill in your location and the date.
79. Your name.
80. District Attorney’s name and address in the county in which you were tried. Include this on all copies. See

Appendix III of the JLM for a list of addresses for New York district attorneys.
81. If this is the copy you are sending to the appellate court, fill in the address.
82. Number of the judicial department of the appellate division.
83. Your name.
84. Indictment number and year of the indictment.
85. Your name.
86. Fill in the date of conviction, the crime, the degree of the crime, the name of the trial judge, the length of the

sentence, the date of the sentence, and the name of the sentencing judge.
87. In the remaining part of the affidavit, state the reasons why you failed to file the notice of appeal within the 30-

day period—for example, because your attorney forgot that you wanted to appeal or did not know of your wish to appeal.
88. This is the place for the notary public’s signature and the date. Be sure that you do not sign the papers until the

notary is present. If your attorney is making the application with these papers in person, then an affirmation as to the
truth of the papers may be substituted for the signature and seal of the notary.
89. Fill in the information for the intermediate appellate court to which you are addressing this petition. You should
address the petition to the court in which the ineffective assistance of appellate counsel that you are alleging took place.
90. Your indictment number and the year in which you were indicted.
91. Your name.
92. Charge for which you were convicted.
93. Trial court in which you were convicted.
94. Date on which you were convicted.
95. His or her.
96. Name of your attorney on appeal. This is the attorney that you are alleging provided ineffective assistance.
97. In this section you need to list the particular actions your appellate counsel took and the actions you believe your

attorney should have taken. Your statements—both of the facts and arguments—should be as clear and specific as
possible. You must state the specific appellate issues that you believe your lawyer failed to raise. Also, be sure to consult
the rules of the particular jurisdiction for additional deadlines and requirements that you must follow.
98. Include copies of the appellate briefs and the appellate division decision when you mail your petition.
99. You may request that a new lawyer be assigned to you if you do not currently have a lawyer to assist you.
100. Date.
101. If you are representing yourself, fill in your own name and address. If your lawyer is writing this petition, he or

she will sign his or her own name and address.

102. Fill in the information for the intermediate appellate court to which you are addressing this petition. You should

address the petition to the court in which you believe you had ineffective assistance of counsel. Make sure to include the
court’s street address.
 A Jailhouse Lawyer’s
Manual

Chapter 10:
Applying for Re-Sentencing
for Drug Offenses

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia Human Rights Law
Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended
as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any
information contained herein is intended to or shall constitute a contract between the JLM and any reader,
and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of
the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at
Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,
because the law changes frequently, we cannot guarantee that all information is current.
 CHAPTER 10

APPLYING FOR RE-SENTENCING FOR DRUG OFFENSES*

A. Introduction
In 2004, New York reformed the state’s old Rockefeller drug laws by adopting the Drug Law Reform Act
(“DLRA”).1 The DLRA took effect on January 13, 2005,2 and changed sentencing ranges for drug offenses,
generally making sentences shorter. The new shorter sentence ranges automatically apply to anyone
sentenced for a drug offense committed after January 13, 2005.3 However, the DLRA also allows people
currently serving sentences for A-I felony drug offenses under the old law to apply for re-sentencing under
the new law.4 A second law, which took effect on October 29, 2005, allows some people serving sentences for
A-II felony drug convictions to apply for re-sentencing under the new law.5 This means that if you are
serving a sentence for an A-I or A-II felony drug offense, and you were sentenced under the old laws, you
may be able to have your sentence reduced under the new laws. This Chapter describes who is allowed to
apply for re-sentencing, which new sentences you could receive if you apply, and how to apply for re-
sentencing. Part B of this Chapter describes who is eligible to apply for re-sentencing. Part C describes what
happens if you decide to apply. Part D explains how to apply. The appendices at the end of the Chapter
provide forms you will need to apply for re-sentencing.
B. Eligibility: Who Is Allowed to Apply?
If you are serving time for a felony drug offense, you must first determine whether you are eligible for re-
sentencing. Re-sentencing is only available to people who were convicted of A-I and A-II felony drug offenses
and are currently serving time for those offenses in the custody of the New York State Department of
Correctional Services (DOCS). The A-I felony drug offenses are criminal possession of a controlled substance
in the first degree6 and criminal sale of a controlled substance in the first degree.7 The A-II felony drug
offenses are criminal possession of a controlled substance in the second degree8 and criminal sale of a
controlled substance in the second degree.9 These offenses are all described in Section 220 of the New York
Penal Law.10 There are different re-sentencing eligibility requirements for people who are serving sentences
for A-I and A-II felony drug offenses.
1. If You Are Serving a Sentence for an A-I Felony Drug Conviction
Generally, if you are serving a sentence for an A-I felony drug offense and you were sentenced under the
old law, you may apply for re-sentencing without any further requirements.11 But the law has been specified
in the case of People v. Bagby to mean that you must be “in the custody of the department of correctional
services” to qualify for re-sentencing.12 A defendant who is incarcerated for a parole violation after being

* This Chapter was revised by Nathan Piper, based on a previous version written by Sydney Bird. Special thanks to
William Gibney of the New York Legal Aid Society for his valuable comments.
1. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
2. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
3. People v. Nelson, 21 A.D.3d 861, 862, 804 N.Y.S.2d 1, 1 (1st Dept. 2005) (holding new sentencing ranges under
the DLRA do not apply to persons sentenced for offenses committed before January 13, 2005, even where sentencing
takes place after January 13, 2005). New York’s highest court, the New York Court of Appeals, upheld this decision in
three prisoners’ consolidated appeals in People v. Utsey, 7 N.Y.3d 398, 855 N.E.2d 791, 822 N.Y.S.2d 475 (2006).
4. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
5. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
6. N.Y. Penal Law § 220.21 (McKinney 2005).
7. N.Y. Penal Law § 220.43 (McKinney 2005).
8. N.Y. Penal Law § 220.18 (McKinney 2005).
9. N.Y. Penal Law § 220.41 (McKinney 2005).
10. N.Y. Penal Law § 220 (McKinney 2005).
11. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
12. People v. Bagby, 11 Misc. 3d 882, 886, 816 N.Y.S.2d 302, 304 (Sup. Ct. Westchester County 2006) (holding that
defendant whose A-I felony sentence was commuted to 8 1/3 years to life was not eligible for re-sentencing for an A-I
offense, and that a defendant who has been placed on parole for an A-I or A-II offense, violates that parole, and is then
incarcerated is not eligible for re-sentencing).
released from prison for their original A-I sentence is not considered to be “in the custody of the department
of correctional services” and cannot apply for re-sentencing under the Drug Reform Laws.13
You also must have been subjected to an indeterminate length of imprisonment of 15 or more years to be
eligible for A-I re-sentencing.14 If you were sentenced to an A-1 felony of 15 or more years, but then had your
sentence commuted to less than 15 years, you are not eligible for re-sentencing under an A-1 felony drug
offense.15 However, you should look to the Section 2 below to see whether you are eligible for re-sentencing
under an A-II Felony Drug Conviction.16
2. If You Are Serving a Sentence for an A-II Felony Drug Conviction
If you are serving a sentence for an A-II felony drug offense and you were sentenced under the old law,
you may apply for re-sentencing if you also meet two requirements.17 The first requirement has to do with
how long it will be, under your current sentence, before you are eligible for parole. This requirement is called
The Time to Parole Eligibility Requirement. The second requirement has to do with whether you are
currently eligible for a merit time reduction. This is called the Merit Time Eligibility Requirement. Both
requirements are explained below. If you meet both, and you are serving a sentence for an A-II felony drug
offense under the old law, then you may apply for re-sentencing.
(a) The Time to Parole Eligibility Requirement
The first requirement is you must be a certain period of time away from parole eligibility under your
current sentence. Courts have determined this period is three years in New York, though the law does not
state how many years away from parole you must be to be eligible.18 The law only says you must be “more
than twelve months from being an eligible inmate as that term is defined in Subdivision 2 of Section 851 of
the correction law.”19 An “eligible” person, according to § 851(2), is a prisoner “who is eligible for release on
parole or who will become eligible for release on parole or conditional release within two years.”20 In practice,
courts have stated this means you must be three years away from parole eligibility. 21 But, since this
meaning of “eligible” has two parts—“eligible for release on parole” and “who will become eligible for release
on parole or conditional release within two years”—there are two possible meanings of the time to parole
eligibility requirement in re-sentencing law. But, the three-year requirement has been followed in New York.
(b) The Established Meaning of New York’s Time to Parole Eligibility Requirement
The most obvious way to state this requirement for re-sentencing is that you must be more than three
years away from becoming eligible for release on parole or conditional release.22 In People v. Bautista,23 the

13. People v. Bagby, 11 Misc. 3d 882, 886, 816 N.Y.S.2d 302, 304 (Sup. Ct. Westchester County 2006).
14. People v. Bagby, 11 Misc. 3d 882, 890, 816 N.Y.S.2d 302, 309 (Sup. Ct. Westchester County 2006).
15. People v. Bagby, 11 Misc. 3d 882, 890, 816 N.Y.S.2d 302, 309 (Sup. Ct. Westchester County 2006).
16. People v. Bagby, 11 Misc. 3d 882, 890, 816 N.Y.S.2d 302, 309 (Sup. Ct. Westchester County 2006).
17. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
18. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006) (holding that in order to
be eligible for re-sentencing under the 2005 law, a prisoner serving time for an A-II drug felony must be at least three
years away from his first possible parole date), appeal granted, 6 N.Y.3d 831, 847 N.E.2d 376, 814 N.Y.S.2d 79 (2006),
appeal dismissed, People v. Bautista, 7 N.Y.3d 838, 857 N.E.2d 49, 823 N.Y.S.2d 754 (2006).
19. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
20. N.Y. Correct. Law § 851(2) (McKinney 2005).
21. See People v. Thomas, 35 A.D.3d 895, 826 N.Y.S.2d 456 (3d Dept. 2006) (holding that defendant convicted of an
A-II felony drug offense was not eligible for re-sentencing under the Drug Law Reform Act because the defendant was
eligible for parole within three years); People v. Parris, 35 A.D.3d 891, 828 N.Y.S.2d 429 (2d Dept. 2006) (holding that,
since defendant was less than three years away from eligibility for parole, he could not seek re-sentencing under Chapter
643); People v. Nolasco, 37 A.D.3d 622, 831 N.Y.S.2d 197 (2d Dept. 2007) (holding that because defendant was less than
three years from parole, he was an “eligible inmate” in the meaning of Chapter 643 and could not proceed with a motion
for re-sentencing); People v. Perez, 44 A.D.3d 418, 843 N.Y.S.2d 68 (1st Dept. 2007) (holding the supreme court did not
have to assign counsel or conduct a hearing for a defendant who was less than three years from parole eligibility when
he filed a motion for re-sentencing because he was ineligible for re-sentencing); People v. Corley, 45 A.D.3d 857, 847
N.Y.S.2d 148 (2d Dept. 2007) (holding that a defendant who had already been denied parole and whose motion for re-
sentencing would always be less than three years away from the next parole hearing was not eligible for re-sentencing).
22. This determination is reached by adding the “more than twelve months” requirement to the “release within
two years” requirement from the definition of “eligible” in § 851(2). N.Y. Correct. Law § 851(2) (McKinney 2005).
23. People v. Bautista, 26 A.D.3d 230, 809 N.Y.S.2d 62 (1st Dept. 2006).
First Department Appellate Division found this was the correct meaning of the law. The New York Court of
Appeals (the state’s highest court) agreed, denying appeal. The Appellate Divisions in the Second, Third, and
Fourth Departments later followed the three-year eligibility requirement.24
Additionally, before People v. Bautista was decided, New York DOCS issued a memo stating that to be
eligible for re-sentencing, a prisoner serving time for an A-II offense must be at least three years away from
his first possible parole date.25 For example, if you will become eligible for release on parole or conditional
release on December 1, 2008, you may apply for re-sentencing on or before November 30, 2005, but not on or
after December 1, 2005. If you file your application with the court more than three years before
your earliest possible release date under your current sentence, you definitely meet this
requirement.
(c) A Different Reading of the Time to Parole Eligibility Requirement
There is, however, a different way to read the re-sentencing law. Under this alternate reading of the law,
you would meet this requirement if you are more than one year away from your earliest possible parole date.
There are two separate definitions of an eligible person under Subdivision 2 of Section 851 of the New York
Corrections Law: (1) a prisoner “who is eligible for release on parole[;] or” (2) a prisoner “who will become
eligible for release on parole or conditional release within two years.”26 The most common way to read the re-
sentencing law, discussed above, is to use the second definition from Subdivision 2 of Section 851, so that
only a prisoner who is more than twelve months plus two years away from his earliest possible release date
is allowed to apply for re-sentencing.27 The alternate reading uses the first definition from Subdivision 2 of
Section 851, so that a prisoner who is more than twelve months from being eligible for parole meets the time
to parole eligibility requirement for re-sentencing.28 Therefore, under this alternate reading, if you are more
than one year away from your earliest possible parole date, you might be eligible to apply for re-sentencing.29
This alternate reading was explicitly rejected by the Appellate Division, First Department, in Bautista.30
Bautista held that the prisoner will only qualify for re-sentencing under the 2005 Drug Law Reform Act if he
is not eligible for parole within three years at the time of application.31 Other courts in New York have
followed this decision.32 In light of these cases, it appears that, at least in New York, the courts will follow

24. See People v. Thomas, 35 A.D.3d 895, 896, 826 N.Y.S.2d 456, 457 (3d Dept. 2006) (holding that the two
provisions of § 851(2) when read together require that in order to qualify for re-sentencing under the 2005 DLRA, a class
A-II felony drug offender must not be eligible for parole within three years); People v. Parris, 35 A.D.3d 891, 892, 828
N.Y.S.2d 429, 430 (2d Dept. 2006) (holding that Chapter 643 does not apply to inmates who are three or fewer years
from eligibility for parole); People v. Nolasco, 37 A.D.3d 622, 623, 831 N.Y.S.2d 197, 198 (2d Dept. 2007) (denying
defendant’s motion for re-sentencing because he was fewer than three years from parole eligibility); People v. Corley, 45
A.D.3d 857, 858, 847 N.Y.S.2d 148, 149,(2d Dept. 2007) (holding that because “defendant's next parole hearing will
always be less than three years away from any date he moves for resentencing in the future … chapter 643 does not and
will not afford him the right to move for resentencing”); People v. Smith, 45 A.D.3d 1478, 1479, 846 N.Y.S.2d 520, 521
(4th Dept. 2007) (holding that the defendant could not be resentenced because she was eligible for parole within seven
months); People v. Dunham, 46 A.D.3d 1416, 1417, 847 N.Y.S.2d 506, 506 (4th Dept. 2007) (denying application for re-
sentencing because defendant was eligible for parole within two years); People v. Mills, 48 A.D.3d 1108, 1108, 849
N.Y.S.2d 855, 855 (4th Dept. 2008) (finding applicant ineligible for re-sentencing because he was scheduled to appear
before the parole board within two years after his initial parole denial).
25. Memorandum from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal
Justice Practitioners (Sept. 20, 2005) (on file with the JLM).
26. N.Y. Correct. Law § 851(2) (McKinney 2005).
27. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006) (holding that to be eligible
for re-sentencing under the 2005 law, a prisoner serving time for an A-II drug felony must be at least three years away
from his first possible parole date), appeal granted, 6 N.Y.3d 831, 847 N.E.2d 376, 814 N.Y.S.2d 79 (Mar. 2, 2006), appeal
dismissed, People v. Bautista, 7 N.Y.3d 838, 838, 857 N.E.2d 49, 50, 823 N.Y.S.2d 754, (Sept. 21, 2006); Memorandum
from Al O’Connor, New York State Defenders Association to Chief Defenders at 2 (Oct. 24, 2005) (on file with the JLM).
28. See Memorandum from Al O’Connor, New York State Defenders Association, to Chief Defenders at 2 (Oct. 24,
2005) (on file with the JLM).
29. See Memorandum from Al O’Connor, New York State Defenders Association, to Chief Defenders at 2 (Oct. 24,
2005) (on file with the JLM).
30. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006).
31. See People v. Bautista, 26 A.D.3d 230, 230–31, 809 N.Y.S.2d 62, 63 (1st Dept. 2006).
32. See People v. Nolasco, 37 A.D.3d 622, 623, 831 N.Y.S.2d 197, 198 (2d Dept. 2007) (holding that defendant was
less than three years from parole and therefore an “eligible inmate” in the meaning of Chapter 643, and was properly not
allowed to proceed with a motion for re-sentencing); People v. Perez, 44 A.D.3d 418, 418, 843 N.Y.S.2d 68, 68 (1st Dept.
the first reading of the time to parole eligibility requirement. However, if you live outside of New York, and
you are more than one year but less than three years away from your earliest possible release date, it may
be worthwhile for you to file for re-sentencing anyway. You could argue that the alternate reading of the
time to parole eligibility requirement is the correct reading.33
If you are more than one year and less than three years away from your earliest possible parole date, you
could file an application for re-sentencing, but the judge will probably decide you do not meet the time to
parole eligibility requirement. In your application, you should argue the re-sentencing law should be read to
refer to either definition of “eligible” from Subdivision 2 of Section 851, not necessarily the second definition.
(d) Measuring Time to Parole Eligibility
Time to parole eligibility is probably measured from the date that the court receives your application for
re-sentencing.34 In other words, the day that you file the application with the court must be more than three
years from your parole date. (Under the alternate reading discussed above, the day you file the application
must be more than one year before your earliest possible release date under your current sentence.) The law
itself does not say that the three years (or one year) should be counted from the day you file the application,
but memos from both New York DOCS and the senators that introduced the re-sentencing law as a bill in
the New York Senate seem to say that the time is measured from the date your application is filed.35 This is
also consistent with the wording of the decision by the First Department Appellate Division in People v.
Perez—since the defendant “was less than three years from his parole eligibility date when he filed the
motion,” he was ineligible for re-sentencing. 36 The court here looked at the date of the motion for re-
sentencing to measure the time to parole, and since the application was filed within three years of parole
eligibility it was denied. Therefore, if possible, you should make sure you file your re-sentencing
application with the court more than three years before your earliest possible release date.
A further issue is how to measure the three years from parole under the 2005 DLRA for a defendant
serving cumulative sentences for an A-II felony along with other crimes. The government has argued that
eligibility for re-sentencing should be based only on the time left in serving just the A-II felony sentence.
This would mean a defendant who has served two years of a four-year A-II sentence, but also has more than
three years to serve for another sentence would not be eligible for re-sentencing. This view, however, has not
been followed. In People v. Paniagua, the First Department Appellate Division said that defendant’s parole
eligibility date was the date he would be eligible for parole on his cumulative sentence for both A-I and A-II

2007) (holding that the Supreme Court was not required to assign counsel or conduct a hearing for a defendant who was
less than three years from parole eligibility when he filed a motion for re-sentencing since defendant was ineligible for
re-sentencing); People v. Corley, 45 A.D.3d 857, 858, 847 N.Y.S.2d 148, 149 (2d Dept. 2007) (holding that a defendant
who had already been denied parole and whose motion for re-sentencing would always be less than three years away
from the next parole hearing was not eligible for re-sentencing); People v. Santos, 13 Misc. 3d 1230A (Sup. Ct. Kings
County 2006) (unpublished) (holding that a defendant was ineligible to be resentenced because he was eligible for parole
in less than three years); People v. Reyes-Acevedo, 12 Misc. 3d 1195A (Sup. Ct. N.Y. County 2006) (unpublished) (finding
that because defendant received a sentence of less than three years, he failed to meet the requirement to be
resentenced); People v. Parris, 35 A.D.3d 891, 892, 828 N.Y.S.2d 429, 430 (2d Dept. 2006) (holding that a defendant
eligible for parole in less than three years cannot apply for re-sentencing); People v. Thomas, 35 A.D.3d 895, 895, 826
N.Y.S.2d 456, 457 (3d Dept. 2006) (holding that defendant was “well within the three-year period” at the time of his
application for re-sentencing and therefore ineligible); People v. Mills, 14 Misc. 3d 1220(A), 836 N.Y.S.2d 488 (County Ct.
Onondaga County Jan. 16, 2007) (unpublished) (vacating grant of re-sentencing by extending the holdings of Bautista,
Thomas, and Parris and the three-year "cut out" period to prisoners who have served the court-ordered minimum, have
been denied parole, and will be eligible for parole within the subsequent three years). Compare People v. Covel, 12 Misc.
3d 1185A, 824 N.Y.S.2d 764 (Sup. Ct. N.Y. County July 20, 2006) (unpublished) (reaching the question of whether
“‘eligible for parole’ means that the applicant has reached a court-set minimum or a merit time release date” and finding
defendant, who was within one year of his temporary release date, ineligible for re-sentencing).
33. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this Chapter
(Mar. 9, 2006) (on file with the JLM).
34. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this Chapter
(Nov. 17, 2005) (on file with the JLM); see New York State Senate Introducer’s Memorandum in Support of Bill No. S.
5800 (June 20, 2005) (on file with the JLM).
35. Memorandum from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal
Justice Practitioners at 2 (Sept. 20, 2005) (on file with the JLM); New York State Senate Introducer’s Memorandum in
Support of Bill No. S. 5880 (June 20, 2005) (on file with the JLM).
36. People v. Perez, 44 A.D.3d 418, 419, 843 N.Y.S.2d 68, 68 (1st Dept. 2007).
felonies—not the date he would be eligible for parole if he was just serving his A-II felony.37 The court stated,
“The pivotal measuring rod is not the time remaining on an A-II felony sentence, but the time before an
inmate becomes an ‘eligible inmate’”—in other words, when the inmate will actually be up for parole.38
If you have less than three years (or one year) until your earliest possible release date, but your release
date is after October 30, 2008 (or 2006), you could still apply for re-sentencing. But the judge might decide
that your application is too late for you to fulfill the time to parole eligibility requirement. If that happens,
you will need to argue that the three years (or one year) should be measured from the day the law came into
effect, which is October 29, 2005,39 instead of from the day your application gets to the court. To support this
argument, you could cite to New York’s Statutes Law, which says that a “statute speaks, not from the time
when it was enacted, or when the courts are called on to interpret it, but as of the time it took effect.”40
However, a judge may not accept this argument,41 and may deny your application because you do not meet
the time to parole eligibility requirement. So, it is best to file your application with the court more than
three years before your earliest possible release date.
3. The Merit Time Eligibility Requirement
The second requirement is that you are eligible to receive a merit time reduction of your current
sentence. As with the first requirement, the re-sentencing law states this requirement indirectly.
Specifically, the re-sentencing law says that you must meet “the eligibility requirements of paragraph (d) of
Subdivision 1 of Section 803 of the correction law.”42 In order to meet the merit time requirements, for the
purposes of the DLRA, the defendant “must be serving a sentence of one year or more, be in the Correction
Department’s custody as of certain periods of time, not have been convicted of certain crimes, not have
committed a ‘serious disciplinary infraction’ or commenced a frivolous civil lawsuit or other civil proceeding
against a state agency, officer or employee, and have participated in certain programs.” 43 These
requirements will be discussed in greater detail below.
The requirement that prisoners serving sentences for certain types of crimes are ineligible for merit
time, is found in Section 803(d)(1) of the New York Correction Law.44 These crimes are listed below, in
Subsection (a) of this Section. If you are serving time for one of the disqualifying offenses listed
below, you do not meet the merit time eligibility requirement for re-sentencing, and you may not
apply.
(a) Eligibility for Merit Time Under New York Correction Law Section 803(1)(d):
Disqualifying Offenses
If you are serving time for certain types of offenses in addition to the A-II felony drug offense, you are
ineligible for merit time under Section 803(1)(d) of the New York Correction Law, and therefore you are not
eligible to apply for re-sentencing. The disqualifying offenses are: any non-drug class A-I felony, any violent
felony offense as defined in Section 70.02 of the New York Penal Law,45 manslaughter in the second degree,
vehicular manslaughter in the first or second degree, criminally negligent homicide, any sex offense defined
in Article 130 of the New York Penal Law,46 incest, any sexual performance by a child offense defined in
Article 263 of the New York Penal Law,47 or aggravated harassment of an employee by a prisoner.48
One question is whether you are eligible for re-sentencing if you were sentenced for both a disqualifying
offense and a drug offense, and you have arguably finished serving the sentence for the disqualifying

37. People v. Paniagua, 45 A.D.3d 98, 105, 841 N.Y.S.2d 506, 512 (1st Dept. 2007).
38. People v. Paniagua, 45 A.D.3d 98, 105, 841 N.Y.S.2d 506, 512 (1st Dept. 2007).
39. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
40. N.Y. Stat. Law § 93 (McKinney 2005).
41. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this Chapter
(Nov. 17, 2005) (on file with the JLM).
42. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
43. People v. Paniagua, 45 A.D.3d 98, 106, 841 N.Y.S.2d 506, 513 (1st Dept. 2007).
44. N.Y. Correct. Law § 803(1)(d)(ii) (McKinney 2005).
45. N.Y. Penal Law § 70.02 (McKinney 2005).
46. N.Y. Penal Law §§ 130.00–130.90 (McKinney 2005).
47. N.Y. Penal Law §§ 263.00–263.25 (McKinney 2005).
48. N.Y. Correct. Law § 803(1)(d)(ii) (McKinney 2005).
offense.49 For example, if you were sentenced to two years’ imprisonment for a disqualifying offense, to be
served concurrently or consecutively with a longer prison term for an A-II felony drug offense, and you have
already served four years, it appears that you are no longer serving time for the disqualifying offense. It is
possible that you could apply for re-sentencing, but you would need to argue in your application that you are
no longer serving the sentence for the disqualifying offense. This argument will likely be unsuccessful,
because two recent cases indicate that a defendant whose sentence originally included a disqualifying
offense will not be re-sentenced. The first case is People v. Merejildo,50 in which the defendant was serving a
consecutive sentence of two to four years for a violent felony, and eight years to life for an A-II felony. After
serving more than four years, the defendant sought re-sentencing under DLRA, and argued that he was no
longer serving the disqualifying offense. The court said, though, that “[p]ursuant to Penal Law §70.30(1)(b),
defendant’s consecutive sentences are merged into a single aggregate sentence, with a term of ten years to
life.”51 This meant that the defendant was still considered to be serving the disqualifying violent felony.
A similar argument was unsuccessful for a defendant serving a concurrent sentence in People v.
Quiñones, a 2008 decision by the First Department Appellate Division.52 There, a defendant was sentenced
to a maximum seven-year violent felony offense (which is a disqualifying offense) along with a concurrent
life sentence for class A-II felony violations. After serving more than seven years, Quiñones applied for re-
sentencing, arguing that he had finished serving the disqualifying offense. The court disagreed and said that
since his sentence was concurrent, Quiñones remained imprisoned for a sentence that included a
disqualifying offense. The defendant was therefore ineligible for re-sentencing.
The decisions in Merejildo and Quiñones mean that if you were simultaneously sentenced for a
disqualifying offense and an A-II offense, you will be unlikely to successfully argue that you have finished
serving the disqualifying offense, and you will therefore not be re-sentenced under the DLRA. You probably
cannot apply for re-sentencing if you were on parole for any one of the disqualifying offenses at the time that
you were charged with the A-II felony drug offense. If this is your situation, the time owed to parole on the
first sentence was probably added to the A-II felony drug sentence. This would make you ineligible for merit
time and therefore ineligible for re-sentencing under the new law.53
You probably meet the merit time eligibility requirement if you are not serving time for any of the
disqualifying offenses listed above (or listed in Section 803(1)(d)(ii) of the New York Correction Law), and if
you were not on parole for any of those offenses at the time that you were charged with the A-II felony drug
offense.54 However, the judge will probably also look at the other restrictions on granting merit time that are
included in Correction Law Section 803(1)(d). These restrictions are discussed below, in Subsection (b).
(b) Other Restrictions on Merit Time Under New York Correction Law § 803(1)(d)
Courts have noted other restrictions that might apply to merit time allowances in re-sentencing under
the DLRA, according to Section 803(1)(d). “[T]o obtain a merit time allowance a defendant must ... not have
been convicted of certain crimes, not have committed a ‘serious disciplinary infraction’ or commenced a
frivolous civil lawsuit or other civil proceeding against a state agency, officer or employee, and have
participated in certain programs.”55 This means that there is a possibility that a judge may decide that you
are ineligible for merit time—and therefore ineligible for re-sentencing—if you have a serious disciplinary
infraction on your prison record or if, while you were in prison, you filed or proceeded with a lawsuit that
was dismissed as frivolous.56 This is the view expressed by the court in People v. Hill when describing the
requirements: “To be eligible for re-sentencing under this legislation, a defendant must ... meet the eligibility
requirement of Correction Law § 803(1) (which requires a defendant be eligible to earn ‘merit time,’ which

49. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this Chapter
(Dec. 7, 2005) (on file with the JLM).
50. People v. Merejildo, 45 A.D.3d 429, 430, 846 N.Y.S.2d 52, 53 (1st Dept. 2007).
51. People v. Merejildo, 45 A.D.3d 429, 430, 846 N.Y.S.2d 52, 53 (1st Dept. 2007) (citing People v. Curley, 285
A.D.2d 274, 730 N.Y.S.2d 625 (4th Dept. 2001), lv. denied, 97 N.Y.2d 607, 738 N.Y.S.2d 290, 764 N.E.2d 394 (2001)).
52. People v. Quiñones, 49 A.D.3d 323, 854 N.Y.S.2d 5 (1st Dept. 2008).
53. Memorandum from Al O’Connor, New York State Defenders Association to Chief Defenders at 4 (Oct. 24,
2005) (on file with the JLM).
54. See Memorandum from Al O’Connor, New York State Defenders Association to Chief Defenders at 4–5 (Oct.
24, 2005) (on file with the JLM).
55. People v. Paniagua, 45 A.D.3d 98, 106, 841 N.Y.S.2d 506, 513 (1st Dept. 2007).
56. See Memorandum from Al O’Connor, New York State Defenders Association, to Chief Defenders at 4–5 (Oct. 5,
2005, revised Oct. 24, 2005) (on file with the JLM).
means the defendant cannot also be serving another sentence for which merit time is not available, such as
certain sex offenses, all violent felony offenses, any homicide, or if the defendant has a poor disciplinary
record, or has been found to have filed a frivolous lawsuit).”57 In other words, even if you are not serving
time for any of the disqualifying offenses, a judge might decide that you do not meet the merit time
eligibility requirement for re-sentencing because, under Correction Law Section 803(1)(d)(iv), you could not
be granted merit time. This Section states that “allowance shall be withheld for any serious disciplinary
infraction or upon a judicial determination that the person, while an inmate, commenced or continued a civil
action, proceeding or claim that was found to be frivolous.”58
But, in the way most courts apply the law, the re-sentencing law only requires you be eligible for merit
time under Correction Law Section 803(1)(d), rather than requiring you actually earned merit time under
Correction Law Section 803(1)(d). So, a serious disciplinary infraction or a frivolous lawsuit or legal claim on
your record does not necessarily prevent you from fulfilling the merit time eligibility requirement. 59 In
December 2005, the Supreme Court of New York County held, in People v. Quiñones, a serious disciplinary
infraction does not hurt eligibility for re-sentencing under the new law.60 The Second Department Appellate
Division endorsed that decision in People v. Sanders.61 The court stated, “the reference in the 2005 DLRA to
the ‘eligibility requirements’ of Correction Law Section 803(1)(d), does not preclude a defendant from whom
a merit time allowance has been withheld pursuant to Correction Law Section 803(1)(d)(iv), from seeking
resentencing under the 2005 DLRA.”62 This means that eligibility for re-sentencing under the Drug Reforms
laws is different than under Section 803(1)(d) as a whole, and under the DLRA the only requirement that
matters for merit time eligibility is that you are not serving time for a disqualifying offense.
However, the First Department Appellate Division disagrees. In People v. Paniagua, the court held that
the defendant was ineligible for merit time because he committed two serious disciplinary infractions. The
court noted that a “‘serious disciplinary infraction’ is defined in the regulations of the Department of
Correctional Services to include [actions resulting in the] ‘receipt of disciplinary sanctions’ that entail ‘60 or
more days of SHU [Special Housing Unit] and/or keeplock time’ [or] the ‘receipt of any recommended loss of
good time as a disciplinary sanction.’”63 The defendant in People v. Paniagua argued that since he had not
committed a disqualifying offense, such as a violent felony, he had met the eligibility requirements of
“earning” a merit time allowance. He argued that this was all that was necessary to meet the merit time
requirement for re-sentencing. The court here took a stricter view, holding that the defendant must have
both earned and been granted merit time allowance in order to meet the requirement. The court stated:
Thus, the requirements set forth in § 803(1)(d)(iv), no less than those in § 803(1)(d)(i)
and (ii), constitute the “eligibility” requirements for the grant of merit time. Nothing
in the 2005 DLRA or § 803(1)(d) supports defendant’s argument that the phrase
“eligibility requirements” refers only to the requirements for earning a merit time
allowance, and not also to those for being granted one.64
In the First Department, then, the court may find you are ineligible for re-sentencing if you have
committed a “serious disciplinary infraction,” including actions resulting in spending sixty days or more in a

57. People v. Hill, 11 Misc. 3d 1053(A), 814 N.Y.S.2d 892 (Sup. Ct. Kings County 2006).
58. N.Y. Correct. Law § 803(1)(d)(iv) (McKinney 2005).
59. See People v. Quiñones, 812 N.Y.S.2d 259, 270 (N.Y. Sup. Ct. 2005) (holding that the merit time eligibility
requirement of the A-II re-sentencing law only requires that a prisoner not be serving time for any of the disqualifying
offenses listed in N.Y. Correct. Law § 803(1)(d)(ii), and not that the prisoner meet any of the other requirements for
actual granting of merit time). See also Memorandum from Al O’Connor, New York State Defenders Association, to Chief
Defenders at 4 (Oct. 5, 2005, revised Oct. 24, 2005) (on file with the JLM) (pointing out that a prisoner’s disciplinary
record may still be considered by the judge as a discretionary factor weighing against re-sentencing). But, note that New
York DOCS, prior to the decision in Quiñones, has taken the position that prisoners with serious disciplinary infractions
or found to have filed frivolous lawsuits while in prison do not meet the merit time eligibility requirement. Memorandum
from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal Justice Practitioners, at
2 (Sept. 20, 2005) (on file with the JLM).
60. People v. Quiñones, 11 Misc. 3d 582, 598, 812 N.Y.S.2d 259, 271 (Sup. Ct. 2005).
61. People v. Sanders, 36 A.D.3d 944, 829 N.Y.S.2d 187 (2d Dept. 2007).
62. People v. Sanders, 36 A.D.3d 944, 946, 829 N.Y.S.2d 187 (2d Dept. 2007).
63. People v. Paniagua, 45 A.D.3d 98, 107, 841 N.Y.S.2d 506, 513–14 (1st Dept. 2007) (citations omitted); N.Y.
Comp. Codes R. & Regs. tit 7, § 280.2(b)(3)–(4) (2006).
64. People v. Paniagua, 45 A.D.3d 98, 108, 841 N.Y.S.2d 506, 514 (1st Dept. 2007).
Special Housing Unit and/or keeplock, or if DOCS recommends that you lose your merit time.65 You will
have to make arguments based on the Second Department’s reasoning in People .v Sanders.
Additionally, you almost certainly do not have to meet New York Correction Law Section 803(1)(d)(iv)’s
work or program assignment requirement.66 This statute, effective until September 2009, states that you
may be granted merit time when you participate in a work and treatment program and successfully obtain
one of the following: your general equivalency diploma (GED), an alcohol and substance abuse treatment
certificate, a vocational trade certificate after six months of vocational programming, or 400 hours of
community service.67 In the event that you only need to be eligible for merit time, not to have earned merit
time, you do not need to participate in any of these programs to be allowed to apply for re-sentencing. The
opinion in Paniagua suggested that participation in certain programs, as stated in Section 803(1)(d), was
included under the eligibility requirements of the Drug Law Reform Act.68 In practice, though, you will likely
meet the second set of requirements for re-sentencing as long as you are not serving any time for any of the
disqualifying offenses listed in Correction Law Section 803(1)(d)(iv) (and listed above), since most courts
adhere to the position taken by the most prominent cases on the subject, Quiñones, and Sanders. However, if
you have a serious disciplinary infraction on your prison record or were found to have filed a frivolous legal
suit or claim, a judge may choose to find that you do not meet the merit time eligibility requirement.69
In sum, you may apply for re-sentencing if, (1) you are serving a sentence for an A-I felony drug offense
and were sentenced under the old law, or (2) you are serving a sentence for an A-II felony drug offense, were
sentenced under the old law, and meet the time to parole eligibility and merit time eligibility requirements
described above. Parts C and D describe what happens if you apply for re-sentencing, and how to apply.
C. Re-Sentencing: What Happens If You Apply?
1. The Re-Sentencing Process
The re-sentencing process is the same for A-I and A-II felony drug offenses. When you apply, you should
send your application to the court in which you were convicted, but you must also send a copy of your
application to the District Attorney’s office that prosecuted your conviction.70 The application will be decided
by the judge that gave you your original sentence if that judge still works in the same court.71 Otherwise, the
application will be decided by a randomly chosen judge in that court.72 Or, if the original judge has moved to
another court that has jurisdiction over your case, and if you and the District Attorney both agree, your
application may be sent to the original judge at the new court.73
2. How the Judge Will Make a Decision
If the judge finds that you meet the requirements for applying for re-sentencing, described in Part B
above, the judge may consider any “facts or circumstances” relating to whether you should be re-sentenced,
as well as your prison record.74 It is up to you to give the facts and circumstances that you want the judge to
consider.75 Similarly, the District Attorney may submit the facts and circumstances the prosecutor wants the

65. N.Y. Comp. Codes R. & Regs. tit. 7, § 280.2(b) (2006).

66. See People v. Quiñones, 812 N.Y.S.2d 259, 266–71 (N.Y. Sup. Ct. 2005); see also New York State Senate
Introducer’s Memorandum in Support of Bill No. S. 5880 (June 20, 2005) (on file with the JLM); Memorandum from
Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal Justice Practitioners, at 2
(Sept. 20, 2005) (on file with the JLM).
67. N.Y. Correct. Law § 803(1)(d)(iv) (McKinney 2005).
68. People v. Paniagua, 45 A.D.3d 98, 108, 841 N.Y.S.2d 506, 514 (1st Dept. 2007).
69. According to New York DOCS, this interpretation of the current state of the law is correct. See Memorandum
from Anthony J. Annucci, Deputy Commissioner and Counsel for New York DOCS, to Criminal Justice Practitioners at 2
(Sept. 20, 2005) (on file with the JLM). See also N.Y. Correct. Law § 803(1)(a) (McKinney 2005) (“Such allowances may
be granted for good behavior and efficient and willing performance of duties assigned or progress and achievement in an
assigned treatment program, and may be withheld, forfeited or canceled in whole or in part for bad behavior, violation of
institutional rules or failure to perform properly in the duties or program assigned.”).
70. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
71. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
72. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
73. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
74. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
75. In other words, it is up to you to convince the judge that you do deserve to be re-sentenced. 2004 N.Y. Sess.
Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws Ch. 643 (S. 5880).
judge to consider.76 The judge may also consider your record of confinement.77 The judge may only consider
information that relates to whether you should be re-sentenced, and may not consider information about
whether you were correctly charged and convicted in the first place.78
If you are eligible to apply for re-sentencing, you have a right to have an attorney represent you on your
application.79 If you cannot pay an attorney, you have a right to have the court appoint one.80 Part D of this
Chapter explains how to get an attorney appointed. You also have a right to a hearing on your re-sentencing
application and to be present at that hearing.81 The court may also order a hearing to determine whether
you are actually eligible to apply for re-sentencing, or to decide any relevant factual issues in dispute.82
After reviewing the information you and the District Attorney submit, and after necessary hearings, the
judge will decide. “[U]nless substantial justice dictates that [your] application should be denied,” the judge
must choose an appropriate new sentence from the current sentencing ranges, and tell you that sentence.83
You will then choose to accept the suggested new sentence, withdraw your application, or appeal the
suggested new sentence.84 If you withdraw, you will keep serving your original sentence. If you do not take
any action, the judge will vacate your original sentence and impose the new sentence.85 The time you have
served toward your old sentence will be counted towards your new sentence.86 Whether the judge grants or
denies your application, he or she must write an opinion explaining the findings of fact and legal reasoning.87
The success or failure of achieving re-sentencing has turned on whether “substantial justice dictates the
application should be denied.”88 While the judge is not supposed to have discretion beyond applying the law
in determining whether a defendant is eligible for re-sentencing—i.e. meeting the time to parole
requirements and the merit time eligibility requirements—the judge does have some discretion in
determining what substantial justice dictates. For example, courts have previously denied re-sentencing of
cases because of substantial justice. Situations that may lead to a denial of re-sentencing due to substantial
justice have included where the defendant is a high-level drug offender,89 the drug trafficking operation
defendant participated in was very extensive,90 the amount of drugs the defendant was convicted for was
high,91 the defendant had disciplinary infractions while in prison and a long prior criminal history,92 and the
defendant showed no remorse for his crime and continued to deny guilt after pleading guilty.93

76. In other words, the District Attorney will probably try to convince the judge that you do not deserve to be re-
sentenced. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
77. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
78. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
79. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
80. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
81. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
82. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
83. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
84. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
85. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
86. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
87. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
88. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 § 1 (S. 5880).
89. People v. Morales, 46 A.D.3d 1395, 1396, 848 N.Y.S.2d 486, 48 (4th Dept. 2007) (denying application for re-
sentencing under the 2004 Drug Law Reform Act because defendant’s conviction involved a large amount of cocaine, so
defendant was not a “low level offender”); People v. Montoya, 45 A.D.3d 496, 496, 847 N.Y.S.2d 41, 41 (1st Dept. 2007)
(holding that “substantial justice” required denial of re-sentencing to defendant who personally dealt with large amounts
of drugs and money in an international narcotics distribution ring).
90. People v. Arana, 45 A.D.3d 311, 311, 844 N.Y.S.2d 696, 696–97 (1st Dept. 2007) (denying defendant’s
application for re-sentencing because of “substantial justice,” since defendant had been a participant in “a very extensive
drug trafficking enterprise”).
91. People v. Montoya, 45 A.D.3d 496, 496, 847 N.Y.S.2d 41, 41, (1st Dept. 2007) (denying re-sentencing for
defendant who was “a high-level participant in an international narcotics distribution ring” and was arrested in
possession of 50 kilograms of cocaine).
92 . People v. Rivers, 43 A.D.3d 1247, 1248, 842 N.Y.S.2d 611, 612 (3d Dept. 2007) (denying defendant’s
application for re-sentencing based on defendant’s number of disciplinary violations while incarcerated and lengthy
criminal record predating the conviction, even though defendant had achieved significant educational and vocational
gains while incarcerated); People v. Vega 40 A.D.3d 1020, 1020, 836 N.Y.S.2d 685, 686 (2d Dept. 2007) (denying
defendant’s application for re-sentencing after considering that defendant had a criminal history including convictions
for other controlled substances offenses and second-degree murder and that defendant’s prison disciplinary record was
not good); People v. Sanders, 36 A.D.3d 944, 946–47, 829 N.Y.S.2d 187, 189 (2d Dept. 2007) (denying defendant’s
 3. Appealing a Decision on Your Application
You have a right to appeal the rejection of your application.94 You may also appeal an imposed new
sentence on two grounds: (1) that “the new sentence is harsh or excessive;” or (2) that it is “unauthorized”
under the law.95 Finally, you may also appeal a proposed, but not yet imposed, new sentence on the ground
that it is harsh or excessive.96 If you do so, you can still decide to withdraw your application after the appeal
is decided, and keep serving your original sentence.97
4. Sentences: What Sentence Could You Receive?
While felony drug sentences under the old law are indeterminate, the new sentencing laws require
determinate sentences for drug felonies.98 If you are re-sentenced, you will get a determinate sentence.
A determinate sentence is a sentence for a fixed amount of time (for example, “eight years”). Under
current law, effective until September 2009, you can receive good time or merit time reductions of a
determinate sentence imposed for a drug offense.99 DOCS calculates and grants these reductions. However,
there is no parole from a determinate sentence, so the Parole Board has no say in when you are released.
An indeterminate sentence consists of two terms: a minimum term and a maximum term (for example,
“five to ten years”). The minimum term must be at least one year, and it is the amount of time you must
serve before you can become eligible for parole. The maximum term must be at least three years, although it
can be as much as life imprisonment. The maximum term is the amount of time you will have to spend in
prison if there are no reductions made to your sentence and you are not paroled. Many prisoners serving
indeterminate sentences for non-violent offenses can receive reductions for good time or merit time as well
as parole.100 This means that both DOCS and the Parole Board may have a say in when you will be released.
New determinate sentencing ranges for A-I and A-II felony drug offenses, effective January 13, 2005, are

If Your Class A-II Drug Offense Is Your: Determinate Sentence Range101

First Felony Offense Between 3 and 10 years
Second Felony Offense
(Prior Felony = Non-Violent) Between 6 and 14 years
Second Felony Offense
(Prior Felony = Violent) Between 8 and 17 years

If Your Class A-I Drug Offense Is Your: Determinate Sentence Range102

First Felony Offense Between 8 and 20 years
Second Felony Offense
(Prior Felony = Non-Violent) Between 12 and 24 years
Second Felony Offense
(Prior Felony = Violent) Between 15 and 30 years
Each of these determinate sentences includes a five-year period of post-release supervision.103

application for re-sentencing after considering that defendant received disciplinary violation for which he was confined
to a special housing unit for at least 60 days after only 11 months in prison); People v. Paniagua, 45 A.D.3d 98, 108–09,
841 N.Y.S.2d 506, 515 (1st Dept. 2007) (“[a]n inmate’s … repeated commission of serious acts of insubordination while
incarcerated[] can only be viewed adversely in considering his likelihood of re-adjusting to life outside of prison”).
93. People v. Sanders, 36 A.D.3d 944, 946–47, 829 N.Y.S.2d 187, 189 (2d Dept. 2007) (noting that defendant
showed no remorse and continued to deny his guilt of the crime of which he was convicted, even though he had plead
guilty, at hearing on defendant’s application for re-sentencing); People v. Rivers, 43 A.D.3d 1247, 1248, 842 N.Y.S.2d
611, 612 (3d Dept. 2007) (denying defendant’s application for re-sentencing and noting that defendant did not freely
admit guilt for either his criminal acts or his disciplinary violations).
94. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
95. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
96. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
97. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
98. N.Y. Penal Law § 70.71 (McKinney 2005).
99. N.Y. Correct. Law § 803(1) (McKinney 2008).
100. See N.Y. Correct. Law § 803(5) (McKinney 2008).
101. N.Y. Penal Law § 70.71 (McKinney 2005).
102. N.Y. Penal Law § 70.71 (McKinney 2005).
103. N.Y. Penal Law § 70.45 (McKinney 2005).
 If you are re-sentenced, you will get a specific term of imprisonment, not a range. The term will fall
within the appropriate determinate sentence range, depending on your felony record, shown in the tables
above. Any time you have already served from your original sentence will be subtracted from the time you
will have to serve under your new sentence. After release, you will be subject to five years of supervision.
When deciding whether to apply for re-sentencing, and whether to accept a suggested new sentence, you
will want to compare your earliest likely release date under your old sentence with your earliest likely
release date under your new sentence. Keep in mind that, depending on your prison record, you may or may
not receive reduction for good time and/or merit time. Also, consider whether the Parole Board is likely to
grant you parole under your indeterminate sentence. It is possible that your earliest re-sentenced
determinate date could be longer than your earliest possible release date under your current sentence. For
example, in People v. Newton, the defendant was originally sentenced six years to life, and the proposed re-
sentencing was 11 years, which on appeal was found to be neither harsh nor excessive. 104 Remember,
though, that even if the minimum term of your indeterminate sentence is shorter than the determinate
sentence you receive at re-sentencing, you may be better off with the determinate sentence if you think the
Parole Board is unlikely to grant you parole at an early date.105
D. How to Apply for Re-Sentencing
You have the right to an attorney when applying for re-sentencing. If you can’t afford one, you can have
one appointed.106 You can file an application to have an attorney appointed together with a notice of motion
and basic application for re-sentencing. Once you are appointed an attorney, your attorney can prepare a
more detailed and complete application for you. You can find a sample application for an appointed attorney,
with a sample notice of motion and basic application for re-sentencing in Appendix A of this Chapter.107
If you are applying for re-sentencing for an A-II felony drug offense and your earliest possible release
date is not much more than three years away, it is important that your application for an appointed attorney
include an application for re-sentencing. This is because you need to make sure your application is filed in
time to meet the time to parole eligibility requirement, explained above in Part B(2)(a) of this Chapter. You
should try to exercise your right to have an attorney represent you in your re-sentencing application, and
should only file a detailed application pro se if you have trouble getting an attorney.
1. Filing a Pro Se Application
If you are applying for re-sentencing for an A-II felony drug offense under the alternate, one year to
parole eligibility reading described above in Part B(2)(c) of this Chapter, you may have to prepare your own
application, because you may have trouble getting an attorney appointed.108 You may also have trouble
getting an attorney if you were also sentenced for a disqualifying offense at the time you were sentenced for
the felony drug offense, even if you have clearly finished serving the sentence for the disqualifying offense,
as described above in Part B(3)(a) of this Chapter.109
If you file your application pro se, you should prepare an application that explains to the judge why you
deserve a new sentence. You might want to include information about: your role in the offense, the nature of
the offense, the judge’s position at the original sentencing, your (lack of) prior criminal history, your health,
your prison disciplinary record, favorable evaluations by correctional personnel, participation in educational,
drug-treatment, or work programs while in prison, other attempts to rehabilitate yourself, and your plans
for re-entry into your community, such as where you plan to live and how you plan to look for work when you

104. People v. Newton, 48 A.D.3d 115, 120, 847 N.Y.S.2d 645, 649 (2d Dept. 2007).
105. See Memorandum from Al O’Connor, New York State Defenders Association, to Chief Defenders at 7 (Oct. 5,
2005, revised Oct. 24, 2005) (on file with the JLM).
106. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
107. The sample document in Appendix A is for a prisoner serving time for an A-II felony drug offense.
108. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this
Chapter (Nov. 17, 2005) (on file with the JLM).
109. See e-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this
Chapter (Nov. 17, 2005) (on file with the JLM).
are released.110 You should provide as much documentation as possible—for example, you should include any
certificates you received for program participation while in prison.111
You can try to request certain documents, including your medical file, your disciplinary file, your visit
log, your education file, your guidance file, and your legal file from the prison records office. A sample
document request letter is attached to this Chapter as Appendix B. But, some prisons refuse to cooperate
with document requests from prisoners.112 A lawyer might find it easier than you would to request your
records—this is one reason you should try to get a lawyer instead of filing your application pro se.
If you file your application pro se, you should submit a notice of motion and basic petition for re-
sentencing (a sample is attached to this Chapter as Appendix C) along with a signed, written statement, or
affirmation, in support of your application and any supporting documents you have collected. Your
affirmation in support of your application should include: (1) a description of your original sentence,
including the offense of which you were convicted, the term of the original sentence, the date it was imposed,
how much of it you have served, and the judge who imposed it; (2) an explanation of why you are eligible for
re-sentencing under the requirements of Chapter 738, Section 23 of the Laws of 2004 (for an A-I felony) or
Chapter 643 of the Laws of 2005 (for an A-II felony), including, if relevant, an explanation of the alternate,
one-year-to-parole reading of the law; (3) what new sentence you think the judge should give you, according
to the new sentencing law (for example, the minimum sentence allowed under the new law); (4) the reasons
you deserve the suggested new sentence, including, for example, an explanation of your prison disciplinary
record, your participation in any work or drug-rehabilitation programs while in prison, any serious health
problems you may have, and your plans to find housing and employment once you leave prison.113
Remember: when you file your application for re-sentencing, you must send it to the District Attorney’s
office that prosecuted your conviction as well as to the court.114 You must do this regardless of whether you
are filing only a basic application or one combined with an application for an appointed attorney.
E. Conclusion
In conclusion, changes to New York State drug laws, which went into effect in 2005, allow some
prisoners serving time for drug offenses to apply for re-sentencing under the new, better sentencing rules.
Prisoners serving time for A-I felony drug offenses are automatically eligible for re-sentencing, 115 while
prisoners serving time for A-II felony drug offenses must meet additional requirements.116 If you are serving
time for an A-I or an A-II felony drug offense that occurred prior to January 13, 2005, you should consider
whether you are eligible for re-sentencing, and whether re-sentencing is likely to give you an earlier release
date. If you are eligible and think you might benefit from re-sentencing, you should try to get an attorney
appointed to prepare your application, or, if you have trouble getting an attorney, file an application pro se.

110. Center for Community Alternatives, Rockefeller Drug Law Reform: Mitigation and Re-entry Planning Tips
(2005) (on file with the JLM).
111. Center for Community Alternatives, Rockefeller Drug Law Reform: Mitigation and Re-entry Planning Tips
(2005) (on file with the JLM).
112. E-mail from William Gibney, New York Legal Aid Society, to Sydney Bird, contributing author of this
Chapter (Nov. 17, 2005) (on file with the JLM).
113. Sample Affirmation provided by William Gibney, New York Legal Aid Society (2005) (on file with the JLM).
114. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802); 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
115. 2004 N.Y. Sess. Laws 1474 (A. 11895, S. 7802).
116. 2005 N.Y. Sess. Laws ch. 643 (S. 5880).
 APPENDIX A: SAMPLE APPLICATION FOR RE-SENTENCING117

A-1. SAMPLE PETITION FOR RE-SENTENCE

SUPREME COURT OF THE STATE OF NEW YORK118
__________ COUNTY CRIMINAL TERM

—————————————————————————x
THE PEOPLE OF THE STATE OF NEW YORK, :
Plaintiffs, :
: PETITION FOR
- against - : RE-SENTENCE
:
____________________________, : __________ County
Defendant. :
—————————————————————————x Ind. No. __________

PLEASE TAKE NOTICE that, upon the annexed affirmation of ______________________, and all the
prior proceedings, the undersigned will move this Court, at 100 Centre Street, New York, New York, 10013,
on ___________, at the opening of Court on that day or as soon thereafter as counsel can be heard, for an
order vacating the sentence imposed by the Court on ____________(_______________, J.); re-sentencing
defendant pursuant to the Rockefeller Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y.,
Ch. 643 (S. 5880)]; and granting such other relief as the Court may deem proper.
Please also accept this as an application for appointment of counsel. I am indigent, currently
incarcerated, and I cannot afford counsel to represent me in this application for re-sentence.

Dated: ___________, New York

___________ , 200__
Yours,
____________________________________________

TO: Clerk of the Court

New York County Supreme Court
100 Centre Street
New York, New York 10013

Hon. Robert M. Morgenthau

New York County District Attorney
1 Hogan Place
New York, New York 10013
or
Hon. Bridget Brennan
Special Narcotics Prosecutor
80 Centre Street
New York, New York 10013

117. Adapted from New York Legal Aid Society sample document. This sample is tailored to a prisoner serving
time for an A-II felony drug offense.
118. Your Notice of Appeal is addressed to the court you were tried in, not the Appeals Court. This sample
presumes you were tried in a Supreme Court. If you were tried in a County Court, be sure to replace this court for the
Supreme Court at the top of the form. Make sure to address the form to the correct individuals in the “To:” section.
 A-2. SAMPLE AFFIRMATION
SUPREME COURT OF THE STATE OF NEW YORK
__________ COUNTY CRIMINAL TERM

—————————————————————————x
THE PEOPLE OF THE STATE OF NEW YORK, :
Plaintiffs, :
: AFFIRMATION
- against - :
: __________ County
:
Defendant. : Ind. No. __________
—————————————————————————x

STATE OF NEW YORK )

) ss:
COUNTY OF NEW YORK )

Defendant ____________________, hereby affirms, under penalty of perjury, that the following statements
are true.
1. I [pleaded guilty to] [was convicted after a trial of] second-degree criminal [possession] [sale] of a
controlled substance (P.L. ‘ [possession: 220.18] [sale: 220.41]) and [list other counts, if any]. On _________,
the court sentenced defendant to imprisonment for an indeterminate term of _______ years toon the
second-degree [sale] [possession] count to run [concurrently with] [consecutively to] [note other sentences, if
any].
2. I am presently incarcerated on an A-II drug conviction.
3. Defendant is more than 12 months from being an “eligible inmate” as that term is defined in
Subdivision 2 of Section 851 of the Correction Law.
4. Defendant meets the statutory eligibility requirements for merit time under Correction Law Section
803(1)(d).
5. For the above-stated reasons, defendant believes that [he] [she] is eligible to be re-sentenced under
the Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y., Ch. 643 (S. 5880)] and defendant,
thus, moves for such relief.
6. Defendant has yet to receive [his] [her] program and disciplinary records from the Department of
Corrections. Defendant is filing this motion now to protect [his] [her] rights under the DLRA. Nevertheless,
defendant requests the opportunity to supplement this motion and to provide the Court with additional
pertinent information when that information becomes available.

WHEREFORE, Defendant respectfully requests that the Court grant [his] [her] petition for re-sentence.
Defendant further requests that the Court grant [him] [her] permission to supplement this application after
additional information is obtained.

Dated: _________________, New York

_________________, 2005

_______________________________________
[Name of Defendant]
 A-3. SAMPLE AFFIDAVIT OF SERVICE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF _____________________________________

—————————————————————————x
THE PEOPLE OF THE STATE OF NEW YORK, :
Plaintiffs, :
: AFFIDAVIT
- against - : OF SERVICE
:
: __________ County
Defendant. :
—————————————————————————x Ind. No. __________

STATE OF NEW YORK )

) ss:
COUNTY OF NEW YORK )

__________________ being duly sworn, deposes and says that he is over the age of eighteen years and is
not a party in this proceeding; that on the _____________ day of ________ 20___, deponent served the within
Petition for Re-sentence upon ___________ in this action, at _______________, the address designated by
______________ for that purpose by depositing a true copy of the same by mail, enclosed in a post-paid
properly addressed wrapper, in __________ a post office ___________official depository under the exclusive
care and custody of the United States Post Office Department within the State of New York.

____________________________________
Signature

Subscribed and sworn to before

me this __________ day of ____ 20___

______________________________
Notary Public
 APPENDIX B: SAMPLE DOCUMENT REQUEST LETTER119

_____________ Correctional Facility

Attn: Inmate Records
Box ___
______________, NY _____

[Date]

Dear Sir/Madam,

I am writing to request a copy of my entire inmate record. My name is ________________, my date of

birth is __/__/__, and my NYSID No. is _________. Please include the following records:
(1) Complete copy of my legal file.
(2) Complete copy of my guidance file.
(3) Complete copy of my education file.
(4) Complete copy of my package room file.
(5) Complete copy of my medical file.
(6) Complete copy of my disciplinary and disposition file.
(7) Explanation of codes used in the inmate progress note sheets.
(8) Visit log.
Thank you for your attention to this matter.

Sincerely,

_______________________________
[Your Name]

119. Adapted from New York Legal Aid Society sample document.
 APPENDIX C: SAMPLE PRO SE APPLICATION120

C-1. SAMPLE PETITION FOR RE-SENTENCE

SUPREME COURT OF THE STATE OF NEW YORK

__________ COUNTY CRIMINAL TERM

—————————————————————————x
THE PEOPLE OF THE STATE OF NEW YORK, :
Plaintiffs, :
: PETITION FOR
- against - : RE-SENTENCE
:
: __________ County
:
Defendant. : Ind. No. __________
———————————————————————x

PLEASE TAKE NOTICE that, upon the annexed affirmation of ______________________, and all the
prior proceedings, the undersigned will move this Court, at 100 Centre Street, New York, New York, 10013,
on ___________, at the opening of Court on that day or as soon thereafter as counsel can be heard, for an
order vacating the sentence imposed by the Court on ( , J.); re-sentencing defendant pursuant to the
Rockefeller Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y., Ch. 643 (S. 5880)]; and
granting such other relief as the Court may deem proper.

Dated: ___________, New York

_______________, 2005
Yours,
___________________________________

TO: Clerk of the Court

New York County Supreme Court
100 Centre Street
New York, New York 10013

Hon. Robert M. Morgenthau

New York County District Attorney
1 Hogan Place
New York, New York 10013
or
Hon. Bridget Brennan
Special Narcotics Prosecutor
80 Centre Street
New York, New York 10013

120. Adapted from New York Legal Aid Society sample document. This sample is tailored to a prisoner serving
time for an A-II felony drug offense.
 C-2. SAMPLE AFFIRMATION
SUPREME COURT OF THE STATE OF NEW YORK
__________ COUNTY CRIMINAL TERM

—————————————————————————x
THE PEOPLE OF THE STATE OF NEW YORK, :
Plaintiffs, :
: AFFIRMATION
- against - :
: __________ County
:
Defendant. : Ind. No. __________
—————————————————————————x

STATE OF NEW YORK )

) ss:
COUNTY OF NEW YORK )

Defendant ____________________, hereby affirms, under penalty of perjury, that the following statements
are true.
1. I [pleaded guilty to] [was convicted after a trial of] second-degree criminal [possession] [sale] of a
controlled substance (P.L. [possession: 220.18] [sale: 220.41]) and [list other counts, if any]. On __________,
the court sentenced defendant to imprisonment for an indeterminate term of years on the second-degree
[sale] [possession] count to run [concurrently with] [consecutively to] [note other sentences, if any].
2. I am presently incarcerated on an A-II drug conviction.
3. Defendant is more than 12 months from being an “eligible inmate” as that term is defined in
Subdivision 2 of Section 851 of the Correction Law.
5. Defendant meets the statutory eligibility requirements for merit time under Correction Law Section
803(1)(d).
6. For the above-stated reasons, defendant believes that [he] [she] is eligible to be re-sentenced under
the Drug Law Reform Act of 2005 (“DLRA”) [see 2005 Sess. Law of N.Y., Ch. 643 (S. 5880)] and defendant,
thus, moves for such relief.
7. Defendant has yet to receive [his] [her] program and disciplinary records from the Department of
Corrections. Defendant is filing this motion now to protect [his] [her] rights under the DLRA. Nevertheless,
defendant requests the opportunity to supplement this motion and to provide the Court with additional
pertinent information when that information becomes available.
WHEREFORE, Defendant respectfully requests that the Court grant [his] [her] petition for re-sentence.
Defendant further requests that the Court grant [him] [her] permission to supplement this application after
additional information is obtained.

Dated: _________________, New York

_________________, 2005

___________________________________
[Name of Defendant]
 C-3. SAMPLE AFFIDAVIT OF SERVICE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF _____________________________________

—————————————————————————x
THE PEOPLE OF THE STATE OF NEW YORK, :
Plaintiffs, :
: AFFIDAVIT
- against - : OF SERVICE
:
: __________ County
Defendant. :
—————————————————————————x Ind. No. __________

STATE OF NEW YORK )

) ss:
COUNTY OF NEW YORK )

_______________ being duly sworn, deposes and says that he is over the age of eighteen years and is not a
party in this proceeding; that on the _____________ day of ________ 20___, deponent served the within
Petition for Re-sentence upon ___________ in this action, at _______________, the address designated by
______________ for that purpose by depositing a true copy of the same by mail, enclosed in a post-paid
properly addressed wrapper, in __________ a post office ___________official depository under the exclusive
care and custody of the United States Post Office Department within the State of New York.

__________________________________________
Signature

Subscribed and sworn to before

me this __________ day of ____ 20__

______________________________
Notary Public
A Jailhouse Lawyer’s
Manual

Chapter 11:
Using Post-Conviction DNA
Testing to Attack Your
Conviction or Sentence

Columbia Human Rights Law Review

8th Edition 2009
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 171

LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia Human Rights Law
Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended
as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any
information contained herein is intended to or shall constitute a contract between the JLM and any reader,
and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of
the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at
Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful,
because the law changes frequently, we cannot guarantee that all information is current.
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 172

CHAPTER 11

USING POST-CONVICTION DNA TESTING TO

ATTACK YOUR CONVICTION OR SENTENCE*
A. Introduction
As of March 1, 2008, 213 individuals have been exonerated in the United States through post-conviction
DNA testing.1 This is because DNA is uniquely capable of proving innocence in crimes where biological
material was left by the perpetrator.2 Many people in prison were convicted before DNA testing was possible,
or before it was considered reliable, and so they were not able to present evidence at their trial that might
have helped prove their innocence. There are many organizations throughout the country that help prisoners
recover DNA evidence and secure DNA testing. Because of the complexity of applying for testing, we
strongly recommend that you contact one of these organizations rather than proceeding pro se (on your own).
If you do decide to litigate on your own, this Chapter can help you understand some legal issues involved
in the process. This Chapter explains how you may be able to use DNA testing of physical evidence to
challenge your conviction or sentence and how DNA testing is currently being used within the criminal
justice system. Part B of this Chapter discusses some ways you can petition to reopen your case based on
DNA testing. Part C explains how to seek assistance from a legal organization and Appendix A lists some
legal organizations that might be able to help you obtain DNA testing.
B. Common Procedures Used to Obtain DNA Testing
In the past, methods of testing evidence found at crime scenes were crude, and identifications or
exonerations based on crime scene evidence were often inaccurate. DNA testing is much more accurate than
older methods. If you believe there might have been biological evidence (like blood, semen, hair, or sweat)
collected at the scene of your crime of conviction, and if you think DNA tests of the evidence would exonerate
you, you can make several motions to try to get this evidence tested and the results admitted in court.
Finding evidence is one of the biggest obstacles to getting DNA testing. A big part of finding evidence is
understanding the difference between biological evidence that was introduced at your trial (for instance, a
bloody shirt) and evidence that was collected during the investigation, but not introduced at your trial (for
instance, a rape kit—the evidence collected from a rape victim when she was examined by a doctor). You do
not need to actually locate the evidence you want tested. You only need to prove that it was either collected
during the course of the investigation or introduced into evidence at your trial (or both). When filing a
motion, you must be specific about what evidence you want to test, why that evidence is important, and the
last known location of the evidence. It is very important to identify the last known location of the evidence.
C. Motion to Secure DNA Testing
Before filing a motion for a new trial based on newly discovered evidence (see Part B(2) for more
information), you need to file a motion to secure DNA testing. How you will file your motion will depend on
whether your state has a post-conviction DNA testing statute. States that have a post-conviction DNA
testing statute are Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico,
New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee,
Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.3 If you are a state prisoner in
one of these states, read Subsection (a) below on how to make your motion.

* This Chapter was revised by Susan Maples, based on previous versions by Kristin Jamberdino, Oluwashola Ajewole,
and Sara Manaugh.
1. The Innocence Project, available at http://www.innocenceproject.orgContent/351.php# (last visited Mar. 1,
2008).
2. DNA (which stands for “deoxyribonucleic acid”) is a substance contained in every human cell. Each strand of
DNA is encoded with information about the specific physical characteristics of the individual whom it comes from.
3. The Innocence Project, http://www.innocenceproject.org/news/LawView2.php (last visited March 9, 2008).
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 173

As of March 2008, states that do NOT have a post-conviction DNA statute are Alabama, Alaska,
Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota and Wyoming.4 If you are a prisoner
in a state without a post-conviction statute, then you will need to file a Section 1983 action. See Subsection
(b) below and Chapter 16 of the JLM to learn about this. If you are a federal prisoner, you should file your
motion under the recently passed Justice for All Act. Subsection (c) below explains how this statute works.
(a) State Prisoners in States with a Post-Conviction DNA Testing Statute
As of March 2008, about eighty percent of U.S. states had enacted laws allowing post-conviction DNA
testing. The U.S. Congress has also enacted legislation, and laws are pending in several additional states.
State statutes vary greatly as to the conditions under which you may request testing. For example, some
only allow those convicted of certain felonies to petition.5 Some impose strict due diligence requirements6 or
only grant requests if identity was an issue at trial. 7 Others provide strict time limits within which a
petition may be filed.8 You should carefully read the requirements and conditions for petitioning for post-
conviction DNA testing in your state. Footnote sixteen lists the state statutes to help you do this research.
New York was the first state to allow for post-conviction DNA testing, and its provisions are some of the
most flexible.9 According to the provisions of that law, which are incorporated into Article 440 of the New
York Criminal Procedure Law,10 there is no due diligence requirement,11 identity does not need to have been
an issue at your trial, and there is no time limit for filing a petition. In New York, the court will order that a
test be done if it determines that you have met the following requirements:
(1) Your Article 440 motion requests that a forensic test be performed on specific evidence, which you
have clearly identified;
(2) The evidence you are requesting a DNA test on was obtained in connection with your trial (the trial
which resulted in your conviction); and
(3) There is a “reasonable probability” that if the results of a DNA test had been admitted at the trial,
the verdict would have been more favorable to you.12

4. The Innocence Project, http://www.innocenceproject.org/Content/304.php (last visited March 9, 2008).

5. See, e.g., Ind. Code Ann. §§ 35-38-7-1, 35-38-7-3, 35-38-7-5 (1998 & Supp. 2003) (indicating that only those
convicted of murder or a class A, B, or C felony may petition).
6. “Due diligence” means you should believe that the evidence you want tested will show that you are innocent
and that you are pursuing the testing within the proper amount of time, usually the time determined by the statute.
7. “Identity at issue at trial” means that you or your attorney claimed that you did not commit the crime you were
on trial for. See, e.g., Ark. Code Ann. § 16-112-201 (Michie 1987 & Supp. 2007) (strict due diligence requirement); Fla.
Stat. Ann. § 925.11 (West 2001 & Supp. 2007) (due diligence requirement); 725 Ill. Comp. Stat. Ann. 5/116-3 (West 2002
& Supp. 2007) (identity must have been an issue at trial); Mich. Comp. Laws Ann. § 770.16(3)(a)(iii) (West 2006)
(identity must have been an issue at trial); Mo. Ann. Stat. § 547.035 (West 2002 & Supp. 2007) (due diligence
requirement, identity must have been an issue at trial); Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon 2006 &
Supp. 2007) (identity must have been an issue at trial).
8. See, e.g., Idaho Code Ann. §§ 19-2719, 19-4902 (2004) (statute of limitations of 42 days from date of judgment
for capital cases, one year from date of judgment for other cases); Md. Code Ann., Crim. Proc. § 8-201 (2007) (only those
incarcerated on or after October 1, 2001 may petition).
9. The text of that provision reads as follows:
Where the defendant’s motion requests the performance of a forensic DNA test on specified evidence, and upon
the court’s determination that any evidence containing deoxyribonucleic acid (“DNA”) was secured in connection
with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such
evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had
been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would
have been more favorable to the defendant.
N.Y. Crim. Proc. Law § 440.30(1-a(a)) (McKinney 2005).
10. For more information on Article 440, see JLM Chapter 20, “Using Article 440 of the New York Criminal
Procedure Law to Attack Your Unfair Conviction or Illegal Sentence.”
11. But see People v. Kellar, 218 A.D.2d 406, 410, 640 N.Y.S.2d 908, 910 (3d Dept. 1996) (finding that the
legislature did not mean to eliminate the due diligence requirement for DNA testing: “We do not read CPL 440.30 (1-a)
as granting a second opportunity to those who have failed to take advantage of available DNA testing prior to trial”);
People v. Sterling, 6 Misc. 3d 712, 719, 787 N.Y.S.2d 846, 851 (Sup. Ct. Monroe County 2004) (noting “CPL 440.10 (1) (g),
in fact, does contain the additional requirement that a motion based upon the ground of newly discovered evidence must
be made with due diligence after its discovery.”).
12. N.Y. Crim. Proc. Law § 440.30 (1-a(a)) (McKinney 2005).
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 174

The “reasonable probability” requirement is probably the most important. The court will not order a
DNA test if it believes there is no “reasonable probability” that the verdict would have been different, even if
you are right about whatever you are trying to prove with the DNA test.13 This requirement does not mean
that the court must believe that the evidence will prove that you are completely innocent, but it does impose
a significant burden on you. A court can legally deny your request for testing if it believes that your
conviction was justifiable, regardless of what a DNA test might show.14
The New York law is unusual in that it allows you to request DNA testing as part of your Article 440
motion to vacate judgment (request a new trial).15 Not all states allow you to combine the request for testing
and motion for a new trial in the same motion, and you may find that the law in your state is more difficult
to use. For instance, some states have different deadlines, called “statutes of limitations,” for filing a motion
for a new trial and for requesting post-conviction DNA testing. Your opportunity to request a new trial may
have passed the deadline even though your opportunity to request DNA testing is still technically available.
Furthermore, some states may have stricter requirements for granting a request for testing than for
granting a motion for a new trial (or vice versa).
Because there is such variation among state statutes, you must look carefully at your state’s post-
conviction DNA testing statute. When deciding whether to request post-conviction testing, consult both the
statute governing motions for new trial and the case law, if any, governing post-conviction DNA testing.16
When filing your motion, it is important that you know which pieces of evidence you want tested, show
you understand your state’s post-conviction DNA testing statute, and explain why you believe you meet

13. N.Y. Crim. Proc. Law § 440.30 (1-a(a)) (McKinney 2005); see also People v. Tookes, 167 Misc. 2d 601, 604–06,
639 N.Y.S.2d 913, 915–16 (Sup. Ct. N.Y. County 1996) (finding no reasonable probability where (1) there was no case for
mistaken identity; (2) there was clear evidence of rape; and (3) available biological specimens were unlikely to have
contributed to defendant’s case, given the equivocal results of blood and saliva tests, the defendant’s earlier failure to
pursue an enzyme analysis, and the indeterminate age of the recovered sperm).
14. See, e.g., People v. Smith, 245 A.D.2d 79, 79, 665 N.Y.S.2d 648, 649 (1st Dept. 1997) (finding that, in
prosecution for first degree rape and related crimes, post-conviction DNA tests probably would not have resulted in more
favorable verdict for defendant where (1) fact that defendant was not source of semen was consistent with victim’s
testimony that she had intercourse with her boyfriend shortly before rape and that she did not know whether defendant
ejaculated; (2) evidence of guilt was overwhelming; and (3) there was no claim of mistaken identity); People v. De
Oliveira, 223 A.D.2d 766, 767–68, 636 N.Y.S.2d 441, 443 (3d Dept. 1996) (finding defendant not entitled to DNA testing
because it was improbable that results of DNA testing would have effect on his second degree murder conviction where it
was undisputed that victim was sexually active about the time of her murder, there was no evidence that the killing was
part of a sexual encounter, and there was no critical testimony that could be seriously impeached by test results).
15. For more information on Article 440, see JLM Chapter 20, “Using Article 440 of the New York Criminal
Procedure Law to Attack Your Unfair Conviction or Illegal Sentence.”
16. The following lists all the state laws governing post-conviction DNA testing, in alphabetical order of the states:
Arizona: Ariz. Rev. Stat. Ann. § 13-4240 (2001); Arkansas: Ark. Code Ann. § 16-112-201 to -208 (2006); California: Cal.
Penal Code § 1405 (West Supp. 2006); Colorado: Colo. Rev. Stat. Ann. §§ 18-1-411 to -416 (West 2004); Connecticut:
Conn. Gen. Stat. Ann. § 54-102kk (West Supp. 2007); Delaware: Del. Code Ann. tit. 11, § 4504 (2001); District of
Columbia: D.C. Code Ann. § 22-4133 (LexisNexis Supp. 2007); Florida: Fla. Stat. Ann. § 925.11 (West Supp. 2007); Fla.
R. Crim. P. 3.853; Georgia: Ga. Code Ann. § 5-5-41 (Supp. 2007); Hawaii: Haw. Rev. Stat. Ann. § 844D-121 to -133
(LexisNexis Supp. 2007); Idaho: Idaho Code Ann. § 19-4902 (2004); Illinois: 725 Ill. Comp. Stat. Ann. 5/116-3 (West 2002
& Supp. 2007); Indiana: Ind. Code Ann. §§ 35-38-7-1 to -19 (LexisNexis Supp. 2006); Iowa: Iowa Code Ann. § 81.10
(Supp. 2007); Kansas: Kan. Stat. Ann. § 21-2512 (Supp. 2006); Kentucky: Ky. Rev. Stat. Ann. §§ 422.285, 422.287
(LexisNexis Supp. 2007); Louisiana: La. Code Crim. Proc. Ann. art. 926.1 (Supp. 2007); Maine: Me. Rev. Stat. Ann. tit.
15, §§ 2136–2138 (West Supp. 2006); Maryland: Md. Code Ann., Crim. Proc. § 8-201 (LexisNexis 2001 & Supp. 2007);
Michigan: Mich. Comp. Laws Ann. § 770.16 (West 2006); Minnesota: Minn. Stat. Ann. §§ 590.01–.06 (West 2000 & Supp.
2007); Missouri: Mo. Ann. Stat. § 547.035 (West 2002); Montana: Mont. Code Ann. § 46-21-110 (2007); Nebraska: Neb.
Rev. Stat. §§ 29-2101, 29-4126 (1995 & Supp. 2005); Nevada: Nev. Rev. Stat. Ann. §§ 176.0917–.0919 (LexisNexis Supp.
2006); New Hampshire: N.H. Rev. Stat. Ann. §§ 651-D:1 to -D:4 (LexisNexis Supp. 2005); New Jersey: N.J. Stat. Ann. §
2A:84A-32a (West Supp. 2007); New Mexico: N.M. Stat. § 31-1A-2 (Supp. 2007); New York: N.Y. Crim. Proc. Law §
440.30 (McKinney 2005); North Carolina: N.C. Gen. Stat. § 15A-269 (2005); North Dakota: N.D. Cent. Code § 29-32.1-15
(2006); Ohio: Ohio Rev. Code Ann. § 2901.07 (2006); Oklahoma: Okla. Stat. Ann. tit. 22, §§ 1360, 1371.1, 1371.2 (West
2003, Supp. 2006 & Supp. 2008); Oregon: Or. Rev. Stat. Tit. 14, Ch. 138, Prec. 138.690 (Supp. 2007). Pennsylvania: 42
Pa. Cons. Stat. Ann. § 9543.1 (West Supp. 2007); Rhode Island: R.I. Gen. Laws §§ 10-9.1-10 to 10-9.1-12 (Supp. 2006);
Tennessee: Tenn. Code Ann. §§ 40-30-110, -301 to -313 (2003 & Supp. 2005); Texas: Tex. Code Crim. Proc. arts. 64.01–.05
(2006); Utah: Utah Code Ann. §§ 78-35a-301 to -304 (2002 & Supp. 2007); Vermont: 13 V.S.A. §§ 5561-70 (Supp. 2007);
Virginia: Va. Code Ann. § 19.2-327.1 (Supp. 2003); Washington: Wash. Rev. Code Ann. § 10.73.170 (West Supp. 2007);
West Virginia: W. Va. Code Ann. § 15-2B-14 (LexisNexis 2004 & Supp. 2007); Wisconsin: Wis. Stat. Ann. §§ 974.02, .06,
.07 (West 1998 & Supp. 2006). For information about statutes versus cases, see Chapter 2 of the JLM.
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 175

every qualification set out by that statute. You should write out your state’s entire post-conviction DNA
testing statute in your motion, then go through each requirement of the statute separately and show how the
facts of your case meet each qualification. By being as clear as possible about the pieces of evidence you want
tested, why you are seeking post-conviction DNA testing, and how you meet all the requirements of your
state’s statute, your motion will have a better chance of succeeding.
(b) State Prisoners in a State without a Post-Conviction DNA Testing Statute: Filing
a Section 1983 Action
You should file a 42 U.S.C. § 1983 action to secure DNA testing only if you are a state prisoner in a state
without a post-conviction DNA testing statute. If you are a state prisoner in a state with no post-conviction
DNA statute, then you can ask the federal government to intervene on your behalf because you believe you
have a constitutional right to have access to evidence for post-conviction DNA testing.
The law on whether a prisoner has a federal constitutional right to this DNA testing is not settled, but
recent court decisions show that some courts may support a constitutional right to testing. In the 2002 case
of Harvey v. Horan,17 Judge Luttig wrote an influential concurring opinion in which he argued that prisoners
should have a right to this testing because such a right would not necessarily allow a prisoner to attack his
sentence (for example, if the DNA testing was not conclusive, the prisoner wouldn’t be able to attack his
sentence), and because in order to attack his sentence, a prisoner would have to file a separate petition
based on a different violation of his constitutional rights. Several courts have followed Judge Luttig’s
reasoning, and have determined that prisoners do have a constitutional right to testing.18 So while some
courts have stated that Section 1983 actions should not be used to request access to post-conviction DNA
testing, other courts support the use of Section 1983 motions.19
The five main arguments are often used to support the right to post-conviction DNA testing are (1) the
procedural due process right to exculpatory evidence under the doctrine of Brady v. Maryland;20 (2) the
substantive due process right to be free from arbitrary government restrictions on his life, liberty, or
property; (3) the right to access the courts and to petition the government; (4) the unconstitutionality of
continued confinement of an actually innocent person; and (5) the right a person has to seek executive
clemency (for example, to ask the governor of a state to release a prisoner even without a new trial).

17. Harvey v. Horan, 285 F.3d 298, 307–08 (4th Cir. 2002) (Luttig, J., concurring in denial of rehearing en banc).
18. See Wade v. Brady, 460 F.Supp. 2d 226, 249 (Mass. Dist. Ct. 2006) (finding, under Due Process Clause, a
“substantive right to post-conviction DNA testing in cases where testing could raise serious doubts about the original
verdict”); Osborne v. Dist. Attorney’s Office, 445 F. Supp. 2d 1079, 1081 & n.12 (D. Alaska 2006) (finding constitutional
right to testing based on circumstances of the case, including that testing was not available at time of original trial, the
low cost of the testing to the Government, and the test’s ability to either confirm guilt or provide evidence plaintiff might
use to bring a motion for a new trial) (citing Harvey, 285 F.3d 298,325 (4th Cir. 2002) (Luttig, J., concurring)).
19. A due process right of access under § 1983 has been explicitly recognized by several federal courts. See Savory
v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006) (finding suit to gain access to physical evidence for DNA testing cognizable
under § 1983); Grayson v. King, 460 F.3d 1328, 1342–43 (11th Cir. 2006) (explaining that while Eleventh Circuit
recognizes § 1983 claims for DNA testing, the right to such testing is not universal and does not exist when prisoner fails
to assert his actual innocence and when such testing, even if exculpatory, would not prove his innocence of capital
murder committed during a burglary); Osborne v. Dist. Attorney’s Office, 423 F.3d 1050, 1056 (9th Cir. 2005) (concluding
that § 1983 claim for DNA testing should be allowed to proceed); Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002)
(supporting access to DNA testing for petitioners who use § 1983 actions); Godschalk v. Montgomery County Dist.
Attorney’s Office, 177 F. Supp. 2d 366, 369–70 (E.D. Pa. 2001) (finding that plaintiff was entitled to DNA testing despite
his detailed confession for two rapes because exculpatory DNA evidence “could well raise reasonable doubts in the minds
of jurors as to plaintiff’s guilt”). But see Harvey v. Horan, 278 F.3d 370, 374–77 (4th Cir. 2002) (Harvey I) (refusing
access to DNA evidence by claiming the evidence would be used to attack the petitioner’s sentence, which could only be
done through a habeas corpus petition); Kutzner v. Montgomery County, 303 F.3d 339, 340 (5th Cir. 2002) (using the
Harvey I decision’s reasons in order to deny a petitioner’s § 1983 request to access to DNA evidence). In the Second
Circuit, the Court of Appeals endorsed the Harvey decision in Pitera v. Mintz. 65 F. App’x 733, 735 (2d Cir. 2003)
(affirming district court’s rejection of constitutional right based on district court’s adherence to Harvey I reasoning). A
federal right of post-conviction access to evidence for the purpose of DNA testing has been explicitly recognized in the
Ninth Circuit. See Thomas v. Goldsmith, 979 F.2d 746, 749–50 (9th Cir. 1992). For a scholarly discussion of post-
conviction DNA testing and its ramifications, see generally Seth F. Kreimer & David Rudovsky, Double Helix, Double
Blind: Factual Innocence and Postconviction DNA Testing, 151 U. Pa. L. Rev. 547 (2002). For information about state
law, statutes, and case law, see Chapter 2 of the JLM, “Introduction to Legal Research.”
20. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1961) (holding that the prosecution’s
suppression of evidence was a due process violation).
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 176

(c) State Prisoners in a State without a Post-Conviction DNA Testing Statute: Filing
a Section 1983 Action
Note that your state constitution may be interpreted to afford you a right to demand post-conviction
DNA testing. For example, in Osborne v. State, although the Alaska Court of Appeals stated it has not been
decided whether there is a right to post-conviction testing under the Alaska state constitution, it articulated
three things that must be established before an individual could claim a right to post-conviction DNA
testing.21 Accordingly, you should research case law in your state to see if your state courts have interpreted
your state constitution to allow you to request post-conviction DNA testing in certain circumstances.
(d) Federal Prisoners: Filing Under the Federal Post-Conviction DNA Testing
Statute: the Justice for All Act of 2004
On October 30, 2004, the Justice for All Act was signed into federal law. Because it is a new law, there
might not be much case law about it yet in your jurisdiction. This law gives prisoners the right to request
post-conviction DNA testing, but it applies only to federal prisoners.22 If you are a state prisoner, you must
use your state’s post-conviction DNA testing statute listed in footnote sixteen (see part B(1)(a)). If your state
does not have a statute, then file a Section 1983 action (see part B(1)(b)).
The Justice for All Act works exactly like a state post-conviction DNA statute if you are serving time for
a federal crime. It lays out the standards states should have for post-conviction DNA testing, and it provides
the rules and procedures for federal prisoners (serving a prison or death sentence) applying for DNA
testing.23 The Act requires that:
(1) The applicant must assert under penalty of perjury that he is “actually innocent” of the federal
offense he is imprisoned or on death row for; or
(2) In death penalty cases, that he is “actually innocent” of another federal or state offense, if being
exonerated of this offense would give him the right to a reduced sentence or a new sentencing
hearing; and
(3) The specific evidence to be tested must not have been previously tested, except that testing using a
newer and more reliable method of testing may be requested; and
(4) The proposed DNA testing may produce new evidence raising a reasonable probability that the
applicant did not commit the offense; and
(5) The applicant must provide a current DNA sample for comparison with existing evidence.24
You should file for DNA testing within five years after the Act was passed (so by October 30, 2009) or
three years after your conviction—whichever comes first. If you do not, your motion will be considered late,
and you will have to show “good cause,” in other words, a very good reason you did not file in time.25
The government is not allowed to destroy DNA evidence from a federal criminal case while the
defendant remains incarcerated, with certain exceptions. The government may destroy DNA evidence: (1) if
the defendant waived the right to DNA testing; (2) if the defendant was notified after his conviction became
final that the evidence may be destroyed and did not file a motion for testing; (3) if a court has denied a

21. See, e.g., Osborn v. State, 163. P.3d 973 (Alaska Ct. App. 2007) (holding that to claim entitlement to post-
conviction DNA testing, a defendant at minimum would have to show (1) his conviction rested primarily on eyewitness
identification, (2) that there was demonstrable doubt concerning this identification, and (3) that scientific testing of
physical evidence would likely be conclusive on the issue of whether the defendant was the perpetrator of the crime).
22. Lebron v. Sanders, No. 02 Civ. 6327 (RPP), 2005 U.S. Dist. LEXIS 35588, at *1 (S.D.N.Y. Dec. 23, 2005)
(unpublished) (advising petitioner that the Justice for All Act “applies only to persons ‘who are under sentence of
imprisonment or death pursuant to a conviction for a Federal offense’” and that “his demand for DNA testing can be
sought in state proceedings”).
23. 18 U.S.C. § 3600 (2000 & Supp. V 2005). The Southern District of New York held a state prisoner could not
seek relief under the Justice for All Act of 2004. A state prisoner in New York must seek relief under New York’s statute.
24 . 18 U.S.C. § 3600 (2000 & Supp. V 2005); see also the Death Penalty Information Center,
http://www.deathpenaltyinfo.org/article.php?scid=40&did=1234#subA (last visited March 4, 2008).
25. 18 U.S.C. § 3600(a)(10)(B) (2000 & Supp. V 2005). In addition to showing good cause, you must also show (1)
that you were incompetent and that the incompetence was the reason that you did not file in a timely manner; (2) that
the evidence to be tested is newly discovered DNA evidence; and (3) that you are not appealing to assert your innocence
but that to deny the appeal would lead to a manifest injustice. See also the Death Penalty Information Center,
http://www.deathpenaltyinfo.org/article.php?scid=40&did=1234#subA (last visited March 4, 2008).
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 177

motion for testing; or (4) if the evidence has already been tested and the results included the defendant as
the source. If the evidence is large or bulky, the government may preserve a representative sample.26
If you assert your innocence and the DNA evidence does not show you to be innocent, the court can hold
you in contempt and if you are convicted of making false assertions, your term of imprisonment will be
extended by at least three years.27 However, if the evidence excludes you as the source of the DNA evidence,
then you can petition for a new trial, which shall be granted when the test results, considered with all other
evidence in the case, establish by compelling evidence that a new trial would result in an acquittal.28 Also, as
a defendant, you may file a motion for a new sentencing hearing if evidence of an offense was admitted
during a federal death sentencing hearing and exoneration of that offense would entitle you to a reduced
sentence or to a new sentencing proceeding.29
D. Motion for a New Trial Based on Newly Discovered Evidence
Once you have succeeded in your motion to secure DNA evidence, gotten the DNA testing you asked for,
and have results that point to your innocence, it is time to file a motion for a new trial. Every state, and the
federal government, allows you to file a motion for a new trial based on newly discovered evidence. Because
DNA technology is so new, the results of DNA analysis may be considered “newly discovered evidence,” even
if the substance being analyzed is not itself newly discovered.
Every jurisdiction has a test that courts apply in deciding whether to grant a motion for a new trial
based on newly discovered evidence. In the federal system, 30 courts traditionally ask five questions to
determine whether to grant a motion for a new trial:
(1) Was the evidence available before the trial?
(2) Could it have been discovered before the trial through the exercise of due diligence?31
(3) Is the evidence “material” (relevant) to the issue you raise in your motion?
(4) Is the evidence merely “cumulative” (does it only support the other similar evidence already
admitted at trial) or “impeaching” (does it only contradict other evidence admitted at trial)?; and
(5) Would the evidence probably change the result if a new trial were granted?32
State courts use similar tests to determine whether to grant a motion for a new trial. New York courts
have historically used a formula like the federal test.33 While the trial court is bound by these questions, it
has some discretion to decide whether to grant a new trial. These motions are extraordinary, so courts do not
grant them freely, and appellate courts rarely reverse a trial judge’s decision to deny a new trial motion.
Note also that most states, as well as the federal government, limit the period of time after your
conviction during which you may file such a motion.34 These time limits, called the “statute of limitations,”

26. 18 U.S.C. § 3600A (2000).

27. 18 U.S.C. §§ 3600 (2000)(f)(2),(3).
28. 18 U.S.C. § 3600 (2000)(g)(2).
29. 18 U.S.C. § 3600 (2000)(g)(2)(B).
30. In federal courts, Rule 33 of the Federal Rules of Criminal Procedure authorizes a request for a new trial. Rule
33 allows the court to grant a new trial on defendant’s motion if “the interest of justice so requires.” Fed. R. Crim. P. 33.
31. Due diligence in this context means that you and/or your attorney should have been able to find the evidence
had you looked for it. There should be a reason why you were not able to find the evidence before trial, and you should
make this known to the court.
32. See John A. Glenn, Annotation, What Constitutes “Newly Discovered Evidence” Within Meaning of Rule 33 of
Federal Rules of Criminal Procedure Relating to Motions for New Trial, 44 A.L.R. Fed. 13 (2002); see also United States
v. Carlone, 603 F.2d 63, 66–67 (8th Cir. 1979) (using this standard to deny a new trial when a newly discovered defense
witness claimed F.B.I. agents asked him to plant weapons and drugs in the defendant’s home); Pitts v. United States,
263 F.2d 808, 810–11 (9th Cir. 1959) (going through all five questions to show that evidence submitted by defense would
not meet any of the standards, even if it had been newly discovered); United States v. Bertone, 249 F.2d 156, 160 (3rd
Cir. 1957) (rejecting motion for a new trial based on testimony from newly available witnesses because the witnesses
were available and known by defendant during trial); United States v. Marachowsky, 213 F.2d 235, 238–39 (7th Cir.
1954) (applying this test to reject three witnesses newly brought by the defense to secure a new trial).
33. See People v. Priori, 164 N.Y. 459, 472, 58 N.E. 668, 672 (1900) (using a six-step test to deny the defendant’s
motion for a new trial, and splitting question four of the federal test into two separate questions about cumulative and
impeaching evidence).
34. Herrera v. Collins, 506 U.S. 390, 410–11, 113 S. Ct. 853, 865–66, 122 L. Ed. 2d 203, 223 (1993), surveys state
laws governing motions for new trials for newly discovered evidence; while some states required filing a motion within
weeks of conviction, some provide a time limit of one, two, or three years, and a few states have no time limit. Since
Herrera, the federal statute of limitations for filing a motion based on new evidence was extended from two to three
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 178

are based on the idea that evidence becomes less reliable over time. If the time has expired to file for this
motion, you must try other, less direct, post-conviction remedies (such as a writ of habeas corpus, discussed
in Section 3 below), which may offer a longer statute of limitations period.
To file your motion on time, you need the “newly discovered evidence.” For you, this is the DNA analysis
of the biological evidence at issue. Because the value of DNA evidence in the criminal justice system has
become increasingly recognized, it is becoming easier for prisoners to obtain testing. In the last few years,
many states have enacted laws that create a limited right for people convicted of crimes to have DNA testing
performed on evidence and to have the results of that test admitted in court.
Depending on your jurisdiction’s statute, you may be able to file a motion for a new trial based on newly
discovered evidence if biological evidence from the crime for which you were convicted still exists, but:
(1) DNA testing was never performed on it;
(2) DNA analysis was performed, but the results were not admitted in court (because, for example, DNA
testing was not regarded as reliable evidence at the time of your trial); or
(3) DNA analysis was performed, but the methods then used to analyze the evidence are now known to
be unreliable (for example, microscopic hair comparison).
If you pleaded guilty at trial, you may be denied your motion for a new trial based on newly discovered
evidence and/or your request for DNA testing. This may be so even if the statute does not specifically say so.
The New York law, for example, does not explicitly bar people who pleaded guilty from requesting DNA
testing, but courts have held those who pleaded guilty have admitted their factual guilt and have waived the
right to a new trial based on newly discovered evidence.35 You should consult both your state’s statutes and
case law to determine whether a guilty plea prevents you from seeking a new trial based on DNA evidence.
One further point to keep in mind is that even if your state has not passed a statute providing for post-
conviction DNA testing, this does not mean that you cannot request a test. Courts will probably treat such a
request as a matter of discretion and will probably determine whether to grant it based on a combination of
factors similar to the ones listed in the various state statutes that have been passed.
E. Habeas Corpus Relief
You might get post-conviction relief through petitioning for a writ of habeas corpus, though it is
unlikely.36 A habeas corpus writ is a court’s written order demanding a prisoner be brought before the court
to see whether his imprisonment or detention is illegal. Unlike most post-conviction DNA cases, in which
motions are made to find evidence, in habeas cases it is assumed you already have the evidence to exonerate
you.37 So, this remedy is not available unless the biological evidence from the crime scene has already been
subjected to DNA testing. Another problem federal habeas corpus petitioners encounter is it is traditionally
assumed relief cannot be granted unless a constitutional error occurred at trial.
You may request access to crime scene evidence through the right to demonstrate actual innocence in
habeas corpus review. This idea is based on Herrera v. Collins, in which the Supreme Court left open the
possibility that “a truly persuasive post-trial demonstration of ‘actual innocence’” could lead to prisoner relief
in the event there was not a state-sanctioned review of the evidence.38 In a Supreme Court case called House
v. Bell, the Court decided that in some cases where new evidence would have been likely to cast a reasonable

years. Fed. R. Crim. P. 33.

35. See People v. Jackson, 163 Misc. 2d 224, 226, 620 N.Y.S.2d 240, 241 (Sup. Ct. N.Y. County 1994) (“By pleading
guilty, the defendant admitted his factual guilt and waived his right to confront his accusers. He may not now seek to
defend himself against those accusers by a motion based upon newly discovered evidence.”).
36. See Chapter 13 of the JLM, “Federal Habeas Corpus,” for more information on habeas corpus petitions.
37. If you are already bringing a petition for habeas corpus on other grounds, then you can also request DNA
testing; however, because a petition for habeas corpus is a difficult route to take to seek testing, it is only recommended
if you are already filing a habeas petition. See Cherrix v. Braxton, 131 F. Supp. 2d 756, 761–62 (E.D. Va. 2001)
(defending decision to order DNA testing on previously tested material due to technological advances and principle that
newly-discovered DNA evidence would “illuminate” federal habeas claim); Thomas v. Goldsmith, 979 F.2d. 746, 749–50
(9th. Cir. 1992) (requiring state to turn over allegedly exculpatory DNA evidence in order to allow the prisoner to make a
colorable showing of innocence and overcome procedural default on habeas claim).
38. See Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 869, 122 L. Ed. 2d 203, 227 (1993) (noting that in
order to support “finality in capital cases” and lessen the burden of States having to retry a large number of cases “based
on often stale evidence,” the threshold for such a right would be “extraordinarily high”).
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 179

doubt on a state prisoner’s conviction, that state prisoner may file for a federal habeas corpus writ, even if
the laws of the state where he was convicted would have normally barred a federal habeas filing.39
In connection with habeas review, you may find success through the Brady obligation (also known as the
Brady material doctrine).40 Under this duty, the prosecution in a criminal case must reveal any evidence
that may prove your innocence. Note, however, the evidence referred to is the results from DNA testing, not
the material being tested. If (1) evidence was subjected to DNA testing; (2) the prosecution withheld the
results of that test from you; and (3) the results may have helped to prove your innocence, you may have a
claim for habeas corpus relief. But, if no DNA analysis was performed on the material, you cannot allege a
Brady violation based on the prosecution’s withholding of that evidence (since the “evidence” did not exist).41
The Supreme Court has interpreted Brady not to impose a constitutional duty on the state to perform
DNA tests on evidence, or to preserve evidence so it can be tested.42 But, this rule changed when Congress
passed the Justice for All Act of 2004.43 The Justice for All Act imposes uniform rules for the preservation of
evidence for DNA testing in federal crimes but in its current form states violation of its evidence
preservation procedures does not give rise to damage actions.44 But, whether a violation of those procedures
would be the basis for other claims for relief, like under Section 1983, is unclear.
F. Legal Assistance for Those Seeking Post-Conviction DNA Testing
If you do not have a lawyer and want to seek post-conviction DNA testing, there are many not-for-profit
organizations—called “innocence projects”— that might help. Note that because these organizations receive
huge numbers of requests, they are often forced to choose a few cases over others that may be just as worthy.
Appendix A below lists organizations that may help you use DNA evidence to prove your innocence. To
have one of these offices consider your case, you should mail a brief factual summary of the case and a list of
the evidence used against you. The case must involve biological evidence (semen, blood, saliva, skin, sweat,
or hair). If possible, you should indicate what evidence you want to test, why it would be important to your
case, and the last known location of that evidence (if you include this information, it may help the attorneys
get back to you quickly). Also, include your full name, mailing address, and prison identification number.
G. Conclusion
If you believe DNA can prove your innocence, there are legal options you may be able to use. The legal
options differ depending on whether you are in state versus federal prison, or whether you are in a state
with or without a post-conviction DNA testing statute. Appendix A provides a list of organizations with
expertise in helping prisoners seek post-conviction testing. These organizations may be able to help you.

39. House v. Bell, 547 U.S. 518, 126 S. Ct. 2064, 2076–77, 165 L. Ed. 2d 1, 21 (2006).
40. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963) (holding “the
suppression by the prosecution of evidence favorable to an accused … 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”); United States v. Agurs,
427 U.S. 97, 110, 96 S. Ct. 2392, 2401, 49 L. Ed. 2d 342, 353–54 (1976) (“[T]here are situations in which evidence is
obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a
specific request.”). The Agurs standards explaining when evidence must be disclosed are no longer good law, but the idea
behind them is. See United States v. Bagley, 473 U.S. 667, 675, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 489–90 (1985)
(holding the prosecutor is required to “disclose evidence favorable to the accused that, if suppressed, would deprive the
defendant of a fair trial”). See Chapter 13 of the JLM, “Federal Habeas Corpus,” for information on the Brady duty.
41. But see Godschalk v. Montgomery County Dist. Attorney’s Office, 177 F. Supp. 2d 366, 369–70 (E.D. Pa. 2001)
(“since DNA testing of the genetic material could indeed provide material exculpatory [Brady] evidence for a jury to
consider along with the inculpatory evidence of plaintiff’s detailed confession … plaintiff has a due process right of access
to the genetic material for the limited purpose of DNA testing”).
42. See Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988) (holding that
“failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected
to tests, the results of which might have exonerated the defendant” does not violate the Due Process Clause).
43. 18 U.S.C. § 3600A (2000).
44. 18 U.S.C. § 3600A (2000).
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 180

APPENDIX A

PROJECTS THAT MAY OFFER ASSISTANCE IN OBTAINING DNA TESTING—BY

STATE
Alaska Colorado
Innocence Project Northwest Colorado Innocence Project
University of Washington School of Law James E. Scarboro
William H. Gates Hall, P.O. Box 85110 P.O. Box 2909
Seattle, WA 98105 Denver, CO 80201-2909
E-mail: [email protected] Phone: 303-863-2311
Phone: 206-616-5780 Fax: 303-832-0428
Fax: 206-685-2388
Connecticut
Arizona Connecticut Innocence Project
Arizona Justice Project c/o McCarter & English
Larry Hammond, Chair City Place 1, 36th Floor
2929 N. Central Ave., Suite 2100 185 Asylum Street
Phoenix, AZ 85012 Hartford, Connecticut 06103
Phone: 602-640-9361 Phone: 860-275-6140
Fax: 602-640-6076 Fax: 860-275-6141

Northern Arizona Justice Project New England Innocence Project

Robert Schehr, Chair Project Coordinator
Department of Criminal Justice Goodwin Procter LLP
Northern Arizona University Exchange Place
P.O. Box 15005 53 State Street
Flagstaff, AZ 86011-5005 Boston, MA 02109
Phone: 928-523-7082 Phone: 617-305-6505

Arkansas Delaware
Arkansas Innocence Project Office of the Public Defender
James Hensley, Jr. Lisa M. Schwind, Director
P.O. Box 639 Carvel State Building
Cabot, Arkansas 72023 820 French Street, 3rd floor
Phone: 501-843-2770 Wilmington, DE 19801
Phone: 302-577-5125
California (Northern)
Northern California Innocence Project District of Columbia
Santa Clara University Mid-Atlantic Innocence Project
425 El Camino Real 4801 Massachusetts Avenue, NW
Santa Clara, CA 95053-0422 Washington, DC 20016-8184
Phone: 408-554-1945 Phone: 202-274-4199
Fax: 408-554-5440 Fax: 202-730-4733.

California (Southern) Florida

California Innocence Project Innocence Project of Florida, Inc.
California Western School of Law 1100 East Park Avenue
225 Cedar Street Tallahassee, FL 32301
San Diego, CA 92101 Phone: 850-561-6767
Phone: 619-525-1485 Fax: 850-561-5077
Fax: 619-615-1443
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 181

Georgia Iowa
Georgia Innocence Project Nebraska Innocence Project
752 1/2 North Highland Avenue P.O. Box 24183
Atlanta, Georgia 30306 Omaha, NE 68124-0183
Phone: 404-872-8236 Phone: 402-341-7954
Fax: 404-872-8240
Wisconsin Innocence Project
Hawaii Frank J. Remington Center
Hawai’i Innocence Project University of Wisconsin Law School
California Western School of Law 975 Bascom Mall
225 Cedar Street Madison, WI 53706-1399
San Diego, CA 92101 Phone: 608-263-7461
Phone: 619-525-1485
Kansas
Idaho Midwestern Innocence Project
Idaho Innocence Project Ken Miller, Executive Director
Boise State University 6320 Brookside Plaza
1910 University Drive P.O. Box 1500
Boise, ID 83725-1515 Kansas City, MO 64113
Phone: 816-221-2166 OK.
Innocence Project Northwest
University of Washington School of Law Kentucky
William H. Gates Hall, Suite 265 University of Kentucky Innocence Project
P.O. Box 85110 Roberta M. Harding, Professor of Law
Seattle, WA 98105 University of Kentucky College of Law
E-mail:[email protected] 209 Law Building
Phone: 206-616-5780 Lexington, KY 40506-0048
Fax: 206-685-2388
Kentucky Innocence Project
Illinois Gordon Rahn, Project Coordinator
Center on Wrongful Convictions 100 Fair Oaks Lane, Suite 301
Northwestern University School of Law Frankfort, KY 40601 Phone: 502-564-3948
357 East Chicago Avenue Fax: 502-564-3949
Chicago, IL 60611
Phone: 312-503-3100 Louisiana
Fax: 312-908-0529 Innocence Project New Orleans
636 Baronne Street, 2nd Floor
Indiana New Orleans, LA 70113
Innocence Project of Indiana Phone: 504-522-4766 or 504-522-4767
Indiana University School of Law Fax: 504-558-0378
Fran Hardy, Professor of Law
735 West New York Street Innocence Project of Northwest Louisiana
Indianapolis, IN 46202 400 Travis Street, Suite 1222
Phone: 317-274-5551 Shreveport, LA 71101

Wisconsin Innocence Project Maine

Frank J. Remington Center New England Innocence Project
University of Wisconsin Law School Project Coordinator
975 Bascom Mall Goodwin Procter LLP
Madison, WI 53706-1399 Exchange Place
Phone: 608-263-7461 53 State Street
Boston, MA 02109
Phone: 617-305-6505
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 182

Maryland Missouri
Mid-Atlantic Innocence Project Midwestern Innocence Project
4801 Massachusetts Avenue, NW 6320 Brookside Plaza #1500
Washington, DC 20016-8184 Kansas City, MO 64113
Phone: (202) 274-4199 Phone: 816-221-2166
Fax: (202) 730-4733
Montana
Massachusetts Innocence Project Northwest
New England Innocence Project University of Washington School of Law
Project Coordinator William H. Gates Hall, Suite 265
Goodwin Procter LLP P.O. Box 85110
Exchange Place Seattle, WA 98105
53 State Street Phone: 206-616-5780
Boston, MA 02109 Fax: 206-685-2388
Phone: 617-305-6505
Nebraska
Michigan Nebraska Innocence Project
Thomas M. Cooley Innocence Project P.O. Box 24183
300 S. Capitol Ave. Omaha, NE 68124-0183
P.O. Box 13038 Phone: 402-341-7954
Lansing, MI 48901
Phone: 517-371-5140, ext. 5764 Nevada
Rocky Mountain Innocence Center
Wisconsin Innocence Project 358 South 700 East, Box B235
Frank J. Remington Center Salt Lake City, UT 84103
University of Wisconsin Law School Phone: 801-355-1888
975 Bascom Mall
Madison, WI 53706-1399 New Hampshire
Phone: 608-263-7461 New England Innocence Project
Goodwin Procter LLP
Minnesota Exchange Place, 53 State Street
Innocence Project of Minnesota Boston, MA 02109
Erika Applebaum, Executive Director Phone: 617-305-6505
Hamline University School of Law
1536 Hewitt Avenue New Jersey
St. Paul, MN 55104 Centurion Ministries
Phone: 651-523-3152 Jim McCloskey
Fax: 651-523-2967 221 Witherspoon Street
Princeton, NJ 08542
Wisconsin Innocence Project
Frank J. Remington Center New Mexico
University of Wisconsin Law School New Mexico Innocence and Justice Project
975 Bascom Mall Contact: Professors April Land,
Madison, WI 53706-1399 Barbara Bergman, and Rob Schwartz
Phone: 608-263-7461 University of New Mexico School of Law
1117 Stanford NE
Mississippi Albuquerque, NM 87131
Innocence Project New Orleans Phone: 505-277-5265
Case Review Manager
636 Baronne Street, 2nd Floor
New Orleans, LA 70113
Phone: 504-522-4766 or 4767
Fax: 504-558-0378
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 183

New York Oklahoma

Innocence Project Oklahoma Indigent Defense System
Benjamin N. Cardozo School of Law DNA Forensic Testing Program
100 Fifth Avenue, 3rd Floor P.O. Box 926
New York, NY 10011 Norman, OK 73070
Phone: 212-364-5340 Phone: 405-801-2666
Serves New York City, Westchester County Fax: 405-801-2690

Pace Post-Conviction Project Oregon

78 North Broadway, Room G210 Innocence Project Northwest
White Plains, NY 10603 University of Washington School of Law
William H. Gates Hall, Suite 265
New York State Defenders Association P.O. Box 85110
194 Washington Street, Suite 500 Seattle, WA 98105
Albany, NY 12210 Phone: 206-616-5780
Phone: 518-465-3524 Fax: 206-685-2388

Second Look Program Pennsylvania

Professor Will Hellerstein Innocence Institute
Brooklyn Law School Point Park College, Dept. of Journalism and
250 Joralemon Street Mass Communications
Brooklyn, NY 11201 201 Wood Street
Pittsburgh, PA 15222
North Carolina Phone: 412-765-3164
North Carolina Center on Actual Innocence Fax: 412-392-3176
Prof. Richard Rosen
Duke University School of Law Duquesne Law Innocence Project
Durham, NC 27708-0360 Professor John T. Rago, Director
Phone: 919-962-8505 600 Forbes Avenue, 632 Fisher Hall
Pittsburgh, PA 15282
North Dakota Phone: 412-396-4704
Innocence Project of Minnesota Fax: 412-396-5287
Erika Applebaum, Executive Director
Hamline University School of Law Rhode Island
1536 Hewitt Avenue New England Innocence Project
St. Paul, MN 55104 Goodwin Procter LLP
Phone: 651-523-3152 Exchange Place, 53 State Street
Fax: 651-523-2967 Boston, MA 02109
Attn: Intake Coordinator
Ohio Phone: 617-305-6505
Lois and Richard Rosenthal Institute for
Justice/Ohio Innocence Project South Carolina
University of Cincinnati College of Law Palmetto Innocence Project
P.O. Box 210040 P.O. Box 11623
Cincinnati, OH 45221-0040 Columbia, SC 29211
Phone: 513-556-0752 Phone: 803-779-0005

Innocence Institute South Dakota

Point Park College, Dept. of Journalism and Innocence Project of South Dakota
Mass Communications University of South Dakota School of Law
201 Wood Street 414 E. Clark Street
Pittsburgh, PA 15222 Vermillion, SD 57069
Phone: 412-765-3164
Fax: 412-392-3917
Ch. 11 USING POST-CONVICTION DNA TO ATTACK YOUR CONVICTION OR SENTENCE 184

Innocence Project of Minnesota Washington, DC 20016-8184

Erika Applebaum, Executive Director Phone: 202-274-4199
Hamline University School of Law Fax: 202-730-4733
1536 Hewitt Avenue
St. Paul, MN 55104 Washington
Phone: 651-523-3152 Innocence Project Northwest
Fax: 651-523-2967 University of Washington School of Law
William H. Gates Hall, Suite 265
Tennessee P.O. Box 85110
Tennessee Innocence Project Seattle, WA 98105
c/o UT - Pro Bono Phone: 206-616-5780
University of Tennessee Legal Clinic Fax: 206-685-2388
1505 West Cumberland Avenue
Knoxville, TN 37996 Idaho Innocence Project
Phone: 865-974-9791 Boise State University
1910 University Drive
Texas Boise, ID 83725-1515
University of Houston Innocence Network
David Dow, Professor West Virginia
University of Houston Law Center Innocence Project at West Virginia University
100 Law Center P.O. Box 6130
Houston, TX 77204-6060 Morgantown, WV 26506
Phone: 713-743-7552 Phone: 304-293-7249

Texas Center for Actual Innocence Wisconsin

University of Texas School of Law Wisconsin Innocence Project
727 East Dean Keeton Street Frank J. Remington Center
Austin, TX 78705 University of Wisconsin Law School
Phone: 512-232-1463 975 Bascom Mall
Madison, WI 53706-1399
Innocence Project of Texas Phone: 608-263-7461
1304 Texas Ave
Lubbock, Texas 79401 Wyoming
Phone: 806-744-6525 Rocky Mountain Innocence Center
Fax: 806-744-6480 358 South 700 East, Box B235
Salt Lake City, UT 84103
Utah Phone: 801-355-1888
Rocky Mountain Innocence Center
358 South 700 East, Box B235
Salt Lake City, UT 84103
Phone:801-355-1888

Vermont
New England Innocence Project
Project Coordinator
Goodwin Procter LLP
Exchange Place
53 State Street
Boston, MA 02109
Phone: 617-305-6505

Virginia
Mid-Atlantic Innocence Project
4801 Massachusetts Avenue, NW
 A Jailhouse Lawyer’s
Manual

Chapter 12:
Appealing Your Conviction
Based on Ineffective Assistance of
Counsel

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 12

APPEALING YOUR CONVICTION BASED ON INEFFECTIVE

ASSISTANCE OF COUNSEL
A. Introduction
Many prisoners appeal their conviction for ineffective assistance of counsel. Ineffective
assistance requires two things. First, your lawyer did not act in a way following professional
standards for lawyers. Second, there must be a “reasonable probability” the lawyer’s poor
representation negatively affected the outcome of your case.1 The right to effective counsel
comes from the Sixth and Fourteenth Amendments of the U.S. Constitution. If you are in
New York State, Article I, Section 6 of the New York State Constitution also protects that
right.2 There are different reasons why counsel can be considered ineffective and different
ways to appeal your conviction based on this claim. This Chapter summarizes how to bring
these claims, but other JLM Chapters, listed in footnote 3, can give you more detailed
procedural information.
B. Ways to Claim Ineffective Counsel
There are three general ways to attack your conviction: direct post-conviction appeal,
state post-conviction appeal, and federal and/or state habeas corpus. Other JLM Chapters
cover these topics.3 In New York, if you are appealing your conviction based on ineffective
counsel at the trial level, you should raise your claim (1) in your direct appeal4 and then (2)
in your federal habeas petition in federal court.5 If you are filing a claim in New York state
court and there are not enough facts in the record to let the court review an ineffectiveness
claim on appeal, you should file an Article 440 motion in New York state court. 6 It is

1. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is
important to note the “outcome” that might be negatively affected by attorney ineffectiveness is not
limited to the trial outcome. For example, you might claim your lawyer’s ineffectiveness caused you to
proceed to trial when you should have accepted a plea, or to accept a plea when you should have gone to
trial. Or, you might claim your lawyer’s ineffectiveness caused you to forego filing an appeal when you
should have filed an appeal, or caused you to lose your appeal when you might have won.
2. Even if you do not live in New York, your state constitution may also provide the right to
effective counsel. Regardless of whether your state constitution has a provision regarding the right to
counsel, the Sixth and Fourteenth Amendments of the U.S. Constitution give you a federal right to
effective counsel.
3. See the following JLM Chapters for more information: Chapter 9, “Appealing Your Conviction
or Sentence” (direct appeals); Chapter 20, “Using Article 440 of the New York Criminal Procedure Law
to Attack Your Unfair Conviction or Illegal Sentence” (state post-conviction); Chapter 13, “Federal
Habeas Corpus;” and Chapter 21, “State Habeas Corpus.”
4. In New York, an ineffective assistance claim that is based only on the trial record must be
made in the direct appeal. See People v. Love, 57 N.Y.2d 998, 1000, 443 N.E.2d 486, 487, 457 N.Y.S.2d
238, 239 (1982) (“Here ... we cannot conclude that defendant's counsel was ineffective simply by
reviewing the trial record without the benefit of additional background facts that might have been
developed had an appropriate after-judgment motion been made pursuant to CPL 440.10.”); People v.
Brown, 45 N.Y.2d 852, 853–54, 382 N.E.2d 1149, 1149–59, 410 N.Y.S.2d 287, 287 (1978) (“Generally,
the ineffectiveness of counsel is not demonstrable on the main record, but in this case it is.”); People v.
Terry, 44 A.D.3d 1157, 1159, 845 N.Y.S.2d 145, 147 (3d Dept. 2007) (holding defendant must raise his
ineffective assistance claim on direct appeal rather than in an Article 440 motion).
5. If you are not in New York, you may not be able to file both a direct appeal and a federal
habeas claim. See Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005) (holding that “a defendant
who chooses to make an ineffective-assistance argument on direct appeal cannot present it again on
collateral review”).
6. Note that for claims of ineffective assistance of trial counsel, an Article 440 motion, and not a
important to note that there is no Sixth Amendment right to counsel before you are actually
charged with a crime, so you can only claim ineffective counsel under the Sixth Amendment
starting from the time at which charges were brought against you.7
You are also entitled to have effective counsel during a first appeal as of right.8 A finding
of ineffective counsel at this level can lead to a de novo (new) appeal and, sometimes, a
reversal of your conviction.9 If you are appealing your conviction based on ineffective counsel
at the appellate level, you should file the appropriate state post-conviction motion in your
state court or a federal habeas petition. In New York, the appropriate procedure for filing an
ineffective appellate counsel claim is to file a coram nobis motion in the court where the
appeal was filed, 10 but each state has its own state post-conviction appeals procedure. 11
There is, however, no federal constitutional right to counsel in state post-conviction
proceedings, so a claim of ineffective counsel at the post-conviction level based on the U.S.
Constitution is not likely to succeed.12 But, some states do have a right to counsel in state
post-conviction proceedings based on state statutory or constitutional law, and some states

state habeas petition, is the appropriate procedural method in New York. See Chapter 20 of the JLM
for further discussion of Article 440. A state habeas petition may be the appropriate procedure in other
states. See, e.g., State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.
Ct. 2922, 91 L .Ed. 2d 550 (1986) (proper procedural vehicle for raising claim of ineffective counsel in
Connecticut is generally a state habeas petition).
7. Moran v. Burbine, 475 U.S. 412, 430–31, 106 S. Ct. 1135, 1145–46, 89 L. Ed. 2d 410, 427
(1986) (holding “the Sixth Amendment right to counsel does not attach until after the initiation of
formal charges”); People v. Claudio, 83 N.Y.2d 76, 80–81, 629 N.E.2d 384, 386, 607 N.Y.S.2d 912, 914
(1993) (holding the right under both the U.S. Constitution and the New York state constitution to
effective counsel does not attach until the start of adversarial judicial proceedings). But, note some
state constitutions grant broader rights to counsel than does the U.S. Constitution. See People v.
McCauley, 163 Ill. 2d 414, 423–24, 206 Ill. Dec. 671, 645 N.E.2d 923, 929 (1994) (giving a broader
reading to article 1, section 10 of the Illinois constitution than the 5th Amendment right against self-
incrimination as discussed in Moran v. Burbine). Also, there is a right to counsel under the 5th
Amendment for those subject to a custodial interrogation, even before formal charges are brought. See
Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1626, 16 L. Ed. 2d 694, 721 (1966). One can
argue this right to counsel also encompasses the right to effective counsel. But see Sweeney v. Carter,
361 F.3d 327, 333 (7th Cir.), cert. denied, 543 U.S. 1020, 125 S. Ct. 657, 160 L. Ed. 2d 496 (2004) (“[A]s
far as we can tell, the Supreme Court has not mentioned effective assistance of counsel (in the
Strickland sense) and the Fifth Amendment in the same breath, let alone set forth a clearly established
right to that effect.”).
8. Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821, 830 (1985)
(establishing that the defendant’s 14th Amendment right to effective counsel at the trial level extends
to a first appeal as of right); Douglas v. California, 372 U.S. 353, 357–58, 83 S. Ct. 814, 816–17, 9 L. Ed.
2d 811, 814–15 (1963) (requiring appointment of counsel for an indigent defendant regardless of the
merits of the appeal).
9. See, e.g., McHale v. United States, 175 F.3d 115 (2d Cir. 1999) (reinstating appeal upon
finding that appellate counsel’s ineffectiveness caused dismissal of original appeal).
10. See People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987).
11 . In most states, ineffective appellate counsel can be raised as part of your state post-
conviction motion, but you should check your state’s laws. See, e.g., State v. Davis, 2008 Ohio 4608
(2008) (holding Ohio statute requires ineffective appellate counsel claims be made only to the state
appellate court, rather than to the trial court in a post-conviction petition). For information on coram
nobis motions, see Chapter 9 of the JLM, “Appealing Your Conviction or Sentence.”
12. Coleman v. Thompson, 501 U.S. 722, 752–54, 111 S. Ct. 2546, 2566–67, 115 L. Ed. 2d 640,
670–72 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987);
Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L. Ed. 2d 1 (1989)). If the Supreme Court
eventually recognizes a right to post-conviction counsel, one might expect that right to reside in the
Due Process and/or Equal Protection Clauses of the Fourteenth Amendment. See Evitts v. Lucey, 469
U.S. 387, 404–05, 105 S. Ct. 830, 839–41, 83 L. Ed. 2d 821, 834–35 (1985) (discussing contribution of
each clause to the constitutional right to counsel on direct appeal). Thus, a claim that post-conviction
counsel was ineffective ought to be based on these constitutional provisions.
allow courts to require effective counsel in state post-conviction proceedings when it is in the
interest of justice.13 If you are in a state that does have a right to counsel in state post-
conviction hearings, you may also have a right to effective representation in those hearings.14
As discussed below, you can sometimes use an ineffective counsel claim to raise other
procedurally defaulted claims.15 You must raise your ineffective counsel claims within the
proper time and with the proper procedure. If not raised during the proper time and using
the proper procedure, your claim could be barred.16 In federal court and in many states,
ineffective assistance claims should not be raised on direct appeal because the trial record
usually does not contain enough information to evaluate the claim; instead, they should be
made in a collateral proceeding, allowing the trial court to hear testimony specifically about
the adequacy of your representation. If this happens, you can try to argue your appellate
counsel was ineffective for not raising an ineffective trial counsel claim. If you had the same
lawyer at trial and on direct appeal, failure to raise ineffectiveness on direct appeal does not
procedurally bar you from raising the claim in a post-conviction proceeding.17 But, in some

13. For example, the Alaska post-conviction statute provides for counsel in one post-conviction
appeal. Alaska Stat. § 18.85.100(c) (2004). Florida does not provide a statutory right, but the court may,
in the interest of justice, determine whether, under the factual situation then under review, the
prisoner should have the assistance of counsel. State v. Weeks, 166 So. 2d 892, 897 (Fla. 1964). You
should research your state’s post-conviction act and relevant case law to see if such a right exists in
your state.
14. See, e.g., Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992) (finding statutory right to
counsel on habeas petition encompassed right to effective counsel, which could be vindicated by means
of a second habeas petition); compare Moore v. Commonwealth, 199 S.W.3d 132, 139 (Ky. 2006)
(reinstating appeal from denial of post-conviction relief, on grounds that statutory right to post-
conviction counsel included right to competent counsel, but cautioning that “[o]ur holding ... should not
be construed as sanctioning” the filing of a subsequent post-conviction motion based on previous post-
conviction counsel’s ineffectiveness).
15. Procedural default occurs when your lawyer did not properly raise a claim or objection in
earlier proceedings and, as a result, you are not able to raise this claim on appeal. See Chapter 13 of
the JLM, “Federal Habeas Corpus,” for a further explanation of procedural default.
16. In a New York claim, courts have said that an Article 440 motion is usually the correct way
to raise an ineffective assistance of counsel claim. People v. Brown, 45 N.Y.2d 852, 853–54, 382 N.E.2d
1149, 1149–59, 410 N.Y.S.2d 287, 287 (1978) (“Generally, the ineffectiveness of counsel is not
demonstrable on the main record. ... Consequently, in the typical case it would be better, and in some
cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary
exploration by collateral or post-conviction proceeding brought under CPL 440.10.”). If matters outside
of the trial record must be examined, such as reasons for counsel’s actions, New York courts require you
to raise an ineffective counsel claim in an Article 440 motion, rather than in a motion to set aside the
verdict or in a direct appeal. See People v. Love, 57 N.Y.2d 998, 1000, 443 N.E.2d 486, 487, 457
N.Y.S.2d 238, 239 (1982); People v. Monroe, 2008 NY Slip Op 5531, 1, 52 A.D.3d 623, 623; 860 N.Y.S.2d
564, 565 (2d Dept. 2008); People v. Bagarozy, 182 A.D.2d 565, 566, 582 N.Y.S.2d 424 (1st Dept. 1992)
(motion to set aside); People v Garcia, 187 A.D.2d 868, 590 N.Y.S.2d 565 (3d Dept. 1992); People v
Jiggetts, 178 A.D.2d 332, 577 N.Y.S.2d 396 (1st Dept. 1991); People v. Williams, 178 A.D.2d 163, 165,
576 N.Y.S.2d 870 (1st Dept. 1991). You can use an Article 440 motion to raise claims that are based on
information in the record, but in such a case you must have first made the claim in your direct appeal.
N.Y. Crim. Proc. Law § 440.10(b)–(c) (McKinney 2008). See Chapter 13 of the JLM for an additional
explanation of barred claims, and Chapter 20 of the JLM for more on how to file an Article 440 motion.
17. Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694, 155 L. Ed. 2d 714, 720
(2003) (holding an ineffective “assistance of counsel claim may be brought in a collateral proceeding ...
whether or not the petitioner could have raised the claim on direct appeal”); see also United States v.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (“A defendant can raise the claim of ineffective assistance
of counsel ... by a collateral challenge pursuant to [federal habeas corpus].”); United States v. Alcantar,
83 F.3d 185, 191 (7th Cir. 1996) (noting ineffective assistance claims should be raised on habeas when
not apparent from the trial record); People v. Dor, 132 Misc. 2d 568, 569–70, 505 N.Y.S.2d 317, 319
(Sup. Ct. Kings County 1986) (holding that, in an Article 440 motion, a defendant cannot make further
attacks on "any issues that were raised or could have been raised in the appeal," but could claim
ineffective assistance, which is "an issue that could not possibly be raised in an appeal by the same
states like New York, an ineffective assistance claim that can be decided based on the trial
record alone must be made in the direct appeal, otherwise you are barred from raising it in a
post-conviction motion.18 Be sure to check the laws in your state for the proper procedure.
C. How to Prove Ineffective Counsel
As discussed above, there is a federal right to effective counsel and, in many states, a
separate state right as well. The federal and New York standards for ineffective counsel are
discussed below. If you were convicted in a state other than New York, you should research
your state constitution and case law to find out whether there is a different state standard
for ineffective assistance of counsel that you can argue was not met at trial.19 You should
always raise ineffective assistance of counsel as a federal constitutional claim, even if you
also claim violation of state effective counsel guarantees. If you do not present the claim as a
federal constitutional violation at this point, you may not be able to do so in a later federal
habeas petition.20
1. The Federal Standard
The standard for ineffective assistance of counsel under the U.S. Constitution is the same
no matter where you are. There are three ways in which you can make an ineffective counsel
claim under federal laws: you can claim that your lawyer was actually or constructively
ineffective, or that he had a conflict of interest that caused him to be actually ineffective.
Each of these claims requires you to prove different things.
(a) Actual Ineffectiveness: The Strickland Test
In general, to show ineffective assistance of counsel under the United States
Constitution, you must pass the two-part Strickland test.21 The first part of this test, the
“deficient performance prong,” requires you to prove your lawyer’s performance was
“deficient.”22 The court decides whether your lawyer’s representation fell below an “objective

counsel").
18. See, e.g., Guinan v. United States, 6 F.3d 468, 471 (7th Cir. 1993), overruled in part by
Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003) (stating that
ineffectiveness of counsel claims cannot be waived in cases where the lawyer bringing the appeal also
represented the defendant at trial, and also holding that an ineffectiveness claim may be brought in a
collateral proceeding when evidence of ineffectiveness lies outside the record and an evidentiary
hearing would be necessary or useful in determining whether counsel was ineffective); Alston v.
Donnelly, 461 F. Supp. 2d 112, 123 (W.D.N.Y. 2006) (“where the record is sufficient to allow appellate
review of [an ineffective assistance] claim, the failure to raise that claim on appeal precludes
subsequent collateral review”); People v. Jossiah, 2 A.D.3d 877, 877, 769 N.Y.S.2d 743, 743 (2d Dept.
2003) (“[Since the] record ... clearly presented sufficient facts from which the defendant could have
raised his [ineffective assistance claim] ... on direct appeal, it could not be raised on the CPL 440.10
motion.”); Hartman v. Bagley, 492 F.3d 347, 357–58 (6th Cir. 2007) (holding that although Ohio’s
statute provided “adequate and independent” grounds to bar ineffective assistance claims in collateral
proceedings, it did not apply to defendant’s claim that relied on information outside of the trial record);
Nixon v. Epps, 405 F.3d 318, 323 (5th Cir. 2005) (holding that a Mississippi statute, requiring
defendant to raise ineffective assistance claim on direct review when he uses a different counsel,
created an “adequate and independent” procedural default when defendant failed to comply on direct
appeal).
19. For more information on legal research, see Chapter 2 of the JLM, “An Introduction to Legal
Research.”
20. For more information on filing a federal habeas corpus claim, see JLM Chapter 13, “Federal
Habeas Corpus.”
21 . Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
(establishing federal standard for ineffective assistance of counsel).
22. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
693(1984).
standard of reasonableness.”23 This means the court asks if your lawyer acted in a way that
most other lawyers would think is acceptable. Since this standard can apply differently in
different situations, you must identify the specific things your lawyer did that were so bad
that you were deprived of your right to counsel. You cannot just say that you had a bad
lawyer or that your lawyer did not do enough to help you. You must point to the specific
things your lawyer did badly or did not do at all and show that these failures made your
representation fall below the professional standards for lawyers.24
If the court finds your lawyer’s representation did fall below this standard, it will apply
the second part of the Strickland test. The second part, the “prejudice prong,” requires you to
prove there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”25 This means you not only have to point
out what your lawyer did wrong, but you also have to show how your lawyer’s actions hurt
you and made the outcome of your case unfair. You can only win on an ineffective counsel
claim if both parts of the test are met.26 You should remind the court that the Supreme Court
has specifically said the “prejudice prong” requires you to show only a “reasonable
probability” of a different result, and you do not have to prove your lawyer’s errors “more
likely than not altered the outcome.”27
Ineffective counsel claims are some of the most difficult claims to plead successfully
because of this second part of the Strickland ineffective counsel test. Often, courts do not like
to find that an attorney’s behavior affected a trial so strongly that the outcome is unreliable.
When you are presenting an ineffective counsel claim, you should ask the court to consider
the cumulative (total) effect of all of your lawyer’s errors.28 Try to find cases that successfully
presented a similar claim and structure your claim in a similar way. Unfortunately, for every
successful ineffective counsel claim, there are many other similar claims that are not
granted, so be aware of cases that work against you as well.

23. These basic professional standards could include, but are not limited to, a duty of loyalty, a
duty to avoid conflicts of interest, a duty to advocate the defendant’s cause, the duty to consult with
defendant on important decisions and to keep defendant informed of important developments during
the prosecution, and a duty to use the level of skill and knowledge that make the trial truly adversarial.
Strickland v. Washington, 466 U.S. 668, 688–89, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)
(outlining these duties but noting that they “neither exhaustively define the obligations of counsel nor
form a checklist for judicial evaluation of attorney performance”).
24. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695
(1984) (deciding ineffectiveness claim will judge reasonableness of counsel’s conduct based on facts of
particular case, viewed at the time of the counsel’s conduct).
25. Strickland v. Washington, 466 U.S. 668, 691–92, 694, 104 S. Ct. 2052, 2067, 2068, 80 L. Ed.
2d 674, 696, 698 (1984) (“An error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”);
Williams v. Taylor, 529 U.S. 362, 390–91, 120 S. Ct. 1495, 1511–12, 146 L. Ed. 2d 389, 416 (2000)
(holding that analysis of the prejudice prong should focus solely on whether there was reasonable
probability that but for counsel’s errors, the result of the proceeding would have been different);
Wiggins v. Smith, 539 US 510, 534–35, 123 S. Ct. 2527, 2542–43, 156 L. Ed. 2d 471, 493–94 (2003) (“In
assessing prejudice [in a capital case], we reweigh the evidence in aggravation against the totality of
available mitigating evidence.”).
26. Strickland v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 2071, 80 L. Ed. 2d 674, 702
(1984) (“Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim.”).
27. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674, 697
(1984).
28. See, e.g., Mackey v. Russell, No. 02-4237, 148 Fed. App’x. 355, 368–69 (6th Cir. August 9,
2005) (unpublished) (holding state court unreasonably applied Strickland when it failed to consider the
cumulative effect of counsel’s errors).
 (b) Constructive Ineffectiveness: The Cronic Standard
The second type of ineffective assistance of counsel claim available under the United
States Constitution is a “constructive denial” of the assistance of counsel as described in
United States v. Cronic. 29 You can claim constructive ineffective assistance if the
circumstances of your trial were so unfair that prejudice and ineffective assistance can be
presumed.30 This means that under Cronic, unlike the Strickland test, you do not have to
prove that there was actual prejudice.
The Cronic standard applies in three situations.31 First, prejudice may be presumed if
you were completely denied counsel during a “critical stage” of your trial.32 Second, you can
claim ineffective assistance under Cronic if your lawyer “entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Your lawyer’s failure to test the State’s
case must have been “complete,” meaning he or she put up no opposition whatsoever.33 Third,
you can also make a Cronic claim if the circumstances of your trial made it highly unlikely
any lawyer could have provided effective assistance. 34 If your case falls within such
circumstances, you do not have to prove your lawyer’s trial performance was deficient.
(c) Conflict of Interest
The third type of federal claim argues that counsel provided ineffective assistance due to
a conflict of interest. To show that counsel had a conflict of interest, you must demonstrate
that there was an actual conflict of interest that “adversely affected” your lawyer’s
performance.35 A conflict of interest can arise when one lawyer represents more than one co-

29. U.S. v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d. 657, 667 (1984).
30. U.S. v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d. 657, 667 (1984).
31. U.S. v. Cronic, 466 U.S. 648, 659–62, 104 S. Ct. 2039, 2047–48, 80 L. Ed. 2d. 657, 668–70
(1984); Bell v. Cone, 535 U.S. 685, 695–98, 122 S. Ct. 1843, 1850–52, 152 L. Ed. 2d 914, 927–29 (2002)
(limiting Cronic’s holding that prejudice may be presumed to the three situations identified).
32. See, e.g., Wright v. Van Patten, 128 S. Ct. 743, 746, 169 L. Ed. 2d 583, 588 (2008) (holding
counsel’s participation in plea hearing by speaker phone should not be treated as complete denial of
counsel); Rickman v. Bell, 131 F.3d 1150, 1156–60 (6th Cir. 1997) (affirming judgment of ineffective
assistance where counsel had abandoned defendant’s interests by repeatedly expressing contempt for
client at trial and portraying client as crazy and dangerous, effectively acting as a second prosecutor);
Javor v. United States, 724 F.2d 831, 833–34 (9th Cir. 1984) (finding prejudice inherent when counsel
slept through much of the trial). But see Tippins v. Walker, 77 F.3d 682, 683–85 (2d Cir. 1996) (holding
ineffective assistance claim should be judged under Strickland when counsel slept through the trial).
33. Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914, 928 (2002) (holding
counsel’s failure to produce mitigating evidence and waiver of closing argument did not constitute a
complete failure to test the prosecutor’s case and that Strickland applied rather than Cronic). This is a
difficult standard to meet. For example, counsel’s decision to concede guilt in a capital trial and focus
instead on the sentencing phase, even though his client entered a “not guilty” plea, is not automatically
a complete failure to subject the prosecution’s case to adversarial testing. Compare Florida v. Nixon,
543 U.S. 175, 188–89, 125 S. Ct. 551, 561–62, 160 L. Ed. 2d 565, 579–80 (2004) (“The Florida Supreme
Court's erroneous equation of [counsel’s] concession strategy to a guilty plea led it to [wrongly apply the
Cronic standard] in determining whether counsel's performance ranked as ineffective assistance.”),
with State v. Carter, 270 Kan. 426, 440–41, 14 P.3d 1138, 1148 (2000) (finding that a breakdown in the
adversarial system of justice when counsel premised defense on defendant’s guilt against his client’s
wishes).
34. Compare Powell v. Alabama, 287 U.S. 45, 56–58, 53 S. Ct. 55, 59–60, 77 L. Ed. 158, 164–65
(1932) (holding denial of effective counsel when defendants, who were “young, ignorant, illiterate, [and]
surrounded by hostile sentiment," were tried for a capital offense, and when defense counsel was
designated only minutes earlier and thus had no opportunity to investigate the facts or to prepare),
with U.S. v. Cronic, 466 U.S. 648, 658–67, 104 S. Ct. 2039, 2046–51, 80 L. Ed. 2d. 657, 667–73 (1984)
(rejecting defendant's constructive ineffective assistance argument based on counsel's lack of experience
in criminal law or jury trials, and 25-day preparation time).
35. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 348 (1980); see
also United States v. Iorizzo, 786 F.2d 52, 57–58 (2d Cir. 1986) (applying Cuyler).
defendant for the same crime.36 The conflict must be actual, not just potential, which means
that your lawyer must have taken some action, or refrained from acting in some way, which
harmed you and benefited the other person.37 You are not required to show prejudice if your
lawyer had an actual conflict of interest that adversely affected you, because prejudice is
presumed.
2. New York State Standard
In addition to your federal right to effective counsel, New York state courts have said you
are entitled to “meaningful representation” under Article I, Section 6 of the New York State
Constitution. 38 This means in New York courts, you must show your lawyer’s failures
harmed you so much you did not have meaningful representation at trial. 39 Meaningful
representation does not mean your attorney made no mistakes, but that your lawyer
provided good enough representation to satisfy the court that you were properly
represented.40

36 . A conflict of interest may also arise in other situations, for example, if your lawyer
represented a government or defense witness in a related trial, if the victim was a client of your lawyer,
or if your lawyer collaborated or had a connection with the prosecution. See, e.g., Mickens v. Taylor, 535
U.S. 162, 174–76, 122 S. Ct. 1237, 1245–46, 152 L. Ed. 2d 291, 306–07 (2002) (holding that Cuyler v.
Sullivan applied to petitioner’s claim that counsel was conflicted because he represented the victim in
an unrelated case); Perillo v. Johnson, 205 F.3d 775, 808 (5th Cir. 2000) (holding actual conflict existed
when counsel represented a co-defendant cooperating with the state as witness against accused);
United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1315 (7th Cir. 1986) (holding actual conflict
existed when counsel was prosecutor’s campaign manager for State’s Attorney election, and counsel
colluded with prosecutor and a police officer to get defendant to retain him because it would be good for
the campaign).
37. See, e.g., Burger v. Kemp, 483 U.S. 776, 783–85, 107 S. Ct. 3114, 3120–21, 97 L. Ed. 2d 638,
650–51 (1987) (holding petitioner failed to show actual conflict when lawyer’s partner was appointed to
represent co-defendant, because “defendants may actually benefit from the joint efforts of two partners
who supplement one another in their preparation”); Edens v. Hannigan, 87 F.3d 1109, 1116 (10th Cir.
1996) (holding actual conflict of interest existed when counsel made no effort to present a defense for
client because it would have harmed co-defendant); Burden v. Zant, 24 F.3d 1298, 1305–07 (11th Cir.
1994) (finding ineffective assistance where counsel, representing two codefendants, made an agreement
with the prosecutor that one co-defendant would testify against another in exchange for not prosecuting
the co-defendant); Dawan v. Lockhart, 31 F.3d 718, 721–22 (8th Cir. 1994) (finding ineffective counsel
where public defender also represented codefendant who had pleaded guilty and made statements
implicating the client in the crime).
38. People v. Baldi, 54 N.Y.2d 137, 147, 429 N.E.2d 400, 405, 444 N.Y.S.2d 893, 898 (1981) (“So
long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of
the time of the representation, reveal that the attorney provided meaningful representation, the
constitutional requirement will have been met.”).
39. As mentioned above, if you are in a state other than New York, your state may have an
independent source for the right to effective counsel and, thus, a different standard for proving
ineffective counsel. You should research successful ineffective counsel claims in your state and look at
what standard the courts use.
40. See People v. Benevento, 91 N.Y.2d 708, 712, 697 N.E.2d 584, 587, 674 N.Y.S.2d 629, 632
(1998) (holding that the New York State Constitution guarantees meaningful but not perfect
representation, and that representation does not have to be “errorless”) (quoting People v. Aiken, 45
N.Y.2d 394, 398, 380 N.E.2d 272, 274, 408 N.Y.S.2d 444, 447 (1978)); see also People v. Droz, 39 N.Y.2d
457, 462, 348 N.E.2d 880, 882–83, 384 N.Y.S.2d 404, 407 (1976) (finding improper representation
where a lawyer failed to adequately prepare for trial, did not communicate with his client in a timely
manner, made no attempt to contact potential witnesses, and neglected to study the record); but see
People v. Young, 116 A.D.2d 922, 923, 498 N.Y.S.2d 667, 669 (3d Dept. 1986) (noting that the standards
from People v. Baldi and People v. Droz only apply to ineffective assistance during trial; evaluation of
attorney performance when the defendant has accepted a guilty plea rests on different grounds).
 It is important to note that once you claim ineffective assistance of counsel, you give up
attorney-client confidentiality with that attorney.41 This means once you file an ineffective
counsel claim against your lawyer, your lawyer can then reveal information that otherwise
would be kept secret. For example, your lawyer could cooperate with the prosecution by
turning over case files, or even testify for the prosecution against you.
3. Using a Claim of Ineffectiveness to Save a Procedurally Defaulted
Claim
Ineffective assistance of counsel claims can be very useful because they can be a way to
present claims that would otherwise be barred. As the various Chapters on attacking your
conviction explain, many issues must be “preserved” in order to be appealed.42 This means if
you or your lawyer did not object to certain issues during the trial, you cannot raise them on
appeal. However, if a claim is not preserved, often it can still be raised as part of an
ineffective counsel claim.43
Ineffective assistance claims are also useful in “procedural default” situations.
Procedural default happens when your claim is kept out of federal court because you have
not followed all the procedures in your state. In procedural default situations federal courts
will not hear your claim because you did not follow state procedures. If your claim has been
procedurally defaulted, you can often raise it as an ineffective counsel claim instead.44 In
addition, if any court has held that you have a procedurally defaulted claim, you can argue
that your lawyer’s ineffectiveness was “cause” for the default.45 As a general matter, if you
are raising a claim for the first time that should have been raised earlier, you should allege
that you did not raise the claim earlier because your attorney was ineffective.
To include a barred claim (a claim that is not preserved or is procedurally defaulted) in
an ineffective assistance of counsel claim, you must restate the issue by saying your lawyer
was ineffective for not properly arguing your claim. For example, if the wrong jury
instructions were given at trial, but that claim is barred because it was not raised at trial or
“preserved,” you can claim that your attorney was ineffective for not objecting to the jury
instructions. Remember, you still must prove that your attorney’s mistake deprived you of
your right to counsel because it negatively affected your trial. This means you must show
both that (1) by not objecting to the instructions, your attorney performed below the standard
attorneys are judged by; and (2) by not objecting, your attorney lost a chance to argue a claim
that would have succeeded. Here is an example of how to include a barred claim in an
ineffective counsel claim:

41. Model Rules of Prof’l Conduct R. 1.6(b)(5) (2004) (allowing that “[a] lawyer may reveal
information relating to the representation of a client to the extent the lawyer reasonably believes
necessary ... to respond to allegations in any proceeding concerning the lawyer’s representation of the
client”); Standards for Crim. Just. § 4-8.6(d) (1993) (“Defense counsel whose conduct of a criminal case
is drawn into question is entitled to testify concerning the matters charged and is not precluded from
disclosing the truth concerning the accusation to the extent defense counsel reasonably believes
necessary, even though this involves revealing matters which were given in confidence.”). Note that
this is not a complete waiver of confidentiality and does not allow for complete disclosure.
42. See JLM, Chapter 9, “Appealing Your Conviction or Sentence,” regarding preservation of
claims; JLM, Chapter 20, “Using Article 440 of the New York Criminal Procedure Law to Attack Your
Unfair Conviction or Illegal Sentence,” regarding errors of record in the trial; and JLM, Chapter 13,
“Federal Habeas Corpus,” regarding procedural default.
43. In Kimmelman v. Morrison, 477 U.S. 365, 384–85, 106 S. Ct. 2574, 2587–88, 91 L. Ed. 2d
305, 325–26, for example, the trial court refused to rule on the defendant’s motion to suppress evidence
because counsel’s motion was untimely. The defendant nonetheless ultimately obtained a hearing on
the merits of the suppression motion by raising a claim that his trial counsel was ineffective for failing
to make a timely suppression motion.
44. See Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
45. See JLM, Chapter 13 for an additional explanation of barred claims.
 (1) You believe your jury was selected in a racially discriminatory manner, but this issue
was not raised at trial or on direct appeal and now is procedurally barred;
(2) Argue that the discriminatory jury selection is the result of your lawyer failing to
object to the way in which the jury was selected and failing to select a racially
unbiased jury. Argue that your lawyer’s failure to correct or object to the
discriminatory jury selection fell below the reasonable standard of performance for
attorneys;
(3) Argue that this failure of your attorney meant you had a racially biased jury and,
because of the circumstances of your case, you were denied a fair trial as a result of
this jury selection error. Therefore, your lawyer’s failure to object to or raise this
claim resulted in prejudice, since there is a chance the outcome of your case would
have been different; and
(4) To summarize, your overall claim is that by not objecting to the racially
discriminatory way in which the jury was selected, your lawyer was ineffective
because his performance fell below the standard of objective reasonableness for
attorneys, and this resulted in a biased jury, which affected the outcome of your case.
A checklist for incorporating a barred claim into an ineffective counsel claim is:
(1) Identify the barred claim. Make sure the claim cannot be raised directly for
procedural reasons;
(2) Determine whether the claim is barred because of your lawyer’s ineffectiveness. Did
your lawyer not raise the issue at trial? Did your lawyer say or do something at trial
that lessened your chances of winning on the issue? Did your lawyer fail to raise the
issue on direct appeal?;46 and
(3) Argue that the reason the claim is barred is because of your lawyer’s ineffectiveness.
Then show that if your lawyer had not been ineffective in this way, this claim would
have succeeded. Remember you must plead both the “deficient performance prong”
and the “prejudice prong” of the Strickland test. Thus, you must both (a) point out
the specific failures of your counsel and (b) show that counsel’s failures to correct or
address the issue hurt your case.
Note that in addition to re-framing the barred claim as an ineffective counsel claim, you
should still raise the claim separately, alleging that counsel’s ineffectiveness constitutes
“cause and prejudice” for any procedural default.47
D. Common Ineffective Counsel Claims
Below are some of the most common ineffective counsel claims that have been pleaded
successfully. This does not mean that these claims are always successful or that this list
includes every possible ineffective counsel claim, so when you plead these claims, be sure to
check the case law in your state.
(1) Counsel is not qualified to practice law;48

46. Jackson v. Leonardo, 162 F.3d 81, 84–87 (2d Cir. 1998) is an excellent example of how to turn
a procedurally barred claim into a successful claim of ineffectiveness. In Jackson, the Court of Appeals
held that the defendant’s double jeopardy claim was procedurally barred, but granted relief on the
defendant’s claim that his appellate counsel was ineffective for failing to raise the double jeopardy
claim.
47. See, e.g., Williams v. Anderson, 460 F.3d 789, 799–801 (6th Cir. 2006) (finding that appellate
counsel’s ineffectiveness in raising trial-counsel ineffectiveness claim on direct appeal constituted
“cause and prejudice” for the procedural default that was caused thereby).
48. See United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990) (holding that “counsel” does not
include an individual who holds himself out as a lawyer but obtains admission to the bar under false
pretenses). See also Solina v. United States, 709 F.2d 160, 167–68 (2d Cir. 1983) (requiring per se
reversal where defendant was unaware that counsel was unlicensed to practice law in any state, and
 (2) Counsel had a conflict of interest;49
(3) Counsel failed to investigate50 or perform certain pretrial functions;51
(4) Counsel failed to properly select a jury;52
(5) Counsel failed to pursue defenses available to defendant;53
(6) Counsel did not properly advise defendant as to a plea;54

“the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to
legal ability, such as failure to pass a bar examination, or want of moral character”); but see
Waterhouse v. Rodriguez, 848 F.2d 375, 382 (2d Cir. 1988) (framing per se rule to exclude situation
where licensed attorney is unknowingly disbarred during trial).
49. See the discussion in Part C(1)(c) of this Chapter.
50. See Wiggins v. Smith, 539 U.S. 510, 535–38, 123 S. Ct. 2527, 2542–44, 156 L. Ed. 2d 471,
493–95 (2003) (holding decision of counsel not to expand investigation of petitioner’s life history for
mitigating evidence beyond pre-sentence investigation report and department of social services records
fell short of prevailing professional standards and amounted to ineffective assistance); Appel v. Horn,
250 F.3d 203, 215–18 (3d Cir. 2001) (finding counsel’s failure to investigate or prepare for the
petitioner's competency determination violated his right to effective assistance and merited granting
habeas corpus relief); Moore v. Johnson, 194 F.3d 586, 615–19 (5th Cir. 1999) (finding counsel’s error in
ignoring and failing to investigate certain evidence led to an unfair trial for defendant); Holsomback v.
White, 133 F.3d 1382, 1386–89 (11th Cir. 1998) (finding trial attorney's failure to investigate the
absence of medical evidence was unreasonable and constituted ineffective assistance of counsel); People
v. LaBree, 34 N.Y.2d 257, 259–61, 313 N.E.2d 730, 731–32, 357 N.Y.S.2d 412, 413–15 (1974) (finding
ineffective assistance based on counsel’s inadequate investigation and preparation); see also Henry v.
Poole, 409 F.3d 48, 67–72 (2d Cir. 2005) (finding counsel’s failure to investigate led counsel to present
alibi defense for the wrong date and bolstered an otherwise weak prosecution case).
51. See Kimmelman v. Morrison, 477 U.S. 365, 385–91, 106 S. Ct. 2574, 2588–91, 91 L. Ed. 2d
305, 326–29 (1986) (finding ineffective assistance of counsel where counsel failed to conduct any
pretrial discovery and failed to file timely motion to suppress illegally seized evidence); Gersten v.
Senkowski, 426 F.3d 588, 609–14 (2d Cir. 2005) (holding that attorney’s failure to seek medical expert
consultation for the defense or to investigate critical government evidence constituted ineffective
assistance of counsel); People v. Donovan, 184 A.D.2d 654, 654–56, 585 N.Y.S.2d 70, 71–72 (2d Dept.
1992) (ordering a new trial after attorney provided ineffective assistance of counsel by not moving to
suppress certain evidence and by failing to conduct an adequate investigation before the trial).
52 . See Johnson v. Armontrout, 961 F.2d 748, 755–56 (8th Cir. 1992) (finding ineffective
assistance where evidence showed that at least two jurors were biased since counsel failed to request
removal for cause of biased jurors); Hollis v. Davis, 912 F.2d 1343, 1350–52 (11th Cir. 1990) (finding
ineffective assistance where trial counsel failed to challenge the racial composition of a jury chosen in
1959 when African-Americans were systematically excluded from the list of potential jurors).
53. See Wilcox v. McGee, 241 F.3d 1242, 1246 (9th Cir. 2001) (finding ineffective assistance
where counsel failed to move at a second trial to dismiss an indictment barred by double jeopardy);
Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (holding that appellate counsel’s failure to raise the
obvious double jeopardy claim constituted ineffective performance); DeLuca v. Lord, 77 F.3d 578, 590
(2d Cir. 1996) (determining that counsel’s failure to pursue extreme emotional disturbance defense
constituted ineffective assistance when a reasonable probability existed that a jury would have found
this defense persuasive and would have reduced defendant’s liability from second degree murder to
first degree manslaughter).
54. The Court in Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209
(1985), held that the two-prong Strickland standard is “applicable to ineffective-assistance claims
arising out of the plea process.” Hill claimed his guilty plea was induced by false information as to his
parole eligibility. The Court held that in the case of a defendant claiming his guilty plea was the result
of ineffective assistance, the second prong of the Strickland test would be satisfied by showing “a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210
(1985); see also Meyers v. Gillis, 142 F.3d 664, 666–70 (3d Cir. 1998) (using the second prong of the
Strickland test, the Court found the defendant would be eligible for parole after seven years when law
required mandatory life sentence without possibility of parole); United States v. Hansel, 70 F.3d 6, 8
(2d Cir. 1995) (finding counsel provided ineffective assistance in plea bargaining when counsel failed to
inform defendant that charges against him were time-barred and defendant would not have pleaded
guilty but for counsel’s error). Courts have extended this reasoning to the “reverse-Hill” claim where a
 (7) Counsel failed to use important evidence or testimony at trial;55
(8) Counsel failed to object to improper use of evidence at trial;56
(9) Counsel failed to request proper jury instructions; 57
(10) Counsel failed to object to improper jury instructions;58
(11) Counsel failed to present or argue an appeal,59 or to present a meritorious issue on
appeal; and60

defendant claims that counsel’s ineffectiveness caused the defendant to proceed to trial when there is a
reasonable probability that if correctly advised the defendant would have accepted a plea offer. See
Mask v. McGinnis, 233 F.3d 132, 139–42 (2d Cir. 2000) (finding that reasonable probability that the
defendant would have accepted a plea if counsel effectively advised him constitutes ineffective
assistance of counsel); United States v. Gordon, 156 F.3d 376, 381–82 (2d Cir. 1998) (finding that the
large disparity between “the actual maximum sentencing exposure under the Sentencing Guidelines
and the sentence exposure represented by defendant's attorney” indicates that a reasonable probability
exists that had the defendant’s counsel properly advised him, the proceedings would have gone
differently); Boria v. Keane, 99 F.3d 492, 496–99 (2d Cir. 1996) (finding defendant prejudiced when
counsel failed to advise defendant of improbability of acquittal or benefits of accepting guilty plea with
reduced sentence because defendant’s trial sentence was at least twice as long as sentence offered in
plea); but see Purdy v. United States, 208 F.3d 41, 46 (2d Cir. 2000) (finding that although attorney
should inform each client of the probable costs and benefits of accepting a plea bargain, he need not
advise client explicitly to either plead guilty or not).
55. See Lindstadt v. Keane, 239 F.3d 191, 201–02 (2d Cir. 2001) (finding ineffective assistance in
part because trial counsel made no effective challenge to the only physical evidence of sexual abuse,
which consisted of expert testimony based on unnamed studies which were essentially unchallenged at
trial and controverted by other easily available, published studies); Pavel v. Hollins, 261 F.3d 210, 216–
26, 223, 228 (2d Cir. 2001) (finding ineffective assistance where trial counsel did not prepare a defense,
failed to call two important fact witnesses, and did not call a medical expert); Brown v. Myers, 137 F.3d
1154, 1156–58 (9th Cir. 1998) (finding ineffective assistance when counsel failed to investigate and
present testimony supporting petitioner’s alibi); Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir. 1989)
(finding defense counsel's failure to procure alibi witnesses was ineffective assistance of counsel);
People v. Jenkins, 68 N.Y.2d 896, 897, 501 N.E.2d 586, 586–87, 508 N.Y.S.2d 937, 937–38 (1986)
(finding that failure to use crucial evidence, if due solely to attorney’s erroneous assumption of its
inadmissibility, may be so prejudicial as to be ineffective assistance of counsel); People v. Riley 101
A.D.2d 710, 711, 475 N.Y.S.2d 691, 692–93 (4th Dept. 1984) (finding failure to impeach prosecution
witnesses with available records of prior testimony contributed to ineffective assistance of counsel).
56. See Kimmelman v. Morrison, 477 U.S. 365, 385–87, 106 S. Ct. 2574, 2588–89, 91 L. Ed. 2d
305, 326–27 (1986) (finding ineffective assistance when counsel failed to move to suppress evidence
because of counsel’s failure to investigate); Tomlin v. Myers, 30 F.3d 1235, 1237–39 (9th Cir. 1994)
(finding counsel ineffective for failure to move to suppress lineup identification evidence); People v.
Wallace 187 A.D.2d 998, 998–99, 591 N.Y.S.2d 129, 130 (4th Dept. 1992) (finding attorney’s failure to
object to admission of evidence was ineffective assistance); People v. Riley 101 A.D.2d 710, 711, 475
N.Y.S.2d 691, 692–93 (4th Dept. 1984) (finding failure to object to inadmissible hearsay evidence, and
lack of preparation and the pursuit of a highly prejudicial cross-examination constituted ineffective
assistance).
57. See People v. Norfleet, 267 A.D.2d 881, 883–84, 704 N.Y.S.2d 146, 148 (3d Dept. 1999)
(finding ineffective assistance where counsel failed to seek jury instructions for lesser offense); People v.
Wiley, 120 A.D.2d 66, 67–68, 507 N.Y.S.2d 928, 929 (4th Dept. 1986) (finding an attorney who fails to
request an alibi charge may be found ineffective).
58. See Cox v. Donnelly, 432 F.3d 388, 390 (2d Cir. 2005) (finding that counsel’s repeated failure
to object to erroneous jury instruction constituted ineffective counsel); Everett v. Beard, 290 F.3d 500,
513, 515–16 (3d Cir. 2002) (holding that counsel performed deficiently by failing to object on due
process grounds to jury instruction which explicitly permitted jury to convict defendant of first degree
murder if his accomplice intended to cause the death of the victim); Gray v. Lynn, 6 F.3d 265, 269, 271–
72 (5th Cir. 1993) (finding counsel fell below objective standard of reasonable assistance, thereby
providing ineffective assistance, where counsel failed to object to erroneous jury instructions regarding
elements of first degree murder).
59. See Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029, 1038, 145 L. Ed. 2d 985, 999–
1000 (2000) (finding that defendant was entitled to effective assistance of counsel when deciding
whether to file a notice of appeal, but that he must show a reasonable probability that but for counsel’s
 (12) Counsel’s conduct at trial was simply so bad as to be ineffective;61
E. Conclusion
Ineffective assistance of counsel can be a very useful claim for prisoners who had
inadequate legal representation at trial or on direct appeal. It can also be useful for prisoners
who face procedural problems with some of their appellate claims. When you bring your
ineffective counsel claim, it is important to check the relevant Chapters of the JLM and other
sources to make sure you are using the right procedure. Your ineffective counsel claim will
have a better chance of success if you make sure to show the court all the specific reasons
why your lawyer performed poorly, and all of the ways in which this inadequate
representation prejudiced the outcome of your case.

errors, he would have filed the appeal); Garcia v. United States, 278 F.3d 134, 137–38 (2d Cir. 2002)
(finding ineffective assistance of counsel where counsel incorrectly advised defendant on the record that
he could not appeal and district court confirmed that advice); United States v. Phillips, 210 F.3d 345,
350–52 (5th Cir. 2000) (finding that counsel’s failure to appeal an obstruction of justice sentencing
enhancement constituted ineffective assistance); Castellanos v. United States, 26 F.3d 717, 719–20 (7th
Cir. 1994) (finding attorney provides ineffective assistance of counsel in failing to appeal conviction
following a guilty plea if the prisoner told his lawyer to appeal in a timely manner); United States v.
Peak, 992 F.2d 39, 41–42 (4th Cir. 1993) (finding that counsel’s failure to file for appellate review when
requested by defendant deprives defendant of 6th Amendment right to assistance of counsel even if he
would have not been likely to win on appeal); United States v. Horodner, 993 F.2d 191, 195–96 (9th Cir.
1993) (finding ineffective assistance of counsel which prejudiced the defendant if the defendant did not
agree to waive the appeal); Bonneau v. United States, 961 F.2d 17, 18–19, 22–23 (1st Cir. 1992)
(finding that direct appeal was dismissed due to ineffective counsel, as the attorney never filed an
appeal and the defendant therefore never had his constitutionally granted opportunity to appeal);
People v. Stokes, 95 N.Y.2d 633, 638–39, 744 N.E.2d 1153, 1156, 722 N.Y.S.2d 217, 220 (2001) (finding
defendant’s right to appellate counsel was not adequately safeguarded because the brief submitted by
appellate counsel contained no reference to the evidence or to defense counsel's objections at trial and
made clear that counsel did not act like an advocate on behalf of the client); People v. Vasquez, 70
N.Y.2d 1, 3–4, 509 N.E.2d 934, 935, 516 N.Y.S.2d 921, 922 (1987) (finding that defense counsel’s
identification of points as being “without merit” in appellate brief, though defendant wished to raise
them on appeal, denied defendant effective assistance of counsel).
60. E.g., Ballard v. United States, 400 F.3d 404, 407–10 (6th Cir. 2005) (holding appellate
counsel ineffective for failing to raise meritorious argument that sentence enhancement by judge
violated right to jury trial).
61. This kind of general argument is very hard to make successfully. Your claim must include
specific information about why your counsel’s conduct was not acceptable. See Tippins v. Walker, 77
F.3d 682, 687–90 (2d Cir. 1996) (finding ineffective assistance where attorney slept through substantial
portions of the trial such that judge interrupted proceedings to reprimand attorney); Burdine v.
Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (finding ineffective assistance because counsel was
unconscious during substantial portions of trial, leaving the petitioner without representation during
critical stages of the trial); People v. Huggins, 164 A.D.2d 784, 786–87, 559 N.Y.S.2d 720, 721–22 (1st
Dept. 1990) (finding ineffective assistance where attorney was an alcoholic who had once been
disbarred for twenty years and was confused and inattentive at trial).
A Jailhouse Lawyer’s
Manual

Chapter 13:
Federal Habeas Corpus

Columbia Human Rights Law Review

8th Edition 2009
 LEGAL DISCLAIMER

A Jailhouse Lawyer’s Manual is written and updated by members of the Columbia

Human Rights Law Review. The law prohibits us from providing any legal advice to
prisoners. This information is not intended as legal advice or representation nor should you
consider or rely upon it as such. Neither the JLM nor any information contained herein is
intended to or shall constitute a contract between the JLM and any reader, and the JLM
does not guarantee the accuracy of the information contained herein. Additionally, your use
of the JLM should not be construed as creating an attorney-client relationship with the JLM
staff or anyone at Columbia Law School. Finally, while we have attempted to provide
information that is up-to-date and useful, because the law changes frequently, we cannot
guarantee that all information is current.
 CHAPTER 13

Federal Habeas Corpus*

A. Introduction
This Chapter explains an important right—the writ of habeas corpus (“habeas corpus”)—
that is guaranteed by the Constitution for prisoners who believe they have been wrongfully
convicted. As a prisoner, you can challenge your conviction or sentence by petitioning for a
writ of habeas corpus in federal court. By petitioning for a writ, you are asking the court to
determine whether your conviction or sentence is illegal. A writ of habeas corpus can be very
powerful because if the court accepts your argument, it can order your immediate release, a
new trial, or a new sentencing hearing. This Chapter will teach you more about federal
habeas corpus and how to petition for it. Part A will introduce and explain a few basic
concepts about federal habeas. The rest of the chapter will go into more detail.
1. What Is Habeas Corpus?
Habeas corpus is a kind of petition that you can file in federal court to claim that your
imprisonment violates federal law.1 Whether you are a state or federal prisoner, a federal
habeas petition claims that your imprisonment is illegal because your arrest, trial, or
sentence violated federal law. This would be true if any aspect of your arrest, trial, or actual
sentence violated a federal statute, treaty, or the U.S. Constitution. If you believe that your
imprisonment violates federal law, you can file a habeas petition regardless of whether your
trial was in state court or federal court, and regardless of whether you are in a state prison
or a federal prison. However, as you will learn in this Chapter, state prisoners and federal
prisoners will have to go through different processes for filing habeas petitions. State
prisoners may also find it more difficult than federal prisoners to win a habeas claim. In both
cases, a federal habeas petition claims that your imprisonment is illegal because your arrest,
trial, or sentence violated federal law.
Understanding what a habeas petition is not is important. A habeas petition is not a
“direct appeal” of your conviction. A direct appeal usually is when you ask the state or
federal appeals court (the court above the trial court in which you were convicted) to review
the objections you or your lawyer made during the trial. To learn more about direct appeals,
read JLM Chapter 9, “Appealing Your Conviction or Sentence.” Federal habeas is a different
kind of appeal. It is called a “collateral appeal” because you are claiming a mistake during
your trial or sentencing violated federal law and you are basing this claim on evidence that
you probably did not present at your trial. You can only make a habeas claim after making
other appeals.
If you are a state prisoner and lose your direct appeal, your state will have another
appellate procedure you can follow to challenge your conviction. This procedure is usually
called either “state post-conviction proceedings” or “state habeas corpus.” State habeas

* This Chapter was revised by Bridget Kennedy based on earlier versions by Archana Prakash, Edward
Smock, Jennifer H. Lin, Reena Sandoval, Allison Rutledge-Parisi, Miriam Lefkowitz, William Duffy,
and Mark Sanders. Special thanks to Carrie Ellis, Ryan Marks, and Ronald Tabak.
1. A habeas challenge is a civil action, not a criminal action. It is an action that you bring against
the government. Therefore, in habeas petitions, the prisoner is often referred to as the “plaintiff,”
“petitioner,” or “complainant.” For clarity, this Chapter often refers to the prisoner bringing the habeas
petition as the “defendant.”
corpus is the same thing as a state post-conviction appeal; it is a remedy the state you were
convicted in provides, and is based on that state’s statutes.2
If you are a state prisoner, you will need to “exhaust” your state remedies before being
able to file a federal habeas petition. This means that you will only file a federal habeas
petition if you have already lost your state direct appeal and your state post-conviction
proceedings. In your federal habeas petition, you can ask the federal court to review the
claims that you brought in your direct appeal and your post-conviction proceedings in state
co