Federal Appeals

Just because you have been sentenced does not mean you must stop fighting. You may have the right to appeal your conviction and sentence, regardless of whether you were found guilty at trial or if you plead guilty. Patrick K. Nightingale understands federal appellate law and can help you.

Did the trial court make a legal error that affected the verdict or the sentence in your case? If the mistake was important, the conviction or sentence may be reversed, or a new trial could be awarded. Or, if the Judge made other errors, you could be entitled to a new sentencing hearing or the sentence could be reduced. Fresh eyes can make all the difference. It is critical to hire an attorney who understands the law relating to appeals and the procedures that apply to these cases.

Mr. Nightingale is also sworn into the Supreme Court of the United States. If you are unhappy with the result of an appeal from any Circuit Court in the United States or any State Supreme Court decision, contact Mr. Nightingale now to learn more information on filing a Petition for Writ of Certiorari in the Supreme Court of the United States.

When you need a Pennsylvania criminal defense attorney to represent you in an appeal from a sentence or conviction in the United States Court of Appeals, contact Patrick K. Nightingale. To arrange a consultation, please give us a call at 412-454-5582.


Habeas Corpus

You may challenge your case on appeal by filing a petition for habeas corpus under 28 U.S.C. § 2254 with the United States federal courts. If you file a petition for habeas corpus in federal court, you essentially claim that the Commonwealth of Pennsylvania did not afford you your minimally guaranteed federal constitutional rights. A pending petition for habeas corpus takes the case out of the hands of Pennsylvania and allows an independent review of the matter by a court that is not bound by Pennsylvania procedure. However, not everyone is eligible for a meritorious review of their § 2254 petitions.

Under 28 U.S.C. § 2254, a person in custody of the Commonwealth pursuant to a criminal conviction by the Commonwealth may generally only file a petition under § 2254 if imprisoned in violation of the United States Constitution, United States laws, or United States treaties. You cannot petition the federal court for relief on the grounds that you are being held in violation of the Pennsylvania Constitution or Pennsylvania laws alone. Only an alleged violation of federal law, including the United States Constitution, would be eligible to merit review by a federal district judge. This means that even if your conviction and sentence were found legal under Pennsylvania law, a federal court could override the Pennsylvania conviction.

If your Pennsylvania criminal appeals attorney believes you may have a valid claim for relief under federal law, you may be eligible to file a petition under § 2254 if the following are applicable:

  • You have exhausted your remedies under state law—that is, you have already taken your direct appeal, petitioned for review with the Supreme Court of Pennsylvania, and filed a petition under PCRA
  • There was a general absence of state process—that is, you were jailed without a trial or the process failed to protect your rights. This standard is generally no longer used, but it was prevalent in years past when due process of law was denied to offenders on account of their race or the nation was at war.

The federal court may grant your petition for meritorious review in the following circumstances:

  • The decision of the state court was clearly contrary to federal law—that is, you were jailed for burning the American flag under a fictitious or unconstitutional Pennsylvania statute, but federal case law clearly states that such actions are protected as free speech under the Constitution
  • The decision of the state court was unreasonable in light of the facts and evidence presented in the proceeding—for example, a sham case with evidence that the police likely planted because you are in the process of suing the Commonwealth.

With habeas corpus petitions, the burden of proving the facts is on you, unlike when you were prosecuted in state court. During federal petition procedures, determinations of fact by the state court are presumed correct. Your appellate attorney must rebut this presumption of truth with evidence to succeed in overturning an erroneous verdict. The burden shifts once the conviction becomes final, and your attorney must present evidence sufficient to show that no reasonable fact finder—that is, the Pennsylvania trial judge or jury—would have found you guilty of the underlying offense.

If you present facts and legal arguments in your § 2254 petition sufficient to raise a question as to the legality of your conviction, whether because of the evidence with the petition or a recent United States Supreme Court decision that effectuated a change in law, the federal judge is supposed to grant you an evidentiary hearing. Patrick K. Nightingale has the experience needed to pick up your case at the evidentiary stage if you have already submitted your petition.

The standards are similar for federal prisoners, who must generally exhaust their appellate remedies through the Federal Court of Appeals and petition the United States Supreme Court for review before filing a petition for habeas corpus under 28 U.S.C. § 2255. As they are already federal prisoners, however, they do not have the added benefit of petitioning another court system, such as the Pennsylvania Superior Court, for relief.

A federal prisoner, however, may get a sentence reduced by more than 50 percent, even if the sentence would fall below federal sentencing minimums.

Sentencing Reductions

Federal Rule of Criminal Procedure 35(b) allows the government (or its prosecuting attorney) to ask the court to reduce your sentence by a certain percentage if, after sentencing, you provided the government with substantial assistance in either investigating or prosecuting another person. This can take the form of providing evidence about another crime, helping with an undercover prison investigation, or acting as a witness for the prosecution in another criminal matter. Typically, the court will hold a sealed hearing on the Rule 35(b) motion that allows both sides to argue their cases if the defendant wants a greater reduction than that proposed by the prosecution. A qualified Pennsylvania criminal defense attorney can help expedite this process, especially in situations where the prosecution needs to be reminded of your assistance and the need to file a timely Rule 35(b) motion. You may be eligible for Rule 35(b) relief even years after your initial sentencing under the following circumstances:

  • The information provided was not known to the defendant until after a year, meaning it may be something you learned in prison
  • The information was provided within a year of sentencing, but the government did not use the information until after that time
  • The offender had that information at the time of sentencing but could not have anticipated it would be useful until after one year and the information is promptly provided to the government

Direct Appeals

Pennsylvania provides for two types of appeals: a direct appeal and a petition under the Post Conviction Relief Act (PCRA).

A direct appeal is an appeal as of right, meaning that the Superior Court of Pennsylvania is required to hear and review your case provided you file it in a timely manner. The state Supreme Court is not required to review an appeal as of right unless a capital sentence was issued. Accordingly, be leery of claims that an attorney will take your case “all the way to the Pennsylvania Supreme Court.”


Petitions under PCRA, however, are not appeals as of right. According to the chartering legislation, PCRA petitions are designed to provide a potential avenue of relief for people who are actually innocent, wrongfully convicted of their crimes, or are serving illegal sentences. Petitions under PCRA are now the sole means by which a convicted person may petition for collateral relief outside of a petition for a writ of habeas corpus to the federal courts under 28 U.S.C. § 2254. While nearly all criminal convictions in the Commonwealth qualify for a direct appeal, for PCRA eligibility the following conditions must exist:

  • You were convicted of a Pennsylvania criminal offense
  • You are currently serving your sentence or are on probation or parole for the same
  • Your conviction resulted from a violation of constitutional law, ineffective assistance of counsel, a coerced plea, or obstruction of justice by a government official during the direct appeals process
  • Exculpatory evidence was since revealed
  • The sentence you received was greater than the lawful maximum, or the tribunal that convicted you did not have the jurisdiction to do so
  • You did not previously litigate or waive the specific allegation of error set forth in the PCRA petition
  • The decision not to set forth or litigate the error so alleged was not a tactical or strategic one on the part of the litigating attorney

Even if a person convicted meets the above-referenced standards, a petition under PCRA may still be denied if it is not filed in a timely manner.

Appellate procedure is complex, and if you do not hire an experienced Pennsylvania criminal appeals attorney immediately after your conviction you may unwittingly preclude your ability to file a PCRA petition. By raising and dismissing an issue on a direct appeal that may later form the crux of a PCRA petition, you may forfeit your right to relief. Patrick K. Nightingale has successfully handled both direct appeals and PCRA petitions for years.

In a direct appeal, lawyers may appeal all of the issues from your pre-trial motions, trial, guilty plea, and sentencing with a specific focus on errors of law. Appellate judges are not quick to overrule matters left to the discretion of the trial judge, and choosing the right appellate strategy for you based on experience and knowledge of Pennsylvania Superior Court procedure is an essential part of how Patrick K. Nightingale will handle your case.

If your criminal defense attorney lost your case at trial, then his appellate strategy may not differ from his losing trial strategy. Fresh eyes can make all the difference—so hire an attorney who understands the law relating to appeals and the procedures that apply to these cases.

Unlike at a trial, the issue on appeal generally is whether the trial court made a legal error that affected the verdict or the sentence in your case. If the mistake was important, the Pennsylvania Superior Court or Pennsylvania Supreme Court could reverse your conviction or sentence or order a new trial. Or, if the judge made other errors, you could win a new sentencing hearing or get the sentence reduced.

Making a claim for ineffective assistance of counsel is difficult because the standard for ineffectiveness is extremely high. Erroneous legal advice may enable a claim of ineffective assistance of counsel. For example, if your attorney did not explain to you the consequences of a plea bargain, such as deportation, this can constitute ineffective assistance. You may need to review your file with an appellate attorney familiar with ineffective assistance standards to determine whether your claim is valid and whether to pursue a direct appeal or through PCRA.

Generally, you are only permitted one direct appeal and one PCRA petition after your sentence. Complex issues of law may send your case up and down the appellate chain for adjudication over the course of many years. If your direct appeal, your petition for review to the Pennsylvania Supreme Court, and the PCRA are all denied, the case is effectively closed.

There is, however, another means about which you may be heard.

Pardons in Pennsylvania

If you have exhausted each post-conviction remedy available to you either via the Commonwealth or federal law, your last option is to seek a pardon from the governor of Pennsylvania through the Board of Pardons. It is not a prerequisite that you exhaust all remedies before seeking a pardon, but the governor may deny you a hearing if you have not done so. The Governor, however, is only authorized to grant a pardon with a favorable recommendation by the Board of Clemency as a safeguard to ensure that pardons are not granted arbitrarily to those whom the Governor may favor. To seek executive relief, you must file an application with multiple agencies, including the Board of Probation and Parole. These agencies will investigate the facts of your case and prepare a report personalized to you. Patirck K. Nighingale can help you gather evidentiary support for your application in accordance with those factors generally considered by the Board of Pardons. This evidence should include:

  • Information regarding your residence—that is, mortgage and rent, where you will live if release
  • Information regarding your family status, including marriages, divorces, children
  • Information regarding employment and income sources, including any alimony owed
  • Your liabilities, including debt and child support arrears
  • Information regarding your membership in any organizations—that is, church or a softball league
  • Your travel, employment, and educational history
  • Information regarding any military service and discharge
  • Community and reputation references, including letters of support

Even if you are denied, you still have the opportunity to request reconsideration in certain circumstances or even reapply for clemency after a set amount of time has elapsed.

Patrick K. Nightingale represents individuals seeking new counsel to their handle criminal appeals in Pennsylvania. Whether it is a direct appeal to a higher Pennsylvania court, a petition for review with the Pennsylvania Supreme Court, a petition for post-conviction relief, or a § 2254 petition to a federal court, Mr. Nightingale has represented many persons in appeals from their convictions and sentences.


Incredible representation! He updated me regularly and treated me with respect. He's a real gem. I absolutely would recommend this attorney to others.

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Honest, hardworking, dependable. Goes all out for clients!!!! A++++

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Free at last! Thank you PKN law.

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Call us at (412) 454-5582 for a free consultation.