A direct appeal is the most direct form of post‑conviction challenge to the validity of a criminal conviction.  It can take from one to two years to complete a direct appeal from a felony conviction, and from three to six months, occasionally more, to complete a misdemeanor appeal.

 

            During its pendency, a direct appeal prevents a conviction from being considered a final judgment of conviction, and thus it does not yet exist for immigration purposes.[105]  The BIA has recently decided that filing a late notice of appeal is ineffective to defeat the finality of a conviction, for purposes of beginning removal proceedings, even if the criminal court accepts it and begins a late appeal.  See § 6.21, infra.  A successful appeal can result in the complete vacating of the judgment of the trial court, and thus eliminate a conviction entirely for immigration purposes, even if the conviction is for a narcotics offense.

 

            The defendant may not argue on direct appeal that his guilty plea was not knowing or intelligent where the factual basis giving rise to the grounds to withdraw the guilty plea was known prior to entry of judgment, and the defendant failed to move to withdraw his plea in the trial court pursuant to Penal Code § 1018.[106]

[105] Matter of Ozkok, Int. Dec. 3044 (BIA 1988); Matter of Jadusingh, No. A29 847 544 (BIA 1998)(guilty plea conviction on appeal not sufficiently final to permit underlying facts to be used to establish inadmissibility for reason to believe noncitizen had been a drug trafficker).  An INS regulation provides that for a conviction to exist, all direct appeal rights must have been exhausted or waived, or the appeal period must have elapsed.  See 8 C.F.R. § 242(b) (defining conviction for purposes of the mandate to expeditiously deport convicted aliens, INA § 242(i), 8 USC § 1252(i)).  See also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998)(en banc), separate opinion of Board Member Rosenberg concurring and dissenting, for a comprehensive discussion of the finality requirement.

[106] People v. Turner (2002) 118 Cal.Rptr.2d 99, 96 Cal.App.4th 1409.

BIA

BIA: Conviction is Final even though it's on Late Appeal"But Casts Doubt on Whether Finality is Still Required
The BIA today released a split decision holding that a late appeal of a criminal conviction does not undermine the conviction's finality. Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009). In Cardenas-Abreu, the BIA considered an appeal of a New York state criminal conviction for first degree burglary, NY Penal 140.30. The respondent failed to appeal his conviction within the 30 days allowed by New York's criminal procedure laws to file a direct appeal of a criminal conviction. Meanwhile, DHS initiated removal proceedings and the respondent was ordered removed due to his conviction. After being ordered removed, the respondent requested permission from a New York state court to file a late appeal pursuant to NY Crim. Proc. 460.30 which allows an appellate court to extend the time in which to file an appeal. The request was opposed by the prosecutor, but the New York court nonetheless allowed the respondent to file a late appeal of his criminal conviction. The BIA, therefore, was essentially charged with determining whether the existence of a late appeal means that the conviction is not final. After noting that Congress first defined the term conviction when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Board turned to its interpretation of Congress's intent in enacting IIRIRA: Congress intended to prevent the immigration laws from being 'dependent on the vagaries of State law' when it defined the term 'conviction' in section 101(a)(48)(A) of the Act. Matter of Cardenas-Abreu, 24 I&N Dec. at 802. Because allowing the pendency of a late appeal under New York's deadline extension statute would create[] significant uncertainty and delay in reaching an ultimate resolution regarding the existence of an otherwise final conviction, the Board concluded that the respondent's late appeal has no impact on the finality of his conviction. Matter of Cardenas-Abreu, 24 I&N Dec. at 802. Does INA Even Require Finality After IIRIRA? Several members wrote separate opinions to address an outstanding question that the majority opinion explicitly avoided deciding: Does the IIRIRA definition of conviction"found at INA 101(a)(48)(A)"require finality to serve as the basis for removal? This issue is being considered by federal courts and has enormous implications for immigrants facing removal because of criminal convictions. For its part, the majority suggested that finality is required: The legislative history of the IIRIRA accompanying the adoption of the definition of a conviction gave no indication of an intent to disturb this principle that an alien must waive or exhaust his direct appeal rights to have a final conviction. With this backdrop regarding the broad context of this issue and the statute, a forceful argument can be made that Congress intended to preserve the long-standing requirement of finality for direct appeals as of right in immigration law. Matter of Cardenas-Abreu, 24 I&N Dec. at 798 (internal citations omitted). Board Member Greer, in a lengthy dissenting opinion joined by Board Members Neal, Miller, Hess, Adkins-Blanch, and Wendtland, argued that INA 101(a)(48)(A) requires that a conviction must be final if it is to be used to remove a non-citizen from the country. Matter of Cardenas-Abreu, 24 I&N Dec. at 811 (Greer, dissenting). Similarly, in a concurring opinion, Board Member Grant explained that the 'finality' requirement does still apply to cases where a direct appeal is pending or direct appeal rights have not been exhausted. Matter of Cardenas-Abreu, 24 I&N Dec. at 802 (Grant, concurring). In contrast, Board Member Pauley, joined by Board Member Cole, explained at length that INA 101(a)(48)(A) contains no finality requirement. Matter of Cardenas-Abreu, 24 I&N Dec. at 810 (Pauley, concurring).

Second Circuit

POST CON RELIEF " CONVICTION " FINALITY " DIRECT APPEAL " PENDING APPEAL RENDERS A CONVICTION NONFINAL, SO IT CANNOT BE A BASIS FOR DEPORTATION IN IMMIGRATION PROCEEDINGS
Walcott v. Chertoff, 517 F.3d 149, 155 (2d Cir. 2008) (pendency of a direct appeal from a criminal conviction renders the conviction nonfinal and suspends an aliens deportability.)

Ninth Circuit

POST CON RELIEF " FEDERAL " DIRECT APPEAL
United States v. Buckles, ___ F.3d ___, 2011 WL 2150992 (9th Cir. Jun. 2, 2011)(order recalling appellate court's mandate did not restart the clock for the 90"day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal).

Other

CAL POST CON " APPEAL FROM VACATUR " TRIAL COURT LOSES JUJRISDICTION PENDING APPEAL
People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473 (trial court cannot make any order while a criminal case is pending in the court of appeal: "Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus, action by the trial court while an appeal is pending is null and void. [Citations.] Indeed, `[s]o complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.' [Citation.]").