Appeals/Post Conviction 2017-07-12T16:14:05+00:00

Practice Area



Mr. Winston is an experienced Louisiana appeals lawyer. His appellate and post-conviction practice focuses on correcting serious injustices and mistakes that were made at trial. Mr. Winston has experience with federal appeals and state appeals.


In Louisiana, a criminal case can have as many as three major phases – the trial, the appeal, and post-conviction/habeas relief. Not all criminal cases go through all three phases, as some cases can end or be resolved before the next phase is reached.

First, there is the trial phase. If your case cannot be resolved by a dismissal or a negotiated plea agreement, your case will head to trial. Both sides can put on witnesses and evidence before a judge or a jury at trial. The state, or the U.S. government in a federal case, has the burden to prove beyond a reasonable doubt that you committed the crime(s) they are alleging. Because the burden is on the prosecution, the defense is not required to, but may if it so chooses, put on its own evidence as well. If the defense feels that the State has not carried its burden of proof, it can simply rest on the presumption of innocence guaranteed to every defendant without putting on a separate defense case.

If you’re acquitted, then your case is over. Neither the State nor the Federal Government can generally appeal an acquittal. If you’re found guilty, however, you will then be sentenced sometime after that and the trial portion of your case concludes. You must then motion the trial court to appeal your conviction to initiate your appeal with the appellate court.


The second phase of a criminal case is an appeal following conviction. If you are in state court and you are convicted or plead guilty, your first appeal is to one of five courts of appeal in Louisiana. If you lose or the state loses in the court of appeal, a writ of certiorari may be taken to the Louisiana Supreme Court. The Louisiana Supreme Court may, but is not required to, hear your case. They can simply refuse to accept and hear the case and that exhausts your remedies in the Louisiana appellate court system.

Essentially, the same process exists for federal courts in Louisiana – there are three districts: Western, Middle and Eastern, and all of them have appeals heard in the same court, the Fifth Circuit Court of United States Appeals.

In your appeal, you are seeking to show what errors were made during the trial phase. Not only must you show that an error of law or fact was committed, but that the error had an appreciable effect on the outcome of your case. This is what is known as the “harmless error” rule in Louisiana criminal cases.

The harmless error rule often results in Louisiana appellate decisions where the appellate court concludes that an error was committed but finds it to be “harmless” and does not grant you any relief. In other words, the appellate court finds that correcting the error still would not have affected your case given the other evidence against you. Thus, to get relief on appeal you must demonstrate that an error was committed and that the error affected the outcome of your case.

Appellate courts also show deference to credibility determinations made at the trial court level. For example, if a witness testifies and the jury found the witness to be credible, the appellate court will not overturn that determination, even if you personally disagree with that determination, absent a clear and manifest error. Overall, courts are often reluctant to reverse criminal convictions or reduce sentences imposed by district court judges.

Post-Conviction Relief/Habeas Applications

The third phase of a criminal case (if unsuccessful at trial and on appeal) is the post-conviction relief phase in Louisiana, which is also referred to as habeas corpus on the federal level and in some other states. There are confusing and unforgiving timelines when it comes to post-conviction relief applications in Louisiana.

Post-conviction relief or habeas corpus is designed to be a relief of last resort and is generally not meant to address issues already litigated at trial or on appeal. Instead post-conviction relief is meant to address constitutional violations that have not previously been raised but that demonstrate that you did not receive a fair trial or were wrongly convicted.

Post-conviction relief claims are often based on newly discovered evidence that was not available or obtainable through reasonable due diligence at trial. This includes things like:

  • New DNA evidence or other forensic evidence not introduced at trial
  • Evidence that the prosecutor failed to hand over exculpatory evidence
  • New witness affidavits of people admitting that they lied at trial or otherwise have new relevant information that was not previously available.
  • New evidence that the defendant lacked the mental capacity to stand trial

The other main type of post-conviction relief claims is ineffective assistance of counsel claims where it can be shown that your trial attorney was grossly incompetent. This type of claim requires a detailed review of the record of your case and often includes the hiring of an investigator and experts to support your claims.

***This page is informational only and does not constitute legal advice. Each case is different and you should consult an attorney to get advice for your specific case.

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