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(Alternative Guide for Pro-se Litigants)

I. Direct Appeal Process:

A. Direct appeal:

Scope and purpose: Constitutes the primary vehicle designed to contest the legality of criminal convictions and sentences.

Limited to review of claims which involve facts which can be determined from the face of the trial record.
Claims which can be asserted on direct appeal, must be asserted on direct appeal, including claims of ineffective assistance of trial counsel, (that is, if the claim is limited to and involves facts evident from the face of the record).
Claims which could have been raised on direct appeal, but which were not, cannot be raised during a later proceeding due to waiver, forfeiture, and res judicata.

2. Time to file: Defendants have 30 days from the date of sentencing to file a notice of intent to appeal.

The failure to timely perfect an appeal, (e., file a timely notice of intent to appeal), deprives the court of appeals of jurisdiction to entertain a case.
Lack of knowledge regarding time limitations and vehicle uses is never a valid excuse.

Time to file: Defendants have 30 days from the date of sentencing to file a notice of intent to appeal.

The failure to timely perfect an appeal, (e., file a timely notice of intent to appeal), deprives the court of appeals of jurisdiction to entertain a case.
Lack of knowledge regarding time limitations and vehicle uses is never a valid excuse.

B. Application for Reconsideration:

Scope and purpose: Provides a forum to request an appellate panel to reconsider their decision.
Time to file: Due within 10 days of the date of the direct appeal decision denying relief.
- Generally limited to claims that the panel failed to consider a claim; the panel failed to fully consider a claim; supervening authority establishes the merit of a claim; or the panel decision creates an inner district split, (e., split within the district concerning the merits of the issue).
- Filed pursuant to Ohio App. R. 26(A).

C. Application for Reconsideration En Banc:

Scope and purpose: Provides a forum to obtain review by the entire court, involving every sitting appellate judge in the district, contingent upon proof that the panel decision creates an intra-district split.
Time to file: Time to file: Due within 10 days of the direct appeal decision denying relief.
Filed pursuant to Ohio App. R. 26(A).

D. Motion to Certify Conflict:

Scope and purpose: Provides a forum to obtain further review contingent upon proof that the panel decision conflicts with the decision of a panel decision from another district on a pure question of law.
Time to file: Must be filed within 10 days of the date the direct appeal was denied.
Filed pursuant to Ohio App. R. 25(A).
If granted, review of the entire case by the Ohio Supreme Court is automatic.

E. Application for Ohio Supreme Court Review:

Scope and purpose: Provides a forum and opportunity to secure review of the claim on the Ohio Supreme Court.
Time to File: A memorandum in support of a request to accept jurisdiction must be filed within 45 days of the judgment to be appealed.

Appeals as of right to the Ohio Supreme Court: Limited to appeals from a decision of a court of appeals in which the death penalty has been affirmed; appeals from the decision of a court of appeals under App. R. 26(B) in a capital case; appeals from a decision of a court of appeals in cases that originated in the court of appeals and that invokes the appellate jurisdiction of the Ohio Supreme Court; and appeals from a decision of a court of common pleas that denies an application for DNA testing pursuant to O.R.C. § 2953.73 for a person who has been sentenced to death.
Discretionary appeals: Limited to review of appeals which involve a substantial constitutional question, including appeals from a decision of a court of appeals under Ohio App. R. 26(B) in a non-capital case; cases which involve a felony pursuant to Article IV, Section 2(8) (2) (b) of the Ohio Constitution; and cases which involve a question of public or great general interests pursuant to Section 2(8) (2) (e) of the Ohio Constitution.

F. Application for United States Supreme Court Review:

Scope and purpose: Provides a forum and opportunity for review of the claims asserted on direct appeal by the United States Supreme Court.
Filed pursuant to Title 28 U.S.C. § 2101.
Available for review of judgments of the Ohio Supreme Court which implicate a federal constitutional interest, including, but not limited to, direct appeal judgments, judgments of a court of appeals relating to a post-conviction petition, judgments of a court of appeals relating to applications to reopen under Ohio App. R. 26(B).
Available for review of a court of appeals judgment regardless of whether the Ohio Supreme Court accepted jurisdiction.
Must be filed within 90 days of the date the Ohio Supreme Court declined review or entered judgment on the merit.

II. Application to Reopen:

Scope and purpose: Provides the exclusive forum for claims that appellate counsel was ineffective. Requires proof that appellate counsel failed to detect and present a winning claim.
Time to file: Must be filed within 90 days of the date that the direct appeal was denied.
Filed pursuant to Ohio App. R. 26(B).

III. Post Conviction Petitions:

Scope and Purpose: The post-conviction process is a civil collateral attack on a criminal judgment, in which a prisoner may present constitutional claims which could not be reviewed on direct review because the evidence supporting the claim was not contained within the existing record, (g., affidavits and otherwise establishing that trial counsel failed to investigate, contact, and present known and available alibi, fact, or expert witnesses, whose testimony, believed by the jury, possessed a reasonable probability of affecting the outcome of the trial process).
Time to file: Must be filed no later than 365 days after the date the trial transcripts were filed in the court of appeals for direct appeal purposes; or, if no appeal is taken, no later than 365 days after the time for filing a timely notice of appeal expired.
An evidentiary hearing must be granted if, taken as true, the evidentiary materials (e., properly sworn and notarized affidavits) submitted with the petition establish a substantial basis for relief.
A post-conviction petition is subject to dismissal without an evidentiary hearing if the petitioner has failed to submit evidentiary materials (e., affidavits and the sort) which establish facts absent from the face of the record which are necessary for relief.

IV. Applications to Reopen Judgment Denying Post-Conviction Relief:

Scope and purpose: Provides a forum to reopen a judgment denying post-conviction relief based on a due process violation which infects the accuracy and integrity of the judgment denying post-conviction relief. g., failures to review claim, improper recharacterization of a claim or the petition, applying improper standards for review.
Time to file: Generally, within one year of judgment.
Filed pursuant to Ohio Civil Rule 60 (b).

V. Applications for a Delayed Direct Appeal:

Scope and purpose: Authorizes appellate courts to reinstate an appeal as of right for good cause shown.
Time to file: May be filed without regard to time.
Does not apply to appeals involving the denial of post-conviction relief.
If granted, counsel will be appointed, and the direct appeal process will begin anew.
Filed pursuant to Ohio App. R. 5.

VI. Federal Habeas Petition:

1. Scope and Purpose: Provides a forum and opportunity to secure federal review of constitutional claims properly presented to and rejected by the state courts.
2. Time to file: Must be filed within one-year of the date the state judgment of conviction becomes final.
- A state court judgment becomes final on:
- The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
- The date on which the impediment to filing an application created by State action in violation of The Constitution or laws of the United States is removed if the applicant was prevented from filing by such State action.
- The date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
- The date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
- The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. Title 28 U.S.C. § 2244(d) (2).
1. Limits federal courts from overturning a state court judgment unless the defendant demonstrates that the state court decision resulted in a decision contrary to, or involving an unreasonable application of, clearly established federal law, as determined by the holdings of the Supreme Court.
2. Also permits federal courts to overturn state court judgments, involving a federal constitutional question, which involve an unreasonable application of the facts.

VII. Applications for a Certificate of Appealability:

Scope and purpose: Provides a forum and an opportunity to secure review of a judgment denying federal habeas relief. Must
Time to file: Within 30 days of the judgment denying relief.
Filed pursuant to Title 28 U.S.C. § 2253.
Filed to the federal district court which denied relief, as an initial matter.
If relief denied, can be refiled with the United States Court of Appeals.
If again denied, can be refiled with the United States Supreme Court.
Subject to reopening, under Rule 60 (b), if established appropriate.

VIII. Applications to Reopen Judgment:

Scope and purpose: Provides a forum to reopen a judgment denying post-conviction relief based on a due process violation which infects the accuracy and integrity of the judgment denying post-conviction relief. E.g., failures to review claim, improper recharacterization of a claim or the petition, applying improper standards for review.
Time to file: Within one year of judgment.
Filed pursuant to Federal Civil Rule 60 (b).

IX. Petitions for Judicial Release:

Scope and purpose: Provides an opportunity for qualifying inmates to request and early release at the discretion of the sentencing judge.

If the aggregated nonmandatory prison term or terms is less than two years, the eligible offender may file the motion at any time after the offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, at any time after the expiration of all mandatory prison terms.
If the aggregated nonmandatory prison term or terms is at least two years but less than five years, the eligible offender may file the motion not earlier than one hundred eighty days after the offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, not earlier than one hundred eighty days after the expiration of all mandatory prison terms.
If the aggregated nonmandatory prison term or terms is five years, the eligible offender may file the motion not earlier than the date on which the offender has served four years of the offender’s stated prison term or, if the prison term includes a mandatory prison term or terms, not earlier than four years after the expiration of all mandatory prison terms.
If the aggregated nonmandatory prison term or terms is more than five years but not more than ten years, the eligible offender may file the motion not earlier than the date on which the offender has served five years of the offender’s stated prison term or, if the prison term includes a mandatory prison term or terms, not earlier than five years after the expiration of all mandatory prison terms.
If the aggregated nonmandatory prison term or terms is more than ten years, the eligible offender may file the motion not earlier than the later of the date on which the offender has served one-half of the offender’s stated prison term or the date specified in division (C)(1)(d) of this section.

X. Applications for Commutation of Sentence:

Scope and purpose: Permits the governor to exercise mercy and reduce a defendant’s sentence or degree of offense without limitation.
Time to file: May be filed without regard to time.
Post-sentence conduct, and any other mitigating circumstances, will be considered.
Filed pursuant to O.R.C. § 2907.04.

XI. Motions for a New Trial:

Scope and purpose: Provides a forum and opportunity to file a motion for a new trial.
Time to file:

Within 14 days of the verdict, for any of the following which can be demonstrated to have prejudicially affected the defendant’s substantial rights:
Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;
Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
Accident or surprise which ordinary prudence could not have guarded against;
That the verdict is not sustained by sufficient evidence or is contrary to law. If the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and shall pass sentence on such verdict or finding as modified;
Errors of law occurring at the trial.
Except as provided above, when new evidence is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial and which produces a reasonable likelihood of a different outcome at trial.
When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case.
The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses;
Application for a new trial shall be made by motion which, except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be filed within seven twenty-one days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided herein.
Motions for new trial pursuant to subsection (A)(6) shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If filed more than one hundred twenty days after the day upon which the verdict was rendered or the decision of the court where trial by jury has been waived, the defendant must first seek leave of the court to file a motion for new trial.
Leave of the court shall be granted if it is made to appear, by clear and convincing proof, that the defendant was unavoidably prevented from the discovery of the evidence upon which the defendant must rely within the one hundred twenty-day period.
Leave of the court shall be granted regardless of any delay between the discovery of the evidence and the filing of a motion seeking leave to file a motion for new trial, unless it is made to appear by clear and convincing proof that the prosecuting attorney was actually prejudiced by the delay.
If the prosecuting attorney has established, by clear and convincing proof, that they were actually prejudiced as a result of the delay between the discovery of the evidence and the filing of a motion seeking leave to file a motion for new trial, the court may grant leave to file a motion for new trial only upon a showing that the delay was justifiable.
A motion for new trial shall be filed within twenty-one days from an order of the court granting leave to file a motion for new trial.
Notwithstanding any other subsection, motions for new trial pursuant to section 33.1 may be made at any time and without first seeking leave of the court.

Attention pro-se litigants, (potential clients, and families of prisoners): The failure to timely pursue relief under adequate and available vehicles will prove fatal. Convictions, in effect, come with a warranty. Namely, appellate and post-conviction processes.

Let them expire, (by failing to timely make a claim), and the warranty (like any other warranty) becomes void. Protect your interests and learn your vehicles and timelines today.